Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC378721 Mary Ann Murphy, Judge.
Law Offices of J.B. Casas, Jr. and J.B. Casas, Jr., for Plaintiff and Appellant Nicolas Rodriguez.
Cunningham & Treadwell, Francis J. Cunningham and David S. Bartelstone, for Defendant and Appellant Lajoma Corporation.
ZELON, J.
INTRODUCTION
Nicolas Rodriguez filed a complaint alleging that Lajoma Corporation had obstructed access to a recorded easement that provided vehicular entry to the rear portion of Rodriguez’s property. Lajoma argued that Rodriguez’s easement rights had extinguished and that he was equitably estopped from asserting any interest in the easement. After a bench trial, the trial court found that Rodriguez had an express easement, 50 feet in length, along the eastern boundary of Lajoma’s property, enjoined the parties from blocking access to the easement, and awarded Rodriguez $41,000 in damages.
Both parties appeal the judgment. Rodriguez contends that the trial court misinterpreted the length of the easement, asserting that his right of passageway extends approximately 100 feet to the rear of his property. Lajoma, in turn, argues that the evidence at trial showed that the easement has been extinguished and that Rodriguez is equitably estopped from asserting his easement rights. Lajoma also argues that Rodriguez failed to introduce any evidence that he suffered damages. We affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Preceding Trial
1. Description of Rodriguez’s property and the easement agreement
In 1989, Nicolas Rodriguez purchased a parcel of property located at 1327 East 42nd Street, Los Angeles, California. A survey of Rodriguez’s property shows that the rectangular lot is approximately 40 feet wide, running east to west, and 115 feet long, running north to south. The property is bordered to the south by 42nd Street, to the north by an alley, and to the east and west by other residences located on East 42nd Street. The lot contains a one family residence that faces south with a garage in the northwest corner of the parcel. Although the garage was originally configured to provide vehicular access to the alley located behind the property, a fence that runs along Rodriguez’s rear boundary line currently blocks access to that alley. The western wall of Rodriguez’s residence sits four feet east of the western property boundary, and extends approximately 75 feet northward from the southern property boundary. As a result of the house’s location, it is not possible for an automobile to access the rear of Rodriguez’s property along the western side of his house without crossing a portion of his neighbor’s property.
The survey, which was prepared by Lajoma, diagrams the Rodriguez and Lajoma properties. During trial, the parties stipulated to the admissibility of the survey and a witness testified to its accuracy.
Six months after purchasing the property, Rodriguez’s neighbor, Evelyn Smith, who lived directly to the west at 1323 East 42nd Street, informed Rodriguez that he had a “right of way” over a five foot wide section of land running along the eastern side of Smith’s land. According to Smith, Rodriguez had a right to use this easement to drive his vehicle to the rear of his property.
In around 1990, Rodriguez obtained a copy of the “Agreement of Easement.” The agreement, which was recorded in Los Angeles County in 1958, was entered into by Ruth Williams, a previous owner of 1323 East 42nd Street (Evelyn Smith and Lajoma’s predecessor in interest), and Pearl Jones, Charles Jones, Vance Reed Jones and Samuel Jones, who previously owned 1327 East 42nd Street (Rodriguez’s predecessors in interest). Williams is referred to in the Agreement as “the First Party” while the Joneses are referred to as “the Second Parties.”
The agreement states that it was intended to provide a “community driveway or passageway... between said properties, bordering on the east side of the property of the First Party, and the west side of the property of the Second Parties.” It describes the easement as follows:
1. That the First Partty [sic]... and [her] successors in interest, shall have a right of passageway, for exit and entrance, over five (5) feet of the above described property owned by the Second Parties, said five (5) feet to border on the West side of the property of said Second Parties, and to extend approximately fifty feet from the street boundary to the rear boundary of said property, said passageway to be used for the passageway of mechanical vehicles, foot traffic, or other means.
2. That the Second Parties.... and [their] successors in interest shall have a right of passageway, for exit and entrance, over five (5) feet of the above described property owned by the First Party, said five (5) feet to border on the West side of the property of said Second Parties, and to extend approximately fifty feet from the street boundary to the rear boundary of said property, said passageway to be used for the passageway of mechanical vehicles, foot traffic, or other means... [¶]
3. It is agreed and understood that this right of passageway shall exist as a covenant running with the land and shall be binding upon the... successors in interest of each of the parties hereto.
