Opinion
B227152
12-20-2011
HARRY S. KANTER, Respondent, v. CATHRYN CONROY KANTER, Appellant.
Hersh, Mannis & Bogen and Joseph Mannis; and Edward J. Horowitz for Appellant. Kaplan & Simon, Mark Vincent Kaplan, James M. Simon and Anthony Ukran for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SD025289)
APPEAL from a judgment of the Superior Court of Los Angeles County, David J. Cowan, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified.
Hersh, Mannis & Bogen and Joseph Mannis; and Edward J. Horowitz for Appellant.
Kaplan & Simon, Mark Vincent Kaplan, James M. Simon and Anthony Ukran for Respondent.
Cathryn Conroy Kanter (Conroy) appeals from an order of the trial court issued pursuant to an Order to Show Cause (OSC) sought by her former husband, Henry Kanter (Henry). Conroy contends that the trial court erred by including two provisions in the order because Harry did not request them and she did not receive adequate notice that they might be imposed. We conclude that Conroy received adequate notice of the provision regarding a security code, but not of the provision regarding the costs of a water meter and pipe. We therefore order the provision ordering Conroy to split the costs of the water meter and pipe to be stricken and affirm in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Conroy and Henry married in 1993 and had two children. Harry filed a petition for dissolution of marriage in 2008, and the parties stipulated to a judgment of dissolution that was filed on September 2, 2009.
In 1996, Harry purchased a residence located on a 22-acre parcel of property at 503 Vera Canyon Drive, Malibu, California (503 property), where the family lived. Harry's parents purchased the residence on an adjacent 44-acre parcel at 505 Vera Canyon Drive (505 property) and transferred the property into an irrevocable trust, of which Harry is the sole beneficiary. In 2007, Harry moved out of the 503 property and into the 505 property.
Access to the 505 property was via the driveway of the 503 property. A gate at the entrance of the driveway provides access to both properties and requires a security code for entry. There is an access road that leads directly to the 505 property from Kanan Dume Road but, according to Harry, this road is difficult to navigate and was intended only as an emergency exit road in case of fire.
Pursuant to the stipulated judgment, Conroy received title to the 503 property, "subject to [her] acknowledgment of the existing easements including, without limitation, easements of record and judicial decree and that there are easements to provide ingress and egress for the benefit of [the 505 property], and for water, power, utilities, sewer, etc." The judgment further stipulated that "[t]he parties shall cooperate and shall use reasonable and good faith efforts to relocate that portion of the driveway shared by 503 and 505, which runs contiguous along the side elevation of the 503 residence structure, if possible, to a location further away from the 503 Vera residence. The parties shall cooperate to execute any and all documents necessary or desirable to perfect the aforementioned easements/permits. The Court, through its family law department, shall reserve jurisdiction to resolve any disputes regarding the aforementioned easements/permits. Any shared utilities of the properties shall be paid by the owners of each property pro rata based upon usage. The parties shall cooperate to have separate billings issued for any shared utilities and to install separate meters."
Conroy lived in the 503 property with the couple's two children. Pursuant to the stipulated judgment, Harry was responsible for paying off the existing $760,000 mortgage on the 503 property. Harry received all interest in the 505 property pursuant to the stipulated judgment.
On November 4, 2009, Harry's counsel sent Conroy's counsel a fax, indicating that Harry would appear in court on November 6, 2009, to apply ex parte for an OSC. According to Harry's declaration filed in support of the OSC, Conroy changed the security code for the driveway gate without notifying him and failed to provide him with the new code. Harry also stated that Conroy told the pool man for the 505 property and Oscar Hernandez, the handyman for the 505 property, that they were not allowed to use the shared driveway and instead needed to use the access road.
Conroy also shut off the water line to the 505 property several times, claiming that Harry was not contributing to payment of the water bill. Harry stated that he had asked Conroy numerous times for a copy of the joint water bill for the two properties in order to determine how to divide it. When Conroy sent him the bill on October 29, 2009, Harry immediately paid half of it.
Harry also stated that he contacted the Las Virgenes Municipal Water District (Water District) to install a separate water meter for the 505 property, as required by the stipulated judgment. He paid $13,863 for the installation of the new meter and was told that the best place to install it would be next to the existing meter for the 503 property.
Harry learned that Conroy told the Water District they were not authorized to come onto the 503 property to install the new water meter. The Water District refused to install the meter without Conroy's written authorization, which she refused to provide.
