Filed 2/21/14

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ARNOLD J. SCHMIDT, as Trustee, etc.,

et al.,

Plaintiffs and Appellants,

v.

BANK OF AMERICA, N.A., et al.,

Defendants and Respondents.

D062532

(Super. Ct. No. 37-2009-00068437-

CU-OR-EC)

APPEAL from judgments of the Superior Court of San Diego County, Eddie C. 

Sturgeon, Judge. Reversed.

Smaha Law Group, John L. Smaha, Gregory J. Borman; Niddrie Fish & Addams 

and David A. Niddrie for Plaintiffs and Appellants. 

Sheppard, Mullin, Richter & Hampton, LLP, Paul S. Malingagio and Kyndra J. 

Casper for Defendant and Respondent Bank of America, N.A. 

Mulvaney, Barry, Beatty, Linn & Mayers, LLP, Robert A. Linn and Stacy H.

Rubin for Defendant and Respondent Aragon Homeowners Association. 
2

Plaintiffs Arnold J. Schmidt and Valerie A. Schmidt (together, the Schmidts), as 

cotrustees of the Arnold and Valerie Schmidt 2005 Revocable Trust, appeal judgments in 

favor of defendants Bank of America, N.A. (Bank of America) and Aragon Homeowners 

Association (Aragon HOA) after the court granted defendants' motions for summary 

judgment on the Schmidts' complaint for trespass, nuisance, and declaratory and 

injunctive relief. The Schmidts contend that the court erred in finding no triable issues of 

material fact regarding (1) the existence and scope of a roadway easement over the 

Schmidts' property; (2) the burden on the Schmidts' property created by Bank of America 

and the Aragon HOA's use of the roadway easement; (3) Bank of America's ownership of

and control over the roadway easement; and (4) Bank of America's immunity as a lender 

under Civil Code1 section 3434. The Schmidts further contend that Bank of America has 

not established its immunity as an individual condominium owner under former section 

1365.9.2 Bank of America and the Aragon HOA counter that no triable issues of 

material fact exist on the Schmidts' claims, and the court properly granted summary 

judgment. We conclude that the trial court's interpretation of the easement was erroneous 

and that triable issues of material fact preclude summary judgment as to both Bank of 

America and the Aragon HOA. We therefore reverse the judgments.

 

1 Statutory references are to the Civil Code unless otherwise noted.

2 Effective January 1, 2014, former section 1365.9 was repealed and recodified 

without substantive change as section 5805. (Stats. 2012, ch. 180, §§ 1-2.) For clarity, 

we will continue to refer to former section 1365.9 in this opinion.
3

FACTUAL AND PROCEDURAL BACKGROUND

The Schmidts own a parcel of land along El Cajon Boulevard in La Mesa, 

California (the Schmidt parcel). On an adjacent parcel directly to the east (the Aragon 

parcel), a property developer constructed a condominium project called Aragon. That 

property developer, Barratt American Incorporated (Barratt), planned to develop the 

Aragon project in three phases, corresponding to three condominium buildings, all on the 

Aragon parcel abutting the Schmidt parcel. The three condominium buildings would 

share certain common areas and amenities and be governed by a single homeowners'

association, the Aragon HOA. Barratt financed the Aragon project through a revolving 

credit agreement with Bank of America, as administrative agent for a group of lenders.

The Schmidt and Aragon parcels were once under the common ownership of Rose 

Miller Parks. In 1941, Parks conveyed the portion of her property that would become the 

Schmidt parcel to Edith Ford. Parks reserved for herself, however, an easement over the 

portion of the conveyed property adjacent to the property she retained. The portion of 

Parks's grant deed to Ford that recites the reserved easement reads as follows: 

"RESERVING to the grantor, her successors, assigns and/or heirs, the right of ingress 

and egress for public road purposes over, along and across the Easterly 40 feet thereof."

