Judge: Upinder S. Kalra, Case: BC662602, Date: 2023-06-23 Tentative Ruling

Case Number: BC662602    Hearing Date: June 23, 2023    Dept: 51

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, CENTRAL DISTRICT

The above-entitled action came on regularly for Trial on January 22, 2020, and continued thereafter before the jury on January 23, 24, 27, 28, 29, 30, 31, and February 3 and 4, 2020, between Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC and Cross-Defendants, Scott Anderson and Diana Anderson, on the one hand, and Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust, on the other hand, in Department 51 of the above-entitled Court, the Honorable Dennis Landin, Judge Presiding. Trial on the issues reserved for the Court continued thereafter on February 14, 2020 and February 25, 2020.  Sean E. Macias of Macias Counsel, Inc. appeared with David R. Fisher of Fisher & Wolfe LLP on behalf of Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and Cross-Defendants, Scott Anderson and Diana Anderson, who also were personally present.  Patricia L. Swatt and Paul Meshek of Fidelity National Law Group appeared on behalf of Cross-Defendant, Rancho Carlton Properties, LLC.  Edith R. Matthai and Leigh P. Robie of Robie & Matthai, along with James H. Treadwell of Cunningham, Treadwell & Bartelstone appeared on behalf of Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust, who also personally appeared. 

A jury of twelve persons having been duly impaneled and sworn, certain issues having been tried to the jury and the equitable issues having been tried to the Court, witnesses on behalf of Plaintiff and Cross-Defendants and also on behalf of Defendant and Cross-Complainant having been sworn and examined, the exhibits of the parties having been offered and received into evidence, the parties having duly rested, the jury having been duly instructed by the court, the jury having deliberated, the Court having considered all of the evidence and argument of counsel, the remaining issues having been submitted, and the jury having returned the special verdict as set forth in full below, judgment is entered as set forth herein.

THE SPECIAL VERDICT:

Some of the claims made by the parties in this action will be decided by the court based on the evidence presented, the findings made by the jury and the applicable law.

Do not speculate as to why some of the claims will be resolved by the Court. You should not consider this in your deliberations.

The following facts are to be determined by you:

1.      Did Mr. Radnor demolish all of the improvements on Lot 19 set forth in the 1965 Grant Deed?   

If your answer to question number 1 is no, then go to question number 7 located in the section B titled “Rancho Carlton’s Claim for Nuisance.”  If your answer to question number 1 is yes, then go to question number 2 located in the section A titled “Rancho Carlton’s Claim for Trespass.”

B. Rancho Carlton’s Claim for Nuisance:

      7.   Did Rancho Carlton own the property 6393 Bryn Mawr Dr., Los Angeles, California?

If your answer to question 7 is yes, then answer question 8. If you answered no, then answer no additional questions and sign and date this form.

8.   Did Josh Radnor create a condition or permit a condition to exist that was harmful to health?

If your answer to question 8 is yes, then answer question 9. If you answered no, then answer no additional questions and sign and date this form.

Please have the presiding juror sign and date this form.

Dated: February 4, 2020                  Signed:_______/S/________________________________   

                                                                        Parker McCabe

                                                                        Presiding Juror

On February 25, 2020, Judge Landin took the remaining matters under submission, and on March 5, 2020, the Court issued its Tentative Decision and Proposed Statement of Decision.  On May 7, 2020, the Court entered the Amended Judgment on Special Verdict and Court Judgment After Trial (the “May 2020 Judgment.”)  On November 12, 2020, the Court entered the Second Amended Judgment on Special Verdict and Court Judgment After Trial (the “November 2020 Judgment”), which superseded the May 2020 Judgment.  The November 2020 Judgment was recorded in the Official Records of the Los Angeles County Recorder’s Office om May 6, 2022, as Document No. 20220494538.  Both judgments were appealed to the Second District Court of Appeal, consolidated Case Nos. B306473 and B309499, without any challenge to the Special Verdict, and on May 23, 2022, the November Judgment was reversed with directions to the trial court “to enter a new and different judgment providing relief to enforce Radnor’s rights under the easement.” (the “2022 Opinion,” page 2.)

