Grosman v. Kasloff CA2/7

Filed 1/5/22 Grosman v. Kasloff CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ALAN GROSMAN et al., B298484
Appellants and
Cross-Respondents, (Los Angeles County
Super. Ct. Nos. SC122883 &
v. SC124531)

MASAKO T. KASLOFF,
Respondent and
Cross-Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mitchell L. Beckloff, Judge, and Mark A. Young,
Judge. Affirmed in part and reversed in part.
Cox, Castle & Nicholson LLP, Alicia N. Vaz and Scott R.
Laes, for Appellants and Cross-Respondents.
Thompson Coburn LLP, Steven A. Morphy; K&L Gates LLP
and Helen B. Kim, for Respondent and Cross-Appellant.
______________________
 INTRODUCTION
Alan and Michelle Grosman1 had an access easement
through the property of Masako Kasloff.2 In this consolidated
case, the Grosmans sued Kasloff for injunctive relief to remove a
planter and retaining wall she built on part of the easement, and
for damages for ficus trees and other items of the Grosmans that
Kasloff allegedly removed or damaged. Kasloff sued the Grosmans
for injunctive relief to trim their ficus trees, which bordered
Kasloff’s property, to six feet, in compliance with the Malibu
Municipal Code. The trial judge3 bifurcated the case, heard the
equitable issues in a bench trial, issued a statement of decision on
those issues and scheduled a trial setting conference on the legal
issues.
Kasloff moved for entry of judgment. A subsequent judge4—
different from the one who presided over the trial of the equitable
issues and wrote the statement of decision—granted the motion.
On appeal, the Grosmans argue: (1) the trial judge erred by
denying their claim for injunctive relief regarding Kasloff’s use of
the easement, (2) the trial judge erred by finding the Grosmans
failed to establish their ficus trees were planted before 1993 and
consequently by granting Kasloff’s claim for injunctive relief
regarding the height of the Grosmans’ ficus trees, and (3) the

1 We refer to Alan Grosman by his first name where necessary
to avoid confusion with Michelle Grosman.

2 The property was owned by the Masako T. Kasloff Trust.
Kasloff was a trustee of the trust and lived on the property.

3 Judge Mitchell L. Beckloff.

4 Judge Mark A. Young.

2
subsequent judge erred by finding the statement of decision on the
equitable issues resolved the legal issues and consequently by
granting judgment in favor of Kasloff.
Both the Grosmans, on appeal, and Kasloff, on cross-appeal,
argue the trial judge erred by saying the Grosmans may sue
Kasloff for injunctive relief in the future.
We affirm in part and reverse in part. We agree with the
Grosmans that the trial court erred by finding the statement of
decision resolved the remaining legal issue. But we disagree with
the parties’ other arguments.

FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and Their Complaints
The Grosmans and Kasloff were neighbors. To understand
the dispute, two background facts are necessary. First, to access
their property (the dominant estate), the Grosmans had a 20-foot-
wide nonexclusive easement through Kasloff’s property (the
servient estate). Second, the Malibu Municipal Code does not
allow hedges that form a barrier and serve the same purpose as a
fence or wall to exceed six feet in height. (Malibu Mun. Code, ch.
17.40, pt. 17.40.030(A)(3).) But the height requirement may not
apply if the hedges were planted before March 26, 1993.5 (Id., ch.
17.60, pt. 17.60.040(A).)

5 Kasloff, in her trial brief, argued that even though the
Malibu Code excludes trees planted before March 26, 1993, from
the height requirement, the code still requires that after 20 years,
those trees must follow the height requirement. (Malibu Mun.
Code, ch. 17.60, pt. 17.60.040(C)(4).) But even this exception to
the exception has exceptions, which the appellate record does not
address. Kasloff does not reraise this argument on appeal.

