Wolford v. Thomas

• Citation: 235 Cal.Rptr. 422,190 Cal.App.3d 347
• Court: California Court of Appeals Court of Appeals
• Decision Date: 18 March 1987
• Parties: Peter WOLFORD et al., Plaintiffs and Appellants, v. Jeffrey THOMAS et al., Defendants and Respondents. A014919.

Page 422

235 Cal.Rptr. 422

190 Cal.App.3d 347

Peter WOLFORD et al., Plaintiffs and Appellants, v. Jeffrey THOMAS et al., Defendants and Respondents.

A014919.

Court of Appeal, First District, Division 3, California.

March 18, 1987.

Lawrence W. Schonbrun, Berkeley, for plaintiffs and appellants.

Gary J. Near, Law Offices of Near & Kaus, San Francisco, for defendants and respondents.

MERRILL, Associate Justice.

Plaintiffs and appellants, Peter and Marguerite Wolford (Wolfords), filed a complaint for abatement of both a public and private nuisance, injunctive and declaratory relief, and damages against defendants and respondents Jeffrey and Evelyn Thomas (Thomases).

In their at-issue memorandum, the Wolfords requested a jury trial. At trial the Thomases made a motion for a court trial, which motion was granted.

During the course of the trial, the Thomases also moved the court to dismiss the Wolfords' cause of action for a public and private nuisance on grounds of res judicata. The Wolfords alleged both a public and private nuisance for the acts of the Thomases in constructing a penthouse addition on their property and in violating the building, housing, planning and zoning codes of the City and County of San Francisco. The trial court declined to dismiss this cause of action but it did rule that the Court of Appeal's decision in Wolford v. Board of Permit Appeals (Feb. 5, 1980) 1 Civ. 40443, 42771 [unpub. opn.], that building permits were validly issued to the Thomases, was res judicata.

At the conclusion of the presentation of the Wolfords' evidence, the Thomases moved for judgment ¹ on all the causes of action which alleged either a public or private easement. The trial court ruled that there was no evidence presented by the Wolfords which would establish an easement and granted the Thomases' motion for judgment on these causes of action. In addition, at the conclusion of the trial, the trial court found that the Wolfords were entitled to no relief on the cause of action alleging a public and private nuisance. Judgment was then entered in favor of the Thomases on all causes of action and the Wolfords appeal.

I

In 1962, upon the death of Peter Wolford's mother, the Wolfords became the owners of a three-story apartment building at 1037-1039 Broadway on San Francisco's Russian Hill. In 1963, the Wolfords considered moving from their apartment on the second floor to the third floor. They consulted a contractor about changing the configuration of the third-floor apartment in order to maximize the view. By making the living room the bedroom and vice versa, and by enlarging the windows in the new living room, the Wolfords would be able to enjoy an expansive view of the San Francisco skyline, the San Francisco Bay and the East Bay Hills.

Before beginning construction, Peter Wolford approached his neighbor Henrik Bull (Bull) who lived in the adjacent two-story building. Peter Wolford wanted to know whether Bull had any plans to build on his roof. Bull replied that he had no such plans. Thereafter, Peter Wolford asked Bull for "a letter [giving] me his permission to enlarge the living room."

Bull gave Peter Wolford a letter dated August 1, 1963, which reads as follows: "Permission is hereby granted by me for you to enlarge your existing windows overlooking my roof and on our mutual property line; my building being at 1033-1035 Broadway." The letter was notarized. Peter Wolford recorded the letter at the San Francisco County Recorder's Office. He testified that he believed that the letter gave him an easement.

The Bulls sold their home to the Thomases in 1974. Soon thereafter, the Thomases applied for and received permits to construct a third-story "penthouse addition" to their two-story building. One retired San Francisco city planner, who was involved with the approval of the permits, testified that the Thomas building, prior to the new construction, occupied 100 percent of the lot, in violation of the Planning Code. According to this witness, the Planning Code prohibited the enlargement of such an illegal structure. Another witness, the chief building inspector for San Francisco, testified that the permits were validly issued and that the penthouse addition was a legal structure.

The penthouse addition to the Thomas property significantly diminished the view from the second-floor apartment of the Wolford building. Light and air for that apartment were also restricted by the new construction. In addition, the penthouse partially obstructed the view from the third-floor apartment which had been rented to tenants when the Wolfords moved out of the building in 1966. The privacy of the third-floor tenants was disturbed because the new deck area for the penthouse was adjacent to their bedroom. There was testimony that the Wolford building suffered a $54,000 diminution in fair market value and a $12,612 loss in rental value because of the adjacent structure.

