Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV 237950
SIMONS, Acting P.J.
Defendants and appellants Vintners’ Lodge Sonoma LP, and Vintners’ Grove, Inc. (defendants), appeal from the trial court’s order granting the request of plaintiffs and respondents Anthony and Laura Ponter and Spirits in Stone, Inc. (plaintiffs), for a preliminary injunction prohibiting defendants from obstructing a gravel driveway subject to an easement dispute. Defendants contend plaintiffs failed to establish a likelihood of success on their claim for reformation of the easement language and failed to demonstrate that the equities favored granting the preliminary injunction. We disagree and affirm.
Background
Plaintiffs owned approximately 38 acres of land in Sonoma County, divided into two 10-acre parcels and one 18-acre parcel. In March 2004, plaintiffs sold one of the 10-acre parcels (the Arena property) to defendants. Plaintiffs reserved an easement across the Arena property that benefited their adjacent 18-acre parcel (the Victorian property). The legal description for this easement differed between plaintiffs’ recorded parcel description and defendants’ grant deed. Plaintiffs’ legal description described, “A non-exclusive easement for road and public utility purposes over the 50 foot road appurtenant to Parcel One above and which lies outside of Parcel One above and across Parcel C, as shown upon [the parcel map] . . . .” The language in defendants’ grant deed stated, “Reserving therefrom for the benefit of the remaining lands of the Grantor herein the 50 foot non-exclusive easement for road and utility purposes as shown on the [parcel] map referred to above.” For approximately 18 months following the sale of the Arena property to defendants, plaintiffs continued to use a gravel driveway that ran across the Arena property. Defendants did not object to plaintiffs’ use of the gravel driveway throughout this time period.
Around June 2005, a dispute arose between plaintiffs and defendants regarding a repurchase option contained in the Arena property purchase agreement. In August plaintiffs filed a complaint against defendants and several individuals for causes of action including breach of contract and fraud.
On August 2, 2005, defendants discovered the discrepancy in the legal descriptions of the easement in their grant deed and plaintiffs’ grant deed; defendants’ grant deed described an easement that did not completely track the gravel driveway over their Arena property. By letter dated August 2, defendants informed plaintiffs of their intention to erect a fence around the Arena property as of September 16. Defendants stated that they were giving notice of the construction in order to permit plaintiffs time to reconfigure the gravel driveway as may be needed. In early October, defendants constructed a fence and gate consistent with their understanding of the location of the easement as set forth in their grant deed.
It appears as though the “road and utility easement” as labeled on the parcel map runs only along the southernmost boundary of the Arena property, while the actual gravel driveway runs along the boundary initially, but then veers inward in a northwesterly direction for the last 800 feet leading to the Victorian property. As previously quoted, defendants’ grant deed refers to only the easement for road and utility purposes as shown by the parcel map, while plaintiffs’ record document refers to the easement for road and public utility purposes over the 50 foot road “as shown upon the parcel map.”
On December 20, 2005, plaintiffs brought an action against defendants for reformation of the Arena property grant deed to conform to the parties’ understanding at the time of sale that the gravel driveway constituted the easement. Plaintiffs alleged the escrow agent committed a scrivener’s error in failing to include the language in defendants’ grant deed referring to “the 50 foot road.” On December 22, plaintiffs filed a notice of motion for preliminary injunction, seeking to enjoin defendants’ obstruction of the gravel driveway.
Defendants opposed the motion for a preliminary injunction, arguing that plaintiffs were unlikely to prevail on their claim for reformation, and plaintiffs would suffer no interim harm because they have another paved driveway that provides access to their property. Defendants’ counsel submitted a declaration in support of the opposition to the preliminary injunction; however, this declaration and its exhibits were stricken from the record pursuant to plaintiffs’ objections, and defendants do not directly challenge this portion of the court’s decision on appeal.
Defendants also answered plaintiffs’ complaint seeking reformation, and in addition filed a cross-complaint for indemnity, contribution and declaratory relief, and for quiet title.
