Filed 12/29/22 DeBevoise v. Robinson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANNE E. DEBEVOISE et al., D078207, D078679
Plaintiffs, Cross-defendants and
Respondents,
(Super. Ct. No. 37-2016-00017584-
v. CU-OR-CTL)
RANDALL ROBINSON, Individually
and as Trustee, etc. et al.,
Defendants, Cross-complainant
and Appellants.
CONSOLIDATED APPEALS from a judgment and orders of the
Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed.
Blackmar, Principe & Schmelter and Timothy D. Principe for Plaintiffs,
Cross-defendants and Respondents.
DeLano & DeLano, Everett L. DeLano III and M. Dare DeLano for
Defendants, Cross-complainants and Appellants.
After a bench trial, the trial court resolved a dispute between two
neighbors by creating an equitable easement and granting other relief in
favor of plaintiffs Anne DeBevoise-Abel and Nicolas Abel (collectively the
DeBevoises). Defendants Randall Robinson (Randy) and Pamela Robinson
(Pam), individually, and as trustees of the Robinson Trust dated May 13,
2013 (collectively the Robinsons) appeal the judgment, including an earlier
order sustaining a demurrer to a portion of their cross-complaint, and a
postjudgment order awarding attorney’s fees and costs to the DeBevoises.
The Robinsons contend the trial court prejudicially erred when it awarded
the DeBevoises an equitable easement over their property. Even assuming
the propriety of the easement, the Robinsons claim the trial court abused its
discretion and committed reversible error by: (1) expanding the easement’s
scope of use; (2) extending it in perpetuity; and (3) refusing to award
damages. The Robinsons next assert that the trial court erred: (1) in
creating and awarding the DeBevoises a quasi-irrevocable license for their
drainage pipe; (2) granting a permanent injunction; (3) awarding attorney’s
fees to the DeBevoises; and (4) by sustaining the DeBevoises’ demurrer to the
Robinsons’ financial elder abuse causes of action without leave to amend.
As we shall explain, we reject the Robinsons’ arguments and affirm the
orders and judgment.
2
FACTUAL AND PROCEDURAL BACKGROUND1
The parties live in Pacifica Unit 2, a planned community with “stepped
and height restricted” lots to allow for “views over and beyond adjoining
residences.” Their properties were subject to a Declaration of Restrictions
recorded in 1960 (the Original Declaration) by the builders and then-owners
of all lots in the community. In 2013, the community adopted an Amended
and Restated Declaration of Restrictions (Amended Declaration). The
Amended Declaration provides that its “primary purpose . . . is to preserve
the view corridors of each home to the maximum practical extent” and
created a three-person Architectural Committee. “Any modifications,
improvements, or changes to improvements to a Residence that adversely
affect, impact or impair the view corridors of any surrounding Residences are
subject to review and approval by the Architectural Committee before any
work on said modifications or changes can commence.” (Boldface omitted.)
Failure to comply with the Amended Declaration “decisions, or resolutions
shall be grounds for an action to recover sums due, for damages, or for
injunctive relief.”
The parties are the second generation to own and live in their homes,
their parents having bought the homes when they were new. Anne and
Randy both lived in their respective homes as children, and eventually took
1 This section provides a general background regarding events leading to
this lawsuit. Additional facts related to the specific claims at issue in this
appeal will be described in that particular section of the discussion. We
summarize the relevant facts in the light most favorable to the DeBevoises as
the prevailing party, giving them the benefit of all reasonable inferences.
(Richardson v. Franc (2015) 233 Cal.App.4th 744, 748 (Richardson).)
3
ownership from their parents.2 Anne believed that the property line between
her home and the Robinsons’ home ran midway on the slope between the two
properties stating, “That’s how all the properties in the neighborhood were
divided up.” However, the property line between these two homes is
different. It runs at a slight angle so that the western corner of the pad above
the slope is owned by the Robinsons, whose home is on the pad below.
During trial, the parties referred to that portion of land owned by the
Robinsons above the top of the slope as “the Point.” The DeBevoises used the
Point for, among other things, a pathway that allowed them to access the
upper portion of their property which was otherwise inaccessible due to the
steep incline.
In 1998, Anne obtained a letter (the Letter) from 89-year-old Rex
Robinson, Randy’s father, while he was hospitalized. In the Letter, Rex
indicated that he agreed to a “lot-line adjustment and a view easement.”3
2 In 2021, the Robinsons transferred their home to their son, with the
action continuing in the names of the original parties. (Code Civ. Proc.,
§ 368.5.)
3 The Letter is addressed to Randy. It is dated, signed by Rex and a
nurse. The nurse handwrote that Rex is “lucid today.” The Letter provides:
“In the event I am unable to do so, please complete the following lot-line
adjustment and easement, described below. [¶] In May I agreed to a lot-line
adjustment to grant to Anne DeBevoise roughly 500 square feet at the North-
west corner of my lot. Over the last 35 years, Anne and her family have
assumed responsibility and paid essentially all costs for improving and
maintaining that area, which is one of my motivations for giving the area to
Anne. While the land is a gift, Anne is paying all the fees for processing the
lot-line adjustment. [¶] To ensure that Anne’s view over my property
remains unobstructed in the future I am granting her an easement above my
property at and above the level of the floor of her home. For this I have asked
for and received one dollar ($1.00), which is adequate consideration for this
easement. Anne is paying the fees for processing this easement. [¶] Since
several trees and bushes have gotten too big and begun to block Anne’s view,
4
Thereafter, the DeBevoises installed an underground drainage pipe across a
portion of the Point that exited into a drainage culvert and city easement
along the westerly and southwesterly 10 feet of the Robinsons’ property. The
drainage pipe replaced an older inadequate drainage pipe that had been
abandoned.
In 2012, the Robinsons’ proposal to put a fence along the property line
created a dispute between the parties. The DeBevoises, however, continued
to use the Point as they always had, including to maintain the plants growing
there and for access to the upper portion of their property.
In 2016, after another disagreement, the Robinsons installed a portion
of a fence, plastic chairs, large pots with plants, and wood stakes along a
portion of the Point, blocking the DeBevoises’ view and blocking their access
along the path they historically used to access the upper portion of their
property. In early May 2016, the DeBevoises’ lawyer wrote a demand letter
to Randy that attached the Letter and claimed that the DeBevoise family had
rights to the Point. Later that month, the DeBevoises filed this action.
While the lawsuit was pending, the DeBevoises made a formal
complaint to the community’s Architectural Committee. The Architectural
Committee determined that the items placed on the Point by the Robinsons
impeded the DeBevoises’ view. The Architectural Committee informed the
Robinsons that the items violated the Amended Declaration and requested
their removal. The Robinsons refused to remove the items.
Before trial, the court observed that the DeBevoises were not basing
any of their claims on the Letter, and the DeBevoises’ counsel informed the
court and the Robinsons that the DeBevoises were not relying on the Letter
I have instructed my gardener to trim them in order to restore Anne’s view,
and to keep them trimmed. [¶] Thank you for ensuring the above
instructions are carried out within the next year.”
5
in any way for their claims. During a four-day bench trial, the court heard
testimony from the parties, some neighbors, and several experts. Anne
testified that she never completed the lot-line adjustment mentioned in the
Letter and was not relying on the Letter to claim any right to the Robinsons’
property.
The trial court inspected the parties’ two properties with counsel and
then issued an oral statement of decision. It awarded the DeBevoises an
equitable easement across the Robinsons’ property for access to the upper
portion of the DeBevoises’ property and a revocable license for the drainage
pipe. It found in favor of the DeBevoises on their claim for violation of the
view restriction provisions of the Amended Declaration and issued a
permanent injunction to prevent future violations. In posttrial proceedings,
the trial court found the DeBevoises to be the prevailing parties and awarded
them a portion of their attorney’s fees and costs.
DISCUSSION
I. General Legal Principles and the Standard of Review
A trial court judgment is presumed to be correct (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133) and the appellant has the burden to
overcome that presumption and show reversible error. (State Farm Fire &
Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) A reviewing court
will overturn a trial court’s equitable decision only if it finds an abuse of the
court’s discretion that resulted in a miscarriage of justice. (Tashakori v.