Four years later, Parks sold her retained parcel, which would become the Aragon 

parcel, to Clemons Smith. Parks's grant to Smith included the following language: 

"ALSO an easement for public road purposes, and incidental purposes, over the Easterly 

40 feet of the following described land . . . ." This language purported to describe the 

reserved easement, though in different terms than Parks's earlier grant deed to Ford.
4

The Aragon parcel was conveyed several times through the years. Each 

subsequent grant recited the reserved easement, in the language of Parks's grant deed to 

Smith, until 2000. In that year, the then-owner of the Aragon parcel, Margaret 

Churchman, conveyed the Aragon parcel to her trust without reciting the reserved 

easement. Two years later, the trustees of Churchman's trust executed a deed that 

attempted to correct this omission. Two years after that, Churchman's trust deeded the 

Aragon parcel to Barratt. The grant to Barratt recited the reserved easement, again in the 

language of Parks's grant deed to Smith.3

Barratt began construction on the Aragon project and, within four years, had 

completed two of the three planned condominium buildings. As pertinent to this appeal, 

Barratt constructed certain features related to the Aragon project on, under, and around 

the reserved easement area on the Schmidt parcel. Barratt graded and paved the 

easement area for a private roadway, Troy Lane, that facilitates access from El Cajon 

Boulevard to a parking garage for the Aragon project. At the end of the roadway, on the 

Schmidt parcel, Barratt erected a locked gate. The gate prevents traffic from using Troy 

Lane as a throughway between El Cajon Boulevard (to the north) and Troy Terrace (to 

the south). Underneath Troy Lane, Barratt placed or improved certain subsurface 

infrastructure for the Aragon project, including sewer pipes, storm drains, oil and sand 

separators, and construction nails designed to hold steep dirt slopes in place.

 

3 During Churchman's ownership of the Aragon parcel, she narrowed the 40-foot 

easement by 13 feet to create a 27-foot easement. Her trust's eventual grant to Barratt 

recites this narrowing as well. 
5

After phase 1 of the Aragon project was completed, Barratt deeded the Aragon 

parcel to the Aragon HOA, reserving the phase 1 "building envelope" that comprised 

condominiums to be sold to individual owners and the phase 2 and phase 3 "modules"

that would encompass those future buildings. Similarly, after phase 2 was completed, 

Barratt deeded the phase 2 "module" to the Aragon HOA, again reserving the phase 2

"building envelope" for sale to individual condominium owners. The easement reserved 

by Parks is not recited in either deed from Barratt to the Aragon HOA. 

The operative declaration of covenants, conditions, and restrictions (CC&R's) for 

the Aragon project tasks the Aragon HOA with certain responsibilities for governing and 

maintaining the project. As relevant here, the CC&R's provide that the Aragon HOA 

"shall maintain the Offsite Maintenance Areas . . . in a good condition of maintenance 

and repair [in] accordance with all City requirements." The CC&R's define the Offsite 

Maintenance Areas to include the easement over the Schmidt parcel that contains the 

Aragon roadway, the traffic gate, and the subterranean infrastructure improvements. 

Barratt did not complete phase 3 of the Aragon project. After deeding the phase 2

module to the Aragon HOA, Barratt defaulted on its credit agreement with Bank of 

America. Bank of America then began foreclosure proceedings on the deed of trust that 

Barratt had tendered as security for the credit agreement. Although the circumstances are 

unclear, the record reflects that Bank of America took title to various portions of the 

Aragon project in two trustee's sales. The first trustee's sale, approximately nine months 

after Barratt's default, resulted in Bank of America's acquisition of 16 individual 

condominium units in phases 1 and 2 that were completed (but not yet sold) and 10 
6

planned condominium units in the uncompleted phase 3. The second trustee's sale, 

almost two years later, resulted in Bank of America's acquisition of the bulk of the 

Aragon parcel that had not yet been sold to individual condominium owners or deeded to 

the Aragon HOA. The deed obtained by Bank of America in connection with the second 

trustee's sale grants the easement reserved by Parks over the Schmidt parcel to Bank of 

America.

After Barratt completed construction of phases 1 and 2, along with the 

improvements to the easement area, the Schmidts filed this lawsuit. The Schmidts' initial 

complaint alleged causes of action for trespass, nuisance, and injunctive and declaratory 

relief against five named defendants, including Bank of America, and 20 fictitiously 

named Doe defendants. The Schmidts later substituted the Aragon HOA for one of the 

Doe defendants. Bank of America and the Aragon HOA are the only defendants that are 

parties to this appeal.

