Opinion
H034391
10-12-2011
ROBEL FEKADE, Plaintiff and Appellant, v. FIRST AMERICAN TITLE INSURANCE CO., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV158263)
Plaintiff Robel Fekade became embroiled in a dispute with a neighbor over a gate on an easement for ingress and egress over the neighbor's property. Plaintiff tendered a claim to his title insurer, First American Title Insurance Co. (First American), which denied it after an investigation. Plaintiff brought this action against the neighbor, First American, and others. First American moved for summary judgment on the grounds that, as a matter of law, the claim was not covered by its policy and it had acted reasonably in denying it. The trial court granted the motion and entered judgment for First American. Since its analysis of the case appears entirely correct, we will affirm.
BACKGROUND
Purchase of Property and Title Insurance
In October 2006, appellant and his uncle, Habtom Ghile, purchased certain vacant land in Santa Cruz County from John and Judy Krueger. First American issued a policy insuring plaintiff's title in the property. It is undisputed that First American originally issued a CTLA policy designed to insure title to residential property, rather than to unimproved land like plaintiff's. On July 9, 2007, after discovering its mistake, First American issued a substitute ATLA policy effective the same date as the original policy. This policy insured against "loss or damage . . . sustained or incurred by the Insured by reason of: [¶] 1. Title to the estate or interest described In Schedule A being vested other than as stated therein; [¶] 2. Any defect in or lien or encumbrance on the title; [¶] 3. Unmarketability of the title; [or] [¶] 4. Lack of a right of access to and from the land." First American also undertook to "pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured . . . to the extent provided in the Conditions and Stipulations." Among the "estate[s] or interest[s] described in Schedule A" was "Parcel Five," described as an "easement for ingress and egress for road purposes" situated on an adjoining property.
Although both purchasers joined in bringing this lawsuit, only plaintiff Fekade has appealed from the judgment against them. We will often use "plaintiff in the singular even where "plaintiffs" might be more accurate in a historical sense.
Plaintiff does not contend that the present action is governed by the terms of the CTLA policy. That policy appeared on its face to have no application to undeveloped land, such as plaintiff's. It contained prominent, frequently repeated recitals that it was issued "for a one-to-four family residence." On the first page, immediately under such a recital, it stated: "Your Title Insurance Policy is a legal contract between You and Us. [¶] It applies only to a one-to-four family residence and only if each insured name [sic] in Schedule A is a Natural Person. If the Land described in Schedule A of the Policy in [sic] not an improved residential lot on which there is located a one-to-four family residence, or if each insured named in Schedule A is not a Natural Person, contact Us Immediately." (Italics added.) Two pages later, the "Owner's Coverage Statement" opened with the recital, "This Policy insures you against actual loss, including any costs, attorneys' fees and expenses provided under this Policy, resulting from the Covered Risks set forth below, if the Land is an improved residential lot on which there is located a one-to-four family residence and each insured named in Schedule A is a Natural Person." (Italics added.)
Plaintiff repeatedly complains that First American failed to refund any part of the original premium. Nothing was made of this alleged failure in the pleadings and it appears irrelevant to any issue on this appeal.
Initial Dispute
Plaintiff declared that when he purchased the property, he was told that it included a gated driveway. Keys to the gate were given to him both by the listing agent and by the title company—First American—at close of escrow. On February 16, 2007, however, the owner of the adjacent land, Holly Reed, wrote to plaintiff stating that the gate was located on her property and demanding that it be removed. She stated that plaintiff's seller had constructed the gate without her knowledge in May 2006; that she had then demanded that he remove it; that he had said "he was protecting valuables on the property and would remove it later"; and that he had given her a key "in the meantime." While the letter demanded the gate's removal, it did not contest plaintiff's right to use the driveway for ingress and egress. On the contrary, it acknowledged that the "drive" on which the gate was situated constituted an "easement . . . for access to the parcel below mine, which you have recently purchased."
Claim, Investigation, and Denial
Both Reed and plaintiff engaged surveyors, who determined that the gate was on Reed's land. Plaintiff, however, continued to assert a right to maintain the gate. In May 2007, he and his uncle wrote to First American tendering a claim under the policy. They stated that when they were shown the property, they were "illustrated" by the seller and agent "that the entire driveway including where the green gate is located is in our insured property." They asserted that after they bought the property, Reed "informed us that 'our' driveway was on her property and that we were not authorized to use it and to remove our gate immediately." They enclosed a copy of her February 16 letter, implying that it reflected these demands.