3
 This appeal concerns two of the several lawsuits the
neighbors have filed against each other.
In the first lawsuit, the Grosmans sued Kasloff for injunctive
relief and damages. The injunctive relief was for a court order
that Kasloff remove a planter and retaining wall she had built in
the easement. The damages were for Kasloff’s alleged removal
and destruction of the Grosmans’ ficus trees, a fence, irrigation
equipment and baseboards, and her alleged welding of a fence post
to the Grosmans’ gate.
In the second lawsuit, Kasloff sued the Grosmans for
injunctive relief/quiet title and damages. The injunctive relief was
for a court order that the Grosmans trim their ficus trees, which
formed a hedge bordering Kasloff’s property, down to the general
six-foot height requirement, and for the easement to be deemed
abandoned by the Grosmans. The damages were for the alleged
nuisance created by the Grosmans’ ficus trees exceeding 10 feet in
height.
The trial judge consolidated the cases and bifurcated the
trial, saying that the “[e]quitable [i]ssues, and only those facts, will
be tried to the court as phase one. . . . If, after the [c]ourt [t]rial,
legal issues still remain, they will be tried by jury trial as phase
two.”6 Both parties submitted briefs before the trial on equitable
issues. The Grosmans’ brief explained how the equitable issues
included “trespass and injunctive relief to make Mrs. Kasloff
remove the things she impermissibly built within the Grosmans’
access easement,” but the “legal action [was] for damages (trebled

6 The court referred to “legal issues” but the only remaining
legal issue was whether Kasloff was liable for damages for
removing the Grosmans’ ficus trees, as discussed.

4
and/or doubled) for willful and wrongful removal of their trees by
Mrs. Kasloff.”

B. Phase One – Trial of the Equitable Issues
The trial judge heard a bench trial on three equitable issues:
“(1) The Grosmans’ claim related to Ms. Kasloff’s construction of
certain permanent structures (a wall and planter) on her property
but within Grosmans’ access easement; (2) Ms. Kasloff’s fire lane
injunction request related to vegetation encroaching onto her
property . . . ; and (3) Ms. Kasloff’s northern property line
injunction request requiring the Grosmans to trim the height of
their ficus hedge.”7

1. Summary of relevant evidence
The trial court heard testimony from witnesses and received
photographs and documents in evidence.
On the first issue, the parties agreed the easement is a “20-
foot non-exclusive access easement,” and “the purpose of the
easement is to provide ingress and egress to the dominant estate,
the Grosman property.” The evidence showed Kasloff had built a
retaining wall and planter on the easement portion that the
Grosmans were not using for ingress and egress. At trial and on
appeal, the Grosmans acknowledged that Kasloff’s wall and
planter did not hinder access to their property. But the Grosmans
were planning to develop their property “in such a way that

7 The trial court found Kasloff was not entitled to relief on the
second issue because Kasloff failed to allege it in her complaint. In
any event, the court found she would not have been entitled to
relief even if it had been raised because the evidence showed the
Grosmans’ vegetation did not constitute a nuisance. Kasloff does
not reraise this issue on appeal.

5
ingress and egress from their property will require use of that part
of the easement where Ms. Kasloff has constructed
improvements.” The Grosmans had submitted plans to the City of
Malibu for permits, but the permits were not issued before the end
of the trial.
On the third issue, the parties stipulated the Grosmans’
ficus trees bordering Kasloff’s property are 12 feet tall. Alan
testified they ranged from eight to 16 feet tall. It was
uncontroverted that the Grosmans’ ficus trees did not comply with
the general six-foot height limit. For the Grosmans’ ficus trees to
be excepted from the height limit, the trees would have to have
been planted before March 26, 1993. The parties did not dispute
that the Grosmans’ ficus trees would also be excepted from the
height limit if the trees replaced ficus trees planted before March
26, 1993, and removed by Kasloff in 2014.
According to the cover letter in the Grosmans’ exhibit 94, the
pictures in that exhibit included images of the Grosmans’ ficus
trees, which were over six feet tall, before Kasloff removed them in
2014. Some photos showed the Grosmans’ toddler grandson on a
swing.
Carl Mellinger, an arborist and Kasloff’s expert, reviewed
the Grosmans’ photographs, which included the toddler and
testified the ficus trees appeared to be only one to two years old.
Patrick Clemons, a surveyor, testified he was over six feet
tall, and the ficus trees near the property line were much taller
than him when he surveyed the property in 2013.
Jo Ruggles, a friend of the former owner of the Grosmans’
property, testified tall trees had existed along the Grosmans’ and
Kasloff’s property line during the times she visited between 1987

6
and 2004. She also identified pictures of the trees taken in the
1990s and 2000.8
Kasloff’s exhibit 15 was an invoice that showed the
Grosmans’ gardener purchased 122 ficus trees of different sizes in
October 2011. Carlos Cabrera, the Grosmans’ gardener, testified
he planted new ficus trees in front of the old ones to increase
privacy.

