Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. SC085908, Joseph S. Biderman, Judge.
Sussman Shank LLP and John A. Schwimmer; Law Offices of Gary Freedman and Gary Freedman for Plaintiff and Appellant Michael Geliebter.
The Law Offices of Robin Vialla, Robin S. Vialla and Paul B. Donzis; Cox, Castle & Nicholson, Kenneth B. Bley and James R. Repking for Defendants and Respondents Roger Donenfeld and Jamie Donenfeld.
Turner, Aubert & Friedman, Rubin Turner and Jonathan Deer for Defendant and Respondent Tracy Price.
PERLUSS, P. J.
Michael Geliebter appeals from the judgment entered after the trial court granted summary judgment in favor of his neighbors, Roger Donenfeld and Jamie Donenfeld, and the previous owner and developer of Geliebter’s property, Tracy Price, in this action for trespass, nuisance and slander of title. We affirm.
Because there is no reason to distinguish between actions taken by Roger Donenfeld individually and those taken jointly by Roger Donenfeld and Jamie Donenfeld, for convenience and clarity the Donenfelds will be referred to in the singular throughout the opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Recording of the Easement and Placement of the Road
In 1963 Price and his partner, Alan Chudacoff, jointly purchased for residential development two parcels in the Bel Air area of Los Angeles. For purposes of obtaining permits and loans, Price became the sole owner of the parcel ultimately purchased by Geliebter in August 2003, and Chudacoff and his wife the parcel purchased by Donenfeld in February 1993. Because the parcels were located on a steep hillside and not accessible from the public road, on August 15, 1963 the Chudacoffs recorded a deed granting Price a 22-foot-wide easement across the Donenfeld property “for ingress and egress, for vehicular and passenger traffic, and for all utility purposes,” which described the easement’s boundaries in metes and bounds. At that time, however, neither Price nor Chudacoff knew exactly where they would have to place the road to accommodate the land conditions.
Working with the City of Los Angeles, Price determined the best placement for the road did not fall completely within the easement, which included the edge of a steep hill. The location was shifted to the southwest with the greatest deviation from the easement as recorded at the entrance to the Geliebter property. Price graded and paved the road, which was 13 feet wide, put in utilities and installed a retaining wall to contain the abutting hillside. Pursuant to a condition imposed by the City for approval of the sites for development, on November 20, 1964 Price and Chudacoff also recorded an agreement, binding on their heirs, successors and assigns, stating they would “maintain free and clear of obstructions and in a safe condition for vehicular use at all times the road easements in, over and across all that certain parcel of land described as follows, to wit:” A document including the legal description of the recorded easement was attached to the non-obstruction agreement notwithstanding the road had been built mostly outside the easement’s boundaries. Price and Chudacoff built one home on each parcel, which they sold.
Apparently the road was widened to 15 feet 7 inches at its narrowest point, but it is not clear from the record when this occurred.
The attached document is a single page. The top half of the document recites a legal description that only partially mirrors the legal description for the recorded easement. The bottom half of the document recites the exact legal description as contained in the recorded easement. Although the parties do not explain the meaning or significance of the legal description that does not mirror the recorded easement, it appears from the record the easement crosses two parcels, only one of which was described in the recorded easement.
2. The Dispute Between Geliebter and Donenfeld over the Easement
In 2002 or 2003 Donenfeld retained Price to assist him in building an additional parking area on a portion of the hillside within the recorded easement that had previously been determined too steep to build the road. In March 2003 Donenfeld advised the previous owner of the Geliebter property he intended to excavate the hillside “located 8 ft away from our common property line, for the purpose of Parking Motor Court.” A permit was issued on April 1, 2003, which described the work to be performed as “construct retaining walls at the rear portion of the lot to widen the driveway from 15’ to 21’ and to provide space of motor court.” Excavation began in late June 2003, and a new retaining wall was constructed in August 2003.
