Opinion
B303811
01-27-2022
ELUSIVE 8307, LLC, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant; MEREK CANTERMAN, Appellant.
Law Offices of Robert J. Christensen and Robert J. Christensen for Appellant Merek Canterman. Ervin Cohen & Jessup, Allan B. Cooper and Ellia M. Thompson for Plaintiff and Respondent Elusive 8307, LLC.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BS173986 Mary Strobel, Judge. Affirmed.
Law Offices of Robert J. Christensen and Robert J. Christensen for Appellant Merek Canterman.
Ervin Cohen & Jessup, Allan B. Cooper and Ellia M. Thompson for Plaintiff and Respondent Elusive 8307, LLC.
ROTHSCHILD, P. J.
Elusive 8307, LLC (Elusive), petitioned the superior court for a writ of mandate directing the City of Los Angeles (the City) to process and approve a private street application. The court granted the petition in part based upon its interpretation of a city ordinance and directed the City to process Elusive's application. The court, however, expressly declined to rule on the merits of the application. The court entered judgment and issued a writ of mandate accordingly.
Merek Canterman, not a party to the proceeding, but a person over whose land the private street would exist, filed a motion to vacate the judgment. The court denied the motion on the grounds that Canterman lacked standing to make the motion and, if he did have standing, he failed to show that the judgment was incorrect. Canterman appealed. As we explain below, under the circumstances of this case, it is appropriate to consider the merits of Canterman's claim. But even considering the merits, Canterman has not shown that the court erred in its interpretation of the city ordinance at issue. Accordingly, we affirm the court's order.
FACTUAL AND PROCEDURAL SUMMARY
A. Elusive's Writ of Mandate Proceeding
Elusive is the owner of certain real property on Elusive Drive in Los Angeles. The property is improved with a residence built in 1949.
Canterman, as trustee of a trust, owns property located on Rugby Place, adjacent to Elusive's property.
Access to Elusive's property requires use of a road that crosses Canterman's property. According to Elusive, that access road has existed since before September 6, 1961. It was not until 2004, however, that an instrument was recorded purporting to grant "an easement for ingress and egress" across Canterman's property to Elusive's property.
In 2018, Elusive sought to remodel and add to the existing residence on its property. In connection with that project, it applied to the City to have the access road across Canterman's property deemed approved as a private street under section 18.00, subdivision C of the Los Angeles Municipal Code.
Subsequent unspecified statutory references are to the Los Angeles Municipal Code.
Generally, the City will approve a private street only if certain grading, engineering, and other requirements are met. (§ 18.00 et seq.) Under section 18.00, subdivision C, however, a property owner is entitled to have a private street "deemed to have been approved" if the owner's "developed residential lot or building site has its access driveway located within a private road easement and the dwelling and access driveway existed prior to September 6, 1961." (§ 18.00, subd. C.)
On March 20, 2018, the City issued a "notice of dismissal," stating that it had dismissed Elusive's application. (Capitalization omitted.) The City based its decision on the ground that, under section 18.00, subdivision C, an applicant for a "deemed-to-be-approved private street" must submit a "grant deed executed on or before September 6, 1961[, ] which includes a private street easement," and Elusive had not done so.
On June 14, 2018, Elusive filed a petition for writ of mandate in the superior court seeking an order directing the City to vacate and set aside its notice of dismissal and to "process [Elusive's] [a]pplication and issue the approval for the requested deemed-to-be-approved private street." Elusive argued that section 18.00, subdivision C "only requires that the dwelling and access driveway had existed prior to September 6, 1961, not the actual private road easement." (Underscoring omitted.)
The City opposed the petition and asserted that section 18.00, subdivision C requires the applicant to submit "a deed executed and recorded prior to September 6, 1961 showing a private road easement," and Elusive did not submit such a deed.
Canterman was not a party to the writ proceeding and did not attempt to intervene in the action directly. He did, however, file a notice of a related case in the proceeding regarding an action Elusive filed against Canterman seeking to establish prescriptive and equitable easements across Canterman's property. The court, however, declined to order the cases related.
