BEDSWORTH, J.
Lemon Heights appears to be a lovely area, but not a great place to live. This is the third time we have been visited by some of the residents of that area, who just can't seem to stop fighting about an easement which runs across the property of plaintiffs and appellants Preston and Elizabeth Flanigan.
The Flanigans next sought to place restrictions on the Gausewitzes' use of the easement in a post-appeal proceeding in the trial court, and while that effort was temporarily successful, we granted the Gausewitzes' petition for writ of mandate, and ordered the trial court to vacate its order modifying the scope of the easement. As we explained in that opinion, the Flanigans' sole defense to the quiet title action was a claim the lower portion of the easement had been extinguished entirely by locked gates placed below the paved portion known as Wilding Road, and thus restrictions on the "scope" of the easement had not been placed at issue, and could not be raised post-appeal.
Unfortunately, the Flanigans misinterpreted our ruling as an invitation to litigate their claimed restrictions on the scope of the easement in a later case — i.e., this case, which they have brought against both the Gausewitzes and yet another set of neighbors, Larry and Susan Pomatto, seeking declaratory and injunctive relief, damages for trespass, and requesting that title to the easement be re-quieted in a somewhat modified fashion. No such invitation was intended, however, and thus the trial court properly sustained a demurrer, without leave to amend, to the Flanigans' claim the easement in question should be limited to a "walking path" below the paved portion, to be used by only the Gausewitzes, their heirs and assigns, and specifying the Gausewitzes are prohibited from building a road for vehicular use on that portion of the easement. The court also correctly determined the Flanigans cannot state a cause of action for quiet title to that lower portion of the easement, so as to reflect those same restrictions. Any claims the Flanigans had which arguably restricted the Gausewitzes' ownership and right to utilize the easement, as written, were required to be raised in that first quiet title action. Their failure to do so meant those claims were waived, not preserved. Once title to the easement was quieted in favor of the Gausewitzes, the matter was concluded. Absent some change in circumstances affecting the parties' future rights, that is how it will remain.
However, the Flanigans' final claim — that the Gausewitzes are exceeding their rights under the easement by occasionally parking their cars on the paved portion, and thereby rendering it impassable to the Flanigans' own vehicles — is a different story. While this claim does not support a cause of action for trespass — which requires the plaintiff have "exclusive" possession of the land in question — it nonetheless demonstrates a current dispute between the parties about whether the Gausewitzes are impermissibly interfering with the Flanigans' own rights to utilize the easement property — an issue which was neither litigated, nor required to be litigated, in the prior case. Although most neighbors might be expected to resolve such a minor disagreement informally, these people are not neighbors; they just live near each other. Thus, if these litigants truly cannot come to grips with the fact they are required to share this easement property, even though they dislike each other, the Flanigans have the right to state a claim for declaratory relief, asking the lower court to declare the extent to which the parties can, and cannot, park on the easement "road."
The judgment is consequently reversed, and the case is remanded to the trial court with instructions to grant the Flanigans leave to amend their complaint to state a claim for declaratory relief, to determine the parties' respective rights to park cars on the designated road, and to seek an injunction barring improper use of the easement for parking. In light of our partial reversal of the lower court decision, we reject the Gausewitzes' cross-appeal challenging the court's refusal to award them sanctions, and reject their motion for sanctions — including dismissal — on appeal as well.
In our first opinion, Gausewitz v. Flanigan (Nov. 27, 2007, G037721) [nonpub. opn.]), we explained that the Gausewitzes purchased their hillside home in Lemon Heights, an unincorporated area of Orange County, in July of 2003. Their neighbors to the east, across a private, paved road known as "Wilding Road," are the Flanigans. Both properties are accessed from Wilding Road, which extends, in paved form, south from Foothill Boulevard to nearly the southern edge of the Gausewitz property.
The Gausewitzes' property includes the following easement: "A right of way and easement for road and electrical, gas and water service and connection, over, along, under and across the following: a strip of land 12 feet wide, now used for a private roadway. . . ." (Gausewitz v. Flanigan, supra, G037721, p. 3.) The private roadway described is Wilding Road, and the legal description of the easement essentially mirrors the road as it is currently paved, and then extends south past the paved portion of the road, all the way to La Loma Drive.
Shortly after the Gausewitzes purchased their property, they noticed that a gate across the easement (part of a fence dividing the Flanigans' property from that of the Toths, their neighbors to the south), was secured by a chain and two locks. Alfred Gausewitz cut the chain, and refastened the chain with his own combination lock.
