Bradford C Sublett vs Guy Berkeley Breathed
Case No: 17CV00123
Hearing Date: Wed Mar 28, 2018 9:30

Nature of Proceedings: Motion: Judgment on the Pleadings

TENTATIVE RULING: The motion for judgment on the pleadings of defendants Guy Berkeley Breathed and Heather Standish Wright is denied. The court finds that there are factual and evidentiary issues concerning the disputed easement that are not capable of resolution through a motion for judgment on the pleadings.

BACKGROUND:

This action concerns a dispute over an easement. In 2011, plaintiff Bradford C. Sublett (“Sublett”) purchased a parcel of undeveloped land located at 806 Toro Canyon Road, Santa Barbara, California 93108. The property lacks an improved access road and is essentially “landlocked.” Sublett contends that the parcel enjoys a prescriptive easement by necessity across an adjacent parcel owned by defendants Guy Berkeley Breathed (“Breathed”) and Heather Standish Wright (“Wright”) located at 810 Toro Canyon Road. In July 2013, Breathed filed a declaratory relief and quiet title lawsuit contesting Sublett’s claim to a prescriptive easement over his property, Santa Barbara Superior Court Case No. 1417859. In November 2013, the parties settled the lawsuit pursuant to a written settlement agreement by which Breathed agreed to grant to Sublett an access easement and permission to construct a road along the easement route, subject to approval by the County of Santa Barbara.

On March 6, 2014, Breathed executed a Grant of Easement burdening the Breathed property for the benefit of the Sublett property and recorded the easement in the Official Records of Santa Barbara County on April 7, 2014 as document number 2014-0015398. While the Grant of Easement identifies the location of the easement by metes and bounds, the parties understood that the County would have to approve the final location of the easement and any roadway built on Breathed’s property. Accordingly, the Grant of Easement allows for an adjustment to the easement location if required by the County as a condition for approval. In the event the location of the existing easement is not approved by the County, the Grant of Easement provides that Breathed and Sublett shall cooperate with one another in the selection of an alternative location for the easement, as near as possible to the original easement, that is acceptable to the County. The Grant of Easement further provides that if an alternative location for the easement is required by the County, Breathed and Sublett shall execute and record an amendment to the Grant of Easement modifying the easement location to conform to the dimensions and location specified by the County.

In October 2015, before obtaining the necessary County approvals for construction of an access road over the Breathed property, Sublett began grading and constructing a road along the easement route. As part of the construction work, the engineers and contractors hired by Sublett constructed a drainage and erosion control system that included catch basins and corrugated metal pipe culverts. Breathed contends that the grading and construction work were done without his knowledge or consent and in violation of the recorded easement because Sublett had not sought or obtained any of the approvals required by the County. Breathed also contends that Sublett constructed portions of the roadway outside of the recorded easement area. In September 2016, Breathed removed the drainage and erosion control devices installed by Sublett and dumped the debris on Sublett’s property. Breathed then placed three metal posts on the easement area, with a metal chain running perpendicular to the easement route and a sign stating, “No Vehicles, No Trespassing, No Equipment.”

On January 11, 2017, Sublet filed his complaint against Breathed and Wright for breach of contract. On June 8, 2017, Sublett filed a first amended complaint (“FAC”), adding causes of action for breach of the implied covenant of good faith and fair dealing, interference with easement, and conversion. Sublett alleges that defendants breached the underlying settlement agreement by refusing to support Sublett’s application to the County for a land use permit and by interfering with the recorded easement. Defendants contend that the FAC fails to state sufficient facts to constitute a cause of action and by this motion move for judgment on the pleadings.

ANALYSIS:

Requests for Judicial Notice

Defendants request that the court take judicial notice of (1) the Grant of Easement recorded in the official records of Santa Barbara County on April 7, 2014 as document number 2014-0015938 (Exhibit A), (2) the Settlement Agreement filed with this court on February 17, 2017 as an exhibit to Breathed’s cross-complaint (Exhibit B), (3) a certified copy of the decision of the Santa Barbara County Planning Commission to uphold defendants’ appeal in Planning Commission Case No. 16APL-00000-00024 (Exhibit C), and (4) a true a correct copy of Chapter 14 of the Santa Barbara County Code, Grading Ordinance (Exhibit D).