The court interpreted section 18.00, subdivision C as requiring "an applicant for a deemed-approved private street [to] show that (1) both the dwelling and access driveway for the property existed prior to September 6, 1961; and (2) the property has its access driveway located within a private road easement." "There is no requirement," the court added, "that the private road easement must have existed in an executed or recorded deed on or before September 6, 1961."
Based on its interpretation of section 18.00, subdivision C, the court granted Elusive's petition in part and entered judgment and issued a writ of mandate directing the City to set aside the notice of dismissal and "[p]rocess an application submitted by [Elusive] for a deemed-to-be-approved private street without requiring that such application include a grant deed or other instrument creating a private road easement executed and/or recorded prior to September 6, 1961." The court denied the petition "[t]o the extent the [p]etition sought an order directing the City to approve the requested deemed-to-be-approved private street." The court explained that it has "no opinion as to whether [Elusive's] application for a deemed-approved private street may or should be granted pursuant to section 18.00[, subdivision C]." In its writ of mandate, the court stated that "[n]othing contained herein shall require the City to exercise such discretion as it lawfully has in any particular way."
Neither the City nor Elusive appealed from the judgment.
B. Canterman's Motion to Vacate the Judgment
Canterman filed a motion to vacate the judgment pursuant to Code of Civil Procedure section 663. He supported the motion with his declaration stating the following: (1) He is over 18 years old and a resident of Los Angeles; (2) He began renting the Rugby Place property as his residence in June 2008 and continues to reside there; (3) He is the trustee of a trust that purchased the Rugby Place property in June 2010; (4) The Rugby Place property "is improved with a limited access driveway traversing the property"; and (5) In August 2018, Elusive filed an action against him seeking a prescriptive easement and equitable easement "within the access driveway."
Code of Civil Procedure section 663 provides that a judgment "may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict."
On January 9, 2020, the court denied Canterman's motion. The court ruled that Canterman was not aggrieved by the judgment and therefore lacked standing to make the motion. The court, however, addressed the merits of his arguments regarding the interpretation of section 18.00, subdivision C, and concluded that he had failed to show that the court's interpretation was incorrect or erroneous.
Canterman timely appealed from the order denying his motion to vacate the judgment.
On February 25, 2021, we received a letter from the Los Angeles City Attorney's Office stating that the City "is not a party to the appeal, and it waives its right to file a responding brief or otherwise appear in this action." (Capitalization omitted.)
DISCUSSION
A. Standing to Move to Vacate the Judgment
The court denied Canterman's motion to vacate the judgment on two independent grounds: (1) Canterman failed to show that he was aggrieved by the judgment, and thereby lacked standing under Code of Civil Procedure section 663, and (2) Canterman failed to show that the court's interpretation of section 18.00, subdivision C was incorrect.
On appeal, Canterman does not address or refer to the court's ruling on standing in his opening brief; he addresses only the court's interpretation of section 18.00, subdivision C. Elusive contends that, by failing to challenge in his opening brief the court's finding that he lacked standing, Canterman has forfeited the standing issue on appeal. (See, e.g., Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685.) Appellate courts, however, have discretion to consider arguments asserted in the trial court and not reasserted in an opening brief on appeal. (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 321; Scott v. City of San Diego (2019) 38 Cal.App.5th 228, 234, fn. 4.) We exercise that discretion here.
"Standing is a question of law that we review de novo. [Citation.] We review any factual findings underlying a trial court's ruling on standing for substantial evidence." (Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1174; accord, United Farmers Agents Assn., Inc. v. Farmers Group, Inc. (2019) 32 Cal.App.5th 478, 488.)
A nonparty to litigation has standing to bring a motion to vacate a judgment if he or she is aggrieved by the judgment. (Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, 971, review granted Jan. 5, 2022, S271721; Code Civ. Proc., § 663.) A person is aggrieved by a judgment if the person's "rights or interests are injuriously affected by the judgment. [Citations.] [The person's] interest' "must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment." '" (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.)
Canterman contends that he has an interest affected by the judgment because he owns (as trustee of a trust) the property that is traversed by the proposed private street. He argues that the judgment "results in an expansion of the scope of potential future development" of Elusive's property "without review for compliance with current health and safety private street regulations such as minimum roadway width[, ] which ensure adequate life-safety access across" his property. The judgment, he concludes, prevents him from "ensuring that the access driveway complies with normally applicable health and safety private street regulations."