Geliebter saw the excavation when he purchased his property in July 2003; however, he did not object because the previous owner had told him the purpose was to widen the road, which Geliebter believed would enhance access to his property. After Donenfeld constructed a rebar base close to the road, Geliebter hired a surveyor, who determined the rebar encroached into the recorded easement. Notwithstanding Geliebter had advised Donenfeld of the encroachment, Donenfeld poured a raised, nine inch concrete pad over the rebar, which according to Geliebter, interfered with access to his property even though it did not encroach onto the road itself. Although Donenfeld’s notice of excavation to Geliebter’s predecessor and the permit he had obtained referred only to construction of a motor court, apparently Donenfeld had begun construction of a garage and an accessory dwelling unit, known as a “granny flat.”
On June 15, 2005 Geliebter commenced this action against Donenfeld. After the complaint was filed, at Donenfeld’s request Price submitted for recording a modification to the recorded easement, attempting to conform the legal description to the actual location of the road. On September 15, 2005 Geliebter filed a first amended complaint asserting claims for willful trespass, negligent trespass, nuisance and declaratory relief against Donenfeld and slander of title and declaratory relief against Price. Geliebter’s action, in essence, asserts that he has a right to unrestricted ingress and egress over both the actual road, which lies in substantial part outside the bounds of the recorded easement, and the recorded easement and that Donenfeld’s construction project impermissibly intrudes on those rights.
3. The Order Granting Summary Judgment in Favor of Donenfeld and Price
On August 15, 2006 the trial court granted summary judgment in favor of Donenfeld and Price. The court found, “Through approximately 40 years of use and acquiescence, the parties’ respective predecessors in interest relocated the 1963 (granted) easement to the existing, paved roadway. [Citations.] [¶] Plaintiff, as a subsequent purchaser, took his property subject to his predecessor’s acquiescence in the modification of the easement if he had constructive or inquiry notice of the relocated easement. [Citation.] [¶] Plaintiff has failed to raise a triable issue of material fact as to whether he was on constructive notice that the paved roadway traveled a different course than the 1963 easement; it is beyond dispute that the 1963 easement was recorded long before [Geliebter] purchased the dominant tenement. Similarly, it is beyond dispute that [a] 1997 survey commissioned by the Donenfelds was part of the record title available to [Geliebter] prior to purchasing his property; as [Geliebter] himself admits this survey ‘reflects . . . that the existing road does not conform to the Easement of Record.’”
The survey, which was recorded at Donenfeld’s request, was produced by Geliebter in response to the Donenfeld’s request for production of documents.
The trial court rejected Geliebter’s argument the non-obstruction agreement created an obligation independent of the recorded easement, not subject to the common law rules related to the relocation or abandonment of easements, to maintain the full width of the recorded easement free of obstructions: “When the predecessors relocated the deeded easement, the rights attached to that easement, including those set forth in the Non-Obstruction Agreement, moved with it. [Citation.] Plaintiff does not contend that the Donenfelds have obstructed the paved roadway, let alone produced evidence raising a triable issue of material fact as to this issue.”
DISCUSSION
1. Standard of Review
We review the trial court’s grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc., § 437c, subd. (c).)
When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. Alternatively, the defendant may present evidence to “show[] that one or more elements of the cause of action . . . cannot be established” by the plaintiff. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 853.) “[T]he defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) Once the defendant’s initial burden has been met, the burden shifts to the plaintiff to demonstrate, by reference to specific facts not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action or defense. (Code Civ. Proc., § 437, subd. (p)(2); Aguilar,at p. 849.)
A defendant may also move for summary judgment on the ground there is an affirmative defense to the action. (Code Civ. Proc., § 437c, subds. (o)(2), (p)(2).) Once the defendant meets the burden of establishing all the elements of the affirmative defense, the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 [once defendant establishes the existence of an affirmative defense, burden on summary judgment shifts to the plaintiff to produce evidence establishing a triable issue of material fact refuting the defense]; Consumer Cause, Inc. v SmileCare (2001) 91 Cal.App.4th 454, 468-469; id. at p. 486 (dis. opn. of Vogel (Miriam A.), J.) [“[W]hen a defendant moves for summary judgment based upon an affirmative defense, the defendant has the initial burden of production -- that is, to make a prima facie showing in support of its affirmative defense . . . . Once that is done, the burden shifts to the plaintiff to present evidence sufficient to create a triable issue of fact as to the affirmative defense relied on by the defendant”]; see also Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830.)
