Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. INC038012. H. Morgan Dougherty, Judge.
Peters & Freedman, David M. Peters, and Michael G. Kim for Defendant and Appellant.
Best Best & Krieger, Martin A. Mueller, Julie A. Rosser; Demetriou, Del Guercio, Springer & Francis and Jeffrey Z.B. Springer for Plaintiff and Respondent.
OPINION
RICHLI, J.
Immediately after the La Quinta Hotel was built, its developers sought to capitalize on its success by laying out a residential subdivision on some adjoining property. A few homes were built, but during the Depression the subdivision went into receivership, and all of its remaining land was sold off.
Plaintiff Richard Fredericks owns what appears to be the only house to survive from this ill-fated subdivision. As a result of these historical accidents, his house is tucked away between the La Quinta Hotel to the east and north and Santa Rosa Cove, a gated residential community, to the west and south.
The address of his house is 49875 Avenida Obregon. Avenida Obregon runs north and south. In the past, Fredericks has gotten to and from the house by going south on Avenida Obregon, through Santa Rosa Cove. However, there is also a less satisfactory northern route, through the hotel grounds.
Defendant Santa Rosa Cove Association (the Association) owns all of the common areas in Santa Rosa Cove. In the 1990’s, when Fredericks learned that a gate was going to be built across Avenida Obregon that would prevent him from using the southern route, he filed suit against several defendants, including the Association; that action was eventually resolved by a settlement that allowed the gate to be built but required that Fredericks be allowed to pass through the gate by means of remote-control “clickers.” Thus, Fredericks continued to use the southern route until 2002, when the Association padlocked the gate.
Fredericks then filed this action, claiming an easement over the southern route, both as a matter of “abutter’s rights” and as a result of the settlement. The trial court granted Fredericks’s motion for a preliminary injunction. The Association appeals. We agree with the trial court — Fredericks showed that both the likelihood of prevailing on the merits and the balance of harms favored him. Hence, we will affirm.
I
FACTUAL BACKGROUND
The following statement of facts is taken from the evidence submitted in support of and in opposition to the parties’ cross-motions for a preliminary injunction.
Appendix A, post, page 26 is a Mapquest map of the area involved. In our tentative opinion (see Ct. App., Fourth Dist., Div. Two, Internal Operating Practices & Proc., VIII), we proposed to take judicial notice of it. The parties have not objected, so we hereby do so. The star marks the location of Fredericks’s house.
Appendix B, post, page 27 is a schematic map of the properties involved, based on several of the maps that were submitted as exhibits below. Fredericks’s property is shown as Lot 24. The property that now belongs to the Association and its members is shown as Tract 14496-1.
A. The History of Lot 24 and Avenida Obregon.
In 1928, Desert Development Co., through its president, Walter H. Morgan, recorded a map of a subdivision in La Quinta. The map designated 36 lots and several streets. These included Lots 23, 24, 25, 34, 35, and 36, as well as Avenida Obregon and Calle Mazatlan, as shown on appendix B.
Later in 1928, Desert Development conveyed Lot 24 to one Mabel Carruthers. In 1928 and 1929, it conveyed Lot 34 and Lot 35 to other purchasers. By recording a subdivision map that showed Avenida Obregon, and by selling lots in accordance with the subdivision map, Desert Development impliedly dedicated Avenida Obregon to public use. (Hanshaw v. Long Valley Road Assn. (2004) 116 Cal.App.4th 471, 483; Fitzgerald v. Smith (1928) 94 Cal.App. 480, 483-484.) By not later than 1934, Avenida Obregon was actually in use as a public street.
However, most of the lots in the subdivision — including Lot 23 and Lot 36 — went unsold. The Depression intervened, and by 1937, Desert Development was in receivership. In that year, it conveyed all of its remaining assets, including Lot 23, Lot 36, Calle Mazatlan and the southern end of Avenida Obregon, to La Quinta Properties Company. The deed reserved an easement for road purposes over Avenida Obregon.
In 1974, Riverside County vacated the southern end of Avenida Obregon, between Lot 23 and Lot 36.
In 1981, Tract 14496-1 was created by the recordation of a subdivision map. It included Lot 23, Lot 36, and the southern end of Avenida Obregon. In the tract map, the then-owners of Tract 14496-1 stated: “We hereby certify that we are the owners of the land included within the subdivision shown hereon [and] that we are the only persons whose consent is necessary to pass a clear title to said land . . . . [¶] We hereby retain the easements indicated as ‘Private Streets’ for private use for the sole benefit of ourselves, our successors, . . . and lot owners within this tract.”