And that's when the fun began. For a year and a half, the Flanigans and the Toths disputed the Gausewitzes' right to access the unpaved portion of the easement below the gates. Finally, in March of 2005, the Gausewitzes filed an action to quiet title to the easement in their favor, for a declaration the easement was valid, and an injunction preventing interference with it. The Flanigans and Toths defended the action on the basis the gate between their properties had been kept continuously locked for a period of five years commencing in 1997, and thus the portion of the easement below that gate had been extinguished through adverse possession by the time the Gausewitzes purchased their property in 2003.
The Flanigans and Toths did not prevail, as the jury concluded that ingress and egress to the lower portion of the easement had not been continuously blocked for a period of five years. Quiet title to the easement was granted in favor of the Gausewitzes, and the court otherwise declined to issue any rulings on the scope of the easement, finding the issue was not raised in the pleadings or addressed by the evidence offered at trial.
The judgment determined the Gausewitzes owned "a deeded easement legally described as . . . a right of way and easement for road and electrical, gas and water service and connection . . .," and the easement is "in full force and effect and is not subject to any adverse interest" on the part of the Flanigans. It enjoined the Flanigans "from encroaching, obstructing or in any other way interfering with the use of the Gausewitz Easement," and ordered the Flanigans "to remove all fences, gates, wall, plaster, vines, trees, shrubs, hedges, woodpiles, fountains, above ground irrigation and other structures or vegetation that encroaches on, obstructs, blocks or otherwise impairs or interferes with the Gausewitz Easement within 21 days of the entry of this judgment."
This court affirmed that judgment on appeal. With respect to the issue of whether the easement, as confirmed by the judgment, was "too broad," we explained why the trial court had not erred in refusing to consider arguments the easement had been narrowed from its written terms as a result of restricted usage: "The complaint put in issue the validity of the recorded easement and whether Flanigan had interfered with it, nothing more. The answer asserted adverse possession as an affirmative defense, but the claim was the easement had been extinguished, not that its scope had been narrowed to a footpath. And Flanigan's theory at trial, along with his evidence, was that he blocked all access to the easement by maintaining locks on the Toth/Flanigan gate for five years. There was no claim, or evidence, that Flanigan barred automobiles but allowed pedestrians to use the pathway down to La Loma Drive. Since the scope of the easement was not contested, there was no error in quieting title to the easement set out in the Gausewitz deed." (Gausewitz v. Flanigan, supra, G037721, p. 13.)
When the case was remanded to the trial court, the parties could not agree about what the judgment required of the Flanigans. As a consequence, the trial court held a status conference, solicited briefing from the parties, and toured the property. After doing those things, the court issued an order, in the form of a letter, purporting to modify the judgment and narrow the injunction. Specifically, the court refused to order removal of the encroachments, explaining "were the requests of Gausewitz granted, [the parties' property] would be exposed to serious safety issues due to . . . erosion of much of the recorded easement . . . . This constitutes a danger for those using the easement and substantial exposure to liability of the property owners. Further, to remove the Gausewitz-Flanigan gate would create an easement open to the public that would dramatically increase liability for the servient owners . . ., decrease basic privacy for servient owners and deprive servient owners of their right to enclose their property."
The court then purported to narrow the unpaved easement to pedestrian use: "The lower portion of the easement, south of the paved portion of Wilding Road . . . is a right of way for [Gausewitz] . . . to access La Loma Drive on foot . . . until governmental authority determines otherwise." It ordered relocation of the fence within the unpaved easement to the boundary line, removal of the wood pile but nothing else, and directed Flanigan to provide Gausewitz with keys to the two gates blocking the easement. It declined to order removal of the encroachments in Wilding Road, saying this was not an issue in the case, so "the Flanigans may do what they want with the 12 feet by 40 feet, so long as it does not interfere with [the Gausewitzes'] pedestrian access to and from La Loma Drive [connected to Wilding Road by the unpaved portion of the easement]." Then, the court enjoined the Gausewitzes from parking on, or otherwise obstructing Wilding Road, saying "parking there would constitute an unreasonable obstruction by blocking the servient owners' access to their . . . property and would create safety and security issues."
