BEDSWORTH, J.
This is the fourth appeal we have faced arising out of these parties' inability to resolve any of their differences relating to an easement which runs across the property of Preston and Elizabeth Flanigan. In the seminal case, Alfred and Bonnie Gausewitz sued to quiet title to the easement in their favor, as against the Flanigans, as well as Eugene and Elizabeth Toth and Frank and Suzanne Torres, who are also neighbors. The Gauzewitzes prevailed, and the judgment provided that they had title to the easement, as shown on a tract map and described in an easement deed recorded on March 5, 1926. The judgment also required the Flanigans to remove any structure or vegetation that encroaches on, obstructs, blocks or otherwise impairs or interferes with that easement within 21 days of the entry of judgment.
Apparently, the Flanigans did not remove all of their encroachments, and the Gauzewitzes sought to have them held in contempt for violating that aspect of the judgment. The court refused to do so, but did issue an order specifically requiring the Flanigans to remove all encroachments from the easement, this time within 90 days of the order. Both sides appeal.
The Gauzewitzes contend the court erred in refusing to hold the Flanigans in contempt for violation of a clear requirement in the judgment, and the Flanigans contend the court erred in requiring them to remove anything on the upper portion of the easement which does not actually interfere with the paved road known as "Wilding Road." According to the Flanigans, the court's statement of decision in the initial case specifically identified the upper portion of the easement as being coextensive with Wilding Road, and thus they should not be required to remove any encroachments that do not interfere with that paved road.
The Gauzewitzes' appeal is dismissed. The court's ruling in a contempt proceeding is not appealable. We are tempted to dismiss the Flanigans' appeal on the same basis, but recognize that when the court issued a new order, specifically requiring them to remove their encroachments within 90 days, it went beyond simply adjudicating the contempt matter. Moreover, we recognize that if we do not address the Flaningans' contention in this appeal, we would certainly be required to do so in a later one. And so we address — and reject — it here.
The Flanigans' argument fails because it is the language of the judgment in the initial case, not the court's statement of decision, which controls the parties' rights. Here, the judgment quieted title in favor of the Gauzewitzes to the easement described therein — that is, the easement which is shown on the tract map identified and set forth in the easement deed recorded on March 5, 1926. It is that easement, not the currently paved form of Wilding Road, which is protected by the judgment. To the extent the Flanigans have encroached on that easement — even if those encroachments do not interfere with the paved road, those encroachments must be removed. Consequently, the court's removal order is affirmed.
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 Gausewitzes' 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 [followed by a legal description]." The private roadway referred to is apparently an earlier version of Wilding Road, and the legal description of the easement almost exactly mirrors that road in its current paved form, and then extends south, in an unpaved form, all the way to La Loma Drive.
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 (the unpaved portion) had been extinguished through adverse possession by the time the Gausewitzes purchased their property in 2003.
The jury rejected the adverse possession defense, and entered a special verdict finding in favor of the Gausewitzes. Following the verdict, the Flanigans requested a statement of decision from the court on the causes of action for declaratory relief and quiet title. They asked for a declaration the easement was limited to the upper portion, corresponding to the paved portion of Wilding Road and, if not, a determination of the permissible uses of the lower portion of the easement running across the Flanigan and Toth properties.
The trial court found the easement "means the paved portion of Wilding Road . . . for vehicular and pedestrian use, and south of the paved portion, for the pedestrian use or such other use as is consistent with said easement and approved by appropriate governmental authority, and continuing to La Loma Drive, across the Flanigan and Toth properties."
Judgment was entered declaring the recorded easement to be valid, and quieting title in favor of the Gauzewitzes. The judgment specifically described the easement as "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, along, adjoining and east of courses numbered 75, 78 and 79 as shown on a map of Tract No. 61, C.E. Utt's addition to Lemon Heights, recorded in Book 10, page 5 of Miscellaneous Maps Records of Orange County, California and more particularly describe in the easement deed recorded March 5, 1926, in Book 635, page 107 of deeds." The judgment also enjoined the Flanigans from encroaching upon, blocking, obstructing, or otherwise interfering with the reasonable use of the easement by the Gausewitzes.
In September of 2008, the Gauzewitzes filed an order to show cause (OSC) re: contempt. They sought an order holding the Flanigans and the Toths in contempt for not only refusing to remove all obstructions and encroachments from the Gauzewitzes' easement, but also granting additional easements to various utilities which allow them to place encumbrances under and above ground on the easement property.
