Opinion
B225501 B226613
11-08-2011
700 WILSHIRE PROPERTIES, Plaintiff and Appellant, v. ALLIANCE PROPERTY INVESTMENTS, INC., et al., Defendants and Respondents; LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant and Appellant. ALLIANCE PROPERTY INVESTMENTS, INC., et al., Cross-complainants and Respondents, v. 700 WILSHIRE PROPERTIES, Cross-Defendant and Appellant. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Cross-complainant and Appellant, v. ALLIANCE PROPERTY INVESTMENTS, INC., et al., Cross-defendants and Respondents.
Cheryl L. Van Steenwyk for Plaintiff, Cross-Defendant, and Appellant 700 Wilshire Properties. Haight Brown & Bonesteel, Morton G. Rosen, and Jeffrey A. Vinnick for Defendant, Cross-complainant, and Appellant Los Angeles Community College District. Steckbauer Weinhart Jaffe and J. Thomas Cairns, Jr.; Law Offices of H. Joseph Nourmand and H. Joseph Nourmand for Defendants, Cross-complainants, Cross-defendants, and Respondents Alliance Property Investments, Inc., et al.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC377008)
APPEALS from a judgment and order of the Superior Court of Los Angeles County, Joanne O'Donnell, Judge. Reversed and remanded with direction.
Cheryl L. Van Steenwyk for Plaintiff, Cross-Defendant, and Appellant 700 Wilshire Properties.
Haight Brown & Bonesteel, Morton G. Rosen, and Jeffrey A. Vinnick for Defendant, Cross-complainant, and Appellant Los Angeles Community College District.
Steckbauer Weinhart Jaffe and J. Thomas Cairns, Jr.; Law Offices of H. Joseph Nourmand and H. Joseph Nourmand for Defendants, Cross-complainants, Cross-defendants, and Respondents Alliance Property Investments, Inc., et al.
This litigation involves a dispute over a proposed change in use of a common easement. The easement is shared by the owners of the three buildings that are contiguous to the easement property, a 30-foot by 90-foot strip of land (alley) in downtown Los Angeles. For several decades, the buildings used the alley to access their respective loading docks on either side and at the rear of the alley. The present dispute arose when one of the buildings replaced its loading dock with a parking garage exit to the alley. This created the prospect of private vehicular traffic in the alley. The other easement owners objected that it would be unsafe for private vehicles to share the alley with trash trucks, several large dumpsters, and a subterranean elevator that brings trash to the surface of the alley.
The easement owners filed claims and counterclaims against each other. After the legal issues were tried to the jury, the equitable issues were tried to the superior court. Although the jury had returned a special finding that the proposed change in use would overburden the easement, the trial court rejected this finding and found that the proposed change would not overburden the easement. After allowing the proponent of the proposed change to add a claim for injunctive relief to its cross-complaint, the trial court entered a judgment that permanently enjoined the opposing easement owners from directly or indirectly interfering with the free passage of vehicles or pedestrians in the alley.
In this appeal from the judgment, we conclude that the trial court erred in: (1) disregarding the jury's special finding that the proposed change in the use of the alley would overburden the easement; (2) granting a motion for nonsuit on a fraud claim; and (3) imposing sanctions. We reverse the judgment and remand with directions.
BACKGROUND
The easement property is a private 30-foot by 90-foot alley that runs south from Wilshire Boulevard to the rear of the Roosevelt Building. The alley is contiguous to the 700 Wilshire Building to the east, the Roosevelt Building to the south, and the 770 Wilshire Building to the west. The owners of these buildings share a common easement over the alley.
Roosevelt Lofts, LLC, which is in the midst of converting the Roosevelt Building into condominiums, wants to allow private vehicles to exit the Roosevelt's parking garage through the alley. The owners of the 700 Wilshire Building and the 770 Wilshire Building are opposed to this change on the ground that it is incompatible with the established use of the alley and would overburden their common easement.
The parties to this appeal are: (1) appellant 700 Wilshire Properties (700 Wilshire), which owns the 700 Wilshire Building and the eastern half of the alley; (2) appellant Los Angeles Community College District (District), which owns the 770 Wilshire Building and the western half of the alley; and (3) respondents Alliance Property Investments, Inc., Carla Ridge, LLC, Maverick Holdings, LLC, S&M Yashoua Investments, and Desert Field, LLC, which own the Roosevelt Building; Roosevelt Lofts, LLC, which is converting the Roosevelt Building to residential condominiums; Urban Builders, Inc., the contractor for the condominium conversion project; and the Roosevelt Building Owners' Association (collectively, Roosevelt).
During the pendency of the case, Roosevelt Lofts, LLC declared bankruptcy. After being advised the bankruptcy court ordered that Roosevelt Lofts' assets in its bankruptcy estate vested in GS Roosevelt, we granted GS Roosevelt's motion to substitute in as a party in place of Roosevelt Lofts.
I. The Proposed Change in Use of the Easement Property
The common easement over the alley was created by grant deeds recorded in the early 1900's, before the existing buildings were constructed. When the Roosevelt Building was built in 1925, it was designed with a loading dock on the side contiguous to the alley, which provided access to the loading dock from Wilshire Boulevard.
When 700 Wilshire was built in the 1960's, it was also designed with a loading dock on the side contiguous to the alley, which provided access to the loading dock from Wilshire Boulevard. Similarly, when 770 Wilshire was built in the 1970's, its loading dock—a subterranean elevator—was placed directly on the alley.