It appearing that by reason of the Special Verdict, the Statement of Decision and the 2022 Opinion, Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust, is entitled to judgment against Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and against Cross-Defendants, Scott Anderson, and Diana Anderson, accordingly;

            IT IS HEREBY ORDERED, ADJUDGED, DECREED, AND DECLARED as follows:

            1.         Plaintiff, Rancho Carlton Properties, LLC, shall take nothing by its Fourth Amended Verified Complaint, and judgment is entered in favor of Josh Radnor, Trustee of the Josh Radnor Trust on the Fourth Amended Complaint; 

            2.         Judgment is entered in favor of Cross-Complainant, Joshua Radnor, as Trustee of the Josh Radnor Trust on the Second and Third Causes of Action contained in the Verified Cross-Complaint for Declaratory Relief and Quiet Title;

            3.         Judgment is entered in favor of Cross-Defendants, Rancho Carlton Properties, LLC, Scott Anderson and Diana Anderson, on the First Cause of Action contained in the Verified Cross-Complaint for Interference with Easement;

            4.         Plaintiff is now, and has, at all times since March 10, 2016 been, the owner in fee simple of the real property commonly known as 6393 Bryn Mawr Drive, Los Angeles, California 90068 (the “Servient Tenement”), and legally described as follows:

LOT 19 OF TRACT NO. 6714, AS PER MAP RECORDED IN BOOK 76, PAGES 18 AND 19 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA

            5.         Josh Radnor originally acquired title to the property on June 5, 2007. Radnor subsequently conveyed title to the property to Joshua T. Radnor, Trustee of the Josh Radnor Trust dated 11/23/09. Radnor and/or his Trust have at all times since June 5, 2007, been the owner in fee simple of the property commonly known as 6387 Bryn Mawr Drive, Los Angeles, California 90068 (the “Dominant Tenement”), and legally described as follows:

            PARCEL 1:

LOT 20 OF TRACT NO. 6714 IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, AS PER MAP RECORDED IN BOOK 76, PAGE(S) 18 AND 19 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

EXCEPTING AND RESERVING TO THE GRANTOR HEREIN, HIS HEIRS, SUCCESSORS, AND ASSIGNS, AN EASEMENT OVER THE EASTERLY 6 FEET OF SAID LOT 20 FOR SEWER PURPOSES WITH THE RIGHT OF INGRESS AND EGRESS THERETO.

PARCEL 2:

AN EASEMENT FOR BARBECUE, A WALKWAY AND CONCRETE AND BRICK RETAINING WALL AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT 19 OF TRACT NO. 6714, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 76, PAGES 18 AND 19 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 19, THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 19, WHICH IS THE ARC OF A CURVE CONCAVED TO THE SOUTH WITH A RADIUS OF 100.00 FEET, A RADIAL LINE TO SAID CORNER BEARS NORTH 8º 50' 50" EAST, AN ARC DISTANCE OF 33.19 FEET TO A POINT WHERE A RADIAL LINE BEARS NORTH 10º 10' WEST, THENCE NORTH 3º 00' WEST 54.89 FEET TO THE NORTHERLY LINE OF SAID LOT 19; THENCE NORTH 85º 30" EAST 45.06 FEET TO THE NORTHEASTERLY CORNER OF SAID LOT 19; THENCE SOUTH 8º 50' 50" WEST 58.67 FEET TO THE POINT OF BEGINNING.

IT IS UNDERSTOOD AND AGREED THAT THE ABOVE EASEMENT WILL TERMINATE WHEN THE IMPROVEMENTS NOW LOCATED ON THE ABOVE DESCRIBED PORTIONS OF LOTS 19 AND 20 OF SAID TRACT 6714 HAVE BEEN DEMOLISHED.