Tract 14496-1 was then conveyed to La Quinta Joint Venture, which proceeded to develop it, in accordance with the tract map, as Santa Rosa Cove. In 1982, it conveyed all of the common areas of Tract 14496-1 — including Calle Mazatlan and the southern end of Avenida Obregon — to the Association.
In 1987, Lot 24 was conveyed to Fredericks. As indicated on appendix A, there were two ways Fredericks could get to and from his property. First, he could go south on Avenida Obregon to Calle Mazatlan, then east on Calle Mazatlan to Eisenhower Drive. Second, he could go north on Avenida Obregon to Avenida Fernando, then east on Avenida Fernando to Eisenhower Drive.
In 1987, however, when Fredericks bought the house, Avenida Fernando was blocked by a gate. Accordingly, he habitually used the southern route.
B. The 1990 Litigation.
In 1990, as a condition of certain proposed development, the City of La Quinta required La Quinta Joint Venture to remove the gate from Avenida Fernando and to install a new gate across Avenida Obregon. The new gate was intended to keep hotel traffic from coming onto the Association’s property. Fredericks asked the Association to place the new gate just north of his property, but the Association decided to place it just south of his property instead, where it would block the southern route.
Fredericks therefore sued La Quinta Joint Venture, asserting an easement over Avenida Obregon and claiming that the proposed gate would interfere with his easement. The Association intervened in the action and thereby became a party.
Fredericks filed a motion for a preliminary injunction. On December 20, 1990, at the hearing on the preliminary injunction, the parties agreed to settle the action on the following terms: The gate would be built so that it could be opened with a “clicker” (i.e., a remote-control gate opener), and Fredericks would be given several clickers so that he and his guests would have “permanent electronic access” to Avenida Obregon.
No written settlement agreement was ever drafted or signed. According to Fredericks, however, as well as his then-attorney, the settlement was entered into on the record. Commissioner Richard Lee, who presided over the preliminary injunction hearing, also testified that the settlement was agreed to on the record.
As Fredericks admits, Commissioner Lee was not competent to testify about what happened at the hearing. (See Evid. Code, § 703.5.)
The City of La Quinta still had to approve the proposed change in the construction of the gate; ultimately, however, it did, and Fredericks dismissed the action. The gate was built, but it was left open until April 1991, when La Quinta Joint Venture gave Fredericks four clickers for the gate.
C. The Current Dispute.
Following the 1990 settlement, Fredericks continued to use Avenida Obregon and Calle Mazatlan to get to Eisenhower Drive. In 1991, around the same time as the gate was built on Avenida Obregon, the Association began operating a separate manned guard gate at Calle Mazatlan and Eisenhower Drive. However, the guards would wave Fredericks through. If he was expecting guests, he would call the guards, and they would let his guests in. Whenever a clicker broke or got lost, Fredericks would ask at the guard station for a new one, and the Association would provide it. Whenever the gate malfunctioned, Fredericks would tell the guards, and the Association would repair the gate.
In April 2002, Fredericks returned to his house after an absence of about four months and discovered that the Association had padlocked the gate shut. He cut the padlock off. The Association responded by repadlocking the gate and posting a security guard, who would not let Fredericks through. It also denied Fredericks access, for the first time, through the manned gate at Calle Mazatlan and Eisenhower Drive.
Fredericks was thus forced to start using the northern route. He found this “time[-]consuming, frustrating and dangerous.” The northern end of Avenida Obregon passed behind the La Quinta Hotel, where it functioned essentially as a service road. It narrowed to 20 feet; its usable width was often reduced further by parked vehicles. It was used by trucks and vans making deliveries (which sometimes double-parked, blocking the street entirely), resort jitneys, and golf carts. Guests of the hotel had to walk across it to get to tennis courts, a fitness center, and a pool. Children would sometimes ride bicycles, rollerblade, or just play in the street; in one area, a children’s playground opened onto it.
On July 30, 2006, the Association discovered that the lock on the gate had been vandalized. While it was broken, Fredericks started going through the gate again, opening it by hand and closing it behind him.
On September 11, 2006, the Association discovered that the padlock had been vandalized again. On September 29, 2006, it found that the gate had been taken off its hinges. It suspected Fredericks, because earlier that day, he had been seen tapping on the gate with a hammer.
