^{Union Ventures v. ADIR International Export}

^{Filed 10/7/08Union Ventures v. ADIR International Export CA2/7}

^{NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS}

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:

It is ordered that the opinion filed herein on September 8, 2008 be modified as follows:

1. On page 7, at the end of the first full paragraph after the words inapplicable to this case add as footnote 5 the following footnote, which will require renumbering of all subsequent footnotes:

⁵ The First Districts recent decision in Zanelli v. McGrath (2008) 166 Cal.App.4th 615, which held an easement is extinguished when there is common ownership of the dominant and servient tenement by several individuals as cotenants, is not in any way inconsistent with our analysis, notwithstanding Union Venturess somewhat disingenuous insistence Zanelli recognizes the mortgage exception doctrine in California jurisprudence. In concluding merger can occur when two or more individuals own both the dominant and servient tenements as tenants in common or some other form of cotenancy, the First District distinguished a New York state court decision, relied on by the appellant in that case, that held merger would have applied to extinguish the easement in the cotenancy situation but for the exception that protects the interests of a mortgagee . . . . (Id. at pp. 627, 628.) Zanelli did not address the existence of a mortgage exception in California, much less recognize that exception as a basis for rejecting merger in this state.

2. On page 9, at the end of the sentence that begins, Thus, if Fab Enterprises had leased all of parcels A and B . . . . add the following citation: (See Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 629 [when one person owns fee simple title to two parcels, leases one parcel to another, and as the owner of the other holds an easement across the leased property for parking, no merger occurs to extinguish the easement because the owner does not have a present possessory interest in the servient parcel].)

There is no change in judgment. Appellants petition for rehearing is denied.

________________________________________________________________________

PERLUSS, P J. WOODS, J. ZELON, J.

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