Ellison v. Ventura Port District

• Decision Date: 01 May 1978
• Citation: 80 Cal.App.3d 574,145 Cal.Rptr. 665
• Court: California Court of Appeals Court of Appeals
• Parties: Ray ELLISON, Plaintiff and Respondent, v. VENTURA PORT DISTRICT, Defendant and Appellant. Civ. 50704.

Page 665

145 Cal.Rptr. 665

80 Cal.App.3d 574

Ray ELLISON, Plaintiff and Respondent, v. VENTURA PORT DISTRICT, Defendant and Appellant.

Civ. 50704.

Court of Appeal, Second District, Division 5, California.

May 1, 1978.

Hearing Denied July 13, 1978.

Romney, Smith & Drescher, Philip C. Drescher and W. Stephen Onstot, Santa Paula, for defendant and appellant.

Heily, Blase, Ellison & Wellcome, A Professional Corp. and DeWitt F. Blase, Jr., Oxnard, for plaintiff and respondent.

STEPHENS, Associate Justice.

On December 23, 1970, plaintiff Ray Ellison (Ellison) filed an amended complaint against the City of San Buenaventura (City) and the Ventura Port District (District) for injunctive relief, specific performance, and damages. District owns and operates the Ventura Marina (Marina). Ellison owns property in the Ventura Keys Waterfront Homes subdivision (Keys) adjoining the Marina to the north.

City cross-complained against Ellison and District for declaratory relief alleging the existence of a controversy regarding maintenance of a navigation and drainage channel from the Keys through the Marina to the open ocean under a condemnation settlement agreement (agreement). Said agreement was between the original owners of the land now occupied by the Marina and Keys and the District. The original trial resulted in a decision recognizing the obligation of the District to maintain the channel in a navigable condition subject to limitations and restrictions resulting from the placement of water and sewer facilities located under the channel, the unavailability and expense of suitable dredging equipment, and the occurrence of natural and man-caused phenomena over which District had no control. The original judgment was silent, however, on the enforcement of District's obligation.

Ellison appealed from the judgment. The resulting decision is reported in 48 Cal.App.3d 952, 122 Cal.Rptr. 167 (Ellison I ). ¹ In Ellison I we concluded that the clause limiting the obligation of District to maintain the channel was an addition engrafted onto the agreement contrary to the express agreement of the parties and for all practical purposes nullified District's obligation. Thus, we held that the judgment should be modified by deleting the said clause. In addition, since the trial court had made no disposition relative to the relief sought in Ellison's complaint, we could not merely modify and affirm the trial court's judgment. We therefore reversed and remanded for disposition of the issues raised by Ellison as to damages, specific performance and injunctive relief. A petition for rehearing was denied.

On remand, the trial court denied without prejudice a motion by Ellison for leave to file an amended complaint and reopen evidence as to damages. The trial court, however, granted a motion by District to amend its answer to present the defense of impossibility of performance to specific performance of the agreement. The trial court entered findings of fact, conclusions of law and a judgment in favor of Ellison against District.

District appeals from the judgment. District contends that Ellison lacks standing to sue, that a finding that Ellison is a proper party to bring this action on his own behalf and on behalf of others similarly situated is without evidentiary support, and that the judgment of specific performance is unsupportable, unwarranted and against public policy. District also moves the court to allow it to augment the record on appeal and to produce additional evidence.

DISCUSSION

We note preliminarily that Ellison does not appeal the trial court's refusal to allow him to file an amended complaint and reopen evidence as to damages. Thus, the only issues before the court are those raised by District in its appeal.

Ellison's Standing to Sue

District contends that Ellison is not a real party in interest and thus lacks standing to sue. The basis for District's contention is the language in the corporation grant deed from the District to the original owners of Ellison's property which purports to convey the navigation easement in gross to the original landowners. Since, the District argues, there is evidence, although not presented at either of the trials or on the first appeal, which shows that the navigation easement was not conveyed to Ellison, Ellison has no right to assert the interest of the holder of the navigation easement.

For reasons discussed below, we deny District's motion to augment the record on appeal and to produce additional evidence and find no merit in District's argument that Ellison lacks standing to sue.