II
PROCEDURAL BACKGROUND
In 2003, Fredericks filed this action against the Association.
In 2006, the Association filed a motion for a preliminary injunction. Fredericks responded by filing his own cross-motion for a preliminary injunction. Each side filed written objections to the evidence offered by the other. After hearing argument, the trial court took the matter under submission.
The trial court then denied the Association’s motion and granted Fredericks’s. It ordered: “[The A]ssociation is restrained from preventing reasonable access in and out of the subject property for plaintiff and his family member[s]; his guests and persons who provide services to plaintiff at his property. Reasonable access shall include the use of ‘clickers’ as well as a ‘buzzer’ system allowing plaintiff to open the gate from the house.”
It explained: “The parties have a long history regarding the issue of plaintiff’s access to this property. There was earlier litigation over this question which lead [sic] to a purported settlement. Unfortunately there is no transcript as to what if anything the parties did agree to. For the purposes of this motion the court is not considering what the agreement was based on the documents presented including the declaration of the retired judicial officer. What is clear is that from 1990 until 2002 the parties acted in a consistent manner until the defendant began to impose restrictions on plaintiff’s use of the gate. It is the court’s intention to maintain the ‘status quo ante’ until all the facts are presented to the court at an evidentiary hearing.”
It further explained: “In making this order the court determines that the plaintiff is likely to prevail in the litigation. In addition it is the court’s opinion that the equities tilt in favor of the plaintiff.”
It concluded: “Lastly the parties have raised a number of evidentiary objections. It is the court’s view that the outcome of those objections is irrelevant to the court’s ruling.”
III
DISCUSSION
A. The Trial Court’s Failure to Rule on the Association’s Evidentiary Objections.
Preliminarily, the Association contends that the trial court erred by failing to rule on its evidentiary objections.
The Association cites Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633 for the proposition that a trial court has a duty to rule on evidentiary objections. In Vineyard Springs, the court stated: “[W]hen evidentiary objections are in a proper form, a trial court must rule on the objections. [Citations.] [¶] . . . A trial court cannot decide whether a motion should be denied or granted until it has first determined what admissible evidence is in play on the motion. Moreover, when a trial court fails to rule . . ., the objections are ordinarily deemed waived on appeal, and the appellate court will consider the objected to evidence in reviewing the ruling on the motion. [Citations.] This is a bitter pill for a party who has tendered valid objections.” (Id. at pp. 642-643.)
Here, however, unlike in Vineyard Springs, the trial court expressly ruled that the outcome of the evidentiary objections was irrelevant to the motion. In other words, the trial court felt that it could decide whether the motion should be denied or granted without first determining what evidence was in play (except, of course, evidence to which the parties had not objected). There is no substantive difference between this ruling and a ruling sustaining the objections but granting the motion anyway. The trial court has no duty to rule on matters that cannot affect the substantial rights of the parties. “The law neither does nor requires idle acts.” (Civ. Code, § 3532.)
As noted, the Vineyard Springs court was concerned about the effect of the rule that, once the trial court fails to rule on objections to evidence offered in connection with a motion, the objections are deemed waived on appeal. However, there is an exception when the objecting party has pressed the trial court for a ruling. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.) The Association did press for a ruling at the hearing below. If it wanted to argue in this appeal that its objections were meritorious, it would be free to do so. Thus, there is no need to hold that the failure to rule was, in itself, error.
We also reject this contention for the related (but alternative) reason that the Association has not shown prejudice. Significantly, Vineyard Springs involved a mandate proceeding, not an appeal. Thus, it held that the trial court had failed to comply with a mandatory duty. (See Vineyard Springs Estates v. Superior Court, supra, 120 Cal.App.4th at p. 635.) In an appeal, however, the appellant must demonstrate not only error, but also that the error was prejudicial. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) The test of prejudice is whether “‘the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)
The Association has not bothered to argue that any of its objections were meritorious. Moreover, as discussed above, it has not argued that its objections, if sustained, would have made any difference to the outcome. It merely argues — and then only belatedly, in its reply brief — that it objected to almost all of the declarations that Fredericks was offering. Actually, it did not object to those declarations in their entirety; it objected only to specified parts of them. Moreover, the trial court could certainly consider the declarations and other evidence that the Association itself had introduced. The Association never distinguishes the evidence it objected to from the evidence it did not object to; it never shows that excluding the former would have made a difference. Thus, it has not shown that the claimed error requires reversal.