Harry stated that he had investigated the possibility of moving the driveway further away from the 503 property, as contemplated by the parties in the stipulated judgment, but that would involve destroying the pool.
Harry requested two orders pending a hearing: "1. [Conroy] shall be restrained from prohibiting persons from accessing [the 505 property] and shall not change the access code without first providing [Harry] with the new code number; and [¶] 2. [Conroy] shall be restrained from shutting off the water line to the 505 property." In addition, Henry requested an order shortening the time for a hearing on two other orders: "1. [Conroy] shall cooperate with whatever work is necessary and shall allow access to [the 503 property] to install a water meter and pipe supply to [the 505 property] . . . and shall provide her written consent to the Las Virgenes Municipal Water District that they are authorized to access the 503 property to install the meter; and [¶] 2. [Conroy] shall execute a grant of easement for a 40-feet-wide easement on [the 503 property] over the shared driveway for ingress and egress for [the 505 property] and a grant of easement for utilities to be plotted separately."
On November 6, 2009, the parties filed a stipulation and order, pending the hearing on Harry's application for an OSC. The parties stipulated to the following: "1. [Conroy] shall not prohibit persons from accessing [the 505 property] via the shared driveway for the . . . properties on reasonable notice and shall cooperate and provide access to [Harry's] surveyors and engineers to inspect and survey. [Conroy] shall forthwith provide to [Harry] the current access code to the gate to that driveway and shall not change the code without first providing [Harry] with the new code number; [¶] 2. [Conroy] shall leave on and shall not shut off the water line to the 505 property, and the parties shall equally split the water bill for 503 and 505; and [¶] 3. Oscar Hernandez shall not use the shared driveway and shall use the back road off of Kanan to access the 505 property."
On November 25, 2009, Conroy filed a response to Harry's request for an OSC. Conroy asked the court to deny Harry's request for an easement for ingress and egress and for utilities. She further asked the court to continue the hearing on Harry's request to restrain her from prohibiting persons from accessing the 505 property and from changing the gate security code. She stated that the parties had resolved the issues of shutting off the water and providing access for installation of a water meter.
In Conroy's declaration attached to her response, she stated that the 40-foot wide easement sought by Harry was a new easement, and she had stipulated only to acknowledge existing easements. On November 18, 2009, Conroy's attorney gave Harry a copy of an easement recorded in 1990, providing for a 15 to 20 foot wide easement over the 503 property's driveway for the benefit of the 505 property.
Conroy had no objection to giving Harry the security code to the gate, but she did not want him to give it to his friends and workmen because free access by others compromised her and her children's safety. She and Harry were discussing how to relocate the driveway further from her house, so she requested more time to explore that possibility before she was required to give the security code out. If the driveway could not be moved, she sought an agreement with Harry as to the usage of the security code. According to Conroy, the issues regarding water and a water meter had been resolved, and she was willing to sign a stipulation incorporating their agreement.
Harry filed a reply, altering his request for relief because of the discovery of the 1990 easement. He did not dispute the validity of the 1990 easement.
Harry now sought the following: "1. Conroy shall not prohibit or interfere with persons accessing the 505 property via the gated and shared driveway for the 503 and the 505 properties; [¶] 2. Conroy shall not change the access code to the gate to the shared driveway without first providing the new code to Harry; [¶] 3. Conroy shall leave on and shall not shut off the water to the 505 property and the parties shall split and equally pay the water bill for 503 and 505 until a separate meter and water line are installed for the 505 property; [¶] 4. Conroy shall cooperate with whatever work is necessary or desirable and shall allow access to the 503 property to install a separate water meter and pipe supply line for 505. . . . Conroy shall execute whatever written authorization is necessary or desirable to provide the [Water District] access to the 503 property to install the meter. . . . Conroy shall cooperate and provide access to 503 to the [Water District] and to Harry's surveyors, engineers and contractors to inspect, survey and install the new water meter and pipe supply line for 505 and Conroy shall be provided reasonable notice of the dates required for access to 503 to perform such work. [¶] 5. The parties shall execute a grant of easement for the water meter and line as described above and for other utilities as provided in the Judgment to be plotted separately."
The court held a hearing on December 11, 2009. At the hearing, Harry's counsel indicated that Harry wanted to lease out the 505 property, so his primary concern was Conroy's interference with the use of the security gate. Conroy's counsel emphasized Conroy's desire to move the driveway away from her house in order to ensure her privacy, and he explained that the person Conroy did not want to have access to the code was Hernandez because he had threatened her before. The court recommended that Conroy seek a restraining order against Hernandez if she wished and added a paragraph to that effect in the order.
