James F. Zissler v. Patrick J. Saville
Case No: 16CV02421
Hearing Date: Mon Jun 17, 2019 9:30

Nature of Proceedings: Hearing re Proposed Judgment on Remittitur; Motion Judgment

James F. Zissler v. Patrick J. Saville, #16CV02421, Judge Sterne

Hearing Date: June 17, 2017

Matter: Entry of Judgment on Remittitur

Attorneys:

For Plaintiff/Cross-Defendant: James H. Smith; G. Michael Brelje (Grokenberger & Smith)

For Defendant/Cross-Complainant: A. Barry Cappello, David L. Cousineau (Cappello & Noël)

Tentative Ruling: See below.

Background: This action arises out of an express easement for vehicular and pedestrian ingress and egress that exists over the property of plaintiff James F. Zissler, Trustee of the James F. and Ellen W. Zissler Living Trust, in favor of the property of defendant Patrick J. Saville, Trustee of the PJS Trust. Zissler’s predecessor in interest granted the easement to Saville’s predecessor in interest in a document recorded on January 21, 1994, which easement was clarified in a document recorded on March 18, 1994 (hereinafter “the Easement”).

The original express Easement and subsequent clarification are both entitled “EASEMENT GENERAL.” As stated in the clarification recorded on March 18, 1994, the purpose of the Easement is: “Providing Grantee access, ingress and egress to vehicles and pedestrians over Grantor’s real property from Green Meadows Road to Grantees’ real property” The grant reads as follows: “An Easement over, across and on the most easterly portion of Grantors’ real property, said Easement being uniformly ten (10) feet in width, running along the westerly side of the boundary line between Assessor’s Parcel Numbers 011-180-23-7 (now or formerly the real property of Scott and Kirkley Wilson) and 011-180-24’5 (Grantors’ real property), approximately 90.46 feet in length from a point of access on Green Meadows Road to a point of access on Grantees’ real property.”

Zissler filed a complaint for declaratory and injunctive relief. Saville filed a cross-complaint for 1) quiet title to the Easement, 2) declaratory relief—no restrictions on Easement, 3) declaratory relief—Saville’s maintenance of the Easement, 4) trespass, 5) public nuisance—the palm tree nursery, 6) private nuisance—the palm tree nursery, 7) unjust enrichment, and 8) injunction. Prior to trial, Saville dismissed the fourth, fifth, sixth, and seventh causes of action in the cross-complaint without prejudice.

Zissler contended that the Easement was a general easement, was ambiguous on its face, and was limited by its historical use as an infrequent and secondary means of ingress and egress to the Saville property for landscaping purposes, being used by light vehicle and pedestrian traffic not exceeding 12 trips per year. Saville contended he has an unlimited and unrestricted right to use the Easement. The dispute was prompted by Saville’s use of the Easement for a construction project, including heavy construction vehicles, construction workers, building materials, and supplies in excess of the historical use of the Easement.

After trial, the court found the Easement was a general easement and was ambiguous. The court admitted extrinsic evidence to interpret the Easement. The court entered “Judgment for Declaratory Relief and Injunctive Relief declaring, ordering, adjudging, and enjoining as follows: A. The Easement maybe used for vehicle and pedestrian access, ingress, egress, and maintained consistent with that set forth below: (1) The Easement road surface shall remain unpaved. (2) The Easement may be used for vehicle access, ingress and egress, from time-to time, but only as reasonably necessary for landscape maintenance at the rear of the Saville property and other incidental use, at occasional and reasonable times. (3) Vehicles using the Easement must be of a size and weight to safely navigate the Easement, stay within the 10-foot width and the 90-foot length of the Easement, and not cause damage to the Easement surface. (4) The Easement may not be used for access, ingress and egress related to construction activity on the Defendant’s property or any other purpose inconsistent with that stated above. (5) Pedestrians may use the Easement for access to, and ingress and egress to and from, the Defendant’s property as reasonably necessary for landscape and other incidental use, at occasional and reasonable times. (6) Other than as stated, the Easement may not be used for any other purposes nor may the Easement be used more frequently than that stated above.”