2. Statement of decision
On September 1, 2016, the trial judge issued its statement of
decision. The decision explained the trial court “bifurcated the
equitable issues from the legal issues in the cases for purposes of
trial. The court heard the equitable issues without a jury. The
legal issues remained to be tried to a jury.”
On the first issue, the court found “the Grosmans did not
meet their burden of demonstrating that Ms. Kasloff has
unreasonably interfered with the easement’s purpose.” The court
applied Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th
697 (Scruby). The issue was “whether the Grosmans have met
their burden of establishing that Ms. Kasloff’s use of her property–
–the servient estate––unreasonably interferes with the easement’s
purpose.” Because there was no evidence that Kasloff’s structures
interfered with the Grosmans’ access to their land, the court
denied the Grosmans’ requested relief. The court said, “That the
Grosmans may develop their property in the future is of no
consequence today; the issue is speculative.”
But the court did acknowledge that “in the future, facts
could develop that might assist the Grosmans in meeting their

8 The Grosmans did not include these pictures with the
exhibits they lodged with our court.

7
burden of demonstrating unreasonable interference by Ms.
Kasloff.”
On the third issue, the court found “the Grosmans did not
meet their burden of demonstrating that the ficus trees in issue
existed prior to March 23, 1993.” The court explained that because
“[t]here is no dispute that the ficus trees running along the north-
south boundary line do not comply with the current six feet [sic]
height limit that is now in effect in the City of Malibu,” the
Grosmans had to demonstrate that “the trees existed prior to
March 26, 1993, to successfully defend against Ms. Kasloff’s
request.” According to the court, “[t]he evidence before the court
does not support the Grosmans’ claim that a ‘thick, lush, full, tall
and quite lovely’ ficus hedge existed between the properties prior
to the Grosmans’ purchase of the property in 2011. In fact, the
court finds that to the extent ficus trees existed at or near the
border of the properties, the ficus trees were planted sometime
after the Grosmans purchased their property.” The court ordered
the Grosmans to cut their ficus trees to six feet.
The court also noted, “If the trees were ripped out as claimed
by the Grosmans, Mr. Mellinger opined that there would have
been substantial disruption to the soil from removal of the root
balls where the trees were allegedly removed. There were no holes
in the soil where trees were allegedly removed. The court finds
Mr. Mellinger’s testimony on this issue persuasive.”
The court set a date for the “trial setting conference for the
remaining legal issues.”9

9 After the City of Malibu issued the Grosmans permits to
develop their property but before judgment was entered in this
case, the Grosmans sued Kasloff, for among other things,

8
C. Kasloff’s Motion for Entry of Judgment and the Grosmans’
Motion for Reconsideration
In March 2018, before the trial setting conference, Kasloff
moved for entry of judgment. According to Kasloff, the “resolution
of the equitable issues also resolved the legal issues.” Kasloff
argued the legal issue was damages caused by Kasloff’s alleged
removal of the Grosmans’ ficus trees, but the court had already
found that no trees had been removed. Kasloff relied on the trial
judge’s note in his statement of decision that according to
Mellinger, the removal of ficus trees would have caused
substantial disruption to the soil, but there were no holes.
In September 2018, the parties stipulated to continue the
hearing on Kasloff’s motion and the trial setting conference until
the trial judge returned to his department after a temporary
reassignment. The trial court set the hearing on the motion for
May 29, 2019.
In November 2018, the case was reassigned to the
subsequent judge.
On May 17, 2019, the Grosmans filed a one-paragraph
opposition to Kasloff’s motion.10 They argued that the issues
raised by Kasloff were “essentially duplicative of those raised in

injunctive relief to remove her structures from the easement.
Kasloff filed a motion for summary judgment, seeking a dismissal
based on the statement of decision in this case.

10 Code of Civil Procedure section 1005, subdivision (b), states
an opposition to a motion should be filed nine court days before a
hearing.
The Grosmans conceded their opposition, filed on May 17,
2019, was not timely. Their counsel said it was due to his and his
office’s calendaring error.

