Baugh v. Garl

• Decision Date: 13 March 2006
• Docket Number: No. B176714.,B176714.
• Citation: 40 Cal.Rptr.3d 539,137 Cal.App.4th 737
• Court: California Court of Appeals Court of Appeals
• Parties: Jason BAUGH et al., Plaintiffs and Respondents, v. Keith GARL, Defendant and Appellant.

40 Cal.Rptr.3d 539

137 Cal.App.4th 737

Jason BAUGH et al., Plaintiffs and Respondents, v. Keith GARL, Defendant and Appellant.

No. B176714.

Court of Appeal, Second District, Division 6.

March 13, 2006.

McCarthy & Kroes, R. Chris Kroes, Santa Barbara, Thomas M. Fitch and Scott London, for Defendant and Appellant.

Price, Postel & Parma, Todd A. Amspoker, Craig A. Parton and Timothy E. Metzinger, Santa Barbara, for Plaintiffs and Respondents.

GILBERT, P.J.

Parties litigate their dispute over water rights despite a settlement agreement signed years earlier. The trial court resolves the dispute by enjoining the defendant from tapping into plaintiffs' pipeline that carries water to plaintiffs' property. Because the action is one in equity, defendant is not entitled to a jury trial. Plaintiffs are entitled to attorney fees because they sought to enforce the settlement agreement which contains an attorney fees clause. We affirm.

FACTS

Janette Keiper, as trustee for her family trust, is the owner of a 20-acre parcel of property near Goleta. Jason and Sylvia Baugh are Keiper's tenants. Keiper's parcel is served by a water line from Strawberry Spring (hereafter "pipeline"). The pipeline is the sole source of water for the parcel. The pipeline runs through an easement over a parcel owned by Keith Garl.

In 1989, Keiper's predecessors in interest brought an action against Garl alleging he was unlawfully taking water from the pipeline. The parties settled the action in 1990. Under the settlement agreement, Garl agreed not to take any more water from the pipeline. The agreement expressly provided it would bind and inure to the benefit of the parties and their successors and assigns.

In spite of the agreement, Garl resumed taking water from the pipeline. On July 31, 2002, the Baughs and Keiper (hereafter collectively "the Baughs") filed the instant action for injunctive relief and damages against Garl. Garl and a neighboring landowner, Gary Anderson, cross-complained asking the trial court to declare they each have a right to one-tenth of all water flowing from Strawberry Spring and the right to use the pipeline. Garl also claimed he was not using the Baughs' pipeline. Instead, he said he was using an independent parallel pipeline.

On the Baughs' motion, the trial court decided to hear the equitable claims first without a jury. After an extensive hearing, the trial court ruled in favor of the Baughs and against Garl and Anderson on the complaint and cross-complaint. The Baughs elected not to pursue damages, and final judgment was entered. The judgment permanently enjoins Garl from connecting to the pipeline or any "offshoot" of the pipeline.

Only Garl appeals.

DISCUSSION

I

Garl contends the trial court erred in denying his request for a jury trial.

The California Constitution guarantees the right to a jury trial. (Cal. Const., art. I, § 16.) But the right applies only to a civil action as it existed at common law in 1850, when our Constitution was adopted. (Martin v. County of Los Angeles (1997) 51 Cal.App.4th 688, 694, 59 Cal.Rptr.2d 303.) There is no right to a jury trial in an action in equity. (Ibid.) In determining whether the action is one triable by jury at common law, the court is not bound by the form of the action. (Ibid.) Instead, the court looks to the gist of the action; that is, the nature of the rights involved and the particular facts of the case. (Ibid.) Whether the action is legal or equitable is ordinarily to be determined by the type of relief to be afforded. (Ibid.)

Garl asserts the gist of the claim is not determined by his cross-complaint. (Citing Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, 197 Cal.Rptr. 463.) Assuming that to be true, Garl is not helped.

Here the gist of the Baughs' action was for enforcement of the 1990 settlement agreement, and to prevent interference with their rights as easement holders. It is true that the complaint requests damages and injunctive relief. But the prayer for relief is not conclusive. (Martin v. County of Los Angeles, supra, 51 Cal. App.4th at p. 694, 59 Cal.Rptr.2d 303.) That damages is one of a full range of possible remedies does not guarantee a right to a jury trial. (Ibid.) The Baughs ultimately waived their claim for damages, and the judgment only grants equitable relief. The gist of the action is in equity.

