Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-29482
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
THE COURT
Marchiano, P.J.
It is ordered that the opinion filed herein on September 11, 2008, be modified as follows:
1. On page 8, after the sentence in the first full paragraph that reads: “While the facts here are essentially undisputed, reasonable minds could disagree as to whether they created an estoppel that prevented the Brakesmans from objecting to the carport, despite their initial acquiescence in its construction,” add as footnote 2 the following text:
If the trial court’s ruling addressed a waiver theory in addition to or in lieu of an estoppel theory (30 Cal.Jur.3d (2005) Estoppel and Waiver, § 2, p. 809 [“waiver” and “estoppel” are sometimes used interchangeably]), we would affirm it for the same reason (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319 [trier of fact’s finding on either waiver or estoppel is generally binding on appellate court].)
2. On page 8, at the end of the second full paragraph, add as footnote 3 the following text:
The Bocks are not entitled to an equitable easement as to the encroaching portion of the carport. (6 Miller & Starr, Cal. Real Estate, supra, § 15:46, p. 15-161 [long period of innocent use is required].)
There is no change in the judgment.
The petition for rehearing is denied.