The major fallacy in the District's argument is its characterization of the easement as only a navigation easement. It is clear from Ellison I that the channel was built and was to be maintained as a navigation and drainage channel. (48 Cal.App.3d 952, 956, fn. 2, 122 Cal.Rptr. 167.) The easement was by necessity and in fact one of navigation and drainage. It is also clear, and not contradicted by District, that the drainage easement was appurtenant to the land. ² Thus, no useful purpose would be served to find that the navigation element of the easement was in gross since Ellison would have standing to assert his rights under the drainage easement to require District to maintain the channel.

Even if we were disposed to find that the navigation element of the easement was in gross, which we are not, District would be estopped to raise this issue under the doctrine of the law of the case.

Generally, the doctrine of law of the case does not extend to points of law which might have been but were not presented and determined in a prior appeal. (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179, 18 Cal.Rptr. 369, 367 P.2d 865.) This general rule, however, is, subject to an important exception. The doctrine is held applicable to questions not expressly decided but implicitly decided because they were essential to the decision on the prior appeal. (Gore v. Bingaman (1942) 20 Cal.2d 118, 124 P.2d 17.) The question whether Ellison was a real party in interest and thus had standing to sue was necessarily involved in the first appeal and impliedly decided in favor of Ellison's standing. Thus District cannot now raise the issue on appeal.

Specific Performance

Initially, District contends that specific performance of the maintenance clause in the agreement should not be granted since Ellison can be adequately compensated in damages and thus has an adequate remedy at law. We find no merit in this contention. The covenant requiring District to build and maintain the navigation and drainage channel enhanced the value of the land retained by the original landowners and was a material factor which induced them to transfer the land on which the Marina was later built, at the price offered by District. The maintenance clause cannot be separated from the total transaction which was a contract to sell land. A presumption exists that the remedy at law is inadequate when the contract is for the sale of land. (Civ. Code, § 3387; 7 Witkin, Summary of California Law (8th ed. 1974) Equity, § 25, [80 Cal.App.3d 580] p. 5249.) Thus, we find that specific performance of the maintenance clause can be granted if all other principles governing the granting of such equitable relief are met.

Also District argues that equitable relief should not be granted since Ellison has not been irreparably injured. The concept of irreparable injury is more suitable in a discussion of injunctive relief than specific performance. It has been said that the term adds nothing to the concept of inadequacy of the legal remedy. (2 Witkin, California Procedure (2d ed. 1970) Provisional Remedies, § 51, pp. 1499-1500.) Thus, our discussion of the adequacy of Ellison's remedy at law also answers this contention of District.

District next contends that specific performance should not be granted since it requires a series of acts for which continuous supervision is necessary. California apparently follows the old rule against specific performance of contracts where the contracts stipulate a succession of continuous acts which require protracted supervision and direction by the court with the exercise of special knowledge, skill and judgment by the parties performing the acts. (Pacific Etc. Ry. Co. v. Campbell-Johnston (1908) 153 Cal. 106, 94 P. 623.) Mere statement of the rule, however does not resolve the issue. The question is whether the maintenance provision in the agreement which requires periodic dredging of the channel is similar to those types of contracts in which California has refused to allow the remedy of specific performance on the rationale that continuous supervision by the court would be required. A review of the pertinent California decisions leads us to conclude that the contract in issue is not of this type.

The following contracts have been refused specific performance on the grounds of requiring continuous supervision: Long Beach Drug Co. v. United Drug Co. (1939) 13 Cal.2d 158, 171-172, 88 P.2d 698 (exclusive distribution or sales agency); Poultry Producers, Etc. v. Barlow (1922) 189 Cal. 278, 289-291, 208 P. 93 (output poultry sales); Pacific Etc. Ry. Co. v. Campbell-Johnston, supra, 153 Cal. p. 113, 94 P. 623 (railroad construction or operation); Moore v. Tuohy (1904) 142 Cal. 342, 347-348, 75 P. 896 (citrus grove development); Stanton v. Singleton (1899) 126 Cal. 657, 665-667, 59 P. 146 (mine construction or operation); Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 303-305, 63 Cal.Rptr. 148 (automobile dealership); Whipple Rd. Quarry Co. v. L. C. Smith Co. (1952) 114 Cal.App.2d 214, 216, 249 P.2d 854 (rock quarry operation); Moklofsky v. Moklofsky (1947) 79 Cal.App.2d 259, 262-263, 179 P.2d 628 (contract of sale of real property-staircase construction), but see, contra, Gale v. Seymour (1949) 91 Cal.App.2d 727, 728, 205 P.2d 752 (paving a parking lot) distinguishing the M...