Miller v. San Luis Bay Estate Homeowners Assn. CA2/6

Filed 7/31/24 Miller v. San Luis Bay Estate Homeowners Assn. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JANE STRODE MILLER, 2d Civ. No. B328181

(Super. Ct. No. 22CV-0376)

Plaintiff and Respondent, (San Luis Obispo County)

v.

SAN LUIS BAY ESTATE

HOMEOWNERS

ASSOCIATION, INC.,

Defendant and Appellant.

A homeowner’s association governing a planned

development appeals the grant of a temporary restraining order

preventing the association from interfering with a landowner’s

use of a private road through the development. The landowner

has established a high probability of ultimately prevailing. We

affirm.

FACTS

The entire development (Development), of which Jane

Strode Miller’s 18-acre parcel is part, consists of 1,100 acres in

San Luis Obispo County (County). A public road runs along the

east side of the Development. Access to the Development from

the public road is by two gates, one at the northern end of the

Development and the other at the southern end. A private road

forms a large single loop through the Development, beginning at

one gate and ending at the other.

Miller’s parcel is at the northwest corner of the

Development. The private road runs along the eastern boundary

of Miller’s parcel for some distance. The San Luis Bay Estates

Homeowners Association, Inc. (Association) controls the private

road.

A master plan for the Development was approved by the

County in 1981. The plan contemplated phased development and

annexation of the developed areas by what is now the

Association. Miller’s parcel is undeveloped and has not been

annexed.

Development’s Governing Document

The Development is governed by a declaration of

Covenants, Conditions, Restrictions, and Reservation of

Easements (CC&R’s). The CC&R’s contain provisions relating to

the use of the private road for both annexed and unannexed

parcels.

Use of the private road for annexed parcels is governed by

section 2.2(C) of the CC&R’s. That section is headed “Effect of

Annexation” and provides in part: “Owners of . . . Lots in the

newly annexed Increment . . . will have interests in the Phase

Common Area of their Increment or Phase, and, together with

Owners of newly annexed Additional Parcels, will have

nonexclusive easements over the Phase Common Area of Phase A

of Increment 1 and previously annexed Increments or Phases

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thereof and over previously annexed Additional Parcels, if any,

for ingress and egress and for use of pedestrian and horse trails,

bikeways and roads maintained or to be maintained by the

[Association], pursuant to the grant of the easements described in

Exhibit “D” hereto and in the Declaration of Annexation for any

previously annexed Increments, Phases or Additional Parcels.”

Use of the private road for unannexed parcels is governed

by section 4.12. That section is headed “Special Provision for

Assessment of Non-Annexed Portions of Property,” and provides

in part: “In the event that [parcels in the Development], are not

annexed to this Declaration, pursuant to Section 2.2, and those

Phases, Increments, Additional Parcels, or portions of the

Property are developed, and sold or leased to persons whose use

and occupancy thereof results in use of the private streets,

pedestrian and horse trails, bikeways, and other improvements

maintained by the [Association] as part of the Master Common

Area, Declarant hereby covenants for itself and its successors and

assigns that such property and the owners thereof shall be

subject to Annual and Special Assessments pursuant to section

4.1 levied by the Board for the costs of maintenance, repair,

insurance, administration and policing of the Master Common

Area. The cost of maintenance and repair under such

circumstances shall be prorated equitably between the properties

and payment [therefore] shall be enforced pursuant to Section

4.10.” (Italics added.)

Tract Maps

In 1981 San Luis Bay Estates, Inc. (SLBE) owned the

entire property that would become the Development. That year

SLBE obtained approval from the County for a master

development plan that contemplated subdivision of the property

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into various areas for development. A map submitted to the

County in support of the approval shows the private road. On the

map under the heading of existing improvements is the notion

that the road is graded and chip sealed.

By 1987 the Development was owned by the San Luis Bay

Limited Partnership (Partnership). The Partnership recorded

the CC&R’s containing sections 2.2(C) and 4.12 granting the

right to use the private road to the owners of both annexed

parcels and unannexed parcels.

Thereafter a series of tract maps were recorded in the

County’s official records subdividing lots in the Development.

Each tract map shows a portion of the private road. Placed

together, the maps show the entire road. All the maps were

recorded within Miller’s chain of title prior to her purchase of the

parcel.

Prior Use of Private Road

Miller purchased her parcel from Robin L. Rossi in 2021.