When the subterranean elevator is used to bring trash to the surface of the alley, the raised elevator partially blocks the alleyway. When not in use, the subterranean elevator's doors form part of the alleyway's surface.
For several decades, the three buildings used the alley to access the loading docks and trash dumpsters stored in the alley. The buildings also used the alley as an emergency exit to the street. As the alley had no parking garage entrances or exits, it was not used for private vehicular traffic.
The prospect of private vehicular traffic in the alley arose in 2007, when the Roosevelt, during a condominium conversion project, replaced its loading dock with a parking garage exit to the alley. When 700 Wilshire and District realized that Roosevelt intended to allow private vehicular traffic in the alley, they objected that the 30-foot wide alley already had trash dumpsters, loading docks, and a subterranean elevator, and served as an emergency exit from the buildings; thus, it would be dangerous to allow private vehicular traffic in the alley. In addition, 700 Wilshire also objected that Roosevelt had trespassed on its side of the alley when it regraded and repaved the alley and installed an electric gate and drainage system without 700 Wilshire's knowledge or permission.
II. The Pleadings
A. 700 Wilshire's Complaint
700 Wilshire sued Roosevelt (and District as an indispensible party) for declaratory and injunctive relief, alleging that Roosevelt's proposed use of the alley for private vehicular traffic was unsafe and would therefore overburden the easement. 700 Wilshire also alleged claims for trespass and nuisance based on Roosevelt's unauthorized work on the alley (including a new concrete surface, a drainage system, an underground conduit, and a permanent electronic gate at the entrance of the alley), for which it sought damages, punitive damages, injunctive relief, and restoration of the alley to its original condition.
B. District's Cross-Complaint
District alleged in its cross-complaint that it had granted Roosevelt an underground utility easement to run a conduit beneath the alley for the condominium conversion project. In return, Roosevelt had promised to provide District with a new subterranean trash elevator, an electric gate, new concrete paving and grading, and a drainage system in the alley. The agreement for the work to be performed in the alley was memorialized by a memorandum of understanding signed by Roosevelt's contractor.
District did not receive a new subterranean elevator, however, and its existing elevator was damaged during the work performed on the alley by Roosevelt's contractor. The new concrete paving had raised the level of the alley's pavement by several inches, which created a dangerous step up from the emergency exit doors to the alley, and a drop down to the subterranean elevator doors, which "now sit approximately six inches below grade."
When District realized that Roosevelt intended to allow private vehicular traffic in the alley, it objected along with 700 Wilshire that the proposed change would overburden the easement. District contended that Roosevelt had intentionally concealed the proposed change in order to obtain the conduit easement.
District filed a cross-complaint for declaratory and injunctive relief on the ground that allowing private vehicular traffic in the alley would create a dangerous condition: "Vehicular traffic on the 30-foot [wide alley] is barely possible, and would create a danger of collision and physical injury to persons in the alleyway. [When private automobiles are present in the alley, they] consume virtually all of the available space due to [the alley's] limited size, configuration and the presence of dumpsters." District sought to maintain the existing use of the alley: "[A]s objectively demonstrated by many decades of conduct of all parties having an interest in [the easement, the alley] has always been, and in the future should continue to be, an alleyway solely for limited foot traffic, the storage of trash in trash dumpsters, and the collection of trash, and an emergency exit access." District contended that by using the alley for several decades in a manner that was incompatible with private vehicular traffic, the building owners had waived the right to expand the use of the easement to include private vehicular traffic.
In addition, District sought "Damages And An Injunction For Intentional Misrepresentation." District alleged that Roosevelt intentionally concealed its intention to allow private vehicular traffic in the alley in order to obtain the conduit easement. District claimed that if it had known of Roosevelt's intention, it would have denied the conduit easement and halted the work on the alley.
C. Roosevelt's Cross-Complaint
The owners of Roosevelt filed a cross-complaint against 700 Wilshire for apportionment of the cost of the work done on the alley. The owners of Roosevelt claimed that the repairs were necessary to preserve the easement because the surface of the alley had deteriorated, its grading and drainage had caused flooding of abutting properties, and the alley was being used by the homeless.
III. The Jury's Findings
Through special verdict and special interrogatory questions, the jury was presented with the following issues.
District's fraud claim was not submitted to the jury as a result of the trial court's grant of a motion for nonsuit. District was also ordered to pay sanctions for violating a court order that was being appealed. District challenges both of these rulings, which are discussed later in this opinion.
A. Secondary Easements
Consistent with Roosevelt's defense to the trespass claim and cross-complaint for apportionment of repair costs, the jury received the following instruction on secondary easements: "Every easement includes what are termed 'secondary easements'; that is, the right to do such things as are necessary for the full enjoyment of the easement itself. An easement of [a] right of way includes the right to make such changes in the surface of the land as are necessary to make it available for travel in a convenient manner."
By special verdict, the jury was asked whether Roosevelt had entered "onto 700 Wilshire's land to make changes to the surface of the land that were necessary to make it available for travel in a convenient manner?" The jury responded, "No." Accordingly, the jury found that Roosevelt's entry and alteration of 700 Wilshire's property were not authorized by a secondary easement to repair and maintain the easement.
Roosevelt has not appealed the denial of its cross-complaint for apportionment of the cost of the work done on the alley.
