Bishop Creek Lodge v. Scira

Opinion

RICHLI, Acting P. J.

In this action, plaintiff Bishop Creek Lodge (Bishop Creek) seeks to enforce a restrictive covenant against its neighbors, Ronald S. and Donna Scira. Alternatively, in the event the covenant is not enforceable, Bishop Creek seeks damages for breach of contract and/or fraud from Charles and Joyce Hernandez, who sold it the real property to which the right to enforce the covenant allegedly attached, as well as from the Sciras as the Hernandezes’ conspirators.

The action has been before this court before; it gave rise to our partially published opinion in

Bishop Creek Lodge

v.

Scira

(1996) 46 Cal.App.4th 1721 [54 Cal.Rptr.2d 745]. At that time, we reversed a jury verdict in favor of Bishop Creek on its causes of action for breach of contract and for fraud. In the unpublished portion of our opinion, we also strongly suggested that on remand the trial court should try the equitable issues first before it submitted the legal issues to a jury.

The trial court dutifully followed our suggestion. After a bench trial on the equitable issues, it ruled that Bishop Creek was not entitled to equitable

[633]

relief. It explained that the Hernandezes had divested themselves of the covenant (essentially, by selling it to the Sciras) before they sold the underlying real property to Bishop Creek, and that Bishop Creek had constructive notice that the covenant had been sold. It left open the possibility, however, that, after a jury trial on the legal issues, Bishop Creek might be entitled to damages.

Bishop Creek appeals. We have concluded, however, that we must dismiss the appeal. The rule is well established that an interlocutory order denying a permanent injunction is not appealable. Although the reasons for the rule are somewhat less well established, we are convinced that there are good reasons for it and that it applies in this case.

I

Appealability

Pursuant to rule 13 of the California Rules of Court, Bishop Creek’s opening brief includes a statement of appealability. In it, Bishop Creek contends the challenged order is appealable as “an order . . . refusing to grant ... an injunction.” (Code Civ. Proc., § 904.1, subd. (a)(6).) Defendants do not contend, in so many words, that the order is not appealable; the Sciras do argue, however, that Bishop Creek “is entitled to no relief until the legal issues ... are adjudicated.” (Emphasis omitted.)