Palmer v. Silveira
Filed 3/19/13 Palmer v. Silveira CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
ALAN B. PALMER, as Trustee,
etc., et al.,
Plaintiffs,
Cross-defendants, and Respondents,
v.
ANTHONY P. SILVEIRA, as
Trustee, etc., et al.,
Defendants,
Cross-complainants and Appellants.
H037588
(Santa Cruz
County
Super. Ct.
No. CV163244)
Plaintiffs
Alan Palmer and Santa Cruz Properties LLC brought this action against
neighboring landowners Anthony and Kandy Silveira, to expunge certain recorded
agreements between defendants and the parties’ common predecessors in interest
insofar as those agreements might establish or give record notice of servitudes
burdening plaintiffs’ property. From a
judgment in plaintiffs’ favor, defendants appeal. Plaintiffs contend that defendants have not
preserved their challenges to the judgment.
We reject this contention, but conclude that defendants have not carried
their burden of establishing reversible
error. Accordingly, we will affirm
the judgment.
It is
undisputed that defendants own property at 4630 West
Walnut Street in Soquel, unincorporated
County.
title="">[1] Plaintiff Palmer owns property two doors to
the west of defendants’ parcel.
Plaintiff Santa Cruz Properties owns two parcels fronting on Porter
Street, the more northern of which touches
defendants’ southern boundary. Prior to
1986, all of these properties were apparently owned by May Gravenhorst Stauffer
and Peter J. Gravenhorst (collectively, Gravenhorst/Stauffer).
On June 21, 1985, defendants entered
into an agreement to purchase 4630 Walnut Street
from Gravenhorst/Stauffer. Although the
record fails to competently establish many of the pertinent details of the
sale, recitals in the documents at issue suggest that by the time the sale
closed, the property was being used for partly residential and partly
commercial purposes.
name="_ftnref2" title="">[2] According to defendants’ trial brief, the
purchase agreement “was conditioned upon [their] ability to convert this
property from residential to commercial property.†They assert that among the permit conditions
was the provision of eight parking spaces, which was four more than were
located on the 4630 Walnut parcel. The
county also required that defendants enter into a joint parking and circulation
agreement with Gravenhorst/Stauffer, to be reviewed and approved by county
planners.
In June
1986, the parties executed, and defendants recorded, the two agreements that
are the subject of this action. One of
them, entitled “Use Agreement,†recited the parties’ intention to address
certain requirements “to be imposed by†county planning authorities “on the
said property related to its partial current use as residential property.†As here relevant it provided that “[i]n the
event the County . . . imposed [sic]
additional parking requirements and a recreational area requirement covering
the residential use,†the sellers would “make available to Buyer on adjacent
properties owned by Seller . . . , . . .
four parking spaces, and a required 400 Sq. Ft. vacant parcel to be improved
and landscaped at Sellers[’] expense as required by Santa Cruz County.†Defendants would pay $8,000 for the parking
spaces and $6,000 for the vacant parcel.
Under stated circumstances, defendants would be obligated to sell these
spaces back to the sellers at the same price.
The agreement addressed other matters as well, but is discussed by the
parties only as it called for the sale of the parking spaces; we will therefore
refer to it as the “parking agreement.â€
The second
agreement, entitled “Road Maintenance and Circulation Agreement,†recited that
it “pertain[ed] to†a “right of way described as Parcel Four†in an attached
exhibit. The exhibit depicted a road or
causeway apparently traversing or touching upon five properties, including
defendants’ property, two of plaintiffs’ four parcels, and another property
owned by the Bermans, who were named in the pleadings below but not brought
into the action. The agreement set out
certain rights and obligations with respect to the depicted roadway, stated
that “the rights and responsibilities contained in the Agreement shall
constitute covenants running with the land,†and expressed the parties’ intent
“to obligate themselves, their heirs, personal representatives, successors and
assigns to maintain and improve said road in accordance with the terms and
conditions of this agreement.†However
the agreement further provided that “[d]epending on when the commercial
development/improvements are approved†for the remaining parcels, “vehicle,
pedestrian, parking and circulation arrangements shall be planned and agreed in
writing between each parcel mentioned above.â€
In addition, it was said to be the sellers’ intention that they or their
successors would “further develop the existing vehicle and pedestrian right of
way to enter off Porter Street
to run through [three specified parcels] and cut out of [one of them] to
ultimately exit into West Walnut.†The
agreement also referred to an existing “recorded right of way†already serving
defendants’ property. We will refer to
this agreement as the “road agreement.â€
Plaintiffs
commenced this action on March 25,
2009, by a verified complaint in which they alleged that they were
“engaged in a business enterprise involving potential integration of their
properties in connection with parking and traffic flow for . . .
improvements to be constructed under the Santa Cruz
County permit process.†The first cause of action sought declaratory
relief, in that plaintiffs contended that the parking and road agreements
“rested upon specific conditions which never took place and for that reason
endow[ed] defendants with no assertable rights,†whereas defendants contended
that the instruments “comprehend the eventual development of the properties now
owned by plaintiffs and that the parking rights contained in these documents
were paid for and persist in their vitality.â€
Plaintiffs sought “a declaration of rights and duties of the parties
respecting the validity†of the instruments in relation to plaintiffs’
properties.
