White Oak Neighbors Association v. John W. Fitzgerald, et al.

White Oak Neighbors Association v. John W. Fitzgerald, et al., 24CVP-0043

Hearing: Motion for Summary Judgment or Alternatively Summary Adjudication

Date: September 3, 2026

This is a dispute between neighbors regarding access to a road in their subdivision called White Oak Road (the Road). On February 1, 2024, White Oak Neighbors Association (Plaintiff) filed a lawsuit against Defendants John W. Fitzgerald, Dawn L. Fitzgerald, (collectively referred to as the Fitzgeralds) and Barry Patrick Fagan (Fagan). The complaint sought to establish the rights of neighbors to use the Road and preclude the Fitzgeralds and Fagan from obstructing their use of the Road.

On January 22, 2026, Rob A. Garcia and Deborah L. Donnelly (collectively referred to as Intervenors) filed a complaint in intervention against the Fitzgeralds and Fagan alleging causes of action for 1. Interference with Right of Way; 2. Abatement of Continuing Nuisance; 3. Declaratory Relief; 4. Prescriptive Easement; and 5. Equitable Easement. (Intervenor Complaint).

On January 26, 2026, Plaintiff filed a second amended complaint (SAC) against the Fitzgeralds and Fagan alleging causes of action for 1. Interference with Right of Way; 2. Abatement of Continuing Nuisance; 3. Declaratory Relief; and 4. Prescriptive Easement. On February 6, 2026, the Fitzgeralds answered the SAC and Intervenor Complaint. The SAC and the Intervenor Complaint are the operative complaints in this action.

Both the SAC and Intervenor Complaint allege private easements despite including allegations that the County rejected the Fitzgerald’s application to abandon a public right of way over the Road. Plaintiff and Intervenors allege that recordation of a Parcel Map creating the lots owned by the parties created a private right appurtenant to each parcel for use of the Road.

Before the Court is the Fitzgeralds’ Motion for Summary Judgment or Alternatively Summary Adjudication. (MSJ Motion). Plaintiff and Intervenors oppose the motion on the ground that there are triable issues of material fact. 1

I. LEGAL STANDARD

Summary judgment is proper when there are no triable issues of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. § 437c(c).)2 A defendant moving for summary judgment has the initial burden of showing that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (§ 437c(p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) If that burden is met,

1 Intervenors’ request for judicial notice of specified documents filed in this case, while unnecessary, is granted. 2 Further statutory references are to the Code of Civil Procedure unless otherwise stated.

the burden shifts to the opposing party to show that a triable issue of material fact exists as to the element or defense at issue. (Ibid.)

The party opposing summary judgment need only raise a triable issue of material fact to defeat the motion. Further, the Court must consider all inferences reasonably drawn from all evidence and must view the evidence in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 843.) However, “those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork. [Citation.]” (Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 823 [citation omitted].)

The “court may not weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact. ... The court may not ‘grant[]’ the defendants’ motion for summary judgment ‘based on inferences ..., if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.’ (Code Civ. Proc., § 437c, subd. (c).)” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

II. DISCUSSION

All causes of action rely on Plaintiff and Intervenors having or establishing a right of way or easement over the disputed portion of the Road. The Fitzgeralds contend that they have presented evidence that shows Plaintiff and Intervenors do not have and cannot establish a right of way or easement as a matter of law.

The Fitzgeralds submit, however, the recorded Parcel Map that granted easements over the Road to all properties depicted on the Parcel Map. (Exhibits in Support of Summary Judgment (Fitzgerald Exhs.), Exh. D-4.) “It is a thoroughly established proposition in this state that when one lays out a tract of land into lots and streets and sells the lots by reference to a map which exhibits the lots and streets as they lie with relation to each other, the purchasers of such lots have a private easement in the streets opposite their respective lots, for ingress and egress and for any use proper to a private way, and that this private easement is entirely independent of the fact of dedication to public use, and is a private appurtenance to the lots, of which the owners cannot be divested except by due process of law. [Citations.]” (Danielson v.