It is not clear whether any injury to Canterman's interests have sufficiently ripened to give him standing to challenge the judgment. In the interest of judicial efficiency, however, and to save the parties from unnecessary future litigation when they have already fully explored the merits of this appeal, and particularly when the issue-the interpretation of an ordinance- is a question of law, we will consider the matter on the merits. (See Johnson v. Department of Social Services (1981) 123 Cal.App.3d 878, 883 [court will address merits of appeal despite "some reservations about appellants' standing"].)
B. Interpretation of Section 18.00, Subdivision C
The parties disagree as to the meaning of section 18.00, subdivision C. In particular, Canterman argues that an applicant for a deemed to be approved private street must prove that the applicant's access driveway is within a private road easement that existed prior to September 6, 1961; Elusive contends that the ordinance does not require that the easement existed prior to that date. We agree with Elusive.
We review statutory interpretation issues de novo. (In re E.F. (2021) 11 Cal.5th 320, 326.) Judicial construction of a municipal ordinance is governed by the rules for construing statutes. (Aptos Seascape Corp. v. County of Santa Cruz (1982) 138 Cal.App.3d 484, 497; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.) When interpreting statutes, "[w]e begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further." (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340; see also Estate of Griswold (2001) 25 Cal.4th 904, 911 ["[i]f the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs"].) We "may neither insert language which has been omitted nor ignore language which has been inserted." (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal.App.3d 948, 952; see Code Civ. Proc., § 1858.)
The focus of the parties' dispute in this case is on the first sentence of section 18.00, subdivision C: "When a developed residential lot or building site has its access driveway located within a private road easement and the dwelling and access driveway existed prior to September 6, 1961, said private road easement shall be deemed to have been approved in accordance with the provisions of this article and may be continued." According to the ordinance's plain language, there are two conditions to having a "private road easement . . . deemed to have been approved" by the City as a private street: (1) there must be a developed residential lot or building site that "has" its access driveway located within a private road easement; and (2) "the dwelling and access driveway existed prior to September 6, 1961." The use of "[w]hen" as an adverb of time and the present tense, "has," with respect to the first condition shows that the first condition is fulfilled at the point in time that the access driveway for a developed residential lot or building site is "located within a private road easement"; there is no requirement that the private road easement be in existence, or that the access driveway be located within the easement, prior to any particular date.
The clause, "existed prior to September 6, 1961," in the description of the second condition modifies the immediately preceding phrase, "the dwelling and access driveway." (§ 18.00, subd. C.) We cannot, as Canterman suggests, insert "private road easement" into this phrase. (See People v. Guzman (2005) 35 Cal.4th 577, 587 [inserting additional language into a statute violates the cardinal rule of statutory construction that courts must not add provisions to statutes].) According to the ordinance's plain language, therefore, a dwelling and access driveway must have existed prior to September 6, 1961, but there is no requirement that the lot owner's private road easement existed prior to September 6, 1961.
Although section 18.00, subdivision C is clear and unambiguous, courts may disregard the plain meaning of a statute or ordinance if applying its literal terms would frustrate the statutory scheme or lead to absurd results. (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.) Although we have not been referred to any meaningful legislative history with respect to the City's enactment of section 18.00, subdivision C in 1962, we can readily discern a reasonable rationale for distinguishing between dwellings and driveways, which must have been in existence prior to September 6, 1961, and the private road easement, which the lot owner can acquire later.
Under the City's Comprehensive Zoning Plan, as amended in 1962, a residential lot owner seeking a building permit must, generally, provide and maintain on the lot an access driveway that connects to a public street, alley, or a city-approved private street. (§§ 12.21, subd. A.1, 12.21, subd. A.4(h); L.A. Ord. No. 122312, § 1, eff. June 29, 1962.) The City will, generally, not approve a private street unless certain engineering and other requirements are met. (§ 18.05.) Thus, if the City had issued building permits to persons who have accessed their lots by means other than a public or private street or alley, and such persons built homes on their lots prior to 1961, but could not now fulfill the requirements for private streets, such lot owners would never be able to obtain building permits to alter or enlarge their homes. For example, a lot owner who lawfully built a home accessible by an off-site access driveway that could not now be approved as a private street because of the land's topography would be forever barred from obtaining a building permit to improve the home. The City could reasonably view this situation as unfair and alleviate that unfairness by allowing such lot owners to have their off-site access driveways deemed private streets, provided the owner secured a private road easement for the access driveway. For lot owners who had been using an access driveway that was not within a private road easement, the City could further ensure fairness to such owners by allowing them to acquire the necessary easement any time prior to applying for a deemed approved private street.