9
the now-denied motion to abate” filed in a previous case. They
requested judicial notice of the trial judge’s statement of decision,
which the Grosmans argued “specifically left open the issues which
Ms. Kasloff would have deemed to somehow be determined.”
On May 29, 2019, Kasloff filed a reply, arguing that the
Grosmans’ opposition was untimely and that the motion to abate
was irrelevant because it was based on their claims regarding
Kasloff’s interference with the easement, not the removal of trees.
The subsequent judge heard the motion on the same day.
The Grosmans argued the statement of decision did not decide
their damage claims in their complaint, which included Kasloff’s
alleged removal of the Grosmans’ ficus trees, a shared fence and
landscaping irrigation. The court was reluctant to hear the new
arguments made by the Grosmans during oral argument. The
court noted that the Grosmans did not even bring a complaint to
the hearing. The court said it had read the complaint but did not
recall “any other claims for damages that weren’t address[ed] by
[the trial judge].” The court said it was granting the motion in
part because, in their opposition, the Grosmans referred to the
motion to abate, which had no bearing on the damages issue, and
because the Grosmans “made no record before the court.”
In its minute order, the court found that the Grosmans’
opposition was untimely and did not address the issues
encompassed in Kasloff’s motion for entry of judgment. The court
wrote that the trial judge “determined that [Kasloff] did not
remove the ficus trees from [the Grosmans’] property. Therefore,
[the Grosmans’] damage claims . . . based on those allegations are
barred. Therefore, [Kasloff’s] motion to enter judgment in [her]
favor as to the remaining legal claims . . . is GRANTED.”
On May 31, 2019, the Grosmans filed a motion for
reconsideration, explaining that the statement of decision did not

10
decide the legal issues and attaching their complaint. Kasloff
opposed the motion.
In June 2019, after a hearing, the court denied the motion
because there were no new facts, law, or circumstances to justify
reconsideration. The court entered judgment, explaining “based
upon the September 1, 2016 Statement of Decision with respect to
the parties’ equitable claims, the Grosmans’ legal claims for
damages against [Kasloff] are barred, and judgment should be
entered in favor of [Kasloff] and against the Grosmans on those
claims.”

DISCUSSION
A. The Trial Court Did Not Err by Denying the Grosmans’
Claim for Injunctive Relief Regarding Kasloff’s Use of the
Easement
1. Relevant law
The rule under Scruby is “[t]he owner of the servient estate
may make continued use of the area the easement covers so long
as the use does not ‘interfere unreasonably’ with the easement’s
purpose.” (37 Cal.App.4th at pp. 703-704.) In Scruby, the
appellant, who had a “‘nonexclusive easement, 52 feet in width, for
road and utility purposes,’” sued the respondent, the owner of the
servient estate, to enjoin the respondent from placing an
obstruction in the designated easement area. (Id. at pp. 700-701.)
The trial court and court of appeal, relying on extrinsic evidence,
determined that the easement’s purpose was to provide the
appellant, the dominant estate owner, a right of ingress and egress
to the appellant’s property. (Id. at p. 705.) The court of appeal
affirmed the judgment for the respondent because the appellant
conceded the respondent’s use of the easement area did not block
access to its property. (Id. at pp. 706, 708.) The court explained,

11
“when the width of an easement is definitely fixed by the grant or
reservation creating the same, its use may be interpreted as
commensurate with the entire width thereof.” (Id. at p. 704.) But
“[i]t is equally well settled . . . that ‘[t]he specification of width and
location of surface rights-of-way does not always determine the
extent of the burden imposed on the servient land.’” (Ibid.)
Scruby’s rule rests on the two principles articulated by the
Supreme Court in Ballard v. Titus (1910) 157 Cal. 673 (Ballard),
and City of Pasadena v. California-Michigan Land & Water Co.
(1941) 17 Cal.2d 576 (City of Pasadena). First, the owner of a
dominant estate of an easement of an expressly specified width
“may have the absolute right to use to the limits of the specified
width.” (Ballard, at pp. 681-682.) Second, “the general rule is
clearly established that, despite the granting of an easement, the
owner of the servient tenement may make any use of the land that
does not interfere unreasonably with the easement.” (City of
Pasadena, at p. 579.)
2. Standard of review
“[T]he application of law to undisputed facts ordinarily
presents a legal question that is reviewed de novo.” (Boling v.
Public Employment Relations Board (2018) 5 Cal.5th 898, 912.)
“‘[W]here the issue on appeal turns on a failure of proof at
trial, the question for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of
law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.”’” (Sonic Manufacturing Technologies, Inc. v. AAE
Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466 (Sonic); see also

12
Ajaxo, Inc. v. E*Trade Financial Corporation (2020) 48
Cal.App.5th 129, 163-164.)
“The appellate court cannot substitute its factual
determinations for those of the trial court; it must view all factual
matters most favorably to the prevailing party and in support of
the judgment. [Citation.] ‘“‘All conflicts, therefore, must be
resolved in favor of the respondent.’”’” (Dreyer’s Grand Ice Cream,
Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer’s
Grand Ice Cream).)