B. Trespass and Nuisance
In light of the jury's finding that the repairs to the alley were not done pursuant to a secondary easement, the regrading and repaving of 700 Wilshire's property without permission would, if true, support a trespass claim (see Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 885), and the applicable measure of damages would be either the reduction in market value or the cost of restoring the property to its original condition (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 778).
In this case, the jury returned special verdict findings that Roosevelt intentionally entered 700 Wilshire's property without permission, and that the work was not performed pursuant to a secondary easement to repair or maintain the alley. Although those findings would ordinarily support a claim of trespass, the jury found that the entry did not result in any actual harm. In response to the special verdict question, "Was [Roosevelt's] entry a substantial factor in causing actual harm to 700 Wilshire Properties," the jury answered, "No." In reaching this conclusion, the jury apparently adopted Roosevelt's closing argument that because the repairs were beneficial, "[t]he alleyway was improved. It wasn't damaged." Based on the jury's finding that the unauthorized work on the alley did not result in any actual harm, the trial court entered judgment for Roosevelt on the trespass claim.
The jury returned a similar finding as to the nuisance claim. The jury was asked, "Did [Roosevelt,] by acting or failing to act when it paved the alley, create a condition that unreasonably interfered with 700 Wilshire Properties' use of or enjoyment of its property?" The jury responded, "No." Based on the jury's finding that the unauthorized work did not interfere with 700 Wilshire's enjoyment of the alley, the trial court entered judgment for Roosevelt on the nuisance claim.
C. Overburdening the Easement
By special interrogatory, the jury was asked to decide: "Does the Roosevelt parties' use of the alley for egress of the cars from the Roosevelt Building overburden the alley easement?" To assist the jury, the trial court gave the easement instructions that are set forth in the margin.
"I have read and interpreted the deeds concerning the easement. You are not to attempt to make your own interpretation of the deeds, and you must follow my interpretation.
"Under the terms of a deed recorded on September 26th, 1910, the Roosevelt parties, 700 Wilshire Properties, and the Community College District are owners in common of an easement for 'street or alleyway purposes' over a 30footwide strip of land, 342.4 feet in length, running from the northern edge of the Roosevelt Building to a point 115.2 feet south of the southerly edges of Sixth Street. The easement was divided in 1930 when the City of Los Angeles extended Wilshire Boulevard, 80 feet wide, between Flower and Hope Streets.
"The easement is a perpetual right of way. A right of way is the right to travel over the easement property. The easement over the right of way is unrestricted and all of the easement owners are entitled to use the alley for all reasonable purposes consistent with its purpose as a right of way.
"An easement is a nonpossessory interest in a land of another that gives the holder of the easement the right to use that land.
"The recordation of the map of tract 1546 on April 25th, 1912 also created an easement in favor of the Roosevelt Group, 700 Wilshire Properties, and the Community College District for ingress and egress over the alley and for any use proper to a right of way.
"Every easement includes the right to do such things that are necessary for the full enjoyment of the easement itself. But this right must be exercised in such a reasonable manner as to not injuriously increase the burden on the easement. Overburdening an easement is defined as a use which unreasonably increases the burden on the easement.
"The use of the alley easement may be enlarged if the increased use is within the ordinary development of the Roosevelt parties' property, and the use is for a reasonable purpose consistent with the use of the alley as a right of way.
"A 'dangerous condition' is a condition of public property that creates a substantial risk of injury to members of the general public who are using the property or adjacent property with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition.
"Every person has a right to expect that every other person will use reasonable care unless he or she knows, or should know, that the other person will not use reasonable care.
"A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence.
"Lights, mirrors, or devices which are required to be mounted upon a vehicle under this Code may extend beyond the permissible width of the vehicle to a distance not exceeding 10 inches on each side of the vehicle.
"Door handles, hinges, cable cinchers, chain binders, and holders for the display of placards warning of hazardous materials may extend three inches on each side of the vehicle."
In particular, the jury was instructed that Roosevelt, 700 Wilshire, and District have a common easement over the alley for "street or alleyway purposes," that the easement provides an unrestricted right to travel over the alley, and that "all of the easement owners are entitled to use the alley for all reasonable purposes consistent with its purpose as a right of way." The jury was further instructed that although every easement includes the right to do the things that are necessary for the full enjoyment of the easement, the right must be exercised as to not injuriously increase the burden on the easement. The term "overburdening an easement" was defined as "a use which unreasonably increases the burden on the easement."
As to the proposed change in use of the alley for private vehicular traffic, the jury was instructed that Roosevelt was entitled to enlarge the use of the alley, but only "if the increased use is within the ordinary development of the Roosevelt parties' property, and the use is for a reasonable purpose consistent with the use of the alley as a right of way."
The jury returned a finding that the proposed use of the alley would overburden the easement. In light of the instruction that an increased use is allowed if it is within the ordinary development of the Roosevelt parties' property, the jury's finding of overburdening was presumably based on an underlying finding that the proposed use is not within the ordinary development of the Roosevelt parties' property. (See People v. Murtishaw (1989) 48 Cal.3d 1001, 1044 [jurors are presumed to follow the trial court's instructions].)
IV. The Statement of Decision and Judgment
After the jury returned the special verdict findings, the trial court took the matter under submission to resolve the parties' equitable claims. On December 14, 2009, the trial court issued a "Ruling on Submitted Matter: [¶] Trial — Nonjury." In response to District's request for a statement of decision, the trial court ordered Roosevelt's counsel to prepare a proposed statement of decision. When no proposed statement was filed, the trial court entered the December 14 ruling as the statement of decision, over District's objection.