On review of an order granting summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing party’s evidence and strictly scrutinizing the moving party’s. (O’Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
2. The Trial Court Properly Granted Summary Judgment in Favor of Donenfeld
a. The non-obstruction agreement does not create an obligation to keep the recorded easement, which was relocated by consent, free of obstructions
An easement is a right, less than the right of ownership, to use another’s property for a specific and limited purpose or activity. (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) The conveyance of a roadway easement grants a right of ingress and egress and a right of unobstructed passage to the holder of the easement. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703 (Scruby).) “A roadway easement does not include the right to use the easement for any other purpose.” (Ibid.)
“Parties may change the location of an easement by mutual consent, which may be implied from use and acquiescence. [Citations.] When the parties consent to relocation, their ‘rights are not affected by the change, but attach to the new location.’” (Red Mountain, LLC v. Fallbrook Pub. Utility Dist. (2006) 143 Cal.App.4th 333, 352; Johnstone v. Bettencourt (1961) 195 Cal.App.2d 538, 541 [plaintiffs impliedly consented to relocation of recorded easement by using traveled roadway; “no road has ever been established over the record course because of a steep embankment along said course, making it impractical, as well as uneconomical, to construct such a road”].) While the question whether parties have impliedly consented to relocate an easement is a question of fact (Red Mountain, LLC, at p. 352), as with all questions of fact, it “can become an issue of law when reasonable minds can draw only one conclusion from the evidence” (Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 433).
Geliebter does not contest the trial court’s determination the road was relocated by consent and that, absent the non-obstruction agreement, the court properly determined Donenfeld’s construction project did not infringe on Geliebter’s right of ingress and egress to his property. Rather, Geliebter -- citing rules of contract interpretation -- contends the non-obstruction agreement, which was recorded after Price had determined the actual location for the road, utilized the same legal description as the recorded easement and thus imposed a separate obligation, to which the common law rules of relocation do not apply, to maintain the entire width of the recorded easement free of obstructions. Although framed by Geliebter as a triable issue of material fact, contract interpretation is a question of law unless extrinsic evidence introduced to resolve an ambiguity is in conflict. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165; see Parson v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [“interpretation of a written instrument, even though it involves what might properly be called questions of fact . . . is essentially a judicial function to be exercised according to the generally accepted canons of interpretation”].) Because Geliebter has not identified any conflicting extrinsic evidence regarding the parties’ intent, we independently construe the writing. (Winet, at p. 1165; Parson, at p. 866; see Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 549.)
“The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the ‘mutual intention’ of the parties. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id. § 1639.)’” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.) We consider the document as a whole, not just an individual clause (Civ. Code, § 1641), and interpret the words in accordance with their “ordinary and popular sense” unless a different meaning was mutually intended, with the aim of avoiding absurd results. (Civ. Code, § 1644; Transamerica Ins. Co. v. Sayble (1987) 193 Cal.App.3d 1562, 1566.) “Extrinsic evidence is ‘admissible to interpret the instrument, but not to give it a meaning to which it is not reasonably susceptible’ . . . .” (Parson v. Bristol Development Co., supra, 62 Cal.2d at p. 865.)
The non-obstruction agreement states the “road easements” will be maintained “free and clear of obstructions and in a safe condition for vehicular use at all times.” Although the legal description used to describe the “road easements” does not correspond to the location of the road, it is clear from the undisputed evidence Price and Chudacoff intended that only the actual road used for vehicular access would be maintained in a safe and usable condition. The agreement was executed to satisfy the City’s condition of approval “[t]hat the owners of the property record an agreement to the effect that they will maintain the private street free and clear of obstructions and in a safe condition for vehicular use at all times.” (Italics added.) The City, in turn, was obviously concerned only with ensuring construction and maintenance of an adequate and safe private road to the properties, which were not accessible by a public road. The letter from the City approving the parcels included other conditions regarding the road, such as widening it to 16 feet along its entire length, grading it with satisfactory side slopes, improving it with suitable surfacing and providing adequate drainage control. Indeed, at the time the non-obstruction agreement was recorded, the legal description of the easement included portions of land occupied by a retaining wall and vegetation, clearly not used or usable by vehicles, that could not be maintained free and clear of obstructions.
