Opinion
No. E066461.
10-31-2018
ALEX CHEVELDAVE, Plaintiff and Appellant, v. TRI PALMS UNIFIED OWNERS ASSOCIATION, Defendant and Respondent.
[Modification of opinion (27 Cal.App.5th 1202; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — The petition for rehearing filed by respondent on October 18, 2018, is denied. The opinion filed in this matter on October 3, 2018, is modified as follows:
On page 17 of the opinion, the paragraph that begins "A mutual easement has the same meaning as a reciprocal easement" [27 Cal.App.5th 1215, 3d full par., line 10], is modified, inserting footnote No. 4, as follows:
"A mutual easement has the same meaning as a reciprocal easement: "[A] general plan of real estate development can give rise to mutual equitable servitudes only when both the grantor and grantee intend that the land conveyed is to be restricted pursuant to a general plan, that intent appears in the deed, the parties' agreement shows that the parcel conveyed is subject to restrictions in accordance with the plan for the benefit of all the other parcels in the subdivision and such other parcels are subject to like restriction for its benefit...." (Terry v. James (1977) 72 Cal.App.3d 438, 442 .) Thus, mutual easements are defined by a "mutuality of obligation." (Welsch v. Goswick (1982) 130 Cal.App.3d 398, 405 .)"
The Association's August 17, 2018, request for judicial notice is denied as to the portion of the request concerning legislative history. ( Temple Community Hospital v. Superior Court (1999) , 467, fn. 1 [ , ].) The August 17, 2018, request for judicial notice is granted as to the portion of the request concerning the Association's deed. ( Herrera v. Deutsche Bank National Trust Co. (2011) , 1375 [ ]).
The beginning paragraph on page 19, which starts "The Association contends it owns an office ..." [27 Cal.App.5th 1216, 2d full par.], is deleted and replaced with the following:
"The Association contends it owns an office, and the office constitutes a common area. The Association fails to explain how the Association's ownership of an office constitutes a common area for homeowners. Due to the
[28 Cal.App.5th 770b]
Association's failure to provide relevant analysis, we find its contention about office ownership to be unpersuasive. (Central Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 694-695 .)"
We have taken judicial notice of a deed reflecting the Association was granted property within Riverside County. By granting the Association's request for judicial notice, we have noticed the deed exists, but we have not noticed the truth of its contents. ( Herrera v. Deutsche Bank National Trust Co., supra, , 1375).)
Footnote No. 4 on page 25 of the opinion [27 Cal.App.5th 1220, 2d full par., line 5, fn. 4] is renumbered footnote No. 6.
Footnote No. 5 on page 26 of the opinion [27 Cal.App.5th 1221, 1st par., line 1, fn. 5] is renumbered footnote No. 7.
Except for these modifications, the opinion remains unchanged. The modifications do not effect a change in the judgment.