Filed 6/18/15 Fullerton v. King CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


RICHARD FULLERTON,
         Plaintiff and Respondent,
                                                                         A142457
v.
HOWARD E. KING,                                                          (Marin County
                                                                         Super. Ct. No. CIV1205037)
         Defendant and Appellant.


         Defendant Howard E. King appeals a judgment, entered upon the granting of
plaintiff Richard Fullerton’s motion for summary adjudication, that permanently enjoins
King from motorizing an existing gate across a private road on which Fullerton holds an
easement. He contends the court interpreted too restrictively the terms of the easement
governing Fullerton’s right to use the private road for ingress and egress. We agree and
shall therefore reverse the judgment and remand for further proceedings to determine
whether the gate unreasonably burdens Fullerton’s right of use.
                                       Factual and Procedural History
         In 1986, Herbert Damner subdivided a seven-acre parcel in the town of Ross into
three separate lots (104, 106, and 108 Laurel Grove). In creating the subdivision, Damner
recorded in the Marin County Recorder’s Office both a parcel map depicting the subplot
boundaries and a declaration of covenants, conditions, and restrictions (CC&Rs) attached
to the subdivided lots. As depicted on the parcel map, 104 Laurel Grove adjoins the
public street, 106 Laurel Grove is behind 104 Laurel Grove and 108 Laurel Grove is the
farthest from the public street of the three subdivided lots. A private road runs over a


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portion of 104 Laurel Grove, providing passage from the public road to the other two
subdivided lots. The CC&Rs that govern use of the subdivided lots create the following
easement: “Easements for ingress and egress, emergency vehicle access and installation
and maintenance of utilities and drainage facilities are reserved as shown on the Map
over Lot1 [104 Laurel Grove] for the benefit of Lots 2 and 3 [106 and 108 Laurel Grove].
The granted ingress and egress Driveway Easement shall be for the purposes of serving
Dwellings on each Lot. No structure, planting or other material shall be placed or
permitted to remain which may damage or interfere with the right of use and enjoyment
held by the dominant tenements over the servient tenement.” Under section 1.4 of the
CC&Rs, “The term ‘Driveway easement’ shall mean and refer to the ingress/egress
easement located on Lot 1 as shown and depicted on the map which serves the subject
property.” 1
       Currently, each of the subdivided lots is independently owned. Fullerton owns the
property at 108 Laurel Grove. King, as trustee of the Laurel Grove Trust, owns the 104
Laurel Grove property, which is occupied by a well-known public figure and his family,
including three young children.
       When King purchased the 104 Laurel Grove property in 2011, there was a
manually operable iron gate at the point where the private road over the easement
intersects Laurel Grove Street. King installed mechanization of the gate, which was
completed in October 2012. The features of the mechanized gate include 1) remote
control access for subdivision residents, such as Fullerton, or for those with frequent
access requirements (e.g., maintenance workers); 2) a numerical keypad on the public
side of the gate to allow entry by use of a programmed code; 3) a sensor loop embedded
underneath the road surface on the inside of the gate, connected and programmed to


1
 The certificate page of the parcel map filed by Damner includes an offer of public
easements that “shall be kept open and free from permanent buildings and structure of
any kind,” for sewer, public utility, drainage, waterline and a roadway. The certificate
page indicates, however, that the city accepted the sewer and public utilities easements
but rejected the drainage, waterline and roadway easements.


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allow instantaneous vehicle egress without the need for remote control or code entry;
4) sensors located on the public side of the gate, connected and programmed as part of
safety features to prevent gate entrapment; and 5) a “Knox box” key switch installed at
the exterior gate keypad to provide emergency personnel with unrestricted access to the
subdivision properties.
       In November 2012, Fullerton filed a complaint seeking declaratory relief that the
mechanization of the existing gate violates the CC&Rs and overburdens Fullerton’s
property rights in the easement.2 Fullerton requested, among other things, a permanent
injunction requiring removal of the “new gate structure.” King cross-complained for
declaratory relief that the gate does not violate the easement and for an order declaring
the parties’ respective rights and duties in connection with the easement.
       In September 2013, Fullerton moved for summary judgment or summary
adjudication, alleging that mechanization of the existing gate is absolutely prohibited by
the easement in the CC&Rs. The court granted the motion for summary adjudication of
two causes of action, concluding that the express language of the easement prohibits
mechanization of the gate and thus violates the CC&Rs. The court explained that the
“express language of the CC&R’s prohibits any structure interfering with the ingress and
egress.” The court opined that the reasonableness of any interference is irrelevant
because “the language unmistakably manifests the intent to prohibit any physical
obstruction . . . that could interrupt or hinder, even temporarily, a resident[’s] use of that
roadway.” The court concluded that, as a matter of law, Fullerton is entitled to a judicial
declaration “finding him to have non-exclusive use of the private roadway easement that
is free from placement of [King’s] gate across the roadway, even temporarily,” and to a
permanent injunction “barring [King] from using the gate to obstruct access to the
roadway easement at any time.”




2
 The complaint also raised issues regarding a security camera installed on King’s
property that are not at issue on appeal.