In effect, the easement established a 10 feet wide, community passageway running between the two properties, with five feet of the easement falling on each parcel.
2. Lajoma Corporation’s acquisition of 1323 42nd Street
In January of 2007, Lajoma Corporation, which is in the business of acquiring distressed properties and constructing new residences, purchased the property located at 1323 East 42nd Street, Los Angeles, California, which sits directly to the west of Rodriguez’s property. A preliminary title report prepared by Fidelity National Title did not report any easements on the property. Lajoma’s President and Chief Financial Officer, David Vivanco, conducted a physical inspection of the property and did not see any obvious signs of a shared driveway. Shortly after the purchase, Lajoma began demolishing the existing structure to build a new two family residence. In February of 2007, it placed a wrought iron security fence along the northern and southern boundary lines of its property, blocking entry to the easement. In April of 2007, Lajoma installed a wood fence running along the eastern boundary of its property, bisecting the easement.
Rodriguez alleges that, shortly after Lajoma began demolition on the old structure in the neighboring lot, he notified a contractor of the easement running along the eastern boundary of Lajoma’s property. The contractor told Rodriguez that he should notify Vivanco, and described the vehicle that Vivanco drove. Rodriguez thereafter waited for Vivanco to visit the property and informed him about the easement. Vivanco contends that he first spoke with Rodriguez in early May of 2007, by which time Lajoma had finished 90 percent of the newly constructed two-family residence. Vivanco further alleges that, after his discussion with Rodriguez, he asked his title company to look into Rodriguez’s claimed easement, but the company found no record of it. In early June, Rodriguez provided Vivanco a copy of the written easement agreement.
Vivanco, however, refused to take down the security fence or the wood fence running along the eastern boundary of the property, both of which obstructed access to the easement.
B. Complaint and Trial
On October 9, 2007, Rodriguez filed a complaint seeking injunctive relief requiring Lajoma to remove any obstructions to the easement and compensatory damages. During the trial, Rodriguez testified that, from approximately 1990 to 1996, he used the passageway described in the easement agreement to access the rear of his property, where he parked his car. According to Rodriguez, Evelyn Smith, who was Lajoma’s predecessor in interest, had informed Rodriguez that the easement agreement provided him vehicular access to the back of his property.
In around 1990, Rodriguez constructed a brick wall along the front of his home, which extended two feet into the easement area. In addition, he built a fence in the back of his property that ran diagonally between the southwest corner of his garage and the northwest corner of his house, thereby blocking access between his backyard and the narrow strip of property to the east of his residence. Rodriguez initially put the fence on rollers, permitting him to open the fence to park his car behind his house. However, around 1996, Rodriguez observed that Evelyn Smith’s son had begun dealing drugs behind the residence at 1323 42nd Street. Rodriguez wanted to avoid that activity and, as a result, he stopped parking behind his home. As a safety precaution, Rodriguez removed the rollers from the fence so that it could not be moved.
In 2004, Smith’s son was incarcerated and the drug activity behind 1323 42nd Street stopped. Rodriguez and Smith thereafter agreed that both parties could park in the easement area. This arrangement lasted from approximately 2004 until Smith sold her property to Lajoma in 2007, at which time Rodriguez began parking on the street. Rodriguez also testified that, before Lajoma obstructed the easement, he had intended to put the fence in the rear of his home back on rollers and resume parking in his back yard. He alleged that, as the result of Lajoma’s conduct, he was forced to continue parking on the street.
Rodriguez’s daughter, Inez Rodriguez, also testified at trial and stated that, in early 2007, she had begun driving a car to school. She further alleged that she returned from school at around 10:00 p.m. and was forced to park in the street, four or five houses down from the Rodriguez residence. Because Ms. Rodriguez felt unsafe walking through her neighborhood at night, she would call her father to escort her from the car to their house. She also stated that, if the easement were available, she would use it to park.
