NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
Defendant and appellant North Beverly Park Homeowners Association (the North) appeals a judgment in favor of plaintiffs and respondents Beverly Park Homeowners Association, David Sydorick, Virginia Sydorick, Allison Berg, Laurence Berg, Bob M. Cohen, Michele Cohen, Mo Gharavi, Jennifer Gharavi, Richard Zanuck, Lilly Zanuck, Irving Zuckerman, Peyman Daneshrad, Shadi Daneshrad, Louise Taper, Michael Solomon, Luciana Solomon, Daniel Blatteis, Angela Blatteis, Earvin Johnson, Cookie Johnson, Samuel Jackson and LaTanya Jackson (collectively, the South) following a court trial involving the interpretation of a written grant of an easement.
The South has an easement enabling its "members" to pass through the North's gates and streets to reach the South. The North asserts use of the easement is strictly limited to the South's homeowners or title holders; the South contends its members' right of access extends to their guests and invitees, such as gardeners, nannies, delivery people, friends and relatives. The trial court agreed with the South's interpretation.
We conclude the trial court properly found the grant of easement was ambiguous, the trial court properly received extrinsic evidence to determine the proper interpretation of the grant, and that the trial court's resolution of the ambiguity is supported by substantial evidence. Therefore, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The developments known as North Beverly Park and South Beverly Park were initially conceived as a single community to be built in two phases. The South was built first and consists of 16 homes. The North, which was built later, consists of 64 homes.
a. The easements.
Pursuant to the North's CC&Rs, the South members have an easement granting them access through two gates and over a roadway in the North. The focus of this controversy is section 24.08 of the North's CC&Rs, which states in relevant part: "
Thus, section 24.08 of the North's CC&Rs granted the following easements for the benefit and exclusive use of South Members: a grant of a right of way on Beverly Park Drive (a private street in the North) for access to and from Mulholland Drive, Summitridge Drive, and Lot 71 (a private four-acre park in the North); and an easement for recreational use of said park.
Also pertinent here is section 24.06 of the North's CC&Rs, which created an internal easement within the North for the common benefit of North Members. Section 24.06 states: "
b. Historical use; the North's change of position in 2007.
Until 2007, the South's owners, as well as their guests and invitees, were able to make the five-minute journey between the South and Mulholland via the easement across the North.
In mid-2007, the North contended for the first time that only the South's owners could traverse the easement to the South; the South owners' nonresident children, guests, invitees, and construction workers were barred. The North demanded the South pay $125,000, and then a higher amount, for continued access.
The South declined and filed suit.
The South's operative fourth amended complaint pled causes of action for declaratory and injunctive relief, private nuisance, reformation and quiet title. The South sought, inter alia, a judicial determination the South's members "are entitled to designate guests and invitees to use their easement rights through [the North]."
In September 2008, the matter came on for a court trial.
The witnesses included Brian Adler, a real estate broker and developer who was principally responsible for developing both the North and the South subdivisions. Adler testified he originally planned to develop Beverly Park as one community, and to grant the South members and their guests and invitees in perpetuity the same access through the North as the North guests and invitees enjoyed. "The intent was perfectly clear. It was a no-brainer." It was merely due to an "oversight" that the words "guests and invitees" appeared only in section 24.06 of the North's CC&Rs, pertaining to the internal easement within the North for the benefit of North members, and were omitted from section 24.08, pertaining to the easement in favor of the South members.
c. Trial court's ruling.
The trial court issued a 23 page tentative decision which it ultimately adopted as the final statement of decision in the matter.
The trial court found the language of section 24.08 was ambiguous as to whether use of the easement was strictly limited to the individuals who were South members/owners, or whether use of the easement extended to their guests and invitees. The trial court ruled that with respect to the "the easement granted in section 24.08, it becomes immediately apparent that the language is not `clear and explicit.' When section 24.08 states `there is hereby reserved for the benefit of the [South] Members an easement . . .,' does this include any benefit the members may derive by having gardeners, nannies, delivery people, teenage children, in-laws, and others pass through the North's gates or use the park? Does it refer only to the benefit the [South] Members themselves derive from their personal and solitary use of the easement rights? When it states the easements in this Section 24.08 shall be for the exclusive use of the [South] Members . . .', does the right to `use' the easement include the right to designate that other individuals may be permitted its use, so long as that determination is made `exclusively' by the members? In this context, does `exclusive use' mean `only' [South] Members, to the exclusion of guests and invitees?"
The trial court continued, "Having provisionally admitted extrinsic evidence of intent, this court finds that the easement language is fairly susceptible to more than one interpretation, and therefore, evidence of the actual intent of the primary grantor, Brian Adler, and the understanding of the North's and South's homeowners through their words and actions determines the extent of the easement in section 24.08."