The court granted an injunction against use of the easement inconsistent with the above. The court ruled that Saville would take nothing by way of the cross-complaint and denied all affirmative defenses; denied Zissler’s request for attorney fees; reserved jurisdiction over the case “as there may well be future disputes over the Easement”; and awarded costs to plaintiff.

Saville appealed the court’s judgment. Zissler filed a cross-appeal but dismissed that appeal.

The Court of Appeal reversed the trial court’s judgment. Zissler v. Saville, 29 Cal.App.5th 630 (2018). The Court of Appeal decided that the trial court erred in finding the Easement was a general easement, finding that the Easement was ambiguous, and admitting extrinsic evidence to interpret the Easement. Id. at 639-645. The court stated: “There is nothing objectively ambiguous about the easement.” Id. at 640.

The Court of Appeal noted that, in the opening brief, Saville stated that the issue of access for his construction project had become moot “and its

reasonableness under a proper interpretation of the Easement’s unlimited scope does not have to be considered.” Id. at 638. “Since appellant concedes that the case has become moot to the extent it concerns access for his construction project, we need not review the portion of the judgment prohibiting him from using the easement for construction activities.” Id. As for paving the Easement, the court stated: “Since appellant will not be using the easement for his construction project, he has not shown that paving the easement at this time is reasonably necessary to keep it in repair and fit for its intended use. Therefore, the paving prohibition shall remain unless and until there is a proven need for paving.” Id. at 645.

The Court of Appeal remanded the matter to this court with directions to prepare a new judgment consistent with the views expressed in its opinion. The court stated:

The trial court is not required to incorporate in the judgment the exact language set forth below. It may vary the language so long as its essence is preserved. The new judgment should include a provision that the easement may be used to the extent that the use is reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted, i.e., access, ingress and egress to vehicles and pedestrians over Grantors’ real property from Green Meadows Road to Grantees’ real property, provided that the use does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially increase the burden on the servient estate.

Id. at 645-646.

Judgment on Remand: The court is now tasked with fashioning a judgment on remand. By stipulation, the court set a briefing schedule. Saville proposes a judgment in his favor and provides that he recover his costs. The portion of the proposed judgment regarding the Easement reads as follows:

The Easement is not ambiguous, and may be used to the extent that the use is reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted, i.e., access, ingress and egress to vehicles and pedestrians over Plaintiff’s real property from Green Meadows Road to Defendant’s real property, provided that the use does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially and unreasonably increase the burden on the servient estate beyond that purpose.

Zissler objects to this proposed judgment in the following respects: 1) The judgment should not be in favor of or against either party. 2) Saville is not the prevailing party; there is no prevailing party. Saville did not prevail in full on the declaratory and injunctive relief causes of action. Zissler obtained a dismissal in its favor on four causes of action in the cross-complaint. 3) The proposed judgment omits the prohibition of use of the easement for construction. 4) The proposed judgment omits the prohibition of paving the Easement. 5) The proposed judgment omits the reservation of jurisdiction.

Zissler asks for 15 minutes of oral argument on these issues.

1. Substantive Terms of Judgment:

a. Court of Appeal Decision: As far as it goes, the operative paragraph of the proposed judgment is identical to the language suggested by the court of appeal, except Saville added the words “The Easement is not ambiguous” at the beginning and “beyond that purpose” at the end.

The Court of Appeal clearly held that the Easement is not ambiguous. “[T]here is no objective legal ambiguity in the easement here at issue.” Id. at 634. “There is nothing objectively ambiguous about the easement.” Id. at 640.

The court believes the “beyond that purpose” language is a material change from what the Court of Appeal suggested. The Court of Appeal added the language that the Easement “may be used to the extent that the use is reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted.” That language is not in the Easement grant or clarification.