Exhibit A is a recorded document for which judicial notice is proper and will be granted. Evid. Code §452, subd. (h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117. Exhibit C sets forth an official act of the County for which judicial notice is proper and will be granted. Evid. Code §452, subd. (c). Exhibit D is a regulation or legislative enactment issued under the authority of the County for which judicial notice is proper and will be granted. Evid. Code §452, subd. (b). Exhibit B is a copy of the settlement agreement in the underlying case. Defendants assert that the court may take judicial notice of the settlement agreement because it was filed with the court as an exhibit to Breathed’s cross-complaint and because it is referenced and quoted in the FAC, but the court disagrees. Under Evidence Code Section 452, subdivision (d), the court may take judicial notice of the existence of any record in its file or the file of any other court, including the date the document was filed and its legally operative language, but it may not take judicial notice of any factual matters stated in the document. Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 761. The court therefore declines to take judicial notice of the truthfulness of statements contained in the settlement agreement or its proper interpretation since these are matters in dispute in the case.

Plaintiff requests that the court take judicial notice of (1) Section 35.42.020 of the Santa Barbara County Land Use and Development Code, (2) Land Use Development Policy No. 4 of the Land Use Element of the Santa Barbara County Comprehensive Plan, and (3) Santa Barbara County Planning and Development Department Approval of Land Use Permit No. 16LUP-00000-00364. Items 1 and 2 are regulations or legislative enactments issued under the authority of the County of Santa Barbara for which judicial notice is proper and will be granted. Evid. Code §452, subd. (b). Exhibit 3 sets forth an official act of the County for which judicial notice is proper and will be granted. Evid. Code §452, subd. (c).

Motion for Judgment on the Pleadings

A motion for judgment on the pleadings may be made by a defendant at any time after the time to demur has expired and an answer has been filed if it is contended that the complaint “does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. §438, subd. (c)(1)(B)(ii). A motion for judgment on the pleadings is akin to a general demurrer and can be directed at either the entire complaint or any individual cause of action. Code Civ. Proc. §438, subd. (c)(2)(A). Like a general demurrer, the grounds for the motion must appear on the face of the complaint or in matters subject to judicial notice. Code Civ. Proc. §438, subd. (d). Because a motion for judgment on the pleadings serves the same purpose as a general demurrer, in considering the motion, the court must accept as true all material facts properly pleaded in the complaint, giving them a liberal construction. Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.

Breathed and Wright challenge Sublett’s first and second causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing on the ground that the Grant of Easement expressly conditions Sublett’s construction of the access road over defendants’ property upon Sublett’s seeking and obtaining all necessary governmental approvals for the location of the easement and the location and design of the roadway. Section 3 of the Grant of Easement recites the purpose and intent of the easement and is quoted in the FAC:

“3. Grant of Easement. In consideration of the mutual promises contained herein, and subject to the terms and conditions of the Settlement Agreement (which is hereby incorporated by reference), and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor hereby grants to Grantee, their heirs, successors and assigns, a perpetual non-exclusive easement in, to, over, through, and across the Easement Area (as the same may be modified pursuant to Section 4, below) for the following uses (and any other uses related or incidental thereto): (i) access and roadway purposes, vehicular and pedestrian ingress and egress (including, without limitation, emergency ingress and egress) to the Grantee Property; (ii) construction of an access roadway in, through, over and across the Easement Area; and (iii) planting of vegetation along the uphill side of the Easement Area for screening of residences from the access road (collectively, the ‘Easement’).”

(FAC, ¶10, lines 5-10.)

The FAC also quotes Section 4 of the Grant of Easement, which states that the actual location of the easement has not yet been established and remains subject to the approval of the applicable governmental agencies:

“4. Location of Easement. Grantor and Grantee hereby acknowledge and agree that the actual location of the Easement is subject to the approval of applicable local and state governmental agencies. In the event that the location of the Easement within the Easement Area is not approved by the applicable governmental agencies, Grantor and Grantee shall cooperate with one another in the selection of alternative locations for the Easement, as near as possible to the Easement Area, until such time as the necessary governmental approvals have been obtained. Grantor and Grantee shall, if necessary, execute and record an amendment to the Grant of Easement modifying the Easement Area to conform to the dimensions and location specified in the final governmental approvals.”

(FAC, ¶10, lines 12-18.)

Defendants contend that Sublett’s breach of contract and bad faith claims fail as a matter of law because it was Sublett who breached the terms of the settlement agreement and the Grant of Easement when he began construction of the roadway and other improvements on defendants’ property before the County had approved the location of the easement and issued the necessary construction permits. Defendants contend that they had no obligation to support Sublett’s construction of the unapproved roadway until the exact location of the easement was established by the County. The FAC acknowledges that Sublett commenced the unapproved grading and construction of the roadway in October 2015. (FAC, ¶13, lines 25-27.) The FAC also acknowledges that Sublett “constructed a drainage and erosion control system along the new access road.” (FAC, ¶16, lines 19-21.) The FAC further acknowledges that all of the construction was performed “without having obtained government approval” and “without having a permit in place.” (FAC, ¶14, lines 1-2, ¶15, line 11.)