PARCEL 3:

AN EASEMENT FOR A BARBECUE AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT 93 OF TRACT NO. 7798, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN THE BOOK 101 PAGES 13 ET SEQ., OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 93; THENCE NORTH 11° 28' 16" WEST ALONG THE WESTERLY LINE OF SAID LOT 93, 0.76 FEET, THENCE NORTH 88° 42" 30" EAST 11.19 FEET; THENCE SOUTH 1° 17' 30" EAST 0.12 FEET TO THE SOUTHERLY LINE OF SAID LOT 93; THENCE SOUTH 85° 30' WEST ALONG THE SOUTHERLY LINE OF SAID LOT 93, 11.08 FEET TO THE POINT OF THE BEGINNING.

PARCEL 4:

AN EASEMENT FOR A PATIO, CONCRETE AND BRICK RETAINING WALLS AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT 93 OF TRACT NO. 7798, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 101 PAGES 13 ET SEQ., OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID LOT 93; THENCE SOUTH 8° 30' WEST, ALONG THE SOUTHERLY LINE OF SAID LOT 93, 12.89 FEET; THENCE NORTH 5° 24' 40" EAST 40.32 FEET; THENCE SOUTH 84° 07' 28" EAST 13.00 FEET TO THE EASTERLY LINE OF SAID LOT 93, THENCE SOUTH 5° 52' 32" WEST, ALONG THE EASTERLY LINE OF SAID LOT 93, 38.00 FEET TO THE POINT OF BEGINNING.

PARCEL 5:

AN EASEMENT FOR CONCRETE AND BRICK RETAINING WALL, STEPS AND PATIOS AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT 94 OF TRACT NO. 7798, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN THE BOOK 101 PAGES 13 ET SEQ., OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 94; THENCE NORTH 5° 52' 32" EAST, ALONG THE WESTERLY LINE OF SAID LOT 94, 38.00 FEET; THENCE SOUTH 61° 29' 00" EAST 65.39 FEET TO THE EASTERLY LINE OF SAID LOT 94; THENCE SOUTH 9° 51' 40" WEST, ALONG THE EASTERLY LINE OF SAID LOT 94, 26.00 FEET TO THE SOUTHEASTERLY CORNER OF SAID LOT 94; THENCE NORTH 71° 30' WEST ALONG THE SOUTHERLY LINE OF SAID LOT 94, 60.00 FEET TO THE POINT OF BEGINNING.

IT IS UNDERSTOOD AND AGREED THAT THE ABOVE EASEMENT WILL TERMINATE WHEN THE IMPROVEMENTS NOW LOCATED ON THE ABOVE DESCRIBED PORTIONS OF LOT 20 OF SAID TRACT 6714 AND LOT 94 OF SAID TRACT NO. 7798 HAVE BEEN DEMOLISHED.

            6.         Pursuant to that certain Grant Deed from Wallace Van Allen Jones to Raymond A. Sinz, recorded as Document No. 780 in the Official Records of the Los Angeles County Recorder's Office on September 28, 1965 (herein the "1965 Grant Deed"), the property now owned by Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, Lot 19, as hereinabove described as the Servient Tenement, is and has been burdened by the easement appurtenant as set forth in Parcel 2, hereinabove (herein the “Easement Appurtenant”), portions of which easement, as described more fully hereinafter, were and are for the sole and exclusive use in favor of the Dominant Tenement described in paragraph 5, as of the date of the recording of the 1965 Grant Deed;

            7.         That certain Easement Appurtenant over and across Lot 19 as described herein has not been terminated under the express terms of the 1965 Grant Deed, as the jury specifically found in its special verdict that the improvements on the described portions of Lot 19 had not been demolished, defined as “to throw or pull down; to raze; to destroy the fabrication of; to pull to pieces; hence to ruin or destroy; to destroy totally or commence the work of total destruction with the purpose of completing the same” and further, there was no evidence presented that the single family residence located on Lot 20, the benefitted parcel (herein the “Dominant Tenement”), built in 1927, had been demolished;  thus, the condition subsequent, which would result in termination of the easement as set forth in the 1965 Grant Deed, has not occurred;

            8.         The current uses of the Easement Appurtenant do not overburden the easement and are within the intended uses of the Easement Appurtenant;