We conclude that the Association has not shown that the trial court’s failure to rule on its evidentiary objections constituted reversible error. Because the Association has not argued that any particular evidentiary objection was well taken, we deem any such argument waived. Hence, in the remainder of this opinion, we consider all of the evidence that was offered.
B. The Propriety of Granting the Preliminary Injunction.
1. The applicable standard of review.
“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.] . . . [¶] The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction. [Citation.]” (Butt v. State of California (1992) 4 Cal.4th 668, 677-678, quoting Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442.)
“We review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.]” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.) “A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious or patently absurd. [Citation.]” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.)
“Where the evidence before the trial court was in conflict, its factual determinations, whether express or implied, are reviewed for substantial evidence. We interpret the facts in the light most favorable to the prevailing party. [Citation.]” (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145 [Fourth Dist., Div. Two].) However, “[t]o the extent that the trial court’s assessment of likelihood of success on the merits depends on legal rather than factual questions, our review is de novo. [Citations.]” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463.)
The Association argues that a higher standard of review applies because the preliminary injunction is mandatory rather than prohibitory. It was phrased in prohibitory terms — it restrained the Association from preventing Fredericks from having reasonable access. However, it could equally have been phrased in mandatory terms — it could have ordered the Association to provide Fredericks with reasonable access.
In one respect, the injunction was ambiguous. The Association was enjoined from preventing Fredericks from having “reasonable access,” and “reasonable access” was defined as including access via clickers and buzzers. Did this require the Association to provide Fredericks with access via clickers and buzzers? Or did it simply require the Association to provide Fredericks with reasonable access, which could be (but was not required to be) provided by means of clickers or buzzers?
We therefore assume, without deciding, that the injunction was, in substance, mandatory. “‘“‘[A] preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.’” [Citation.] The granting of a mandatory injunction pending trial “‘is not permitted except in extreme cases where the right thereto is clearly established.’” [Citation.]’ [Citation.]” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493, quoting Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625, quoting Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295.) We will examine the evidence under this higher standard.
In a related contention, the Association also argues that the trial court erred because the preliminary injunction changed the status quo. “[T]he status quo . . . ‘“has been defined to mean ‘the last actual peaceable, uncontested status which preceded the pending controversy.’” [Citation.]’ [Citation.]” (14859 Moorpark Homeowner’s Assn v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1408, quoting Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court (1916) 172 Cal. 80, 87.) Thus, the relevant status quo was the status quo from 1991, when the gate was built, until 2002 — i.e., when Fredericks was able to access Avenida Obregon, using clickers. It was the Association that changed the status quo, and forced Fredericks to file this lawsuit, by padlocking the gate. The preliminary injunction did not irreversibly predetermine the merits of the action. (Cf. O’Connell v. Superior Court, supra, 141 Cal.App.4th at pp. 1472-1473.) Rather, it appropriately restored the status quo.
2. The likelihood that Fredericks would prevail on the merits.
a. The “abutter’s rights” theory.
Frederick claims that, as an owner of property abutting on Avenida Obregon, he has an easement over Avenida Obregon at least as far as Calle Mazatlan.
“[A]n owner of property abutting upon a public street has a property right in the nature of an easement in the street which is appurtenant to his abutting property and which is his private right, as distinguished from his right as a member of the public. That right has been described as an easement of ingress and egress to and from his property or, generally, the right of access over the street to and from his property . . . .” (Bacich v. Board of Control (1943) 23 Cal.2d 343, 349-350.)
“[T]he right is more extensive than the mere opportunity to go on to the street immediately in front of the property. [Citation.]” (Bacich v. Board of Control, supra, 23 Cal.2d at p. 352.) Rather, it “‘consists of the right to get into the street upon which the landowner’s property abuts and from there, in a reasonable manner, to the general system of public streets.’ [Citation.]” (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1554 [Fourth Dist., Div. Two], quoting Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, 663.) Thus, it “extends in both directions to the next intersecting street.” (Bacich,at p. 354.) “This right will not be defeated because there is other access to the property. [Citation.]” (Ratchford v. County of Sonoma (1972) 22 Cal.App.3d 1056, 1069.)
“[T]he abutting property owner’s private easement in the public street remains after the street is vacated or abandoned.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 15:69, pp. 15-229 – 15-230, fn. omitted; accord, Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 167.)