Lajoma called several witnesses at the trial, including Vivanco and other Lajoma employees and contractors, who testified that they were not aware of any easement on the property until they talked to Rodriguez, which did not occur until construction on the two family residences was almost complete. In addition, Lajoma called an expert witness who had prepared a survey of the parties’ properties. The survey showed that, if the easement was deemed to run 50 feet northward from the southern boundary of the parties’ properties, it would end approximately half way down the western side of Rodriguez’s house. In other words, it would not permit him to drive to the back of his home without trespassing on a portion of Lajoma’s property.
During closing argument, Lajoma conceded the existence of the recorded easement but argued that, by placing a wall that abutted into the easement and putting up a fence between his garage and his house, Rodriguez had taken acts incompatible with the easement, extinguishing any rights to the passageway. Lajoma also argued that because Rodriguez had not informed Vivanco of the easement until the two-family residence was almost complete, he was equitably stopped from asserting the existence of the easement.
Rodriguez disagreed, arguing that the recorded easement provided a communal driveway running from the front of his property to the rear portion of the home, which was a distance of approximately 100 feet. The court, however, pointed out that the easement agreement stated that the easement only extended 50 feet to the north, rather than the 100 feet necessary to access the rear of Rodriguez’s property. Rodriguez argued that, despite the language of the easement, his neighbor had always permitted him to pass to the back of the property.
On April 8, 2009, the court entered a judgment that there was an easement “50 feet long, extending 50 feet north from the East 42nd Street boundary, toward the rear boundaries of the Lajoma Property and Rodriguez Property.” The judgment ordered Lajoma and Rodriguez to remove all obstructions to the easement, and awarded Rodriguez $41,900 in damages, $100 for each day the easement was blocked.
DISCUSSION
A. Rodriguez’s Appeal
Rodriguez argues that the trial court misinterpreted the easement agreement by concluding that the easement only runs 50 feet northward from the properties’ southern boundary. As interpreted by the court, the easement ends about halfway down the western side of Rodriguez’s home, which effectively prevents him from driving to (and parking in) the rear of his property. Rodriguez contends that the easement is properly interpreted as extending all the way to the northern boundary of his property, which is approximately 100 feet from the southern boundary. In support, Rodriguez relies on the language of the easement agreement, his prior conduct in using the easement and the absurd results that would allegedly result from the trial court’s interpretation.
1. Standard of review and guiding principles of interpretation
Land grants are interpreted in the same manner as a contract. (Civ. Code, § 1066.) We interpret the meaning of the easement agreement de novo, unless extrinsic evidence is admitted to determine the meaning of ambiguous provisions, in which case we evaluate the determinations of the court under the substantial evidence test. (California National Bank v. Woodbridge Plaza LLC (2008) 164 Cal.App.4th 137, 142.)
When an easement arises from an express grant, the “the scope and extent of the easement is to be determined by the terms of the grant.” (Norris v. State ex rel. Dept. of Public Works (1968) 261 Cal.App.2d 41, 46 (Norris); Civ. Code, § 806.) The primary objective “‘is to ascertain and carry out the intention of the parties, ’” (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238), which “is to be gathered, if possible, from the instrument itself and is determined by a proper construction of the language used, rather than by resorting to extrinsic evidence.’ [Citation.]” (Norris, supra, 261 Cal.App.2d at p. 46.) “If the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from or vary its terms....” (Palos Verdes Corp. v. Housing Authority (1962) 202 Cal.App.2d 827, 836.)
2. The trial court correctly interpreted the easement agreement
The written easement agreement states that Rodriguez “shall have a right of passageway, for exit and entrance, over five (5) feet of the [Lajoma property], said five (5) feet to border on the East side of the property of [Lajoma], and to extend approximately fifty feet from the street boundary to the rear boundary of said property.” The trial court concluded that this language was unambiguous and established an easement “that is 50 feet long, extending 50 feet north from the East 42nd Street Boundary, toward the rear boundaries of the Lajoma Property and Rodriguez Property.”
