Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. GIC837898, Jay M. Bloom, Judge.
McCONNELL, P. J.
In this action for inverse condemnation and related counts, plaintiff, The Wellington Group, LLC (Wellington), appeals a summary judgment for the State of California (the State). Wellington contends the trial court misinterpreted the scope of a freeway easement as giving the California Department of Transportation (Caltrans) a right-of-way over both parcels 1 and 2 of Wellington's property, when only parcel 1 is intended for freeway construction. Further, Wellington contends it raised triable issues of fact pertaining to whether Caltrans overburdened the easement. As to both issues, Wellington objects to Caltrans' issuance of an encroachment permit to adjacent landowners, Legacy-RECP Pointe OPCO, LLC and Legacy-RECP Pointe II Opco, LLC (together Legacy), to use parcel 2 for approximately two years as a staging area to repair a retaining wall on Legacy's property, and to construct for Caltrans on parcel 1 a new retaining wall that includes subterranean tieback anchors that extend to parcel 2.
We conclude the court properly interpreted the easement to extend to the work on parcel 2 that is incidental to freeway construction, such as the work under Legacy's encroachment permit. We further conclude the opinions of Wellington's experts that Caltrans used a higher factor-of-safety than necessary, and thus overdesigned the project to require subterranean tieback anchors, raised no triable issue of fact. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Wellington owns commercial land on the west side of I-15 in the Rancho Bernardo area of San Diego, consisting of parcels 1 (2.762 acres) and 2 (7.046 acres). In 1989 a prior owner of the property executed a grant deed to donate a freeway easement over the property to Caltrans.
As to both parcels 1 and 2, the deed states the easement is for a "right of way and incidents thereto for a public highway." Further, as to parcel 1, which is closest to the freeway, the deed provides: "This conveyance is made for the purposes of a freeway and the grantor hereby releases and relinquishes to the grantee any and all abutter's rights of access, appurtenant to grantor's remaining property. . . ." As to parcel 2, the deed provides: "Reserving therefrom, for the benefit of Grantor, the right to non-exclusive use over any portion of the property, provided however, that such non-exclusive use does not interfere with the easement granted herein to the State of California. Such use shall include, but not be limited to, the right of access, ingress, and egress, together with the installation of structures or other improvements, all subject to the prior approval of the State of California, provided however that such approval will not unreasonably be withheld." Wellington had notice of the easement when it purchased the property.
At the relevant time Legacy owned property adjacent to and uphill from the Wellington property. The Legacy property includes a retaining wall (referred to as the Keystone Wall) between it and the Wellington property. Legacy discovered deficiencies in the Keystone Wall and in 2001 it asked Wellington for permission to enter its property to repair the wall. Wellington denied access because it believed the work would hinder development of parcel 2 and Legacy could make the repairs from its own property.
Caltrans undertook a major project known as the I-15 Managed Lanes Project, which included widening the southbound lanes of I-15 and the Bernardo Center Drive off-ramp adjacent to the Wellington property. In conjunction with the project, in October 2004 Caltrans issued an encroachment permit to Legacy for its use of parcel 2 as a staging area to repair the Keystone Wall. Additionally, at Caltrans' request Legacy agreed to pay for and construct for Caltrans a costly retaining wall on the eastern edge of parcel 1 (referred to as the Caltrans Wall), which has subterranean tieback anchors that extend to parcel 2.
Wellington sued the State, and in August 2005 it filed a second amended complaint for inverse condemnation, breach of contract, intentional and negligent interference with prospective economic advantage, nuisance and injunctive relief. The complaint alleged Caltrans wrongfully allowed Legacy to use Wellington's property without compensating it, repair of the Keystone Wall was not within the scope of the easement and could be performed from Legacy's property, construction of the Caltrans Wall with subterranean tieback anchors was unnecessary "since there is no deep seated landslide" and there were alternative and less intrusive designs.
Wellington also sued Legacy, but it is not involved in this appeal.