In the
second cause of action, plaintiffs sought a decree quieting title in themselves
and declaring their property “to be free and clear of any encumbrances, rights
of way, or other obligations resulting or arising from the recordation of†the
challenged instruments. In the third
cause of action they sought “a judgment cancelling†those instruments “from the
public records of Santa Cruz County, California.â€
On May 6, 2009, defendants filed an
answer consisting of a general denial and a number of affirmative defenses.
for Damages (Slander of Title)†alleging that plaintiffs had wrongfully failed
to disclose the road and use agreements in an application seeking permits to
develop plaintiffs’ parcels. This
conduct was alleged to have “adversely impaired the vendibility of
cross-complainants[’] property,†causing damages in unspecified amounts. The conduct was also alleged to have been
malicious, warranting punitive damages.
Defendants subsequently sought and obtained leave to amend the
cross-complaint to add the previously unnamed neighbors, Dale and Terry Berman,
as necessary parties and to assert additional causes of action for
injunctive relief. It does not
appear that the Bermans were ever served with the cross-complaint—or the
complaint, in which they had also been named.
In a trial
brief plaintiffs asserted that the road and parking agreements “address[ed] an
entirely conditional set of circumstances which never took place.†In essence, they claimed that the instruments
were intended to address certain planning requirements that defendants might
encounter in converting their property to commercial use, but that the county
had never imposed these requirements and the instruments no longer served any
purpose. “There has never been a ‘road’
in the parcels described,†plaintiffs’ counsel wrote; “instead, without any
interference or additional conditions imposed by the County
of Santa Cruz, Silveiras have
continuously maintained their property with a commercial rental on the first
floor and residential apartments on the second floor. Parking has never been an issue.†The memorandum further asserted that in
recent years, a parking district had been formed “providing more than ten
public parking spaces . . . across from [defendants’] property.†It described the parking agreement as a
“hoax†under which plaintiffs could satisfy planning authorities, if necessary,
by “ ‘buy[ing]’ additional spaces for parking and then ‘sell[ing] back’
the spaces after satisfying the County requirements.â€
Defendants
asserted in their trial brief that they bought their property from
Gravenhorst/Stauffer on the condition that they would be able to convert it
“from residential to commercial [use].â€
Toward that end, “application was made†to the county “for a development
permit.†A permit was granted, but
required that four parking spaces be provided in addition to the four already
on defendants’ property, and that defendants and Gravenhorst/Stauffer “enter
into a joint parking and circulation agreement to be reviewed and approved by
the Planning Department.†Defendants
acknowledged that the county had not yet required them to actually furnish the
additional four parking spaces prescribed by their use permit, but suggested
that it might yet do so, stating, “[S]hould the County impose the actual
parking requirements . . ., [defendants are] relying on the terms of the Use Agreement to
meet the parking requirements and not lose the commercial use of their
property.â€
acknowledged that “A restriction or covenant may not be enforceable where there
has been a material change in conditions to the extent that the original
purpose for the restriction becomes obsolete.â€
This test was not satisfied, however, by the mere fact that plaintiffs
now sought to develop what had been the Gravenhorst/Stauffer property, since
that was “precisely the event that both the County . . . and
[defendants] considered in making these agreements with . . . the
predecessor in interest to plaintiffs.â€
Trial took
place on August 17, 2011. According to the minutes, testimony was
received from plaintiff Alan Palmer and defendant Anthony Silveira. Seven exhibits were received, including a
copy of a project, a planning document, a parcel map, and several color photos
of the property. Plaintiffs’ counsel
made a motion for judgment, which the trial court denied, instead taking the
matter under submission. The record contains no indication that any party
requested a statement of decision.
On August 29, 2011, the court issued a
document entitled “Judgment,†stating in relevant part, “Judgment is rendered
in favor of the Plaintiff and against the Defendants as to the Plaintiff’s
three causes of action: 1) Declaratory
relief, 2) Quiet Title, and 3) Cancellation of Instruments. The Court considers this matter as a good
faith dispute and appreciates the manner in which counsel and the parties
presented their respective views.
However, the subject Road Maintenance and Circulation Agreement and the
Use Agreement were recorded in June, 1986.
Over the next twenty-five years, none of the events which were
contemplated with the creation of these agreements have taken place. A review of Civil Code Sections 885.010,
885.020 and 885.030 lead [sic] this
Court to the conclusion that invalidation of these instruments, in order to
remove whatever clouds upon title they may be causing, is appropriate. It should further be noted that circumstances
have changed in relationship to the Santa Cruz County Ordinances adopted in
1995 and 2009.[
name="_ftnref5" title="">[5]] Judgment in favor of the Plaintiff on the
three causes of action outlined within the complaint. Judgment in favor of the Cross-Defendant on
the related cross-action.â€
On
September 7, 2011, plaintiffs filed a motion to modify the judgment. Although only the notice of motion has been
included in the clerk’s transcript, we requested that the clerk also transmit
copies of the supporting declaration and memorandum of points and authorities,
which we have augmented the record to include.
