AlbionRiver Watershead Protection Assn. v. Dept.Parks and Rec.

Filed 8/29/07 Albion River Watershead Protection Assn. v. Dept. Parks and Rec. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiffs Albion River Watershed Protection Association, Friends of Salmon River, and Friends of Big River appeal from the judgment entered in favor of defendant California Department of Parks and Recreation (the department) and real party in interest Mendocino Redwood Company, LLC (MRC) on plaintiffs petition for writ of mandate, which sought to compel the department to prohibit MRCs use of existing logging roads in the Big River Unit of the Mendocino Headlands State Park (the park). The trial court granted summary judgment in favor of the department and MRC on the ground that MRC has an enforceable easement that allows it to use the park roads to harvest its timber. We shall affirm.

Factual and Procedural History

On December 18, 2003, plaintiffs filed a complaint against the department and MRC seeking a writ of mandate under Code of Civil Procedure[1] section 1085 to compel [the department] to enforce its public trust duties by halting MRCS use of [the departments] roads in the Big River Unit.[2] Plaintiffs subsequently dismissed MRC from the action, but MRC was later granted leave to intervene.

MRC filed a motion for summary judgment based on the following undisputed facts:

The department and MRC are owners of adjacent timber properties and successors in interest, respectively, of Georgia-Pacific Corporation (G-P) and Louisiana-Pacific Corporation (L-P). In 1973, while G-P and L-P still owned their respective properties, G-P and L-P executed a written Reciprocal Right of Way and Road Use Agreement (the road agreement). The road agreement provided G-P and L-P with mutual permanent nonexclusive rights to maintain and use the other partys roads for the purpose of management, protection and harvesting of timber products subject to certain terms and conditions. Under the road agreement, Subsequent conveyance by either party of a portion or all of its G-P lands or L-P lands . . . shall be conveyed subject to the rights and obligations set forth in this agreement . . . but . . .shall not convey to such third party transferee of the estate in such lands any right that the conveying party hereto may have by virtue of this agreement . . . . [] . . . [] Except as herein otherwise provided, this agreement and the rights hereunder shall be personal to the parties and may not be assigned or transferred in whole or in part by act or operation of law including the transfer to any successor in interest . . . of the parties G-P lands and L-P lands without prior written consent of the other party . . . .

In July 1998, MRC purchased its property from a wholly owned subsidiary of L-P. At that time, neither L-P nor MRC obtained G-Ps written consent for the transfer of L-Ps easement rights under the road agreement.

In December 1999, G-P sold its property, through its wholly owned subsidiary North American Timber Company (North American), to Hawthorne Timber Company (Hawthorne), which in 2002 conveyed a portion of the property to the Mendocino Land Trust, Inc., which immediately conveyed the property to the department. Prior to Hawthornes purchase, North American and MRC executed and recorded a document entitled Consent to Transfer (the consent agreement) in which the parties consented to be reciprocally benefited and burdened by the easement rights under the road agreement. MRC consented to [North Americans] transfer of G-Ps rights under the [road agreement] to Hawthorne and North American consented to L-Ps transfer of its rights under the [road agreement] to MRC. The consent agreement provides that [t]hese consents are intended to fulfill all of the requirements of the [road agreement] regarding transfers.

The trial court granted MRCs motion and thereafter granted an identical motion made by the department. The court explained that plaintiffs claim is based on the contention that the provisions of the 1973 road agreement are not enforceable by MRC against the department because G-P, the departments contracting-predecessor, did not consent in writing to the transfer by L-P to MRC of the provisions of the road agreement. In construing the provisions of the road agreement, the court must attempt to determine the intent of the parties at the time the agreement was made and the intent of the successor parties at the time of the subsequent consent agreement. In 1973, L-P and G-P were the owners of substantial areas of timberland on which each party was in the business of commercial timber operations. The described lands of the two parties were so situated that, as a practical matter, each party had the occasional need to use the roads on the other partys lands to facilitate the harvest of timber on its own land. The obvious and stated purpose of the 1973 agreement was to permit each party to use the roads on the other partys lands as needed to facilitate commercial timber operations on its own lands. At this point, it makes little difference whether the access rights created in 1973 are characterized as a license or an easement, whether in gross or appurtenant. [] In 1999, MRC and North American (G-P) found themselves in much the same situation, except that North American was then contemplating conveying its timberlands to another commercial timber operator, Hawthorne, which obviously wanted to secure the same right of access over the lands then owned by MRC in order to effectively manage and harvest the timber lands it was to acquire from North American. Both parties were the owners of the same adjacent, described timberlands and were aware of the provisions of the 1973 road agreement. The parties specified that their consents were intended to fulfill all of the requirements of the Reciprocal Access Agreement regarding transfers. Based on these circumstances and the stated intent of the contracting parties, it appears that the parties then intended their 1999 agreement to constitute an adoption, incorporation, renewal or extension of the reciprocal rights agreement . . . set forth in the 1973 road agreement. Based on the evidence presented to date, it appears that North American and MRC then intended to (1) subject their then-owned properties to the benefits and burdens of the 1973 road agreement and (2) to formally state their consent that the property of North American as conveyed to Hawthorne Timber would remain subject to the provisions of the road agreement. In light of this specific intent, the failure of G-P to properly consent to the 1998 L-P/MRC [transfer] is not relevant. That portion of the Hawthorne-acquired property thereafter conveyed to the Mendocino Land Trust and then to the department remained subject to the provisions of the road agreement by virtue of the consent agreement. (Fns. omitted.) A final judgment was filed in August 2006 and plaintiffs filed a timely notice of appeal.

