Wall v. Granville Towers Homeowners Assn.

Filed 7/24/07 Wall v. Granville Towers Homeowners Assn. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. John P. Shook, Judge. Affirmed.

Wilner & Klein and Walter Klein for Defendant and Appellant.

Rutan & Tucker, Clifford E. Frieden and Treg A. Julander for Plaintiff and Respondent.

_______________________________________

In this appeal, we consider whether the trial court erred in granting summary judgment in favor of plaintiff and respondent Scottman D. Wall, the owner of a condominium unit in the 40-unit Granville Towers building in the City of West Hollywood (City). In his verified complaint against defendant and appellant Granville Towers Home Owners Association (HOA), Wall alleged the HOA refused to permit him to use a second parking space in the building, despite Walls having been granted an easement for two parking spaces. Wall sought injunctive relief and damages. The trial court ruled Wall was legally entitled to a favorable judgment because he was the owner of a parking easement that originated in the 1988 grant deed to the first owner of Walls unit,^[1] Zenon Kesik, and the easement had not been abandoned.

The HOA timely appealed, contending: (1) the parking easement cannot be given effect because it impermissibly conflicts with (a) the Declaration of Covenants, Conditions and Restrictions Establishing a Plan of Condominium Ownership (Declaration), which controls all property interests in the condominium, and (b) the Citys zoning regulations, both of which supposedly limit homeowners to one parking space; (2) the easement was abandoned and extinguished by the conduct of grantor Kesik; and (3) Wall is estopped from enforcing the easement. We reject these contentions and affirm. The evidence below established Walls entitlement to the parking easement as a matter of law, and the HOA failed to raise a material issue of fact as to the easements abandonment. Regarding the third point, the HOA failed to preserve the issue of estoppel for appellate review by not raising it below.^[2]

Facts and Procedural History

Wall filed his verified complaint for injunctive relief on July 18, 2004, claiming he had been deeded an appurtenant exclusive easement for the use of two parking spaces in the building, but the HOA refused to permit Wall to use a second parking place. Over the HOAs opposition, the trial court granted Walls motion for a preliminary injunction on September 21, 2004. When the trial court overruled Walls demurrer to the HOAs second amended cross-complaint against Wall and othersincluding predecessors in interest, RE Ventures, LLC, Kesik, and Avedis Tavitianalleging fraud, negligent and intentional misrepresentation, and slander of title, Wall answered that pleading, generally denying its allegations and asserting various affirmative defenses.

On October 7, 2005, Wall moved for summary judgment, relying mainly on the deeds showing the creation of the parking easement and the chain of title from the original grantor to Wall. On October 28, 1988, a grant deed was recorded, conveying three parcels in the property to Kesik, the first owner of Unit 71 (then designated as Unit 40A): Parcel 1 being a 1/40 interest in the buildings common area; Parcel 2, being a specific unit in the building; and Parcel 3, being [e]xclusive easements for parking spaces . . . bearing the letter designation PS 11 & 12, as shown on the Condominium Plan . . . . The deed was made subject to the provisions in the Declaration, originally recorded in 1980, as subsequently modified in 1982 and 1988. Kesik conveyed his interest by grant deed to Shaoul J. Levy on January 18, 1994; however, the deed did not list the third parcel containing the easement for the parking spaces. The interest in the unit was conveyed numerous times, with the grant and quitclaim deeds referencing only the parcels for the common area interest and the condominium unit, not the parcel containing the easement.

On April 22, 2004, Wall purchased Unit 71 from RE Ventures, LLC. The property was conveyed by a grant deed to Wall that referenced all three parcels, as had the original deed to Kesik. A preliminary title report on March 5, 2004, described the condominium property as being comprised of all three parcels, including the easements for the two parking spaces. After Walls lawsuit was filed, on September 20, 2004, in consideration of a $500 payment, Kesik had a quitclaim deed recorded in favor of Wall, conveying the property consisting of all three parcels, including the easements for the two parking spaces.

The HOA opposed the motion on narrow grounds, asserting that Kesik never held title to the parking easement in the first placeor, alternatively, that the legitimacy of Walls claimed ownership of the easement was disputed. The buildings history was summarized in a City staff report on Variance 91-04, dated December 17, 1992 (Variance 91-04). The building was constructed as an apartment building in 1929. In 1979, the City of Los Angeles approved an application to convert the apartments into condominiums. In 1980, the owners recorded the Declaration. The building was converted to a hotel in 1983, but that venture failed in 1987 with the owners filing for bankruptcy. The owners began selling condominium units again, and Kesik purchased Unit 71 in 1988. The City, however, determined that the owners needed its approval to revert to condominium status, so the owners applied for a conditional use permit to that end.

