Opinion
B197107
9-8-2008
UNION VENTURES, LLC, Plaintiff and Appellant, v. ADIR INTERNATIONAL EXPORT LTD., Defendant and Respondent.
Greenberg Traurig, Eric V. Rowen, Scott D. Bertzyk and Karin L. Bohmhodt for Plaintiff and Appellant. Brown Winfield Canzoneri Abram, Wayne S. Grajewski and Aimee Y. Wong for Defendant and Respondent.
Not to be Published
Union Ventures, LLC appeals from the judgment entered after the trial court granted a motion for summary adjudication in favor of ADIR International Export Ltd., doing business as La Curacao (La Curacao) on Union Venturess cause of action for enforcement of an easement and Union Ventures dismissed its remaining claims with prejudice. Union Ventures contends the trial court erred in ruling that Civil Code section 811, which provides "[a] servitude is extinguished . . . [¶] 1. [b]y the vesting of the right to the servitude and the right to the servient tenement in the same person," operated to extinguish an express easement benefiting Union Venturess property and burdening La Curacaos property. We affirm.
Statutory references are to the Civil Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In the mid-1960s Paul E. Feder and his associates purchased a number of separate properties located at 1605-1625 West Olympic Boulevard and 918 Beacon Avenue near downtown Los Angeles. By 1970 the properties had been rezoned and subdivided into three parcels, parcels A and B at 1605-1625 West Olympic Boulevard and parcel C, the Beacon Avenue address, which abutted parcels A and B. Parcel A was owned by Fab Development Company; parcel B was owned by Feder and his wife, Margaret Feder; parcel C was jointly owned by Feder and Beta Investment Corp.
Parcel A (0.88 acres) is on the northeast corner of West Olympic Boulevard and Beacon Avenue. Parcel B (0.88 acres) is immediately to the east of parcel A along West Olympic Boulevard; it is on the northwest corner of West Olympic Boulevard and Union Avenue. Parcel C (1.04 acres) is to the north of parcels A and B and stretches from Beacon Avenue on the west to Union Avenue on the east.
In 1970, in a "Declaration of Establishment of Covenants and Reservations Affecting Real Property," the respective owners created express easements among parcels A, B and C to further a proposal to develop an office park consisting of buildings on all three parcels. Specifically, a ground floor easement ran as a causeway between the planned structures on parcels A and B and along their border with parcel C, "for pedestrian usage for ingress and egress to and from the shops, stores, offices and parking structures located in and on each of the buildings constructed on the entire property." Thus, pedestrians could access parcel C from West Olympic Boulevard across parcels A and B.
In the same 1970 instrument establishing the ground floor easement, the parties created a reciprocal easement on the higher floors of the proposed buildings to provide direct access between them and to a common parking lot. Upon completion of the buildings on parcels A and B, and pursuant to this covenant, the two buildings shared a common parking structure and were connected at the second, third and fourth floors. Parcel C, never having been developed according to plan, was used as a parking lot and benefited from access across parcels A and B via the ground floor easement to West Olympic Boulevard.
By 1986 title to all three parcels had been transferred to Fab Enterprises, a real estate management and investment company. According to Feder, Fab Enterprisess general partner, the consolidation of ownership was done to obtain financing for the buildings on parcels A and B. Fab Enterprises was ultimately unable to meet its loan obligations for the buildings, and in 1992 the properties were scheduled to be sold at a nonjudicial foreclosure sale. On January 19, 1993 Agot Corporation acquired all three parcels from Fab Enterprises, apparently hoping to refinance the outstanding loans. Whatever efforts may have been made to accomplish that result were unsuccessful; Home Savings acquired parcels A and B in a nonjudicial trustees sale on January 28, 1993. Agot retained parcel C, which continued to be used as a parking lot.
Parcels A and B were thereafter conveyed to La Curacao. In 2002 Agot sold parcel C to Union Ventures. Either prior to or after this 2002 conveyance — the timing is vigorously disputed by the parties — La Curacao removed and sealed over the door leading to the causeway across its property and expanded its La Curacao department store into the area that had previously been used to access the parking lot on parcel C.