Lakis (2011) 196 Cal.App.4th 1003, 1008 (Tashakori) [“When reviewing a
trial court’s exercise of its equity powers to fashion an equitable easement, we
will overturn the decision only if we find that the court abused its
discretion.”]; cf. Wm. R. Clarke Corp. v. Safeco Ins. Co. of America (2000) 78
Cal.App.4th 355, 359 [“It follows that the trial court’s decision [regarding the
6
right to a setoff] was one subject to an exercise of its equitable powers, and
that the only issue before us on this appeal is whether that discretion was so
abused that it resulted in a manifest miscarriage of justice.”].)
“ ‘[O]ne of the essential attributes of abuse of discretion is that it must
clearly appear to effect injustice. [Citations.] Discretion is abused whenever,
in its exercise, the court exceeds the bounds of reason, all of the
circumstances before it being considered.’ ” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 566 (Denham).) “When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478‒479.)
II. Equitable Easement for Access
A. Additional Background
The trial judge found that viewing photographs of the parties’
properties could be “very misleading” depending on the age and angle of the
photograph. Immediately before issuing his oral statement of decision, the
judge visited the parties’ properties, walking the lots and taking photographs.
The court ultimately declined to find a prescriptive easement, but concluded
that the DeBevoises were entitled to an equitable easement over the Point for
ingress and egress to allow them to maintain the upper portion of their
property.4 It found the DeBevoises did not act willfully or negligently, and
would suffer “irreparable injury” if they did not have some access. It further
4 “ ‘To establish the elements of a prescriptive easement, the claimant
must prove use of the property, for the statutory period of five years, which
use has been (1) open and notorious; (2) continuous and uninterrupted;
(3) hostile to the true owner; and (4) under claim of right.’ ” (Hansen v.
Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032.)
7
determined that the DeBevoises’ hardship “would be greatly disproportionate
to the hardship caused to” the Robinsons.
B. Legal Principles
“In appropriate cases in which the requirements for traditional
easements are not present, California courts have exercised their equity
powers to fashion protective interests in land belonging to another,
sometimes referring to such an interest as an ‘equitable easement.’ ”
(Tashakori, supra, 196 Cal.App.4th at p. 1008.) Three factors must be
present to justify the creation of an equitable easement: (1) the easement
seeker must use or improve property innocently, not willfully or negligently;
(2) the party opposing the easement must not suffer irreparable harm by the
creation of the easement; and (3) the hardship of denying the easement must
be greatly disproportionate to the hardship of allowing it. (Id. at p. 1009;
Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 759 (Hirshfield).) “To be
willful the [easement seeker] must not only know that he is [traveling] on the
plaintiff’s land, but act without a good faith belief that he has a right to do so.
[Citation.] Thus, if [the property owner] in the present case induced [the
easement seeker] . . . to believe that he had a right to act, [the easement
seeker’s] claim of good faith is supported. On the other hand, continuation of
[travel] after objection by [the property owner] suggests a lack of good faith.”
(Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 859 (Brown
Derby).) An easement seeker can act intentionally and “yet be innocent if he
acted in good faith. Moreover, [the property owner] could have induced [the
easement seeker’s] good faith belief without expressly consenting.” (Id. at
pp. 859‒860.)
We review a court’s decision whether to recognize an equitable
easement under the abuse of discretion standard. (Nellie Gail Ranch Owners
8
Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1005‒1006.) This standard
“includes a substantial evidence component: ‘We defer to the trial court’s
factual findings so long as they are supported by substantial evidence, and
determine whether, under those facts, the court abused its discretion.
If there is no evidence to support the court’s findings, then an abuse of
discretion has occurred.’ ” (Id. at p. 1006.) “Where the trial court . . . has
drawn reasonable inferences from the evidence, we have no power to draw
different inferences, even though different inferences may also be reasonable.
[Citation.] The trier of fact is not required to believe even uncontradicted
testimony.” (Hinrichs v. Melton (2017) 11 Cal.App.5th 516, 524‒525
(Hinrichs).) If substantial evidence supports the trial court’s expressed and
implied factual findings, “our analysis ends; we may not substitute our
deductions for those of the trial court.” (Nellie Gail, at p. 1006.)
C. Analysis
1. A civil trespass is not a necessary predicate to recognizing an
equitable easement.
The Robinsons assert the trial court erred in creating an equitable
easement because a finding that a trespass occurred is a necessary element
for this remedy, and the court never made this finding. They claim the trial
court could not have found that a trespass occurred and instead found to the
contrary because the DeBevoises’ verified factual allegations admitted they
had permission to use the Point, which precludes the imposition of an
equitable easement. Because the DeBevoises failed to plead an essential
element to create an equitable easement, the Robinsons argue that the trial
court’s ruling is erroneous as a matter of law and must be reversed. The
DeBevoises disagree that a “trespass” is a required element to create an
equitable easement. We agree with the DeBevoises.
9
A civil trespass “ ‘is an unlawful interference with possession of
property.’ ” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17
Cal.App.5th 245, 261.)5 “The elements of trespass are: (1) the plaintiff’s
ownership or control of the property; (2) the defendant’s intentional, reckless,
or negligent entry onto the property; (3) lack of permission for the entry or
acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a
substantial factor in causing the harm.” (Ralphs Grocery, at p. 262.) The
Robinsons cited no authority, and we have found none, that proving a civil
trespass occurred is a required element before a court can create an equitable
easement. Rather, as the DeBevoises note, equitable easement cases use the
terms “trespass” or “encroachment” alternatively when discussing whether
the equitable easement seeker’s conduct was innocent. (See e.g., Romero v.
Shih (2022) 78 Cal.App.5th 326, 355 [trespass must be innocent, not willful
or negligent]; Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 (Shoen I)
[same]; Tashakori, supra, 196 Cal.App.4th at p. 1009 [encroachment must be
innocent, not willful or negligent]; Linthicum v. Butterfield (2009) 175
Cal.App.4th 259, 265 (Linthicum) [same]; Hirshfield, supra, 91 Cal.App.4th
at p. 759 [utilizing terms trespass and encroachment to describe conduct of
easement seeker].) What is uniform in these cases is the required element
that the conduct of the person seeking the equitable easement be innocent,
not willful or negligent.
5 The Penal Code criminalizes several types of trespass. (See Pen. Code,
§§ 601, 602.) There is no provision that generally makes it a crime to enter
private property without permission. Instead, for private property not
otherwise covered by the statute, a person generally commits a criminal
trespass only after the owner, owner’s agent, person in lawful possession, or a
peace officer asks the person to “leave” the property and the person refuses or
fails to do so. (See Pen. Code, § 602, subd. (o).)
10
By creating an equitable easement, the trial court impliedly found that
the DeBevoises acted innocently, not willfully or negligently.6 The Robinsons
did not challenge this implied finding and substantial evidence supports it.
Anne testified that as a child she would go onto the Point every day to cut
through the culvert on her way to school or to play there. Her father
landscaped the Point and the area around it. She left for college in 1969 and
visited the DeBevoise property between 1969 and 1985. She and other family
members used the Point during this time.
In 1998, Anne returned to live in the DeBevoise home with her parents.
She and her parents continued to use the Point almost every day to read the
newspaper or maintain the area. Anne’s parents deeded her the property in
1991 and then moved. After acquiring the property, Anne continued to use
the Point every day unless it was raining or she was sick. She and her
husband watered and maintained the plants on the Point and used the Point
to access the upper portion of their property to clean the culvert, trim shrubs,
and plant. In 1998, Anne obtained the Letter from Rex indicating that he
was “gift[ing]” the Point to Anne and “granting her an easement above [his]
property at and above the level of the floor of [Anne’s] home” for the payment
of “one dollar,” which he “received.” Thereafter, the DeBevoises installed an
underground drainage pipe across a portion of the Point that exited into the
culvert. Anne explained that she needed the drainpipe because her backyard
had flooded with several inches of water and claimed the pipe had to go under
the Point because no alternative existed.
Anne testified that the Robinsons never gave permission to use the
Point and she never requested permission. Randy similarly testified that he
6 The trial court expressly found that the DeBevoises did not act
“adverse or hostile” to the Robinsons.