Applying these principles here, Fredericks has an easement for ingress and egress over Avenida Obregon. It extends to both the next intersecting street to the north and the next intersecting street to the south — i.e., to Calle Mazatlan. It exists regardless of whether his property is otherwise “landlocked.” Most important, Fredericks’s easement continued even after Avenida Obregon ceased to be a public street.
In its briefs, the Association raises one and only one argument to the contrary. Although it is by no means clear, as best we can understand it, it is that the recordation of the tract map to Tract 14496-1 in 1981 somehow extinguished Fredericks’s easement. The Association relies in particular on the fact that the tract map stated, “We hereby retain the easements indicated as ‘Private Streets’ for private use for the sole benefit of ourselves, our successors, . . . and lot owners within this Tract.” However, the Association cites no pertinent legal authority in support of this argument.
The then-owners of Avenida Obregon could not unilaterally wipe out Fredericks’s easement just by claiming it for themselves, even in a recorded tract map. The Association may be thinking of the general principle that a property interest is void as against a subsequent purchaser for value who lacks notice of the interest and who also records first. (Civ. Code, §§ 1107, 1213, 1214, 1217; see Maywood Mut. Water Co. No. 2 v. City of Maywood (1972) 23 Cal.App.3d 266, 272.) Purchasers after the tract map was recorded, however, down to and including the Association itself, had notice of Fredericks’s easement. Earlier deeds in the chain of title to Tract 14496-1 contained an exception for an easement over all roads. As already discussed, the vacation of Avenida Obregon could not affect a preexisting easement; thus, these earlier deeds remained effective as notice, even after the vacation was recorded. Most important, the tract map itself showed that other properties outside the tract, including Fredericks’s, abutted on Avenida Obregon; thus, it gave notice that the owners of those properties had abutter’s rights.
At oral argument, the Association argued for the first time that the trial court could not grant an injunction based on the abutter’s rights theory because Fredericks had not yet filed an amended complaint expressly asserting this theory. This argument is wrong for a bare minimum of four reasons.
First, the Association failed to raise this argument in its opening brief, or even in its reply brief. Hence, it has forfeited it for purposes of this appeal. (Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 407, fn. 6.)
Second, “[i]t is well settled . . . that variance between pleadings and proof is not a basis for reversal unless it prejudicially misleads a party. A variance must be disregarded if the issues on which the decision is actually based were fully and fairly tried. [Citations.]” (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143-144.) This rule applies not only to a trial on the merits, but also to a hearing on a motion for a preliminary injunction. (Johnson v. Tago, Inc. (1986) 188 Cal.App.3d 507, 513.) Here, the Association did not argue below that the trial court could not consider the abutter’s rights theory; instead, it responded to the theory on the merits. It cannot claim that it was misled in any way.
Third, “a variance must [be] deemed harmless where, as here, ‘“it is clear that, if a reversal were ordered, the complaint could be amended and the objectionable evidence would be perfectly proper on the retrial, with the result that the same [order] would be rendered. [Citations.]” [Citation.]’ [Citation.]” (Lewis v. Hankins (1989) 214 Cal.App.3d 195, 202, quoting Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214.)
Finally, even when the complaint wholly fails to state a cause of action, “the court can grant the injunction as long as it appears that the complaint can be amended to state a cause of action. [Citation.]” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) § 9:631.) Here, the facts shown in connection with the motion for a preliminary injunction demonstrated that the complaint could be so amended.
We therefore conclude that Fredericks showed a strong likelihood of success on his claim of an easement, on a theory of abutter’s rights, over Avenida Obregon.
b. The “1990 settlement” theory.
Frederick also claims an easement over Avenida Obregon as a result of the 1990 settlement. The Association therefore argues that any easement claimed on this theory is invalid under the statute of frauds. (See Civ. Code, § 1624, subd. (a)(3); Code Civ. Proc., § 1971.)
The statute of frauds does not apply here, however, because the 1990 settlement was entered into on the record, in open court. “[T]he statute of frauds is inapplicable to an oral settlement agreement stipulated to by the parties before the court following a judicially mandated and supervised settlement conference. The purpose of the statute of frauds is to prevent fraud and perjury as to extrajudicial agreements by requiring enforcement of the more reliable evidence of some writing signed by the party to be charged. [Citation.] However, the concern addressed by the statute of frauds is not present when, as here, a neutral court participates in the settlement process by assisting the parties to formulate the terms of the settlement. In so doing the court assures itself that the parties are being truthful and acting in good faith, and also that they each comprehend the scope of the agreement.