            9.         The Easement Appurtenant is physically divided by a “Concrete Retaining Wall with Wrought Iron Atop” which was originally built in 2007 by the prior owner of Lot 19 at the time a home was originally constructed on what had been a vacant parcel.  That wall fully extends from the Northerly property boundary of the Servient Tenement to near the Southerly property boundary as the wall meets the stucco retaining wall near the curb.  The “Concrete Retaining Wall with Wrought Iron Atop” is described on the Boundary/Location Plan, a true and correct copy of which is attached hereto and incorporated herein by reference as Exhibit "A," the easterly edge of which line is legally described as follows:

COMMENCING AT THE SOUTHEASTERLY CORNER OF LOT 19 OF TRACT 6714, THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 19, WHICH IS THE ARC OF A CURVE CONCAVED TO THE SOUTH WITH A RADIUS OF 100.00 FEET, A RADIAL LINE TO SAID CORNER BEARS NORTH 8¿1 50' 33" EAST, AN ARC DISTANCE OF 16.59 FEET TO A POINT WHERE A RADIAL LINE BEARS NORTH 0¿1 39' 43" WEST, WHICH IS THE TRUE POINT OF BEGINNING, THENCE NORTH 10¿1 09' 25" WEST 54.89 FEET TO THE END POINT ON THE NORTHERLY LINE OF SAID LOT 19.

            10.       Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust, and his successors-in-interest, pursuant to the terms of the 1965 Grant Deed, from and since its recording, and as a necessary incident and necessary to protect his rights as an easement holder, holds an exclusive right to use the area of the Easement Appurtenant where the improvements are now located, including but not limited to the barbecue, walkway and concrete and brick retaining wall as depicted in Exhibit A attached hereto and incorporated herein by reference.  Accordingly, Radnor and his successors in interest shall have sole use and exclusive control of that portion of the easement area specifically depicted on Exhibit A as the shaded, horizontal lined, and cross-hatched areas denoting the exclusive use portions for its intended use and purpose, which includes, but is not limited to, “backyard activities” (2022 Opinion, page 28);

            11.       The 1965 Grant Deed is construed “as allowing” Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC “to use the easement area outside the location of the barbecue and walkway for any activity, as long as it does not unreasonably interfere with Radnor’s use of the easement for the improvements listed in the deed,” (2022 Opinion, page 29).  However, since the 2007 “Concrete Retaining Wall With Wrought Iron Atop” is a “substantial retaining wall that effectively excludes the owner of the Dominant Tenement from a portion of his easement” (2022 Opinion, page 29) “with no opening for access” (2022 Opinion, page 29); and since the historical use of the areas immediately adjacent to the exclusive use area of the easement (shown as cross-hatched and vertical line areas in Exhibit A) shows that, before 2007 and to date, no owner of the Dominant Tenement attempted to use those portions of the easement; and because anyone using those portions of the easement would be in the yard of the dominant estate, mere feet from the doors of the home, any use of those portions of the easement by the Servient Tenement would unreasonably interfere with the dominant estate’s use and enjoyment of the exclusive use area of the easement. 

            12.       As for the remainder of the easement, (depicted by diagonal lines on Exhibit A), the Court “construes the grant deed as allowing [Plaintiff and Cross-Defendant,] Rancho Carlton Properties, [LLC, and its successors in interest,] to use the easement area outside of the barbeque and walkway for any activity, as long as it does not unreasonably interfere with [Defendant and Cross-Complainant, Josh] Radnor’s, [Trustee of the Josh Radnor Trust, and his successors-in-interest] use of the easement for the improvements listed in the deed.” (2022 opinion, page 29); 

13.       The improvements located to the east of the easterly edge of the “Concrete Retaining Wall With Wrought Iron Atop” on the  Easement Appurtenant shall be maintained in good repair by Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust, and his successors-in-interest, who shall be solely responsible for all costs and expenses associated with the maintenance and repair of the existing barbecue structure, all walls, decks, brick areas, railings, and the like, specifically located within the area east of the easterly edge of the " Concrete Retaining Wall with Wrought Iron Atop."

