Fear Not Law Articles: Simon T v. Miller

Simon T v. Miller

Filed 9/6/06 Simon T v. Miller CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SIMON T,

Plaintiff, Cross-defendant

and Appellant,

ROGER MILLER,

Defendant, Cross-Complainant

and Appellant.

B185299

(Los Angeles County

Super. Ct. No. BC270552)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Gregory W. Alarcon, Judge. Modified and affirmed.

Thomas M. Banks; Richard L. Knickerbocker for Defendant, Cross-complainant and Appellant.

Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, Joel E. Boxer, John M. McCoy III for Plaintiff, Cross-defendant and Appellant.

___________________________________________________

This case involves an easement and land use dispute between owners of adjacent undeveloped property in the Santa Monica Mountains. Simon T owns a 17.9-acre parcel that adjoins Roger Miller's 2-acre parcel. On Miller's parcel is a graded pad he seeks to develop, which has access to a public street by way of an unimproved dirt road within a recorded easement over Simon T's property. Simon T's land is thus servient to the easement owned by Miller, whose actions prompted the present litigation when he made certain physical changes to the land through which the easement passes, as well as some changes to the adjacent property owned by Simon T.

We find unavailing Miller's various complaints about the award of approximately $173,000 in damages to Simon T after a nonjury trial on causes of action for trespass and negligence. However, portions of the judgment which enjoin Miller from certain activities and which describe the use of the easement must be modified. Also without merit is Simon T's contention in his cross-appeal, as the trial court properly granted summary adjudication in favor of Miller on the cause of action for breach of contract based on the statute of limitations.^[1]

FACTUAL AND PROCEDURAL SUMMARY

The underlying facts

In 1988, Billie Tsien and Todd Williams acquired the two-acre parcel that was subsequently sold to Miller. The parcel included a recorded access easement over adjacent property then owned by Bryan and June Zwan, Simon T's predecessors in interest. A road which did not conform to an existing easement went through the Zwan property. In 1988, Tsien and Williams had the existing road graded so they could travel to their property in a two-wheel-drive vehicle; but they did not pave the road leading to the two-acre parcel.^[2]

In 1989, the Zwans, Tsien and Williams agreed to substitute a new easement that conformed to the existing road in lieu of the old easement that did not conform. They agreed to quitclaim the original easement in exchange for the new one.

The terms of that 1989 easement agreement provided, in pertinent part, that Tsien and Williams â€

Description	This case involves an easement and land use dispute between owners of adjacent undeveloped property in the Santa Monica Mountains. Appellant, owns a 17.9 acre parcel that adjoins Roger Defendant's 2 acre parcel. On Defendant's parcel is a graded pad he seeks to develop, which has access to a public street by way of an unimproved dirt road within a recorded easement over Appellant's property. Appellant's land is thus servient to the easement owned by Miller, whose actions prompted the present litigation when he made certain physical changes to the land through which the easement passes, as well as some changes to the adjacent property owned by Appellant,.
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