Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Lisa Hart Cole, Judge., L.A.S.C. No. SC069583
Law Office of Dennis P. Wilson, Dennis P. Wilson; Benedon & Serlin, Gerald M. Serlin, Douglas G. Benedon; Law Office of Morton C. Devor and Morton C. Devor for Petitioner.
No appearance for Respondent.
Law Offices of Robert Bruce Parsons and Robert B. Parsons for Real Parties in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
LISA HART COLE, Judge
We hold that mandatory injunctions imposed against defendants/appellants Timothy Parker and Kerry Parker (hereinafter “the Parkers”) in a modified judgment entered in accordance with our previous determination in appeal No. B202363, in favor of Kristin Blake, are not stayed, pending the Parkers’ appeal, No. B225915. Accordingly, we order respondent court to issue a new and different order, permitting the removal of the obstacles to Blake’s use of the easements, and permitting her to repair and maintain the roadway, as set forth below.
After informal opposition and a reply were filed, the following request was sent to the parties, as follows: “Via informal letter brief served and filed by 10:00 a.m., on January 31, 2011, Petitioner is requested to set forth, exactly, which obstructions are required to be removed pursuant to the mandatory injunctions within the scope of this Court’s opinion in appeal No. B202363, but not included within the purview of pending appeal No. B225915, such as the well house, white picket fence, trash dumpster, and electronic gates.”
BACKGROUND
Blake and the Parkers own adjoining lots in the Malibu Mountains. Blake claimed easements (the “Wallner, ” “Eason” and “flare” easements) over the Parkers’ real property for egress and ingress. The Parkers constructed various obstructions, including a well house, white picket fence, trash dumpster, and gates, that interfered with Blake’s use of the easements over the Parkers’ property. Blake and the Parkers sued each other. The trial court entered judgment in favor of Blake, but did not require the Parkers to move any of the obstacles obstructing Blake’s access to the easements.
Blake appealed. Via opinion filed on July 28, 2009 (B202363), we upheld Blake’s claims, stating, in part: “[W]e conclude the trial court’s description of the width of the Wallner easement is incorrect. We also conclude the trial court erred in permitting the Parkers to maintain certain obstructions on the easements and in permitting the Parkers to install electronic gates with specific conditions. We conclude, however, that Blake has waived the right to object to the trial court’s denial of general damages. Accordingly, we affirm in part, reverse in part and remand with directions.”
We determined that the Parkers had to remove all obstructions that intrude on Blake’s easements of egress and ingress over the Parkers’ real property. We ordered the lower court to enter a new judgment modified to be consistent with the decision.
CURRENT PETITION
Respondent court complied with our instructions in No. B202363. The permanent injunction, signed by respondent court on May 24, 2010, requires the Parkers to remove various obstacles “located on, over and under” the easements. If the Parkers did not do so within a set period of time, Blake was authorized to engage in the removals and charge the Parkers for the expense incurred.
After respondent court entered the modified judgment, the Parkers filed a notice of appeal on July 23, 2010, purporting to appeal the “Judgment after remittitur and objection thereto; improper and untimely objection to trial judge.”
We do not address that portion of the notice of appeal that states: “objection thereto; improper and untimely objection to trial judge.”
Blake moved respondent court for an order declaring that the mandatory injunctions requiring the Parkers to remove the obstructions are not stayed pending the appeal. Respondent court ruled to the contrary, explaining, in part, that mandatory injunctions are automatically stayed pending appeal.
Because we have already determined that the easements are valid (see Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1082; Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 252–253), we direct respondent court to enter a new and different order, granting Blake’s request for an order that the mandatory injunctions set forth in the original judgment and upheld on appeal No. B202363, are not stayed, pending resolution of the pending appeal, No. B225915, thus: (1) requiring the Parkers to remove all obstructions on the Wellner, Eaton and flare easements, including, but not limited to the well and well house; white picket fence; trash bins and dumpster; gates; storage and shipping containers; garden sheds and structures; benches; plants, trees, brush, and other vegetation; rocks and boulders; and automobiles and trucks; and (2) permitting Blake to restore, improve, and maintain the roadway, including paving of the roadway easements, after obtaining the required permits and insurance.
ACCORDINGLY,
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237–1238.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of October 8, 2010, denying the motion for an order that the mandatory injunctions are not stayed pending resolution of appeal No. B225915, and to enter a new and different order, consistent with this decision.
Petitioner Kristin Blake is entitled to the costs of this proceeding.
ROTHSCHILD, Acting P.J. CHANEY, J. JOHNSON, J.