The gist of the motion was that the “Judgment†of August 29 omitted any
descriptions of the affected properties, and was thus insufficient to give
record notice of “the action taken by the Judge after the court trial
. . . .†Defendants filed
no opposition to the motion. When it was
heard, counsel for defendants appeared and stated that he had communicated a
concern to plaintiffs’ counsel that the proposed judgment included an easement
that had not been at issue in the litigation.
He understood that plaintiffs’ counsel had deleted the objectionable
language. When the court asked whether
the documents as so amended “meet with your approval,†he replied, “Yes. I just want to make it clear for the record
that the Michael Liles easement is not a part of this litigation.†Plaintiff’s counsel affirmed that he
understood this to be the case. The
court indicated that it was signing the modified judgment.
The
modified judgment reiterated the language of the original “Judgment,†but
followed it with four paragraphs spelling out the relief to which plaintiffs
were entitled. It also incorporated some
14 pages of attachments including property descriptions and the two challenged
agreements. It declared that plaintiffs
were “entitled to the ownership of their respective properties as set forth
above free and clear of any claims or rights on the part of Defendants
. . . in or to the said real property of plaintiffs,†and that the
two instruments “are hereby cancelled.â€
On November
10, 2011, defendants filed a notice of
appeal “from the Order Granting Motion to Modify Judgment . . .
entered on October 11, 2011 . . . .†In a notice designating the record on appeal,
they requested a reporter’s transcript only of the oral proceedings at the
hearing on the motion to modify the cross-complaint; no transcript of the trial
was requested.
Discussion
I. Scope
of Appeal
Prior to
the completion of briefing, plaintiffs filed a motion to dismiss the appeal on
the ground that defendants’ failure to appeal from the “underlying judgment†of
August 29, 2011, precluded a challenge to the merits of the trial court’s
adjudication. They contended in effect
that the later judgment was not separately appealable because it made no
substantive change in the earlier one, and that insofar as it did effect a
change, defendants’ counsel had consented to it. We denied the motion.
In their
brief on appeal plaintiffs again raise defendants’ failure to appeal from the
earlier “judgment,†this time as a ground to hold that defendants are barred by
“waiver and estoppel†from contesting the correctness of the trial court’s determination
on the merits. They assert that
plaintiffs could have appealed from the first judgment, and that having failed
to do so they can only challenge the second judgment to the extent that it
differs from the first. Since their
counsel consented to any differences, the argument continues, no part of the
judgment is open to appellate review.
Plaintiffs
could indeed have appealed from the “judgment†of August 29, in the sense that
they could have filed a notice of appeal referring to it. We are not persuaded, however, that such an
appeal would properly lie, i.e., would confer jurisdiction on this court over
the substantive controversy between the parties. Rather we have concluded that the document
issued on August 29 was not an appealable judgment. It did not fulfill the basic function of a
judgment, which is to effect “the final determination of the rights of the
parties in an action or proceeding.â€
(Code Civ. Proc., § 577.) To
perform this function, “ ‘ “[a] judgment must be definitive. By this is meant that the decision itself
must purport to decide finally the rights of the parties upon the issue
submitted, by specifically denying or
granting the remedy sought by the action.†’ †(Kosloff
v. Kosloff (1944) 67 Cal.App.2d 374, 379-380, italics added, quoting
Cal.App.2d 229, 232.) A judgment in
favor of a defendant must ordinarily include an “express declaration of the
ultimate rights of the parties, such as that ‘plaintiffs shall take nothing,’
or ‘the action is dismissed.’ †(
(2002) 99 Cal.App.4th 1, 6; Davis v.
Superior Court (2011) 196 Cal.App.4th 669, 673.) Where judgment is for the plaintiff, it must
actually award the relief to which
the court has found him entitled. (See
224, 229 [statement in judgment that “ ‘plaintiffs have judgment as prayed
for in this complaint’ †would be “deleted from the judgment†as
“uncertain and indefiniteâ€].)
Here
plaintiffs sought three remedies: declaratory
relief concerning the current validity of the road plan and the use plan, a
decree quieting title as against those instruments, and a judgment cancelling
them. The purported judgment of August
29 failed to properly award any of these remedies. It is most grievously deficient as a judgment
quieting title. Such a judgment must
finds it to be. As with any judgment
affecting title to real property, it must specifically identity the lands
affected, using a description “so certain that a stranger may be able to
clearly identify the particular tract.â€
(People v. Rio Nido Co. (1938)
29 Cal.App.2d 486, 488.) It “must be as clear and explicit as a deed
which purports to convey real property.â€
(Id. at p. 489;
(1998) 61 Cal.App.4th 742, 777.) That
is, it must set forth the affected property interests with sufficient
particularity that when recorded it will effectively convey notice of their
status as determined by the court. A judgment
which purports to adjudicate property rights, but in which “nothing is
described,†may be “pronounced a nullity for uncertainty of description.†(Newport
v. Hatton (1924) 195 Cal. 132, 156.)
“ ‘[A]n impossible, wrong, or uncertain description, or no description
at all, renders the judgment erroneous and void.’ †(Newman
v. Cornelius (1970) 3 Cal.App.3d 279, 284, quoting Newport v. Hatton, supra, 195 Cal. 132, 156; Lechuza Villas West v. California Coastal Com’n (1997) 60
Cal.App.4th 218, 242.)