After a hearing on March 21, 2006, the trial court granted plaintiffs’ motion and issued a preliminary injunction “prohibiting, during the pendency of this action, defendants, their agents, servants, and anyone with or on their behalf from obstructing the existing roadway easement across the Arena parcel.” Defendants filed a motion for reconsideration of the order and requested a statement of decision. On June 16, the court denied defendants’ motion for reconsideration, stating it was “not supported by a Declaration containing the information required by [Code of Civil Procedure section 1008, subdivision (b),] nor ‘new or different facts, circumstances or law.’ ” The court also denied defendants’ request for a statement of decision. This appeal followed.
Discussion
I. Preliminary Injunction
“A preliminary injunction is governed by the following principles: ‘ “In deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: the likelihood the moving party ultimately will prevail on the merits, and the relative interim harm to the parties from the issuance or nonissuance of the injunction.” ’ [Citations.] [¶] We apply the abuse of discretion standard of review in reviewing the lower court’s order granting the preliminary injunction. ‘ “The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court. [Citations.] . . . [¶] A trial court will be found to have abused its discretion only when it has ‘ “exceeded the bounds of reason or contravened the uncontradicted evidence.” ’ [Citations.] Further, the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion. [Citations.]” ’ [Citation.]” (ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016.)
A. Plaintiffs’ Likelihood of Prevailing on the Merits
Defendants first contend the preliminary injunction was erroneously granted because plaintiffs did not adequately demonstrate a likelihood of prevailing on the merits of their claim for reformation of the description of the easement in the grant deed. We disagree.
Civil Code section 3399 provides that a written contract may be revised when through a mutual mistake of the parties the written contract does not truly express the intention of the parties. (Martinelli v. Gabriel (1951) 103 Cal.App.2d 818, 823.) “A mistake by the scrivener or draftsman in reducing the intent of the parties to writing is ground for reformation. . . . [¶] . . . [¶] In order to reform a written instrument the plaintiff must prove the mutual mistake by clear and convincing evidence [at trial].” (California Pac. Title Co. v. Moore (1964) 229 Cal.App.2d 114, 116-117.) In Martinelli, the Court of Appeal affirmed the trial court’s reformation of a deed based on the mutual mistake of the contracting parties. (Martinelli, at pp. 823-824.) Specifically, the sellers sold a portion of several adjoining lots to the buyers, and as sellers contended, the parties went out to the property prior to sale and agreed upon the boundaries as marked by a fence, an oak tree, and a cabin. (Id. at pp. 820-821.) The sellers then hired an engineer to make a survey and prepare the description for the deed. (Id. at p. 821.) Over two years later, after a fire destroyed part of the property and buyers wanted to rebuild, the buyers discovered that the deed described their lot as extending beyond the fenced boundary. (Id. at p. 820.) Sellers testified the deed’s description did not conform to the parties’ understanding of the boundaries at the time of the sale, and the engineer also testified he had erred in calculating the lot dimensions in the deed. (Id. at pp. 820-822.) The buyer denied he ever agreed to the physical boundary markers and instead claimed he relied exclusively on the prepared plat plan. (Id. at p. 823.) The court found the deed was not in accordance with the parties’ original understanding of the boundary lines, and granted reformation. (Id. at pp. 823-824.)
California Civil Code section 3399 provides: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised, on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.”
Here, in the underlying action for reformation and declaratory relief, plaintiffs alleged that the dual escrow agent involved in the transaction committed a scrivener’s error by failing to include language referring to “the 50 foot road” in defendants’ grant deed. Plaintiffs sought reformation of defendants’ deed to correct the alleged error and clarify that the easement included the gravel driveway. To support their claim, plaintiffs introduced the two different recorded descriptions of the easement passing over the Arena property. Plaintiffs’ legal description describes the “easement for road and public utility purposes over the 50 foot road.” (Italics added). In her declaration, plaintiff Laura Ponter stated that at the time of the sale of the Arena property, plaintiffs disclosed the easement as such and the only road that runs across the Arena property is the gravel driveway that has existed on the property for 35 years. In addition, defendants purchased the Arena property in March 2004, but defendants stated in their opposition to the preliminary injunction that it was not until August 2, 2005 that they “discovered” their grant deed differed from plaintiffs’ deed and that defendants’ grant deed described an easement that did not track the road over their parcel. It was at this time, by letter dated August 2, 2005, that defendants wrote plaintiffs to inform them of their intent to build the fence and of the need for plaintiffs to reconfigure the driveway.