The Schmidts' complaint alleges that the Schmidt parcel "is subject to certain 

easement[] rights and restrictions" and that "the construction of [the Aragon project] has 

violated the Easement Rights and Restrictions, and has trespassed upon and/or created 

and maintained nuisances affecting [the Schmidt parcel.]" The trespasses and nuisances 

alleged by the Schmidts include: (1) improperly installed oil and sand separators, storm 

drains, fire lanes, fire gates, and tie backs in and along the easement; (2) an improperly 

constructed and maintained driveway apron and a similarly improper garage entryway 

along the easement; and (3) the lack of a road maintenance agreement for the roadway on 

the easement. The Schmidts sought damages for loss of reasonable use and enjoyment of 
7

their property, diminished market value of the property, and other compensatory and 

punitive damages. The Schmidts also demanded that the structures and improvements at 

issue be removed. Bank of America and the Aragon HOA filed answers generally 

denying the Schmidts' allegations and alleging various affirmative defenses. 

After approximately 18 months of litigation, Bank of America filed a motion for 

summary judgment or, in the alternative, summary adjudication on the following 

grounds: (1) Bank of America does not own the structures and improvements at issue; 

(2) Bank of America does not maintain or control the structures and improvements at 

issue; (3) Bank of America, as an owner of individual condominium units, cannot be held 

liable for tort actions under former section 1365.9; (4) the structures and improvements at 

issue do not violate the reserved easement; and (5) Bank of America merely acted as a 

lender to Barratt on the Aragon project and cannot be held liable under section 3434.4 

The Schmidts opposed, arguing as follows: (1) Bank of America's ownership interests 

extend beyond individual condominiums; (2) Bank of America's ownership and control 

of the structures and improvements at issue is unclear because of various security 

interests obtained by Bank of America over Barratt property; (3) Bank of America did not 

satisfy the requirements of former section 1365.9; (4) the structures and improvements at 

issue do violate the reserved easement; and (5) Bank of America did not establish it acted 

as a mere lender. 

 

4 Bank of America's motion relied on the language of the 1945 grant deed and does 

not discuss Parks's 1941 reservation. The Schmidts' opposition raised the differences in 

language between the two descriptions of the reserved easement. 
8

The Aragon HOA filed a motion for summary judgment or, in the alternative, 

summary adjudication on the ground that the structures and improvements at issue do not 

violate Parks's 1941 reserved easement. The Schmidts opposed, arguing that the reserved 

easement did not allow the structures and improvements as they were constructed. 

The court granted summary judgment in favor of Bank of America and the Aragon 

HOA on all of the grounds asserted, with the exception of Bank of America's defense 

based on ownership of an individual condominium under former section 1365.9, which 

the court did not address. The court entered separate judgments accordingly. 

DISCUSSION

I

"A defendant's motion for summary judgment should be granted if no triable issue 

exists as to any material fact and the defendant is entitled to a judgment as a matter of 

law. [Citation.] The burden of persuasion remains with the party moving for summary 

judgment. [Citation.] When the defendant moves for summary judgment, in those 

circumstances in which the plaintiff would have the burden of proof by a preponderance 

of the evidence, the defendant must present evidence that would preclude a reasonable 

trier of fact from finding that it was more likely than not that the material fact was true 

[citation], or the defendant must establish that an element of the claim cannot be 

established, by presenting evidence that the plaintiff 'does not possess and cannot 
9

reasonably obtain, needed evidence.' " (Kahn v. East Side Union High School Dist.

(2003) 31 Cal.4th 990, 1002-1003 (Kahn).)5

If the defendant "carries his burden of production, he causes a shift, and the 

opposing party is then subjected to a burden of production of his own to make a prima 

facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 

Cal.4th at p. 850.) "The plaintiff . . . may not rely upon the mere allegations or denials of 

its pleadings to show that a triable issue of material fact exists but, instead, shall set forth 

the specific facts showing that a triable issue of material fact exists as to that cause of 

action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).)

"We review the record and the determination of the trial court de novo." (Kahn,

supra, 31 Cal.4th at p. 1003.) "In performing our de novo review, we must view the 

evidence in a light favorable to plaintiff as the losing party [citation], liberally construing 

[the plaintiff's] evidentiary submission while strictly scrutinizing defendants' own 

showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." 