3. The trial court did not err by applying Scruby’s rule
The Grosmans argue the trial judge erred by applying
Scruby to analyze Kasloff’s easement use.
We review this issue de novo and disagree with the
Grosmans.
Scruby’s rule applies and, by extension, the principles from
Ballard and City of Pasadena. As the trial court noted, the access
easement in this case resembles the access easement in Scruby. It
is uncontroverted the easement is a “20-foot non-exclusive access
easement,” and “the purpose of the easement is to provide ingress
and egress to the dominant estate, the Grosman property.”
The Grosmans’ primary argument is that because the
easement in Scruby was ambiguous, the court’s holding was
limited to ambiguous easements. Not so. No portion of the Scruby
opinion outlining the rule governing easements is prefaced with
the notion that the rule only applies when the easement is
ambiguous. (See Scruby, supra, 37 Cal.App.4th at pp. 702-703,
704; see also Vieira Enterprises, Inc. v. McCoy (2017) 8
Cal.App.5th 1057, 1087 [rejecting the argument that Scruby’s rule
only applies to ambiguous easements: “[Appellant] contends that
Scruby is distinguishable because [appellant]’s recorded right of

13
way is not ambiguous. We regard Scruby as illustrating the
principle . . . ‘an injunction . . . will be denied when the obstruction
does not constitute a material interference with the right of the
owner of the easement.’”].)
Also, the ambiguous nature of the easement in Scruby was
about the easement’s purpose. (Scruby, supra, 37 Cal.App.4th at
p. 705 [“Resort to surrounding circumstances leaves no doubt in
our minds, as it left no doubt for the trial court, that the easement
before us can be reasonably construed as granting Scruby the right
of ingress and egress to the property.”].) After the court of appeal
determined the easement’s purpose was access to the dominant
estate, the court applied the general rules outlined in City of
Pasadena to find no unreasonable interference by the servient
estate owner. Here, the easement’s purpose—giving the Grosmans
access to their property—was undisputed. So, all that was left to
determine was whether Kasloff unreasonably interfered.
The Grosmans’ argument that the trial court “essentially”
extinguished their right to use the entire width of the easement
mischaracterizes the court’s holding. The court expressly declined
“Kasloff’s invitation” to interpret the scope of the easement, which
the court noted was Kasloff’s attempt to “ask[] for a partial
extinguishment of the easement.” The court explained, “‘[n]o
California case, or any logical extension of a California case,
supports’” the idea that an owner of a servient estate can
extinguish an easement through the owner’s use of the property.

4. The trial court did not err by finding the Grosmans
failed to establish Kasloff unreasonably interfered with
the easement’s purpose
The evidence does not compel a finding for the Grosmans as
a matter of law. (See Sonic, supra, 196 Cal.App.4th pp. 465-466).

14
 It was uncontroverted the easement’s purpose was to provide
the Grosmans’ ingress and egress to their property. The
Grosmans acknowledged in the trial court and on appeal at oral
argument that Kasloff’s retaining wall and planter did not impede
access to the Grosmans’ property. So, as the trial court explained,
“There is no evidence . . . that Ms. Kasloff has in any way
interfered with the Grosmans’ access to their land. As their
property is currently developed, the Grosmans have complete and
total ingress and egress to their property.”
The Grosmans’ argument that the trial court found their
claim premature is a mischaracterization of the court’s holding.
The court never found the Grosmans’ claim was premature.
Instead, the court specifically said, “On the facts before this court,
the court cannot find that Ms. Kasloff has unreasonably interfered
with the purpose of the easement.” The court was required to
assess Kasloff’s use based on the facts before it. As the court
acknowledged, the fact that the Grosmans’ may develop their
property in a way that would render Kasloff’s future use an
unreasonable interference does not mean that Kasloff’s current
use is unreasonable.

5. The trial court’s acknowledgment that the Grosmans
may sue Kasloff for injunctive relief in the future is not
a cognizable issue for appeal
In his statement of decision, the trial judge said, “Of course,
in the future, facts could develop that might assist the Grosmans
in meeting their burden of demonstrating unreasonable
interference by Ms. Kasloff.”
On appeal, both parties argue this comment was error. In
fact, this is Kasloff’s sole issue on cross-appeal.