A. The Statement of Decision
According to the statement of decision, the trial court: (1) determined that it was not bound by the jury's special finding that the proposed change in use of the alley for private vehicular traffic would overburden the easement; (2) independently found that the evidence failed to show that vehicular traffic would overburden the easement; and (3) after allowing Roosevelt to amend its cross-complaint to allege a claim for injunctive relief, rejected the defense of unclean hands and awarded Roosevelt injunctive relief.
The statement of decision was entered over District's numerous objections, including the following: (1) the statement of decision did not resolve Roosevelt's cross-complaint against 700 Wilshire for apportionment of costs; (2) because District was never a party to Roosevelt's cross-complaint for apportionment against 700 Wilshire, Roosevelt should not have been allowed to amend the cross-complaint at the close of trial to allege a claim for injunctive relief against District; (3) Roosevelt does not have a secondary easement to use the alleyway for continual automobile traffic; (4) "[t]o ascertain the scope of an easement, the courts look to 'use after conveyance'" (citing Marlin v. Robinson (1932) 123 Cal.App. 373, 376-377), and the evidence showed that allowing private vehicular traffic in the alley will interfere with 700 Wilshire's and District's existing use of the alley and will overburden the easement; (5) the trial court is bound by the jury's special finding that the proposed use of the alley will overburden the easement (citing Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 161 ["In a mixed trial of legal and equitable issues where legal issues are first tried to a jury, the court must follow the jury's factual determinations on common issues of fact."]; and (6) Roosevelt is not entitled to injunctive relief because it failed to meet its burden of proof to establish that its proposed use of the alley is within the scope of the easement and will not interfere with 700 Wilshire's and District's existing uses of the alley.
B. The Judgment
Pursuant to the findings set forth in its statement of decision, the trial court entered a judgment that granted Roosevelt injunctive relief against 700 Wilshire and District. The judgment stated that because Roosevelt's proposed use of the alley for private vehicular traffic was within the scope of the easement and would not overburden the easement, 700 Wilshire and District were permanently enjoined and restrained from directly or indirectly interfering with the free passage of vehicles or pedestrians in the alley "by erecting, placing or maintaining steel bollards or other obstructions in the ALLEYWAY, by damaging or destroying the surface of the ALLEYWAY, or otherwise."
DISCUSSION
700 Wilshire and District contend that the judgment must be reversed on several grounds, including that the trial court erred in disregarding the jury's finding that the proposed change in use would overburden the easement. In light of our determination that the trial court erred in this regard, we conclude the judgment must be reversed.
Although 700 Wilshire and District argue there is a difference between a "street" and an "alley," they concede that "given the passage of time and the changed environment that did not exist over one hundred years ago when the original grants were created, it is impossible to determine what the original intent was with regards to the use [of those terms]." Thus, they agree we must ascertain the scope of the easement by focusing on its use after conveyance.
They also contend the manner in which Roosevelt intends to use the easement is inconsistent with the deed's grant of use "for alley purposes." We agree; however, the matter was tried under the theory that the deed granted Roosevelt an unrestricted right of way and the jury was so instructed. Although the trial court's interpretation of the grant deed was incorrect, the fact of the matter is that despite the error, the jury concluded Roosevelt's use overburdened the easement. Thus, we address the issues with that finding in mind.
District also contends that the trial court erred in granting nonsuit on the fraud claim and imposing sanctions for its failure to comply with an order that was stayed by the filing of a notice of appeal. We agree with both contentions.
I. The Trial Court Erred in Disregarding the Jury's Finding That the Proposed Change in Use Would Overburden the Easement
The evidence at trial established that for several decades, the three easement owners cooperatively used their common easement over the alley to access their loading docks, subterranean elevator, and dumpsters, and as an emergency exit to the street. None of the buildings used the alley for private vehicular traffic.
A. General Rules Governing the Change in Use of an Easement
One of the governing principles in resolving a dispute over a proposed increase in use of an easement is that the owners of a common easement must accommodate each other and must not overburden the servient estate. In this case, the alley is the servient estate, the Roosevelt Building is the dominant estate, and the common owners of the easement are 700 Wilshire (which owns half the alley), District (which owns the other half of the alley), and Roosevelt.
"When the easement is 'nonexclusive' the common users 'have to accommodate each other.' (Applegate v. Ota (1983) 146 Cal.App.3d 702, 712.)" (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703 (Scruby).) "The owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement. (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 356, fn. 17.) Every incident of ownership not inconsistent with the easement and the enjoyment of the same is reserved to the owner of the servient estate. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 35; City of Los Angeles v. Ingersoll-Rand Co. (1976) 57 Cal.App.3d 889, 893-894.)" (Scruby, supra, 37 Cal.App.4th at p. 702.)
"'A principle which underlies the use of all easements is that the owner of an easement cannot materially increase the burden of it upon the servient estate or impose thereon a new and additional burden.' (17A Am.Jur. § 115, p. 723.)" (Wall v. Rudolph (1961) 198 Cal.App.2d 684, 686 (Wall).) This rule applies to all easements regardless of how they were created. (Id. at p. 696 [rule against overburdening of easements applies whether the easement is created by grant, reservation, prescription, or implication]; see 6 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 15:54.)
"California courts have set their faces firmly against such increases in the burden upon the servient tenement. . . . '[I]t is well settled that "both parties have the right to insist that so long as the easement is enjoyed it shall remain substantially the same as it was at the time the right accrued."'" (Wall, supra, 198 Cal.App.2d at p. 694.)