Here the
original judgment failed entirely to describe the affected property or the
interests adjudicated. If accepted by
the county recorder for recordation—a dubitable hypothesis—it would have failed
to impart notice that the challenged agreements had ceased to burden
plaintiffs’ property. Indeed this is
precisely why plaintiffs moved to “modify†the purported judgment. As counsel wrote in support of that motion,
the August 29 instrument “d[id] not reflect with certainty in the Official
Records of Santa Cruz County, California, the effect of rulings in favor of
plaintiffs on the issues of declaratory relief, quiet title, and cancellation
of instruments.†This failure rendered
that instrument ineffectual to clear plaintiffs’ title of the cloud they brought
this action to eliminate.
Much the
same is true with respect to the remedy of cancellation of instruments. The statute governing such relief
contemplates that a judgment for a successful plaintiff will not only adjudge
the challenged instrument “void or voidable†but order that it be “delivered up
or canceled.†(Civ. Code, § 3412.) Indeed the original formulation was
“delivered up and canceled,†the
latter term being used in its original sense of physically striking or
obliterating the language found “void or voidable.†(See Upton
v. Archer (1871) 41 Cal. 85, 88 [judgment reversed “with directions to
enter a judgment, ordering the deed to be delivered up and canceledâ€];
[discussing equitable power “to order a written instrument to be delivered up
and canceledâ€]; Nelson v. Meadville
(1937) 19 Cal.App.2d 68, 69 [judgment “decree[d] that the instruments in
question were void; that defendant was entitled to no rights thereunder; and
that the instruments be canceledâ€]; American Heritage College Dict. (3d ed.
1997), p. 204 [“cancel†defined as “To cross out with lines or other
markingsâ€; originating in Latin cancellare,
“to cross outâ€]; Black’s Law Dict. (9th ed. 2009), p. 233, col. 2 [“To destroy
a written instrument by defacing or obliterating itâ€].)
physical act of cancellation; but the judgment must still declare the
invalidity of one or more specified instruments. (See Wolfe
v. Lipsy (1985) 163 Cal.App.3d 633, 638 [judgment “provided, inter alia,
that the deed of trust executed by Irene Basurto on October 20, 1976, is void.)
Even as a
judgment for declaratory relief we find the instrument of August 29 deficient
under the circumstances here. Such a
judgment should, as the name indicates, take the form of a “declarationâ€
concerning the rights and obligations in controversy. (Code Civ. Proc., § 1060.) Courts have often overlooked deficiencies in
this regard where the intendment of the adjudication is sufficiently clear. (See, e.g., Kelso v. Sargeant (1936) 11 Cal.App.2d 170, 179 [declaratory
judgment “should be entered in a peculiarly declaratory form,†but judgment was
sufficient where “in substance and effect†it fixed “not only of the rights of
the respective parties, but a determination of the construction which should be
given to†their agreement]; McLean v.
Tucker (1938) 26 Cal.App.2d 126, 129 [despite failure to “specifically set
forth the rights of the parties as a declaratory judgment,†judgment adequately
determined their rights by directing delivery of deed and quieting title in
defendant]; R.G. Hamilton Corp. v. Corum
(1933) 218 Cal. 92, 94-95 [judgment merely declaring parties’ rights to be as
stated in findings was “rather unusual†and “not a practice to be commended,â€
but reviewing court could not say it “ha[d] rendered the judgment ineffectual
as long as the rights and duties of the respective parties may be ascertained
therefromâ€; sufficiency “is to be judged from its substance rather than from
its formâ€].) But a judgment in the form
of the August 29 instrument was virtually useless to plaintiffs. Although it alluded to the road and parking
agreements and by clear inference found them no longer enforceable, it did not
define them with sufficient specificity to allow any stranger to the judgment
to know what had been invalidated.
name="_ftnref7" title="">[7]
It thus
appears that the instrument of August 29, 2011, was ineffectual as a final
judgment determining the rights of the parties.
It was, in at least this sense, “ ‘void.’ †(Newman
v. Cornelius, supra, 3 Cal.App.3d
at p. 284.) Some judgments are
appealable even though void in some sense.
(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 93, p. 155.) But “[i]f the invalidity results from the
failure to comply with the formal requirements of entry of a final judgment or
order, it is more properly characterized as a preliminary order or purported
judgment that is not a final judgment at all.â€
(Id. at p. 156.) We believe this principle applies to the
instrument of August 29, which is best characterized as a “purported judgment
that is not a final judgment at all.†(
Indeed, if not for its label and the recitals that “[j]udgment is
rendered,†it would most readily be viewed as a notice of tentative or intended
decision. It awards no relief of any
kind. It really does nothing more than
identify the prevailing party and give some indication of the court’s reasons
for ruling in that party’s favor. We
conclude that it was not appealable, and that defendants’ failure to appeal
from it has no bearing on appellate jurisdiction or the scope of issues open to
review.
A slight
additional problem is presented by defendants’ recital in the notice of appeal
that the appeal is taken from the “Order Granting Motion to Modify Judgment,â€
rather than the “modified†judgment itself.
This designation is frankly bewildering, since the motion to “modifyâ€
the “judgment†was unopposed and counsel for defendant appeared at the hearing
only to ensure that an amendment to the proposed judgment, which plaintiffs’
counsel had agreed to make, was in fact made.