Then the court stated: “provided that the use does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially and unreasonably increase the burden on the servient estate.” This is where Saville proposes to add “beyond that purpose.” But the way the Court of Appeal structured its decision, the “provided that” language limits even a use within the purpose of the grant. The court will not include the “beyond that purpose” language that the Court of Appeal did not include in its ruling.

b. Construction: The trial court judgment provided: “The Easement may not be used for access, ingress and egress related to construction activity on the Defendant’s property or any other purpose inconsistent with that stated above.” The Court of Appeal stated that, because the appeal had become moot to the extent it concerns access for Saville’s construction project, the court need not review the portion of the judgment prohibiting Saville from using the easement for construction activities. Based on this language in the opinion, Zissler wants any judgment to retain the construction prohibition.

The Court of Appeal did not review the portion of the judgment prohibiting construction activities. On appeal, by declaring the issue moot, Saville did not ask the Court of Appeal to order that portion of the judgment reversed. Zissler contends that Saville’s voluntary compliance with the construction prohibition waived any appeal of that provision. (Saville says that the Court of Appeal adjudicated this issue raised in the petition for rehearing when it denied the petition. But denial of rehearing does not necessarily adjudicate all the issues asserted in the petition. The court could simply have determined that its opinion already addressed the issues.)

“A party who voluntarily complies with the terms of a judgment … impliedly waives the right to appeal from it.” Ryan v. California Interscholastic Federation, 94 Cal.App.4th 1033, 1040 (2001). “However, compliance or satisfaction that is compelled does not constitute a waiver of the right to appeal. Such a waiver is implied only where the satisfaction or compliance is the product of compromise or is coupled with an agreement not to appeal.” Id. It is not apparent that the compliance was voluntary as opposed to compelled. To proceed with construction during the period from the August 25, 2017 judgment to the appellate decision 15 months later, Saville had no choice but to refrain from use of the Easement for construction purposes.

The court is bound by the Court of Appeal’s remand “to prepare a new judgment consistent with the views expressed in this opinion.” By stating the construction use prohibition and adding “or any other purpose inconsistent with that stated above,” the trial court incorporated the landscape maintenance purpose and other incidental use. The Court of Appeal expressly reversed that limitation on use. Therefore, the language “or any other purpose inconsistent with that stated above” cannot remain in the judgment. The construction prohibition was included because of the trial court’s determination that the Easement was limited to landscape purposes. Therefore, the construction prohibition, too, is inconsistent with the Court of Appeal’s ruling.

The court will not include the construction prohibition in the judgment. Use of the Easement for construction purposes may still be beyond the Court of Appeal’s description of use of the Easement, i.e., use that is “reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted” and use that “does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially increase the burden on the servient estate.” But that must await a controversy where construction use is not moot.

c. Paving: With respect to paving, the Court of Appeal was unequivocal: “the paving prohibition shall remain unless and until there is a proven need for paving.” The court will include the existing language with the Court of Appeal’s conditional language. The judgment shall provide: “The Easement road surface shall remain unpaved unless and until there is a proven need for paving.”

d. Reserved Jurisdiction: The trial court reserved jurisdiction in its judgment: “The Court will reserve jurisdiction over this case as there may well be future disputes over the Easement.” The Court of Appeal did not address this portion of the judgment.

With the present construction and paving issues resolved, there is no present controversy. While there can always be future disputes, the lack of ambiguity of the Easement as decided by the Court of Appeal lessens the likelihood of future disputes as to the scope of the Easement. The court sees no reason to retain jurisdiction.

e. Prevailing Party: CCP § 1032(a)(4) provides:

“Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

No party obtained monetary relief.

Zissler sought judgment based on an ambiguous easement grant and limitations evidenced by the intent of the parties and historical use. While he prevailed at trial, he achieved none of those objectives on appeal, except for the remaining paving prohibition.

Saville obtained a ruling that the Easement is unambiguous. However, he did not seek the Court of Appeal’s reasonableness limitation or the provision that use of the Easement not unreasonably interfere with the enjoyment of, unreasonably damage, or materially increase the burden on Zissler’s property. Nor did he achieve an express allowance of use of the Easement for construction purposes, having abandoned that position on appeal.