Another governing principle in resolving a dispute over a proposed increase in use of a common easement is that the manner in which the easement owners previously used the servient tenement can fix and limit their future use. "The rule is well settled that where a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed." (Winslow v. City of Vallejo (1906) 148 Cal. 723, 725.)
"[I]f an easement is acquired by grant in a given location in the servient tenement, it becomes fixed by use and its location may not be substantially changed. (Kern Island Irrigating Co. v. City of Bakersfield, 151 Cal. 403; Felsenthal v. Warring, ; Evangelical etc. Home v. Buffalo Hydraulic Assoc., 64 N.Y. 561; see Ward v. City of Monrovia, 16 Cal.2d 815.) Thus, in Vestal v. Young, , and in Felsenthal v. Warring, supra, it was held that a person having the right to maintain a ditch in the land of another cannot substantially change the route of the ditch. (See, also, Kern Island Irrigating Co. v. Bakersfield, supra.) In the Evangelical Home case, supra, it was held that a person having the right to maintain a dam cannot change its location, and in White Bros. & Crum Company v. Watson, , it was held that a person with a right to divert water through a ditch in the land of another has no right to replace the ditch with a dam and a flume elsewhere on the land, even though changes in the natural conditions make effective diversion impossible except by such means." (Hannah v. Pogue (1944) 23 Cal.2d 849, 854-855.) "There is no right . . . to change the location of an easement over the land of another, even if it would cause no harm to the owner or would actually benefit him. (Vestal v. Young, supra, at 719; see Allen v. San Jose Land & W. Co., [92 Cal. 138,] 141.)" (Hannah v. Pogue, supra, at p. 855.)
B. The Use of an Unrestricted Right of Way May be Enlarged to Accommodate the "Ordinary Development" of the Dominant Tenement, But May Not Overburden the Easement
In this case, the trial court instructed the jury that the parties are "owners in common of an easement for 'street or alleyway purposes'" and have an "unrestricted" right of way "to travel over the easement property." The jury was told that Roosevelt has the right to enlarge the use of the alley, provided the use is "within the ordinary development of the Roosevelt parties' property, and the use is for a reasonable purpose consistent with the use of the alley as a right of way."
The jury was also instructed that "Every easement includes the right to do such things that are necessary for the full enjoyment of the easement itself. But this right must be exercised in such a reasonable manner as to not injuriously increase the burden on the easement. Overburdening an easement is defined as a use which unreasonably increases the burden on the easement."
Where, as here, there is a broad grant of a general right of way, the reasonableness of the proposed increase in use is a question of fact. A key factor in resolving that question is whether the proposed increase is consistent with both the normal future development of the dominant tenement and the purposes for which the easement was granted. According to Wall, supra, 198 Cal.App.2d 684, "Whether the use[] just described is excessive [or] unduly burdensome, depends primarily upon the terms of each grant construed in the light of circumstances surrounding its execution" (Civ. Code §§ 1066, 1647) where, as here, there is room for doubt as to the proper interpretation. (Barham v. Barham, 33 Cal.2d 416, 422; Berg Metals Corp. v. Wilson, 170 Cal.App.2d 559, 568.) The grants here under consideration were made for road purposes in broad terms. It has been held that such phrasing creates '"a general right of way capable of use in connection with the dominant tenement for all reasonable purposes."' (Laux v. Freed, 53 Cal.2d 512, 525.) City of Pasadena v. California-Michigan etc. Co., 17 Cal.2d 576, 582, holds such a right to be one of use 'limited only by the requirement that it be reasonably necessary and consistent with the purposes for which the easement was granted.' (To the same effect see 17 Cal.Jur.2d § 10, p. 102; 28 C.J.S. § 73, p. 751, and § 87, p. 766.) This reasonable contemplation presumptively includes normal future development within the scope of the basic purpose (see C. F. Lott Land Co. v. Hegan, 177 Cal. 169, 173; Fristoe v. Drapeau, 35 Cal.2d 5, 9; 17A Am.Jur. § 115, p. 723), but not an abnormal development, one which actually increases the burden upon the servient tenement (Rest., Law of Property, § 484, illus. 3, p. 3021)." (Wall, supra, 198 Cal.App.2d at p. 692.)
In light of the instructions that were given in this case, it is proper to assume that before determining whether the proposed use would overburden the easement, the jury considered whether the proposed use was within the normal future development of Roosevelt's property. (People v. Murtishaw, supra, 48 Cal.3d at p. 1044 [jurors are presumed to follow the trial court's instructions].) We therefore infer from the jury's finding that the proposed use would overburden the easement, that it found, as a preliminary matter, that the proposed use was not within the ordinary future development of Roosevelt's property. The evidence supports this finding. The existing use of the alley for loading dock purposes was established when the Roosevelt was built in 1925 with a loading dock at the rear of the alley. The other buildings, which were built in the 1960's and 1970's, conformed to that use and were also built with loading docks on or along the alley. As a result, the alley, which is only 30 feet wide, was used to access the loading docks and subterranean elevator that brings trash to the surface of the alley.
For many decades, Roosevelt acquiesced to the presence of dumpsters, a subterranean elevator, and garbage trucks that partially blocked the alley. When Roosevelt began its condominium conversion project in 2007, it continued to acquiesce to their presence by promising to install a new subterranean elevator. Under these circumstances, it would be patently unfair for Roosevelt to enlarge its use of the alley in a manner that would interfere with the existing use.