Sykes (1910) 157 Cal. 686, 689, 109 P. 87; Tract Development Services, Inc. v. Kepler (1988) 199 Cal. App. 3d 1374, 1381–82.)

In their reply the Fitzgeralds state, “even if a private map-based right arose, [Plaintiff] still must establish that the particular route and scope it seeks to enforce fall within that right; any claimed right over a different traveled route requires an independent legal basis. Physical inconvenience does not erase that distinction. [Plaintiff] therefore cannot use the 1918 Map to establish the existence of a right, historical travel over a different physical route to establish its exercise, and equity to bridge the difference between the two.” (Reply, p. 4, lns. 6-12.) Even if this were correct, it does not state a ground for summary judgment.

The burden is on the Fitzgeralds to prove as a matter of law that Plaintiff and Intervenors cannot establish a particular route that falls within the Road depicted on the map. Plaintiff and Intervenors do not need to prove the elements of their claims to oppose the motion. They need only present

evidence that raises a triable issue of material fact. They have done so. Plaintiff and Intervenors seek to enforce their rights to use the Road as depicted on the Parcel Map. (Intervenor Complaint, First Cause of Action; SAC, First Cause of Action.)

Even if the map-based claims did not seek to enforce the route depicted in the map “[t]here is ample authority for the proposition that parties may by mutual consent, either express or implied, relocate an easement.” (Kosich v. Braz (1967) 247 Cal.App.2d 737, 739 [emphasis added].) There is a material issue of fact as to whether by erecting obstacles within the route depicted on the map the Fitzgeralds impliedly agreed to relocate the easement. Further, the prescriptive easement causes of action do not rely on the route depicted in the map but rather on the route used for the prescriptive period. Again, it is the Fitzgeralds’ burden, not the Plaintiff’s and Intervenors’, to prove that no prescriptive route can be established. The Fitzgeralds have not provided evidence that defeats the prescriptive easement claims.

A. Triable Issues of Material Fact

The Fitzgeralds claim they have established as a matter of law the historic, sporadic use of the disputed portion of the Road, that the use was permissive, that the disputed route lacks a fixed and definite path, that the disputed area does not provide a reliable means of ingress or egress for ordinary transportation, the route is blocked by a seasonal creek, etc. (UMFs 8-15, 28-29, 31-33.) Such matters are generally decided by a trier of fact. Much of the supporting evidence consists of characterizations, observations, or opinions of the Fitzgeralds or evidence that raises a triable issue but does not prove the proffered fact.

For example, UMF 15 states “[t]he disputed property is dangerous to travel and inconsistent” and is supported by the Fitzgeralds’ declarations. The Fitzgerald’s opinions are not sufficient to establish the fact and Plaintiff and Intervenors have submitted a multitude of evidence to the contrary. UMF 23 states “[a]ny use of the property by third parties, if it occurred, would have been sporadic, dangerous, and inconsistent due to terrain and environment conditions” and is also supported by only the opinions of the Fitzgeralds, which are disputed by Plaintiff’s and Intervenors’ evidence.

The Fitzgeralds rely on UMFs 30-32 to prove neighbors’ use of the disputed area was with permission and cannot be the basis of a prescriptive easement. They rely on certified letters they sent to neighbors giving permission and John Fitzgerald’s statement that his “father, who owned the property since 1966, permitted friends to use the alleged easement for hiking.” (UMFs 31-31.) The letters do not prove the neighbors used the Road with permission in light of evidence that neighbors used the Road for years before the Fitzgeralds sent the letters. Even if John Fitzgerald’s father’s friends used the Road with permission it does not prove Plaintiff and Intervenors and their predecessors used the Road with permission.

These facts are disputed by ample evidence. For example, Joe Peelen declares as follows:

On or about May 5, 1993, my wife Lori Peelen, and I purchased Lot 37-A of Parcel Map CO-65-22 in Templeton, California. This lot sits within the recorded subdivision map for Oak Ridge Orchard Co. Subdivision No. 3 ("Subdivision").

We resided on this property from 1993 to 2022 during which time we subdivided Lot 37-A into two separate parcels. On or about April 27, 2022, we sold one of those parcels- currently known as 1620 White Oak Road, Templeton, California to Rob A. Garcia and Deborah L. Donnelly.