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       Pursuant to an agreement of the parties, the remaining claims were dismissed
without prejudice and a final judgment was entered. Notice of entry of judgment was
served and King timely filed a notice of appeal.
                                          Discussion
       King challenges the trial court’s determination that as a matter of law the
mechanization of the existing gate violates the terms of the CC&Rs. As noted above, the
relevant provision of the CC&R’s provides that “No structure . . . shall be placed or
permitted to remain which may damage or interfere with the right of use and enjoyment
held by the dominant tenements over the servient tenement.”
       “The interpretation of an easement, which does not depend upon conflicting
extrinsic evidence, is a question of law.” (Van Klompenburg v. Berghold (2005) 126
Cal.App.4th 345, 349.) “ ‘It is fundamental that the language of a grant of an easement
determines the scope of the easement.’ [Citation.] ‘In construing an instrument conveying
an easement, the rules applicable to the construction of deeds generally apply. If the
language is clear and explicit in the conveyance, there is no occasion for the use of parol
evidence to show the nature and extent of the rights acquired.’ ” (Ibid.)
       In Van Klompenburg, the court held language in an easement expressly stating that
a roadway was to be “kept open” and “wholly unobstructed” precluded owners of the
servient estate from maintaining closed gates across the easement. (Van Klompenburg v.
Berghold, supra, 126 Cal.App.4th at p. 350.) The court recognized that “ ‘ “unless it is
expressly stipulated that the way shall be an open one, or it appears from the terms of the
grant or the circumstances that such was the intention, the owner of the servient estate
may erect gates across the way, if they are constructed so as not unreasonably to interfere
with the right of passage.” ’ [Citation.] However, ‘[w]here an easement under a grant is
specific in its terms, “[i]t is decisive of the limits of the easement.” ’ ” (Ibid.)
       In the present case, the easement does not expressly stipulate that the roadway be
kept “open” and does not include any modifiers of the word “interfere” similar to the
“wholly unobstructed” terminology in Van Klompenburg. The easement prohibits
placement of a “structure” that “may damage or interfere with the right of use and


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enjoyment held by the dominant tenements.” The trial court noted that “interfere” is
defined in Webster’s Universal College Dictionary (1997) as “ ‘to come into opposition
or collision so as to hamper, hinder, or obstruct someone or something.’ ” Other
dictionaries define the word somewhat differently. The Merriam-Webster dictionary
appears the closest to that relied on by the trial court, defining “interfere” as “to interpose
in a way that hinders or impedes: come into collision or be in opposition.”
(<http://www.merriam-webster.com/dictionary/interfere> [as of June 18, 2015].) That
dictionary defines “hinder” as including “to delay” as well as to “impede, or prevent
action.” Other dictionaries define “interfere with” as “Prevent (a process or activity) from
continuing or being carried out properly” (Oxford University Press
<http://www.oxforddictionaries.com/us/definition/american_english/interfere> [as of
June 18, 2015]) and “to prevent something from happening or developing in the correct
way” (Macmillan Dictionary, Macmillan Publishers Limited
(<http://www.macmillandictionary.com/us/dictionary/american/interfere-with> [as of
June 18, 2015].) As the various definitions of the term “interfere” indicate, the word may
mean to hinder or it may mean to prevent. The latter interpretation is more consistent
with the general rule that permits reasonable interference with a right of use. (Van
Klompenburg v. Berghold, supra, 126 Cal.App.4th at p. 350; see also Scruby v. Vintage
Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702-703 [“The owner of the servient estate
may make continued use of the area the easement covers so long as the use does not
‘interfere unreasonably’ with the easement’s purpose.”].)
       Nor do the circumstances at the time of the grant suggest an unequivocal intent
that the driveway be kept open and no gate be placed across its entrance. It is undisputed
that an iron gate was in place before the easement was created. Fullerton does not suggest
that the gate that stood at the entrance to the private road when King purchased his
property contravened the terms of the easement. Although conflicting evidence was
submitted as to whether the gate previously functioned as a gate or was intended merely
to be ornamental, the undisputed evidence establishes that the gate was capable of being
opened and closed manually. We cannot say that the language used in the easement


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reflects a clear and express intent to prohibit modifying the gate to operate mechanically
or electronically, or of implementing reasonable means by which to prevent unauthorized
access to the private road. 3
       Quite obviously, the purpose of the easement is to permit the occupants of Laurel
Grove 106 and 108 (and their invitees) to have access between their homes and the street.
Installing mechanization so that the gate can be opened and closed electronically does not
necessarily interfere with the ability to gain passage over the private road. The purpose of
the easement is not defeated so long as no more than minimal reasonable steps are
required to make use of the driveway. Factual assessment must be made to determine
whether the specifics of the installation and its method of operation are reasonable under
the circumstances. (Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at p. 703.)
Accordingly, we reverse the judgment and the court’s order granting Fullerton’s motion
for summary adjudication and remand for further proceedings.
                                        Disposition
       The judgment and order granting summary adjudication are reversed and the
matter is remanded for further proceedings consistent with this opinion. King shall
recover his costs on appeal.




3
  Fullerton suggests that the language used in conjunction with the offer of a public
easement in the parcel map, that the easement be “kept open and free,” reflects Damner’s
intent that the “roadway” remain open and unobstructed even though the dedication of a
roadway easement was declined. To the contrary, the fact that such express language was
used in the parcel map and not in the CC&Rs suggests that the private “driveway
easement” was not intended to be as restrictive as the offered public “roadway easement.”
Moreover, there is no merit in Fullerton’s alternative argument that the “roadway
easement granted by the parcel map” prohibits, as a matter of law, the maintenance of
“gates that obstruct [his] only access to his home,” since the public easement was rejected
by the city.


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                                _________________________
                                Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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