            14.       Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and its successors in interest shall be solely  responsible for all costs and expenses associated with the  maintenance and repair of any and all improvements to the west of the “Concrete Retaining Wall with Wrought Iron Atop”, including but not limited to the “Concrete Retaining Wall With Wrought Iron Atop,” the adjacent staircase, and the portions of the single family residence contained within the area of the Easement Appurtenant west of the easterly edge of the “ Concrete Retaining Wall With Wrought Iron Atop.”

            15.       Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust, and his successors in interest, shall not unreasonably obstruct or interfere with any maintenance or repair of the “Concrete Retaining Wall With Wrought Iron Atop” depicted on Exhibit A, and shall provide reasonable access for repairs and maintenance of said wall by Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and its successors-in-interest. Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, its agents and its successors-in-interest are prohibited from creating any sort of gate or passageway through or around the “Concrete Retaining Wall With Wrought Iron Atop” as described herein;

            16.       Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and Cross-Defendants, Scott Anderson and Diana Anderson, and their successors in interest shall be enjoined and restrained from any obstruction of or interference with the existing use and also the continuing sole use and exclusive control by Defendant and Cross-Complainant, Josh Radnor, Trustee of the Josh Radnor Trust and his successors-in-interest, of the improvements described above and the areas depicted on Exhibit A as the exclusive use areas of the Easement Appurtenant;

17.       There are items east of the retaining wall that may need to be permitted pursuant to the Los Angeles Department of Building & Safety Orders to Comply with effective dates of July 10, 2018, August 6, 2018, August 20, 2018, and August 22, 2018. Radnor will work with City of Los Angeles to get any items that need to be permitted properly permitted. Radnor will pay any fines and fees associated with the permitting process for the items east of the retaining wall to LADBS.

            18.       Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and its successors in interest, shall be prohibited from withholding permission for and from withholding signatures on, any necessary permits with the Los Angeles Department of Building and Safety to remedy the need for permits for any past work done on the east side of the Easement Appurtenant, and Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and its successors in interest, shall not unreasonably withhold any signatures on the applications for the permits necessary in the future to maintain and repair the improvements within the east side of the Easement Appurtenant.  In the event that Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, or its successors in interest, is unwilling or unable to sign off on any such necessary past permits, the Court shall direct the Clerk of Court to so sign the documentation needed  in order to obtain the necessary permits required to bring any work heretofore done into compliance with the orders from the Los Angeles Department of Building and Safety.

            19.       In the event that the Los Angeles County Tax Assessor increases the property tax assessment on Lot 19 of Tract 6714, the real property commonly known as 6393 Bryn Mawr Drive, Los Angeles, California, now owned by Rancho Carlton Properties, LLC, as the direct and sole result of any repairs or improvements done during 2014-2015, or as a result of getting those repairs/improvement’s permitted, on the area of Lot 19 easterly of the “Concrete Retaining Wall With Wrought Iron Atop” as described more particularly hereinabove, then those supplemental property tax assessments, meaning the difference in dollar amount between the supplemental tax and the regular tax assessment, and only those supplemental assessment amounts, shall be borne by Defendant and Cross-Complainant, Joshua Radnor, as Trustee of the Josh Radnor Trust, or his successors-in-interest, and only until Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, transfers all or any interest in or to the subject property.  Nothing herein shall cause a lien to be imposed on the Radnor property or the Rancho Carlton property, related to any tax consequences as described in this paragraph.

20. This Judgment on Special Verdict and Court Judgment After Trial and Appeal supersedes the November 2020 Judgment recorded as Document No. 20220494538 on May 6, 2022, and this Judgment shall be recorded in the Official Records of the Recorder’s Office of Los Angeles County, California;  

21.       Defendant and Cross-Complainant, Josh Radnor, as Trustee of the Josh Radnor Trust is the prevailing party in this action.

            22.       Defendant and Cross-Complainant, Josh Radnor, as Trustee of the Josh Radnor Trust, shall recover costs from Plaintiff and Cross-Defendant, Rancho Carlton Properties, LLC, and also from Cross-Defendants, Scott Anderson and Diana Anderson, and each of them, in the amount of $29,262.73.

DATED:                                                                     ________________________________

                                                                                    JUDGE OF THE SUPERIOR COURT