Lopez v. Agnes Harutunian Trust























Filed 8/9/12 Lopez v. Agnes Harutunian Trust CA2/7

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




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MARTIN ROBLES LOPEZ, et al., Plaintiffs and Respondents, v. AGNES HARUTUNIAN TRUST, et al., Defendants and Appellants.

B235154 (Los Angeles County Super. Ct. No. BC348682)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Rolf M. Treu,
Judge. Affirmed as modified.



Ronald
K. Granit; Law Office of Amy J. Cooper and Amy J. Cooper for Defendants and
Appellants.



Pistone
& Wolder, Thomas A. Pistone and Amy Mousavi for Plaintiffs and Respondents.



_____________________________





INTRODUCTION

This is the third appeal in this
case, challenging the trial court’s entry of judgment entered pursuant to a
valid covenant and agreement for parking.
We find the judgment is properly modified, and as so modified, affirm.

FACTUAL AND
PROCEDURAL SUMMARY

As we summarized in our prior
opinion, in their first appeal, “the defendants challenged the trial court’s
judgment determining the plaintiffs’ entitlement to an easement for parking on
the defendants’ property—both by way of a recorded covenant and agreement and
by prescription. The defendants
appealed, claiming the original recorded easement was either void or released,
the same easement could not be granted both by grant and by prescription and
the finding of a prescriptive easement was not supported by substantial
evidence. We affirmed the trial court’s
judgment to the extent it upheld the validity of the recorded easement but
reversed it to the extent it was based on the finding of a prescriptive
easement. On remand, the trial court
entered an amended judgment, stating the recorded covenant and agreement giving
the plaintiffs an easement for three parking spaces was valid. Further, the trial court quieted title to the
easement described in the covenant (attached as an exhibit to the judgment) and
ordered immediate enforcement of the covenant, specifying that the defendants
were permanently enjoined from obstructing the plaintiffs’ use of the easement
and ordered to immediately remove pallets blocking the easement and to provide
plaintiffs with a key to the gate to allow access to the easement.

“In their second appeal, the
defendants claim[ed] the second judgment must be reversed because it does not
comply with our prior opinion.” (>Lopez v. Harutunian Trust (B219689, Feb. 8, 2011 [nonpub. opn.].) We found the judgment was properly modified
in certain respects, and as so modified, affirmed. More particularly, we had previously
“rejected the Harutunians’ argument the Covenant and Agreement was void (or
that the Harutunians have proven it had been terminated).[] However, we agreed the trial court had erred
in concluding Montes de Oca and Lopez had proven a prescriptive easement for
the same parking spaces defined in the Covenant and Agreement. Accordingly, we
stated as follows: ‘The judgment is
affirmed to the extent it upholds the validity of the 1959 Covenant and
Agreement, but reversed to the extent it is based on the finding of a
prescriptive easement. The matter is
remanded to the trial court with directions to enter a new and different
judgment consistent with this determination.
The parties are to bear their own costs of appeal.’” (Lopez
v. Harutunian Trust (B219689, Feb.
8, 2011 [nonpub. opn.].)

On remand, the parties’ again
submitted their proposed judgments.
After hearing argument and taking the matter under submission, the trial
court entered judgment.

The judgment entered on June 15, 2011 provides:

“IT IS ORDERED, ADJUDGED AND DECREED that

“1) On
the Cross-Complaint, Judgment is entered in favor of Cross-Defendants MARTIN
ROBLES LOPEZ and FRANCISCA MONTES DE OCA, and against Cross-Complainants
BARBARA HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN TRUST;
PATRICIA HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST; SAMUEL HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST, on all claims.

“2) On
the First Amended Complaint, the Judgment is entered in favor of Plaintiffs
MARTIN ROBLES LOPEZ and FRANCISCA MONTES DE OCA, and against Defendants AGNES
HARUTUNIAN TRUST, dated 1986; BARBARA HARUTUNIAN, an individual and Co-Trustee
of the AGNES HARUTUNIAN TRUST; PATRICIA HARUTUNIAN, an individual and
Co-Trustee of the AGNES HARUTUNIAN TRUST; SAMUEL HARUTUNIAN, an individual and
Co-Trustee of the AGNES HARUTUNIAN TRUST (hereinafter collectively
‘DEFENDANTS’, on all claims, except for cause of Action for Easement by
Prescription and as specifically set forth in paragraphs three (3) through
eight (7) [sic], infra.