Union Ventures brought this action in September 2003, alleging causes of action for declaratory and injunctive relief, enforcement of an easement pursuant to section 809, implied easement, easement by necessity and prescriptive easement. The operative second amended complaint, which omitted the claim for easement by necessity, was filed on September 20, 2004.
La Curacao moved for judgment on the pleadings on Union Venturess third cause of action for enforcement of an easement, contending as a matter of law the easement had been extinguished by merger when the three parcels came under common ownership no later than 1986. Union Ventures opposed the motion, arguing, because La Curacao was relying on matters outside the pleadings to support its assertion the easement had been extinguished, the issue should be raised by a motion for summary adjudication, not for judgment on the pleadings. The trial court agreed and denied the motion without prejudice.
La Curacao thereafter moved for summary adjudication, again contending the easement had been extinguished by merger. On July 29, 2005, after taking the matter under submission, the trial court granted the motion "pursuant to Civil Code Section 811."
Union Ventures and La Curacao continued to litigate Union Venturess remaining claims, as well as a cross-complaint filed by La Curacao. However, in December 2006 the parties stipulated that La Curacao would dismiss its cross-complaint without prejudice and Union Ventures would dismiss with prejudice its remaining causes of action to permit Union Ventures to "appeal the Order granting Summary Adjudication of Plaintiffs Third Cause of Action for an Express Easement alleged in the Second Amended Complaint." Pursuant to this stipulation the trial court entered judgment on December 22, 2006.
The parties agreed La Curacao could refile its cross-complaint if the ruling granting summary adjudication on the express easement were overturned on appeal.
DISCUSSION
1. Standard of Review
We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Code Civ. Proc., § 437c, subd. (c).) On review of an order granting summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing partys evidence and strictly scrutinizing the moving partys. (ORiordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
2. The Trial Court Properly Granted Summary Adjudication on Union Ventures Cause of Action for Enforcement of the 1970 Express Easement
La Curacaos contention the 1970 express easement over its property has been extinguished is ground in sections 805 and 811. Section 805 provides a "servitude thereon cannot be held by the owner of the servient tenement." Section 811, subdivision 1, provides "[a] servitude is extinguished . . . [b]y the vesting of the right to the servitude and the right to the servient tenement in the same person." These Civil Code provisions are a codification of the common law doctrine of merger. The rationale for this doctrine is simple: "If the person entitled to the easement becomes the owner of the servient tenement, the easement is gone, for one cannot have an easement on ones own property." (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property § 421, p. 494.)
Faced with this straightforward principle of real property law, Union Ventures advances several alternative arguments to challenge the trial courts order granting summary adjudication of its express easement claim. First Union Ventures asserts, as a matter of law, there was never common ownership of the parcels subsequent to the creation of the original express easement such that sections 805 and 811 would operate to extinguish the easement. Second, it argues, even if there was common ownership, the easement was not extinguished because the parties did not intend it to be extinguished (or, at minimum, a triable issue of fact remains as to this intent). Finally, Union Ventures contends, even if extinguished by common ownership, the easement was revived upon re-division of the property.
a. The property was held by a common owner within the meaning of sections 805 and 811, subdivision 1
Emphasizing that, at the time the three parcels were alleged to have come under common ownership, parcels A and B were encumbered by a mortgage or deed of trust, while parcel C was not, Union Ventures argues, there was never unity of title under Fab Enterprises. To support its position, Union Ventures cites well-established authority that "[i]n order that unity of title to two estates should extinguish an existing easement, the ownership of the two estates should be coextensive, equal in validity, quality, and all other characteristics." (Cheda v. Bodkin (1916) 173 Cal. 7, 17; see also Beyer v. Tahoe Sands Resort (2005) 129 Cal.App.4th 1458, 1473 ["the merger doctrine (whereby existing easements are extinguished when title to the easement and the servient tenement merge in the same person) requires a unity of title, in that title and ownership of both tenements must be coextensive and equal in validity, quality, right to possession, and all other characteristics"].)