“In addition, application of the statute of frauds to judicially supervised settlements would effectively eliminate the elaborate settlement machinery established by the California Rules of Court, the Standards of Judicial Administration and existing case law declaring the public policy that encourages settlement of litigation. [Citation.] The statute of frauds was never intended to bar enforcement of judicially supervised settlements.” (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530, 1535; cf. Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1683 [statute of frauds applies to oral settlement agreement not entered into in court].) This is true even when the settlement agreement is enforced in a separate action, rather than on a motion under Code of Civil Procedure section 664.6. (Pietrobon v. Libarle (2006) 137 Cal.App.4th 992, 999.)
We also note that there is no way to tell whether the 1990 settlement did, in fact, convey an interest in real property without first deciding whether the claim to an easement that Fredericks was asserting in that action was meritorious. If Fredericks already had an easement, then the settlement did not convey one. Indeed, it will often be the case that any determination as to whether an agreement to settle an action concerning real property is within the statute of frauds will require relitigating the underlying action. Applying the statute of frauds under these circumstances would frustrate the very purpose of entering into a settlement agreement and further undermine the public policy in favor of settlements.
Separately and alternatively, even assuming the statute of frauds does apply, it does not invalidate the easement, because there has been part performance. “[W]here assertion of the statute of frauds would cause unconscionable injury, part performance allows specific enforcement of a contract that lacks the requisite writing. [Citation.]” (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1108.) Here, Fredericks performed by taking possession of the easement and by dismissing his lawsuit.
The Association tries to suggest that it did not perform; it notes that the clickers were supplied, not by it, but by La Quinta Joint Venture. The Association, however, performed in other ways — by giving Fredericks a new clicker whenever one was lost or broken; by repairing the gate whenever Fredericks reported that it was broken; and by letting Fredericks go through the guarded gate at Calle Mazatlan and Eisenhower Drive.
The Association also argues that the 1990 settlement merely created a license, rather than an easement. The usual distinction drawn between an easement and a license is that a license is terminable at will. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36.) “Although a license which is not terminable at will is somewhat anomalous [citation], it has been recognized. [Citations.]” (Ibid.) However, “[a]n irrevocable license . . . is for all intents and purposes the equivalent of an easement. [Citation.]” (Barnes v. Hussa (2006) 136 Cal.App.4th 1358, 1370.)
Fredericks testified that the agreement was that he and his “successors in interest” would have a “permanent” easement. In determining the terms of the 1990 settlement, however, the trial court disregarded the testimony of Fredericks and two other eyewitnesses; it relied solely on the parties’ subsequent course of conduct. Because the overall question is whether the trial court abused its discretion, we, too, consider this issue without regard to that testimony.
From Fredericks’s point of view, a revocable license was worthless and illusory. He would hardly have dismissed his 1990 lawsuit if all he had received was a privilege that the Association could revoke at any time; he evidently understood that he had received the right to go through the gate for at least as long as he owned his house. Thus, the dismissal itself was sufficient evidence that the 1990 settlement recognized an easement, rather than a license. Moreover, by dismissing his 1990 lawsuit, Fredericks gave consideration. Thus, even assuming the 1990 settlement gave rise to a mere license, that license became irrevocable. (Cooke v. Ramponi (1952) 38 Cal.2d 282, 286; Noronha v. Stewart (1988) 199 Cal.App.3d 485, 490.)
Actually, the Association makes only the somewhat qualified claim that “[t]he un-objected evidence pointed to does not state the words ‘permanent,’ ‘easement,’ ‘runs with the land’ or the like.” (Italics added, underlining omitted.)
We need not decide whether the easement arising out of the 1990 settlement runs with the land so as to benefit Fredericks’s successors in interest. Fredericks still owns the house; it was Fredericks who sought a preliminary injunction. Thus, even assuming the easement does not run with the land, Fredericks has shown a strong likelihood that he will prevail on the merits.
3. The relative interim harm to the parties.
The Association contends that the trial court erred in finding that the balance of harms favored Fredericks.