The second amended complaint also alleged the encroachment permit would hinder Wellington's plan to construct two office buildings on parcel 2. The complaint prayed for damages and a permanent injunction prohibiting Legacy from using its property.
After the completion of discovery, Caltrans moved for summary judgment. It produced the declaration of Jeff Tesar, its engineering geologist, who made geotechnical recommendations regarding the widening of I-15 for the Managed Lanes Project. The declaration stated Tesar's investigation revealed that a landslide had occurred on the Wellington property when the original Bernardo Center Drive off-ramp was constructed, and a buttress was installed on the property as a mitigation measure; he understood the Managed Lanes Project would require undercutting a slope adjacent to the Wellington property, and "[t]his slope was an integral part of [the] buttress that was located on the Wellington property"; "there was a potential to reactivate this slide if the buttress was undercut or the topography of the area and/or slope was otherwise altered"; and "if the existing buttress . . . was undercut per [Caltrans'] plans, this alteration would need to be mitigated in some way, most likely with the implementation of a tieback wall using subterranean tendons."
Caltrans also submitted the declaration of a senior bridge engineer and earth retaining structure specialist, Overcomer Hor. The declaration stated Hor had reviewed the geotechnical and engineering information pertaining to the Caltrans wall and he determined "this wall is necessary to ensure slope stability and protect the I-15 freeway and the Bernardo Center Drive exit. I have also concluded that the subterranean tieback anchors are essential to the effectiveness of this wall, due to the slope of the hillside involved and the history of landslides in the area." The declaration also stated, "I agree that the current repairs and/or improvements being done to the Keystone Wall are necessary to help ensure slope stability and to help protect the I-15 freeway and the Bernardo Center Drive exit, based on the design of the Caltrans Wall."
Additionally, Caltrans presented the declaration of Marcelo Peinado, a senior transportation engineer, project manager and design manager for the I-15 Managed Lanes Project. The declaration stated, "I became aware of the geotechnical issues presented by the Wellington/Legacy slope" during the design phase and the "importance of that slope's stability and various alternative mitigation measures were considered at that time." The declaration also stated, "I also became aware of potential slope stability issues throughout the Rancho Bernardo corridor, specifically on the west side of the I-15. The Caltrans Wall is only one of several retaining walls using subterranean tiebacks that have been built or are being built along the Rancho Bernardo corridor in conjunction with the I-15 [M]anaged [L]anes [P]roject."
In opposition to the motion, Wellington argued that evidence from its experts raised triable issues of material fact. It submitted a report by Christian Wheeler Engineering (Christian Wheeler), which stated it reviewed previous soils reports, on which Caltrans presumably relied, that "indicated a deep ancient landslide underlies the property, and that portions of the property have a factor-of-safety against landsliding of less than the normally required factor-of-safety of 1.5." The Christian Wheeler report explained a "complex matrix of several ancient landslides, some of which have been remediated, characterizes the area of the subject site and adjacent lands to the north and south of the subject site." During grading in 1997 and 1998, a buttress was constructed along the eastern portion of the site "to stabilize the landslide debris underlying the site." The site was covered with artificial fill materials "to create the level building pad on-site, to remedy past slope failures, to buttress ancient landslide materials on-site, and to create a stability fill . . . to prevent adversely oriented materials of the Friars Formation from cropping out along the existing slope on the west side of the building pad."
Christian Wheeler conducted two 30-inch boring tests to depths of 126 and 128 feet and found no landslide materials. Its report states "it is our professional opinion and judgment that the existing buttress created within the western portion of the site during mass grading operations in 1997 and 1998, extends below the basal shear of the landslide mass that originally underlying [sic] the majority of the Wellington property. However, where not removed to create the buttress placed during mass grading of the site . . . or the lower buttress created by Caltrans to remedy previous slope failures along the easternmost portions of the site, portions of the original landslide mass still underlie the Wellington property." The report further stated, "it is our professional opinion and judgement [sic] that all of the existing landslide materials, which exist beneath portions of the site, have been adequately buttressed such that the site possesses a minimum factor-of-safety in excess of 1.5 against future, deep-seated slope failures." The report explained a factor-of-safety of 1.5 is "the minimum that is generally considered to be 'stable.' " The report also stated Christian Wheeler believed "the free groundwater table beneath the site will not, over the lifetime of the anticipated site development, rise to elevations sufficient to adversely influence the gross stability of the site."