11
could not recall ever giving Anne or any member of the DeBevoise family
formal permission to use any portion of his property. He admitted that had
he seen any of the DeBevoise family on the Point he would not have told
them to leave, explaining, “Unless they’re doing something untoward, I don’t
believe that it’s neighborly to force them to leave.”
In 2012, after a dispute regarding the Robinsons’ removal of some
fencing, the Robinsons told the DeBevoises that they could no longer use the
Point. Despite this, Anne continued to use the Point as always to maintain
the plants and to access the upper portion of the DeBevoises’ property.
Anne believed she always had the right to use the Point, even before
she received the Letter signed by Rex. After Rex signed the Letter, Anne
believed that Rex had gifted her the Point on May 3, 1998. However, none of
the DeBevoises’ causes of action claim any rights under the Letter, and Anne
testified that she was not relying on the Letter to claim a right to any portion
of the Robinsons’ property.7
Thus, despite the Robinsons telling the DeBevoises in 2012 that they
could no longer use the Point, the DeBevoises continued to do so. Finally, in
2016, the parties had additional discussions about the DeBevoises’ use of the
Point. Pam saw Anne trimming a shrub and screamed at her, “ ‘What are
you doing? That’s our property.’ ” That same day, Randy pounded metal
stakes into the ground along the property line and attached fence pieces to
the stakes to create a barrier along the property line. At this point, the
Robinsons’ statements and actions clearly indicated that the DeBevoises
could no longer use the Point. The DeBevoises filed this lawsuit shortly
thereafter.
7 The trial court ruled that the DeBevoises could use the Letter for
“consent purposes.”
12
The Robinsons’ focus on whether the DeBevoises had permission to use
the Point is based on their mistaken belief that the DeBevoises were required
to show they committed a civil trespass, which they claim the DeBevoises
cannot do because the DeBevoises’ use was permissive. Instead, however, the
seminal question is whether the DeBevoises’ use of the Point was innocent. If
the DeBevoises had permission to use the Point, or if they acted based on a
good faith belief that they had permission, their actions were innocent.
(Brown Derby, supra, 61 Cal.2d at p. 859 [easement seeker’s good faith claim
supported by property owner inducing the easement seeker to believe he had
a right to act].) Here, Rex allowed the DeBevoise family to use the Point
during his lifetime. After Rex’s death, the DeBevoises continued to use the
Point until shortly before they filed this action.
Viewing the evidence in favor of the DeBevoises, as we must, it
supports the trial court’s implied conclusion that the DeBevoises innocently
used the Point for 51 years (1961 to 2012) believing they could do so. From
2012 to 2016, the DeBevoises continued to use the Point, erroneously
believing the Letter gave them this right. Although the evidence could be
subject to a different inferences, we must draw all reasonable inferences to
uphold the judgment and will not disturb the judgment if there is evidence
supporting it. (Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237
Cal.App.4th 193, 213.) Here, the DeBevoises’ innocent use of the Point
supported the creation of an equitable easement.
2. Substantial evidence supports the trial court’s balancing of the
respective hardships.
Assuming we reject their initial arguments, the Robinsons assert the
trial court erred as a matter of law and exceeded its jurisdiction by imposing
an equitable easement for a “footpath of convenience” on the Robinsons’
13
property because the DeBevoises could have accessed the upper portion of
their sloped lot without trespassing across the Robinsons’ “somewhat-less-
steep property.” In making this argument, the Robinsons rely on Shoen I,
supra, 237 Cal.App.4th 16, where the appellate court reversed the granting of
an equitable easement after concluding “as a matter of law that the hardship
on [the easement seeker] in this case was not greatly disproportionate to the
hardship on [the property owner].” (Id. at pp. 18‒19, 22.) They contend the
trial court erred in relying on Tashakori, supra, 196 Cal.App.4th 1003, and
that Shoen I is controlling because the DeBevoises “failed from the outset to
meet the essential and onerous requirements for imposing an equitable
easement” because the footpath easement merely provided a “more
convenient” path of travel for the DeBevoises to access a portion of their
property.
Accordingly, the Robinsons have shifted their argument to the
remaining two elements necessary to justify the creation of an equitable
easement—namely, that the party opposing the easement must not suffer
irreparable harm by the creation of the easement; and the hardship of
denying the easement must be greatly disproportionate to the hardship of
allowing it. (Tashakori, supra, 196 Cal.App.4th at p. 1009.) Here, the trial
court found that the DeBevoises required access to the upper portion of their
property to trim the shrubbery and would suffer “irreparable injury” to not
have some access. It concluded that the hardship to the DeBevoises “would
be greatly disproportionate to the hardship caused to” the Robinsons finding
that the easement would be “sufficiently to the north as to not interfere with
any proposed construction” by the Robinsons. Accordingly, it granted the
DeBevoises an equitable easement by means of a path approximately three
feet wide across the Point for the sole purpose of allowing the DeBevoises
14
ingress and egress to the upper portion of their property. The easement does
not allow the DeBevoises quiet enjoyment of the Robinsons’ property.
As a preliminary matter, the Robinsons do not challenge the sufficiency
of the evidence supporting the trial court’s factual findings that the
DeBevoises required access to the upper portion of their property to trim the
shrubbery, that they would suffer “irreparable injury” to not have some
access, and that the easement would not interfere with the Robinsons’
proposed construction. We “ ‘ “must presume that the record contains
evidence to support every finding of fact” ’ ” with the appellant having the
burden of identifying and establishing deficiencies in the evidence. (Huong
Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) An appellant attempting
to demonstrate that insufficient evidence supports an order must marshal all
the evidence relevant to the claim and affirmatively show insufficiency of the
evidence under the substantial evidence standard. The Robinsons’ failure to
proceed in this manner forfeited any claim regarding the sufficiency of the
evidence supporting the trial court’s factual findings. (Chicago Title Ins. Co.
v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415‒416 (Chicago
Title).) We therefore accept these findings as established in analyzing
whether the trial court abused its discretion in balancing the hardship to the
parties.
On the second and third elements, the trial court impliedly found that
the Robinsons would not suffer irreparable harm by the creation of the
easement and that the hardship of denying the easement would be greatly
disproportionate to the hardship of allowing it. (Tashakori, supra, 196
Cal.App.4th at p. 1009.) The Robinsons do not challenge the sufficiency of
the evidence supporting these implied findings and forfeited any claim
regarding the sufficiency of the evidence supporting them. (Chicago Title,
15
supra, 188 Cal.App.4th at pp. 415‒416.) In any event, the Robinsons have
not explained, with citations to the record, how they would suffer irreparable
harm by the creation of the easement or how the relative hardships balanced
in their favor. (Tashakori, at p. 1009.)
The Robinsons’ argument that the trial court erred in relying on
Tashakori, supra, 196 Cal.App.4th 1003, instead of Shoen I, supra, 237
Cal.App.4th 16, is misplaced. As the DeBevoises correctly note, the legal
standards in these two cases are consistent—the Shoen I court
quoted Tashakori when stating the three prerequisites for an equitable
easement. (Shoen I, at p. 19.) In Tashakori, the property owner did not
challenge the trial court’s conclusion that balancing the hardships favored
the easement seeker, whereas in Shoen I, the appellate court found, as a
matter of law, that the hardship on the easement seeker was not greatly
disproportionate to the hardship on the property owner. (Tashakori, at
p. 1010; Shoen I, at p. 22.) The Robinsons’ implied argument, that we should
find in their favor as a matter of law, ignores that every equitable easement
case presents an inherently fact specific inquiry that turns on the unique
circumstances of each case.
In Shoen I, two hillside neighbors shared a flat “patch” of land that was
readily accessible only from the defendant’s/easement seeker’s property but
owned by the plaintiff. (Shoen I, supra, 237 Cal.App.4th. at p. 18.) The
easement seeker put some furniture on the “patch,” believing she owned this
property. (Ibid.) The plaintiff sued to reclaim the patch as her property.
(Ibid.) The trial court held the defendant was entitled to an equitable
easement allowing her to maintain her furniture and use this portion of
plaintiff’s property. (Id. at pp. 18‒19.) The appellate court reversed, finding
the defendant failed to satisfy her burden on the third element (balancing of
16
hardships) of the equitable easement test. (Id. at pp. 18, 22.) The court
reasoned that the $275 cost to remove the easement seeker’s furniture from
plaintiff’s property “was not greatly disproportionate to the hardship on” the
plaintiff, which included the complete loss of use of this portion of her
property for a 15-year period. (Id. at pp. 19, 22.)