15
 But the comment is not reviewable because it was not an
order, ruling or finding, but rather dicta. The comment did not
decide an issue before the court or guarantee the success of a
future lawsuit by the Grosmans against Kasloff.

B. The Trial Court Did Not Err by Finding the Grosmans
Failed To Establish the Ficus Trees Were Planted Before
1993
1. Standard of review
As discussed, when a trial court finds a party failed to meet
its burden, “‘the question for a reviewing court becomes whether
the evidence compels a finding in favor of the appellant as a
matter of law.’” (Sonic, supra, 196 Cal.App.4th at p. 466.) And we
view “all factual matters most favorably to the prevailing party
and in support of the judgment,” meaning all conflicts are resolved
in favor of the respondent. (Dreyer’s Grand Ice Cream, supra, 218
Cal.App.4th at p. 838.)

2. The evidence does not compel a finding in favor of the
Grosmans as a matter of law
“This is simply not a case where undisputed facts lead to
only one conclusion,” and it is not the function of this court to retry
the case. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528-1529,
disapproved of on another ground by Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010, fn. 7.)
On appeal, the Grosmans rely on five pieces of evidence:
three photographs in exhibit 94, specifically 94-333, 94-335 and
94-336, and the testimonies of Clemons and Ruggles. But based
on the record before us, this evidence is not dispositive.
The photographs do not compel a finding the ficus trees at
issue existed before March 26, 1993. According to the cover letter

16
in exhibit 94, the “pictures show some of the trees that were later
destroyed.” But it is at best arguable when or where the photos
were taken. For example, the trees in image 94-336 appear to
have been planted in 2011. That image depicts the Grosmans’
toddler grandson on a swing in front of hedges. Their grandson
was born in 2011. Mellinger, an expert, testified the trees in the
background were only one to two years old, and an invoice showed
the Grosmans’ gardener bought 122 ficus trees in 2011.
Likewise, the testimonies of Clemons and Ruggles do not
compel a finding the ficus trees existed before March 26, 1993.
Clemons said that when he visited the property during a 2013
survey, he saw the ficus trees near the property line were over six
feet tall. But Clemons’s testimony does not necessarily mean that
the trees were planted before March 26, 1993. Similarly, Ruggles
testified tall trees existed along the Grosmans’ and Kasloff’s
property line between 1987 and 2004, but not that they were the
ficus trees at issue.

C. The Trial Court Erred by Finding the Statement of Decision
on the Equitable Issues Resolved the Legal Issue
1. Relevant law and standard of review
The meaning of a court order is determined by the whole
order and, when necessary, the entire record: “‘The true measure
of an order . . . is not an isolated phrase appearing therein, but its
effect when considered as a whole. [Citations.] In construing
orders they must always be considered in their entirety, and the
same rules of interpretation will apply in ascertaining the
meaning of a court’s order as in ascertaining the meaning of any
other writing. If the language of the order be in any degree
uncertain, then reference may be had to the circumstances
surrounding, and the court’s intention in the making of the same.’”

17
(In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395,
1429-1430 (Ins. Installment).) “‘The rule with respect to orders
and judgments is that the entire record may be examined to
determine their scope and effect.’” (Dow v. Lassen Irrigation Co.
(2013) 216 Cal.App.4th 766, 780.)
“The meaning of a court order or judgment is a question of
law within the ambit of the appellate court.” (Ins. Installment,
supra, Cal.App.4th at p. 1429.) “We review questions of law under
the independent standard of review.” (Fisher v. State Personnel
Board (2018) 25 Cal.App.5th 1, 14.)

2. The statement of decision resolved only the equitable
issues
In his minute order, the subsequent judge found the trial
judge’s statement of decision on the equitable issues also
resolved the one remaining legal issue between the parties.
Specifically, the subsequent judge wrote that “the Grosmans’ legal
claims for damages against [Kasloff] are barred” “based upon the
September 1, 2016 Statement of Decision with respect to the
parties’ equitable claims.” According to the subsequent judge, the
trial judge had “determined that [Kasloff] did not remove the ficus
trees from [the Grosmans’] property. Therefore, [the Grosmans’]
damage claims . . . based on those allegations are barred.” The
subsequent judge relied on this quote from the trial judge’s
statement of decision: “‘[if] [sic] the trees were ripped out as
claimed by the Grosmans, Mr. Mellinger opined that there would
have been substantial disruption to the soil from removal for [sic]
the root balls where the trees were allegedly removed. There were
no holes in the soil where trees were allegedly removed. The
Court finds Mr. Mellinger’s testimony on this issue persuasive.’”