Additionally, Wellington submitted the declaration of geotechnical engineer Don Shephardson. It stated that based on a review of the Christian Wheeler report, and from discussions with persons who worked on it, "it is my opinion that the Factor of Safety of the Wellington Property is appropriate without the need for the installation of the 'soil anchor' tie-backs under this site. . . . I disagree with Legacy's experts on both the soil strength data and the level of groundwater, which affect the Factor of Safety. I believe the groundwater level should be lower, and soil strength higher than that utilized by Legacy's experts."
The court granted the State's summary judgment motion. The court found the freeway easement is unambiguous and as a matter of law Caltrans did not exceed the scope of the easement by issuing the encroachment permit to Legacy. Judgment for Caltrans was entered on June 12, 2006.
DISCUSSION
I
Standard of Review
A "party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant satisfies this burden by showing " 'one or more elements of' the 'cause of action' . . . 'cannot be established,' or that 'there is a complete defense' " to that cause of action. (Ibid.) We review the trial court's summary judgment ruling de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
II
Summary Judgment Was Proper
A
Scope of Freeway Easement
Wellington contends we must reverse the summary judgment because the court misinterpreted the freeway easement by ignoring its different treatment of parcels 1 and 2. Wellington asserts that because parcel 2 "is not a public roadway, it was improper for Caltrans to issue any encroachment permit with respect to the property." Wellington complains that Legacy was allowed to occupy parcel 2 for a lengthy period, and to build subterranean tiebacks onto parcel 2.
"A public right-of-way is a form of easement, in that it grants use rights in a particular parcel of land to nonowners of the land. [Citations.] A private easement ordinarily vests those use rights in the owner of a particular parcel of neighboring property, the 'dominant tenement.' [Citation.] Unlike a private easement, the use rights of a public right-of-way are vested equally in each and every member of the public." (Bello v. ABA Energy Corp. (2004) 121 Cal.App.4th 301, 308 (Bello).)
"Where a right-of-way has been created by grant the scope and extent of the easement is to be determined by the terms of the grant." (Norris v. State of California (1968) 261 Cal.App.2d 41, 45.) "[I]f the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms or to determine the estate conveyed." (Laux v. Freed (1960) 53 Cal.2d 512, 523.) "The interpretation of an easement that does not depend on conflicting extrinsic evidence is a question of law." (Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 1458, 1470.)
Wellington agrees the language of the deed here is unambiguous and its interpretation is one of law. The deed grants an easement over both parcels 1 and 2 for a "right of way and incidents thereto for a public highway upon, over and across that certain real property, . . . described as" parcels 1 and 2. The reservation in the deed pertaining to parcel 2 gives Wellington the non-exclusive use of that parcel "provided, however, that such non-exclusive use does not interfere with the easement granted herein to the State of California." Wellington may not develop parcel 2 without the State's prior approval, and even though the State may not unreasonably withhold approval, the right-of-way gives the State superior rights to parcel 2 for freeway purposes.
A line of cases beginning with Montgomery v. Santa Ana Westminster Railway Co. (1894) 104 Cal. 186 (Montgomery), establishes that the term "right-of-way" in an easement is interpreted expansively "based on the need to accommodate the extensive infrastructure that accompanies modern development." (Anderson v. Time Warner Telecom of California (2005) 129 Cal.App.4th 411, 418 (Anderson).) The term "right-of-way" is not "given its literal meaning — a public right to construct, maintain, and use a road over private land." (Bello, supra, 121 Cal.App.4th at p. 308.) "[S]ome flexibility exists in determining an easement holder's rights. The operation of easements must necessarily be prospective. [Citation.] Thus easement dedications are interpreted broadly and are deemed to have been intended to accommodate future needs." (Anderson, at p. 418.)