The Gausewitzes petitioned this court for a writ of mandate directing the trial court to vacate its modified judgment, and we issued the writ. As we explained, the court could not properly modify the judgment, post appeal, based upon restricted usage arguments which we had already determined were not properly raised by the Flanigans as a defense to enforcement of the easement. "A principle or rule of law necessary to an appellate decision is the law of the case, and it must be followed in subsequent proceedings in the case. (People v. Stanley (1995) 10 Cal.4th 764, 786.) So Flanigan was not entitled to reargue an issue decided against him by this court, since `[l]itigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court.' (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312.)" (Gausewitz v. Superior Court (June 26, 2008, G040021) [nonpub. opn.], p. 6.)
Nor, we concluded, "was there any showing of changed circumstances that would support modifying the injunction. To the contrary, there was not even a claim of changed circumstances. [With neither] claim nor evidence of any material change in the facts upon which the injunction was based, justification for modifying it cannot be found in the court's inherent power to modify an injunction when circumstances have evolved." (Gausewitz v. Superior Court, supra, G040021, p. 6.) We had no choice but to vacate the trial court's attempt to modify the initial judgment.
All of which leads us to this case. Here, it is the Flanigans who have sued the Gausewitzes, plus the Pomattos, in yet another effort to restrict the Gausewitzes' entitlement to utilize the easement.
The court rejected each of their claims, and sustained the Gausewitzes' demurrer to the second amended complaint without leave to amend. As the court explained in its ruling, "The issue of [the Flanigans'] rights over the easement were established in favor of the Gausewitzes in the prior Action. [The Flanigans] cannot obtain title by virtue of adverse possession to the easement or any part of it; that issue has already been decided and is barred from being relitigated. The easement, being a roadway, contemplates the use by others. The easement, being a roadway easement and a private road easement, may be used for temporary parking (Heath[v. Kettenhofen (1965) 236 Cal.App.2d 197]). [The Flanigans] have no right to pursue a trespass against the Gausewitzes or third persons, for that matter, who use the easement as a roadway, including such uses as walking, driving or parking, and any such persons do not need the consent of [the Flanigans] to use such easement; they need the consent of the Gausewitzes. Plaintiffs are not alleging the use of the easement for parking is unreasonable; they are seeking a declaration that the parking is an impermissible use and it is not. [The Flanigans] are not alleging that third persons walking on the easement has been unreasonable; they are arguing that the very fact that third persons are walking on the easement, without the consent of [the Flanigans] is unreasonable and it is not; consent is only needed from the Gausewitzes."
"On appeal from a judgment dismissing an action after sustaining a demurrer . . . the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed `if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
In this case, as in many others, our analysis of the complaint is complicated by the fact the Flanigans have, to a certain extent, intermingled their causes of action, and organized the complaint by remedy — i.e., declaratory relief,
Consequently, in determining whether the Flanigans have stated any viable cause of action in their second amended complaint, and whether those causes of action are precluded by the prior litigation, we will focus on the specific wrongs and disputes alleged, rather than on the "causes of action" into which those wrongs have incorrectly been organized.
The Flanigans' two primary concerns are that the Gausewitzes contend they have a right to build a road, suitable for vehicle access, on the lower portion of the easement ending at La Loma Drive, and that they have a right to allow third parties to use that road. The Flanigans, by contrast, contend the lower portion of the easement must be restricted to pedestrian use only, because even if the easement had not been entirely blocked as they contended in the prior case, it was at least blocked against use by automobiles. They also contend use of the easement is implicitly restricted to "the Gausewitzes, their heirs, successors or assigns," and thus the Gausewitzes have no right to allow any third parties to access it, based upon the language of a 1926 grant of easement over the same property to "Verna Peterson, a single woman, her heirs, successors and assigns."
The Flanigans have asked the court for a declaration which limits the lower portion of the easement to this restricted pedestrian-only usage, and to "quiet title" to the easement in a manner which reflects the limited use of the lower portion. According to the Flanigans, these issues are both available to be litigated in this case, because the "scope of use" of the Gausewitzes' easement was not placed at issue in the prior quiet title action. We are not persuaded. The flaw in the Flanigans' position is their assumption that because limitations on the "scope" of the easement were not actually litigated in the prior action, that issue remained available to be addressed in a future case. It did not.
The matter placed at issue by the Gausewitzes' complaint in the first action was their request to quiet title to the easement, and confirm their ownership of it, in its entirety. That is the relief they requested. Hence, any defenses the Flanigans then had to the enforcement of that easement, or any portion of it,
"The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent." (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065, italics added.) The doctrine of res judicata applies when (1) the issues decided in the prior case are identical with those presented in the later one; (2) there was a final judgment on the merits in the prior case; and (3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015.)