II

The Wolfords' first contention on appeal is that the trial court committed prejudicial error by granting the Thomases' motion for a court trial. The Wolfords urge that they were entitled to a jury trial on their complaint for abatement of public and private nuisance, interference with easement and damages. We disagree.

The right to a jury trial is guaranteed by our state Constitution. (Cal. Const., art. I, § 16.) The test as to whether a jury trial is required in particular circumstances depends upon the characterization of the issues as legal or equitable. Legal issues must be determined by a jury, while equitable issues may be determined without a jury. (Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 524, 154 Cal.Rptr. 164.) "Whether a cause of action is in law or equity is determinable from a consideration of the common law as it existed at the time of its adoption by this state, and 'in the light of such modifications thereof as have taken place under our own system' [citations]; depends in large measure upon the mode of relief to be afforded [citations]; is ascertained from the gist of the action as framed by the pleadings and the facts in the case [citations]; but is not fixed by the prayer or the title. [Citations.]" (Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 911-912, 42 Cal.Rptr. 366.)

If an action is essentially equitable in nature and the relief sought " 'depends upon the application of equitable doctrines,' " there is no right to a jury trial. (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9, 151 Cal.Rptr. 323, 587 P.2d 1136.)

In Southern Pac. Transportation Co. v. Superior Court (1976) 58 Cal.App.3d 433, 437, 129 Cal.Rptr. 912, in deciding that a good faith improver action does not entitle a plaintiff to a jury trial, the Court of Appeal stated: "The fact that damages is one of a full range of possible remedies does not guarantee real parties the right to a jury.... We recognize that where a complaint raises both legal and equitable issues, a jury trial may be obtained upon the issues raised by the legal cause. [Citation.] Here, however, there is no possibility of severing the legal from the equitable." (Ibid.)

In the instant case, the gist of the Wolfords' complaint was clearly to abate a public and private nuisance and for injunctive and declaratory relief. California courts recognize that a party is not entitled to a jury trial in an action to abate a nuisance. (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 298, 231 P.2d 832; People v. Frangadakis (1960) 184 Cal.App.2d 540, 545-546, 7 Cal.Rptr. 776; City of Turlock v. Bristow (1930) 103 Cal.App. 750, 756-757, 284 P. 962.) Furthermore, the bulk of the relief sought here, under both the nuisance and easement claims, was equitable. In addition to the prayer for abatement, the Wolfords requested that the Thomases be enjoined from maintaining the penthouse addition and that the City of San Francisco be authorized to demolish it if the Thomases did not. Also, the Wolfords prayed for a declaration that they possessed an easement for air, light, heat, ventilation and view over the Thomases' roof. The fact that the Wolfords' complaint also sought "damages according to proof" does not convert this essentially equitable action into a legal one. It was infeasible for the court to sever the legal claim from the equitable one here. Moreover, the damage claims were incidental to the equitable claims. If the Wolfords were to prevail and damages were awarded, it would be primarily on a basis of the court fashioning a remedy other than demolishing the penthouse. One of the aspects of an equitable action is the balancing of the interests of the parties. To do equity a trial court must have various options available to it including that of awarding damages. In sum, the trial court's action of granting the Thomases' motion for court trial was correct. The Wolfords were not entitled to a jury trial on their claims.

III

The Wolfords also contest the granting of the motion for judgment, pursuant to Code of Civil Procedure section 631.8, in connection with the easement counts. They claim that the trial court erred in ruling that the 1963 letter from Bull did not create an easement. It is asserted that evidence presented at trial established that Bull and Peter Wolford intended to create an easement for view. We find no error in the trial court's grant of the motion for judgment.

Preliminarily we observe that our review of the granting of a motion under Code of Civil Procedure section 631.8 is limited to whether there is substantial evidence to support the decision. (Don Wilson Builders v. City of Torrance (1981) 126 Cal.App.3d 114, 120, 178 Cal.Rptr. 690.) The court's findings are not reversible if supported by substantial evidence. (Miller v. Dussault (1972) 26 Cal.App.3d 311, 316, 103 Cal.Rptr. 147.) In the case at bench, no evidence was presented to the trial court which would support a finding of an easement.

"An easement is an interest...