Fullerton v. King CA1/3

Filed 6/18/15 Fullerton v. King CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

RICHARD FULLERTON, Plaintiff and Respondent, A142457 v. HOWARD E. KING, (Marin County Super. Ct. No. CIV1205037) Defendant and Appellant.

Defendant Howard E. King appeals a judgment, entered upon the granting of plaintiff Richard Fullerton’s motion for summary adjudication, that permanently enjoins King from motorizing an existing gate across a private road on which Fullerton holds an easement. He contends the court interpreted too restrictively the terms of the easement governing Fullerton’s right to use the private road for ingress and egress. We agree and shall therefore reverse the judgment and remand for further proceedings to determine whether the gate unreasonably burdens Fullerton’s right of use. Factual and Procedural History In 1986, Herbert Damner subdivided a seven-acre parcel in the town of Ross into three separate lots (104, 106, and 108 Laurel Grove). In creating the subdivision, Damner recorded in the Marin County Recorder’s Office both a parcel map depicting the subplot boundaries and a declaration of covenants, conditions, and restrictions (CC&Rs) attached to the subdivided lots. As depicted on the parcel map, 104 Laurel Grove adjoins the public street, 106 Laurel Grove is behind 104 Laurel Grove and 108 Laurel Grove is the farthest from the public street of the three subdivided lots. A private road runs over a

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portion of 104 Laurel Grove, providing passage from the public road to the other two subdivided lots. The CC&Rs that govern use of the subdivided lots create the following easement: “Easements for ingress and egress, emergency vehicle access and installation and maintenance of utilities and drainage facilities are reserved as shown on the Map over Lot1 [104 Laurel Grove] for the benefit of Lots 2 and 3 [106 and 108 Laurel Grove]. The granted ingress and egress Driveway Easement shall be for the purposes of serving Dwellings on each Lot. No structure, planting or other material shall be placed or permitted to remain which may damage or interfere with the right of use and enjoyment held by the dominant tenements over the servient tenement.” Under section 1.4 of the CC&Rs, “The term ‘Driveway easement’ shall mean and refer to the ingress/egress easement located on Lot 1 as shown and depicted on the map which serves the subject property.” 1 Currently, each of the subdivided lots is independently owned. Fullerton owns the property at 108 Laurel Grove. King, as trustee of the Laurel Grove Trust, owns the 104 Laurel Grove property, which is occupied by a well-known public figure and his family, including three young children. When King purchased the 104 Laurel Grove property in 2011, there was a manually operable iron gate at the point where the private road over the easement intersects Laurel Grove Street. King installed mechanization of the gate, which was completed in October 2012. The features of the mechanized gate include 1) remote control access for subdivision residents, such as Fullerton, or for those with frequent access requirements (e.g., maintenance workers); 2) a numerical keypad on the public side of the gate to allow entry by use of a programmed code; 3) a sensor loop embedded underneath the road surface on the inside of the gate, connected and programmed to