> “3) The Covenant and Agreement Regarding the
Maintenance of Off-Street Parking Space (hereinafter ‘Covenant’, dated August
7, 1959 and recorded in Official Records of the County of Los Angeles at Book
M335, page 829, attached hereto as Exhibit ‘1,’ giving Plaintiffs MARTIN
ROBLES LOPEZ and FRANCISCA MONTES DE OCA (hereinafter ‘PLAINTIFFS’, owners
of real property located at 1106-1108 South Central Avenue, >an EASEMENT consisting of three usable and
accessible eight feet by eighteen feet automobile parking spaces to be
maintained on the real property located at 1024 South Central Avenue, legally
described as ‘Lot 156 of Alexandre Weill Tract in City of Los Angeles, County of
Los Angeles, State of California per map recorded in Book 26, Page(s) 85 and 86
of Miscellaneous Records, in the Office of the County Recorder,’ to serve the
users of the buildings located at 1106-1108 South Central Avenue,> IS VALID.

> “The
Court therefore ORDERS immediate enforcement of the COVENANT.

“4) >SO LONG AS THE COVENANT IS VALID, Defendants
AGNES HARUTUNIAN TRUST, dated 1986; BARBARA HARUTUNIAN, an individual and
Co-Trustee of the AGNES HARUTUNIAN TRUST; PATRICIA HARUTUNIAN, an individual
and Co-Trustee of the AGNES HARUTUNIAN TRUST; SAMUEL HARUTUNIAN, and individual
and Co-Trustee of the AGNES HARUTUNIAN TRUST and their agents, servants, and employees, and all persons acting
under, in concert with, or for them, ARE ENJOINED from interfering with and
obstructing Plaintiffs’ use of Plaintiffs’ Easement.

“5) >DEFENDANTS ARE ORDERED to >immediately remove any and all pallets
blocking Plaintiffs’ Easement and to provide Plaintiffs with a key to the gate
for Plaintiffs’ access to their Easement.

“6) >Plaintiffs are awarded Costs against all
DEFENDANTS in the amount of _________.

“7) This
Judgment shall be recorded in the County
Recorder’s Office.”

The Harutunians filed a motion to
vacate the judgment which the trial court denied, finding the judgment to be in
conformity with this court’s prior opinion and rejecting the Harutunians’
attempts to raise arguments for the first time in reply papers.

The Harutunians appeal.href="#_ftn1" name="_ftnref1" title="">^[1]

>DISCUSSION

According to the Harutunians,
paragraph 2 of the judgment should be stricken in its entirety as
surplusage. Paragraph 3 should
read: “The Covenant and Agreement
Regarding the Maintenance of Off-Street Parking Space (hereinafter ‘Covenant’,
dated August 7, 1959 and recorded in Official Records of the County of Los
Angeles at Book M335, page 829, attached hereto as Exhibit ‘1,’ [deleting
reference to Lopez and Montes de Oca, the particular property involved, and the
accessibility of three usable parking spaces on the property] >IS VALID.”
Paragraph 4 should either be deleted or modified to read: “SO
LONG AS THE COVENANT IS VALID, Defendants AGNES HARUTUNIAN TRUST, dated
1986; BARBARA HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST; PATRICIA HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST; SAMUEL HARUTUNIAN, and individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST and their agents, servants, and
employees, and all persons acting under, in concert with, or for them, [deleting
language enjoining interference with plaintiffs’ use of the easement and
inserting the following:] >ARE TO COMPLY WITH THE EXPRESS TERMS AND
CONDITIONS OF THE COVENANT.”
Finally, they assert, paragraphs 5 and 6 should be stricken as
inconsistent with our prior opinion.href="#_ftn2" name="_ftnref2" title="">^[2]

As stated in our prior opinion, the
recorded covenant of easement is made by an owner of real property to a city or
county—in this case, the City of Los Angeles (Gov. Code, § 65871, subd. (a) [>easement created by recorded covenant];
and see subd. (b), italics added [“The covenant shall be effective when
recorded and shall act as an easement
pursuant to Chapter 3 (commencing with section 801) of Title 2 of Part of
Division 2 of the Civil Code . . . .”]), and by its terms,
the Covenant and Agreement “shall run with the land and shall be binding upon
ourselves, any future owners, encumbrancers, their successors, heirs or
assignees and shall continue in effect so long as said building to be served is
maintained without providing off street automobile parking spaces on the same
lot and/or another lot as required by the provisions of the Los Angeles
Municipal Code or unless otherwise released by authority of the Superintendent
of Building of the City of Los Angeles.”
(Gov. Code, § 65874 [ordinance shall provide procedure for release of
recorded covenant of easement upon determination restriction is no longer
necessary to achieve land use goals of city or county].)