To prevail on a breach of contract cause of action, the plaintiff must prove (1) the existence of the contact, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. Acoustics, Inc. v. Trepte Construction Company (1971) 14 Cal.App.3d 887, 913. Defendants contend that Sublett has not alleged, and cannot allege, facts sufficient to constitute element 2 (plaintiff’s performance) or element 3 (defendants’ breach) because it was a condition precedent that Sublett seek and obtain approval from the County for the actual location of the easement, as well as the design and location of the roadway, before commencing construction. A condition precedent is an act or event that must be performed or occur before the promisor has any duty to perform under the contract. Civ. Code §1436. Here, Sublett has not alleged that he sought and obtained the necessary County approvals for the easement and roadway and therefore he has not met the conditions required for defendants’ performance and defendants cannot be in breach of contract.

Sublett disagrees with defendants’ interpretation of the Grant of Easement as the easement does not say that the right of way does not exist until the County approves its exact location, nor does it say that the County must issue permits before plaintiff can use the easement or begin construction of a temporary road for purposes of conducting necessary testing. Sublett contends that the Grant of Easement allows construction of a temporary road for development-related purposes until the County approves the final location of the easement and issues construction permits. In April 2016, plaintiff hired a civil engineering firm “to design a temporary gravel access road.” (FAC, ¶18, lines 7-8.) In August 2016, plaintiff submitted to the Santa Barbara County Planning and Development Department an application for a land use permit to use the easement “for the purpose of enabling drilling rigs to complete well and septic testing for a future residence.” (FAC ¶19, lines 13-14.) Plaintiff alleges that defendants breached the underlying settlement agreement and acted unfairly and in bad faith by refusing to “consent to and support” his land use permit and by “taking various actions with the intent to persuade Planning and Development to deny his land use application.” (FAC, ¶46, lines 13-14, ¶47, lines 17-18.)

“[A] hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” Fremont Indemnity Company v. Fremont General Corporation (2007) 148 Cal.App.4th 97, 114. In this case, there is a factual and evidentiary dispute over whether the settlement agreement and Grant of Easement require Sublett to obtain all governmental approvals before making any use of the easement. Defendants argue that approval from the County is first required, while Sublett argues that there is nothing in the language of either document stating that he may not construct a temporary roadway through the easement area to allow access to vehicles needed to conduct well and septic testing before obtaining governmental approval. Because the proper interpretation of the settlement agreement and Grant of Easement is disputable, defendants’ motion for judgment on the pleadings as to plaintiff’s breach of contract and bad faith claims will be denied.

Breathed and Wright next argue that Sublett’s third cause of action for interference with easement fails to state facts sufficient to constitute a cause of action. An easement is a restricted, non-possessory right to use or engage in activity upon the property of another. See, Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261. Defendants contend that Sublett cannot allege that they interfered with his use or enjoyment of the easement because the actual location of the easement is still subject to County approval. A defendant cannot interfere with rights that a plaintiff does not yet have. However, to state a cause of action for interference with easement, a plaintiff need only allege (1) the plaintiff’s ownership of an easement over the land of the defendant and (2) the defendant’s interference with the plaintiff’s use of the easement. Metzger v. Bose (1957) 155 Cal.App.2d 131, 133. Here, Sublett alleges that he “owns an Easement appurtenant to the Sublett Property and burdening the Breathed Property” and that defendants “interfered with and obstructed” his use of the easement by removing the drainage piping that had been placed on the easement, dumping debris on the easement, and installing a metal chain across the easement. (FAC, ¶64, lines 16-17, ¶67, lines 23-28.) While defendants disagree with plaintiff’s claims, the FAC alleges sufficient facts to state a cause of action for interference with easement.

Sublett’s fourth cause of action for conversion is likewise sufficiently pleaded. Defendants argue that plaintiff’s conversion claim fails because the property Breathed allegedly converted was real property, not personal property. “[I]t is generally acknowledged that conversion is a tort that may be committed only with relation to personal property and not real property.” Munger v. Moore (1970) 11 Cal.App.3d 1, 7. Real property consists of land and items affixed to land, such as drainage pipes, catch basins, and concrete culverts. Civ. Code §658; see, Garden Water Corporation v. Fambrough (1966) 245 Cal.App.2d 324, 327 (pipelines buried under ground are real property). The FAC, however, alleges that the property at issue was “personal property” used for temporary drainage and erosion control and that defendants removed and destroyed the personal property. (FAC, ¶74, lines 6-7, ¶76, lines 12-17.) Although defendants again disagree, “judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.” Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.

Based on the foregoing, Breathed and Wright’s motion for judgment on the pleadings will be denied.