Rodriguez disagrees, arguing that the agreement indicates that the mutual easement extends beyond his residence to the rear of his property, which is approximately 115 feet from the southern boundary. In support, Rodriguez points to language in the grant stating that the easement shall run “to the rear boundary of said property.” (Emphasis added.) Rodriguez contends that the word “to” is commonly defined to mean “as far as, ” and, therefore, the parties to the agreement must have intended the easement to run all the way to the rear of his property. Rodriguez’s proposed interpretation ignores qualifying language in the easement agreement stating that the easement extends “approximately 50 feetfrom the street boundary, to the rear of the property.” (Emphasis added.) This additional language plainly states that the easement only runs 50 feet in length, “to the rear of the property.” Although Rodriguez is correct that the word “to” can mean “as far as, ” it also means “in the direction of.” (American Heritage Dict. (2d college ed. 1982) p. 1274.) Given the agreement’s express description of the length of the easement, we believe that, in this case, the only reasonable interpretation of the word “to” is “in the direction, ” that is, in the direction of the rear of the property. (See generally Woodruff v. Adams (1933) 134 Cal.App. 490, 494 [“The word[]... ‘to’ may be given the meaning to which reason and sense entitle it, according to the circumstances of the case”].)
Initially, Rodriguez argued that the easement should be interpreted to extend all the way to the rear property boundary, which is some 115 feet north of the southern boundary. However, during trial, he argued that, alternatively, the easement should be interpreted to extend to the southwest corner of his garage, which sits 97 feet north of the southern boundary.
Rodriguez also appears to argue that, because the easement says “approximately” 50 feet, it can reasonably be interpreted to extend 100 feet to the back of his property. Again, we disagree. The term “‘approximately’ means ‘about’ and is used in the sense of an estimate merely, meaning more or less, about and near the amount, quantity or distance specified. [Citation.]” (Quindt v. Kilpatrick (1950) 96 Cal.App.2d 824, 826.) It is simply not reasonable to assume that although the original parties to the agreement stated that the easement was to run “approximately 50 feet, ” they actually intended it to extend twice that distance. (See, e.g., Ross v. Keaton Tire & Rubber Co. (1922) 57 Cal.App. 50, 52 [“the term ‘to cost approximately $21,000’ [cannot]... in the absence of evidence affecting the interpretation, ... be construed to mean that the parties contemplated the construction of a building to cost, as found by the court, more than fifty per cent in excess of that agreed upon”].)
Rodriguez also offers a new, alternative reading of the easement agreement for the first time on appeal. Specifically, he argues that the phrase “to extend approximately fifty feet from the street boundary to the rear boundary of said property” was intended to “take into consideration the width of the street [in front of Rodriguez’s house], which is approximately forty-three feet wide and the sidewalk that is approximately seven feet wide.” In other words, Rodriguez contends that the phrase “50 feet” was not intended to describe the length of the easement, but rather to make clear that the easement extended over the 50 feet of road and sidewalk in front of Rodriguez’s property, and then extended all the way to the rear of his property. Because Rodriguez never presented his newly-proposed interpretation to the trial court, we will not consider his attempt to do so now. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“‘“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court[ ]’ for the first time on appeal.”’”].) This interpretation is, in any event, unpersuasive. The original parties to the agreement would have had no reason or legal authority to extend the easement over the public road.
Rodriguez next contends that his interpretation of the contract is supported by the fact that, throughout the 1990s, his neighbor allowed him to drive all the way down to the rear of his property. Rodriguez asserts that we must “consider the acts of the parties prior to the controversy and apply great weight to the meaning of said acts and conduct in construing the Agreement of easement.” If the extent of the easement is in question, courts can infer intent from the “actual uses being made at the time of the grant [and]... such uses as the facts and circumstances show were within the reasonable contemplation of the parties at the time of the conveyance.” (Neff v. Ernst (1957) 48 Cal.2d 628, 635-636.) Even assuming that the extent of the easement is not clear, however, Rodriguez failed to introduce any evidence regarding the use of the easement at the time of the conveyance. Instead, he merely provided testimonial evidence that, 30 years after the easement agreement was entered into, his neighbor, a nonsignatory to the agreement, allowed him to drive to the rear of his property. This conduct does not demonstrate the original intent of the parties and, therefore, is not relevant to the interpretation of the easement agreement.