In contrast here, the trial court did not create an equitable easement
giving the DeBevoises the unfettered right to use the Point for any purpose.
Rather, it allowed the DeBevoises a three foot wide path across the Point to
access the upper portion of their property, specifically finding “a necessity for
the [DeBevoises] to access the upper part of their property to trim the
shrubbery.” The trial court rendered its ruling after noting the misleading
nature of photographs and performing a site inspection, which it believed
would “be significant in the court’s ultimate decision.”
The Robinsons disagree with the trial court’s finding of necessity,
claiming the court merely “provide[d] a more convenient path of travel for
[the DeBevoises] to access a portion of their property.” However, a finding of
necessity is not required to create an equitable easement. (Tashakori, supra,
196 Cal.App.4th at p. 1009.)8 In any event, substantial evidence supported
the trial court’s conclusion that, practically speaking, the DeBevoises
required a pathway across the Robinsons’ property to access the upper
portion of their property. Nicolas testified that he used the Point to access
the top of their property because “there really wasn’t any way to get up to the
top. The back of the property is almost a cliff and goes from being low down
by the Point to being, I don’t know, at least 30 feet high at the upper end.
8 A strict necessity requirement exists only for an easement by necessity,
which the DeBevoises did not allege. (Murphy v. Burch (2009) 46 Cal.4th
157, 163.)
17
The only way to get up there is to -- is to go across the Point.” He supported
this testimony by referring to a topographical map depicting the elevation
levels of the property. A long time neighbor also stated that historically she
and the DeBevoise family used the path along the Point to get up to the back
of the DeBevoises’ property because: “[I]t’s not possible from the back part of
the house to go directly up the slope. It’s much too steep for that.”
After viewing the property, the trial court impliedly agreed with this
testimony. We have no power on appeal to reweigh the evidence. (Bookout v.
State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th
1478, 1486.) Unlike Shoen I, supra, 237 Cal.App.4th 16, the facts here do not
compel a finding in the Robinsons’ favor as a matter of law.
3. The trial court did not abuse its discretion in defining the scope
and location of the equitable easement.
Assuming the trial court appropriately created an equitable easement,
the Robinsons’ next claim the court abused its discretion and committed
reversible error by (a) expanding the easement’s scope of use, (b) extending it
in perpetuity, and (c) refusing to award damages. We examine each
contention in turn.
The Robinsons complain that the trial court impermissibly expanded
the scope of the equitable easement by giving the DeBevoises, their agents
and successors in interest the right to “use, repair, improve, and maintain the
easement area for safe ingress and egress.” They claim this portion of the
judgment is inconsistent with the court’s statement that the DeBevoises have
“no reason . . . to be out there except to go in and out” and “[t]hey’re not going
to be up there digging in the ground and that sort of thing,” “[t]hey have the
right to walk on it.”
18
It is a “well recognized rule that an express or implied grant of an
easement carries with it certain secondary easements essential to its
enjoyment, such as the right to make repairs, renewals, and replacements.
Such incidental easements may be exercised so long as the owner thereof
uses reasonable care and does not increase the burden on or go beyond the
boundaries of the servient tenement, or make any material changes therein.
In such cases it has been recognized that an insubstantial change in the
location of the means of diversion will not destroy the easement.” (Ward v.
Monrovia (1940) 16 Cal.2d 815, 821‒822.)
In 2013, the California Legislature made the duty to maintain an
easement statutory by amending Civil Code section 845 which provides, in
relevant part, that the owner of any easement “shall maintain it in repair.”
(Ibid.) Based on this statutory duty, it was arguably unnecessary for the trial
court to expressly state in the judgment that the DeBevoises had the right to
“use, repair, improve, and maintain the easement area for safe ingress and
egress.” Nonetheless, even assuming the language was superfluous, the
Robinsons have not explained, with citation to authority, how this language
impermissibly expanded the scope of use of the equitable easement. Rather,
given the highly contentious nature of this litigation, the trial court acted
reasonably in expressly stating the DeBevoises’ rights to avoid future conflict.
For example, historically steppingstones existed on the incline. The
DeBevoises used the steppingstones to access the upper portion of their
property. However, the steppingstones had been removed, making it
dangerous to attempt to walk up the slope. The trial court mentioned the
need for improvements, such as steps, in its oral statement of decision.
We do not consider the court’s statement that the DeBevoises should
not be “digging in the ground” as being inconsistent with repairing or
19
maintaining the easement. The evidence adduced at trial showed that the
DeBevoises historically planted and maintained the plants on the Point.
Based on this evidence, the trial court’s statement made it clear that the
equitable easement did not include this historic use.
Citing Hirshfield, supra, 91 Cal.App.4th 749 and Christensen v. Tucker
(1952) 114 Cal.App.2d 554, the Robinsons next argue that the trial court
abused its discretion by allowing the equitable easement to run with the land
instead of terminating should either party sell their property. The Robinsons
cited no authority that allowing an equitable easement to run with the land
is unusual especially where, as here, any successor in interest to the
DeBevoises’ land will also require the easement for access to the upper
portion of the lot. Hirshfield and Christensen do not support the Robinsons’
argument because they both involved encroaching structures that could be
removed. (Christensen, at p. 555; Hirshfield, at p. 756.)
The Robinsons assert the trial court erred by refusing to award them
damages and claim that they had no duty to put on evidence of damages,
because the DeBevoises had not alleged a cognizable cause of action for an
equitable easement. They also assert they could not offer evidence of
damages because they did not know the scope of the easement, and the trial
court abused its discretion by refusing their request to offer evidence of
damages once the parameters and location of the easement had been
determined.
Review of the Robinsons’ operative cross-complaint shows that they
allegedly suffered damages to protect their property, requested an order to
remove cloud upon title to their property, as well as prevent any further
20
misuse of their property by the DeBevoises.9 The Robinsons could have
presented evidence on these alleged damages but did not. Instead, during
closing argument, the Robinsons’ counsel stated, “We have not put on a case
for damages. That aspect of it, we’re just asking for nominal damages.”10
Counsel later indicated that the nominal damages pertained to the
DeBevoises act of spraying a weed killer on the Robinsons’ property. In its
oral statement of decision, the trial court impliedly denied the Robinsons’
request for nominal damages or damages based on the easement, stating,
“[T]here’s no indication that that little [strip] would diminish the value of the
[Robinsons’] property.”
“The doctrine of equitable easements allows compensation to the
servient property owner,” over whose property the easement is granted.
(Hinrichs, supra, 11 Cal.App.5th at p. 524; Linthicum, supra, 175
Cal.App.4th at p. 268 [when the court creates an equitable easement, the
9 We reject the Robinsons’ assertion that they did not present any
evidence of damages in part because “no cognizable cause of action for
equitable easement had been alleged.” The DeBevoises’ operative complaint
alleged a cause of action for an equitable easement and their trial brief
addressed this claim. Thus, the Robinsons had abundant notice that the trial
court would be considering an equitable easement.
10 This statement undercuts the Robinsons’ claims in this appeal that
they could not have offered proof of damages because the easement area was
not specified, and that the easement area was valuable to them. Also, their
claim that an award of nominal damages would have given them prevailing
party status ignores that the DeBevoises recovered nonmonetary relief
including an equitable easement, a revocable license, and injunctive relief.
Where, as here, a party recovers relief other than monetary relief, “the
‘prevailing party’ shall be as determined by the court, and under those
circumstances, the court, in its discretion, may allow costs or not.” (Code Civ.
Proc. § 1032, subd. (a)(4).) It is highly unlikely that the court’s decision
regarding the prevailing party would have changed even if it had awarded
the Robinsons nominal damages.
21
servient property owner “is ordinarily entitled to damages”].) Nonetheless,
“[t]he trial court cannot award damages in the abstract” and the Robinsons
had the burden of proof on damages. (Linthicum, at p. 268.) Here, the trial
court expressly found that the easement granting the DeBevoises a path to
cross the Robinsons’ property did not diminish the value of the property. The
Robinsons presented no argument or authority challenging this finding. In
reality, the Robinsons are asking us “to reweigh the evidence and substitute
our discretion for that of the trial court. . . . [T]hese are not legitimate
functions of the Court of Appeal.” (In re Marriage of Bower (2002) 96
Cal.App.4th 893, 897.)