The requirement of coextensive, equal ownership, however, does not preclude merger in this case because, unlike the common law, under California law no title actually passes by creation of a mortgage or deed of trust. "Notwithstanding an agreement to the contrary, a lien, or a contract for a lien, transfers no title to the property subject to the lien." (§ 2888; see Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149 [trust deed securing loan made to owner of real property creates lien that "did not transfer any interest in title"]; see generally 4 Witkin, Summary of Cal. Law (10th ed. 2005) Security Transactions in Real Property, § 3, p. 793 ["[i]n California and other lien theory jurisdictions, no title passes by the mortgage; the mortgagee only acquires a lien"].) Simply put, ownership is unaffected by the existence of an encumbrance — either a mortgage or deed of trust — on the buildings located on parcels A and B; no property interest was conveyed to the lienholder, who had merely secured a loan with the right of foreclosure if the terms of the loan or related security instruments were breached.
As Union Ventures observes, although never applied in California (because we are a lien theory jurisdiction), some states do recognize a so-called "mortgage exception" to the merger doctrine. This exception provides that "merger will not take place if there is an outstanding security interest in the property or estate benefited or burdened." (Lewitz v. Porath Family Trust (Colo. Ct. App. 2001) 36 P.3d 120, 123.) However, Lewitz succinctly describes the rationale for this exception as "designed to protect the mortgagee of the dominant estate, should the mortgage interest become possessory, and to preserve the value of the mortgagees interest." (Ibid.; italics added.) In contrast, Union Ventures urges us to protect the mortgagee of the servient estate — an estate, which, by all appearances, increased in value upon extinguishment of the easement that burdened it. Thus, even if, contrary to the express terms of section 2888, California were to adopt a "mortgage exception" to protect the security interests of secured lienholders of dominant estates, the doctrine would be inapplicable to this case.
Although the 1970 instrument established reciprocal easements among the three parcels, the ground floor easement across parcels A and B was plainly for the benefit of parcel C and does not burden parcel C in any meaningful way, effectively giving rise to a dominant (benefited) and servient (burdened) estate.
Alternatively, Union Ventures contends, although there may have been unity of ownership, there was no unity of title sufficient to extinguish the easement during the period Fab Enterprises owned all three parcels (from at least 1986 to 1993) because parcels A and B were held subject to the possessory interests of leasehold tenants on those properties (that is, there were tenants renting space in the two office buildings), while parcel C (the parking lot) had no tenants. In its statement of additional material facts submitted in opposition to La Curacaos motion, Union Ventures asserted, relying on Feders declaration, "most of the office space in both buildings" was leased during the late 1970s and 1980s and explained that tenants, customers and vendors used the easement on the ground floor to access the buildings during that time. Accordingly, relying on out-of-state authority and the Restatement of Property, Union Ventures argues, the three parcels cannot have been "equal in validity, quality, right to possession, and all other characteristics."
In his declaration Feder stated he recalled the occupancy rate was more than 80 percent in the late 1980s.
This further argument fails for several reasons. First, while Feders declaration provides evidentiary support for Union Venturess assertion the office buildings located on parcels A and B had tenants in the 1980s, nothing in his declaration or in any other submission by Union Ventures indicates the buildings had any tenants during the final years of their common ownership by Fab Enterprises. In fact, Feder explained that "[d]ue to the riots in 1991, many of the tenants vacated," thus leading to the default in loan payments. Thus, the factual predicate for Union Venturess right-of-possession argument is missing.
Second, in its argument in opposition to summary judgment in the trial court, Union Ventures did not contend the existence of tenants with leasehold interests in portions of the office buildings precluded application of the doctrine of merger. Having failed to present this theory in the trial court, Union Ventures may not raise this argument now. (See, e.g., Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412 [failure to raise issue or argument in the trial court results in forfeiture on appeal]; see also Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 988-989 [party may not change theory of a cause of action on appeal and raise issue not presented in opposition to summary judgment].)
In its opposition memorandum Union Ventures referred generally to "numerous exceptions and limitations to the doctrine of merger" and argued none of the cases cited by La Curacao addressed those exceptions, including "the right of possession." No other mention of this exception to the merger doctrine is contained in Union Venturess opposition papers.