Finally, we reject Rodriguez’s argument that the trial court’s interpretation of the easement would lead to absurd results or thwart the purpose of the easement which, in Rodriguez’s view, was to provide access to the rear of his property. (See generally Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 842.) [“interpretation of a contract ‘must be fair and reasonable, not leading to absurd conclusions.’ [Citation.]”]; Ajax Magnolia One Corp. v. Southern Cal. Edison Co. (1959) 167 Cal.App.2d 743, 750 [“interpretation of an instrument which would thwart the fulfillment of the purposes of an easement and impede its use will not be favored’].) The easement agreement states that it was intended to act as a “community driveway or passageway” to provide access for “exit and entrance;” the agreement is silent as to parking. Under the court’s interpretation, the easement still provides access to the front portion of the two properties, which could be used to access the residence while unloading a vehicle. Although the trial court’s interpretation might limit the use that Rodriguez would like, that is insufficient to rewrite the plain language of the agreement.
Moreover, Rodriguez has offered no evidence in support of his contention that the original and true purpose of the easement was to provide vehicular access to the rear of the home. The easement agreement contains no such language and, as explained above, Rodriguez did not offer any evidence regarding the parties’ intent at the time of the conveyance. Indeed, the evidence that was presented at trial casts doubt on Rodriguez’s assertion. Lajoma’s contractor testified that Rodriguez’s garage, which is located in the northwest corner of the property, had originally been configured to provide vehicle access to the alley that bordered the property to the north. However, at some later point, a previous owner converted the garage into a living space and built a wall along the northern border of Rodriguez’s property that cut off access to the alleyway. Therefore, it may be that, in 1958, Rodriguez’s property was accessible by vehicle through the alley, which would negate any need for vehicular access along the strip of land located between the Rodriguez and Lajoma properties.
In sum, the plain language of the easement agreement indicates that the easement is 50 feet in length, running from the southern boundary of the Rodriguez and Lajoma properties. Rodriguez has failed to introduce any relevant extrinsic evidence that casts doubt on the plain language of the agreement and, as a result, we affirm the trial court’s ruling.
B. Lajoma’s Cross Appeal
Lajoma raises three arguments in its cross appeal. First, it asserts that Rodriguez committed acts that extinguished the easement. Second, it contends that there was sufficient evidence to establish that Rodriguez is equitably estopped from asserting his easement rights. Third, Lajoma argues that Rodriguez failed to introduce any evidence that supports an award of compensatory damages.
1. The trial court did not err in finding that the easement is not extinguished
Lajoma argues that Rodriguez committed two different acts that extinguished the recorded easement: (1) constructing a wall that protruded two feet into the entryway of the easement, and (2) constructing a permanent fence that stretches from his garage to his home, blocking access between the western side of his house and the rear of his property. The parties do not dispute the material facts relevant to Lajoma’s extinguishment claim. Therefore, the trial court’s ruling on this issue constitutes a determination of law that we review de novo. (See, e.g., Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598, fn.2 [“To the extent that material facts are not in dispute, the rulings regarding the grant of the easement... constitute determinations of law that we review de novo”].)
Pursuant to Civil Code section 811, subdivision (3), “[a]n easement may be extinguished by performance of any act by the owner of the easement on either the dominant or servient estate which is incompatible with the nature or exercise of the easement. (Buechner v. Jonas (1964) 228 Cal.App.2d 127, 132) Our courts have emphasized that “[e]xtinguishment... is an extreme and powerful remedy which is utilized only when use of the easement has been rendered essentially impossible.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 767.) Extinguishment occurs only where the “easement owner performs or authorizes an act which permanently prevents use of the easement” or is “of a nature such that thereafter exercise of the easement cannot be made without severe burden upon the servient tenement.” (Id. at pp 767-768.) “The acts... must be of a character so decisive and conclusive as to indicate a clear intent to abandon the easement.” (Id. at p. 768.)
Rodriguez’s conduct does not satisfy this stringent test. Although Rodriguez installed a block wall that extended two feet into the entry of the easement, eight feet of the entryway remained unobstructed. Rodriguez testified that, for many years after the block wall was erected, he continued to drive through the easement. Thus, the evidence shows that the wall did not “permanently prevent” use of the easement nor did it constitute a clear intent to abandon the easement. (See, e.g., McCarty v. Walton (1963) 212 Cal.App.2d 39 [building of rock wall with 3 ½ foot wide gate did not merit extinguishment of easement].) Moreover, Lajoma has not introduced any evidence that it would be impossible (or even difficult) for Rodriguez to simply remove the portion of the wall that extends into the easement.