In Montgomery, the court held a municipality did not exceed the scope of a street easement when it granted a private company the right to construct and operate a railroad in a public right-of-way. (Montgomery, supra, 104 Cal. at pp. 190-192.) The court explained that "[i]n the case of streets in a city there are other and further uses, such as the construction of sewers and drains, laying of gas and water pipes, erection of telegraph and telephone wires, and a variety of other improvements, beneath, upon, and above the surface, to which in modern times urban streets have been subjected." (Id. at p. 189.) In Bello, the court held the scope of a public right-of-way was not exceeded when the county issued an encroachment permit that authorized a private company to bury a gas pipeline in the right-of-way. The court concluded that "[i]n areas where intensive use of the right-of-way is necessary to support public infrastructure, 'the use by the owner of the fee must yield to the public use.' " (Bello, supra, 121 Cal.App.4th at p. 312.) In Anderson, the court held the county did not exceed the scope of a roadway easement by issuing an encroachment permit that authorized a private company to bury fiber-optic cables in the easement. (Anderson, supra, 129 Cal.App.4th at pp. 416-419.)
Further, an "easement must be interpreted according to the statutes and decisional law in force at the time it was established. All applicable laws are presumed to be known by the parties and to form a part of the agreement as if those laws were expressly referred to and incorporated." (Anderson, supra, 129 Cal.App.4th at p. 418.) Under Streets and Highways Code section 92, Caltrans "may do any act necessary, convenient or proper for the construction, improvement, maintenance or use of all highways which are under its jurisdiction, possession or control." Section 23 of that code defines "highway" as including "bridges, culverts, curbs, drains, and all works incidental to highway construction, improvement, and maintenance." Further, section 660, subdivision (a) of that code defines "highway" as including "all, or any part, of the entire width of a right-of-way of a state highway, whether or not the entire area is actually used for highway purposes."
Caltrans produced evidence its engineers determined the widening of I-15 and the Bernardo Center Drive off-ramp would potentially subject public improvements and motorists to landslides unless retaining walls were constructed along the entire Rancho Bernardo corridor, the Caltrans Wall with subterranean tieback anchors extending to parcel 2 of Wellington's property was constructed, and the Keystone Wall was repaired. As discussed below, Wellington did not raise any triable issue of material fact. We can only conclude Caltrans' issuance of the encroachment permit to Legacy and Legacy's work thereunder were incidental and necessary to Caltrans' construction of the freeway, and the type of activities contemplated by the grantor of the easement. (See Norris v. State of California, supra, 261 Cal.App.2d at p. 47.)
As a matter of law, Caltrans did not exceed the scope of the easement. Contrary to Wellington's position, the trial court's ruling does not show it ignored Wellington's reservation of rights in parcel 2. Even though the actual freeway may have been intended only for parcel 1, the court correctly found the State had superior rights to allow Legacy to occupy parcel 2 for work incidental to the I-15 Managed Lanes Project.
B
Undue Burden
We are unpersuaded by Wellington's contention it raised triable issues of fact on the intertwined issue of whether the encroachment permit unduly burdened the easement. The owner of an easement may not materially increase the burden of it on the grantor's property or impose a new and additional burden. (Wall v. Rudolph (1961) 198 Cal.App.2d 684, 686.) "Whether a use is unduly burdensome depends on the terms of the grant and the circumstances. Normal future uses are within the reasonable contemplation of the parties and therefore permissible, but uncontemplated, abnormal uses, which greatly increase the burden, are not." (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 407, p. 478; Wall v. Rudolph, at p. 692.)
In its separate statement, Wellington agreed it is undisputed that (1) "State engineers determined that slope stability was a potential problem for the I-15 Managed Lanes Project throughout the Rancho Bernardo corridor on the west side of I-15"; (2) the "State's engineering geologist determined that the potential for future landslides on the Wellington Slope would be increased if the Bernardo Center Drive off-ramp was widened without providing some type of support"; (3) "State engineers determined that this type of wall [the Caltrans Wall with subterranean tieback anchors on parcel 2] was necessary to adequately protect the I-15 from potential landslides on the subject property"; and "State engineers determined that repair of the Keystone Wall was necessary to help ensure slope stability and help protect the I-15 from possible landslides, based on the design of the Caltrans Wall.