Asked whether the documents submitted to the court for execution “meet
with your approval,†counsel replied, “Yes.â€
Plaintiffs suggests that this assent itself precludes any challenge to the
judgment, but we think it plain that counsel was consenting only to the form of
the judgment as an expression of the court’s determination—not to its
substance, with which defendants obviously took issue. The fact remains that the notice of appeal
fails to designate the judgment, instead purporting to appeal from the order
authorizing the judgment to be entered.
We do not
find this misstep fatal to the appeal.
Where a notice of appeal purports to target an order preliminary to
judgment, appellate courts commonly preserve their jurisdiction by construing
the notice to refer to the subsequently entered judgment. (See, e.g., Vesely v. Sager (1971) 5 Cal.3d 153, 158, fn. 2 [notice designating
order sustaining demurrer and granting motion to strike deemed to appeal from
subsequently entered judgment of dismissal].)
“ ‘Whether the error in the notice of appeal was merely one in
describing the order or judgment or whether it was caused by appellant’s
ignorance, the notice may without prejudice to respondent reasonably be
interpreted to apply to an appealable order or judgment rendered before the
appeal was noticed.’ †(
(1975) 15 Cal.3d 660, 669, quoting Vibert
v. Berger (1966) 64 Cal.2d 65, 70.)
We conclude
that defendants’ notice of appeal was sufficient to bring up the merits of the
judgment for appellate review.
II
Defendants’ Burden on Appeal
Although
defendants’ brief is far from a model of clarity, we understand it to raise
three claims of error: (1) The court
relied on statutes first cited in a letter submitted by plaintiffs’ counsel
after trial, to which defendants were given insufficient opportunity to
respond. (2) These statutes concerned
powers of termination, and thus had no proper application here. (3) Insofar as the court’s judgment depended
on changed circumstances, there was no evidence to support it.
In
presenting these arguments defendants offend a number of basic rules of
appellate procedure and review. First
and most fundamentally, “a party challenging a judgment has the burden of
showing reversible error by an adequate record.†(Ballard
v. Uribe (1986) 41 Cal.3d 564, 574.)
This requires (1) a record sufficient to establish the nature and
relevant circumstances of the actions by
the trial court which are challenged on appeal; (2) argument and authority establishing that these actions offended
governing legal principles; and (3) a particularized demonstration, again based
on an adequate record, that the error was prejudicial
to the appellant.
Defendants
have not brought up a transcript of the trial; therefore any assertions about
the state of the evidence must fall on deaf ears. Nor have defendants, for the most part,
offered a coherent argument in support of their claims of error. They have, in short, failed to shoulder their
burden as appellants. We have
nonetheless detected sufficient suggestion
of error in their brief to conclude that such error as they do assert has
either not been demonstrated to have occurred, or has not been shown to be
prejudicial.
III. Error
on Post-Trial Letter
Defendants assert that the court erred by relying upon
authority and arguments first presented in a post-trial letter from plaintiffs’
counsel to the court. The letter bears
the date of November 9, 2009, which was nearly two years prior to trial, but
both parties acknowledge that this was an error and that the letter was sent
some time after trial.
name="_ftnref8" title="">[8] In the letter, counsel for plaintiffs argued
that statutes governing the duration of powers of termination (Civil Code
sections 895.010 et seq.) furnished authority “[b]y analogy†for granting
relief here. In its judgment, the trial
court alluded to those statutes in concluding that “invalidation of these instruments,
in order to remove whatever clouds upon title they may be causing, is
appropriate.â€
Defendants
argue that the letter was in effect a supplemental
trial brief, and as such was deficient in form, lacking in particular the
proof of service required by Code of Civil Procedure sections 1012, 1013, and
1013a. Assuming this premise is sound,
mere defects in form can rarely if ever justify a reversal on appeal. Rather we must “disregard any error
. . . or defect, in the pleadings or proceedings which,†in our
opinion, “does not affect the substantial rights of the parties.†(Code Civ. Proc., § 475.) We cannot set aside a judgment unless it
“appear[s] from the record†that the error or defect complained of “was
prejudicial,†and that by reason thereof, the complaining party “sustained and
suffered substantial injury, and that a different result would have been
probable if such error, ruling, instruction, or defect had not occurred or
existed.†(Ibid.)
Defendants
make little effort to demonstrate that plaintiffs’ post-trial letter inflicted
any prejudice on them. They only assert
that they were “never formally afforded the opportunity to respond†to it. The pregnant use of the qualifier “formallyâ€
grounds an inference that defendants in fact received the letter, which bears
the notation, “Copy: Reid Schantz,†indicating—according to familiar
conventions of business correspondence—that a copy of the letter was sent to
defendants’ attorney. Beyond that the
record is entirely silent with respect to the extent of defendants’ opportunity
to respond. Even the timing cannot be
inferred because the date of the letter is unknown.
Plaintiffs’
counsel asserts that the foregoing notation is sufficient to raise “the
presumption of receipt under Evidence Code §641.†This contention is specious; the presumption
would require evidence, entirely lacking here, that the letter was “correctly
addressed and properly mailed.†(Evid. Code,
§ 641.) Still, an inference that defendants’ counsel received the letter seems
warranted by the facts that the letter alludes to transmission, that counsel
has never denied receipt, and that he objects only to the form of the letter
and the absence of a “formal†opportunity to respond.