(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) 

" 'Examining evidence in light of summary judgment standards is far different 

from applying the substantial evidence test that often governs on appeal. . . . Thus even 

though it may appear that a trial court took a "reasonable" view of the evidence, a 

 

5 Contrary to the Schmidts' suggestion, "summary judgment law in this state [does 

not] any longer require a defendant moving for summary judgment to conclusively negate 

an element of the plaintiff's cause of action." (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 853 (Aguilar).) 
10

summary judgment cannot properly be affirmed unless a contrary view would be 

unreasonable as a matter of law in the circumstances presented.' " (Faust v. California 

Portland Cement Co. (2007) 150 Cal.App.4th 864, 877; see Aguilar, supra, 25 Cal.4th at

p. 856 ["[T]he court may not weigh the plaintiffs' evidence or inferences against the 

defendants[] as though it were sitting as the trier of fact."].) 

We are not bound by the issues actually decided by the trial court. "The appellate 

court should affirm the judgment of the trial court if it is correct on any theory of law 

applicable to the case, including but not limited to the theory adopted by the trial court, 

providing the facts are undisputed. [Citations.] Thus we must affirm so long as any of 

the grounds urged by [defendants], either here or in the trial court, entitle [them] to 

summary judgment." (Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1994) 21 

Cal.App.4th 1586, 1595.)

II

Bank of America and the Aragon HOA contend, here as in the trial court, that the 

scope of the reserved easement covers the structures and improvements that are the 

subject of the Schmidts' complaint and thus constitutes a complete defense to the 

Schmidts' claims. They argue that the phrase "for public road purposes" created a public 

right-of-way over the reserved easement. Relying primarily on Bello v. ABA Energy 

Corp. (2004) 121 Cal.App.4th 301 (Bello), Bank of America and the Aragon HOA 

contend that the reserved easement, as a public right-of-way, may be used for any 

infrastructure that accompanies normal development, including the various structures and 

improvements that the Schmidts allege are at issue. Bank of America and the Aragon 
11

HOA thus argue that no triable issue of fact exists as to the Schmidts' causes of action

because the scope of the reserved easement, if interpreted as a public right-of-way, covers 

all of the structures and improvements at issue as a matter of law.

The Schmidts argue that the grant created only a "right of ingress and egress" that 

entitles the dominant Aragon parcel to use only the surface of the easement.6 Relying 

primarily on Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697 (Scruby), the 

 

6 The Schmidts' opening brief asserts that Churchman's omission of the reserved 

easement from her grant of the Aragon parcel to her trust prevents Bank of America and 

the Aragon HOA, as successors-in-interest to the trust, from claiming rights under the 

easement. Because the Schmidts fail to offer any legal authority for this proposition, we 

may treat the argument as waived. (Cahill v. San Diego Gas & Electric Co. (2011) 194 

Cal.App.4th 939, 956 (Cahill) [" 'The absence of cogent legal argument or citation to 

authority allows this court to treat the contention as waived.' "].) However, even if the 

Schmidts had not waived the argument, we would find it unavailing. We conclude that 

the easement is appurtenant and passed to Churchman's trust with her grant of the Aragon 

parcel regardless of whether it was specifically recited in Churchman's grant. "Easements 

are presumed appurtenant unless there is clear evidence to the contrary. . . . Although a 

grantor may reserve an interest in property to a stranger to grantor's title[,] that intent 

must be clearly shown . . . ." (Cushman v. Davis (1978) 80 Cal.App.3d 731, 735, italics 

added, citations omitted.) The Schmidts have made no showing that would rebut the 

presumption that the reserved easement is appurtenant. (See ibid.) Moreover, as a "right 

of ingress and egress for public road purposes over, along and across" the Schmidt parcel, 

the reserved easement here benefits the Aragon parcel and is thus appurtenant to it. (See 

