Dolnikov v. Ekizian
222 Cal. App. 4th 419
| Cal. Ct. App. | 2013Background
- Dominant tenement owner Dolnikov seeks to use an easement for ingress/egress to two undeveloped lots in Hollywood Hills; servient owners Ekizian/Diramesi Investments oppose and would not sign a covenant for a community driveway or permit for a retaining wall.
- Easement from 1942 grants a 14-foot-wide right of way for Lots 29 and 30 for street purposes, not excluding servient use consistent with Dolnikov's use.
- Dolnikov obtained LADBS permits in 2001 to build two houses; LADBS approved a 14-foot-wide driveway despite a 20-foot code requirement.
- In 2002, Lot A (servient) was sold to Diramesi Investments (Ekizian) with knowledge of the easement and Dolnikov's development.
- Dolnikov’s grading plan required a cut and a retaining wall to enable the easement’s use; a retaining wall was planned to stabilize the slope and permit access.
- LADBS eventually revoked permits in 2004 because Ekizian refused to sign a community driveway covenant and permit documents, halting Dolnikov’s construction and triggering the lawsuit for interference with the easement and related relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did acts constituting interference with the easement exist even without a physical obstruction? | Dolnikov argues refusals to sign covenants and permits, and extortionate demands, interfered with easement use. | Ekizian contends no actionable interference occurred since no physical obstruction or covenant running with the land was established. | Yes; actions and refusals amount to interference consistent with the easement's use. |
| Does the easement deed convey a covenant running with the land or a mere easement? | Dolnikov contends a running covenant implied by the deed supports duty of good faith. | Ekizian argues the deed conveys only an easement, not a running covenant. | Court treated as overlapping theories but upheld interference finding irrespective of covenant running with the land. |
| Are the four acts protected by Civil Code section 47(b) litigation privilege? | Dolnikov argues privilege does not shield noncommunicative acts tied to interference claim. | Ekizian argues privilege bars admission of these communications. | No; none of the four acts were protected by the litigation privilege. |
| Can damages for a continuing nuisance be recovered beyond the complaint filing date? | Dolnikov seeks continuing damages from obstruction, not limited to pre-filing period. | Ekizian argues damages should be limited to pre-filing period per Baker. | Damages for a continuing nuisance may extend to abatement, up to the cessation of the nuisance, aligning with Renz. |
| Is Ekizian personally liable under Corporations Code 17158 for actions as manager of Diramesi Investments? | Dolnikov asserts personal liability for tortious acts. | Ekizian argues shielded as LLC manager. | Ekizian personally liable for his participation in tortious acts. |
Key Cases Cited
- Pasadena v. California-Michigan etc. Co., 17 Cal.2d 576 (1941) (easement includes secondary rights necessary for full enjoyment)
- North Fork Water Co. v. Edwards, 121 Cal. 662 (1898) (secondary easement rights implied for improvements to exercise the right)
- Ballard v. Titus, 157 Cal. 673 (1910) (right-of-way carries implied surface changes necessary for travel)
- Haley v. L. A. County Flood Control Dist., 172 Cal.App.2d 285 (1959) (secondary easement rights to repair and maintenance may be necessary and not burdensome)
- White v. Walsh, 105 Cal.App.2d 828 (1951) (easement owner may make reasonable changes that do not substantially burden servient estate)
- Blanchard v. DIRECTV, Inc., 123 Cal.App.4th 903 (2004) (litigation privilege scope for prelitigation communications)
- Aronson v. Kinsella, 58 Cal.App.4th 254 (1997) (good faith/serious contemplation test for litigation privilege connections)
- Simandle v. Vista de Santa Barbara Associates, LP, 178 Cal.App.4th 1317 (2009) ( Evid. Code 1152; admissibility of settlement negotiations)
- Zhou v. Unisource Worldwide, 157 Cal.App.4th 1471 (2007) (settlement negotiations; not an offer to settle if not intended as compromise)
- Renz v. 33rd Dist. Agricultural Assn., 39 Cal.App.4th 61 (1995) (damages in continuing nuisance up to cessation consistent with Civil Code 3283)
- Baker v. Burbank-Glendale-Pasadena Airport Authority, 39 Cal.3d 862 (1985) (continuing nuisance damages; dicta about accrual limitations)
- Santa Fe Partnership v. Arco Products Co., 46 Cal.App.4th 967 (1996) (limitations on diminution-in-value damages in continuing nuisance case)