Claims Counsel Steven Kahn was assigned to investigate plaintiff's claim on behalf of First American. He recounted his investigation in a declaration which appears not to have been controverted in any material detail. In that account, when he examined Reed's letter of February 16, he observed that her only objection to plaintiff's use of the easement was his keeping a gate on it. In his initial reply to plaintiffs' tender, Kahn drew attention to this point, stating, "it appears Ms. Reed acknowledges your right to use the driveway easement." He asked plaintiff to "[p]lease advise me of whether Ms. Reed has prevented your use of the driveway or interfered with your access to your property." A month later, having apparently heard nothing, he wrote to plaintiff again, reminding plaintiff that the previous letter had "asked that you explain whether Ms. Reed has prevented your use of the driveway or interfered with your access to your property" and "noted that Ms. Reed appears to acknowledge your right to use the driveway." He asked plaintiff again to "[p]lease contact me at your convenience to answer these questions." He also asked plaintiff, for the second time, to forward a copy of a survey referred to in previous correspondence. He included a map on which he asked plaintiff to mark the approximate location of the gate.
On July 12, 2007, an attorney wrote to plaintiff on behalf of Reed stating that "Based on a survey commissioned by Ms. Reed, which was apparently confirmed by a surveyor hired by Mr. Fekade, Mr. Fekade is presently maintaining a gate on Ms. Reed's property." He noted that after numerous requests to remove the gate, plaintiff had indicated in an e-mail that he would "not be removing the gate." Plaintiff had supplied no basis, he continued, for a belief that he was legally entitled to maintain the gate on Reed's property. Given the absence of any apparent legal justification, "it would appear that Mr. Fekade is trespassing on Ms. Reed's property." If plaintiff did not reply to the letter within 15 days, he concluded, "Ms. Reed will consider taking any necessary and appropriate action, including legal proceedings, to have the gate removed."
Based apparently on this letter, plaintiff e-mailed Kahn on July 24, 2007,asserting that "Ms, Reed Claims I am trespassing her new and second letter from her attorney dated July, 12, 2007 which you are more than well come to have a copy [sic]." Plaintiff and Kahn spoke by telephone the next day, at which point plaintiff gave Kahn the number of an attorney, Piotr Reysner, whom plaintiff had engaged. Kahn wrote to plaintiff again on August 6 still seeking the materials and information previously requested, as well as a copy of the July 12 letter from Reed's attorney.
Around August 1, 2007, Reed caused the gate to be removed. She testified that she accepted a neighbor's offer to bulldoze it. She denied telling a sheriff's deputy she had done so on the advice of counsel.
On August 13 plaintiff's attorney, Reysner, wrote to Kahn supplying a copy of what he referred to as "plans" he had discussed with Kahn in a conversation "the other day." This was actually the survey map prepared by Lea & Braze, whom plaintiff had engaged in March to determine the location of the gate vis a vis the property line. The map depicts the gate as situated on Reed's land, but within plaintiff's easement.
Reysner's letter did not provide any other information but expressed the view that First American should promptly confirm its assumption of the costs of plaintiff's dispute with Reed since "time is of the essence" in that "[t]his dispute has risen sharply and the emotions are running high." Kahn replied by letter that First American was still investigating the claim and was continuing to seek information concerning Reed's communications with plaintiff "regarding the easement." In particular he sought a copy of the July 12 letter from Reed's attorney to which plaintiff had previously alluded.
Kahn declared without contradiction that on August 20, 2007, Reed told him by telephone that a survey procured by her from the firm of Craig & Dunbar had confirmed the gate's location on her property. She authorized Kahn to get a copy from the surveyor. She also stated "that she did not dispute Plaintiffs' right to use the Easement across her property." Kahn obtained a copy of the Craig & Dunbar survey and drew in the location of the gate as shown on plaintiff's Lea & Braze survey, again showing that the gate was situated on Reed's land.