Prior to, at least, July 1, 1960, the Los Angeles Municipal Code did not require, as a condition of a building permit, that a lot's access driveway be located on the owner's lot or within a private road easement. (§ 12.21, subd. A.4(h), eff. June 30, 1960.) It appears that an owner could, for example, access his or her property by an access driveway crossing adjacent land pursuant to a license granted by the neighbor. The general requirement that, to obtain a building permit, a lot's access driveway be located on the lot and connected to a public or private street or alley was in place no later than June 25, 1962. (L.A. Ord. No. 122312, eff. June 29, 1962.)
Thus, the ordinance's plain language, which does not require that a private road easement be in existence prior to September 6, 1961, is rational and consistent with the statutory scheme that protects the ability of owners of residences built before September 6, 1961 to improve their homes regardless of the prior legal status of their access driveway.
C. Canterman's Statutory Interpretation Arguments
Section 18.00, subdivision C provides: "When a developed residential lot or building site has its access driveway located within a private road easement and the dwelling and access driveway existed prior to September 6, 1961, said private road easement shall be deemed to have been approved in accordance with the provisions of this article and may be continued." (Italics added.) Canterman contends that the phrase, "may be continued" in this section necessarily requires that the private road easement pre-existed the effective date of the article establishing the City's private street regulations. For this point, Canterman cites to the text of section 18.00, subdivision C, a page of the court's ruling quoting the provision, and to his motion to vacate the judgment where he made this argument below. He then concludes that "the most reasonable interpretation of [section 18.00, subdivision C] is to require that the private road easement to have at least been in existence prior to September 6, 1961." The undeveloped and conclusory argument is unpersuasive and contrary to the ordinance's text. The phrase, "may be continued," unambiguously refers to the same "private road easement" that "shall be deemed to have been approved in accordance with the provisions" of the City's private street regulations. (§ 18.00, subd. C.) Thus, when the conditions described in section 18.00, subdivision C are satisfied, the private road easement not only "shall be deemed to have been approved," but it also "may be continued." Just as the plain language of section 18.00, subdivision C includes no requirement that the applicant prove that the private road easement had been in existence prior to September 6, 1961, to be deemed approved, there is no requirement to prove that such easement had been in existence prior to September 6, 1961, for it to "be continued."
Canterman also relies on the definition of "private road easement" in section 18.01 to contend that such easements must be "created by an instrument" and that the instrument be recorded. The ordinance defines "[p]rivate road easement" as "a parcel of land not dedicated as a public street, over which a private easement for road purposes is proposed to be or has been granted to the owners of property contiguous or adjacent thereto which intersects or connects with a public street, or a private street, in each instance the instrument creating such easement shall be or shall have been duly recorded or filed in the Office of the County Recorder of Los Angeles County." (§ 18.01.) This definition, however, does not require that the instrument creating the easement be recorded or filed prior to September 6, 1961, or by any other particular date. Indeed, the phrases, "proposed to be or has been granted" and "shall be or shall have been duly recorded or filed," indicate that a private road easement includes an easement that is merely "proposed" and which "shall be" recorded or filed, as well as easements that have been granted and previously recorded or filed. A proposed easement that shall be recorded or filed is not an easement that has been recorded or filed prior to September 6, 1961.