The cause of action litigated in the prior case was the Gausewitzes' right to utilize the easement over the Flanigans' property, on the terms specified in their deed. That is the same issue the Flanigans are attempting to revisit in this case, albeit by imposing somewhat different restrictions on the easement than the one they attempted to impose in the earlier case. Given that one of the claims asserted in their second amended complaint actually seeks to "quiet title" to the Gausewitzes' easement, we simply reject as disingenuous the Flanigans' effort to persuade us this case is not about "title" to the easement. It is.
We acknowledge the Flanigans' contention that in the prior action, the Gausewitzes claimed they only wanted to use the lower portion of the easement for a footpath, and never indicated any desire to develop a paved road on the lower portion until after the trial was concluded. In essence, the Flanigans are suggesting that because the Gausewitzes failed to reveal their true plans for the easement in the first action, the Flanigans actually had no opportunity in that case to challenge the planned extension of the paved road into the lower portion of the easement. We are unconvinced. While we understand the Flanigans may feel the Gausewitzes were being disingenuous (and we express no opinion on the point), the contention is simply irrelevant. The claims placed at issue by the Gausewitzes in their quiet title action were those reflected in their complaint — essentially their ownership of the easement. What they planned to do with it in the future was not germane to that issue — if they own it, they are entitled to use it in any way which is consistent with their ownership rights. Consequently, short of a formal stipulation, anything the Gausewitzes may have said, whether in court or outside, about limiting their plans for the easement, once secured, was purely informational. (See Ellena v. State of California (1977) 69 Cal.App.3d 245, 260 [res judicata does not extend to an issue the parties explicitly agreed to withdraw from the litigation.].) And of course, had the relief granted to the Gausewitzes in the prior case actually exceeded the relief sought in their complaint — e.g., if they explicitly sought to quiet title to a "footpath," easement only, and the court nonetheless granted them title to a roadway easement — then the Flanigans could have cited that discrepancy as a basis to attack the judgment on appeal. But they did not do so, and now that the judgment in the prior case is final, the Flanigans cannot attack it here.
We are likewise unpersuaded that the Gausewitzes' alleged plan to build their road — which will apparently require substantial substructure work, including grading, a retaining wall and caissons, and will allegedly cause both drainage and erosion problems on the Flanigan property and damage to "ancient historic trees" — somehow justifies a reconsideration of the easement itself. According to the Flanigans, the Gausewitzes have applied for a building permit to construct the proposed road, which has yet to be approved, as the Gausewitzes will be required to submit acceptable plans to address "grading, topographical and other hurdles occasioned by the terrain of the Flanigan property." Thus, as the Flanigans implicitly concede, the practical problems posed by the creation of a paved road, and whether construction of that road should be permitted in light of those problems, are for the permitting authority to consider in the first instance. The Flanigans are free to raise whatever concerns they have in that forum, and it would be improper for this court to preempt that process before its conclusion. For our purposes here, it is sufficient to note that while the easement adjudicated to be owned by the Gausewitzes gives them the property right to use that strip for a "road," their right to actually construct such a road is subject to all the restrictions which would pertain to such construction if carried out by any regular land owner.
Because the Flanigans' attempt to restrict the Gausewitzes' rights to utilize the unpaved portion of their easement in the manner specified by its terms amounts to an effort to litigate new defenses which could have been brought in the prior quiet title action, that effort is barred by res judicata. Thus, the court did not err in sustaining a demurrer, without leave to amend, to the Flanigans' claims the lower portion of the easement must be restricted to use as a footpath only, and accessed only by the Gausewitzes, their heirs, successors and assigns. Those restrictions are inconsistent with the terms of the easement and the prior judgment quieting title to that easement in favor of the Gausewitzes.
The final claim asserted by the Flanigans was that the Gausewitzes were exceeding their rights under the easement as written, by parking their cars on the paved portion. According to the Flanigans, use of the easement for parking makes it impassable by other cars, and thus interferes with its use as a roadway. This claim is not a defense to the Gausewitzes' prior quiet title action, and thus was not required to be raised and adjudicated in that case. We will thus consider whether these facts state a claim for relief on the merits in this case.
First, we note (as did both the Gausewitzes and the trial court) that these facts do not support a cause of action for trespass, which is what the Flanigans attempted to plead. A cause of action for trespass requires the plaintiff have "exclusive" possession of the land in question (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233 ["`A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it.'"]; Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182), and that is not the case here — obviously the strip of land comprising the easement is not possessed exclusively by the Flanigans. But as we explained above, our task in reviewing an order sustaining a demurrer without leave to amend is to determine whether the facts alleged would state a claim for relief on any legal theory, not solely the one chosen by plaintiff.