On August 31, 2007, Kahn wrote to Reysner stating that First American had completed its investigation and had concluded that the policy did not cover plaintiff's claim. He first recited the facts as he understood them, including that the gate was located on Reed's land and that she "acknowledged the Insureds' right to use the driveway." The dispute fell outside the coverage of the policy, he wrote, because there was "no challenge to title to the Insureds' property" and "Reed acknowledges the Insureds' easement rights." He based his conclusion on the premise that "[n]one of the policy's insuring provisions insure the right to install or maintain structures within an easement on a neighboring property, even if that easement is insured by the policy." Several days later, Kahn declared, he received a letter from Reysner mysteriously dated August 13, 2007. In it, Reysner inquired about "the status of your investigation" and stated that plaintiff was "in the process of filing a lawsuit against Ms. Reed" for which he would prefer not to "pay out of pocket." He stated that he hoped to file the complaint "by the end of next week." He enclosed a copy of the July 12 letter from Reed's attorney.
Proceedings Below
On October 3, 2007, plaintiff and his uncle filed this action against Reed, the seller Krueger and his wife, the agent in the purchase transaction, and First American. The first amended complaint, filed July 15, 2008, asserted 11 causes of action. As against First American it asserted claims for declaratory relief (first cause of action), "bad faith denial of coverage" (seventh cause of action), and "tortious breach of the implied covenant of good faith and fair dealing" (eighth cause of action). On these causes of action the prayer sought declaratory relief, attorney fees, and compensatory and punitive damages. No claim was asserted for breach of contract.
First American moved for summary judgment, arguing that (1) the claim for declaratory relief would not lie against it because it asserted no interest in the real property as to which an adjudication of rights was sought; (2) as to the remaining claims, the dispute as to which plaintiff sought coverage was not in fact covered by the policy; (3) if there was a colorable dispute about coverage, First American's denial of coverage, and conduct in regard thereto, was reasonable; and (4) there was no evidence of the malice, fraud, or oppression required to sustain plaintiffs' prayer for punitive damages.
In his response to the motion, plaintiff conceded that the declaratory relief cause of action "d[id] not lie against First American" because it "claim[ed] no interest in the property." With respect to the coverage issues, plaintiff's most pertinent assertion was that "[t]he easement for ingress and egress which is appurtenant to plaintiffs' property includes the right to construct and maintain a gate which is a structure used to control access to their property." In support of this assertion they cited a declaration by surveyor Steven Wilson, who averred, "In my opinion, this easement for ingress and egress which is appurtenant to the subject property includes the right to construct and maintain a gate which is a structure used to control access to plaintiffs' property." Defendants lodged written objections to this statement on the grounds that it was a legal opinion by one whose qualifications to give it did not appear, and that it was irrelevant to the question whether the title policy covered plaintiff's claimed right to maintain a gate.
At the hearing on the motion for summary judgment, the trial court stated its tentative view that there was no coverage under the policy because "there is no dispute regarding whether Plaintiffs have title to the easement, or whether they have the right to use the easement. The sole question is whether the proposed use exceeds the scope of the grant, and that's not a title issue, it's not a marketability issue. And since there is nothing in the grant that expressly gives Plaintiffs the right to erect a gate or otherwise prevent others from using the easement, it's not a title issue, and for that reason the Court believes there's no coverage under the policy, and hence there can be no cause of action for bad faith breach of contract or tortious breach of contract, and no viable damage claim."
After further argument the court adopted its tentative ruling and granted the motion for summary judgment, stating, "I find as a matter of law that there's no coverage under the policy. That the underlying dispute relates to the Plaintiffs' right to maintain a gate on the property, it doesn't relate to the title or marketability of the property, and there's no dispute concerning the existence of the easement or the right to access to and from the insured property." A formal order and judgment duly followed. Plaintiff took this appeal in propria persona.
Plaintiff filed the notice of appeal on June 24, 2009. This was premature because judgment was not entered until August 7, 2009. Plaintiff's purpose was unambiguous; the notice recites that the appeal is taken from "[j]udgment after an order granting a summary judgment motion." We deem the notice to refer to the judgment, and to have been filed immediately after its entry. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 569, p. 646-647.)
DISCUSSION
A. Introduction
Summary judgment is appropriate when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) Plaintiff asserts that the evidence before the trial court raised a "triable issue of material fact . . . as to [coverage,] whether [First American] conducted a th[o]rough coverage investigation and its conclusion was reasonable and acted in good faith to its insured." Later he states that "the papers submitted showed a triable issue of material fact [as] to coverage and bad faith." He asserts that the evidence showed that "the dispute" as to which he submitted his claim "was not only about the gate but also the existence of easement which is parcel five location." Later he alludes to the "issue of the existence and location of the easement," which he contends was only resolved by his engaging a (second) surveyor at his own expense. He also implies that summary judgment was precluded by First American's conduct in "defend[ing] our neighbor defendant Ms. Reed in this same case. (VOL IV CT 768), who is the wrong doing 'self help' in bulldozing the plaintiffs property gate, (VOL IV CT 788-790) and who denied easement right by her attorney July 12, 2007 letter to plaintiff. (VOL IV CT 785-786)."
