Judge Ronald F. Frank, Case Number: 22TRCV00741, Date: 2024-05-07 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00741, Date: 2024-05-07 Tentative Ruling

Case Number: 22TRCV00741 Hearing Date: May 7, 2024 Dept: 8

Tentative Ruling¿

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HEARING DATE: May 7, 2024¿

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CASE NUMBER: 22TRCV00741

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CASE NAME: Peacock Flats, LLC v. John M. Colich and Janine T. Colich, Trustees of the John and Janine Colich Trust Dated April 30, 1993, et al.

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MOVING PARTY: Defendants, John M. Colich and Janine T. Colich, Trustees of the John and Janine Colich Trust Dated April 30, 1993, and John M. Colich and Janine T. Colich, as individuals.

RESPONDING PARTY: Plaintiff, Peacock Flats, LLC

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion for Summary Judgment and in the alternative, Summary Adjudication

¿ Tentative Rulings: (1) ARGUE. Are there disputed issues of fact as to historical use of the Vanderlip Drive easement area, whether parking in certain portions of the area obstructs ingress and egress, whether the 1946 deeded easement conflicts with the 2014 License Agreement, whether a condition precedent to the effectiveness of the License Agreement has or has not been established, divergent opinions of non-party witnesses, and the applicability of the relevant municipal code provisions, and if so are these factual disputes material or insubstantial?

I. BACKGROUND¿¿

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A. Factual¿¿

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On August 24, 2022, Plaintiff, Peacock Flats, LLC (“Plaintiff”) filed a Complaint against Defendants, John M. Colich and Janine T. Colich, Trustees of the John and Janine Colich Trust Dated April 30, 1993, John M. Colich, and individual, Janine T. Colich, an individual, Tate Chung, an individual, June Van Nort, as Trustee of the June Van Nort, as Trustee of the June Van Nort Family Trust, and DOES 1 through 50. The Complaint alleges causes of action for: (1) Quiet Title; (2) Breach of License Agreement; and (3) Declaratory Relief.

Plaintiff’s Complaint is based on Plaintiff’s contention that it is, and was, the owner of the real property located at 100 Vanderlip Drive, Rancho Palos Verdes, CA 90275 (“Subject Property.” (Complaint, ¶ 8.) Plaintiff further notes that the Subject Property is located at the dead-end of Vanderlip Drive, with no outlet to a public street, and noted that the nearest public street is Palos Verdes Drive South, 1.6 miles away. (Complaint, ¶ 8.) Plaintiff notes that Defendants, John M. Colich and Janine T. Colich, Trustees of the John and Janine Colich Trust dated April 30, 1993, are the owners of the real property at 99 Vanderlip Drive and notes that it also believes John and Janine Colich, as individuals, are partial owners as tenants in common of real property at 60 Vanderlip Drive. Plaintiff contends that an easement was granted and recorded “for road purposes” (“Easement”) over the Colich Property at 99 Vanderlip Drive, the 60 Vanderlip, and 85 Vanderlip property (collectively, “Easement Servient Tenements”) – with the Subject Property (100 Vanderlip Drive) as the dominant tenement. (Complaint, ¶ 9.)

Plaintiff further asserts that Defendants, John and Janine Colich were the owners of the Colich property and/or authorized to enter into a License Agreement with Plaintiff’s predecessor in interest, recoded in the Official Records of the Los Angeles County Recorder’s office on June 17, 2014 as Instrument No. 20140627330 (“License Agreement”). (Complaint, ¶ 10.)

Further, Plaintiff notes that Defendant, Tate Chung is an individual who was and is a partial owner as a tenant in common of the real property of 60 Vanderlip, and is named as an indispensable party. (Complaint, ¶ 11.) Further, Plaintiff notes that June Van Nort, as Trustee of the June Vane Nort Family Trust is the owner of the real property of 85 Vanderlip Drive, and is also named as an indispensable party.

However, Plaintiff contends that despite the easement being expressly designated for “road purposes,” Colich Defendants have placed “No Parking” signs in the Easement by Defendants for the purposes of interfering with the use of the easement by Plaintiff, its guests, invitees, and vendors for purposes for which it was granted to the Subject Property. (Complaint, ¶ 19.) Plaintiff also asserts that the Colich Defendants have attempted to prohibit Plaintiff’s guests, invitees and vendors from temporarily parking or waiting to enter the Subject Property on areas of the road or the Easement available for parking – both in person or by leaving notes and/or having directly threatened to have such vehicles towed. (Complaint, ¶19.) Plaintiff also contends that Defendants have further expressly prohibited any use of the Easement other than “ingress and egress.” (Complaint, ¶ 19.)