The parties then addressed the issues of a water meter and separate water line for the 505 property. According to Conroy, the 505 property obtained its water from a well and did not have an easement for water, although the Water District did have an easement over the 503 property. After further discussion, the court deferred ruling on the water issues in order to allow further briefing on whether there was an existing water easement and scheduled another hearing. The court entered interim orders requiring Conroy not to shut off the water to the 505 property, not to interfere with access to the driveway, and not to change the security code to the gate, and requiring her to send the water bill to Harry so they could split it equally.
The parties filed supplemental pleadings regarding the reserved issues. Conroy filed a declaration, reiterating her concern about the privacy and safety of her and her children if Harry's visitors and workmen were given free access to the driveway and security gate. Conroy also raised the question of whether any existing easements had been extinguished by the doctrine of merger because both properties were owned by Harry.
Harry asked the court to make the following orders regarding the water easement: "Within 10 days of written notice from [Harry] to [Conroy], (a) [Conroy] shall cooperate with all work reasonably necessary, and shall allow access to the 503 property, to install a separate water meter and water supply line for the 505 property as depicted on the diagram attached . . . ; (b) [Conroy] shall execute the written authorizations reasonably requested by the [Water District] to access the 503 property to install the water meter; (c) [Conroy] shall cooperate and provide access to the 503 property to the [Water District] and to [Harry's] surveyors, engineers and contractors to inspect, survey and install the new water meter and water supply line for the 505 property, and [Conroy] shall be provided reasonable notice of the dates required for access to the 503 property to perform such work; and (d) [Conroy] shall execute a grant of easement for the water meter and water supply line as described above. [¶] 2. Any new water meter and water supply line installed on the 503 Property to provide municipal water service to the 505 Property shall be installed: (i) in compliance with all required codes, (ii) by licensed professionals, (iii) with all necessary approvals and permits, (iv) underground (water line only), and (v) with any disturbed landscaping restored to its prior condition."
At a June 2010 hearing, counsel for Harry stated that, as to an access easement, he needed the court to order Conroy not to interfere with the security code because she had continued to change it, in contravention of the court's prior order. Conroy denied changing the code.
Conroy's attorney argued that there was no water easement and that Harry was free to install a water meter on his property. He also argued that Harry had "bootlegged in a waterline" into Conroy's water supply and that the above-ground piping he had installed over her property needed to be removed because it was unsightly and broke repeatedly. Harry's attorney told the court that Harry wanted to leave the pipes in place and have the Water District install a water meter next to the existing meter for the 503 property, which would be done at his expense. The court asked Conroy's counsel if Conroy would object to the pipe remaining on her property if Harry paid for the expense of placing it underground. Conroy's attorney replied that she would not object, as long as the work was done by a licensed, bonded contractor, a separate water meter was installed, and Harry paid for everything, because the more important issue to her was controlling the use of the driveway. She therefore sought some type of buzzer or clicker system, but Harry objected, questioning the court's ability to impose such a limitation on the property and stating that such a system was not contemplated in the stipulated judgment.
The court took the matter under submission and issued its ruling after the hearing. The court found that Harry had the right to access the 505 property through the 503 property, to use of the security code to open the driveway gate, and to water rights through the 503 property.
The court found that Conroy waived any claim that there was no access easement, citing paragraph 7(B)(1) of the stipulated judgment, which provided that Conroy received title to the 503 property subject to her acknowledgment of existing easements. The court rejected Conroy's argument that the easement had been extinguished, stating that, even if extinguished, the access easement was revived when the parcels were divided in the dissolution judgment.
The court further stated that it was unclear whether a water easement existed, noting that the stipulated judgment's assumption that there was such an easement appeared to be wrong. Nonetheless, the court reasoned that Harry would not have entered into the stipulated judgment without water rights. Thus, the court found that "it may reasonably imply [Conroy's] conveyance of an easement even if the language is not as clear as it might have been in the [stipulated judgment.]"
The court made the following orders: "[Conroy] shall not prohibit persons invited by [Harry] on to 505 from going through 503 or change the access code to the gate at 503 without [Harry's] permission (as a corollary part of [Harry] having an access easement). . . . [¶] Likewise, [Conroy] shall not shut off water through 503 going to 505. The parties shall share equally any cost of installing a separate water meter for 505 in the same area where the meter is located for 503, as well as cooperate in the construction thereof. Further, any costs associated with making the water pipe through 503 safe, for repairs, or otherwise making it conducive to [Harry's] desired use of 505 (at [Harry's] election), shall also be borne equally." Appellant filed a timely notice of appeal.
