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Dolnikov v. Ekizian

California Court of Appeal, Second District, Third Division

December 19, 2013

Flora DOLNIKOV, Plaintiff, Cross-defendant and Respondent,
v.
Dikran EKIZIAN et al., Defendants, Cross-complainants and Appellants.

[Certified for Partial Publication][*]

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC321215)

Page 420

[Copyrighted Material Omitted]

Page 421

COUNSEL

Law Offices of Herbert Hafif, Herbert Hafif, Newport Beach, Greg K. Hafif; and Mark C. Calahan for Defendants, Cross-complainants and Appellants.

Timothy D. McGonigle Prof. Corp. and Timothy D. McGonigle for Plaintiff, Cross-defendant and Respondent.

Melvin Teitelbaum, Los Angeles, for Westmac Investment Ventures, LLC and Erina Gilerman as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Respondent.

OPINION

ALDRICH, J.

Page 422

INTRODUCTION

We hold in this appeal that conduct can constitute actionable interference with the use and enjoyment of an easement even when the conduct does not physically obstruct the servitude. The easement in question is for ingress and egress to undeveloped lots in the Hollywood Hills. Plaintiff Flora Dolnikov, owner of the dominant tenement, was interrupted during her construction of two residences by defendants Dikran Ekizian and Diramesi Investments, LLC (defendants or Ekizian), the servient tenement owners who refused to sign both a covenant for community driveway and permission for a building permit to construct a retaining wall. The City of Los Angeles Department of Building and Safety (LADBS) required defendants' signatures before it would issue plaintiff the permits necessary to make the easement roadway useable for its intended purpose. Plaintiff sued defendants seeking declaratory relief and damages. Defendants appeal from the ensuing judgment entered in favor of plaintiff. In the published portion of this opinion, we hold that the evidence supports the jury's finding that defendants unreasonably interfered with plaintiff's use and enjoyment of the easement. In the unpublished portion of this opinion, we reject defendants' remaining challenges. Accordingly, we affirm the judgment.

[165 Cal.Rptr.3d 661] FACTUAL AND PROCEDURAL BACKGROUND

1. The easement

In 1998, plaintiff acquired undeveloped Lots 29 and 30 in Tract 4202 located above Laurel Canyon. Her neighbor to the north and east, Amnon Gad,

Page 423

through his company, Amgad, Inc., owned Lot A, off of Floral Avenue, that consisted of four undeveloped acres in Tract 4150.

In 1942, defendants' predecessor in interest granted and recorded the easement at issue to plaintiff's predecessor in interest (the easement). The easement provides in relevant part:

" EASEMENT— GENERAL
" A strip of land 14 Ft. wide, 7.00 Ft. on each side of the following described center line [beginning, curves, and ending described]. The foregoing described Right of Way is now improved and is used by the Bureau of Water Works and Supply of the City of Los Angeles, California [now the Los Angeles Department of Water and Power (LADWP) ].... NOW, THEREFORE, it is hereby agreed as follows: The said [ defendants' predecessor ] does hereby grant, assign and set over to the said [ plaintiff's predecessor ] ... A right of way for ingress and egress over the above described property for street purpose for the benefit of Lots 29 and 30 of Tract 4202 .... TO HAVE AND TO HOLD the said easement, right and right-of-way unto [plaintiff's predecessor], his successors or assigns for a period of perpetuity...." (Italics added.)

The easement begins at the top of Floral Avenue at the south end of Lot A. It runs on the Lot A side of the property line with plaintiff's properties, uphill and roughly north in a wide curve, concave to the east, around a hill on Lot A and ending at a point in Lot A that is even with the northern boundary of plaintiff's properties to the west. (A copy of a schematic is attached as an appendix to this opinion.)

In 2001, plaintiff obtained permits from LADBS to construct two houses on her land, to be designated 8027 and 8031 Floral Avenue. Her permit application included an unrecorded covenant and agreement for a community driveway executed in 1999 by defendants' predecessor, Mr. Gad. LADBS issued the permits with the understanding the driveway would be 14 ...


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