The Colich Defendants have now filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication on Plaintiff’s First, Second, and Third causes of action.

B. Procedural¿¿

On December 27, 2023, Colich Defendants filed a Motion for Summary Judgment, or in the Alternative, Summary Adjudication. On March 1, 2024, Plaintiff filed an opposition. On May 2, 2024, Colich Defendants filed a reply brief. A myriad of associated objections, declarations, and other documents were concurrently filed with the parties’ briefing. HOWEVER, Colich Defendants filed three new declarations with their reply papers, presenting new evidence supporting their motion to which Plaintiffs have not had an opportunity to address other than in their objections to evidence. The Court will take oral argument as to whether the hearing should be continued to afford Plaintiffs a fair opportunity to respond to the new evidence.

II. EVIDENTIARY OBJECTIONS

Colich Defendants’ Evidentiary Objections to Plaintiff’s Opposition Evidence

Overrule: all.

Sustain: none.

Plaintiff’s Evidentiary Objections to Colich Defendants’ Reply Evidence:

Objections to Gordon Leon’s Declaration:

Overrule: all.

Sustain: none.

Objections to Don Christy’s Declaration:

Overrule: all.

Sustain: none.

Objections to Sheri Hastings Declaration:

Overrule: 1-7, 9-17

Sustain: 8

Objections to Joan A. Aarestad Declaration:

Overrule: all.

Sustain: none.

Objections to Exhibits:

Overrule: all.

Sustain: none.

Objections to Supplemental Request for Judicial Notice:

Overrule: all.

Sustain: none.

III. REQUESTS FOR JUDICIAL NOTICE

Along with their moving papers, Colich Defendants have requested this Court take judicial notice of the following:

1. EXHIBIT A: Deed recorded in the Official Records of the Los Angeles County Recorder’s Office on July 12, 1945 at Book 22193, Page 227-229

2. EXHIBIT B: Deed recorded in the Official Records of the Los Angeles County Recorder’s Office on November 13, 1947 at Book 25251, Page 425

3. EXHIBIT C: Grant Deed recorded in the Official Records of the Los Angeles County Recorder’s Office on September 10, 2012 as Instrument No. 20121347287, for the property located at 99 Vanderlip Drive, Rancho Palos Verdes, CA 90275

4. EXHIBIT D: Grant Deed recorded in the Official Records of the Los Angeles County Recorder’s Office on December 28, 2016 as Instrument 20161648581, for the property located at 60 Vanderlip Drive, Rancho Palos Verdes, CA 90275

5. EXHIBIT E: Deed recorded in the Official Records of the Los Angeles County Recorder’s Office on July 29, 2020 as Instrument 20200851564, for the property located at 100 Vanderlip Drive, Rancho Palos Verdes, CA 90275

6. EXHIBIT F: Grant Deed recorded in the Official Records of the Los Angeles County Recorder’s Office on June 30, 2022 as Instrument 20220681555, for the property located at 60 Vanderlip Drive, Rancho Palos Verdes, CA 90275

7. EXHIBIT G: License Agreement recorded in the Official Records of the Los Angeles, County Recorder’s Office on June 17, 2014 as Instrument No. 20140627330;

8. EXHIBIT H Rancho Palos Verdes Official Zoning Map (2012) https://www.rpvca.gov/DocumentCenter/View/5912/Zoning-Map-adopted2012-PDF [separate page] Enlargement Detail Identifying Location of 100 Vanderlip Drive;

9. EXHIBIT I: Rancho Palos Verdes General Plan Land Use Map (2018) https://www.rpvca.gov/DocumentCenter/View/12631/2018-General-PlanLand-Use-Map [separate page] Enlargement Detail Identifying Location of 100 Vanderlip Drive

10. EXHIBIT J: California Constitution Article XI Section 7

11. EXHIBIT K: History of Rancho Palos Verdes Development from City Website https://www.rpvca.gov/1415/History-of-Rancho-Palos-Verdes