District contends that its longstanding use of the alley has resulted in a fixed right that Roosevelt may not interfere with by introducing private vehicular traffic to the alley. The law supports this contention. "The rule is well settled that where a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed." (Winslow v. City of Vallejo, supra, 148 Cal. at p. 725.) "[I]f an easement is acquired by grant in a given location in the servient tenement, it becomes fixed by use and its location may not be substantially changed. [Citations.]" (Hannah v. Pogue, supra, 23 Cal.2d at p. 854; Scruby, supra, 37 Cal.App.4th at p. 702.)
Roosevelt contends that where, as here, a broad and unrestricted right of way is created by grant deed, the easement owner may use the entire right of way, and if a conflict arises between some future use and an existing use, the existing use must give way. We are not persuaded. Under California law, the evidence could reasonably support a finding that Roosevelt acquiesced to the servient tenement owners' existing use of the alley for several decades, thereby fixing the rights of the parties and limiting the manner in which the common easement may be enjoyed. (See Winslow v. City of Vallejo, supra, 148 Cal. at p. 725.) Under these unique facts, if a conflict is found to exist between Roosevelt's proposed use and the historical and current use, the proposed use must give way to the historical and current use. (Cf. Hannah v. Pogue, supra, 23 Cal.2d at p. 854 [an easement acquired by grant in a given location in a servient tenement becomes fixed by use and its location may not be substantially changed]; Scruby, supra, 37 Cal.App.4th at p. 702 [owner of dominant tenement must use the easement and exercise its rights in a manner that imposes as slight a burden as possible on the servient tenement and the owner of the servient tenement retains all rights of ownership not inconsistent with the easement].)
C. The Trial Court Erred in Disregarding the Jury's Special Finding That the Proposed Use Would Overburden the Easement
700 Wilshire and District contend that the trial court erroneously disregarded the jury's special finding that the proposed use would overburden the easement. We agree.
Where, as here, a jury trial of legal issues is held prior to the bench trial of equitable issues, the jury's determination of the legal issues may control. (Hoopes v. Dolan, supra, 168 Cal.App.4th at p. 157 ["There are few California cases where legal issues were tried before equitable ones (as was done here), but it is equally clear that a jury's determination of legal issues may curtail or foreclose equitable issues.].) "[T]here are solid policy reasons for giving one fact finder's determinations binding effect in a mixed trial of legal and equitable issues. The rule minimizes inconsistencies, and avoids giving one side two bites of the apple. [Citation.] The rule also prevents duplication of effort. (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. [(1996)] 47 Cal.App.4th [464,] 487.)" (Hoopes v. Dolan, supra, at p. 158.)
The trial court rejected the jury's finding that the proposed use would overburden the easement on the ground that it was an advisory verdict. Under California law, however, whether the proposed use of the mutual easement would unreasonably interfere with the easement is a question of fact for the jury. (Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d at pp. 579-580 ["Whether a particular use of the land by the servient owner, or by someone acting with his authorization, is an unreasonable interference is a question of fact for the jury."]; Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1599 ["'Whether a particular use by the servient owner of land subject to an easement is an unreasonable interference with the rights of the dominant owner is a question of fact for the trier of fact,' whose findings are binding upon the appellate court if properly supported by the evidence."]; City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 543-544 [same].)
In this case, the legal and equitable claims shared common issues of fact. As previously discussed, under California law, if the normal development of Roosevelt's property would reasonably include the right to use the alley as a parking garage exit, then Roosevelt would have a secondary easement to enter the alley to perform the work necessary to accommodate that increased use. The jury found, however, that the work performed on the alley was not governed by a secondary easement, that the proposed use of the alley was not within the normal development of Roosevelt's property, and that the proposed use would overburden the easement.
The trial court disregarded the previously described findings and entered a judgment that directly contradicts those findings. We conclude that this was reversible error. "Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accordingly." (Code Civ. Proc., § 625.)
Roosevelt argues that the trial court did not err because the judgment is consistent with the jury's special findings that it did not commit a trespass or nuisance. It contends that because "the jury unanimously found that Roosevelt had committed neither a trespass nor a nuisance," its opponents' claims for declaratory and injunctive relief must fail because they "are expressly founded upon the grounds of nuisance and trespass."
Roosevelt does not mention, however, the jury's rejection of its secondary easement defense. By special verdict, the jury found that Roosevelt entered 700 Wilshire's side of the alley, without permission, to perform work that was not authorized by a secondary easement, but that the work did not result in any actual harm. In our view, the only proper interpretation of these special findings is that the jury found there was a trespass but no damages.
By finding a trespass but no damages, the jury returned inconsistent findings that failed to absolve Roosevelt of the trespass. (Costerisan v. Melendy (1967) 255 Cal.App.2d 57 [by finding a trespass but no damages, the jury returned inconsistent findings and the trial court properly vacated a defense verdict on the trespass claim].) Under California law, where a trespass occurs as a result of unauthorized physical alterations to the easement property, restoration costs are the appropriate measure of damages even in the absence of a decrease in property value. (See Dandoy v. Oswald Bros. Paving Co. (1931) 113 Cal.App. 570, 572-573 [even though value of land increased by dumping of earth and soil, restoration costs were the appropriate measure of damages in order to avoid leaving the injured party without a remedy].)