The court filed a Findings and Order After Hearing after Conroy filed her notice of appeal. We deem her notice timely filed as of the date of the order. (Cal. Rules of Court, rule 8.104(d).)
DISCUSSION
Conroy contends that the trial court erred by including two provisions in the order because Harry did not request those provisions and she did not have notice that the court would include them in its order. Specifically, Conroy challenges the following: (1) the court's order that she share the cost of installing the water meter and water supply line to the 505 property, and (2) the court's requirement that she obtain Harry's advance consent before changing the security code to the driveway gate.
"[F]actual findings made by the trier of fact are generally reviewed for substantial evidence. [Citations.]" (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500-501.) Although the trial court resolved issues of fact in its order, Conroy's argument is that the trial court erred in issuing orders not requested in the OSC. To the extent that Conroy challenges the trial court's authority to issue those orders and not its factual findings, she raises a question of law, which we review de novo. (In re Marriage of David & Martha M. (2006) 140 Cal.App.4th 96, 100-101.)
Harry argues that "[f]amily law cases 'are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity.' [Citation.]" (In re Marriage of Egedi (2001) 88 Cal.App.4th 17, 22-23.) Although this is true, "[i]t is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. [Citations.]" (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166 (Lippel).)
"In family law cases, '[U]niform procedures apply to all motions and OSC's . . . whether the motion is filed by respondent at the initial responsive stage or by either party at a later stage. . . .' [Citation.]" (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368; see Cal. Rules of Court, rules 5.20, 5.21.) "A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state 'the grounds upon which it will be made.' California Rules of Court, rule [3.1110] requires a notice of motion to state in its opening paragraph 'the nature of the order being sought and the grounds for issuance of the order.' As a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citations.] . . . The purpose of these requirements is to cause the moving party to 'sufficiently define the issues for the information and attention of the adverse party and the court.' [Citation.]" (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.)
"[A] dissolution court cannot grant unrequested relief against a party who appears without affording that party notice and an opportunity to respond. [Citations.] Due process requires affording a litigant a reasonable opportunity, by continuance or otherwise, to respond to evidence or argument that is new, surprising, and relevant. [Citations.]" (In re Marriage of O'Connell (1992) 8 Cal.App.4th 565, 574 (O'Connell).)
In Lippel, the California Supreme Court addressed whether due process and Code of Civil Procedure section 580 allowed the trial court to order child support in a default case where the wife did not request support in the petition for dissolution of marriage and the husband did not receive notice it might be awarded. The court reasoned that, under Code of Civil Procedure section 580, "a plaintiff cannot be granted more relief than is asked for in the complaint." (Lippel, supra, 51 Cal.3d at p. 1166.) Because the petition did not request child support, and the husband allowed a default judgment to be entered against him in reliance on the petition, the court held that the award of child support deprived the husband of his statutory and constitutional right to notice of the claims to be litigated against him. (Id. at p. 1167.)
In O'Connell, the court cited the due process principle set forth in Lippel and further stated that due process protects not only a defaulting party but a party who appears: "Similarly, a dissolution court cannot grant unrequested relief against a party who appears without affording that party notice and an opportunity to respond. [Citations.]" (O'Connell, supra, 8 Cal.App.4th at p. 574.) The court relied on Wilson v. Wilson (1951) 104 Cal.App.2d 167 (Wilson) and Blankenship v. Blankenship (1963) 212 Cal.App.2d 736 (Blankenship).
In Wilson, the court held that the trial court erred in requiring the husband to post security to ensure the payment of alimony, even though there was evidence that the wife had encountered difficulty collecting the payments from him. (Wilson, supra, 104 Cal.App.2d at p. 174.) The court acknowledged that the trial court had the power to make such an order, but not "out of a clear sky, without any request at the hearing therefor and without any intimation that the making of such order was being considered." (Ibid.)
Similarly, in Blankenship, the court held that the trial court erred in imposing a lien on property awarded to the husband to secure payment of alimony to the wife, where the record showed "no request or motion for security and no mention of security of any kind." (Blankenship, supra, 212 Cal.App.2d at p. 746.) There was no question that the trial court had the discretion to require the security. However, because the lien should not have been imposed without giving the husband "any advance warning of such requirement or any opportunity to show that it should not be ordered," the court reversed the portion of the judgment imposing a lien without prejudice to a redetermination of the matter upon giving the husband an opportunity to be heard. (Id. at pp. 746, 750.)