Saville’s relief is nonmonetary. Thus, even if he is the prevailing party, the court has the discretion not to allow him costs. Hinrichs v. Melton, 11 Cal.App.5th 516, 528 (2017). In Hinrichs v. Melton, the court imposed easements, which were “costly enough for the defendants without the addition of court costs.” Id.

The court is ordering that the Easement is not as limited as Zissler contended, nor as broad and unlimited as Saville contended. The court finds there is no prevailing party and each side shall bear its own costs.

f. Judgment: The court will enter judgment as follows:

This matter is on remand from the Court of Appeals decision in Zissler v. Saville (2018) 29 Cal.App.5th 630. Plaintiff, James F. Zissler Trustee of the James F. and Ellen W. Zissler Living Trust, and Cross-Defendants James F. Zissler, Trustee of the James F. and Ellen W. Zissler Living Trust and James F. Zissler, individually (collectively “Plaintiff’) were represented by Rogers, Sheffield, and Campbell, LLP by James H. Smith and G. Michael Brelje.

Defendant and Cross-Complainant, Patrick J. Saville, Trustee of the PJ S Trust dated July 22, 2007 (“Defendant”) was represented by Cappello & Noél LLP, by A. Barry Cappello, David L. Cousineau, and Jasper L. Ozbirn.

Plaintiff owns the real property commonly known as and located at 584 Stone Meadow Lane, Montecito, California (the “Plaintiff’s Property”). The Plaintiff’s Property is more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference. This Judgment concerns and affects the Plaintiff’s Property.

Defendant owns the real property commonly known as and located at 565 Picacho Lane, Montecito, California (the “Defendant’s Property”). The Defendant’s Property is more particularly described in Exhibit “B” attached hereto and incorporated herein by this reference. This Judgment concerns and affects the Defendant’s Property.

This lawsuit relates to the interpretation of an easement recorded with the Santa Barbara County Recorder’s Office as Instrument Number 94-024055 (the “Easement”). On appeal, the Court of Appeal found that “[t]here is nothing objectively ambiguous about the [E]asement,” and that it was limited only to uses that are “reasonably necessary and consistent with the purpose for which the [E]asement was granted, i.e., access, ingress and egress to vehicles and pedestrians over [Plaintiff’s] real property from Green Meadows Road to [Defendant’s] real property.” 29 Cal.App.5th at 640, 643. The Court of Appeal then reversed the August 25, 2017 Judgment in this matter and remanded the case with the following directions:

[T]o prepare a new judgment consistent with the views expressed in this opinion. The trial court is not required to incorporate in the judgment the exact language set forth below. It may vary the language so long as its essence is preserved. The new judgment should include a provision that the easement may be used to the extent that the use is reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted, i.e., access, ingress and egress to vehicles and pedestrians over Grantors’ real property from Green Meadows Road to Grantees’ real property, provided that the use does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially increase the burden on the servient estate.

Id. at 645-646.

NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

The Easement is not ambiguous, and may be used to the extent that the use is reasonably necessary for the convenient enjoyment of the easement and is consistent with the purpose for which the easement was granted, i.e., access, ingress and egress to vehicles and pedestrians over Plaintiff’s Property from Green Meadows Road to Defendant’s Property, provided that the use does not unreasonably interfere with the enjoyment of, unreasonably damage, or materially and unreasonably increase the burden on the servient estate.

The Easement road surface shall remain unpaved unless and until there is a proven need for paving.

The Court finds there is no prevailing party. No costs shall be allowed or awarded to Plaintiff or Defendant under Code of Civil Procedure section 1032(a)(4).

Pursuant to the opinion of the Court of Appeals, second Appellate District, Division Six, the August 25, 2017 Judgment in this case is vacated and replaced with this Judgment.

(Exhibits A and B to this judgment shall be the same as Exhibits A and B to the original judgment.)