Boucher v. Wisnieski

Filed 1/8/08 Boucher v. Wisnieski CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In a declaratory judgment interpreting a settlement agreement between appellant Denise Boucher and her uphill neighbors, the trial court ruled that respondents Stephen and Jeanne Wisniewski had the right to drain surface and subsurface waters over and through Bouchers real property. On the Wisniewskis cross-complaint, a jury found Boucher liable for breach of the settlement agreement. On appeal, Boucher challenges these rulings, asserting that the trial court misinterpreted the settlement agreement and misinstructed the jury about it. We affirm the judgment.

I. FACTS

In 1993, appellant Denise Boucher acquired residential property on Nathan Place in Danville, downhill from and adjacent to residential property on El Alamo Court owned by Anthony and Cynthia Grosso. By 1997, Boucher concluded that the grading of the El Alamo Court homesites done by the developer had altered the historical flow of surface and subsurface waters, inundating her property with more water than had naturally drained through it in the past. By that time, water collected at the six homes on the El Alamo Court cul-de-sac and drained into a catch basin on the uphill El Alamo Court roadway. From this catch basin, the water flowed downhill through a pipe to a second catch basin (the Grosso catch basin) at the downhill edge of the Grossos property, near Bouchers property. From there, the water continued to flow through another pipe under Bouchers property,^[1]to a third catch basin located on the downhill side of Bouchers property, and then into the Town of Danvilles storm drains. Water from the Grossos residencetheir roof, concrete pad, driveways and walkwaydrained down the slope toward the Grosso catch basin and the pipe running beneath Bouchers property.

In 1997, Boucher filed suit against the developer and the uphill neighbors, including the Grossos, alleging that surface and subsurface waters from their property had flooded her property. In 2001, Boucher and the Grossos negotiated an agreement settling and dismissing this lawsuit. The settlement agreement required payment of $225,000 to Boucher and required that she undertake the so-called El Alamo Improvementsdetaching the pipe running from the El Alamo catch basin to the Grosso catch basin, rerouting water collecting at the El Alamo catch basin to another location on El Alamo Court, and diverting that water into the Danville storm drains.

The agreement also allowed Boucher to install the so-called Grosso Improvements the installation of a V-ditch and curtain drain^[2]at the base of the Grosso property, along their common property line. The V-ditch was intended to address drainage of naturally occurring surface water while the curtain drain was designed to handle subsurface water flowing down from the Grosso property.

In 2001, Boucher completed the El Alamo Improvements, resulting in a reduced water flow from the Grossos property onto her land. At that time, it did not appear necessary to install the Grosso Improvements, so Boucher did not install them.

In 2003, respondents Stephen and Jeanne Wisniewski purchased the Grossos El Alamo Court home. Before the close of escrow, they received notice of the settlement agreement. When Boucher learned that the Wisniewskis planned to landscape their property and to install a drainage system to channel water from the roof and paved areas at the rear of their home into the Grosso catch basin, she opted to install the Grosso Improvements. She advised the Wisniewskis of her plan to build the curtain drain on their property. Before beginning work to construct this improvement, Boucher assured the Wisniewskis that they could direct water from their property into the soon-to-be constructed curtain drain. In September 2003, Boucher completed construction of the curtain drain but did not build the V-ditch.^[3] She chose to install a surface diversion ditch instead of a concrete V-ditch. She also lowered the Grosso catch basin to a six-foot depth below surface level to accommodate water from the new curtain drain.

The Wisniewskis continued their landscaping project, installing drain pipes beneath the surface of the slope behind their residence. The pipes emptied into the improved Grosso catch basin to the new pipe under Bouchers land, into the Boucher catch basin and into the Danville storm drains. They planned to direct water from their residences rear roof drains and other hard surfaces on the rear portion of their property through this new drain pipe system. The Wisniewskis surfaced these drain pipes at the bottom of their propertys slope, emptying water a few inches from the Grosso catch basin.^[4]

In October 2003, Boucher formally advised the Wisniewskis of her view that they had no right to direct water through their new drainage pipe system into the Grosso catch basin. Boucher also advised Danville town officials that the Wisniewskis construction could cause flooding on her property, leading to a stop-work order.^[5]The landscaping delay led the Wisniewskis to winterize the unfinished part of their landscape plan in late 2003 by laying down water flow impediments along the slope to control erosion. In spite of these efforts, water from the Wisniewskis property flooded Bouchers property in January 2004.

This flooding prompted Boucher to file an action against the Wisniewskis in March 2004. In July 2004, she filed an amended complaint against them, alleging causes of action for nuisance, negligence, trespass, declaratory relief and breach of contract. The Wisniewskis cross-complained against Boucher, asserting their own causes of action for nuisance, trespass, breach of the settlement agreement, intentional infliction of emotional distress and declaratory relief.