Finally, the right-of-possession exception to the merger doctrine now asserted by Union Ventures, as discussed in Restatement of Property section 497, Restatement Third of Property section 7.5 and non-California authorities such as Guy v. State (Del. Super. Ct. 1981) 438 A.2d 1250, 1253, cited by Union Ventures, applies only when existence of the possessory interest precludes the owner of the property from using the property in the manner authorized by the easement without reference to the existence of the easement. (See, e.g., Rest., Property, Servitudes (1944) § 497, com. f.) Thus, if Fab Enterprises had leased all of parcels A and B to a single tenant for a term of years, even though it continued to own those properties, its right as owner of parcel C to cross parcels A and B would depend on the continued existence of the ground floor easement. The existence of multiple tenants in its office buildings located on parcels A and B, however, is quite different. The presence of those tenants would not in any way interfere with Fab Enterprisess legal right, as the owner of parcels A and B, to use non-office, non-leased portions of the properties to provide access to parcel C. This is a classic situation for application of the doctrine of merger.
b. The parties subjective intent does not determine the applicability of the doctrine of merger
Relying on Ito v. Schiller (1931) 213 Cal. 632, Union Ventures asserts, even if there was common ownership of all parcels subsequent to the creation of the express easement, the easement would not be extinguished absent proof of the intent of the owner to do so: "A merger does not always follow the union of a greater and lesser estate in the same ownership. The question is one of intention, actual or presumed of the person in whom the interests are united." (Id. at p. 635.) In Ito a property owner leased land to a tenant and later leased back a portion of the leased premises in return for a monthly credit to the lessees account as rent. The Ito Court held the portion of the premises leased back to the owner was not merged into the owners greater estate because "[the owners] interests would not have been [served] by a merger as they would have been faced with possible loss of the rentals payable under the lease for the remainder of the term." (Id. at p. 636.)
Contrary to Union Venturess argument, Ito v. Schiller, supra, 213 Cal. 632 does not import an intent requirement into the statutory doctrine of merger. The factual situation presented by Ito, in which the owner of property was also a subtenant as to a portion of the property served by the easement, is fundamentally different from the true common ownership of parcels A, B and C created by Fab Enterprisess acquisition of all three properties by 1986. Indeed, in light of its unique context, the Ito Court did not address section 805 and 811, which by their terms do not depend upon the owners intent to effect extinguishment by merger. Union Ventures has cited no authority to suggest that application of either statute should do so.
To the contrary, section 805 has been applied, not as a rule of interpretation or a mere presumption in favor of extinguishment, but as a "rule of substantive law." (People ex rel. Dept. Pub. Wks. v. Younger (1970) 5 Cal.App.3d 575, 586 [rejecting appellants contention § 805 would not operate to extinguish an easement when written instrument re-conveying servient estate might suggest contrary intent].) We see no reason why it should be regarded otherwise. The language of sections 805 and 811 is unambiguous: A servitude cannot be held by the owner of the servient estate.
Union Ventures urges us to consider the possible inequities of applying sections 805 and 811 "woodenly," without accounting for the intent of the parties. But there is no apparent threat of injury to the owner of the merged estate such that a requirement of intent should be read into sections 805 and 811. After merger and upon re-division of the property, the owner may always re-create easements if that is what is intended.
c. The express easement was not "revived" on re-division of the property
Shifting its focus from Fab Enterprisess acquisition of all three parcels to the period following the January 2003 re-division of the property after Agot lost parcels A and B to Home Savings, Union Ventures argues an easement extinguished by merger may nonetheless by revived upon re-division of the previously servient and dominant estates. Cases cited by Union Ventures — for example, Renden v. Geneva Development Corp. (1967) 253 Cal.App.2d 578, 587 (Renden) — although inartfully phrased in terms of "revival," in fact involve easements that were suspended, not extinguished, because ownership of the affected estates by a single entity was not fully coextensive and equal. The Renden court explained, "[A]s the Restatement [of Property] . . . point[s] out, an easement is not extinguished by merger if the estates in possession in both the dominant and servient tenements, acquired by one person, are such in character that one will or may terminate before the other. In such a case the easement is merely suspended and liable to revive when one of the two estates terminates." (Renden, at p. 587, fn. 8.) Unlike the situation in Renden, nothing in the record here suggests Fab Enterprisess ownership in any one of the parcels was to terminate before another, except, of course, to the extent Fab Enterprises itself elected to permit that to occur. Even if merger is not effected because estates are not "coextensive and equal in validity, quality, right to possession, and all other characteristics" (Beyer v. Tahoe Sands Resort, supra, 129 Cal.App.4th at p. 1473), a single entity may have interests in both dominant and servient estates such that easement becomes meaningless — that is, access is exclusive and unrestricted — until termination of one of the estates and re-division of the property.