The trial court concluded "[t]he testimony of Brian Adler, as well as the circumstantial evidence . . ., is sufficient to establish plaintiffs' claim in the cause of action for declaratory relief. The court finds that the easement described in Section 24.08 of the North Beverly Park CC&Rs recorded in 1989, includes Beverly Park Homeowner Members as well as their guests and invitees." (Italics added.)
The trial court entered judgment reforming section 24.08 of the North's CC&Rs to add the words "and their guests and invitees" to the persons benefited by the South's easements.
The North filed a timely notice of appeal from the judgment.
The North contends: the judgment should be reversed because the easement is unambiguously limited to the members of the South, and not their guests and invitees; the South's extrinsic evidence is irrelevant because it conflicts with the unambiguous terms of the South's easement; and there is no evidence of mutual mistake supporting reformation of the South's easement.
1. Standard of appellate review.
Whether language in a written agreement is ambiguous is a question of law. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 912.) Questions of law are reviewed de novo. (Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1127.) Therefore, the trial court's ruling that the easement grant was ambiguous with respect to whether "members" includes guests and invitees involves a question of law for our de novo review.
On the other hand, the trial court's resolution of that ambiguity involves factual issues, which we review for substantial evidence. (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702-703; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
2. General principles re interpretation of easements.
An easement is a "restricted right to specific, limited, definable use or activity upon another's property, which right must be less than the right of ownership." (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) The "extent of a servitude is determined by the terms of the grant, . . . by which it was acquired." (Civ. Code, § 806.)
Insofar as "construction of the grant of the right of way is concerned [,] section 1069 of the Civil Code declares that `A grant is to be interpreted in favor of the grantee, except that a reservation in any grant . . . is to be interpreted in favor of the grantor.'" (Laux v. Freed (1960) 53 Cal.2d 512, 522, italics added; accord City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 242-243 ["`doubtful clauses in the deed are to be construed most strongly against the grantor, and as favorably to the grantee as the language, construed in the light of the surrounding facts, will justify'"].) In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply. (Laux v. Freed, supra, at pp. 522-523; Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at p. 702.)
"One of such rules is that if the language of a deed is plain, certain and unambiguous, neither parol evidence nor surrounding facts and circumstances will be considered to add to, detract from, or vary its terms or to determine the estate conveyed." (Laux v. Freed, supra, 53 Cal.2d at p. 523; accord Scruby v. Vintage Grapevine, Inc., supra, 37 Cal.App.4th at p. 702.) On the other hand, if the language is ambiguous and uncertain, extrinsic evidence is admissible as an aid to interpretation, "unless such evidence imparts a meaning to which the instrument is not reasonably susceptible." (Buehler v. Oregon-Washington Plywood Corp. (1976) 17 Cal.3d 520, 526; accord Scruby, supra, at p. 702.)
When the extent of an "express easement . . . is in question" (Camp Meeker Water System, Inc. v. Public Utilities Com. (1990) 51 Cal.3d 845, 867), the extent of the easement "`is to be inferred from the circumstances which exist at the time of the conveyance . . . . Among these circumstances is the use which is being made of the dominant tenement at that time. Yet it does not follow that the use authorized is to be limited to such use as was required by the dominant tenement at that time. It is to be measured rather by such uses as the parties might reasonably have expected from the future uses of the dominant tenement. What the parties might reasonably have expected is to be ascertained from the circumstances existing at the time of the conveyance. It is to be assumed that they anticipated such uses as might reasonably be required by a normal development of the dominant tenement . . . .' (Rest., Property, § 484, comment b.) [¶] Accordingly, in determining the intent of the parties as to the extent of the grantee's rights . . . consideration must be given not only to the actual uses being made at the time of the severance, but also to such uses as the facts and circumstances show were within the reasonable contemplation of the parties at the time of the conveyance." (Camp Meeker Water System, Inc. v. Public Utilities Com., supra, 51 Cal.3d at pp. 866-867, italics added.)
3. Trial court properly construed section 24.08 as extending to the South members' guests and invitees.
a. Trial court properly found the grant was ambiguous.
We agree with the trial court that the language of section 24.08 of the North's CC&Rs is ambiguous. To reiterate the trial court's ruling, the language of section 24.08 "is not `clear and explicit.' When section 24.08 states `there is hereby reserved for the benefit of the [South] Members an easement . . .,' does this include any benefit the members may derive by having gardeners, nannies, delivery people, teenage children, in-laws, and others pass through the North's gates or use the park? Does it refer only to the benefit the [South] Members themselves derive from their personal and solitary use of the easement rights? When it states `the easements in this Section 24.08 shall be for the exclusive use of the [South] Members . . .', does the right to `use' the easement include the right to designate that other individuals may be permitted its use, so long as that determination is made `exclusively' by the members? In this context, does `exclusive use' mean `only' [South] Members, to the exclusion of guests and invitees?"