Finally, the Robinsons assert that the scope and location of the
equitable easement were contrary to the trial court’s own findings justifying
the easement. They claim the trial court located the easement along the
property line in its oral statement of decision but later moved the easement
to take more of their yard. They argue that the relocated easement
contravenes the court’s own balancing-of-hardship findings, and thus
constitutes reversible error. The DeBevoises respond that the Robinsons are
misleading the court because the trial court did not state that the easement
would be along the property line. We agree with the DeBevoises.
In its oral statement of decision, the trial court described the easement
as follows:
“And so it would go more or less straight along where
there’s dirt now. And there’s -- it would go up a rise, it
would not go down to the -- I’m going to call it the south,
but would pretty much go straight west, but that would
allow for access, and may require putting in steps or
something, but it would do that.”
The court did not describe the easement as following the property line
between the parties’ lots. Later, the court discussed the location of the
22
easement with both counsel while consulting photographs. During this
discussion, the court did not state that the easement would follow the
property line. At the first hearing addressing the proposed judgments, after
Robinsons’ counsel asserted the easement would run along the property line,
the court stated, “I don’t think I did, because that would have been simple.”
At a subsequent hearing, the court reviewed the easement locations proposed
by both parties, stating that after “consider[ing] all of the equities and the
various claims” the easement location put forward by DeBevoises, not along
the property line “was what I was pointing to and what I visualized.” The
judgment included a drawing of the easement similar to the drawing
proposed by the DeBevoises’ expert.
III. Revokable License for the Drainage Pipe
A. Additional Facts
In late 1998, the DeBevoises had a drainage pipe installed under the
Point that exited into a culvert. Anne explained that the drainage pipe had
to go under the Point because no alternative existed. The drainage pipe
replaced an older inadequate drainage pipe installed in the same area in the
1980’s that had been abandoned. Anne told Rex that she would be installing
the drainage pipe but never asked for his permission to do so.
Both the old and new drainage pipe emptied into a drainage culvert
and city easement along the westerly and southwesterly 10 feet of the
Robinsons’ property. The city easement overlaps the Point. The DeBevoises’
drainage pipe also overlaps a portion of the city easement. Pedro Miguel
Parames, a civil and environmental engineer specializing in hydrology and
hydraulics, and erosion and sediment control, testified that no alternative
configuration existed for the DeBevoises’ drainage pipe to instead drain to
the street and also meet the City of San Diego design manual requirements.
23
The DeBevoises’ operative complaint sought a judicial determination
that they had an irrevocable license to use the easement area for the
drainage pipe or, alternatively, a prescriptive easement. The trial court
concluded that the DeBevoises were not entitled to a prescriptive or equitable
easement. It also determined that “there was consent and there was a
license,” but the DeBevoises had not expended enough money on the drainage
pipe to be entitled to an irrevocable license. Noting that it might be “putting
a square peg in a round hole here in terms of traditional license,” the trial
court found that a revokable license to install the 1998 drainage pipe existed,
“but only insofar as it did not interfere with the legal and productive use of”
the Robinsons’ property. The court stated that if the Robinsons obtained
plans and permits to construct a cabana, they would have the right to revoke
the license. The court reserved jurisdiction to resolve any disputes
concerning revocation of the license.
B. Analysis
The Robinsons’ claim that the trial court prejudicially erred in creating
a quasi-irrevocable license for the DeBevoises’ drainage pipe and by imposing
conditions to revoke the license. While admittedly unusual, we believe the
court’s decision reasonably accommodates the parties’ respective interests
and represents an appropriate use of its broad equitable powers.
“ ‘When a landowner allows someone else to use her land, the owner is
granting a license. [Citation.] A license may be created by express
permission or by acquiescence (that is, by “tacitly permit[ing] another to
repeatedly do acts upon the land” “with full knowledge of the facts” and
without objecting).’ [Citation.] Unlike covenants that run with the land,
such as easements, a license is a personal right and confers no interest in
land: ‘[I]t merely makes lawful an act that otherwise would constitute a
24
trespass.’ ” (Gamerberg v. 3000 E. 11th St., LLC (2020) 44 Cal.App.5th 424,
429 (Gamerberg).) Because a license is permissive, “ ‘ “[a] licensor generally
can revoke a license at any time without excuse or without consideration to
the licensee.” ’ ” (Ibid.) “An otherwise revocable license becomes irrevocable
when the licensee, acting in reasonable reliance either on the licensor’s
representations or on the terms of the license, makes substantial
expenditures of money or labor in the execution of the license, and the license
will continue ‘for so long a time as the nature of it calls for.’ ” (Richardson,
supra, 233 Cal.App.4th at pp. 757‒758.)
Trial courts have great latitude to “ ‘ “mold and adjust their decrees as
to award substantial justice according to the requirements of the varying
complications that may be presented to them for adjudication.” ’ ”
(Richardson, supra, 233 Cal.App.4th at p. 757.) “Discretion is abused only
when the trial court’s decision ‘exceeded the bounds of reason.’ ” (Ibid.) We
“review any subsidiary factual findings for substantial evidence and any
subsidiary legal questions de novo.” (Shoen v. Zacarias (2019) 33
Cal.App.5th 1112, 1118 (Shoen II).)
Here, the DeBevoises installed the new underground drainage pipe
across a portion of the Point that exited into a culvert. Anne explained that
the drainage pipe had to go under the Point because no alternative existed
and required the pipe to address flooding in her backyard. Parames
examined the DeBevoises’ drainage system. He concluded that the drainage
pipe adequately drained stormwater from the DeBevoises’ property. He
explained that the DeBevoises could not construct an alternative drainage
system that met current City of San Diego design manual requirements.
Although the Robinsons presented contrary evidence, the trial court
necessarily agreed with the DeBevoises’ expert. Where, as here, “ ‘evidence
25
on an issue conflicts, the decisionmaker is “permitted to give more weight to
some of the evidence and to favor the opinions and estimates of some of the
experts over the others.” ’ ” (Town of Atherton v. California High-Speed Rail
Authority (2014) 228 Cal.App.4th 314, 349.) On this record, the trial court
did not exceed the bounds of reason by finding a revocable license.
The Robinsons next contend that the trial court erred in granting a
“quasi-irrevocable” license, relief that was not alleged and is not recognized
by law. They also assert the trial court erred in holding a licensor’s
purported reasons for granting a revocable license are binding on successors
in interest. We reject these contentions.
“A fundamental maxim of jurisprudence is that equity must follow the
law. [Citation.] Equity is bound by rules of law; it is not above the law and
cannot controvert the law. [Citation.] Equity penetrates beyond the form to
the substance of a controversy, but is nonetheless bound by the prescriptions
and requirements of the law. [Citation.] While equitable relief is flexible and
expanding, its power cannot be intruded in matters that are plain and fully
covered by positive statute. A court of equity will not lend its aid to
accomplish by indirect action what the law or its clearly defined policy forbids
to be done directly.” (Barrett v. Stanislaus County Employees Retirement
Assn. (1987) 189 Cal.App.3d 1593, 1608; Robin v. Crowell (2020) 55
Cal.App.5th 727, 753 [equity cannot controvert “matters that are plain and
fully covered by positive statute”].)
Although the Robinsons assert the trial court provided relief which the
law denies, they cite no authority supporting their contention that the
equitable relief granted by the trial court controverted the law. Trial courts
have wide discretion to “ ‘ “mold and adjust their decrees as to award
substantial justice” ’ ” based on the unique circumstances presented for
26
adjudication. (Richardson, supra, 233 Cal.App.4th at p. 757.) Here, the
DeBevoise family installed a drainage pipe through the Point in the 1980’s.
In 1998, Anne installed the new drainage pipe. The Robinsons presented no
evidence that Rex objected to the installation of the new drainage pipe, or
that the Robinsons ever objected to the drainage pipe and asked for its
removal. Rather, it appears the Robinsons first sought removal of the
drainage pipe in their cross-complaint. Courts hearing equitable claims have
“the authority to fashion an equitable remedy appropriate to the
circumstances of [the] case.” (Salazar v. Matejcek (2016) 245 Cal.App.4th
634, 648 (Salazar).) This includes “ ‘ “creat[ing] new remedies to deal with
novel factual situations.” ’ ” (Ibid.)