12. EXHIBIT L: Peacock Flats, LLC Complaint, filed on August 24, 2022

13. EXHIBIT M: Amended Answer of John M. Colich and Janine T. Colich Verified and Amended Answer to Complaint, filed on December 22, 2022

14. EXHIBIT N: Peacock Flats, LLC Dismissal of Defendant June Van Nort from Action, filed on May 3, 2023

15. EXHIBIT O: Peacock Flats, LLC Dismissal of Defendant Central Properties General Partnership, aka Central Properties from Action, filed on July 21, 2023

16. EXHIBIT P: Peacock Flats, LLC Request for Entry of Default of Tate Chung, filed on February 23, 2023

17. EXHIBIT Q: Rancho Palos Verdes Municipal Code (RPVC) Excerpts: - RPVC § 17.02.020K General Residential Code - RPVC § 17.02.025 Conditional Use Permits - RPVC § 17.62.010 - .040 Special Use Permits - RPVC § 17.62.040 Special Use Application (from RPV Website) - RPVC § 17.68 Zoning Changes

18. EXHIBIT R: Excerpt from What Is a Topographic Map and How Is It Useful?

The Court GRANTS Colich Defendants’ requests and takes judicial of the above.

Further, with Colich Defendants’ reply brief, they filed a supplemental Request for Judicial Notice of the following:

1. EXHIBIT S: Vanderlip Investment Company filing with California Secretary of State, dated April 21, 1999, establishing the limited partnership and the right of Henrik N. Vanderlip to act on behalf of the Partnership as its General Partner.

2. EXHIBIT T: Oregon Secretary of State Business Name website search as of April 30, 2024, showing no legal entity registered under the name of Central Properties General Partnership.

3. EXHIBIT U: Excerpts from Oregon Revised Statutes (“ORS”) § 648.005 et seq. regarding duty of business entities to file registration in Oregon.

4. EXHIBIT V: California Secretary of State Business Name Search website search as of April 30, 2024, showing no legal entity in California registered under the name of Central Properties General Partnership.

5. EXHIBIT W: Final Order of Denial of Oregon Department of Land Development and Conservation, dated January 10, 2011, re, inter alia, Tae Hoon Chung did not have legal authority to act on behalf of joint owners of real property located in Washington County, Oregon.

This Court also takes judicial notice of the above documents.

IV. ANALYSIS¿

Here, Colich Defendants argue that they are entitled to summary judgment on the entire complaint or summary adjudication of Peacock Flas’ first and second causes of action for: (1) Quiet Title to obtain “its rights to full use of the easement” because Plaintiff only has the right to ingress and egress over the area used historically to access its property and is entitled to no legal damages; and (2) Breach of License Agreement because Plaintiff has not complied with a condition precedent by complying with the Rancho Palos Verdes municipal code.

The Court advises the parties by way of background that it conducted a Bench trial just last year where the evidence showed that in 1946, recorded deeds relating to the parties’ adjacent properties on a private road in Rancho Palos Verdes referenced mutual easements for “road purposes”. Accordingly, the Court has recently reviewed the law of easements, prescription, adverse possession, and related legal doctrines in the context of ruling after a trial, which occurred after the Second District had reversed another judge’s granting of summary judgment. The Court is thus cognizant of the value of a fully developed factual record, and of the litigiousness of parties in property disputes between Palos Verdes Peninsula neighbors.

A. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

B. Discussion

Quiet Title

Here, the parties do not seem to dispute that there is an easement, nor what that easement granted. However, the crux of the issues between the parties in this matter is what each party can use the easement for and how much of the easement can be used by either party.

Civil Code section 809 provides that, “[t]he owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto.” (Civ. Code, § 809; see also Metzger v. Bose (1957) 155 Cal.App.2d 131, 133 [recognizing that interference with an easement is a cause of action].) Here, Plaintiff’s Complaint alleges that the Colich Defendants’ “No Parking” signs, leaving of notes on vehicles, etc., detrimentally affected Plaintiff’s use and enjoyment of the Subject Property and its entitled use of the Easement and road entry and gate appurtenant thereto; and hampers Plaintiff’s ability to conduct necessary activities at the Subject Property including but not limited to the restoration, repair of and alterations to the Subject Property for its full use as intended by Plaintiff. (Complaint, ¶ 19.) Further, Plaintiff argues that the Colich Defendant’s conduct has violated Plaintiff’s Easement Rights.