Due to the ambiguous language of the grant of easement, the trial court properly received extrinsic evidence to determine the interpretation of the grant.
b. Trial court's resolution of the ambiguity is supported by substantial evidence.
Our review of the trial court's interpretation of the easement grant is governed by the settled rule that where extrinsic evidence properly has been admitted as an aid to the interpretation of an instrument and the evidence is in conflict, a reasonable construction by the trial court will be upheld under the general rule of conflicting evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866; In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747; see generally, 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 381, p. 438.) Accordingly, the trial court's decision, if supported by substantial evidence, must be upheld.
Here, the developer's intent, as established by Adler's testimony, was to grant the South members and their guests and invitees in perpetuity the same access through the North as the North guests and invitees enjoyed. "The intent was perfectly clear. It was a no-brainer." It was merely due to an "oversight" that the words "guests and invitees" appeared only in section 24.06 of the North's CC&Rs, pertaining to the internal easement within the North for the benefit of North members, and were omitted from section 24.08, pertaining to the easement in favor of the South members.
Further, consistent with the general rule of contract construction that the parties' practical construction of a contract, as shown by their actions, is important evidence of their intent (Kalmanovitz v. Bitting (1996) 43 Cal.App.4th 311, 316), the "practical construction" placed upon an agreement conveying an easement will be held to fix the limits of the easement under the agreement. (San Joaquin & Kings etc. Co. v. Egenhoff (1943) 61 Cal.App.2d 82, 86; see generally, 6 Miller & Starr, Cal. Real Estate (3d ed. 2009) § 15:56.)
Here, for two decades, until the instant controversy arose in 2007, the South members' guests and invitees utilized the easement without objection by the North.
These circumstances, as well as Adler's testimony, constitute substantial evidence to support the trial court's determination that the easement described in section 24.08 of the North's CC&Rs extends to the South's members/owners as well as their guests and invitees.
4. Reformation was proper.
a. Trial court's ruling re reformation.
In this regard, the trial court held "[s]ection 24.08 is amenable to reformation. The intent of the grantor was that the easement include the South's owners, their guests and invitees. Based on the permission that was granted for many years to the South's guests and invitees to drive through the North, and the lack of any evidence of a contrary understanding by the North's owners at the time they purchased their property, the court finds that the North's owners also believed that the intent of the easement was to grant access to the South's owners, guests and invitees. There was a mutual mistake in the written easement which did not express the intent of the maker or the understanding of the owners of the servient property." Accordingly, the trial court reformed section 24.08 to include the words "and their guests and invitees."
b. Trial court properly reformed section 24.08.
The North contends there was no evidence of mutual mistake supporting reformation of the South's easement. The argument is unavailing.
Civil Code section 3401 states: "In revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be."
Here, Adler testified it was merely due to an oversight that the words "guests and invitees" were omitted from section 24.08. Therefore, the trial court sitting in equity acted within its power to revise the instrument to reflect what the instrument was "intended to mean." (Civ. Code, § 3401.)
The judgment is affirmed. Respondents shall recover their costs on appeal.
CROSKEY, J., Concurring.
While I agree that the judgment should be affirmed, I do so on the sole ground that there was a mistake in the drafting of section 24.08 of the North Beverly Park CC&Rs recorded in 1989. The trial court, on substantial evidence, found that in the drafting of that section the words "guests or invitees" was inadvertently left out of the final sentence. The trial court expressly found that this constituted a mutual mistake made by the developer of the project and the owners of the several lots in the serviant tenement (i.e., North Beverly Park). Thus, the trial court properly granted reformation of the CCRs to include the above quoted language in section 24.08.
In my view, when read as a whole and in context with the entire North Beverly Park CC&Rs, section 24.08 is in no way ambiguous. It seems obvious that the absence of the phrase "guests or invitees" from section 24.08 (while it is included in several other sections of the CC&Rs) does not make that section in any way ambiguous or unclear. It is only upon evidence that the persons responsible for drafting the CC&Rs had intended to include the phrase, and that the expectations, practice and experience of the various parties involved reflected a treatment of the CC&Rs as though the phrase had been included, that the issue of what was intended by the language used in section 24.08 arises.
For this reason, I believe an ambiguity analysis is both inappropriate and unnecessary. A mistake in drafting was made and the trial court so found. Reformation of the CC&Rs was granted. Our affirmance of the judgment should be made solely on that ground.