Parames testified that the drainage pipe functioned as intended. More
importantly, the Robinsons presented no evidence that the drainage pipe or
the water flowing from it harmed their real or personal property. Thus, the
trial court allowed the drainage pipe to remain as a license, but gave the
Robinsons the right to revoke the license should the drainage pipe at some
point in the future “interfere with the legal and productive use of” the
Robinsons’ property. Under the circumstances, the trial court did not abuse
its discretion by imposing conditions for removal of the drainage pipe.
(Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda
County (2020) 9 Cal.5th 279, 300 [courts have the equitable power to do
“right and justice” without being bound by “rigid dogmas”].) On the record
before it, the trial court acted within its broad equitable powers in devising a
remedy that allowed the drainage pipe to remain until such time that it
interfered with the Robinsons’ reasonable use of their property.11
11 The Robinsons contend that the Letter formed the basis for the
DeBevoises’ claim to an irrevocable license for the drainage pipe. As such,
27
IV. Permanent Injunction Against Obstructions
A. Additional Facts
In 2016, the Robinsons placed some decorative fence pieces to mark the
boundary between the parties’ lots after finding Anne gardening in their
yard. The DeBevoises’ eighth cause of action alleged violation of the
Amended Declaration based on the Robinsons’ acts of, among other things,
placing this temporary fencing, Adirondack chairs, large blue pots, and wood
stakes in such a manner as to impact and impair their view.
The trial court found that the fence pieces and high backed chairs
violated the Amended Declaration. By January 2019, the fence, chairs and
pots had been removed but the wood stakes remained. The court stated that
the stakes should be lowered to two feet in height. In September 2020, the
court entered its judgment, which included ruling in favor of the DeBevoises
on their claim for violation of the Amended Declaration. The court found that
the fence, pots, chairs, and tall stakes on the Robinsons’ property that were
located along their northerly property line at the time of trial violated the
Amended Declaration, and it enjoined the Robinsons “from placing any items
at the top of the slope near or along [their] northerly property line as follows:
[(1)] Before placing or maintaining any item at the top of the slope near or
along [the Robinsons’] northerly property line, [the Robinsons] shall request
and receive approval from the Architectural Committee if there is a valid
they assert that the license granted by the trial court contravened its pre-
trial order of judicial estoppel preventing the DeBevoises from arguing that
the Letter “grants any right, title or interest in the property at issue to
DeBevoise.” A license, however, “is a personal right and confers no interest
in land.” (Gamerberg, supra, 44 Cal.App.5th at p. 429.) Accordingly, the
DeBevoises did not need to rely on the Letter to establish the existence of a
license and the trial court did not err to the extent it considered the Letter as
evidence of Rex’s consent to install the new drainage pipe.
28
Architectural Committee; [and] [(2)] If there is no valid Architectural
Committee, [the Robinsons] shall not place or maintain anything at the top of
the slope near or along [their] northerly property line that exceeds two feet in
height. This Judgment is not intended to deprive [the Robinsons] and their
successors of the right to construct a pool . . . , and the Court reserves
jurisdiction to consider fencing for a pool.”
B. Analysis
“ ‘A permanent injunction is an equitable remedy for certain torts or
wrongful acts of a defendant where a damage remedy is inadequate. A
permanent injunction is a determination on the merits that a plaintiff has
prevailed on a cause of action for tort or other wrongful act against a
defendant and that equitable relief is appropriate.’ ” (Benasra v. Mitchell
(2002) 96 Cal.App.4th 96, 110.) “ ‘The grant or denial of a permanent
injunction rests within the trial court’s sound discretion and will not be
disturbed on appeal absent a showing of a clear abuse of discretion.’ ”
(Salazar, supra, 245 Cal.App.4th at p. 647.)
The Robinsons assert the trial court erroneously issued the permanent
injunction as “punishment” because no evidence existed showing a wrongful
act was likely to recur. The Robinsons cited no authority to support this
argument or their claim that the trial court abused its discretion by issuing
an injunction. Rather, during the litigation the Architectural Committee
informed the Robinsons that the items they placed along the property line
constituted a violation of the Amended Declaration and requested that the
items be removed within 45 days. The Robinsons’ removed a palm tree but
refused to remove the other items until the court issued its statement of
decision over a year later. In fact, after the DeBevoises filed this action, the
Robinsons placed additional items along the property line.
29
The Amended Declaration requires owners to comply with its
provisions and provides that any failure to comply “shall be grounds for an
action . . . for injunctive relief.” Given the history of this litigation, ample
evidence existed from which the trial court could reasonably infer that the
Robinsons might very well violate the Amended Declaration in the future by
placing items on the Point in such a manner as to impact and impair the
DeBevoises’ view. Accordingly, we conclude that the trial court did not abuse
its discretion in issuing the injunction.
V. Attorney’s Fees and Costs
A. Additional Background
The Original Declaration bound all owners and their successors in
interest. It provided that the covenants ran with the land and would bind
“all parties and all persons claiming under them for a period of thirty years
from the date these covenants are recorded, after which time said covenants
shall be automatically extended for successive periods of ten years unless an
instrument, signed by a majority of the then owners of the lots or parcels, has
been recorded, agreeing to change said covenants in whole or in part, or to
terminate said covenants.” (Italics added.)
The Amended Declaration provides that it “amends, restates and
replaces” the Original Declaration, the “undersigned Owners constitute a
simple majority of the Owners of the Residences subject to this Declaration
and hereby consent to the recordation of this Declaration,” and “the following
easements, restrictions and covenants, which are enforceable equitable
servitudes as described in California CIVIL CODE Section 1354 and . . . [are]
binding on all parties having any right, title or interest in the Community,
their heirs, successors and assigns, and shall inure to the benefit of each
Owner thereof.” The Amended Declaration provides that any owner has the
30
right to enforce “all restrictions, covenants, reservations, liens and charges
now or hereafter imposed by this Declaration” and any owner who prevails in
litigation filed to enforce any of the covenants or restrictions is entitled to
costs and reasonable attorney’s fees. The “ ‘prevailing party’ ” is defined as
“the party in whose favor a final judgment is entered.”
The DeBevoises filed a postjudgment motion seeking $433,814 in
attorney’s fees and $33,837.73 for their costs, claiming that the litigation
involved enforcement of the Amended Declaration. The Robinsons opposed
the motion, argued that the attorney’s fees clause in the Amended
Declaration was unenforceable because (1) the parties did not agree to it, and
(2) it does not qualify as a covenant running with the land or an equitable
servitude.
At the hearing on the motion, the trial court stated that the motion was
“one of the worst fee applications that I’ve ever seen.” The court took the
matter under submission and concluded that the Robinsons were judicially
and equitably estopped from challenging the Amended Declaration. Even
assuming the Robinsons could overcome the bar of judicial and equitable
estoppel, it rejected the Robinsons’ argument that the Amended Declaration
was not a binding equitable servitude. Because the DeBevoises “made it
impossible for the court to fully analyze the time spent,” the court reduced
the attorney’s fees sought by a percentage. It awarded the DeBevoises
$74,930.80 in attorney’s fees and total costs of $18,339.56.
B. Analysis
The Robinsons’ claim that the attorney’s fees clause in the Amended
Declaration is unenforceable as a matter of law under the unique facts of this
case. They first maintain that the attorney’s fees clause is not enforceable as
a contract because the parties did not agree to it. As secondary arguments,
31
they contend that the attorney’s fees clause is not enforceable as a covenant
running with the land or as an equitable servitude because the community is
not a common interest development subject to the Davis-Stirling Common
Interest Development Act (David-Stirling Act; Civ. Code, § 4000 et seq.), and
the attorney’s fees clause does not otherwise meet the requirements for
enforcement as an equitable servitude.12
“Attorney fees are not recoverable as costs unless a statute or contract
expressly authorizes them.” (California Wholesale Material Supply, Inc. v.
Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 604.) Where a contract
provides for an award of attorney’s fees, Civil Code section 1717 allows their
recovery by whichever contracting party prevails. (Cargill, Inc. v. Souza
(2011) 201 Cal.App.4th 962, 966.) We review the legal basis for an attorney’s
fees award de novo as a question of law. (Ibid.)
Here, there is no statutory basis for an attorney’s fees award.
Nonetheless, as we shall explain, the Amended Declaration is an equitable
servitude that is enforceable as a contract containing an attorney’s fees
clause.
“Planned communities have developed to regulate the relationship
between neighbors so all may enjoy the reasonable use of their property.
Mutual restrictions on the use of property that are binding upon, and
12 Covenants are said to run with the land when they bind not only the
person who enters into them, but also later owners and assigns who did not
personally agree to them. (Citizens for Covenant Compliance v. Anderson
(1995) 12 Cal.4th 345, 353 (Citizens).) The doctrine of equitable servitudes
arose where courts of equity enforced covenants that, for one reason or
another, did not run with the land in law. (Ibid.) “Commentators have
argued that covenants that run with the land and equitable servitudes
should be, or possibly have been, merged into a single doctrine.” (Id. at
p. 354.)
32
enforceable by, all units in a development are becoming ever more common
and desirable.” (Citizens, supra, 12 Cal.4th at pp. 348‒349.) In Citizens, the
California Supreme Court rejected a claim that recorded declarations
(covenants, conditions and restrictions or CC&R’s) were unenforceable when
not mentioned in a deed. (Id. at p. 348.) Where, as here, “a declaration
establishing a common plan for the ownership of property in a subdivision
and containing restrictions upon the use of the property as part of the
common plan, is recorded before the execution of the contract of sale,
describes the property it is to govern, and states that it is to bind all
purchasers and their successors, subsequent purchasers who have
constructive notice of the recorded declaration are deemed to intend and
agree to be bound by, and to accept the benefits of, the common plan; the
restrictions, therefore, are not unenforceable merely because they are not
additionally cited in a deed or other document at the time of the sale.” (Id. at
p. 349.)
Rex purchased his property subject to the Original Declaration. Rex
subsequently quitclaimed the property into a family trust and Randy later
took title to the property as the successor trustee upon Rex’s death. Randy
subsequently transferred the property to himself and Pam, who then
transferred the property to a trust. The Original Declaration bound all
owners and their successors in interest as covenants that ran with the land
until a recorded instrument, signed by a majority of the owners, agreed to
change or terminate the covenants. The recorded Amended Declaration,
signed by a majority of the owners, replaced the Original Declaration and
expressly provides that “the following easements, restrictions and covenants”
are enforceable equitable servitudes “binding on all parties having any right,
title or interest in the Community, their heirs, successors and assigns.”
33
To escape this clear language that they are subject to the Amended
Declaration, the Robinsons seek to separate the attorney’s fees clause from
the remainder of the Amended Declaration, arguing that the attorney’s fees
clause is unenforceable because it is not a “land use restriction.” They also
contend that they and the DeBevoises voted against the Amended
Declaration; thus, there is no contract or agreement between the parties
authorizing the recovery of attorney’s fees.
It is true that the Robinsons took title to their property with knowledge
of the Original and not the Amended Declaration, and it is only the Amended
Declaration that contained the attorney’s fee provision. That does not change
the fact that the Amended Declaration is an equitable servitude, binding on
the parties whether they voted for or against it. (See, e.g., Villa Milano
Homeowners Assn. v. IL Davorge (2000) 84 Cal.App.4th 819, 825 [listing
supporting authority].) That is because the Robinsons took title knowing
that the Original Declaration could be changed by a majority vote, and that
any resulting changes would constitute equitable servitudes. As a result, the
attorney’s fees clause in the Amended Declaration, which constitutes “a
binding equitable servitude[,] is a ‘contract’ within the meaning of
Civil Code section 1717.” (Mackinder v. OSCA Development Co. (1984) 151
Cal.App.3d 728, 738 (Mackinder); Huntington Landmark Adult Community
Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1023‒1024 [attorney’s fees
provision in CC&R’s enforceable under Civil Code § 1717].)
The Robinsons “are bound by all provisions of the [Amended]
Declaration . . . including the provision for attorney fees, without regard to
whether the [Amended] Declaration . . . constitutes a technical ‘contract.’ ”
(Mackinder, supra, 151 Cal.App.3d at p. 738.) The Mackinder court
concluded, “[r]egardless of the form of the instrument, whether by contract,
34
deed, or binding equitable servitude, an instrument containing a provision for
the recovery of attorney fees in the event of litigation is governed by the
reciprocity provisions of Civil Code section 1717.” (Mackinder, at 739.) It is
irrelevant that the community subject to the Amended Declaration is not a
common interest development subject to the Davis-Stirling Act. Mackinder,
decided before the enactment of the Davis-Stirling Act, explained that after
the recording of language imposing restrictions on each parcel in a
subdivided tract, “mutual servitudes spring into existence as between the
first parcel conveyed and the balance of the parcels at the time of the first
conveyance.” (Mackinder, at p. 735.) Accordingly, the Amended Declaration
is an equitable servitude that is enforceable as a contract containing an
attorney’s fees clause. Based on this conclusion, we need not address the
parties’ remaining arguments.
VI. Financial Elder Abuse Claims
A. Additional Background
The Robinsons’ third amended cross-complaint (the cross-complaint)
alleged two causes of action for financial elder abuse (Welf. & Inst. Code,
§ 15610.30) based on the Letter (ante, fn. 3). The Robinsons alleged that 49-
year-old Anne used 89-year-old Rex’s affection for her to unduly influence
him. Over a period of five days, Anne prepared at least six drafts of the letter
that she presented to Rex during his hospitalization for, among other things,
heart disease and depression. Rex then allegedly signed the Letter, written
as a communication from Rex to Randy, asking Randy to complete the lot-line
adjustment and easement described in the Letter if Rex was unable to do so.
Randy alleged the sixth cause of action for financial elder abuse against
Anne in his capacity as Rex’s personal representative. He alleged that the
Letter (1) purported to transfer real property rights, (2) constituted an
35
unlawful taking of Rex’s property by means of undue influence and an intent
to defraud, and that (3) Anne intended the Letter to be a legally enforceable
contract. Randy alleged the seventh cause of action for financial elder abuse
against Anne and Nicholas. Randy claims that after Rex signed the Letter it
became his personal property, and the DeBevoises hid the Letter from him
with the intent to defraud him of his property rights and deprive him of his
inheritance. The trial court sustained the DeBevoises’ demurrer to the
financial elder abuse causes of action without leave to amend on the grounds
that the Letter was not an enforceable contract, it transferred no property
rights to Anne, it did not cloud the Robinsons’ title to their real property,13
and required no disclosure.
B. Legal Principles
The elements of a cause of action for financial elder abuse are set forth
in Welfare and Institutions Code section 15610.30, subdivision (a), which
provides in part: “ ‘Financial abuse’ of an elder or dependent adult occurs
when a person or entity does any of the following: [¶] (1) Takes, secretes,
appropriates, or retains real or personal property of an elder . . . to a wrongful
use or with intent to defraud, or both[;] [and] [¶] (2) Assists in taking,
secreting, appropriating, or retaining real or personal property of an elder . . .
for a wrongful use or with intent to defraud, or both.” “For purposes of this
section, a person or entity takes, secretes, appropriates, obtains, or retains
real or personal property when an elder or dependent adult is deprived of
any property right, including by means of an agreement, donative transfer, or
testamentary bequest, regardless of whether the property is held directly or
13 In this section, we refer to the Robinsons’ real property as “the
property.”
36
by a representative of an elder or dependent adult.” (Id., subd. (c), italics
added.)
On appeal from a judgment based on an order sustaining a demurrer,
we assume all the facts alleged in the complaint are true. (Pineda v.
Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528.) We accept all
properly pleaded material facts but not contentions, deductions, or
conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6
(Evans).) We independently review the superior court’s ruling on a demurrer
and determine de novo whether the complaint alleges facts sufficient to state
a cause of action. (Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) “In
considering a trial court’s order sustaining a demurrer without leave to
amend, ‘ “we review the trial court’s result for error, and not its legal
reasoning.” ’ ” (Morales v. 22nd Dist. Agricultural Assn. (2018) 25
Cal.App.5th 85, 93 (Morales).)