In this case, we conclude the Flanigans have stated a claim for declaratory relief, to ascertain whether parking is permissible on the easement.
Here, because the easement granted to the Gausewitzes is not an exclusive one, the Flanigans also retain rights to use the property burdened by the easement in any way which does not interfere with the Gausewitzes' easement rights. (Gray v. McCormick (2008) 167 Cal.App.4th 1019.) A "road," and not a parking area, is what that easement specifies, and since the Flanigans' own use of the strip for a roadway would not interfere with the Gausewitzes' use of it for that purpose, the Flanigans retain the right to use it in that manner as well. Consequently, much as they may dislike and distrust each other, these parties are obligated to share the road. If either the Gausewitzes or the Flanigans are using the easement in a way that actually prohibits its use as a road, then they are interfering with the right of the others to utilize the roadway.
In rejecting the Flanigans' parking complaint, the trial court relied upon Heath v. Kettenhofen, supra, 236 Cal.App.2d 197, for the proposition that "the easement, being a roadway easement and a private road easement, may be used for temporary parking." However, Heath states no such general rule. In that case, the appellate court upheld a trial court's judgment providing for specific parking areas for both parties on a 40-foot wide roadway easement owned by plaintiff on the edge of defendant's property. The trial court had based its decision on determination that the parties had an equal right to use the roadway easement, and that both could utilize it for "such transitory parking as would not interfere with the rights of the other party." (Id. at p. 203.) In upholding the decision, the appellate court reasoned, "the entire judgment must be read in the light of its fundamental holding that the rights of the parties in and to the easement, for roadway purposes, are coexisting and equal, and that these rights embrace as necessary incidents thereto the reasonable use of the easement by each party for such transitory parking as will not interfere with the rights of the other. When this is done, it is clear that no right of the plaintiffs is in any manner impaired." (Id. at p. 204, italics added.)
This case, which involves the use of 12-foot wide roadway easement is obviously distinguishable. An average mid-sized car could easily be six feet wide, especially when side mirrors are included. And if that car is parked on the easement, it leaves only six feet remaining for another car to pass by. That is not enough to reasonably accommodate even another mid-sized vehicle, let alone large SUVs, emergency vehicles, gardener's trucks or construction vehicles. Hence, there is certainly a basis to conclude that parking a car on this easement would make it impassible, and thus amount to an interference with the rights of others (including the Flanigans) to use it as a roadway.
We consequently conclude the trial court erred in ruling this roadway easement necessarily included the right to park a car thereon, and sustaining a demurrer, without leave to amend, to the Flanigans' claim for a judicial declaration that such parking exceeded the Gausewitzes' rights under the easement.
The Gausewitzes have cross-complained, arguing the court abused its discretion in refusing to award them sanctions under below. According to the Gausewitzes, the instant case is "objectively frivolous and has been brought solely for improper purposes." Obviously, having reversed the trial court's judgment in part, we disagree.
While the Flanigans' complaint about the parking issue seems minor — the sort of issue that is normally addressed through a show of basic courtesy among neighbors — we cannot fault them for pursuing it. If these parties actually cannot agree that neither should park cars in such a way as to block vehicle access to Wilding Road — used by both to access their property — then a declaratory relief action might actually be necessary.
Under Code of Civil Procedure section 128.7, sanctions are warranted only upon a finding that the party to be sanctioned pursued the matter "for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation" or that "[t]he claims, defenses, and other legal contentions" asserted were not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." (Code Civ. Proc., § 128.7, subds. (b)(1) & (b)(2).) We cannot say the trial court abused its discretion in refusing to award such sanctions here.
The Gausewitzes have also moved for an award of sanctions on appeal. Such an award is appropriate in only the most egregious cases. "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Given that the Flanigans have obtained relief on appeal, we cannot say this case meets those standards.
The judgment of dismissal is reversed, and the case is remanded to the trial court with instructions to enter an order sustaining the Gausewitzes' demurrer to the Flanigans' second amended complaint without leave to amend as to all causes of action other than the claim for declaratory relief to determine the parties' respective rights to park cars on the designated road, and to seek an injunction barring improper use of the easement for parking. As to the latter claim, the Flanigans shall be granted leave to amend. Each party shall bear their own costs on appeal.
The Flanigans' petition for a writ of supersedeas is denied as moot. The temporary stay previously issued by this court of all road construction on the southern portion of the easement is dissolved.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