We have not found it easy to unravel this tangled skein of assertions, but having done so to the best of our ability we are satisfied that the trial court's analysis of this case was entirely correct and that it did not err by granting summary judgment in First American's favor. B. No Evidence of Coverage
Plaintiff's bad faith claims could not get off the ground unless there was some basis to conclude that he tendered a claim that was at least potentially covered by First American's policy. (See Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151 [bad faith denial claim requires proof that defendant withheld "benefits due under the policy"]; California State Auto. Ass'n Inter-Ins. Bureau v. Superior Court (1986) 184 Cal.App.3d 1428, 1433 [bad faith claimant must "first establish[] that coverage exists"].) This principle is fatal here, because plaintiff has never offered a coherent theory under which he could be found to have asserted a covered, or potentially covered, claim.
A title insurer undertakes two basic duties. The first is to "indemnify the insured for losses incurred as a result of defects in or encumbrances on the title. [Citation.]" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 41.) The second is to defend the insured against attempts to establish defects in, or encumbrances on, the title as insured. (Rosen v. Nations Title Ins. Co. (1997) 56 Cal.App.4th 1489, 1496.) The second duty is broader than the first in the sense that it embraces "potentially covered claim[s]." (Ibid., italics added.) However, " 'where there is no possibility of coverage, there is no duty to defend . . . .' " (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19, quoting Fire Insurance Exchange v. Abbott (1988) 204 Cal.App.3d 1012, 1029.)
This duty is expressed in the policy here as an undertaking by First American to insure plaintiff "against loss or damage . . . sustained or incurred by the insured by reason of: [¶] 1. Title to the estate or interest described In Schedule A being vested other than as stated therein; [or] [¶] 2. Any defect in or lien or encumbrance on the title."
This is expressed here as a duty in First American, upon written request, "at its own cost and without unreasonable delay, [to] provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured . . . ."
Plaintiff never presented any evidence of any defect or encumbrance asserted in derogation of his title by any other person. His only real attempt to identify such a defect is a claim that the dispute between himself and Reed was not limited to his right to maintain a gate but extended to "the existence of the easement" on which the gate was constructed. He asserts in his brief that Reed "denied easement right" and that this denial meant he "c[ould] not use the easement to go in and out of the property."
We assume that if this assertion were substantiated, it would indeed trigger a duty in First American to indemnify plaintiff against any resulting loss and to defend him against any attempt by Reed to litigate the validity of the easement, or his right to use it for ingress or egress. But there is no evidence that Reed ever questioned either the existence of the easement or plaintiff's right to use it for the insured purpose. Rather the record unequivocally points to the opposite premise, i.e., that Reed at all times acknowledged the existence of the easement and plaintiff's right to use it for ingress and egress, precisely as set forth in his property description and title insurance policy.
In her letter to plaintiff dated February 16, 2007—three months before plaintiff tendered his claim to First American—Reed acknowledged that the "drive" on which the disputed gate stood was an "easement . . . for access to the parcel below mine, which you have recently purchased." A few months later she told First American's attorney Kahn "that she did not dispute Plaintiffs' right to use the Easement across her property."Plaintiff has never pointed to any contrary statement by her. Instead plaintiff's claim of a triable issue of fact depends entirely on a reference to "trespass" by Reed's attorney in a letter dated July 12, 2007—two months after plaintiff tendered his claim. Plaintiff interprets that letter to mean "I can not use the easement to go in and out of the property." But the letter cannot be reasonably understood to bear that meaning. Indeed it does not unconditionally accuse plaintiff of trespass. What it says, quite unmistakably, is that Reed will not tolerate the continued maintenance of the gate on her land unless plaintiff furnishes some legal justification for it. It is the maintenance of the gate that the author says "would appear" to constitute trespassing. Despite plaintiff's earnest efforts to project an inobvious meaning onto it, that letter could not raise a triable issue of fact.