Here, the record is clear that Harry never asked that Conroy be required to pay half the costs of installing the water meter and water supply line. He consistently asked the court to order Conroy to cooperate with the installation of the water meter and supply line, to provide written consent for the Water District to install the meter, and to allow access for the installation. He added more specific requests, such as requiring the new water pipe to be in compliance with the Code and installed by licensed professionals, but he never asked the court to order Conroy to split the costs.
Nor did the stipulated judgment contain any provision requiring Conroy to split the cost of installing a separate water meter. The only provision in the stipulated judgment regarding costs of utilities stated: "Any shared utilities of the properties shall be paid by the owners of each property pro rata based upon usage. The parties shall cooperate to have separate billings issued for any shared utilities and to install separate meters."
At the hearings, the parties argued extensively about whether there was an existing water easement, Harry's alleged use of the 503 property's water supply and installation of above-ground pipes without notifying Conroy, and Conroy's alleged interference with the installation of the separate water meter. However, there is no evidence they ever discussed or contemplated Conroy splitting the costs of installing the water meter and the water pipe. The only mention of costs regarding the water supply was when the court asked if Conroy would object to the pipe remaining on her property if Harry paid for the expense of placing it underground. Her attorney replied that she did not mind, as long as certain conditions were met, including that Harry paid for it.
Conroy was not given adequate notice that the trial court might, on its own volition, require her to split the costs of the water meter and pipe to the 505 property. Rather, the court's order that Conroy split the costs of the water meter and pipe to the 505 property was made "out of a clear sky, without any request at the hearing therefor and without any intimation that the making of such order was being considered." (Wilson, supra, 104 Cal.App.2d at p. 174.) This provision accordingly must be stricken.
Harry cites Family Code sections 2010 and 2550, but these sections do not require a different result. Family Code section 2010 is the general provision that sets forth the scope of the superior court's jurisdiction over proceedings under Family Code section 200. (See In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 592.) The superior court's jurisdiction is not at issue.
Harry's reliance on Di Giorgio v. Di Giorgio (1948) 87 Cal.App.2d 576 is unavailing for similar reasons. The question in that case was whether the Superior Court of Kern County had jurisdiction to determine the custody of a child based on a cross-complaint, where there was no evidence the child was, at the time of filing, a resident of Kern County. There is no question here of the court's jurisdiction over the issues.
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Family Code section 2550 provides: "Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally." Here, the property was divided pursuant to the stipulated judgment. The court order regarding the access and water easements was not a division of the community estate.
As to the order regarding the security code, we conclude that Conroy did have adequate notice and an opportunity to respond to Harry's requests for relief. In his request for an OSC, Harry asked the court to order Conroy not to change the access code without first providing the new code to him. In his supplemental reply brief filed before the June 2010 hearing, Harry altered his request, asking the court to issue the following order: "A new master code to the gate to the 503 Driveway shall be installed which shall only be disclosed to [Harry] and the Trustee; [Harry] shall provide [Conroy] with a secondary code to the gate; [Harry] and the Trustee shall not change the secondary code without first providing the new secondary code to [Conroy]; and there shall be no restriction on either party's ability to distribute the secondary code, as each party has the same rights as to use of the 503 Driveway."
At the June 2010 hearing, Harry's attorney asked the court to give Harry control of a master code for the gate and to give Conroy a secondary code. The court suggested that both of them could have a master code, but that was not satisfactory to Harry. Conroy's attorney proposed a buzzer or clicker system, but Harry's attorney objected because it had not been raised previously and was not contemplated in the stipulated judgment.
The record indicates that the parties argued extensively about how to resolve the issue of access over the driveway. Conroy addressed the issue in her declarations and at both hearings. When Harry's attorney requested a master code that he would control, Conroy's response was to suggest a buzzer system instead. Conroy accordingly had notice that Harry was asking for a system that he controlled, and she had the opportunity to defend against such a system. We therefore order the provision requiring Conroy to split the costs of the water meter and water pipe to be stricken and otherwise affirm.
DISPOSITION
The provision in the trial court order requiring the parties to share equally the cost of installing a separate water meter and water pipe system is ordered stricken. In all other respects the judgment is affirmed. Each party shall bear his or her own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.