In 1989, the City granted conditional use permit 88-02, approving the buildings conversion from a hotel to a 40-unit condominium. It also approved conditional use permit 89-04, in response to an application for the variances needed for the owners of the seventh floor units (including Kesik) to convert the attic space above their units into living space. With regard to parking, the Citys resolution included a variance for less than the required parking spaces, but stated that six additional tandem parking spaces were to be provided, serviced by full-time valet parking.

In 1992, the City issued its report on Variance 91-04, concerning an application by the seventh floor unit owners of the Granville Towers, represented by Kesik as the manager and a unit owner, seeking a variance from the on-site parking standards. The report explained that the building was currently out of compliance with code requirements, having 61 parking spaces, but requiring 83. Approval of the attic variance would require a total of 100 spaces. Kesik told the staff, each unit is allocated one parking space and other associated vehicles are valet parked. He stated, there is never a problem with parking for that and other reasons. The staff found the building site to be suitable for the variance, based on its current parking facilities and servicesits two parking garages and 24-hour valet service. Approval of the variance was to be conditioned on maintaining for the life of the building those parking conditions, in conformity with Variances 88-02 and 89-04. The City granted Variance 91-04 on December 17, 1992.

In 1998, the HOA prepared a document entitled Disclosure, for use by buyers and sellers of units in the Granville Towers. It stated that sellers do not own any particular parking spaces and, therefore, cannot transfer title to any such spaces. The Disclosure asserted all of the parking spaces on the property are owned by and assigned by the [HOA]. This is due to an Agreement made by and between the City . . . and the [HOA].^[3] Further, [e]very apartment is entitled to the use of at least one (1) parking space which is assigned by the [HOA], with no guarantee that any unit would be assigned an additional space. The president of the HOA testified that each condominium owner is assigned one parking space. There are 40 units and 44 parking spaces. The four unassigned spaces are available to rent at $200 per month and are currently rented to owners other than Wall.

The sale of Unit 71 to Wall took place in March 2004. As part of the escrow proceedings, Wall signed an instruction in which he acknowledged that he read and approved various documents, including the 1998 Disclosure and the 1980 Declaration.

After considering the parties arguments and evidence, the trial court granted summary judgment. The trial court explained that the HOA failed to present evidence to support its allegation that the City rejected the parking plan containing the parking spaces referenced in the Kesik and Wall deeds. Nor did the HOA present evidence that the City adopted a new parking plan that superseded the original one. It found Wall to be the owner of an easement appurtenant in connection with his ownership of Unit 71 providing the use of two parking spaces at the Granville Towers condominium complex, with such easement having originally been created by way of a grant deed to Zenon Kesik, dated October 20, 1988, which provided Unit 71 [e]xclusive easements for parking spaces over those portions of . . . Parcel 1 above. It also found that easement had not been abandoned, relinquished, or otherwise destroyed by events since its creation. Accordingly, it ordered that judgment be entered in favor of Wall, recognizing his ownership of the easement, dismissing the HOAs cross-complaint, and authorizing Walls recovery of costs from the HOA.

On January 17, 2006, the HOA filed a motion for reconsideration of the trial courts summary judgment ruling, making essentially the same arguments the HOA presents on appeal. At the hearing on February 17, 2006, the trial court found the HOA had not raised adequate grounds to merit reconsideration. Nevertheless, it found the HOAs additional arguments did not undermine its prior judgment. The trial court awarded attorney fees and costs to Wall.

ARGUMENT

The HOA contends the trial court erred in granting summary judgment in favor of Wall. The standard of review is well settled. As our Supreme Court instructs, the party moving for summary judgment always bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A triable issue of material fact exists if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.) (AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 638 (AmerUS Life Ins. Co.).)