Plaintiff objected to this evidence as hearsay, which it would have been if offered to show the historical fact that Reed had not, up to that time, disputed the easement. But if offered to show Reed's then-existing state of mind—her acquiescence in the easement—it came within an exception to the hearsay rule. (Evid. Code, § 1250.) Moreover, her expressing or not expressing opposition to the easement was, for at least some purposes, a legally operative fact in its own right, and thus admissible for a purpose other than proving some "matter stated." (Evid. Code, § 1200, subd. (a).) In all events, her statement of non-opposition was evidence on which First American could reasonably rely in concluding that she was not asserting any defect in plaintiff's title so as to trigger any duty under the policy; to that extent it was admissible as evidence of good faith, without regard to its truth. Finally, Reed's letter of February 16, to which plaintiff did not object (and on which, indeed, he relied), was sufficient to carry defendant's burden as moving party and to cast a burden on controversion upon plaintiff, which plaintiff failed entirely to carry. Reed's further statement to Kahn merely corroborated what she said in that letter.
The letter stated, in pertinent part, "No reason has been provided for why Mr. Fekade believes he is legally able to maintain the gate in its present location on Ms. Reed's property. That said, I can only assume that he has no legal theory to support his actions; instead, he simply does not wish to move the gate. Accordingly, it would appear that Mr. Fekade is trespassing on Ms. Reed's property. [¶] If you have any justification for maintaining the gate in its location, please provide such to me by July 27, 2007. Should I not hear from you by then, Ms. Reed will consider taking any necessary and appropriate action, including legal proceedings, to have the gate removed." (Italics added.)
Plaintiff also seemed to suggest below that his dispute with Reed came within the terms of the policy because his right to maintain a gate on the easement was included in the title guaranteed by the policy. This at any rate seems to be the import of the assertion below that "[t]he easement for ingress and egress which is appurtenant to plaintiffs' property includes the right to construct and maintain a gate which is a structure used to control access to their property." This of course is a conclusion of law, but plaintiff made no attempt to support it with argument or authority. Instead he relied entirely on an averment to this effect by surveyor Steven Wilson. Defendants objected to this averment on the entirely correct ground that it constitutes a legal opinion which the declarant lacked any apparent qualifications to render. In any event an opinion on an issue of law cannot raise a triable issue of fact. If the facts are undisputed, the law is for the court to decide.
Nor is the absence of authority in support of plaintiff's position an accident. Civil Code section 806 provides, "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." Here the servitude arose by grant, and its extent is defined in the property description, in relevant part, functionally: the easement is granted "for ingress and egress for road purposes." The "terms of the grant" say nothing about any right by the dominant owner to erect a gate. "Where the easement is founded upon a grant . . . only those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee." (Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, 579.)
Moreover, subject to the interests thus granted, "the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement." (Pasadena v. California-Michigan etc. Co., supra, 17 Cal.2d at p. 579.) To the extent the erection of a gate tends to exclude the servient owner from his or her land, it operates to create, at least de facto, an exclusive easement. An exclusive easement is "an unusual interest in land" amounting "almost to a conveyance of the fee." (Id. at p. 578.) As such it must affirmatively appear: "No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention." (Id. at pp. 578-579.)
Plaintiff cites deposition testimony by Reed that the gate was not "blocking access to [her] house." On the same page, however, Reed made it plain that her objection to the gate did not rest on purely theoretical or symbolic grounds: "It was blocking access to that end of my property. If I chose to use that easement, it blocked it." Plaintiff made no attempt to show that she lacked any occasion to use that end of her property, or the easement. In any event the whole suggestion is immaterial. The rights of a landowner in his own land are not extinguished simply because his neighbor—or for that matter a court—questions their importance.
All of these principles militate against the claimed right to erect a gate. But even if plaintiff succeeded in establishing such a right, it would not follow that First American must bear the expense of his doing so. The interest First American insured was an easement for ingress and egress. Nothing in this record suggests that it assumed the duty to establish that the easement included a right to maintain a gate on the easement. Plaintiff failed entirely to offer any basis for the imposition of such a duty. Accordingly he failed to establish any colorable liability in First American to indemnify or defend him with respect to the maintenance of the gate.