Price stated in his declaration, “After I completed the private dedicated roadway, the city required me to record an ‘Agreement’ to maintain the roadway which would also bind my heirs and assigns. At the time I recorded the agreement, I understood it to require me, and thereafter future owners of the parcel, to maintain the existing private dedicated roadway . . ., not to create any new or different roadway. It was merely a maintenance agreement so the road would not fall into disrepair.”
Whether Price in fact widened the road to 16 feet to satisfy the City’s condition is not relevant to resolution of the issues presented on appeal.
Donenfeld’s knowledge the recorded easement and non-obstruction agreement did not reflect the actual location of the road and his subsequent failure to correct the documents’ legal descriptions are not inconsistent with Price and Chudacoff’s intent the non-obstruction agreement would apply only to the road as constructed and does not, as Geliebter contends, create a triable issue of fact as to the proper interpretation of the agreement.
Interpreting the non-obstruction agreement to apply only to the actual road does not, as Geliebter contends, render the agreement meaningless, adding nothing to the rights already existing in the recorded easement. The easement merely granted Geliebter’s predecessors in interest a right to use a road easement over the Donenfeld property for ingress and egress. The non-obstruction agreement imposed an affirmative obligation on owners of both parcels to maintain the road free and clear of obstructions and in a safe condition, a function the City would have performed if the street were not private, in order to ensure the parcels’ accessibility in perpetuity.
The City had contemplated the possibility of acquiring the road for public purposes. An additional condition for approval of the properties as legal building sites imposed by the City was “[t]hat the owners of the property record an agreement to the effect that they will join in any future proposed dedication [of the private road] as a public street to the extent of their interest therein, and that any subsequent sales of the property will be conditioned upon said agreement.”
b. Geliebter does not have an absolute right to enjoy all the land encompassed by the recorded easement
Relying on Ballard v. Titus (1910) 157 Cal. 673 (Ballard), Geliebter contends the owner of an easement has an absolute right to enjoy the full scope of an easement that has a specifically described location. (Id. at p. 681 [“[w]here the width of this mere right of way is expressly specified, the owner may have the absolute right to use to the limits of the specified width even though the result be to give him a wider way than is necessary”].) In Ballard the plaintiff had reserved “a right of way thirty feet in width” over 13 acres of land subsequently conveyed to the defendant, a hotel company, but the precise location of the right of way was not specified. (Id. at p. 676.) The plaintiff brought an action seeking to place the right of way in a location that would have materially interfered with the hotel’s use of the property and, in order to construct a 30-foot-wide road, would have required use of a 44-foot-wide strip of land. (Id. at pp. 676-677, 681.) The Court held the route proposed by the plaintiff would impose an unreasonable burden on the hotel company’s land and it was proper for the trial court, acting in equity, to locate the right of way along a more reasonable route. (Id. at p. 683.)
The reservation was described as, “‘Save and excepting therefrom a right of way thirty feet in width, beginning at the old Ballard bridge on the Old Fish Ranch Road, said bridge being across Harwood Creek, and leading thence over said above described tract of land to the remaining land of said Maria Virginia Ballard, to the rear and east of the land hereby conveyed.’” (Ballard, supra, 157 Cal. at p. 676.)
The Court also held, using the language quoted by Geliebter, that while the plaintiff might be entitled to use the full 30 feet granted to construct a road, she was not entitled to use as much of the hotel’s property as necessary to construct a 30-foot-wide road. “The words of the reservation were ‘a right of way thirty feet in width.’ These words did not necessarily imply a ‘road’ or ‘roadway’ thirty feet in width . . . . [W]e have found no authority to the effect that such a grant or reservation, in the absence of language from which such an intent may be inferred, authorizes the appropriation of land lying beyond the specified width.” (Ballard, supra, 157 Cal. at p. 682.)