3. It has always been my understanding that White Oak Road was dedicated to the County but is not maintained by it. While we lived in the Subdivision, White Oak Road served as a critical alternate egress route in the event of an emergency. It was a hard-packed fully drivable road extending all the way to Ridge Road. White Oak Road was regularly utilized for various purposes including walking, biking, hiking, horse-back riding, jeeps/ATVs, exercising, performing maintenance and traveling between neighbors’ homes. Throughout our ownership, my wife walked/hiked White Oak Road multiple times each week if not daily. The road was never washed out by a “seasonal creek,” and members of the public also utilized the road.

4. During the time that I owned property on White Oak Road, John and Dawn Fitzgerald constructed berms diverting surface drainage from their property and funneling it onto White Oak Road resulting in erosion of the road. White Oak Road is a dirt road that required regular maintenance. Other than the erosion caused by the Fitzgeralds, I did not observe any erosion that I felt was out of the norm for a dirt country road. Nor did I observe anything else that would prevent continued use of the road. I never observed any accidents or injuries on the road. The road was not “hazardous,” “dangerous,” “impassable,” “unstable,” “unsafe,” or “inconsistent.” It was simply a dirt road.

(Intervenor’s Exhibits in Opposition to Summary Judgment (Opp. Exhs.), Exh. FF; see also, Declaration of Michael Tindell, ¶¶ 11-13, 15.)

The Peelen and Tindall declarations are alone sufficient to raise triable issues of fact as to many of the UMFs. Further, co-defendant Fagan admitted that the recorded Parcel Map for the White Oaks neighborhood created an easement for ingress and egress on all roads delineated on the Parcel Map benefitting each of the properties on the Parcel Map that is entirely independent of the developer’s offer of dedication of the roads to public use. (Intervenors’ Exh. HH, Response to RFA 13.) Fagan also admitted that since purchasing his property Fagan has witnessed people driving on the Road without his permission. (Intervenors’ Exh. HH, Response to RFAs 24, 26.)

Separate statements are intended to allow the judge to determine quickly whether a motion for summary judgment is supported by sufficient undisputed facts and whether the opposing party submitted sufficient evidence to dispute a material fact. “This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113 [citation omitted].)3

3 Section 437c, subdivision (b)(4) states that a reply to opposition to summary judgment shall not include a separate statement. The reply separate statement filed by the Fitzgerald will not be considered except where objections to evidence are made.

A party moving for summary judgment concedes that every fact stated in the separate statement is material and cannot argue, after the opposing party offers evidence raising a dispute, that a fact is not really material. Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 521[moving party could not argue the amount of rainfall at the site of a landslide was immaterial after stating the amount of rainfall as an undisputed material fact].)

The Fitzgeralds concede the materiality of facts such as that “[t]he alleged easement cannot be traveled by highway vehicle, emergency vehicles, utility access,” and “[t]he alleged easement can only be traveled on foot, horseback, or ATV.” (UMFs 13, 14.) Those facts are in dispute. Not only is the evidence supporting the facts insufficient, for example, fire trucks often drive on difficult terrain to battle wild fires, but Intervenors declare they have driven their utility vehicle and jeep on the disputed portion of the Road. (Declaration of Rob A. Garcia, ¶ 5.)

Plaintiff and Intervenors have submitted evidence that raises triable issues of material fact as to many of the UMFs. The motion must be denied. The Court finds that UMFs 8-15, 19-24, 26-35, 38-40, 44, 48, 51, 52, 55, 57, 58, 62-70, 73, 77, 80, 81, 83-89, 92, 95, 95, 99, 104, 105, 109-112, 114, 116, 117, 121, 123-125, 128, 131-138, 142, 143, 146, 149-151, 153-159, 167, 169-171, 173- 177, 180, 182 are disputed by admissible evidence.