St. Louis v. DeBon (1962) 204 Cal.App.2d 464, 465 [right of ingress and egress held to 

be appurtenant]; see § 662 ["A thing is deemed to be incidental or appurtenant to land 

when it is by right used with the land for its benefit, as in the case of a way . . . across the 

land of another."].) Thus, because a "transfer of real property passes all easements 

attached thereto," the reserved easement passed automatically to Churchman's trust when 

she granted the Aragon parcel to the trust. (§ 1104; see § 1084 ["The transfer of a thing 

transfers also all its incidents, unless expressly excepted . . . ."].) In light of our 

conclusion, we need not address whether the Schmidts' allegation in their complaint that 

their land "is subject to certain easement[] rights and restrictions" constitutes a judicial 

admission regarding the continued existence of the reserved easement, as Bank of 

America and the Aragon HOA contend. 
12

Schmidts argue that the reserved easement here is akin to a private roadway easement, 

which they contend may not be used for any non-roadway purpose. The Schmidts

disagree that the phrase "for public road purposes" created a public right-of-way because, 

among other reasons, the reserved easement benefits only the Aragon parcel and not the 

public at large. Thus, the Schmidts contend, the opinion in Bello and similar public rightof-way cases are unpersuasive in assessing the scope of the reserved easement here. The 

Schmidts argue that summary judgment is inappropriate because disputed issues of 

material fact remain regarding whether the structures at issue fall within the scope of the 

reserved easement as properly interpreted.

A

We begin by interpreting the easement at issue. "An easement is a restricted right 

to specific, limited, definable use or activity upon another's property, which right must be 

less than the right of ownership." (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261.) 

"It is fundamental that the language of a grant of an easement determines the scope of the 

easement." (County of Sacramento v. Pacific Gas & Elec. Co. (1987) 193 Cal.App.3d 

300, 313 (County of Sacramento).)

"Grants are to be interpreted in like manner with contracts in general . . . ." 

(§ 1066.) "The interpretation of a written instrument, even though it involves what may 

properly be called questions of fact [citation], is essentially a judicial function to be 

exercised according to the generally accepted canons of interpretation so that the 

purposes of the instrument may be given effect." (Parsons v. Bristol Development Co. 

(1965) 62 Cal.2d 861, 865 (Parsons).) "Accordingly, '[a]n appellate court is not bound 
13

by a construction of the contract based solely upon the terms of the written instrument 

without the aid of evidence [citations], where there is no conflict in the evidence 

[citations], or a determination has been made upon incompetent evidence . . . .' " (Ibid.)

"The task of the reviewing court has been described as placing itself in the 

position of the contracting parties in order to ascertain their intent at the time of the grant. 

[Citation.] If the intent of the parties can be derived from the plain meaning of the words 

used in the deed, the court need not, and should not, resort to technical rules of 

construction." (Machado v. Southern Pacific Transportation Co. (1991) 233 Cal.App.3d 

347, 352-353 (Machado).) Similarly, "[i]f the language is clear and explicit in the 

conveyance, there is no occasion for the use of parol evidence to show the nature and 

extent of the rights acquired." (Scruby, supra, 37 Cal.App.4th at p. 702.)

Here, Parks's 1941 grant provides the following: "RESERVING to the grantor, 

her successors, assigns and/or heirs, the right of ingress and egress for public road 

purposes over, along and across the Easterly 40 feet thereof." The meaning of Parks's 

grant, at least as relevant to the determination of the issues presented in this appeal, is 

clear and unambiguous. The grant is limited to a "right of ingress and egress . . . over, 

along and across" a portion of the Schmidt parcel. The phrase "for public road purposes"

reflects the impetus for the reservation and the reason for the right of ingress and egress. 

It is a qualification of, and limitation on, the right of ingress and egress reserved in the 

grant. It does not expand the right to include activities other than ingress and egress.

Our interpretation is supported by the usage of the phrase "right of ingress and 

egress," which also sheds light on the inclusion of the words "for public road purposes" in 
14

the grant. The phrase "right of ingress and egress" has been used to describe one of the 

easements that a landowner has over a public street that his land abuts. "Every lot 

fronting upon a street has, as appurtenances thereto, certain private easements in the 

street, in front of and adjacent to the lot . . . ." (Williams v. Los Angeles Railway Co.

(1907) 150 Cal. 592, 594.) "These private easements are, [first,] [t]he right of ingress and 

egress to and from the lot over and by means of the adjacent portion of the street . . . ." 