The holding of Ballard concerns the right of a court sitting in equity to place an unlocated right of way when the owner of the servient estate fails to designate a reasonable location and the parties cannot otherwise agree -- an issue not presented by the case at bar. In reaching its decision to affirm the trial court’s action, the Ballard Court also looked to the purpose of the reserved right of way, as reflected in the actual language used in the title documents, and concluded the plaintiff was not entitled to construct a road in a manner that expanded her rights over the hotel company’s property beyond what was set forth in those documents -- a conclusion that plainly does not support Geliebter’s attempt to disregard the parties’ intent in entering the non-obstruction agreement in order to enlarge his right of way over Donenfeld’s property by grafting the original legal description of the easement onto the actual road used without objection for 40 years.
The reservation or easement at issue in Ballard was a “floating easement” of a specific width that the parties were seeking to locate. (See Ballard, supra, 157 Cal. at p. 683 [“case before us is simply one where the parties have been unable to agree upon a reasonable route, in which event the location may be determined in equity”]; see generally City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 541, fn. 1 [floating easement “when created, is not limited to any specific area on the servient tenement”]; 6 Miller & Starr, Cal. Real Estate (3d ed. 2006) § 15:50, pp. 15-168 to 15-169.) Here, in contrast, the easement was defined in metes and bounds, which the undisputed facts demonstrated had been relocated with the implied consent of Geliebter’s and Donenfeld’s predecessors without objection that the actual road was not as wide as the recorded easement.
Geliebter’s reliance on Tarr v. Watkins (1960) 180 Cal.App.2d 362, 366 is similarly misplaced. The issue in that case was not whether an easement had been relocated by implied consent, but whether the plaintiff, over the defendant’s objection, could relocate a 15-foot-wide easement on her property that proceeded in a straight line to a location that would have resulted in a mostly 10-foot-wide easement with three sharp turns. Although reciting the language from Ballard concerning an easement holder’s right “to use the land to the limits of the defined width,” the issue of width was not dispositive: “But aside from the matter of the width of the area embraced within the easement, an examination of the diagram shows that, as a matter of law, the proposed relocation would constitute a substantial change.” (Id. at p. 366.) Such a substantial change could only occur with the parties’ consent. (Id. at p. 365.) Here, the undisputed evidence established the parties’ consent was given to the relocated easement.
Indeed, several courts have rejected the categorical proposition, advanced by Geliebter, that the owner of an easement of a specified width has an absolute right to use the full width of the easement. “It is equally well settled . . . that ‘[t]he specification of width and location of surface rights-of-way does not always determine the extent of the burden imposed on the servient land.’” (Scruby, supra, 37 Cal.App.4th at p. 704; accord Heath v. Kettenhofen (1965) 236 Cal.App.2d 197, 204.) “[T]hat burden can properly be measured by the use and purpose for which the easement has been granted.” (Scruby, at p. 705.) “The owner of the servient estate may make continued use of the area the easement covers so long as the use does not ‘interfere unreasonably’ with the easement’s purpose.” (Id. at pp. 702-703.)
c. Geliebter has failed to demonstrate there is a triable issue of fact he did not have constructive notice the easement had been relocated
Geliebter contends he believed he was acquiring a 22-foot-wide easement for ingress and egress and any change in the recorded easement is not binding on him, as a bona fide purchaser of the property, because it was not reflected in the public records. “It is well established that a bona fide purchaser for value who acquires his interest in real property without notice of another’s asserted rights in the property takes the property free of such unknown rights.” (Hochstein v. Romero (1990) 219 Cal.App.3d 447, 451.) “‘The absence of notice is an essential requirement in order that one may be regarded as a bona fide purchaser.’” (Gates Rubber Co. v. Ulman (1989) 214 Cal.App.3d 356, 364.) Notice can be actual or constructive (id. at p. 364), and may be implied from circumstances, including “‘“open, notorious, exclusive and visible”’” possession of land that is inconsistent with the record title. (Id.at p. 366.) As Civil Code section 19 provides, “Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact.” Failure to make a reasonable inquiry deprives the purchaser of bona fide purchaser status. (First Fidelity Thrift & Loan Assn. v. Alliance Bank (1998) 60 Cal.App.4th 1433, 1445 [“inquiry legally required . . . is only a reasonable inquiry, not an exhaustive one”]; Manig v. Bachman (1954) 127 Cal.App.2d 216, 222 [“where a person who is a stranger to the record title of the vendor is in possession, the purchaser is under a duty to make inquiry of such stranger’s rights, and failure to do so deprives him of the status of bona fide purchaser”].)