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 On appeal, the Grosmans argue the subsequent judge erred
by finding the trial judge’s statement of decision resolved more
than the equitable issues.
We agree with the Grosmans.
“‘It is well established that, in a case involving both legal
and equitable issues, the trial court may proceed to try the
equitable issues first, without a jury . . . , and that if the court’s
determination of those issues is also dispositive of the legal issues,
nothing further remains to be tried by a jury.’” (Orange County
Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th
252, 355.)
But here, the determination of the equitable issues was not
dispositive of the legal issue of whether Kasloff removed the
Grosmans’ ficus trees. The trial judge did not have to decide the
legal issue to resolve the equitable issues. And in any case, the
judge’s statement of decision did not explicitly decide the legal
issue.
Reading the statement of decision as a whole, it is clear the
trial judge intended to resolve only the equitable issues during its
phase one bench trial and intended to have a separate trial on the
remaining legal issue. The court explained that it had “bifurcated
the equitable issues from the legal issues,” and that although the
court “heard the equitable issues without a jury,” “[t]he legal
issues remain to be tried to a jury.” The court noted the limited
scope of its bench trial: “the parties present[ed] three issues for
determination by the court: (1) The Grosmans’ claim related to Ms.
Kasloff’s construction of certain permanent structures (a wall and
planter) on her property but within Grosmans’ access easement;
(2) Ms. Kasloff’s fire lane injunction request related to vegetation
encroaching onto her property . . . ; and (3) Ms. Kasloff’s northern
property line injunction request requiring the Grosmans to trim

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the height of their ficus hedge.” As a result, the court scheduled a
“trial setting conference for the remaining legal issues in the
cases.”
In Darbun Enterprises, Inc. v. San Fernando Community
Hospital (2015) 239 Cal.App.4th 399, 411 (Darbun), the court of
appeal held “the [trial] court’s determination of the equitable issue
was not dispositive of the legal issue of breach because the court,
on its own, decided to limit the scope of the first phase to exclude”
the issue of breach. (Ibid.) The appellate court explained, the trial
court’s limitation on the issue of breach meant “it was not acting
as the proper fact finder on breach, [so] the court’s statements
relating to [the appellant’s] breach did not foreclose jury
determination on that issue.” (Ibid.) “The court’s finding of
breach, if it was an actual ruling of the court, improperly usurped
an issue that was reserved for the jury, which ultimately found in
favor of [the appellant]. It was not necessary for the court to make
a finding on breach in order to decide the availability of specific
performance and . . . the court had made it clear that it was not
doing so.” (Ibid.)
This case is like Darbun. Most obvious, in both cases, the
trial courts limited the scope of their phase one bench trial to an
equitable issue or issues and excluded a legal issue. (See Darbun,
supra, 239 Cal.App.4th at p. 411.) Here, before the bench trial, the
trial court said, “The [e]quitable [i]ssues, and only those facts, will
be tried to the Court as phase one.” Also, in both cases, it was not
necessary for the trial court to make a finding on the legal issue to
decide the equitable issues. (See ibid.) Here, the trial court did
not need to resolve whether Kasloff removed the Grosmans’ ficus
trees to determine whether either party was entitled to injunctive
relief. Kasloff acknowledged this point in her trial brief: “We
point out to the Court that the issues of the allegedly removed

20
ficus trees are not part of the ‘equitable bundle’ and we do not
expect them to be litigated in the first phase of the trial.” Here, as
in Darbun, the trial court’s determination of the equitable issues
was not dispositive of remaining the legal issue.

3. The remaining legal issue included only the Grosmans’
damage claim for Kasloff’s alleged removal of the
Grosmans’ ficus trees
The Grosmans argue their remaining legal issues included
damage claims against Kasloff for more than removing ficus trees.
Their complaint also alleged Kasloff’s welding of a post to the
Grosmans’ gate, and Kasloff’s removing and destroying the
Grosmans’ chain-link fence, irrigation equipment and baseboards.
But the Grosmans forfeited this argument. First, as the
Grosmans acknowledge, their written opposition to Kasloff’s
motion for entry of judgment was untimely. Second, in their
opposition, the Grosmans did not argue legal issues or damages
consisted of more than Kasloff’s alleged removal of the ficus trees.
Third, the only time the Grosmans discussed additional legal
issues, damages or the complaint was at the hearing on the
motion, which was too late. (See Murray & Murray v. Raissi Real
Estate Development, LLC (2015) 233 Cal.App.4th 379, 383-384,
389, fn. 2 [explaining an argument “raised for the first time at the
hearing on its motion . . . absent good cause . . . is unfair to
opposing counsel and, in most circumstances, should not be
condoned”].)
The Grosmans’ contention they raised the additional legal
issues or damage claims in their motion for reconsideration lacks
merit. Their motion for reconsideration was improper, as
discussed below, and consequently could not preserve an issue for
appeal.