Nor does Code of Civil Procedure section 592 mandate a jury trial.¹ That section provides in part: "In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is ordered, as provided in this Code." Here the Baughs waived their claim for damages for breach of contract or injuries, and did not seek recovery of specific real or personal property.

Finally, Garl's reliance on Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 21 Cal.Rptr.2d 127, is misplaced. There the question was whether a party claiming to have acquired a prescriptive easement is entitled to a jury trial. The court determined that at common law an equitable action to quiet title to a nonpossessory interest, such as an easement, was generally not available. (Id. at pp. 124-125, 21 Cal.Rptr.2d 127.) The court stated that where the right to an easement is in substantial dispute, the right must be established by an action at law before an injunction will issue. (Id. at p. 124, 21 Cal.Rptr.2d 127.) The court also stated, however, that where the right to an easement is clear, it need not be established by an action at law as a prerequisite to an injunction. (Ibid.)

Here there is no substantial dispute that the Baughs have a right to an easement. Thus no action at law was necessary as a prerequisite to an injunction.

Contrary to Garl's assertion, the Baughs did not admit that the gist of the action is one at law. The Baughs' counsel stated in his trial brief: "In essence this is a simple legal issue concerning Garl's compliance with the Settlement Agreement." Counsel merely stated that the case presented issues that could be decided as a matter of law by the trial court without a jury. This does not mean that the Baughs' case was one at law.

II

Garl contends the trial court erred in awarding attorney fees to the Baughs.

The 1990 settlement agreement provides for an award of fees to the prevailing party in "any action ... commenced to enforce or interpret any of the provisions of this Settlement Agreement...." The trial court found that Garl breached the settlement agreement by tapping into the Baughs' pipeline. The court awarded the Baughs $200,000 in attorney fees.

Garl argues the award of fees was improper because the Baughs' equitable action was not to "enforce or interpret" any of the provisions of the settlement agreement. He points out that a party is not entitled to recover fees except where authorized by statute or agreement. (Citing Estate of Gerber (1977) 73 Cal.App.3d 96, 117, 140 Cal.Rptr. 577.) He also points out an attorney fees clause that is limited to actions to enforce the contract will not support an award of fees for tort causes of action. (Citing Moshonov v. Walsh (2000) 22 Cal.4th 771, 775, 94 Cal.Rptr.2d 597, 996 P.2d 699.)

But here, as the trial court found, the Baughs' action was to enforce the settlement agreement. In the settlement agreement, Garl agreed to "cease and refrain ... [f]rom installing any pipe, connection, fitting, or other device for the purpose of taking water from the Pipeline; and ... [f]rom taking water from the Pipeline." The Baughs brought and prosecuted this action because Garl did just that.

Garl argues attorney fees are not recoverable in injunction cases. He cites Santisas v. Goodin (1998) 17 Cal.4th 599, 615, 71 Cal.Rptr.2d 830, 951 P.2d 399, for the proposition that Civil Code section 1717 applies only to actions that contain at least one contract claim. Garl's argument appears to confuse cause of action with remedy. Here the Baughs claimed that Garl breached the settlement agreement. That the remedy was specific enforcement of the contract, instead of damages, does not eliminate an award of fees in an action to enforce the contract. (See Texas Commerce Bank v. Garamendi (1994) 28 Cal. App.4th 1234, 1246, 34 Cal.Rptr.2d 155 [contract provision for attorney fees in an action to enforce the contract required an award of fees under Civ.Code, § 1717 where the only remedy was declaratory relief].)

Garl's reliance on Grigsby v. King (1927) 202 Cal. 299, 260 P. 789, is misplaced. There a school teacher brought an action to enjoin the school board from denying her status as a permanent teacher. The trial court refused an injunction, in part, because an injunction is not available for breach of a contract for personal services. Our Supreme Court determined an injunction should issue, not based on contract, but because the school board exceeded its statutory authority. The Court noted that viewing the matter as a question of the board's statutory authority disposes of the objection that an injunction is not available as a remedy in an action "to enforce a contract for personal services...." (Id. at p. 307, 260 P. 789.)

Grigsby has nothing to do with this case. This case does not involve enforcement of a personal services contract. Nor does it stand for the proposition that an action for an injunction is not an action to enforce the contract. It is. That is why attorney fees are available.

Garl cites the concurring opinion of Justice Carter in LeFave v. Dimond (1956) 46 Cal.2d 868, 871, 299 P.2d 858, for the proposition that "attorney[] fees are not allowed in injunction cases ...." The court there was concerned with whether fees are a proper element of damages under claim and delivery statutes. The court was not concerned with an award of fees pursuant to an attorney fees clause.

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