Any more general notion of "easement by revival" — that is, other than in circumstances in which an easement is "liable to revive" because it had never been extinguished — is but one aspect of the theory of implied easements, according to which open, visible and continuous use (and, in some cases, intent) form the basis for the creation of the easement. This is precisely the holding in Rosebrook v. Utz (1941) 45 Cal.App.2d 726, cited by Union Ventures, in which the court found, upon re-division of two estates, an easement across the servient estate that had originally been created by express grant was created anew as an easement by implication. Because the easement had been "openly, visibly and continuously used for the purpose of ingress and egress [across the servient estate] . . . an implied or quasi easement was thereby created appurtenant to the [dominant estate]." (Id.. at p. 729.) Merely because the same easement came into being by implication as was previously created by express grant, however, does not mean it belongs to some obscure class of "revived" easements (a term nowhere used in that opinion).
Silveira v. Smith (1926) 198 Cal. 510, another cased cited by Union Ventures to support its revival theory, likewise concerns an implied easement. The facts of Silveira are similar to those of the instant case. Continuous use of an easement by express grant was made even after titles to the servient and dominant estates were united under a single owner. The Supreme Court observed, "[T]he use or uses of said roadway and Embarcadero continued in connection with these several parcels of land in the form of a quasi-easement for the benefit thereof . . . . [W]hen the [owner] undertook to convey the title to these several and separate tracts of the original rancho and of his united ownership for a time thereof, he thereby revived into a full easement the former right of the owners and occupants of these separate parcels of land in and to the use of said roadway and Embarcadero to the full extent of the continuous use and enjoyment thereof during the entire period wherein these several changes in the title and ownership of the several tracts were taking place." (Id. at p. 514.)
Thus, the scope of the "revived" easement in Silveira v. Smith, supra, 198 Cal. 510 was determined by the "extent of the continuous use and enjoyment thereof" during the time dominant and servient estates were held by a single owner. This is plainly not the language of express easements, but of implied (or quasi-) easements. In fact, Silveira is frequently cited in the case law as articulating the elements of an implied easement. (See, e.g., Piazza v. Schaefer (1967) 255 Cal.App.2d 328, 332.)
This understanding is fully consistent with the general views summarized in the Restatement Third of Property: "A servitude is terminated when all the benefits and burdens come into a single ownership. Transfer of a previously benefited or burdened parcel into separate ownership does not revive a servitude terminated under the rule of this section. Revival requires re-creation under the rules [governing the creation of servitudes]." (Rest.3d Property, Servitudes, § 7.5, p. 365.) Specifically, re-creation of an express easement requires a written instrument conveying the easement in conformity with the statute of frauds. (See § 1624, subd. (a)(3) [agreement for interest in real property must be in writing and subscribed by party to be charged]; Hayward v. Mohr (1958) 160 Cal.App.2d 427, 432 [express creation of an easement is subject to the statute of frauds and must comply with the requirements imposed on an instrument to convey an interest in real property].) However, "[i]f the circumstances are otherwise appropriate for creation of a servitude by implication, the fact that the servitude previously existed may warrant the inference that the parties intended to re-create it on severance." (Rest.3d Property, Servitudes, § 7.5, p. 366.) Thus, intent, which is an element in the formation of some implied easements, may be inferred when the other requirements of the implied easement are present.
d. Union Ventures cause of action for enforcement of an easement concerned the express easement created in 1970, not an implied easement following re-division of the parcels
For the first time in its reply brief, Union Ventures argues, even if revival is properly associated with a claim for an implied easement, summary adjudication was improper because its third cause of action for "enforcement of an easement" was not limited to express easements, but included an implied easement created (or "revived") upon re-division of the dominant and servient estates. In essence, Union Ventures urges us to read its third cause of action as embodying two separate claims, one for express easement and one for an implied easement under a theory of revival. Certainly, if this were as far is it went, Union Ventures would not be precluded by the manner in which it pleaded its complaint from having both theories decided on their merits. (See Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364 [plaintiff who alleges defendants single wrongful act invaded two different rights has stated two causes of action even though pleaded in a single count of the complaint]; Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848-1855 [same].) Moreover, we will generally construe the controlling pleading broadly to determine whether issues addressed by a plaintiff in opposing summary judgment are encompassed by that document. (See, e.g., Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1257.)