Wellington asserts it presented evidence Caltrans' determinations were incorrect, and thus raised triable issues of material fact. Wellington relies on the Christian Wheeler report, which expressly disclaimed that its work included any evaluation of the Keystone Wall, and Don Shepardson's declaration, which largely relied on the Christian Wheeler report and did not mention the Keystone Wall. Wellington's experts, however, did disagree with the necessity of subterranean tiebacks in the construction of the Caltrans Wall, and Caltrans believed the Keystone Wall repair was necessitated by the design of the Caltrans Wall.
In its separate statement, Wellington argued its experts showed there was no ancient landslide on its property. The Christian Wheeler report, however, does not support that notion. To the contrary, the report advised that a "complex matrix of several ancient landslides . . . characterizes the area of the subject site and adjacent lands," there was a "landslide mass that originally underlying [sic] the majority of the Wellington property," "portions of the original landslide mass still underlie the Wellington property," and a buttress was constructed on the property "to stabilize the landslide debris underlying the site." Christian Wheeler found no landslide debris in its boring test samples, but that is a different matter. Wellington's experts did believe Caltrans miscalculated the project's factor-of-safety, and thus overdesigned the Caltrans Wall to include subterranean tieback anchors to protect the freeway and the public from landslides.
Wellington, however, misunderstands its burden on summary judgment. As Caltrans explains, a "private party cannot create a question of fact by second-guessing the conservative design decisions of Caltrans engineers when it comes to protection of the freeways and the safety of the motoring public." Public agencies are vested with control over public thoroughfares, and their determinations "are deemed final and conclusive except where shown to have been the result of capricious or arbitrary action or abuse of discretion." (People v. Henderson (1948) 85 Cal.App.2d 653, 657; Bello, supra, 121 Cal.App.4th at p. 316.)
A proposed use of a public right-of-way should "(1) serve as a means, or be incident to a means, for the transport or transmission of people, commodities, waste products or information, or serve public safety [citations]; (2) serve either the public interest or a private interest of the underlying landowner that does not interfere with the public's use rights [citation]; and (3) not unduly endanger or interfere with use of the abutting property." (Bello, supra, 121 Cal.App.4th at pp. 315-316.) Legacy's use of the easement under the encroachment permit was incidental to freeway construction, it served public safety and the public interest, and under the terms of the easement it did not unduly burden parcel 2, as discussed below.
Wellington's contention the abuse of discretion standard is inapplicable is without merit. Expert opinions commonly differ, and another rule would substantially impair the ability of governmental agencies to make public improvements and repairs. Here, for instance, Wellington sought to impose on Caltrans a lesser standard of safety based on input from Wellington's experts. Caltrans, not Wellington, was responsible for engineering, designing and implementing the I-15 Managed Lanes Project, and merely by differing with Caltrans' experts, Wellington's experts did not raise triable issues of material fact for a jury pertaining to the overburdening issue. The question of whether a use unduly burdens an easement is a question of law when, as here, the facts regarding the public agency's use of the easement are undisputed. (Faus v. Los Angeles, supra, 67 Cal.2d at p. 361.) The court correctly determined Wellington raised no triable issue of material fact.
Wellington cites Red Mountain LLC v. Fallbrook Public Utility District (2006) 143 Cal.App.4th 333, 350, for the proposition that "[w]hether a particular use of an easement by either the servient or dominant owner unreasonably interferes with the rights of the other owner is a question of fact." Red Mountain relied on City of Los Angeles v. Howard, supra, 244 Cal.App.2d 538, 543, which shows that rule applies when there is conflicting evidence. (See also City of Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579.) Here, the facts pertaining to Caltrans' use of the easement are undisputed, and thus the issue was one of law amenable to disposal on summary judgment.