Implicitly recognizing the weakness of this theory, counsel suggested at the hearing below that First American had a duty to represent plaintiff in his initial dispute with Reed over the location of the property line. Counsel characterized this as a "dispute as to title," meaning the title to the land on which the gate and driveway were located. However before plaintiff tendered any claim to First American it had been established without controversy that the land in question belonged to Reed—that she was correct about the property line, and plaintiff was mistaken. This at any rate was the apparent purport of the survey conducted at plaintiff's behest in March 2007. Thus, by the time plaintiff tendered a claim to First American, any dispute as to title consisted of him asserting a claim against Reed's title, not vice versa. The policy insured plaintiff against claims by others in derogation of his title as described in the policy—not claims by him seeking to enlarge his estate beyond that description, and to derogate the record title of others. C. No Evidence of Bad Faith
Even if plaintiff could be understood to assert some ground of potential coverage, summary judgment was properly granted because there was no triable issue of fact about First American's good faith in denying plaintiff's claim. Nothing in the record would sustain an inference that First American acted in bad faith. Plaintiff's initial tender strongly indicated that the sole point of contention was plaintiff's right to maintain a gate on his neighbor's property. The accompanying letter, from his neighbor, conceded the existence of the easement that First American had undertaken to insure. That concession was never cast in doubt. The only question left for Kahn to answer was whether the policy insured plaintiff's claimed right to maintain a gate on the easement. Plaintiff, though represented by counsel, offered Kahn no reason to suppose that it did. Indeed plaintiff has never offered such a reason, either to the trial court or to this court. Nothing in this record, then, would support an inference or finding that First American acted unreasonably, let alone in bad faith, when it answered the posited question in the negative, stating, in Kahn's words, that nothing in the language of the policy "insure[d] the right to install or maintain structures within an easement on a neighboring property, even if that easement is insured by the policy." D. Other Supposed Misconduct
Plaintiff alludes repeatedly to the fact that, as Reed testified in her deposition, her defense in this action was provided by First American. Apparently this is thought to be objectionable either as reflecting some kind of double standard, and thus evidence of bad faith, or because it reflects some kind of conflict of interest. But First American's duties to Reed and its duties to plaintiff present two entirely distinct questions. Insofar as plaintiff was attempting to encumber Reed's fee with the increased burden of a gate, or challenge the property lines as stated in her title documents, he was presumably asserting defects or encumbrances squarely within the coverage provisions of her policy. In any event he failed to create a record that would permit more than guesswork on this subject. Guesswork cannot defeat an otherwise meritorious motion for summary judgment.
Similarly, plaintiff places great emphasis on an e-mail exchange in which a person in First American's engineering department, after being asked by Kahn to "plot the land described" in the policy, sent back a message stating in part that the easement at issue, along with another parcel involving a half interest in a water tank "should not have been insured as the locations are not defined and can't be located." Plaintiff then suggests that the real gist of his claim was the uncertain location of the easement and that First American should be liable for the expenses he incurred in resolving that issue. At most, however, the cited message establishes that the location of the easement, judged by surveyor standards, was not adequately fixed by the property description. This uncertainty was never asserted as the basis of a claim tendered to First American. Nor was it alleged as the basis for a cause of action in any pleading in this record. It has no apparent connection with the claim that was asserted, i.e., the dispute over the location of the gate vis à vis the property line, and plaintiff's right to maintain it on Reed's side of the line. The supposed deficiencies in the property description therefore furnished no basis for denying First American's motion for summary judgment, and it affords no basis for reversing that disposition on appeal.
"Here you go. This legal description is all kinds of messed up. We (2 ATO's and myself) believe that Parcels Five and Six should not have been insured as the locations are not defined and can't be located."
Kahn testified that "ATO" means Advisory Title Officer.
Plaintiff writes, "Monterey Bay Engineering Surveyor Mr. Wilson is the one who changed the game, who resolve the issue of the existence and location of the easement that [record citation] was not shown on Lea and Braze engineering survey [record citation] nor defined and located by [First American] . . . . The point is plaintiff Mr. Fekade had commissioned Mr. Wilson as his expert to establish the location of and existence of legal easement parcel five with an out of pocket cost (debit) that should have been paid by [First American], and should have been their duty under the policy they issued to me, instead [First American] intentionally closed their incomplete investigation." (Underlining omitted.)
Plaintiff asserts that he pleaded such a claim: "[O]ur complaint speaks for itself, as plead on our general allegations complaint . . .[,] 'there existed a paved road surrounded by fence and gated entryway for ingress and egress to the property located generally at the northerly corner of the property running southwest, and running easterly at approximate 150 foot radius.' " (Underlining in original.) Nowhere in the complaint is it suggested that the quoted description, or the metes and bounds of the easement, was a point of controversy. A mere allusion to a property description does not impart notice that an attempt is underway to impose liability based on uncertainty about the location of the described property.
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DISPOSITION
The judgment is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.