Our interpretation is strengthened by the fact that the definition of private road easement previously included only past tenses. Prior to 1962, the City defined "[p]rivate road easement" to "mean a parcel of land not dedicated as a public street over which a private easement for road purposes has been granted to the owners of property contiguous or adjacent thereto which intersects or connects with a public street, or a private street, and the instrument creating [the] same has been duly recorded or filed in the office of the recorder of Los Angeles County." (L.A. Ord. No. 97940, § 1, eff. Apr. 18, 1951.) The City changed this definition to its current version in the same ordinance that enacted section 18.00, subdivision C. (L.A. Ord. No. 122064, §§ 2-3, eff. June 14, 1962.) By modifying the definition to provide that private road easements include easements that are "proposed to be" granted, as well as easements that have been "granted," and easements that "shall be" recorded, as well as those that "have been" recorded, the City unmistakably indicated its intent to include within the definition private road easements that were not in existence when the ordinance was amended in 1962.
Canterman attempts to draw support from what he calls the "historical reality" that led to the enactment of section 18.00, subdivision C. He asserts that "[p]rior to 1961, building permits were issued for the construction of dwellings on lots with vehicular access over only a private road easement. [Citation.] Many of these private road easements would not have been approved as private streets in 1961, let alone today. [Citation.] Because of this, a resolution process was needed to enable property owners to obtain private street access and frontage for dwellings constructed prior to September 6, 1961 on these landlocked parcels." For these assertions, Canterman relies primarily on statements the City made in its opposition to Elusive's petition for writ of mandate. For these statements, the City relied entirely upon a document of which the City requested judicial notice. The court, however, denied the request and Canterman has not challenged that ruling. Neither the City's brief nor the document the City relied upon, therefore, provide support for Canterman's assertions.
The document, which was submitted as an exhibit in unrelated litigation, is a paper entitled, "The Genesis of 'The Private Street Regulations, '" purportedly written in 1986 by an employee of the City's Planning Department. The trial court, after concluding that the paper and its hearsay statements were not judicially noticeable, stated that even if it did consider the paper, the City had not shown that it addresses the statutory interpretation issues in this case. We agree. The paper outlines the historical development of the City's private street regulations and notes the addition of section 18.00, subdivision C in 1962, but provides no explanation or insight bearing on the statutory interpretation issues in this case. Thus, even if we considered the excluded document, it would not alter our analysis or conclusion.
The only other source Canterman cites-for the assertion that many pre-1961 "private road easements would not have been approved as private streets in 1961, let alone today"-does not aid Canterman's argument. That source is a document titled, "Interdepartmental Staff Committee Report to the Coordinating Board" (capitalization omitted) dated May 26, 1952. The unsigned, unauthenticated, largely illegible document authored by unidentified persons to an unidentified "Coordinating Board" does not, so far as we can make out on the page Canterman cites or elsewhere, refer to the ability or inability of private road easements to be approved as private streets in 1961. The document appears to address the question whether the ordinance regulating private streets then in effect should be amended or modified. It is not clear from Canterman's brief what in this document he believes supports his argument. So far as we can tell, the closest this document comes to Canterman's point is the following statement: "Circumstances which prompted the formulation of the [Private Street] Ordinance were restudied, namely, the alarming increase of building permit applications to construct buildings on properties which have no access to a public street, except over a private street, easement of access or fire trail. Almost without exception these means of access were unimproved. A large majority of these properties were located in mountainous and hillside areas with the only means of approach over narrow, steep and sharply curving trails which could be reached only with difficulty during favorable weather by fire equipment, refuse collection trucks and other service vehicles." This language arguably points to a need for an ordinance establishing standards for access roads as a condition of obtaining a building permit; it does not, however, shed any light on the issue before us: whether the City intended, in enacting section 18.00, subdivision C, to require that the owner's access driveway be within a private road easement that existed prior to September 6, 1961.
The authors of the document concluded that "there is no reason to amend or modify any of the provisions" of the 1951 ordinance.
Canterman next argues that "legal access via at least a private road easement was required" based on the City's explanation and "correspondence dating back to May 26, 1952." The referenced explanation by the City appears to be the City's argument in its opposition to the petition for writ of mandate, which, as noted above, is merely argument based on inadmissible evidence. Canterman's only citation to the supporting "correspondence" is to the unexplained foundationless Interdepartmental Staff Committee Report, which, as discussed above, provides no support for Canterman's argument.
