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Judith G. Cohen et al v. Dean A. Borgedalen et al

May 25, 2011

JUDITH G. COHEN ET AL., PLAINTIFFS AND RESPONDENTS,
v.
DEAN A. BORGEDALEN ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. CV33260)

The opinion of the court was delivered by: Butz, J.

Cohen v. Borgedalen

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Dean H. Borgedalen and Darren Borgedalen (the Borgedalens) appeal from an order granting the motion of plaintiff Judith G. Cohen and others,*fn1 for "specific performance of an interlocutory judgment." The order was entered after plaintiffs complained that the Borgedalens were interfering with their efforts to survey the width of an easement to which all parties had previously agreed in a stipulated judgment. The Borgedalens argue the trial judge who entered the order improperly changed the terms of the judgment, which was agreed to in front of a different judge.

We shall conclude the order appealed from is non-appealable, and shall therefore dismiss the appeal.

PROCEDURAL BACKGROUND

In 2006, plaintiffs filed an action seeking quiet title to a road easement across the Borgedalens' property to access their respective residences. They also sought an injunction preventing the Borgedalens from placing obstacles in the roadway.

In April 2008, on the day of trial, the parties reached a settlement before Judge Duane Martin. The parties agreed on a stipulated judgment declaring plaintiffs to be the owners of a right of access across the Borgedalens' property, the width of which "shall be the width of the existing road." It was further agreed that plaintiffs "shall be entitled to survey the centerline of the road to confirm its location and an Amended Judgment may be filed to reflect the exact location of the centerline of the road." The stipulation enjoined the Borgedalens from interfering with plaintiffs' use of the road and from erecting additional gates, barriers or speed bumps thereon. All existing gates and posts were to be removed. A decree captioned "Stipulated Judgment" incorporating these terms was signed by Judge John Martin (not the same judge who presided over the settlement) and filed on April 28, 2009 (further unspecified calendar dates are to that year).

On October 29, plaintiffs filed a "Motion . . . to Compel Specific Performance of Interlocutory Judgment." In support of the motion, they submitted several declarations averring that the Borgedalens had erected parallel fences along the road, allowing a width of only nine feet for vehicles to pass through. The declarations also described the Borgedalens' disruptive behavior, which had thwarted completion of the survey and prevented access for emergency, utility and delivery vehicles.

On November 24, after an unreported hearing, Judge John Martin issued a written ruling granting "in part" plaintiffs' motion. The order instructs plaintiffs to "hire and instruct a licensed surveyor to conduct the road survey forthwith," and prohibits the Borgedalens from interfering with the surveyor. It goes on to state that there is a "present and continuing dispute as to the roadway width," and establishes a roadway width of 18 feet "as a temporary measure pending judgment on the road survey results . . . ."*fn2 The Borgedalens filed a notice of appeal from this order.

DISCUSSION

The Borgedalens seek reversal of Judge John Martin's November 24 order, claiming that it improperly altered the terms previously agreed to in the Stipulated Judgment and could not be ...


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