(Ibid., citations omitted.) Just as an abutting landowner has "[t]he right of ingress and 

egress to and from [his] lot over and by means of the adjacent portion of the street"

(ibid.), Parks's reservation established the right of ingress and egress to and from the 

reserved (Aragon) parcel over and by means of the specified portion of the Schmidt 

parcel "for public road purposes," that is, in order to reach a public road.7

We therefore disagree with the contention of Bank of America and the Aragon 

HOA that the phrase "for public road purposes" created a public right-of-way over the 

reserved easement, and we conclude that the trial court erred in so finding.8 "Long ago 

 

7 In light of our interpretation of Parks's 1941 grant based on California law, we 

need not address the Schmidts' out-of-state authorities.

8 We also do not agree with Bank of America that the trial court's interpretation of 

the reserved easement is entitled to any deference. Where, as here, the trial court's 

interpretation is not based on a credibility assessment of conflicting extrinsic evidence, 

we independently construe the meaning of the grant deed. (Parsons, supra, 62 Cal.2d at

p. 866 & fn. 2; see Van Klompenburg v. Berghold (2005) 126 Cal.App.4th 345, 349 

["The interpretation of an easement, which does not depend upon conflicting extrinsic 

evidence, is a question of law."].) We therefore need not consider whether summary 

judgment would be proper in light of allegedly conflicting extrinsic evidence. (See 

Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1500 [where extrinsic evidence 
15

our Supreme Court made clear the difference between public and private rights of way: 

'Public ways, as applied to ways by land, are usually termed "highways" or "public 

roads," and are such ways as every citizen has a right to use. [¶] A private way relates to 

that class of easements in which a particular person, or particular description or class of 

persons, have an interest or right as distinguished from the general public.' (Kripp v. 

Curtis (1886) 71 Cal. 62, 64, citation omitted.)" (County of Sacramento, supra, 193

Cal.App.3d at p. 313 [holding that public utility easements are private easements].) "A 

private easement ordinarily vests those use rights in the owner of a particular parcel of 

neighboring property, the 'dominant tenement.' [Citation.] Unlike a private easement, 

the use rights of a public right-of-way are vested equally in each and every member of the 

public. [Citation.] The city or county government ordinarily administers use of the rightof-way." (Bello, supra, 121 Cal.App.4th at p. 308.) Here, the reserved easement exists 

purely between private parties. There is no evidence that the public at large has any 

rights to the reserved easement or that the use of the easement is regulated by any 

governmental entity as a public right-of-way. The mere inclusion of the phrase "for 

public road purposes" does not transform an otherwise private easement into a public 

right-of-way.9

 

considered, interpretation "becomes a question of fact and not to be resolved on summary 

judgment"].)

9 The requirement that we interpret a reserved easement in favor of its grantor does 

not alter this analysis. (See § 1069 ["A grant is to be interpreted in favor of the grantee, 

except that a reservation in any grant . . . is to be interpreted in favor of the grantor."].) 
16

Bank of America and the Aragon HOA argue that the reserved easement should be 

interpreted as a public right-of-way because, as Bank of America asserts, "the broad 

Easement grant does not include any restrictions to the 'public road purposes' for which it 

was granted." The language of the easement does not support their argument. Parks's 

1941 grant reserves "the right of ingress and egress for public road purposes over, along 

and across" a portion of the Schmidt parcel. The phrase "for public road purposes" is 

qualified both by the right granted ("ingress and egress") and by its application to the 

Schmidt parcel ("over, along and across"). The grant here was not simply "for public 

road purposes"; that phrase must be read in context with the remainder of the grant

language.

Franceschi v. Kuntz (1967) 253 Cal.App.2d 1041, relied on by Bank of America

and the Aragon HOA, does not support their argument. The Franceschi opinion 

considers whether a right of ingress and egress over a private road may be assigned for 

use by another. (Id. at p. 1044.) The court held that the terms of the grant expressly 

contemplated assignment of the right and that there were otherwise no limitations on such 

assignment. (Id. at p. 1046.) The court did not consider whether a private easement for 

ingress and egress may be interpreted as a public right-of-way, nor did the court consider

whether any activities other than ingress and egress were permitted on such an easement. 