The Flanigans opposed the OSC arguing, among other things, that they were not actually encroaching upon the upper portion of the easement as defined by the court in the initial case. They asserted that the court's statement of decision in that case specifically defined the upper portion of the Gauzewitzes' easement as "`the paved portion of Wilding Road at the time Plaintiff Gauzewitz purchased on July 15, 2003 for vehicular and pedestrian use,'" which is slightly different than the parameters of the easement legally described in the recorded title documents. Based upon that statement, the Flanigans argued that the judgment "requires defendants to remove all encroachments from paved Wilding Road," but not from the parts of the recorded easement which fall slightly outside of the paved road. (Italics added.) They concluded that "[s]ince there are no encroachments in paved Wilding Road, there can be no contempt as to the northern portion."
The court held a hearing on the OSC on October 20, 2008. The court concluded that the evidence in support of the OSC — comprised of Mr. Gauzewitz's testimony, without any supporting photographs or other corroboration — was insufficient as a basis for holding defendants in contempt. The court stated it would deny the OSC "without prejudice to bringing it again should there be any evidence of encroachment on the easement as depicted in [Exhibit] 117."
In July of 2009, the Gauzewitzes filed a motion for an order setting a new hearing on the contempt issue, supported by additional evidence regarding the encroachments. The Flanigans opposed the setting of a hearing, arguing that nothing had changed since the first hearing, and asserting that a second hearing on the contempt issue would subject them to double jeopardy. The court scheduled a hearing, which took place on October 5, 2009.
After hearing the evidence at the hearing, the court declined to hold the Flanigans in contempt. In its order, dated November 19, 2009, the court indicated that the area where the parties live is "semi-rural," and thus the easement "has not always been precisely defined." The court noted that it had described the upper portion of the easement as the "paved portion of Wilding Road" in its statement of decision, while the ensuing judgment in that case adopted "the legal description to set forth the location of the easement." The court also asserted that in our initial opinion, on appeal from the judgment, we had characterized the upper portion of the easement as "the paved roadway and recorded easement." The court then acknowledged that the paved portion of Wilding Road "does not precisely align with the legal description [of the easement.]" Based upon those facts, the court concluded that the "ambiguity between the paved roadway and the legal description has undercut the basis for finding contempt."
The court then concluded that while the Flanigans were "not currently in contempt," their masonry wall does intrude into the easement "as determined by its legal description," and thus ordered them to submit a schedule for relocating it within 15 days. The Gauzewitzes filed their appeal on December 22, 2009.
On December 30, 2009, the Gauzewitzes filed an objection to the Flanigans' plan for removal of encroachments, and reiterated their position that the prior judgment had obligated the Flanigans to remove all encroachments from the easement. In response to that objection, the court issued a new order on January 8, 2010, which required the Flanigans "to remove any encroachments on the subject easement within 90 days of this order." The Flanigans filed their appeal on January 19, 2010, specifying they were appealing from the court's order of November 19, 2009, "as modified on 1-8-10."
On appeal, Gauzewitz contends the court was required to hold defendants in contempt for willfully violating the prior court order requiring them to remove all encroachments from the easement. However, their opening brief on appeal is so inadequate as to constitute a waiver of the issue.
The statement of facts contained in the brief is — literally — two sentences long, and is unaccompanied by any citation to the record. To be fair, some facts are included in the "Legal Argument" section of the brief, which also includes five citations to the record. However, that legal argument section contains absolutely no discussion of, nor any citation to, even a single legal principal or authority relating to (1) the trial court's contempt power; or (2) the standards we should apply in determining whether the court erred in exercising (or declining to exercise) that power. In fact, the brief contains but a single legal citation, to Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697 — a case which bears no relationship to the issue of contempt.
In effect, the Gauzewitzes' legal argument can be fairly distilled as "We asked the court to hold defendants in contempt for failing to follow a prior order. It didn't. Make it do so." Our response, in turn, can be fairly distilled as "No."
Even if the Gauzewitzes had made some substantial effort to establish the trial court acted arbitrarily or unjustly in refusing to hold the Flanigans in contempt, it would have made no difference. A trial court's adjudication of civil contempt is "final and conclusive," and thus not subject to review on appeal. (Code Civ. Proc., §§ 1222, 904.1, subd. (a)(1).)