Rodriguez’s construction of a fence running between his garage and his house is also insufficient to establish extinguishment. Under the trial court’s interpretation of the recorded agreement, which Lajoma itself urged, the easement runs 50 feet north from the southern boundary of the parties’ properties. The fence that Rodriguez constructed, however, sits approximately 75 feet north of the southern boundary and runs northward. The fence is neither located within the easement area nor does it obstruct access to the easement. Therefore, Lajoma cannot assert the fence extinguished the easement.
2. Substantial evidence supported the court’s denial of equitable estoppel
Lajoma next contends that the evidence demonstrated that Rodriguez was equitably estopped from asserting any interest in the easement because he remained silent about the easement agreement until Lajoma had almost finished constructing its new residence. “The existence [or non-existence] of an estoppel is generally a question of fact for the trial court whose determination is conclusive on appeal unless the opposite conclusion is the only one that can be reasonably drawn from the evidence.” (Cole v. City of Los Angeles (1986) 187 Cal.App.3d 1369, 1374.) The burden of proving the facts necessary to constitute an estoppel is on the party asserting it. (General Motors Acceptance Corp. v. Gandy (1927) 200 Cal. 284, 295.)
“Estoppel is the equitable concept of precluding a party from taking unfair advantage of the reliance by another party on the first party’s representation or conduct.” (City of Highland v. County of San Bernardino (1992) 4 Cal.App.4th 1174, 1193) “Four things are essential to the application of the doctrine of equitable estoppel. They are: [¶] 1. There must have been a misrepresentation or concealment of the matters of fact as to which the estoppel is claimed; [¶] 2. The party to be estopped must intend that the other party act upon the assumption of the truth of that fact; [¶] 3. The party claiming the estoppel must be ignorant of the true facts; [¶] 4. He must rely to his injury upon the conduct of the party to be estopped.” (Banco Mercantil, S.A. v. Sauls, Inc. (1956) 140 Cal.App.2d 316, 323 (Banco Mercantil).) “[W]here even one of the requisite elements for estoppel is missing, it does not apply.” (Feduniak v. California Coastal Comm. (2007) 148 Cal.App.4th 1346, 1360.) Moreover, “‘the facts proved must be such that an estoppel is clearly deducible from them.... [Citation.] [¶] The representation, whether by word or act, to justify a prudent man in acting upon it, must be plain, not doubtful or matter of questionable inference. Certainty is essential to all estoppels.” (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1318).
The record amply supports the trial court’s conclusion that Lajoma failed to establish equitable estoppel. First, the evidence shows that Lajoma was not ignorant of the easement. Lajoma does not dispute that Rodriguez’s easement was recorded nor does it dispute testimonial evidence indicating that, after Lajoma began its construction, Rodriguez’s wife obtained a copy of the recorded easement from the County Recorder. It is well-established that “[r]ecording an easement gives notice to prospective purchasers and to the assessor’s office that the land is encumbered with an easement.” (Kuperman v. Assessment Appeals Bd. No. 1 (2006) 137 Cal.App.4th 918, 930 [citing Civ. Code, § 1213].) Therefore, Lajoma had “constructive notice” of the easement, which is sufficient to defeat its estoppel claim. (Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 236-237 [“act of recording [documents of title to real property] imparts constructive notice of the contents of the instrument”]; Greiner v. Kirkpatrick (1952) 109 Cal.App.2d 798, 801 [denying equitable estoppel where “defendant had been put on notice of plaintiff's rights... by the recording of plaintiff’s easement”].)
Lajoma argues that, regardless of whether the easement was recorded, it remained ignorant of the easement’s existence because the title company failed to report it. However, to satisfy equitable estoppel, Lajoma had to show that it was “actually and permissibly” ignorant of the truth. (People v. American Contractors Indem. Co. (2006) 136 Cal.App.4th 245, 251.) Estoppel will not lie where the party asserting estoppel “knew or should have known” the true state of the facts. (Morris Plan Co. v. Moody (1968) 266 Cal.App.2d 28, 30; see also Banco Mercantil, supra, 140 Cal.App.2d at p. 323 [moving party must show that “it... did not have actual knowledge of the true facts... [and] that [it] did not have notice of facts sufficient to put a reasonably prudent man upon inquiry, the pursuit of which would have led to actual knowledge; the convenient or ready means of acquiring knowledge being the equivalent of knowledge”].) As recording an easement provides constructive notice to future purchasers of the property, Lajoma cannot deny the requisite knowledge.