In any
event all defendants have shown is that the court adopted a legal rationale
that was submitted to it in an irregular, and perhaps improper, form. It is impossible to say that the
irregularities had any effect on the outcome.
As will appear below, we are confident that they did not.
B.
on Inapposite Statutes
Defendants
suggest that the power-of-termination statutes had no bearing on the issues
here. We agree that the statutes’
pertinence is at best extremely attenuated.
They address situations where the grantor of a fee simple estate has
reserved the power to terminate the estate upon the occurrence of a specified
condition. (Civ. Code, § 885.010, subd.
(a)(1).) This action, in contrast,
concerns servitudes imposed and assumed by adjoining property owners by mutual
assent. We see no particular resemblance
between any of these servitudes and a power of termination.
However,
the mere fact that the court relied on dubious authority cannot by itself lead
to reversal. An appellate court
“review[s] the judgment, not the reasoning of the court below. [Citation.]
‘. . . [A] ruling or decision correct in law will not be
disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable
to the case, the judgment will be sustained regardless of the considerations
that moved the lower court to its conclusion.
[Citations.]’ (
Dist. (1988) 47 Cal.3d 550, 568.)†(
(1993) 19 Cal.App.4th 761, 769-770.)
“Two theories seem to be involved here:
first, that the appellate
court reviews the action of the lower court and not the reasons for its action;
second, that there can be no
prejudicial error from erroneous logic or reasoning if the decision itself is
correct.†(9 Witkin,
As we read
the judgment, the trial court only cited the power-of-termination statutes as a
guide to what might constitute a reasonable time for defendants to exercise
whatever rights they had under the agreements at issue here. As discussed in greater detail below, we
believe the agreements could be reasonably understood to create interests that
were both conditional and limited in duration.
It was apparently in reference to that aspect of the controversy that
the court viewed the statutes governing powers of termination as possessing
some analogical force. While we find the
court’s reliance on them somewhat questionable, we cannot say that it inflicted
any prejudice on defendants, because we think the judgment is sustained on the
grounds set forth below.
C.
We find
ample grounds on the face of the parking agreement to conclude that it was
unenforceable and subject to cancellation insofar as it might affect plaintiffs
or their title. The language of the
agreement indicates that the obligations it created were explicitly predicated
on a condition that never came to pass, that they were expressly limited in
duration, and that they were not intended to bind Gravenhorst/Stauffer’s
successors in interest, including plaintiffs.
The chief
right conferred on defendants by the parking agreement—indeed the only one
discussed by the parties—was a right to purchase four parking spaces on
neighboring properties. Although neither
side mentions the fact, the agreement also granted defendants a right to
purchase a 400 square foot “recreational area,†sometimes apparently referred
to as a “sitting yard.†The agreement
plainly stated, however, that these rights would only come into being “[i]n the
event the County of Santa Cruz imposed additional parking requirements and a
recreational area requirement . . . .†Defendants conceded below that as of the time
of trial, the county “ha[d] not required . . . [defendants to] obtain
the additional 4 parking spaces contemplated in the Use Agreement.â€
It is of
course the rule that an interest depending on a condition passes in or out of
existence in accordance with its conditional nature. (See 12 Witkin, Summary of Cal. Law (10th ed.
2005) Real Property, § 382, pp. 446-447.)
Thus the right to purchase parking and recreational spaces here never
came into existence. Defendants implied,
however, that it might yet do so, stating that “should the County impose the
actual parking requirements,†they were “relying on the terms of the Use
Agreement†to satisfy those requirements and “not lose the commercial use of
their property.†They thus asserted a
right that was in effect perpetual. But the agreement itself squarely contradicts
such a claim, stating that the right was to be a “temporary†one lasting only
so long as the existing “partial residential use†of the property, which
defendants intended to end by converting the property entirely to commercial
use. This at any rate is how we read the
language set forth in the margin.
name="_ftnref9" title="">[9]
Defendants have offered no alternative
reading; indeed the parties have scarcely troubled themselves with the language
of the agreements at all. But the
agreement explicitly contemplated that the rights granted would be of limited
duration, which must be taken to mean that defendants were granted a reasonable
time within which to exercise it, at the conclusion of which the obligation
would be extinguished whether they had done so or not. (See Civ. Code, § 1657 [“If no time is
specified for the performance of an act required to be performed, a reasonable
time is allowed.â€].)
The
agreement also contains intrinsic indications that the time contemplated by the
parties was well short of the 25 years that had elapsed at trial. It provided that payment for the parking and
recreational spaces—both when purchased by defendants, and when sold back to
Gravenhorst/Stauffer—would be made by adding the purchase price to, or
subtracting it from, the balance of an existing loan between the parties. It appears highly unlikely that this payment
mechanism would remain available after a sale of the burdened property by
Gravenhorst/Stauffer, because the purchase price would then be payable to their
successors, who could not be expected to assume the loan in question. Certainly this payment mechanism would cease
to exist when the loan was paid off.