Before purchasing, she inspected the parcel multiple times,

driving over the private road. After purchasing, Miller submitted

an application to the Association for a permanent pass through

the gates along with a check for the pass fee. The Association

denied her application, and she has at all times since been denied

access to the private road. She has no other legal access to the

property. Miller is in the process of obtaining a use permit from

the County to build a single-family residence on her parcel.

Rossi has extensive historic knowledge of the entire

Development due to his direct ownership of various parcels; his

former ownership of Miller’s parcel; 33 years as a director on the

board of the water company that is the sole source of water and

sewer service for the Development; and as a design professional

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working on various portions of the Development. Rossi presented

aerial photographs dated 1969 that show the private road in

substantially the same location as it is today. The photographs

show the road was graded by 1969. The photographs confirm

Rossi’s own recollection.

Rossi obtained what became Miller’s parcel in February

2001. Rossi, his employees, and guests have been routinely

provided passes and other means of access to his properties over

the private road, including the parcel he sold to Miller. Until

recently all owners of property within the Development have

been allowed access over the private road. The private road is

the only legal access to Miller’s parcel.

In May 1998, the Association sent a letter to Rossi stating

that it does not question his right as a property owner within the

Development to unrestricted access through the gates. In June

2019, in separate litigation involving the Association, the

Association responded to interrogatories as follows:

“Explain why Robin L. Rossi is the only Plaintiff in this

action who has been allowed to access SLBE since January 1,

2019.

“[Response]: Robin L. Rossi owns property in the Estates.

“Explain why Steve Rossi has been allowed to access SLBE

since January 1, 2019.

“[Response]: Two undeveloped parcels in the Estates are

owned by the Rossi Trust and Responding Party assumes that

Steve Rossi, as Robin L. Rossi’s son, is covered.” (Original

numbering omitted.)

Procedure

Miller brought an action against the Association alleging

causes of action for: quiet title to express easement, implied

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easement, easement by reference to a map, equitable easement,

easement by necessity, declaratory relief, and preliminary and

permanent injunctions.

Miller made the instant motion for a preliminary injunction

to require the Association to grant her a gate pass to gain access

to her property over the private road. The trial court granted the

preliminary injunction. The court found that without the

injunction Miller has no legal right of access to her property; that

Miller’s proposed construction and maintenance of a single-family

residence on her property presents a de mimimus increase in

road costs for the Association; and that Miller will prevail on the

merits.

DISCUSSION

I. Preliminary Injunction

To obtain a preliminary injunction, the plaintiff must show

it is likely that she will prevail on the merits and the relative

balance of harms that is likely to result favors granting the

injunction. (See White v. Davis (2003) 30 Cal.4th 528, 554.) The

greater the likelihood plaintiff will prevail, the less plaintiff must

show that the balance of potential harms favors granting the

preliminary injunction. (Butt v. State of California (1992) 4

Cal.4th 668, 678.)

II. Probability of Prevailing

(a) CC&R’s

The Association relies on section 2.2(C) of the CC&R’s,

granting easements for ingress and egress over the common

areas to the owners of annexed parcels. The Association claims

that under the CC&R’s only the annexed parcels have such

easements, and Miller’s parcel is not annexed.

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But section 2.2(C) of the CC&R’s does not say that only

annexed parcels have such easements. In fact, section 4.12 of the

CC&R’s expressly provides for use of the private roads over the

common area for owners of non-annexed parcels. The Association

does not even mention section 4.12 in its briefs on appeal, no less

attempt to refute its plain meaning.

Rossi was assured by the Association as far back as 1989

that as a property owner within the Development he had the

unrestricted right to use the private road. The Association

confirmed as much under oath in answers to interrogatories in

2019. It is far too late for the Association to now claim that

Miller as Rossi’s successor in interest has no such right.

(b) Civil Code Section 4505, Subdivision (b)

Civil Code section 4505 provides in part: “Unless the

declaration otherwise provides . . . (b) [I]n a planned development

with common area owned by the association, there is an

easement for ingress, egress, and support, if necessary,

appurtenant to each separate interest. The common area is

subject to these easements.”

The Association claims the CC&R’s “otherwise provides”

and points to section 2.2 of the CC&R’s. That provision

affirmatively gives the owners of annexed parcels an easement

for ingress and egress. But nothing in section 2.2 of the CC&R’s

provides that the owners of unannexed parcels have no such

easement. Civil Code section 4505, subdivision (b) states a

legislative policy in favor of easements for ingress and egress in

planned developments. We must construe the CC&R’s in a light

favorable to that policy. Section 2.2 of the CC&R’s does not

otherwise provide.