Moreover, because equitable estoppel “rests firmly upon a foundation of conscience and fair dealing, ” (Long Beach v. Mansell (1970) 3 Cal.3d 462, 488), Rodriguez should not, and cannot, be held responsible for an error that was committed by Lajoma’s title company. Lajoma’s recourse, if any, is against the title company. (See, e.g., Overholtzer v. Northern Counties Title Ins. Co. (1953) 116 Cal.App.2d 113 [explaining circumstances under which party may pursue claim against title insurer who fails to discover recorded easement.)
Lajoma also failed to satisfy the first element of equitable estoppel, which “may be established either by proof of actual misrepresentation or by proof of careless and culpable conduct resulting in the deception of the party entitled to claim the estoppel.” (Banco Mercantil, supra, 140 Cal.App.2d at p. 323.) When, as here, “the party to be estopped does not say or do anything, its silence and inaction may support estoppel only if it had a duty to speak or act under the particular circumstances.” (Feduniak, supra, 148 Cal.App.4th at p.1362; Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268 [“It is well established that mere silence will not create an estoppel, unless there is a duty to speak].”) Lajoma has failed to identify any authority indicating that Rodriguez had a duty to inform the company about the easement. (See, e.g., Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 385 [“silence as the basis for estoppel... requires a showing of special circumstances, such as a confidential or fiduciary relationship....”].) Moreover, even assuming Rodriguez had such a duty, the evidence shows that he did inform Lajoma about the easement. Rodriguez, who the trial court found to be “very credible, ” testified that, shortly after Lajoma began demolishing the neighboring residence, he notified a contractor about the easement. The contractor, in turn, told Rodriguez that he should talk to Vivanco. When Rodriguez later saw Vivanco at the construction site, he informed him about the easement. We see nothing “careless” or “culpable, ” (Banco Mercantil, supra, 140 Cal.App.2d at p. 323), in this course of conduct that would justify the application of equitable estoppel.
3. Rodriguez provided evidence supporting an award of damages
Lajoma challenges the trial court’s award of damages, arguing that Rodriguez did not introduce any evidence that he was damaged by Lajoma’s conduct. Because Lajoma did not move for a new trial, it cannot challenge the amount of the damages award. (See Jamison v. Jamison (2008)164 Cal.App.4th 714, 719 [“A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or by the court”].) This rule does not, however, bar us from considering whether there was any evidence that supports an award of damages. (See Roche v. Casissa (1957) 154 Cal.App.2d 785, 787 [although “excessive damages cannot be urged as a ground for reversal unless previously presented to the trial court on motion for new trial... that rule can have no application [where Appellants]... contend that no damage at all is shown by the evidence”].)
“When a person interferes with the use of an easement he deprives the easement’s owner of a valuable property right and the owner is entitled to compensatory damages. The interference is a private nuisance and the party whose rights have been impeded can recover damages as measured in the case of a private nuisance. Damages may be recovered for diminution of the property’s value and for annoyance and discomfort flowing from loss of use.” (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574 (Moylan); Kazi v. State Farm Fire and Cas. Co. (2001) 24 Cal.4th 871, 881 [“owner of the dominant tenement may... recover damages from a party for obstructing the easement. [Citations.] Awardable damages compensate the plaintiff for loss of use of the easement and the diminished value of the lot it benefited”].) Because damages that result from the obstruction of an easement are “‘unliquidated and not readily subject to precise calculation, ’” the “amount thereof is ‘necessarily left to the subjective discretion of the trier of fact.’” (Moylan, supra, 181 Cal.App.3d at p. 574.)
In this case, multiple members of the Rodriguez family testified that, as the result of Lajoma’s conduct, they were denied access to the easement. This evidence is sufficient to demonstrate that Rodriguez suffered at least some form of “annoyance and discomfort” supporting an award of damages. (Moylan, supra, at p. 574.) As explained above, because Lajoma failed to move for a new trial, we need not review whether the actual amount the trial court awarded for this annoyance was excessive.
DISPOSITION
The trial court’s judgment is affirmed. Each party is to bear its own costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.