B. Civil Code Section 1009

The Fitzgeralds cite Scher v. Burke (2017) 3 Cal.5th 136 (Scher) to argue that Civil Code section 1009 (section 1009) bars all public use of the Road. In Scher, the California Supreme Court held that section 1009 bars all public recreational and non-recreational use of real property from ripening into an implied public dedication. (Scher, at pp. 143-148.) The court did not address nor hold that section 1009 prohibits recreational or non-recreational use of private property from ripening into a private prescriptive easement.

Section 1009 does not prevent a neighboring landowner from acquiring a private prescriptive easement over property merely because it also is used by the public. (Ditzian v. Unger (2019) 31 Cal.App.5th 738, 745–46; see also Applegate v. Ota (1983) 146 Cal.App.3d 702, 710 [“merely because the public also uses the easement does not preclude the acquisition by an individual of a right based upon his own use.”].)

C. Equitable Easement, Changed Conditions, Injury, Emergency Access

The Fitzgeralds acknowledge that an equitable easement is determined based on the relative hardships of the parties. (Motion, 21, lns. 2-24.) The Court would have to weigh the evidence presented to determine the relative hardships of the parties which is not allowed in ruling on a summary judgment motion.

There is evidence that any changed conditions on the disputed portion of the Road are the result of the Fitzgeralds installing obstructions. Further, there is a triable issue of material fact as to whether changed conditions are a basis for terminating Plaintiff’s and Intervenor’s rights.

There is also disputed evidence as to whether the disputed portion of the Road could be used for emergency access to properties within the Parcel Map, as discussed above.

With regard to damages, “[w]hen a person interferes with the use of an easement he deprives the easement’s owner of a valuable property right and the owner is entitled to compensatory damages. The interference is a private nuisance and the party whose rights have been impeded can recover damages as measured in the case of a private nuisance. ... Damages may be recovered for diminution of the property’s value and for annoyance and discomfort flowing from loss of use.” (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574 [citations omitted].) The Fitzgeralds submit evidence that they have interfered with Plaintiff and Intervenors’ use of the disputed portion of the Road. Thus, there is legally cognizable injury should Plaintiff and Intervenors prove they have a right to use of the disputed portion of the Road.

D. Plaintiff’s Public Easement Causes of Action

There are two sets of Third and Fourth Causes of Action in the SAC, the first set alleging a public easement and the second set alleging a private easement. Plaintiff asserts this was a clerical error in that Plaintiff voluntarily dismissed the public easement causes of action from its First Amended Complaint but accidentally included them when filing the SAC. Plaintiff confirms that it is not seeking any public easement in the SAC and, instead, is seeking only private easement rights for its members. (Plaintiff’s Opposition, p. 2, fn. 1.)

Whether filing an errata to correct a typographical error in a pleading is sufficient depends on whether the opposing party is provided due process. (Falahati v. Kondo (2005) 127 Cal.App.4th 823.) Here, the Fitzgeralds filed a general denial and affirmative defenses to the SAC. Correcting the SAC to remove the erroneously included public easement claims will not deprive the Fitzgeralds of due process as the answer to the SAC they filed will remain applicable. Plaintiff should file an errata deleting the erroneous public easement causes of action.

III. EVIDENTIARY OBJECTIONS 4

A. Intervenor’s Objections

Declaration of Dawn Fitzgerald Objection 1: Sustained Objection 2: Overruled Objection 3: Sustained Objection 4: Sustained Objection 5: Sustained Objection 6: Sustained Objection 7: Overruled Objection 8: Sustained Objection 9: Overruled Objection 10: Sustained Objection 11: Sustained 4 Plaintiff responded to some of the UMFs with objections but did not file evidentiary objections.

Objection 12: Sustained Objection 13: Sustained Objection 14: Sustained Objection 15: Overruled Objection 16: Sustained Objection 17: Sustained Objection 18: Sustained Objection 19: Sustained Objection 20: Sustained Objection 21: Sustained Objection 22: Sustained Objection 23: Overruled Objection 24: Sustained Objection 25: Sustained Objection 26: Sustained Objection 27: Sustained Objection 28: Sustained Objection 29: Sustained Objection 30: Sustained Objection 31: Overruled Objection 32: Sustained Objection 33: Sustained Objection 34: Sustained