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Moreover, the Association ignores section 4.12 of the

CC&R’s. That section gives the owners of unannexed parcels a

right of way for access to their parcels. Read together, sections

2.2 and 4.12 affirm the policy stated in Civil Code section 4505,

subdivision (b).

(c) Tract Maps

When a lot is sold with reference to a tract map showing

lots and streets, the purchaser of the lot has private easements in

the streets for ingress and egress and for any other use proper to

a private way. (Danielson v. Sykes (1910) 157 Cal. 686, 689.)

Miller offered recorded maps, documents, and the affidavit

of her attorney tracing the creation of Miller’s easement in the

private road. The Association claims, without citation to

authority, that an attorney is not qualified to give an opinion on

the state of Miller’s legal title. Instead, the Association claims

that an expert, such as a licensed surveyor, is necessary to guide

the trial court. The court, in the Association’s view, is incapable

of interpreting legal documents on its own. The Association

offered a declaration by a licensed surveyor containing conclusory

statements derived from his interpretation of the title documents.

The surveyor concluded that Miller did not have the easement

she claimed.

In fact, attorneys frequently give opinions on the state of

legal titles. It involves nothing more than the interpretation of

legal documents, something attorneys are trained and qualified

to do. Similarly, the trial court is equally qualified. It is the

Association’s licensed surveyor who is out of his lane. He is not

an attorney. He can do no more than give a layman’s opinion as

to the legal effect of documents. The Association’s reliance on

Bloxham v. Saldinger (2014) 228 Cal.App.4th 729 is misplaced.

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The question there was the proper survey method for

establishing a boundary line, a question clearly within a

surveyor’s expertise. It did not involve a legal opinion on

whether title documents created an easement.

The Association argues that the grant deed to Miller

contains no reference to an easement. But the easement existed

prior to Miller’s grant deed. There is no need to include existing

easements in a grant deed. “A transfer of real property passes all

easements attached thereto . . . .” (Civ. Code, § 1104.)

III. Balance of Harms

Both Rossi and Miller declared that the private road is the

only legal means of access to Miller’s parcel. The trial court so

found.

In an attempt to challenge the trial court’s finding, the

Association includes in its opening brief, maps taken from Google

Maps. The Association cites no place in the record where the

maps were entered into evidence in the trial court. The only

citations are in footnotes referencing the websites where the

maps can be found. Nor does the Association make a motion with

supporting authority requesting that we take judicial notice of

the maps. The maps are simply presented in the opening brief as

if they were part of the record. The effort is not only duplicitous,

but also unconvincing. It is a tacit admission that the evidence in

the trial court was insufficient to support the Association’s

position.

Even had the Association requested that we take judicial

notice of the maps, we would decline. The Association provides

no explanation why the maps were not offered into evidence in

the trial court, the maps are not authenticated as to their

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accuracy, and the maps do not show whether the alleged access is

legal.

Similarly, the Association claims that a map on page nine

of the respondent’s brief shows Miller has legal access by the road

leading to the south of her parcel. But the map does not show

whether the road provides legal access. The place to challenge

Miller’s claim that the private road is the only legal access to her

parcel is in the trial court, not on appeal.

More importantly, Miller has shown she is likely to prevail

based on theories that do not require a showing that the parcel

would otherwise be landlocked. The question of harm to the

defendant must be measured against the plaintiff’s likelihood of

prevailing. (Butt v. State of California, supra, 4 Cal.4th at p.

678.) Here Miller presents a very high likelihood that she will

prevail in establishing an easement over the private road even if

she has an alternative access to her parcel. There is no basis for

overturning the trial court’s order granting Miller temporary use

of the private road when she has shown such a high likelihood of

obtaining permanent use.

DISPOSITION

The judgment (order) is affirmed. Costs on appeal are

awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. BALTODANO, J.

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Rita Coyne Federman, Judge

Superior Court County of San Luis Obispo

______________________________

Freeman Mathis & Gary, David Molinari, Matthew S.

Jones, Christian E. Foy Nagy for Defendant and Appellant.

Diehl & Rodewald, Joseph W. Diehl, Jr. and Sean N. Nagel

for Plaintiff and Respondent.