Further, Plaintiff contends that on June 16, 2014, the Colich Defendants entered into a License Agreement for the purpose of allowing said Defendants to temporarily construct and maintain a front yard garden wall with wrought-iron fencing with a portion of the Easement. Plaintiff further notes that the License Agreement provides that it may be terminated by the owners(s) of the Subject Property “upon one hundred eighty (180) days’ advance notice, in writing, to Colich…in the event the use of the Vanderlip property is changed or altered in any way that, in the sole discretion of the owners(s) of the Vanderlip property, requires a change in the use of the road easement…” (Complaint, ¶ 21.) Plaintiff notes that such notice of termination of the License Agreement was provided to said Defendants through their authorized representative on February 25, 2022. (Complaint, ¶ 21.) Plaintiff notes that it seeks to quiet title to its rights for full use of the Easement, and to establish and enjoin Defendants’ violations of such rights by the interference thereof – intentional or otherwise. (Complaint, ¶ 22.)

The first issue is whether “Road Purposes” allows Plaintiff to park on the Road Easement. The Colich Defendants argue that the Road Easement is limited to Plaintiff’s ingress and egress access, not all uses of the entire 50-foot width. This easement was first granted pursuant to a Deed recorded in the Los Angeles County Recorder’s office on July 12, 1945, thereafter again in 1947, and thereafter, culminating in the Deed under which Plaintiff took title to the Subject Property in 2020. Plaintiff admits that each of these deeds identifies the Easement as one “for road purposes” 50 feet in width at precise locations specified by metes and bounds.

This Court points the parties to Laux v. Freed (1960) 53 Cal.2d 1960, where the California Supreme Court decided a case in which a plaintiff deeded to defendant, “’[a] right of way over a road as presently constructed along the East Branch of Sand Creek…’” The Supreme Court noted that “[I]n Tiffany, Real Property, volume 3 (3d ed.), section 803, pages 322-323, it is said: ‘A grant in general terms of an easement of way will ordinarily be construed as creating a general right of way capable of use in connection with the dominant tenement for all reasonable purposes. ...’” After Laux v. Freed was decided, the Court of Appeal for the Second District construed a grant “in broad terms” of an easement “for road purposes” as creating “’a general right of way…for all reasonable purposes.” (Wall v. Rudolph (1961) 198 Cal.App.2d 684, 692.) “[S]uch a right …of use [is[ ‘limited only by the requirement that it be reasonably necessary and consistent with the purposes for which the easement was granted.’”(Ibid.; see City of Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 582 [“the grant of an unrestricted easement, not specifically defined as to the burden imposed upon the servient land, entitles the easement holder to a use limited only by the requirement that it be reasonably necessary and consistent with the purpose for which the easement was granted”].)

As such, it is essential for this Court to determine why this easement was initially granted, and what historical use of this easement has entailed. The parties here have submitted differing evidence. For example, Plaintiff has included the Declaration of neighbor Tae Hoon (“Ted”) Chung, who has stated, “I have understood that the easement over Vanderlip Drive which is part of my deed as well as the deed to 100 Vanderlip Drive, includes the right to use the road for all road purposes – including parking as necessary and available for guests of the owners of the easement so long as traffic on the road is not unreasonably obstructed.” (Declaration of Tae Hoon (“Ted”) Chung.) However, Colich Defendants have submitted evidence stating the opposite in declarations from Don Christy and Sheri Hastings.

On a Motion for Summary Judgment, it is not for the Court to weigh the strength of admissible evidence for both parties. As such, the Court notes that such a determination as to which declarations this Court should give greater weight is better left to the fact finder at trial. However, Colich Defendants have also submitted evidence of the License Agreement which states: “On August 2, 1945, there was recorded in book 22193, page 227, in the Office of The County Recorder of the County of Los Angeles, State of California a document entitled Deed, which included an easement whereby the Dominant Tenement was granted an easement for ingress and egress over and across a portion of the Servient Tenement. (Defendant’s Exhibit G.) Defendant argues that this document, which was signed by Henrik Vanderlip on behalf of Vanderlip Investments Company, the entity which owned 100 Vanderlip at the time the License Agreement was signed, stated that Vanderlip understood that the easement was for ingress and egress at the time he signed the License Agreement.