In the declaratory relief claims, both the amended complaint and cross-complaint requested determination of the Wisniewskis drainage rights under the settlement agreement. The trial court adjudicated this legal issue before the jury trial on the fact-based causes of action. It found in favor of the Wisniewskis, concluding that the settlement agreement granted them an implied easement to discharge collected surface and subsurface waters from their property through and across Bouchers property. It ruled that the Wisniewskis could only collect and discharge water into the Grosso catch basin up to the volume drained and under the same conditions that existed in 2001 at the time of the settlement agreement.

The remaining factual issues were submitted to a jury for determination. Before deliberations, the court instructed the jury about the rights and obligations of both parties under the settlement agreement consistent with its declaratory judgment ruling. The jury decided all remaining causes of action in the complaint and cross-complaint in favor of the Wisniewskis.^[6] In a special verdict on Bouchers amended complaint, it found that the Wisniewskis did not breach the settlement agreement, create a nuisance, or trespass on Bouchers property. It also rejected Bouchers negligence claim. On the Wisniewskis cross-complaint, it found that Boucher had breached the settlement agreement by failing to obtain required permits to build the Grosso Improvements. For this reason, the jury awarded the Wisniewskis $50,000 for breach of contract.^[7]

Judgment was filed in January 2006 consistent with the trial court ruling and jury verdicts. In addition to the earlier announced implied easement theory, the judgment included two other grounds in support of the Wisniewskis declaratory judgment. The trial court concluded that the agreement created a restrictive covenant, preventing Boucher from restricting or impeding the drainage of surface or subsurface water from the Wisniewskis property. It also found that she was estopped from interfering with the collection and drainage of any subsurface water on their property using the Grosso Improvements.

In April 2006, Bouchers motion for a new trial was denied on the condition that the Wisniewskis accept a reduced award of $1,000. The Wisniewskis agreed to the remittitur and an amended judgment reflecting this agreement was filed in April 2006.

II. DECLARATORY JUDGMENT

On appeal, Boucher claims that the trial court misinterpreted the settlement agreement in its declaratory judgment^[8]by finding that it burdened her property with a restrictive covenant. Boucher asserts that the agreement did not create a restrictive covenant allowing the Wisniewskis to drain surface and subsurface waters through her property.

On appeal, we are not bound by the trial courts interpretation of a settlement agreement. (See Morey v. Vannucci (1998) 64 Cal.App.4th 904, 913.) We undertake an independent review of the issues presented by the causes of action for a declaratory judgment, as they involved the legal question of the interpretation of that agreement. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866; Citizens for Goleta Valley v. HT Santa Barbara (2004) 117 Cal.App.4th 1073, 1076.)

Restrictive covenants can be enforced only if the restriction constitutes an equitable servitude or a covenant running with the land. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 375.) A restrictive covenant runs with the land, binding successive owners, if (1) the agreement specifically describes the lands to be benefited and burdened by the restriction; (2) it includes express provisions declaring that successors in interest of the burdened land will be bound for the benefit of the other partys land; (3) the restrictions relate to use, repair, maintenance, or improvement of the property; and (4) the restrictions are recorded in the county recorders office. (Civ. Code,^[9] 1468; Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 375.) In this matter, the settlement agreement did not expressly bind the Wisniewskis as the Grossos successors in interest to it. Therefore, the settlement agreement did not create a restrictive covenant running with the land that would give the Wisniewskis the right to enforce it against Boucher.

However, this finding does not end our inquiry. An agreement lacking one or more of the elements for a restrictive covenant running with the land may still be enforced as an equitable servitude if notice was given to the person bound by the restrictions. (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 375.) A court may enforce such a covenant even if there is no privity of contract between the party seeking enforcement of the promise and the party opposing enforcement. (Id. at p. 380.) When a party without privity of contract seeks to enforce the promise, courts rely on contract principles to determine the legitimate intentions of the original covenanting parties. (Id. at pp. 380-381.)

The settlement agreement is a contract that must be interpreted to illuminate the contracting parties intentions at the moment they entered into it. (See 1636.) We ascertain those intentions from the language of the agreement alone, if that language is clear, explicit, and reasonable. ( 1638, 1639.) We may also consider the surrounding circumstances of the contracts making if this helps us to understand the contracts purpose. ( 1647.)

Any stipulation necessary to make an agreement reasonable is implied into it, unless to do so contradicts the agreements intent. ( 1655.) A stipulation will be implied when an agreement would be untenable without it and when it undoubtedly would have been incorporated into the agreement if the parties had been presented with it during contract formation. (Sharpe v. Arabian American Oil Co. (1952) 111 Cal.App.2d 99, 102; see Aozora Bank, Ltd. v. 1333 North California Boulevard (2004) 119 Cal.App.4th 1291, 1296.) A court must look at the agreements terms and the circumstances surrounding its formation to establish an implied stipulations justification and necessity. (Aozora Bank, Ltd., supra, at p. 1296.)