C
Abuse of Discretion
We are also unpersuaded by Wellington's contention it raised triable issues of fact as to whether Caltrans abused its discretion by issuing the encroachment permit. "In determining whether an agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld." (Helena F. v. West Contra Costa Unified School Dist. (1996) 49 Cal.App.4th 1793, 1799.) Primarily, Wellington merely asserts anew that the opinions of its experts differed from the opinions of Caltrans professionals responsible for the I-15 Managed Lanes Project on such things as whether an ancient landslide exists on its property, and since the factor-of-safety for the project involved a "judgment call," the matter is a factual one for the jury. We disagree for the same reasons discussed above.
Additionally, Wellington submits it raised triable issues of fact regarding abuse of discretion by submitting evidence Caltrans conducted no independent soils study and refused to consider the Christian Wheeler report, and rather relied on Legacy's studies. Wellington cites the declaration of its expert, Shepardson, which stated, "I understand that Caltrans did not review any of the other geotechnical investigation reports on this site to compare either the soil strengths and/or the groundwater levels. . . . I am further informed that Caltrans never considered Wellington's geotechnical reports, which showed groundwater levels to be lower and soil strengths to be higher than the values used by Legacy's experts." A declaration stated on information and belief, however, is not competent evidence. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1397; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.)
Wellington also cites the declaration of its principal, Richard Anderson, which stated he had not given Legacy permission to conduct an investigation to determine if an ancient landslide existed on Wellington's property, and to his knowledge Legacy's experts had not conducted such an investigation. Again, the declaration does not show what Caltrans' investigation may have been. Wellington cites other documents that also do not support its position, such as the Christian Wheeler report and the deed granting the easement.
Wellington also asserts "Caltrans' witnesses confirmed under oath in deposition that they never heard of the Christian Wheeler report and never considered any soils analysis performed by [Wellington]'s experts, but only considered what Legacy provided them and never questioned that tie-backs were needed." Wellington cites the Christian Wheeler report, the grant deed for the easement, and the Anderson and Shepardson declarations, none of which pertain to deposition testimony. Wellington also cites pages 1963 through 2069 of the appellant's appendix, without any further specification. In other portions of its briefing, Wellington cites large blocks of the appellant's index in support of various assertions, including pages 1604 through 2069, which include its 107-page separate statement in opposition to the summary judgment motion, its notice of lodgment and all lodged materials.
In any event, even if Wellington presented evidence Caltrans conducted no independent soils investigation and ignored the Christian Wheeler report, Wellington cites no authority for the proposition such conduct by a public agency charged with building and maintaining infrastructure can be considered an abuse of discretion. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
Wellington also cites to its 1998 grant to Legacy's predecessor-in-interest of a non-exclusive easement over a corner of parcel 2 "for ingress and egress and for parking and access purposes." The easement states the grantee shall not "have any right whatsoever to erect or construct or permit to be erected or constructed any building, structure, or improvement on, over or under the Easement Area." Wellington submits Caltrans abused its discretion by allowing Legacy to place subterranean tieback anchors on parcel 2 in contravention of the parking easement. The 1998 parking easement, however, does not pertain to Caltrans' freeway easement, or indicate Caltrans abused its discretion by issuing the encroachment permit and authorizing Legacy to perform work necessary for the protection of I-15 and the public.
D
Causes of Action
Wellington contends the second amended complaint's causes of action were not amenable to summary judgment. Wellington asserts it may maintain causes of action for inverse condemnation, breach of contract, interference with prospective economic advantage and nuisance because it adduced triable issues of fact regarding whether Caltrans exceeded the scope of the freeway easement or abused its discretion. As we have decided for Caltrans on those issues, Wellington's claims may not stand. We need not set forth and discuss the elements of each of the causes of action, as Caltrans had superior rights to Wellington's property for freeway purposes, it committed no actionable wrongdoing and Wellington suffered no compensable damages. For the same reason, Wellington's prayer for injunctive relief is precluded.