Although the term of the loan is not unmistakably disclosed by the
record, the agreement refers to “amortization over a 20-year period.†The failure to provide for an alternative
payment mechanism strongly suggests an intention that any purchase and resale
would be completed at least that soon.
The parking
agreement also expressly reserved to Gravenhorst/Stauffer the power to
determine the location of the spaces
to be sold. It provided that they could
be situated on any of the “adjacent properties owned by Seller, with the
location of such to be determined by Seller,†provided that the locations (1)
conformed to county requirements, and (2) were within 80 feet of defendants’ property. The agreement provided no mechanism for
determining the location of these spaces after the potentially burdened
properties had come under separate ownership, as had occurred by the time this
matter arose. For defendants to now
exercise the purchase rights contemplated by the agreement, someone would have
to determine which of their neighbors would provide space, and how much, and
where. We doubt that any private actor
could successfully claim the power to make such a selection, or that any court
would undertake to do so. In any event,
the agreement’s failure to provide for the selection of locations after
Gravenhorst/Stauffer no longer owned the properties is more evidence that the
obligation to provide parking and recreational space was personal to them and
that if defendants were to exercise the correlative right at all, they had to
do so before the promisors divested themselves of the means to perform.
That the
obligation to provide parking and recreational space was personal to
Gravenhorst/Stauffer is also readily inferred from the agreement’s complete
failure to provide otherwise. This
failure cannot be attributed to mere oversight, because the Use Agreement
pointedly declares another obligation, not at issue here, binding on the
parties’ successors in title. Paragraph
6 states that the occurrence of specified conditions will cause an “existing
stairway easement†benefiting defendants’ property to undergo “diminishment,â€
such that it becomes “only a fire easement,†to be “appropriately marked and
signed†as such. The next paragraph
states, “This agreement for modification of the easement shall . . .
run with the land and be binding upon the parties hereto, their successors, or
assigns.†There is no similar recital
with respect to any other provision of the agreement, including the right to
purchase additional parking and recreational spaces. The use of language of appurtenance in
reference to the stairway easement, but not
in reference to the parking/recreational spaces, supports an inference that the
latter obligation was intended to bind only Gravenhorst/Stauffer.
So far as
this record shows, the trial court was bound to reach the conclusion it did
with respect to the parking agreement.
That agreement plainly did not grant defendants a perpetual right to
purchase space on neighboring properties.
To the extent it burdened those properties at all—a doubtful proposition
with respect to the rights at issue here—the right could readily be found to
have become unenforceable by the time the matter was adjudicated. The court acted quite properly in expunging
from plaintiffs’ title whatever shadow remained of that erstwhile right.
D.
Agreement
The road
agreement presents a more difficult case than the parking agreement because we
see nothing on its face rendering it unenforceable against plaintiffs. It purports to create a number of mutually
binding covenants, explicitly running with the land, concerning the use,
maintenance, repair, and improvement of a “right of way†that traverses or
touches upon plaintiffs’ and defendants’ property, as well as the property of
the neighboring Bermans, who are not parties here.
demonstrates that those mutual obligations have become unenforceable. The absence of a trial record, however, makes
it impossible to say that the trial court erred in so finding.
Both
parties agree that the underlying purpose of the road agreement was to fulfill
a condition imposed by county planners on the development of defendants’
property. Beyond that its intended
effect—particularly on the property rights of the parties—is far from
clear. It does not plainly
declares certain mutual rights and obligations with respect to a right-of-way
that may or may not already exist. The
paradigmatic term “grant†nowhere appears.
(See Civ. Code, § 1092 [“grant of an estate . . . may be made
in substance†by stating, “ ‘I, A B, grant to CD’ †the described
property]; Klamath Land & Cattle Co.
v. Roemer (1970) 12 Cal.App.3d 613, 618 [“The essential of such a [grant]
deed has long been held to be the word ‘grant’ [citation] and it appears that
in California this word has been applicable to the transfer of
solely estates in fee simple, since sometime prior to 1845.â€].) Of course we are long past the days when the
law depended on ritual incantations, and a conveyance may be effective despite
failure to use the word “grant.†(See
585, 596 [“No precise words are necessary to constitute a present
conveyance.â€].) The dispositive question
is whether the words used “are sufficient to show an intention to pass a
present title.†(Id. at p. 597.) However we
see no other language in the agreement—or anywhere else in the
record—establishing such an intent.
The
agreement opens with a recital that it “pertains to that right of way described
as Parcel Four in the attached exhibit.â€
This language suggests the agreement then proceeds to declare rights and
obligations concerning the use, repair, governance, maintenance, and
improvement, of the right of way. The
ninth paragraph clearly refers to a right of way that already exists for the
benefit of defendants’ parcel, stating that vehicles and pedestrians may “[c]urrentlyâ€
enter a “recorded†right of way meeting “the parking and circulation
necessities for the existing 4630 West Walnut Building.â€
her assigns to further develop the existing
vehicle and pedestrian right of way to enter off Porter Street to run
through [other parcels] and then cut out of [a specified parcel] to ultimately
exit into West Walnutâ€â€”a description that appears to match “Parcel 4.†Adding yet more uncertainty is a statement
that “vehicle, pedestrian, parking and circulation arrangements shall be
each parcel mentioned aboveâ€â€”language suggesting only an agreement to agree, a
type of contract generally viewed as illusory and unenforceable.