Based upon the undisputed facts in the record Geliebter had actual notice of circumstances sufficient to require him to inquire further. If he had reasonably investigated the situation, he would have discovered (to the extent he did not already know) the recorded easement had been relocated and the non-obstruction agreement did not create a separate property right in the area described in the legal description.
Geliebter does not contend he did not review the 1997 recorded survey, which he produced in response to Donenfeld’s request for production of documents, before he purchased his property. Rather, he contends the fact the survey reflected the continuing existence of the recorded easement even though it was in a different location than the road supports his view the recorded easement and the related non-obstruction agreement were separate and distinct from the road itself. Geliebter’s erroneous conclusion regarding the legal significance of the facts does not entitle him to bona fide purchaser status: A party who has knowledge of facts is also charged with knowledge of the legal significance of those facts. (See Triple A Management Co., Inc. v. Frisone (1999) 69 Cal.App.4th 520, 539 [based upon facts “a reasonable and prudent lender would have inquired about the exact nature of the security interest”]; see generally 5 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 11:75, p. 189 [stating rule].) That the actual location of the road, as confirmed by the survey, was inconsistent with the legal description of the recorded easement and Geliebter’s own belief the road was not 22 feet wide because it did look as if it could accommodate two cars passing were sufficient to trigger a duty to inquire of Donenfeld, the owner of the property, as to the status of the easement. (See Pacific Gas & Electric Co. v. Minnette (1953) 115 Cal.App.2d 698, 705-706 [purchaser had notice of visible easements notwithstanding recorded grants of easements allegedly contained erroneous description of their location; “inquiry of the possessor would certainly have disclosed that the [possessor] was in possession of the easements and claiming under the recorded grants, which on being read would have disclosed everything of which the appellants here claim to have been ignorant”]; Ocean Shore R. R. Co. v. Spring Valley W. Co. (1933) 218 Cal. 86, 89 [“if anything apprises a purchaser or incumbrancer that a particular person claims the property, or an interest in it, the former must pursue that notice to its source, and that, failing to do so, he will be charged with all he would have learned had he pursued and investigated the matter to the full extent [to] which it led”].) The existence of the non-obstruction agreement, which like the easement, referred to the easement as “for ingress and egress, for vehicular and passenger traffic” did not relieve Geliebter of this duty.
3. Geliebter Has Forfeited His Argument the Trial Court Improperly Granted Summary Judgment in Favor of Price
In his opening brief on appeal Geliebter failed to proffer any argument whatsoever as to why the trial court erred in granting Price’s motion for summary judgment on Geliebter’s claims against him for slander of title and declaratory relief. In response to Price’s opposition brief identifying this failure, Geliebter contends the triable issues of fact he identified in connection with the claims against Donenfeld also warrant reversal of summary judgment in favor of Price and Price failed to demonstrate that Geliebter could not establish pecuniary harm, an element of slander of title. To the extent Geliebter’s claims against Price could remain in light of our affirmance of summary judgment in favor of Donenfeld, Geliebter has forfeited any argument the trial court erred in granting summary judgment in favor of Price. (See, e.g., Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“[o]bvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant”]; Reyes v. Kosha (1998) 65 Cal.App.4th 466, fn. 6 [“[a]lthough our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [appellant’s] brief”].)
DISPOSITION
The judgment is affirmed. Roger Donenfeld, Jamie Donenfeld and Tracy Price are to recover their costs on appeal.
We concur: WOODS, J., ZELON, J.