In summary, we conclude that the judgment awarding Roosevelt injunctive relief must be reversed as contrary to the jury's special findings that the work performed on the alley was not governed by a secondary easement, that Roosevelt committed a trespass by working on 700 Wilshire's side of the alley, that the proposed use of the alley was not within the normal development of Roosevelt's property, and that the proposed use would overburden the easement. In light of the jury's special findings and the applicable law pertaining to the shared use of a common easement, we conclude that 700 Wilshire and District are entitled to a judgment in their favor on their claims for declaratory and injunctive relief that is consistent with the jury's finding that the proposed use would overburden the easement.
II. The Trial Court Erred in Granting Nonsuit on District's Fraud Claim
In its cross-complaint, District alleged a claim against Roosevelt for "Damages And An Injunction For Intentional Misrepresentation." District alleged that during its negotiations with Roosevelt for the conduit easement, it was misled to approve the work on the alley by the intentional concealment of the plan to allow private vehicular traffic in the alley. District claimed that had it known of Roosevelt's intention, it would have denied the conduit easement and halted the work on the alley, which would have prevented the damage that followed.
"'The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778; see also Civ. Code, § 1709; Hunter [v. Up-Right, Inc. (1993)] 6 Cal.4th 1174, 1184; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1108.)
"'Promissory fraud' is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Union Flower Market, Ltd. v. Southern California Flower Market, Inc. (1938) 10 Cal.2d 671, 676; see Civ. Code, § 1710, subd. (4); 5 Witkin, Summary of Cal. Law, supra, § 685, pp. 786787.)
"An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract. (Chelini v. Nieri (1948) 32 Cal.2d 480, 487 ['tort of deceit' adequately pled where plaintiff alleges 'defendant intended to and did induce plaintiff to employ him by making promises . . . he did not intend to (since he knew he could not) perform' (fn. omitted)]; Kuchta v. Allied Builders Corp. (1971) 21 Cal.App.3d 541, 549, citing Horn v. Guaranty Chevrolet Motors (1969) 270 Cal.App.2d 477, 484; Squires Dept. Store, Inc. v. Dudum (1953) 115 Cal.App.2d 320, 323.) In such cases, the plaintiff's claim does not depend upon whether the defendant's promise is ultimately enforceable as a contract. 'If it is enforceable, the [plaintiff] . . . has a cause of action in tort as an alternative at least, and perhaps in some instances in addition to his cause of action on the contract.' (Rest.2d Torts, § 530, subd. (1), com. c., p. 65, cited with approval in Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29.) Recovery, however, may be limited by the rule against double recovery of tort and contract compensatory damages. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1159.)" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
A. Motion for Nonsuit
After District presented its evidence at trial, Roosevelt orally moved for nonsuit based on a lack of evidence of damages for fraud. In opposition, District argued that it was entitled to compensatory damages arising from the work on the alley that it had been misled to allow. District contended that its compensatory damages included the replacement cost of the damaged subterranean elevator, the repair cost of the damaged emergency exits, the cost of installing and removing the bollards around the damaged elevator doors, and the attorney fees incurred in this litigation (citing Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618).
According to District's opening brief, "[b]ollards are steel rods that jut up to a sufficient height to be seen and to deter traffic and warn passers-by to avoid the area."
District argued that it was entitled to attorney fees, "which under the Prentice rule and 1021.6 can also be damages because we are suing two parties, Urban Builders and . . . the Roosevelt Group. And the tort of another creating the obligation to either file an action or defend against one can make attorney's fees and costs damages, and Mr. Jeter was about to testify as to those." (Italics added.)
The trial court granted the motion for nonsuit, stating: "I made it clear at the beginning of the trial that the jury was not going to be getting a fraud cause of action that didn't include a showing of damages, and I think that the tortuous efforts you are going to trying to concoct a showing of damages for fraud really underscore the dubiousness of the claim from the beginning. It's never been a fraud case. It's not a fraud case. It's an injunctive relief case, so fraud will not be going to the jury."
On appeal, District contends that the nonsuit should have been denied because there was sufficient evidence of compensatory damages. District argues that it produced evidence of the cost of installing and removing the bollards from around the elevator doors, and that it was erroneously precluded from presenting evidence of the cost of replacing the elevator.
B. Code of Civil Procedure Section 581d
Before addressing the merits, we note there is an unbriefed jurisdictional issue. Because a nonsuit is a form of dismissal ordered by the court, it falls under the rule set forth in Code of Civil Procedure section 581d that "[a]ll dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action."
The record on appeal does not include a separate written order of nonsuit, and the judgment does not mention either the nonsuit or dismissal of the fraud claim. Since the parties have addressed the merits based on the assumption that the propriety of the order of nonsuit is properly before us, we will amend the judgment to include a paragraph granting the nonsuit motion and dismissing the fraud cause of action. (Palazzi v. Air Cargo Terminals, Inc. (1966) 244 Cal.App.2d 190, 192-193 [appellate court, in the interest of justice, amended the judgment to include a dismissal of the wanton misconduct cause of action].)
C. Standard of Review
"In reviewing a judgment entered upon a grant of a motion for nonsuit after the close of the plaintiff's case-in-chief (Code Civ. Proc., § 581c), [fn. omitted] the appellate court reviews the entire record of the trial court (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581) and views the evidence in the light most favorable to appellant. (Freeman v. Lind (1986) 181 Cal.App.3d 791, 799.) We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence. (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.) '"'The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.'"' [Fn. omitted.] (Freeman v. Lind, supra, 181 Cal.App.3d at p. 799.)" (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327.)
"Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) A trial court may not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.)" (DiPalma v. Seldman (1994) 27 Cal.App.4th 1499, 1505-1506.) "Although 'a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion or conjecture, reversal is warranted if there is "some substance to plaintiff's evidence upon which reasonable minds could differ. . . ." [Citations.] Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. [Citations.]' (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)" (DiPalma v. Seldman, supra, at p. 1506.)
D. District Presented Sufficient Evidence of Compensatory Damages
District contends that it presented sufficient evidence of compensatory damages to withstand the motion for nonsuit. We agree.
We may not uphold the grant of the motion for nonsuit unless, after viewing the evidence in the light most favorable to District and resolving all presumptions, inferences, and doubts in its favor, a judgment for Roosevelt is required as a matter of law. (Alpert v. Villa Romano Homeowners Assn., supra, 81 Cal.App.4th at p. 1327.)
Because nonsuit of the fraud claim was granted solely on the ground of insufficient evidence of damages, we must limit our review accordingly. "A trial court may grant nonsuit only on the ground(s) raised" in the motion. (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1200.) It is a "fundamental rule" that a motion for nonsuit "should state the precise grounds on which it is made, with the defects in the plaintiff's case clearly and particularly indicated. This gives the plaintiff an opportunity to cure the defect by introducing additional evidence." (John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 161.) A corollary to this rule is that "'only the grounds specified should be considered by the lower court in its ruling, or by the appellate court on review. If these are insufficient, a nonsuit is improper, even though other good grounds exist, for the plaintiff's attention was not called to them and he had no opportunity to eliminate them.'" (Ibid., citing 4 Witkin, Cal. Procedure (2d ed. 1971) § 361, p. 3159.)
We conclude that the evidence, viewed according to the appropriate standard, is sufficient to support a finding that as a result of being fraudulently induced to authorize the work on the alley, District incurred damages, including the cost of installing and removing the bollards that it placed around the damaged elevator doors to prevent further damage to the doors or vehicles driving over the doors.
Although District did not present evidence of the cost of replacing the trash elevator at trial, we do not suggest that such cost is not a proper source of damages. We state only that the evidence District did present was sufficient to avoid nonsuit.
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Roosevelt's contention that compensatory damages are unavailable in the absence of a negligence claim is not persuasive. Under California law, compensatory damages are recoverable for intentional fraud (see Tri-Delta Engineering, Inc. v. Insurance Co. of North America (1978) 80 Cal.App.3d 752, 759) and promissory fraud (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 989-990, citing Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78 ["when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort"]). We need not address Roosevelt's contention that District failed to allege a claim for promissory fraud, because that was not the basis of the motion for nonsuit. Had Roosevelt moved for nonsuit on the ground that promissory fraud was not alleged in the cross-complaint, District would have had the opportunity to respond and, if necessary, seek leave to amend.
In light of our determination that the trial court erred in granting the motion for nonsuit, we conclude that the matter must be remanded for a new trial on the fraud claim.
III. The Sanctions Award
Several months before trial began in March 2009, District installed bollards around the subterranean elevator doors. According to District's opening brief, it installed the bollards "because the elevator doors were damaged and a car driving over it could have fallen through the doors [into the] basement of the District's building."
A. Relevant Facts
On February 4, 2009, Roosevelt obtained a temporary restraining order that required the immediate removal of the bollards. The trial court scheduled a preliminary injunction hearing for March 11, 2009.
When District did not immediately comply with the February 4 temporary restraining order to remove the bollards, Roosevelt requested that District be held in contempt. The trial court set a contempt hearing for February 11, 2009.
On February 9, 2009, District filed a notice of appeal from the February 4, 2009 temporary restraining order. While that appeal was pending, the trial court found District guilty of contempt and imposed sanctions of $1,000 per day on February 11, 2009. On February 12, 2009, District removed the bollards and tendered, under protest, a $1,000 check to the clerk of the superior court. On February 19, 2009, the trial court granted the preliminary injunction, which was entered the next day.
B. Discussion
District contends that the February 11 sanctions order must be reversed for lack of jurisdiction because it was entered while the matter was stayed by the February 9 notice of appeal. (Code Civ. Proc., §§ 904.1, subd. (a)(6), 916, subd. (a).) We conclude that District is correct.
The February 4 order constituted a mandatory injunction because it compelled the performance of an affirmative act (the removal of the bollards) that changed the position of the parties. (See Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446-447.) A mandatory injunction is automatically stayed pending appeal under Code of Civil Procedure section 916. (See Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 716-717.) We conclude that because the February 4 order constituted a mandatory injunction that was automatically stayed by the February 9 notice of appeal, the superior court lacked jurisdiction to impose sanctions for contempt. (See Johnston v. Superior Court (1957) 148 Cal.App.2d 966, 970.) Accordingly, District is entitled to a refund of the $1,000 sanctions payment.
DISPOSITION
The judgment for Roosevelt is reversed. The February 11, 2009 order imposing sanctions is reversed and District is entitled to a refund of the $1,000 sanctions payment. The nonsuit and dismissal of District's cross-complaint for damages for fraud is reversed and the matter is remanded for a new trial of that claim. Upon completion of that trial, the trial court is directed to enter a new judgment that, consistent with the views set forth in this opinion, grants appropriate declaratory and injunctive relief to 700 Wilshire and District. District and 700 Wilshire are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.