"It is well settled that orders and judgments made in cases of contempt are not appealable, and this rule has been held applicable both where the trial court imposed punishment for contempt and where the alleged contemner was discharged. (Code Civ. Proc., § 1222; Tripp v. Tripp [(1922)] 190 Cal. 201, 202; Gale v. Tuolumne County Water Co. [(1914)] 169 Cal. 46, 50-53; Moon v. Moon [(1944)] 62 Cal.App.2d 189, 191; Thomas v. Thomas [(1935)] 4 Cal.App.2d 317, 318; Abbott v. Abbott [(1914)] 24 Cal.App. 475, 477.) An order or judgment in a contempt matter may, however, be reviewed by certiorari (Wilson v. Superior Court [(1948)] 31 Cal.2d 458, 459; Gue v. Dennis [(1946)] 28 Cal.2d 616; Weber v. Superior Court [(1945)] 26 Cal.2d 144, 148; Phillips v. Superior Court [(1943)] 22 Cal.2d 256, 257; Taylor v. Superior Court [(1942)] 20 Cal.2d 244, 246), and, where appropriate, by habeas corpus (In re De Silva [(1948)] 33 Cal.2d 76, 79; Kreling v. Superior Court [(1941)] 18 Cal.2d 884, 887.)" (John Breuner Co. v. Bryant (1951) 36 Cal.2d 877, 878; In re Coleman (1974) 12 Cal.3d 568, 572, fn. 2; Lister v. Superior Court (1979) 98 Cal.App.3d 64, 69; Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 115, fn. 3.)
The Gauzewitzes' appeal is consequently dismissed.
The Flanigans' cross-appeal first asks us to decide that the second contempt hearing, which took place on October 5, 2009, was barred by the prohibition against double jeopardy.
Moreover, as the Flanigans point out, a claim of double jeopardy can be a valid basis for appeal. (People v. Batts, supra, 30 Cal.4th at p. 678.) But of course, such a claim can be adjudicated on appeal only if the defendant is convicted of the charge in the second trial. If, as in this case, the defendant is exonerated, there is nothing we could do about the fact that he or she chose to undergo a second trial, and see how it came out, without first bringing the matter to our attention.
"`"It is this court's duty `"to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. . . ."' [Citations.]" [Citations.] "`When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" [Citations.]' [Citation.]" (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1215.) Here, even if the second contempt hearing amounted to a violation of the prohibition against double jeopardy, there would be nothing we could do about it at this point. We consequently decline to address the point.
The Flanigans' second contention is that the court's order requiring that they remove all encroachments off of "the easement as determined by its legal description" effectively grants a new injunction by requiring them to remove things from the upper portion of the easement which are not actually encroaching on the paved area of Wilding Road — the area which they contend is the "judicially determined location of the easement in this case." They are incorrect.
Contrary to the trial court's explanation for its refusal to hold the Flanigans in contempt, there is simply no ambiguity in the location of the easement to be enforced here. Now, there may have been some uncertainty as to the exact parameters of the recorded easement at the time Wilding Road was paved — because to the extent that pavement was intended to follow the easement exactly, it does not — but that is of no moment here. It is also possible (and in fact likely) that the parties may have assumed during the trial in the initial case that the upper portion of the easement and Wilding Road were exactly the same — but that is likewise of no moment. The judgment entered in that case is quite explicit in setting forth the easement to which title was quieted in the Gauzewitzes. And that easement is defined by its legal description — not by reference to the currently paved area of Wilding Road. The judgment is quite clear.
The fact the trial court, in its statement of decision, described the upper portion of the easement in a manner suggesting it was coextensive with Wilding Road does not change anything. A statement of decision cannot override the clear terms of a judgment.
As explained in Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1290, fn. 5, "If there is a conflict between the terms of the minute order and the judgment, the judgment controls. The minute order, or memorandum of decision, is merely a statement of the judge indicating what his or her decision will be. It is not the judgment, but a basis for the judgment. `Until a judgment is entered, it is not effectual for any purpose (Code Civ. Proc., § 664), and at any time before it is entered, the court may change its conclusions of law and enter a judgment different from that first announced. [Citations.] Moreover, a judge who has heard the evidence may at any time before entry of judgment amend or change his [or her] findings of fact. [Citations.]' (Phillips v. Phillips (1953) 41 Cal.2d 869, 874; see Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135, 141.)"
Depite what the court wrote in its statement of decision, the language of the judgment was clear. And if the Flanigans wished to contest that clear language, their opportunity to do so was on the appeal from that judgment. To the extent they believed the judgment did not correctly embody the court's decision with regard to the location of the easement, they should have spoken up then. They did not, however, and the judgment is now final. It must be enforced in accordance with its terms, and the description of the easement contained therein.
The Gauzewitzes' appeal is dismissed. The order requiring the Flanigans to remove all encroachments on the easement, as legally described in the judgment, is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