The underlying settlement agreement necessarily implied use of the curtain drain, the Grosso catch basin and the attached pipe running through and across Bouchers property. The settlement agreements purpose was to mitigate flooding on Bouchers property. To accomplish this goal, the parties agreed that Boucher could detach the drainage pipe traveling between El Alamo Court and the Grosso catch basin (El Alamo Improvement). When Boucher did so, the flooding subsided. Boucher also constructed a variation on the Grosso Improvements to manage water draining downhill toward Bouchers property from the Wisniewski property. In doing so, she even installed a deeper catch basin on the Wisniewski property to accommodate water from the curtain drain. However, the agreement did not require the Grossos to detach other pipes draining surface water from their house into the slope behind their house, running downhill toward the Grosso catch basin which fed into the pipe beneath Bouchers property.

The use of a drain running across anothers property may be reasonably necessary to carry excess water from a persons land even if it is not the only available drainage method. (Fischer v. Hendler (1942) 49 Cal.App.2d 319, 322.) When we apply this principle, we find that use of the Grosso Improvementsthe variation on the V-ditch, the curtain drain, the Grosso catch basin, and the pipe running through Bouchers landis reasonably necessary to drain the rear portion of the Wisniewskis property. Thus, we conclude that the settlement agreement implied a necessary stipulation that the Grossosand the Wisniewskis as their successors in interestcould continue draining surface and subsurface waters into the Grosso catch basin and the pipe crossing Bouchers property. Thus construed, the settlement agreement created an equitable servitude, restricting Boucher from interfering with the Wisniewskis surface and subsurface drainage of their property through and across her property.^[10] As such, we find that the trial court properly ruled in the Wisniewskis favor on the declaratory judgment claims.^[11]

III. JURY INSTRUCTION

Boucher also claims that the trial court erred in instructing the jury that the Wisniewskis had the right to drain surface and subsurface waters from their property through and across the Boucher property in the amount and manner existing as of completion of the El Alamo Improvement. This argument turns on her underlying claim that the declaratory judgment in favor of the Wisniewskis was in error. We have already upheld the trial courts declaratory judgment in their favor, albeit on a different theory than that announced by the court before the jury trial. (Seept. II., ante.) As such, we necessarily reject this instructional claim of error.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

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Ruvolo, P.J.

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Rivera, J.

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^[1]In 1991, Bouchers predecessor in interest had constructed the Grosso catch basin on the Grossos property and laid the adjacent pipe running under her own property.

^[2]A V-ditch gathers and directs surface water into a catchment basin. A curtain drain receives and drains subsurface water. Both the curtain drain and the V-ditch drain into the same catchment basin.

^[3]The V-ditch in the Grosso Improvements specifications was designed to address surface water draining from the Grossos property.

^[4]During the Grossos ownership, surface water from the rear portion of the El Alamo Court house drained into pipes, channeling this drain water into the slope. This drainage system effectively turned surface water into subsurface water, percolating down the slope toward the Grosso catch basin, rather than extending the pipes to the Grosso catch basin.

^[5]Ultimately, the Danville officials determined that the Wisniewskis had failed to obtain a required excavation permit.

^[6]The court granted Bouchers motion for nonsuit on the Wisniewskis cross-claim for trespass and intentional infliction of emotional distress. During trial, the Wisniewskis voluntarily dismissed their nuisance cross-claim.

^[7]These damages were required to validate the workmanship on the Grosso Improvements to ensure that it satisfied local codes.

^[8]The agreement states, in relevant part: Covenant of Reasonable Use: All parties to the Agreement, in consideration of the promises contained herein agree, covenant and promise that they shall from this day forward maintain their respective real property in a reasonable, safe and orderly manner and shall do nothing on their property, or cause or allow to be performed on their property, any act, omission or condition to develop which creates an unreasonable risk of harm or danger to the health, safety or well being of any other party to this action or their property, personal or real.

^[9]All statutory references are to the Civil Code.

^[10]Tort law reinforces our conclusion because an owner higher in elevation to his or her neighbor has a right, with reasonable care, to drain surface water onto the lower neighbors property. (Keys v. Romley (1966) 64 Cal.2d 396, 409.) Reasonable care includes taking reasonable precautions to avoid or reduce potential injury or damage when property is threatened by surface waters. (Ibid.) As such, the settlement agreement necessarily implies that the Grossosand the Wisniewskis as their successors in interestwere allowed to continue using the Grosso catch basin and the pipe running under Bouchers property because to do so constitutes reasonable care to prevent flooding on both properties.

^[11]As we find that the declaratory judgment was proper under an equitable servitude theory, we need not address the trial courts alternative grounds in support of its declaratory judgmentimplied easement and estoppel.