C. Analysis
The Robinsons contend the trial court erred in sustaining the demurrer
to their financial elder abuse claims because the Letter impaired and
devalued Rex’s real property rights. Specifically, Rex’s estate plan intended
to leave the property free and clear of all encumbrances to Randy, but the
DeBevoises interfered with Rex’s right to dispose of his property upon his
death free and clear of all encumbrances. Relying on Bounds v. Superior
Court (2014) 229 Cal.App.4th 468 (Bounds), the Robinsons contend that
“ ‘property rights’ ” include the right “ ‘to dispose of [one’s] property by sale or
by gift,’ ” and a wrongful deprivation of that right constitutes actionable elder
abuse, even if the defendant does not acquire the property. (Id. at p. 479,
italics omitted.)
37
The Robinsons’ reliance on Bounds, supra, 229 Cal.App.4th 468 is
misplaced. In Bounds, the elder, who had diminished capacity, possessed
real property and was the trustee of the living trust that owned the real
property. (Id. at pp. 472, 473.) Real parties in interest (the buyers)
convinced the elder to sign a lease agreement which reflected a higher
implied value of the property than the purchase price in the escrow
instructions, and a letter of intent to sell real property at a price that they
knew was far below market value. (Id. at pp. 472, 474.) The buyers had the
elder execute two sets of escrow instructions. The first set of instructions
directed the sale of the real property and the second set directed the sale of
the manufacturing equipment on the property. (Id. at p. 474.) Relying on the
escrow instructions signed by the elder, the buyers sued to enforce the sale
contracts to sell the real property and equipment. (Id. at p. 475.)
A cross-complaint was filed on the elder’s behalf alleging that the
trust’s ability to sell the property and the elder’s ability to borrow against the
property had been substantially impaired immediately upon her executing
the escrow instructions and lease with the buyers. (Bounds, supra, 229
Cal.App.4th at pp. 475‒476.) The trial court, however, sustained a demurrer
to the cross-complaint without leave to amend because title to the property
never transferred. (Id. at pp. 472, 476.) On appeal, the primary issue was
whether executing the escrow instructions constituted a “taking” under
Welfare and Institutions Code section 15610.30 when title to the real
property remained in the trust. (Bounds, at p. 479.) The Court of Appeal
concluded that the letter of intent and escrow instructions “which set forth
the parties’ understanding about their respective rights and duties in regard
to the sale of the real property, clearly constitute agreements within the
meaning of [Welfare and Institutions Code] section 15610.30, subdivision (c).”
38
(Bounds, at p. 479.) It held that the escrow instructions constituted a taking
based on the allegation that petitioners’ ability to sell or encumber the real
property on the best possible financial terms had been taken by the escrow
instructions and vacated the order sustaining the demurrer. (Id. at pp. 480,
483, 474‒485.)
Here, the Robinsons’ attempt to bring this matter under Bounds, supra,
229 Cal.App.4th 468, by alleging that the Letter interfered with Rex’s right to
use the property because it purported to grant an easement to the
DeBevoises, imposed upon Rex and his successors a duty to disclose the
agreement to buyers of the property, to which disclosure would impair Rex’s
ability to sell the property for its then market value or to use the property as
security to obtain a loan on reasonable and commercially acceptable terms.
However, unlike the executed escrow instructions in Bounds that the buyers
sued to enforce, the Letter did not impair Rex’s or the Robinsons’ rights to the
property, nor did it constitute an agreement within the meaning of Welfare
and Institutions Code section 15610.30, subdivision (c).
On its face, the Letter merely evidenced Rex’s intent to grant a lot-line
adjustment and easement in favor of Anne, and his desire that Randy
“complete” the lot-line adjustment and easement. The Robinsons alleged in
their cross-complaint that Rex’s family members and his estate planning
lawyer did not know about the Letter and Randy did not learn if its existence
until May 4, 2016, 24 days before the DeBevoises commenced this action.
Rex died in 2000 and the Robinsons do not explain how the Letter impaired
Rex’s property rights before his death because the Letter imparted no rights
to Anne and no one, other than the DeBevoises and Rex, knew about the
Letter.
39
Critically, unlike Bounds, supra, 229 Cal.App.4th 468, the DeBevoises’
original complaint, first amended complaint and operative second amended
complaint, while acknowledging the existence of the Letter, pursued no
claims under the Letter. Moreover, the Letter did not actually give, or even
promise to give, the DeBevoises any property interest in exchange for
something from Anne. Rather, Rex expressed his intent to grant Anne a lot-
line adjustment and easement and requested that Randy “complete the . . .
lot-line adjustment and easement, described” in the Letter, which he
intended as a gift to Anne. The parties, however, never completed the lot-line
adjustment. (See Foltz v. First Trust & Savings Bank (1948) 86 Cal.App.2d
59, 62 [promise in letter to make gift creates no obligation in favor of
promisee].) Nor have the Robinsons explained how the Letter, which they
claim no one but the DeBevoises and Rex knew about, impaired the value of
the property. The Robinsons’ allegation that the Letter “cloud[ed]” title to the
property is a legal conclusion entitled to no weight.14 (Evans, supra, 38
Cal.4th at p. 6.) They provide no support for the assertion that a letter from
a property owner to the property owner’s son, that the property owner
disclosed to no one, expressing the property owner’s future wishes regarding
the real property, placed a cloud on title to that property.15
14 The term “cloud on title” is defined as “[a]n outstanding claim or
incumbrance which, if valid, would affect or Impair the title of the owner of a
particular estate, and which apparently and on its face has that effect.”
(The Law Dictionary, Featuring Black’s Law Dictionary (2d ed.)
[as of Dec. 29, 2022],
archived at .)
15 The Robinsons’ reliance on Mahan v. Charles W. Chan Ins. Agency, Inc.
(2017) 14 Cal.App.5th 841, to support their financial elder abuse claims is
similarly misplaced. Mahan involved life insurance policies purchased by
elder plaintiffs that named their children as beneficiaries. (Id. at p. 846.)
40
Finally, the Robinsons do not explain how the trial court erred in
sustaining the demurrer to their seventh cause of action alleging that the
DeBevoises’ concealment of the Letter from Randy constituted financial elder
abuse against Randy by depriving him of his personal property—i.e., the
Letter. As a result, the Robinsons have forfeited any claim of error regarding
the seventh cause of action for financial elder abuse. (Benach v. County of
Los Angeles (2007) 149 Cal.App.4th 836, 852 [failure to develop claim with
reasoned legal argument and supporting authority forfeits the issue];
Denham, supra, 2 Cal.3d at p. 564 [judgment is presumed correct, and
appellant has burden to affirmatively demonstrate error].)
Accordingly, we conclude that the trial court properly sustained the
demurrer to the financial elder abuse causes of action without leave to
amend.16
The policies were held in a trust, created as part of their estate plan, of which
their daughter was the trustee and beneficiary. (Id. at p. 846.) Respondents,
the elder plaintiffs’ life insurance advisors, allegedly carried out an elaborate
scheme that involved arranging the surrender of one of the life insurance
policies and the replacement of the other with a policy providing more limited
coverage, at massively increased costs, and generating $100,000 in
commissions to the respondents. (Ibid.) The appellate court rejected
respondents’ argument that “an ‘estate plan’ cannot be a property right,”
stating that respondents’ misconduct made voluntary transfer of the elder
plaintiffs’ chosen gift assets “ ‘in their estate plan much more expensive and
of lesser value, [their] right to dispose of their property has been damaged.’ ”
(Id. at p. 862.) The facts here are not similar to the facts in Mahan.
16 The Robinsons also contend that the trial court improperly based its
demurrer ruling on the allegations in the DeBevoises’ complaint and a
purported concession by the DeBevoises that they were not pursuing any
claims based on the Letter. We need not address these claims because we
affirm the judgment if it is correct on any ground stated in the demurrer,
regardless of the trial court’s stated reasons. (Morales, supra, 25 Cal.App.5th
at p. 93.)
41
DISPOSITION
The judgment and orders are affirmed. The DeBevoises are awarded their
costs on appeal.
DATO, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
42