The absence
of a trial transcript leaves a factual vacuum about the actual circumstances in
which the agreements were entered, but both sides asserted in their trial
briefs that they were intended to satisfy requirements of county planners.
parking agreement, and by extension both agreements, were a “hoax†intended
solely to satisfy planning requirements and not, inferentially, to create
genuine property rights. Plaintiffs
further asserted in their brief “[t]here never has been a ‘road’ in the parcels
described.†Defendants did not, so far
as this record shows, take issue with this assertion.
It thus
appears that the road agreement spells out the parties’ rights and obligations
with respect to maintenance of a posited roadway which may or may not be
entirely hypothetical. The rights and
obligations are extremely ambiguous and may even be illusory insofar as the
agreement anticipates future agreement among the owners. Given these circumstances the record before
us affords no basis to say that the trial court was compelled to find that the
road agreement created a valid and subsisting interest in defendants burdening
the neighboring properties.
Nor does
the record permit us to say that the court could not find such a material
change in conditions as to justify the extinguishment of whatever beneficial
interest the road agreement might otherwise vest in defendants. In their trial brief and again on appeal,
defendants concede that a servitude or similar burden on land may be rendered
unenforceable by “a material change in conditions to the extent that the
original purpose for the restriction becomes obsolete.†In fact the rule is somewhat broader than this. In Wolff
v. Fallon (1955) 44 Cal.2d 695, 696-697, the court wrote that the
plaintiffs were entitled to relief from a restriction limiting their property
to residential use where the trial court found the property no longer suitable
for residential use and that enforcement of the restriction “would be
inequitable and oppressive and would harass plaintiff without benefiting the adjoining owners.†(Italics added; see also Hirsch v. Hancock (1959) 173 Cal.App.2d 745, 758-759 [rejecting as
“groundless,†in light of Wolff,
contention that “the termination of restrictions by judicial decree is justified only when their
original purpose has become obsoleteâ€]; Bolotin
v. Rindge (1964) 230 Cal.App.2d 741, 744 [invalidation of restriction
reversed where trial court made “no finding that the purposes of the
restrictions have become obsolete, or
that the enforcement of the restrictions on the plaintiffs’ property will no
longer benefit the defendantsâ€] italics added.)
The
question of changed conditions was clearly tendered by the pleadings and addressed
by the trial court. Plaintiffs alleged
in their complaint that the agreements “endow[ed] defendants with no assertable
rights†because they contemplated the devotion of defendants’ parcel to “the
conversion of a single family dwelling into commercial offices with interim use
of two apartments,†and “rested upon specific conditions which never took
place.†Similarly they asserted in their
trial brief that the agreements “address[ed] an entirely conditional set of
circumstances which never took place.â€
The trial court wrote in its judgment that “[o]ver the . . .
twenty-five years†since the agreements had been recorded, “none of the events
which were contemplated with the creation of these agreements have taken
place.†The court also stated that “circumstances
have changed in relationship to the Santa Cruz County Ordinances adopted in
1995 and 2009.â€
Defendants
have failed to show that these facts, or the rationales they imply, were not
sufficient to sustain the judgment.
Defendants merely assert that “there is no written evidence whatsoever
before the Court that circumstances had changed in relationship to the Santa
Cruz Ordinances adopted in 1995 and 2009.â€
But this denial of the presence of “written†evidence is pregnant with
the possibility, and indeed may be understood as an implicit admission, that
the trial court received other evidence—such as oral testimony—of such a change
in circumstances. In any event an
appellate reversal cannot be predicated on claimed deficiencies in the evidence
where the evidence before the trial court has not been brought up on appeal and
affirmatively shown to be legally insufficient.
“ ‘A party who challenges the sufficiency of the evidence to
support a particular finding must summarize
the evidence on that point, favorable
and unfavorable, and show how and why
it is insufficient.
[Citation.]’ (
201, 208, italics added.)†(
Cal.App.4th 400, 409.) Obviously it is
impossible to accomplish this task when the relevant evidence is absent from
the record.
In short,
the present record will not allow us to say that the trial court erred in
finding the road agreement, along with the parking agreement,
unenforceable. If the court erred, it
was incumbent upon defendants to present a sufficient record—and sufficient
legal argument—to establish as much.
They have failed to do so.
Disposition
The
judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
name="_ftn1" title=""> [1] Exemplifying the seeming insouciance with
which both sides seem have conducted this litigation, defendants’ property is
erroneously identified in both the complaint and cross-complaint as “4630
Porter Street.†Moreover, in their trial
brief plaintiffs describe defendants’ property as being situated “at the corner
of Walnut Street and Porter Street,†though six lines later they describe it as
“parcel 11†on an attached map, which clearly shows a parcel 12 separating
parcel 11 from Porter Street.
name="_ftn2" title=""> [2] An October 1985 permit recites that a house
on the property had burned down and been replaced by a structure “constructed
to meet the building code standards of a commercial building.†The document recited that the building was
then being “used as a dwelling,†but that its “current proposed uses would
include three offices on the first floor and two apartments on the second
floor.†A year later , the use agreement
referred to the building’s “partial current use as residential property.†The record does not competently establish the
present use of the building.