However, in connection with La Curacaos motion for summary adjudication in the trial court, Union Ventures plainly confined its third cause of action to a theory of express easement. For example, on July 7, 2005 the trial court issued its tentative ruling regarding the motion, indicating its intent to grant the motion in part and deny it in part. As characterized by Union Ventures in a supplemental memorandum filed in response to the tentative decision, "[T]his Courts tentative decision was to grant Defendants Motion for Summary Adjudication on Plaintiffs third cause of action for an express easement on the grounds that the easement was extinguished when all three parcels were purportedly merged under one owner." La Curacaos supplemental memorandum similarly described the tentative decision as "grant[ing] the Motion as to the purported 1970 express easement, which forms the sole basis for Plaintiffs Third Cause of Action for enforcement of an express easement."
La Curacaos supplemental memorandum noted the courts tentative ruling also indicated "that La Curacaos Motion would be denied as to an express easement purportedly created by the 1986 Covenant." The trial court subsequently modified this portion of its intended ruling.
At the very outset of the hearing on La Curacaos motion, the court attempted to clarify the issues presented: "What we have here is a motion for summary adjudication as to the third cause of action for enforcement of express easement." Counsel for La Curacao replied, "Thats right," and counsel for Union Ventures did not disagree. The trial court then questioned both parties counsel about the scope of the third cause of action, specifically whether it was limited to a theory of express easement based on the 1970 covenant. Again, both counsel agreed that the third cause of action was for express easement and, as such, was predicated on the 1970 instrument.
At a subsequent point in the hearing the court inquired, "Thats why we have to use the word express easement because its got to be expressed. If its simply intentional, then perhaps its another kind of an easement, not express. Is that what youre saying?" Counsel for La Curacao agreed with the court and noted the appellate case law, discussed above, that recognizes, following extinguishment by merger, upon re-division any new easement would be "[im]plied or quasi easement. It is not an express easement." In response counsel for Union Ventures argued there was no unity of title and therefore no merger, but did not contest the characterization of the theory of easement upon re-division of the property, based on the parties intent, as one of implied easement.
As discussed, the courts July 29, 2005 order granting summary adjudication as to the third cause of action was quite brief. However, in its motion for reconsideration (based upon the discovery of additional evidence) filed in October 2006, Union Ventures described that ruling as granting summary adjudication on either its "Cause of Action for Enforcement of an Express Easement" or its "Cause of Action for Establishment of an Express Easement." Whatever the minor variation in the other words used, Union Ventures was consistent in limiting the scope of the affected cause of action to one for "express easement."
Finally, after the denial of its motion for reconsideration, Union Ventures stipulated to the dismissal with prejudice of all of its remaining causes of action, including its cause of action for an implied easement, to appeal the trial courts adverse ruling on its express easement theory. The written stipulation, signed by Union Ventures, expressly refers to the "Third Cause of Action for Express Easement." If Union Ventures did not intend for its cause of action to be understood as so limited, it had an obligation to object at this point — if not far earlier in the proceedings. We reasonably infer from the fact that it did not object (as well as from its opening brief in this court, which states, "without an express easement in the first instance, there could be no revival") that this description was fully in accord with Union Venturess intent in pleading its third cause of action.
Finally, in its reply brief Union Ventures urges us to treat the matter not as a new theory for enforcing its right to an easement, but rather as an alternative remedy. However, easement by implication (like easement by prescription or express grant) is not a remedy, but a cause of action (the remedy sought here, of course, being enforcement of the easement). Thus, even if we were to suspend our disbelief that Union Ventures intended its enforcement action to comprise both the express and implied claims, we will not generally consider points raised for the first time by an appellant in a reply brief. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["[o]bvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant"]; Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368 [appellants failure to raise issue in opening brief ordinarily waives issue on appeal]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 ["[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument"].)
DISPOSITION
The judgment is affirmed. La Curacao is to recover its costs on appeal.
We concur:
WOODS, J.
ZELON, J.