Filed 4/20/20 Vierra v. Valencia CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

—-

JOHN S. VIERRA et al.,

Plaintiffs and Respondents,

v.

FAUSTO VALENCIA et al.,

Defendants and Appellants.

C088290

(Super. Ct. No. CV-2016-617)

Plaintiff spouses John S. and Karen L. Vierra sought to quiet title for their real property on Davis Road in West Sacramento through the extinguishment of an existing easement that they had granted–for access to the landlocked property immediately south of them–to the predecessor in interest of defendant spouses Fausto and Micaela Valencia. Valencias also own a parcel that adjoins the landlocked property to its east, which has its own access to Antioch Avenue, around the corner from Vierras’ property. Following a one-day court trial in June 2018, the trial court issued an order in Vierras’ favor in September 2018, extinguishing the easement for nonuse by Valencias’ predecessors in interest. While Vierras submitted a proposed judgment to which Valencias objected, the record in the trial court does not contain a judgment. Rather, Vierras appealed from the order. The case was considered fully briefed in December 2019. Despite the lack of a signed judgment, we will exercise our discretion to treat the signed order as the judgment in this matter. (Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 904.)

The parties did not have the bench trial reported. Thus, there is no reporter’s transcript. Valencias have submitted a clerk’s transcript that includes exhibits. This is thus a judgment roll appeal in which we presume that substantial evidence exists to support the judgment, and the inclusion of the exhibits cannot be used to contradict the trial court’s judgment. (Bristow v. Morelli (1969) 270 Cal.App.2d 894, 896; Tibbets v. Robb (1958) 158 Cal.App.2d 330, 337.) This is fatal to the gist of Valencias’ claim that there is insufficient evidence to support the finding of abandonment. We shall affirm the judgment (order).

FACTUAL AND PROCEDURAL BACKGROUND

We perforce draw our account from the trial court’s written order, and any exhibits that support it. The facts are brief and undisputed.

The Vierras have owned the Davis Road property (parcel 5) since 1985. Apparently (the trial court not addressing this point), there was a dedication in 1972 of the easternmost 30 feet of Vierras’ property and the westernmost 30 feet of their neighbor’s property to the east as an easement for a future public street leading to a large parcel to the south, but the fate of this public dedication is not explained. In 1997, Vierras granted a new 20-foot access easement along the east end of their property to the owner of a now smaller landlocked parcel to their immediate south (parcel 12). At some point before 2001, the owner of parcel 12 sold it to the owners of the Antioch Avenue property (parcel 14), the Hensleys. The Hensleys were the original defendants in this April 2016 action, which Vierras brought after a conversation between Vierras and the Hensleys regarding the easement and fencing. In August 2016, the Hensleys sold parcels 12 and 14 to Valencias, along with the access easement across parcel 5.

Proceeding solely under Vierras’ choice of the common law of abandonment, the trial court relied on authority that nonuse of an easement, coupled with unequivocal and decisive acts showing an intention to abandon, are necessary to extinguish an easement; in some circumstances, a long-standing nonuse of itself can be sufficient evidence of the intent to abandon. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 889-891.) This is a question for the trier of fact. (Id. at pp. 891, 893.) Although Valencias clearly had the intention to make use of the easement, recording a September 2016 notice to preserve it, the issue for the trial court was whether the Hensleys and their predecessor in interest abandoned the easement before the Hensleys sold it to Valencias. Neither the Hensleys nor their predecessor in interest had used the easement between 1997 and 2016. In the meantime, Vierras had planted three valley oaks on the easement that had grown to a substantial size, erected a fence that encroached three feet onto the easement, kept an abandoned trailer on the easement, excavated a large hole on the easement, and used the easement for yard waste. Even though the Hensleys lived less than 1/10 of a mile away, they never protested any of these encroachments. Given their lack of need to access lot 12 from Davis Road (for which reason the trial court also rejected finding an easement by necessity), the court also found significant that the Hensleys did not bother to transfer the easement to their living trust when they transferred lot 12 in 2002. (However, we will generally interpret an access easement as appurtenant to the dominant estate, which does not require explicit reference in the transfer of the dominant estate, and thus this is not a significant fact. (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568-569.)) The trial court concluded as a result that the lack of action on the part of the Hensleys was decisive and conclusive evidence of an intention to abandon the easement until their belated effort to transfer it to Valencias. The court thus declared that Vierras held parcel 5 free and clear of any easement for the benefit of parcel 12.

DISCUSSION

The defect permeating Valencias’ opening brief on appeal revolves around the challenge to the factual sufficiency of the finding of extinguishment. They must demonstrate as a matter of law that the circumstances recited in the trial court’s order do not support that finding.

While it is true that the unilateral actions of a servient estate cannot extinguish an easement without an intent to extinguish on the part of the dominant estate (Cottonwood Duplexes, LLC v. Barlow (2012) 210 Cal.App.4th 1501, 1509), it is not the conduct of Vierras that is at issue in the present case. It is the absence of action on the part of the holders of the easement from 1997 to 2016 to make any response to the encroachments on the part of Vierras that must be assessed for evidence of intent. It is not of any significance that these encroachments could have been “easily” remedied (as if the felling of mature valley oaks is not of any concern); such inaction is merely equivocal, and thus the trial court’s resolution of inferences in favor of abandonment is not subject to second-guessing on appeal, particularly in the absence of a reporter’s transcript. We do not see the relevance of Valencias’ citation of Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1385-1387, which simply noted that the planting of trees could be equivocal encroachments, and thereafter discussed the absence of the elements of adverse possession (which is not in issue in this case). Here, the trial court found that the planting of the permanent trees was clearly inconsistent with the easement. As a result, we are not presented with circumstances, as Valencias assert, of nonuse alone. We therefore conclude that the trial court’s finding of abandonment has sufficient support in the evidence that it recites.

DISPOSITION

The judgment is affirmed. Vierras are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

BUTZ, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MAURO, J.