Because Plaintiff seeks to enforce the License Agreement and does not question its validity, this Court notes that it begs the question on whether this license agreement speaks to the historical use, and original purpose along the lines discussed in Laux v. Freed. The Court will seek oral argument as to whether Plaintiff concedes that, based on the License Agreement, the “Road Purpose” was actually meant to mean “ingress and egress” or whether a road purpose can or must include temporary parking alongside the road surface. Further, this Court would like oral argument on whether the dueling declarations submitted by both parties, specifically with Plaintiff’s evidence, creates a material or immaterial dispute to overcome the seeming concession via the License Agreement that the easement was intended to be solely for ingress/egress.

Further, as to the parking at 60 Vanderlip, Defendants argue that because they hold title to their interest in 60 Vanderlip as tenants in common, each tenant in common has equal rights to possession and use of the property that is co-owned. This the Colich Defendants contend they are entitled to use any part of 60 Vanderlip in any lawful manner they choose. Defendants argues Plaintiff has taken the position that it is allowed to offer “transitory” parking and direct strangers to the Colichs to use their parking area whenever they please. This Court notes that the same questions about historic use and purpose of the grant of the easement are at issue here. As such, the Court requests oral argument on these points.

Breach of License Agreement

Next, Colich Defendants also argue that they should be granted summary judgment/adjudication on the second cause of action for Breach of License Agreement because Plaintiff has not complied with a condition precedent under the Municipal Code. The Colichs entered into a License Agreement in 2014 with Vanderlip Investment Company, the predecessor in interest to 100 Vanderlip. Colich Defendants note that the License Agreements contain the following provision:

This License may be terminated by the owner(s) of the Vanderlip property upon one hundred eighty (180) days’ advance notice, in writing, to Colich or to his successor(s) in interest in the event the use of the Vanderlip property is changed or altered in any way that, in the sole discretion of the owners(s) of the Vanderlip property, requires a change in the use of the road easement as described in the Grant of Easement (Exhibit “C” hereto). In such event, Colich or his successor(s) in interest shall remove the wall and fencing and shall restore the easement area to its condition existing before the installation of the wall and fencing prior to the expiration of the notice period referred to hereinabove.

(License Agreement, ¶ 10.)

Seemingly, the “condition precedent” identified by the Colich Defendants is “in the event the use of the Vanderlip property is changed or altered in any way…” (License Agreement, ¶ 10.) Defendants contend that the facts are not in dispute as to the Licensing Agreement, and that it is simply asking this Court how to interpret the agreement since Plaintiff has asked Defendants to remove their wall and fencing.

Colich Defendants assert that the phrase “change in use” is a term of art in the field of land use law. They also contend that no property owner has the “sole discretion” as is stated in the License Agreement, to determine its own “change in use” without complying with the applicable land use and development ordinances a city government may impose. If so, they argue that compliance with the Municipal Code must be a condition precedent to the existence of the License Agreement’s “change in use.” However, Plaintiff’s Complaint notes that Plaintiff intends to restore the property to its full use and dwelling capacity, in order to utilize it for private fundraising capabilities, public performing and visual arts purposes as well as limited commercial opportunities. The Colich Defendants note that the property owned by Plaintiff is within the jurisdiction of the City of Rancho Palos Verdes (“RPV”). Further, they contend that under the police powers that flow from the California Constitution and mandated by the Government Code under §§ 65300, 65302 (a-g) and 65358(b), RPV has passed an extensive matrix of ordinances that govern land use and zoning as well as a myriad of other provisions that support the health, safety and welfare of the community. Rancho Palos Verdes Municipal Code (“RPVC”). Colich Defendants argue that at current, 100 Vanderlip is zoned for residential use, and that if wanting to change its use, it must comply with the process put in place by RPV in its municipal code by applying for a Special Use Permits or Conditional Use Permits or a zoning change.

While this may be true, the Court questions whether this places a condition precedent on the Colich Defendants removing their wall. Certainly, until the changed use was approved, the work on the property would not be approved or required and thus the wall would not impede the claimed changed use. As neither party has provided this Court with compelling precedent on this issue, the Court seeks further oral argument to make its determination.