Consequently, we agree that the
judgment should be modified to provide that the Covenant and Agreement is
between the Harutunians and the City of Los Angeles
(and not between the Harutunians, on the one hand, and Lopez and Montes de Oca
on the other) for three parking spaces on the property specified in the
Covenant and Agreement. With respect to
the Harutunians’ contention they should be able to restructure their fence to
accommodate the required parking spaces, we reiterate that regardless of the
manner in which they satisfy this obligation, the Harutunians must immediately
provide and maintain three “usable and
accessible” (8 feet by 18 feet)
automobile parking spaces as specified in the Covenant and Agreement. (Italics added.)

Further, contrary to the assertions
of the Harutunians’ counsel at oral argument that only the City may enforce the
Covenant and Agreement, we emphasize that subdivision (d) of Government Code
section 65871 specifically provides: “A
covenant executed pursuant to this section shall be enforceable >by the successors in interest to the real
property benefited by the covenant.”
(Italics added.) Furthermore,
section 65875 expressly states: “Nothing
in this article shall create in any person other than the city or county >and the owner of the real property burdened
or benefited by the covenant standing to
enforce or to challenge the covenant or any amendment thereto or release
therefrom.” (Italics added.) Clearly, Lopez and Montes de Oca are the
owners of the property benefited by the Covenant and Agreement, and unless and
until the covenant is released (Gov. Code, § 65874), they have standing to
enforce this covenant.

DISPOSITION

The judgment is affirmed as
modified.

More precisely, the judgment should
be modified as follows (and in all other respects affirmed):

“IT IS ORDERED, ADJUDGED AND DECREED that

“1) On
the Cross-Complaint, Judgment is entered in favor of Cross-Defendants MARTIN
ROBLES LOPEZ and FRANCISCA MONTES DE OCA, and against Cross-Complainants
BARBARA HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN TRUST;
PATRICIA HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST; SAMUEL HARUTUNIAN, an individual and Co-Trustee of the AGNES HARUTUNIAN
TRUST, on all claims.

“2) On
the First Amended Complaint, Judgment is entered in favor of Plaintiffs MARTIN
ROBLES LOPEZ and FRANCISCA MONTES DE OCA, and against Defendants AGNES
HARUTUNIAN TRUST, dated 1986; BARBARA HARUTUNIAN, an individual and Co-Trustee
of the AGNES HARUTUNIAN TRUST; PATRICIA HARUTUNIAN, an individual and
Co-Trustee of the AGNES HARUTUNIAN TRUST; SAMUEL HARUTUNIAN, an individual and
Co-Trustee of the AGNES HARUTUNIAN TRUST (hereinafter collectively
‘DEFENDANTS’, on all claims, except for the cause of action for easement by
prescription and as specifically set forth in paragraphs three (3) through six
(6), infra.

> “3) The Covenant and Agreement Regarding the
Maintenance of Off-Street Parking Space (hereinafter ‘Covenant’, dated August
7, 1959 and recorded in Official Records of the County of Los Angeles at Book
M335, page 829, attached hereto as Exhibit ‘1,’ between the City of Los Angeles
and Defendants’ predecessor-in-interest,

agreeing
to provide and maintain an off street parking area containing not less than 3
usable and accessible (eight feet by eighteen feet) automobile parking spaces
on the property located at 1024 S. Central Avenue to serve the users of the
building located at 1108 S. Central Avenue, as more particularly described in
Exhibit ‘1,’ IS VALID.

> “The
Court therefore ORDERS immediate enforcement of the COVENANT.

“4) >SO LONG AS THE COVENANT IS VALID,
Defendants AGNES HARUTUNIAN TRUST, dated 1986; BARBARA HARUTUNIAN, an
individual and Co-Trustee of the AGNES HARUTUNIAN TRUST; PATRICIA HARUTUNIAN,
an individual and Co-Trustee of the AGNES HARUTUNIAN TRUST; SAMUEL HARUTUNIAN,
and individual and Co-Trustee of the AGNES HARUTUNIAN TRUST and their agents,
servants, and employees, and all persons acting under, in concert with, or for
them, ARE ORDERED TO COMPLY WITH THE
EXPRESS TERMS AND CONDITIONS OF THE COVENANT, including the covenant> to provide and maintain an off street
parking area containing not less than 3 usable and accessible (eight feet by
eighteen feet) automobile parking spaces on the property located at 1024 S.
Central Avenue to serve the users of the building located at 1108 S. Central
Avenue, as more particularly described in Exhibit ‘1.’

“5) >Plaintiffs are awarded Costs against all
DEFENDANTS in the amount of _________.

“6) This
Judgment shall be recorded in the County Recorder’s Office.”

The parties are to bear their own
costs of appeal.







WOODS,
Acting P. J.



We concur:







ZELON, J. JACKSON,
J.