Wall as the moving party, bore the initial burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. As our Supreme Court explains: In moving for summary judgment, a plaintiff . . . has met his burden of showing that there is no defense to a cause of action if he has proved each element of the cause of action entitling him to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials of his pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc., 437c, subd. (o)(1).) (Aguilar, supra, 25 Cal.4th at p. 849.) [S]ummary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action. . . . [Citation.] All that the plaintiff need do is to prove each element of the cause of action. (Id. at p. 853, fn. omitted.) On appeal, our review is de novo, and we independently review the record before the trial court. The trial courts stated reasons for granting summary judgment are not binding on appeal because we review its ruling, not its rationale. (AmerUS Life Ins. Co., supra, 143 Cal.App.4th at p. 638, citing Elcome v. Chin (2003) 110 Cal.App.4th 310, 316.)

Wall Received Valid, Enforceable Title to The Parking Easement

An easement is a nonpossessory interest in anothers land. (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 865; Wright v. Best (1942) 19 Cal.2d 368, 381; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) 15:1, 15:5.) The owner of an easement has a right to use anothers land, and a right to prevent the other person from obstructing that use. (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 880; Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568.) The land to which the easement attaches is called the dominant tenement; the land on which the burden is imposed is called the servient tenement. (Tract Development Service, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1384 (Tract Development).) An easement can be appurtenant (running with the land) or in gross (personal). (Civ. Code, 801, 802; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521.) An appurtenant easement represents a limited privilege to use the land of another for the benefit of the easement holders land. (Kazi v. State Farm Fire & Casualty Co., supra, 24 Cal.4th at p. 881.)

A conveyance of the dominant tenement transfers an appurtenant easement as a matter of law, regardless of whether the easement is described in the conveyance. (Civ. Code, 1104; Elliott v. McCombs (1941) 17 Cal.2d 23, 31; Moylan v. Dykes, supra, 181 Cal.App.3d at pp. 568, 571-572.) Therefore, a successor of the owner of the dominant tenement can enforce the easement even though it was not specifically mentioned in the document of conveyance. (Moylan v. Dykes, supra, 181 Cal.App.3d at pp. 568, 571-572; 6 Miller & Starr, Cal. Real Estate, supra, 15:6.) Accordingly, as the trial court found, the fact that the parking easement was identified in the Kesik and Wall deeds, but not mentioned in the intervening deeds, did not extinguish Walls easement.^[4] Indeed, in Tract Development, supra, 199 Cal.App.3d at page 1383, an easement holders notation of abandonment in a deed was found not to evidence an unambiguous intent to except the private easement from conveyance of the dominant tenement, despite a prior board of supervisors resolution recognizing the abandonment.

Nevertheless, the HOA argues the parking easement was not validly created and could not be enforced because it impermissibly conflicted with the 1980 Declaration and the Citys zoning regulations, both of which the HOA contends limit homeowners to one parking space. We disagree. The Declaration recognizes a minimumnot a maximumof one parking space for each homeowner, and nothing in that document entitles the HOA to eliminate existing appurtenant parking easements.^[5] Nor did the HOA present evidence of any City regulation (or agreement)^[6] limiting homeowners to a single parking space or proscribing them from having additional spaces.

As noted ante, the 1988 grant deed originally conveying the parking easement to Kesik was expressly made subject to the provisions in the 1980 Declaration. The HOA points to article 1, section 20, of the Declaration, defining Unit, and stating: [A]ny appurtenant exclusive easements forming a portion of a Condominium shall be treated as if same were part of the Unit of such Condominium except as otherwise expressly provided in this Declaration. In connection with the foregoing, there shall be granted as an appurtenant exclusive easement along with the grant of each Condominium not less than one (1) parking space. While the HOA is correct in asserting this provision guarantees only one parking space per owner, nothing in that language purports to proscribe the ownership of additional parking easements. To the contrary, by the inclusion of the phrase not less than one, the Declaration implicitly authorizes the ownership of additional easements.

Nor can the HOA identify any Declaration provision entitling it to eliminate such appurtenant easements. Article X, section 6, pertaining to parking, says nothing bearing on that issue. Article XII, pertaining to easements, contains no right to eliminate appurtenant easements. Indeed, section 4(b) recognizes the viability of exclusive appurtenant easements. Nor does article XVI reserve to the HOA the right to establish use restrictions to eliminate such easements, but merely recognizes a right to enforce them.