In part III.B.2, ante, we concluded that Fredericks had shown an extremely strong likelihood of prevailing on the merits, on two distinct and alternative theories. Accordingly, he was not required to show much in the way of interim harm. Nevertheless, he did show that the principal route to and from his home was south on Avenida Obregon, passing through the gate. Although he could also go north on Avenida Obregon, that route was a narrow service road, frequently blocked by traffic serving the La Quinta Hotel, and fraught with hazards such as jaywalking pedestrians and frolicking children. It is perfectly understandable that Fredericks would not want the only access to his home to be by way of an alley, and a potentially dangerous alley to boot.
The Association argues that Fredericks is merely inconvenienced. Inconvenience, however, can be sufficient harm to support a preliminary injunction. (See Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368, 1375-1376 [elderly couple expelled from country club were entitled to preliminary injunction when they “would have been forced to go elsewhere to less convenient and less desirable golf courses to play golf at greater expense”] [Fourth Dist., Div. Two].) This is particularly true here because there appears to be no harm to the Association. It claims it is harmed because the injunction will deprive its members of the benefit of a gated and secure community. Before the gate was installed, however, the Association let Fredericks use Avenida Obregon freely. Moreover, the gate was not even the Association’s idea. The City of La Quinta required it, and the evidence shows that the city was fine with Fredericks having clickers. According to the Association itself, the purpose of the gate was to keep traffic going to and from the La Quinta Hotel from using Avenida Obregon. It appears to have done exactly that. Fredericks continued to use Avenida Obregon from 1991 through 2001, evidently without causing any security breaches.
The “facts” on which the Association relies are cited exclusively to its own memorandum of points and authorities in support of its motion for a preliminary injunction. However, “memoranda of points and authorities are not evidence . . . .” (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578.) “The only evidence the trial court should have considered and which we may consider here is that contained in the declarations filed in support of and in opposition to the motion.” (Ibid.) We could reject the Association’s claim of harm for this reason alone.
In fact, the Association has never satisfactorily explained why it suddenly decided to padlock the gate and to deny Fredericks access to Avenida Obregon. It claims that Fredericks had “abuse[d] this privilege” by “host[ing] weddings and other commercial events.” However, it made no such claim below, and there is absolutely no evidence to support the claim. It did claim below that some of Fredericks’s guests had parked on its property, but Fredericks testified to the contrary, and once again, the Association did not produce any evidence to support its claim. Finally, the Association claims that Fredericks had “bump[ed] into [the gate] with his vehicles,” but the cited portions of the record do not show this. Even if this were true, a simple car accident, not likely to be repeated, would not support the denial of the injunction.
We therefore conclude that the balance of harms clearly favored Fredericks. Accordingly, we also conclude that granting the preliminary injunction was not an abuse of discretion.
IV
DISPOSITION
The order appealed from is affirmed. Fredericks is awarded costs on appeal against the Association.
We concur: HOLLENHORST, Acting P.J., GAUT, J.
APPENDIX A
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APPENDIX B
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The Association, however, has waived this particular objection. First, it has not established that it objected to Commissioner Lee’s declaration on this ground below. Apparently it did file some written objections to Commissioner Lee’s declaration; however, the superior court clerk failed to include them in the clerk’s transcript, and the Association then failed to ask that the clerk’s transcript be corrected. (See Cal. Rules of Court, rule 8.155(b).) Second, in this appeal, the Association does not argue that the declaration should have been excluded. (See part III.A, post.)
In any event, even absent Commissioner Lee’s testimony, the testimony of Fredericks and his then-counsel was sufficient to establish that the settlement was, in fact, entered into on the record. The Association has never offered any evidence to the contrary.
The parties have not raised ambiguity as an issue on appeal; thus, presumably it has not posed any practical problems for them. Should it do so in the future, they are free to ask the trial court to clarify or modify the injunction.
Fredericks has no duty to “point to” any evidence supporting his position. (See In re Marriage of Davies (1983) 143 Cal.App.3d 851, 854 [“since the appellant has the affirmative burden to show error whether or not the respondent’s brief has been filed, the respondent’s failure to file does not require an automatic reversal”].) The Association is the appellant; as such, it has the duty to set forth in its brief all of the material evidence, and then to explain why that evidence is insufficient. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
As discussed in part III.A, ante, the Association has waived its evidentiary objections for purposes of this appeal. We note, however, that it was the Association that introduced the transcript of Fredericks’s deposition, in which he testified, among other things, that the 1990 settlement specified that he was to have a “permanent” easement. Thus, “un-objected evidence” supported Fredericks’s easement claim.