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 4. The trial court did not abuse its discretion by denying
the Grosmans’ motion for reconsideration11
Code of Civil Procedure section 1008, subdivision (a), allows
parties to file a motion for reconsideration of an order “based upon
new or different facts, circumstances, or law.” “[T]he party
seeking reconsideration must provide not only new evidence but
also a satisfactory explanation for the failure to produce that
evidence at an earlier time.” (Mink v. Superior Court (1992) 2
Cal.App.4th 1338, 1342.)
The Grosmans failed to present new or different facts in
their motion for reconsideration. Instead, they argued “the actual
operative complaint or an accurate itemization of the Grosmans’
damages claims” should suffice. But the complaint and the
damage claims alleged in it were available since the case’s
inception.
The Grosmans also failed to give a satisfactory explanation
for their failure to timely raise these facts in their written
opposition to Kasloff’s motion for entry of judgment. According to
the Grosmans, the facts were not before the court because Kasloff
had misrepresented the damage claims in her motion, the
Grosmans’ counsel failed to argue the complaint in the written
opposition to Kasloff’s motion, and a copy of the complaint was not
in the courtroom during the hearing on Kasloff’s motion. None of
this excuses the Grosmans’ tardiness. Once Kasloff served her
motion, the Grosmans were on notice to file a written opposition,

11 “An abuse of discretion standard applies to a court’s denial of
a motion for reconsideration.” (Hudson v. County of Los
Angeles (2014) 232 Cal.App.4th 392, 408.)

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raising any argument, law or facts they thought necessary.12 (See
Hennigan v. White (2011) 199 Cal.App.4th 395, 406; Morris v.
AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460 [“[T]he trial court
denied a motion for reconsideration based on evidence that should
have been included in the initial opposition to the motion but was
not, and thus was not a proper basis for reconsideration”].)
The Grosmans’ reliance on Kalivas v. Barry Controls Corp.
(1996) 49 Cal.App.4th 1152, and Johnston v. Corrigan (2005) 127
Cal.App.4th 553, is misplaced. In Kalivas, the court of appeal
reversed an order denying a motion for reconsideration of an order
granting summary judgment against the appellant. (Kalivas, at
p. 1154.) According to the appellate court, the appellant’s failure
to file an opposition or appear at the hearing on the motion for
summary judgment was “excusable and resulted from an
impermissible courtroom local rule.” (Ibid.) The appellant had
been misled by local rules to believe that the hearing was canceled,
and there was an order with the judge’s signature stating “‘the
pending motion(s) is/are ordered off calendar.’” (Id. at p. 1161.) In
Johnston, the court of appeal affirmed an order granting a motion
for reconsideration of an order denying a motion for attorney fees.
(Johnston, at pp. 556-557.) The appellate court explained the
respondents had presented evidence in their motion for
reconsideration that the trial court had failed to consider their
earlier timely filing. (Id., at p. 556.)
None of those facts are present here. In this case, the
Grosmans had over a year to file an opposition and prepare for the

12 Kasloff served the Grosmans with her motion to enter
judgment on March 21, 2018.

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hearing on Kasloff’s motion to enter judgment. Although their
opposition was untimely, the court still considered it.

DISPOSITION
The judgment and order granting the motion to enter
judgment are reversed. The order, denying the Grosmans’ request
for injunctive relief relating to Kasloff’s easement use and
granting Kasloff’s request for injunctive relief relating to the
height of the Grosmans’ ficus trees, is affirmed. The trial court is
directed to set a trial on the Grosmans’ damage claim against
Kasloff for her alleged removal of the Grosmans’ ficus trees. The
parties are to bear their own costs on appeal.

IBARRA, J.*

We concur:

SEGAL, J., Acting P. J.

FEUER, J.

* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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