The HOA is also mistaken in arguing Walls parking easements violate City parking or zoning regulations. As the trial court found, the parking variances granted in connection with the seventh floor homeowners application to convert attic space into livable loft space did not serve to eliminate Walls easement for a second parking space. Even assuming the variances were conditioned on Kesiks representation that each owner was allocated a single space (with additional vehicles being valet parked), the variances by their plain terms did not require the allocation of a single space for each owner. Variance 91-04 required that the building maintain its current parking facilities and services, which it identified as the two parking garages and 24-hour valet service; it did not place a limit on the number of spaces for each homeowner. As our review of the record confirms, the trial court accurately found no evidence that the City rejected the buildings original parking plan in favor of a superseding plan that eliminated the parking spaces which were referred to in the Kesik and Wall deeds. Indeed, if there were such a proscription against any homeowner possessing multiple parking spaces, then the HOA would be in violation itself through its ongoing practice of renting additional spaces to homeowners.

The HOA also argues the trial courts judgment improperly grants Wall a more extensive easement than the one conveyed by the grant deed. According to the HOA, the judgment gives Wall the right to use any two parking spaces, while the deed conveyed a right to use two specific spaces. We find the HOAs interpretation inaccurate. Rather than providing Wall with the right to choose any two parking spaces, the trial courts judgment expressly referenced the deed and its description of the parking easement.^[7]

Alternatively, the HOA contends that Wall could not receive valid title to the parking easement because Kesik abandoned the easement by his words and conduct prior to conveying his interest in the condominium.^[8] More specifically, the HOA argues Kesik demonstrated his intent to abandon the easement by (1) his failure to include a reference to the easement in his grant deed when he sold his unit, (2) the lack of evidence that he ever used a second parking space, and (3) his statement to City staff in seeking a parking variance that homeowners were allocated one parking space, with additional parking needs satisfied by valet parking. As we explain, those three factors do not support a reasonable inference of abandonment.

The determination of abandonment hinges upon the intent of the owner to forego all future conforming uses of his property, and the trier of fact must find the conduct demonstrating the intent so decisive and conclusive as to indicate a clear intent to abandon . . . . (Gerhard v. Stephens (1968) 68 Cal.2d 864, 889 (Gerhard), quoting, Smith v. Worn (1892) 93 Cal. 206, 213.) Generally, to constitute an abandonment there must be evidence of nonuse accompanied by unequivocal and decisive acts on the part of the dominant tenant that clearly show an intention to abandon. (Gerhard, supra, 68 Cal.2d at p. 890.) This question of whether the conduct of the owner of the dominant tenement was so decisive and conclusive as to indicate a clear intent to abandon the easement is for the trier of fact to determine. (Id. at p. 891, citing Smith v. Worn, supra, 93 Cal. at p. 213.) Nevertheless, in the context of a summary judgment motion, there can be no triable issue of fact unless there is sufficient evidence of abandonment to support a reasonable inference thereof. (See Aguilar, supra, 25 Cal.4th at p. 849 [defendant may not rely upon the mere allegations or denials of his pleadings to raise a triable issue of material fact exists, but must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto].)

The HOAs argument fails at the start because there is no evidence of Kesiks nonuse in the record. Second, the fact that Kesiks 1994 grant deed to Levy did not reference the easement does not support a reasonable inference of his intent to abandon. As explained ante, a conveyance of the dominant tenement transfers an appurtenant easement as a matter of law, regardless of whether the easement is described in the conveyance. (Civ. Code, 1104; Elliott v. McCombs, supra, 17 Cal.2d at p. 31; Moylan v. Dykes, supra, 181 Cal.App.3d at pp. 568, 571-572.) Nor does Kesiks 1992 statement to the City staff give rise to such an inference. That statement was silent to the existence of his parking easement and as to any intent to abandon it. (Cf. Tract Development, supra, 199 Cal.App.3d at p. 1383 [easement holders reference in deed that easement had been abandoned by board of supervisors resolution did not evidence an unambiguous intent to except the private easement from conveyance of the dominant tenement].)

The evidence below was consistent with Kesiks intent to retain the easement. When he and the other seventh floor unit owners approached the City in 1989, requesting permission to build out the attic space, it was noted in the City Resolution that there had been a dispute concerning whether the attic space was a common area. The developer, applicants, and the HOA (acting for the individual homeowners) reached a written agreement whereby the parties have recorded Quitclaim deeds in which the [HOA] convey[ed] to the applicants, respectively, any and all interest it may have in that attic space . . . . The variance was conditioned on the representation that the applicants owned the attic space, and the homeowners did not dispute their ownership. However, there were no similar conditions imposed or representations made regarding parking place ownership in any of the Resolutions. Moreover, the HOA presented evidence that in connection with obtaining approval to build out the attic space, the HOA wanted homeowners like Kesik to revise their deeds to eliminate any additional parking easementsand even sent him a legal document to effect that change. Kesik, however, never executed the document and the HOA did not follow up on its request. Of course, the 1998 Disclosure document, created years after Kesik sold his unit, provides no evidence of his intent to abandon. Finally, although we find Kesiks execution of the 2004 quitclaim deed to Wall had no legal effect, it amounts to some, albeit slight, evidence that Kesik had intended to convey interest in the easement at the time of his sale to Levy.