Canterman concludes his "historical reality" argument with the following excerpt from the Interdepartmental Staff Committee Report: "We know of no provision whereby an individual property owner can cause an assessment to be levied against adjoining property owners for the purposes of requiring them to share the cost of bringing water to his premises in order that he may comply with the provisions of the Private Street Ordinance." Canterman does not explain, and we cannot discern, how this excerpt supports his argument that, contrary to the plain language in section 18.00, subdivision C, the applicant for a deemed approved private street must show that the private road easement providing access to the applicant's property existed prior to September 6, 1961.
Canterman makes a cursory argument that the City has interpreted section 18.00, subdivision C as requiring proof of an easement instrument executed prior to September 6, 1961, and "the City should be afforded deference in its interpretations of its own laws and regulations." Although a government agency's interpretation of its own ordinances "must be given great weight, the interpretation is not binding, and ultimate responsibility for interpretation of an ordinance rests with the court. [Citation.] The level of deference we accord to an agency's interpretation turns on 'whether the agency has a comparative interpretive advantage over the courts, and also whether its interpretation is likely to be correct.' [Citation.] Factors to consider in determining if an agency has a comparative advantage include whether 'the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.'" (Tower Lane Properties v. City of Los Angeles (2014) 224 Cal.App.4th 262, 276 (Tower Lane).) We also "consider whether an agency has consistently followed its putative interpretation, and how long it has done so." (Ibid.)
Here, our task is, in essence, to determine whether the City intended the clause in section 18.00, subdivision C, "the dwelling and access driveway existed prior to September 6, 1961," to mean: the dwelling, access driveway, and private road easement existed prior to September 6, 1961. The ordinance's text is neither technical, obscure, complex, nor open-ended. "[D]welling" and "access driveway" have readily understood meanings and "private road easement" is unambiguously defined in section 18.01 of the City's municipal code, as discussed above. Nor does the application of the ordinance in this case turn on any factual issues; and the ordinance's use of the mandatory "shall" indicates the absence of discretion. (§ 18.00, subd. C.) Although the issue arguably involves issues of "policy," a purported policy that is inconsistent with the ordinance's plain language will not control the interpretation. (See Tower Lane, supra, 224 Cal.App.4th at p. 278 [courts must take the statute as they find it, and if a statute is inconsistent with policy goals, the remedy lies with the legislative authority].)
As for whether the City "has consistently followed its putative interpretation, and how long it has done so" (Tower Lane, supra, 224 Cal.App.4th at p. 276), Canterman points only to the trial court's discussion of the City's evidence. As the court explained, the City relied on copies of checklists it had used in 1997 and 2010 when evaluating an application under section 18.00, subdivision C. The checklists required the applicant to submit copies of a deed executed on or before September 6, 1961 describing the property and the private street easement. As the court pointed out, section 18.00, subdivision C was enacted in 1962. The documents were thus not evidence of how the City interpreted the ordinance during the first 35 years of the ordinance's existence. In any event, the court rejected this evidence, stating that "[the] City's checklists cannot be used to contravene the plain language of the ordinance." Canterman offers no argument on this point, and we agree with the court's analysis and conclusion.
The City had also submitted evidence of three projects it approved between 2000 and 2005 where the applicant had provided evidence of a private road easement executed before September 6, 1961. The court concluded that "these documents do not show [the] City's historical interpretation of section 18.00[, subdivision C] when an easement is executed or recorded after September 6, 1961, but an access driveway existed prior to that date. Thus, [the] City's evidence of historical interpretation of section 18.00[, subdivision C] is not persuasive as applied to this case." Again, Canterman offers no meaningful challenge to the court's conclusion.
D. Conclusion
For the foregoing reasons, we agree with Elusive that section 18.00, subdivision C does not require an applicant seeking to have a private road easement deemed to have been approved as a private street to prove that the private road easement existed prior to September 6, 1961. Accordingly, the court did not err in denying Canterman's motion to vacate the judgment.
We, like the trial court, express no opinion as to whether Elusive's application for a deemed approved private street should be granted pursuant to section 18.00, subdivision C.
DISPOSITION
The order denying Canterman's motion to set aside and vacate judgment is affirmed.
Respondent is awarded its costs on appeal.
We concur: BENDIX, J. CRANDALL, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.