Discussion

Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc.,  437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 849.) All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.)

Here, the trial court concluded that the consent agreement was intended to be an adoption, incorporation, renewal or extension of the road agreement so that the departments land remains subject to MRCs easement under the terms of the road agreement by virtue of the consent agreement. We agree.

Under California law, the essential elements for a contract are (1) [p]arties capable of contracting, (2) [t]heir consent, (3) [a] lawful object, and (4) [a] sufficient cause or consideration. (Civ. Code,  1550; Marshall & Co. v. Weisel (1966) 242 Cal.App.2d 191, 196.) The consent agreement satisfies all of these requirements. As the trial court explained, North American and MRC intended to subject their then-owned properties to the benefits and burdens of the 1973 road agreement. The consent agreement implicitly recognizes that the requirements for transfer of L-Ps rights under the road agreement were not previously satisfied upon L-Ps transfer of the property to MRC. Nonetheless, the consent agreement expressly states that the parties intent was to fulfill all requirements necessary to bind Hawthorne and MRC under the terms of the prior agreement. Thus, the consent agreement is an enforceable agreement under which MRC obtained the right to access Hawthornes and later the departments land in order to maintain, protect and harvest its timber.

Plaintiffs argue that MRC and North American did not intend the consent agreement to operate as a separate contract because the consent agreement not only rearticulates [the purposes of the road agreement], it completely relies on the [road agreement] for its existence. However, the fact that the consent agreement relies on the prior agreement for its terms does not render the consent agreement unenforceable.  A contract may validly include the provisions of a document not physically a part of the basic contract . . . . It is, of course, the law that the parties may incorporate by reference into their contract the terms of some other document. [Citations.] . . . For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and [the party] must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.  [Citations.] [] The contract need not recite that it incorporates another document, so long as it guide[s] the reader to the incorporated document.  (Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 54.) There is no doubt that MRC and North American intended to be bound by the terms of the road agreement. Contrary to plaintiffs suggestion, there is nothing ironic about MRCs position that it is entitled to use the roads in the park under the terms of the road agreement while at the same time acknowledging that the road agreement itself is no longer operative.

Plaintiffs offer the following illustration of the absurd results they assert follow from this conclusion: [I]f a third party came to Hawthorne Timber with a request to use its roads, the same roads that MRC now claims a right to cross, Hawthorne could grant the request. MRC would have no say in the transaction just as L-P, the original owner, had no say in [North Americans] so-called consent to MRC [in] 1999. [] This was not the intended result envisioned by L-P and G-P in 1973, and not a result that MRC and Hawthorne desire. First, Hawthorne does not presently have the authority to consent to use of the park roads by anyone since it no longer owns that land. Nothing in our conclusion alters or contradicts that fact. Second, under the terms of the road agreement, L-P and later MRC obtained the nonexclusive right to use roads on the G-P and later Hawthorne land. Whether G-P or Hawthorne had the right to grant additional parties the right to use its lands without the consent of L-P or MRC is irrelevant. Likewise, the fact that L-P had no say in North Americans agreement with MRC is also irrelevant. L-P, having sold its property to MRC, did not have any interest in the property at the time the agreement was entered. Finally, nothing in our decision suggests that MRC could transfer its right to use the park roads for a purpose unrelated to harvesting timber from its land without the consent of the department as the present owner of the land.[3]

Accordingly, the trial court correctly determined that the department did not abuse its discretion by failing to exercise a mandatory duty to prohibit MRC from using the park roads for commercial purposes.^[4]

Disposition

The judgment is affirmed. MRC and the department shall recover their costs on appeal.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] All statutory references are to the Code of Civil Procedure unless otherwise noted.

[2] Plaintiffs additional causes of action for administrative mandamus under section 1094.5 and for declaratory relief were dismissed in April 2004.

[3] In this respect, the road agreement provides that Neither party may grant, without prior written consent of the other, the right to third parties to use the other partys roads except as such use may be by contract or license from the granting party for the purpose of the management, protection and harvesting of timber products from the granting partys G-P lands or L-P lands, as the case may be.

[4] In light of this conclusion, we need not reach additional arguments regarding the enforceability of MRCs easement and whether plaintiffs have a beneficial interest in the action for purposes of section 1085.