It was reasonable for the trial court to conclude that plaintiffs demonstrated a likelihood of succeeding at trial for reformation, on the grounds that both parties understood at the time of the sale that the easement across the Arena property tracked the existing road, neither party initially realized this understanding was not properly documented in defendants’ grant deed, and it was not until nearly a year and a half later that defendants discovered and attempted to take advantage of the discrepancy in the deeds. As in Martinelli, there is a probability plaintiff will prevail in its claim for reformation under these circumstances.
Defendants also argue on appeal that by operation of law, the gravel driveway cannot represent an easement because any easement that burdened the Arena property was extinguished under the doctrine of merger during the time plaintiffs owned both the Arena property and the Victorian property. Not only is this argument offered for the first time on appeal, but it is irrelevant to determining the location of an easement expressly created at the time plaintiffs sold the Arena property to defendants.
B. Relative Interim Harm to the Parties
Defendants also contend plaintiffs failed to establish that the equities favored granting the preliminary injunction, because plaintiffs have other driveway access to their Victorian property and defendants should no longer be expected to permit unauthorized use of the road across their property. Again, we disagree. Here, plaintiff Laura Ponter explained in her declaration that she operates an equine rescue and adoption operation and boards horses at the Victorian property. She stated that since defendants began blocking access to the gravel driveway, two veterinarian technicians were turned away when they attempted to enter the driveway in order to administer a medical treatment. A third party that provides equine services submitted a statement recounting that she had been blocked from using the gravel driveway to exit the property, and recalling that the road had recently been used by an ambulance and fire trucks to provide emergency first aid for an injured equestrian, and suggesting that blocked access would compromise safety and cause unnecessary confusion and delay. Plaintiff Anthony Ponter submitted a declaration stating that the burglar alarm siren had recently been inadvertently triggered on the Victorian property. On his drive back after investigating the siren, he noticed a police officer standing outside his vehicle on the other side of the gated easement. The officer expressed concern over being locked out of the entrance that had always been used for the Victorian property and was angry that he was unable to enter the property after being summoned to a potential emergency. Also, plaintiffs alleged in their motion for the preliminary injunction that the gravel road follows a winter creek bed and passes over a stone bridge, and rerouting the relevant portion of the driveway would require plaintiffs to seek County permission and would interfere with the creek, possibly necessitating environmental studies and permitting. Finally, there is no evidence to suggest the burden of allowing access during the pendency of this action is any more severe than it was during the first 18 months of defendants’ ownership, during which time the gravel driveway was used apparently without incident.
It was reasonable for the court to conclude that the equities favored granting the preliminary injunction based on this evidence. Defendants have failed to show the trial court abused its discretion in this case.
We also reject defendants contention that the trial court improperly shifted the burden of proof from plaintiffs to defendants. Defendants point only to the court’s statement at the hearing that “I have here on this scale plaintiffs’ evidence and it’s rather light, shall we say, on the defendants’ side” to suggest that the court based its ruling on the absence of evidence adduced by defendants. First, it does not appear the court was revealing a shift of the burden of proof for the preliminary injunction. Instead, the court was discussing the definition of clear and convincing evidence and was merely commenting that defendants had offered little contrasting evidence for the court to consider. Regardless, “a judge’s comments in oral argument may never be used to impeach the final order, however valuable to illustrate the court’s theory they may be under some circumstances. [Citation.]” (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633.) Here, we have already concluded that, given the evidence, the court did not abuse its discretion in granting the preliminary injunction.
II. Motion for Reconsideration
Finally, defendants state that the superior court abused its discretion in denying their motion for reconsideration. However, in their opening brief, defendants merely set forth the requirements for reconsideration and their conclusion that the trial court abused its discretion in denying their motion. This court is not required to consider or discuss points where the relevance of the cited authority is not discussed or points are argued in conclusionary form. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) We refuse to consider this portion of defendants’ argument on appeal.
Disposition
The judgment is affirmed. Costs to respondents.
We concur.
GEMELLO, J., NEEDHAM, J.