Declaration of John Fitzgerald Objection 35: Sustained Objection 36: Overruled Objection 37: Sustained Objection 38: Sustained Objection 39: Sustained Objection 40: Sustained Objection 41: Sustained Objection 42: Sustained Objection 43: Sustained Objection 44: Sustained Objection 45: Sustained Objection 46: Sustained Objection 47: Sustained Objection 48: Sustained Objection 49: Sustained Objection 50: Sustained Objection 51: Sustained Objection 52: Sustained Objection 53: Sustained Objection 54: Sustained Objection 55: Sustained

Objection 56: Sustained Objection 57: Sustained Objection 58: Sustained Objection 59: Overruled Objection 60: Overruled Objection 61: Sustained Objection 62: Sustained Objection 63: Sustained Objection 64: Sustained Objection 65: Overruled Objection 66: Overruled Objection 67: Sustained Objection 68: Sustained Objection 69: Sustained Objection 70: Sustained Objection 71: Sustained Objection 72: Sustained Objection 73: Sustained Objection 74: Sustained Objection 75: Sustained Objection 76: Sustained Objection 77: Sustained Objection 78: Overruled Objection 79: Sustained Objection 80: Sustained Objection 81: Sustained Objection 82: Sustained Objection 83: Sustained Objection 84: Sustained

Exhibits Objection 85: Sustained Objection 86: Overruled Objection 87: Sustained Objection 88: Sustained Objection 89: Sustained Objection 90: Sustained Objection 91: Sustained Objection 92: Sustained Objection 93: Sustained Objection 94: Sustained Objection 95: Sustained Objection 96: Sustained Objection 97: Sustained Objection 98: Overruled Objection 99: Sustained

Objection 100: Sustained Objection 101: Sustained Objection 102: Overruled as to Exhs. D-25, D-27, D-28, D-29, and D-30 which are pleadings filed in this case; Sustained as to Exh.

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Declarations Objection 103: Sustained Objection 104: Sustained Objection 105: Sustained Objection 106: Sustained

B. Fitzgeralds’ Objections

Declaration of Michael Tindell Objection 1: Sustained Objection 2: Sustained Objection 3: Sustained Objection 4: Sustained Objection 5: Sustained Objection 6: Sustained

Declaration of Kevin Irot Objection 8: 5 Overruled Objection 9: Overruled

Exhibits Objection 10: Overruled Objection 11: Overruled Objection 12: Overruled Objection 13: Overruled Objection 14: Overruled Objection 15: Overruled Objection 16: Overruled Objection 17: Overruled Objection 18: Overruled 6 Objection 19: Sustained to the extent offered for the truth of the accusation the Fitzgeralds harassed someone.

Declaration of Deborah L. Donnelly Objection 20: Sustained Objection 21: Sustained Objection 22: Sustained Objection 23: Overruled

5 The Fitzgeralds’ objections go from number 6 to number 8. There is no objection 7. 6 The Fitzgeralds may object to the authenticated documents on hearsay grounds.

Objection 24: Sustained Objection 25: Overruled Objection 26: Sustained Objection 27: Sustained Objection 28: Sustained Objection 29: Sustained Objection 30: Overruled Objection 31: Sustained Objection 32: Sustained Objection 33: Sustained Objection 34: Sustained Objection 35: Overruled

Declaration of Rob A. Garcia Objection 36: Overruled Objection 37: Sustained Objection 38: Sustained Objection 39: Sustained Objection 40: Overruled

Videos Objections 41 and 42: Sustained (Intervenors filed a notice of lodging Exhs. R and S which are videos of the disputed Road. There is no evidence from the person who took the videos authenticating them)7

IV. RULING

The Fitzgeralds’ motion for summary judgment or alternatively summary adjudication is denied.

7 The parties are reminded of their duty to provide electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit. (CRC, rule 3.1110(f).) The Fitzgeralds and Intervenors filed hundreds of pages of exhibits without providing electronic links which makes review of the papers extremely challenging. The inclusion of declarations prepared in opposition to summary judgment as part of the lengthy exhibit package increased the difficulty in reviewing Intervenors’ evidence. Such declarations are opposing papers rather than exhibits.

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