The HOA Forfeited its Estoppel Contention

The HOA contends Wall should be equitably estopped from enforcing the parking easement primarily because of his approval of the Disclosure document. However, as the HOA concedes, it did not make that contention below, either in its opposition to the summary judgment motion or its motion for reconsideration. We find the HOA has forfeited this argument by failing to raise it in the trial court. (E.g., Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472 [The rule which forbids raising a new issue for the first time on appeal takes on added significance in summary judgment proceedings because [t]he moving partys burden on a motion for summary judgment is only to negate the existence of triable issues of fact in a fashion that [entitles] it to judgment on the issues raised by the pleadings. [Citation.] It [is] not required to refute liability on some theoretical possibility not included in the pleadings. [Citation.] [Citation.]].)

We decline the HOAs invitation to exercise our discretion to consider the contention because it is neither an important issue of public policy nor does it present a question of law based upon undisputed facts. (See Raphael v. Bloomfield (2003) 113 Cal.App.4th 617, 621; Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73 [where, as here, the issue is purely legal and presented to us on undisputed facts, and involves a matter of public interest, we retain discretion to decide it].) Equitable estoppel generally requires an intensely fact-based inquiry (see Department of Mental Hygiene v. Lucas (1966) 243 Cal.App.2d 464, 466), and because the doctrine was not raised below, we determine neither whether the facts were fully developed nor whether, or to what extent, they are contested.

DISPOSITION

The judgment is affirmed. Plaintiff is awarded his costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J. MOSK, J.

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^[1] At the time Kesik owned the unit, it was designated Unit 40A. It was subsequently redesignated Unit 71.

^[2] The HOA also contends that if we reverse the underlying summary judgment, we must reverse and vacate the trial courts award of attorney fees to the prevailing parties below. Because the HOAs challenge to the summary judgment ruling fails, we do not address the issue of attorney fees.

^[3] As explained below, consistent with the trial courts findings, our review of the record uncovers no evidentiary support for the existence of any such agreement.

^[4] For that reason, the 2004 quitclaim deed from Kesik to Wall, purporting to convey all three parcels including the parking easement, was of no legal effectKesiks entire interest in the property had been effectively conveyed in 1994.

^[5] Although the HOA chides the trial court for overlooking the Declaration, we note the HOA did not present that document to the court in its summary judgment motion opposition. Apparently, it was placed before the court by Wall in connection with his demurrer to the second amended cross-complaint and his application for attorney fees and costs.

^[6] In its second amended cross-complaint, the HOA purports to quote from an agreement between the condominiums developer and the City dated October 19, 1989, concerning a parking plan that limited each homeowner to one exclusive space for each unit. However, it appears the agreement itself was never placed before the trial court.

^[7] It is unclear whether the HOA also argues the two parking spaces identified in the deed have been eliminated in the sense that the parking garage has been remodeled or reconfigured such that there are no parking spaces in or near the location of the two spaces referenced in the deed. If so, we do not consider that argument because it was not made in its opening brief, but was raised for the first time in its reply brief. Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-765.) Moreover, we find the argument waived because it was not fairly presented to the trial court in connection with the summary judgment motion. (See Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237 [[T]o the extent that the objectors raise an entirely new theory here, which was not considered by the court below, we will not entertain such an issue for the first time on appeal.].) The owner of the servient tenement has the right to place improvements upon the easement, but only as long as they do not unreasonably interfere with the right of the owner of the dominant tenement to ingress and egress. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 700.) Thus, in Scruby, it was found permissible for the servient owner to make a slight reconfiguration to a roadway easement for ingress and egress, based on safety considerations. (Id. at p. 707.)

^[8] Wall argues the HOA forfeited this argument by failing to raise it below. While he is correct that the HOA did not expressly rely on the abandonment theory in connection with his opposition to summary judgment (or in his motion to reconsider), the trial court apparently reviewed the record for evidence of abandonment and found none.