As to the inverse condemnation cause of action, Wellington adds that a grantor may sue for a wrongful taking of property despite the existence of an easement over the property. The cases on which Wellington relies, however, are distinguishable. In Uniwill v. City of Los Angeles (2004) 124 Cal.App.4th 537 (Uniwill), the property owner had obtained a tentative tract map to develop a shopping center, and had completed approximately 20 to 25 percent of the construction at a cost of $6.5 million, when the city notified the owner it would not certify the owner's compliance with the tract map unless the owner conveyed to the utility an easement for a fiber-optic communications cable. The owner determined it was economically unfeasible to stop the project, and thus it complied with the city's demand under protest. After completion of the project, the owner sued the city and the utility for inverse condemnation. (Id. at p. 540.)
The city demurred, arguing the action was untimely and the tract map contained an easement in favor of the utility. The trial court rejected the tract map argument but granted the demurrer on the ground of untimeliness. The appellate court found the action timely and reversed. It also agreed the owner sufficiently pleaded a cause of action for inverse condemnation. (Uniwill, supra, 124 Cal.App.4th at pp. 542, 544.) Wellington erroneously asserts that in Uniwill "the court allowed a private party to sue a city for inverse condemnation, even though it previously provided an easement to the city." Both the trial court and the appellate court rejected the argument the owner agreed to an easement as a condition of development, and found the easement was an unfair extraction imposed after the project was approved. (Id. at pp. 542-544.)
Here, in contrast, Wellington purchased its property with notice of the easement over parcels 1 and 2 and Caltrans did not attempt to extract anything from Wellington to which it was not entitled. "A decision is authority only for the point actually passed on by the court and directly involved in the case. General expressions in opinions that go beyond the facts of the case will not necessarily control the outcome in a subsequent suit involving different facts." (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985; Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195.)
In Albers v. Los Angeles County (1965) 62 Cal.2d 250, the owners' predecessors-in-interest granted the county easements for road construction. As a result of the construction, a major landslide occurred on and around the road easements and the owners sued for inverse condemnation. No argument was raised in Albers that the easement precluded an inverse condemnation action. Rather, the issue in that case was "whether there is or should be a qualification or limitation of that rule to the effect that the property owner may recover in such an action where actual physical damages is proximately caused to his property by a public improvement as deliberately planned and built, whether such damages if foreseeable or not." (Id. at p. 262.) The court answered the question in the affirmative. (Id. at p. 263.) Wellington takes that to mean that "any actual physical injury to real property proximately caused by an improvement is compensable even if the party consented to it." (Original emphasis.) The opinion, however, does not discuss a party's consent, and we presume that in granting easements for road construction the owners' predecessors did not consent to withstand landslide damages.
Here, Wellington's predecessor-in-interest granted an easement that authorized Caltrans' activities. Caltrans did not cause physical injury to Wellington's property unrelated to the purpose of the right-of-way.
Smith v. County of San Diego (1967) 252 Cal.App.2d 438, is also unavailing. In Smith, property owners had granted the State of California an easement for highway purposes. The county used the easement for the construction of a drainage ditch, and the owners sued the county for damages caused by the construction's destruction of its access over the easement to a highway. The owners alleged the county's use of the easement overburdened it, and the trial court granted the county's demurrer without leave to amend. This court reversed the judgment, holding the plaintiffs should be granted leave to amend to attempt to allege facts showing the easement was overburdened. Here, in contrast, Caltrans obtained summary judgment after the court properly determined as a matter of law that it did not overburden the freeway easement.
In sum, the court properly granted Caltrans summary judgment.
Given our holding, we are not required to determine whether any of Wellington's causes of action are barred because it did not comply with the California Tort Claims Act.
DISPOSITION
The judgment is affirmed. Caltrans is entitled to costs on appeal.
WE CONCUR: McINTYRE, J., IRION, J.
"The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) We decline to study hundreds of pages of documents to assist Wellington, and we deem its arguments waived to any extent they depend on portions of the record it does not specifically cite. (Troensegard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.)