The court's statement that "[a] right of way for road purposes granted in broad terms 

means 'a general right of way capable of use in connection with the dominant tenement 

 

Such a rule of construction cannot be used to alter the clear and unambiguous meaning of 

the reserved easement. (See Machado, supra, 233 Cal.App.3d at pp. 352-353.)
17

for all reasonable purposes[,]' " concerns the nature and extent of the traffic using the 

private right-of-way, not whether a private right-of-way may be used for purposes other 

than ingress and egress. (Id. at p. 1045; see Laux v. Freed (1960) 53 Cal.2d 512, 525 

[similar language, considering whether a private right-of-way over servient tenement may 

be traversed by individuals intending to hunt commercially on the dominant tenement].)

The other authorities cited by Bank of America and the Aragon HOA are similarly 

unavailing. In Fristoe v. Drapeau (1950) 35 Cal.2d 5, 8 (Fristoe), the Supreme Court

considered whether a private right-of-way could be used only for agricultural traffic or 

also "as a means of ingress and egress to and from a residence." Uses other than ingress 

and egress were not under consideration. (Ibid.) In C.F. Lott Land Co. v. Hegan (1917) 

177 Cal. 169, 173 (C.F. Lott), the Supreme Court considered an easement allowing 

transportation of water in a ditch across a subservient tenement. The question on appeal 

was whether the capacity of the ditch could be increased to transport more water than had 

previously been transported in the ditch. (Ibid.) None of the cases cited by Bank of 

America or the Aragon HOA provide support for their contention that the private right of 

ingress and egress recited in the reserved easement here should be interpreted as a public 

right-of-way.10

 

10 These authorities also do not substantiate Bank of America and the Aragon HOA's 

alternative argument that, even if a literal reading of the reservation would not cover all 

of the structures and improvements at issue, the scope of the reserved easement may be 

expanded to cover them because the Aragon parcel's "needs" have increased. In Fristoe, 

the easement at issue was implied, rather than express, and the court found that the 

expanded use of the private right-of-way was "within the reasonable contemplation of the 

parties at the time of the conveyance." (Fristoe, supra, 35 Cal.2d at p. 10.) In C.F. Lott, 
18

Bank of America and the Aragon HOA further contend that certain extrinsic 

evidence supports their interpretation of the reserved easement as a public right-of-way. 

Even though we have determined that the reserved easement is unambiguous, we may 

examine extrinsic evidence to consider whether it aids in interpretation. " '[E]ven if a 

contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic 

evidence which reveals more than one possible meaning to which the language of the 

contract is yet reasonably susceptible.' " (Dore v. Arnold Worldwide, Inc. (2006) 39 

Cal.4th 384, 391 (Dore).) 

Bank of America and the Aragon HOA argue that Parks's 1945 grant deed, in 

which she described the reserved easement as "an easement for public road purposes, and 

incidental purposes," supports their interpretation of the easement. Bank of America and 

the Aragon HOA argue that the phrase "and incidental purposes" means that the reserved 

easement should be interpreted broadly and encompass any use incidental to a public 

road. We disagree. "Incidental purposes" are necessarily dependent and subordinate to 

the main purpose of the easement. (See Black's Law Dict. (9th ed. 2009) p. 830, col. 1

["incident" defined as "[a] dependent, subordinate, or consequential part (of something 

else)"].) Such language does not qualitatively expand the easement grant here, which 

already includes all of its incidents. (See § 1084 ["The transfer of a thing transfers also 

all its incidents, unless expressly excepted . . . ."].) To the extent that Bank of America 

 

the use contemplated by the dominant tenement was within the literal scope of the grant 

at issue. (C.F. Lott, supra, 177 Cal. at p. 173 ["the grant contemplates the right to 

transport over the lands such water as may be necessary for the use of unnumbered lot 

5"].) We consider the literal scope of the reserved easement in the next section, post.
19

and the Aragon HOA argue that the reserved easement should be interpreted, in light of 

Parks's 1945 grant deed, as retaining an easement for all purposes that a governmental 

entity might use a public road, we find that argument unpersuasive. The language of the 

reserved easement is not reasonably susceptible to such an interpretation even 

considering Parks's 1945 grant deed. (See Dore, supra, 39 Cal.4th at p. 393 [" 'When a 

dispute arises over the meaning of contract language, the first question to be decided is 

whether the language is "reasonably susceptible" to the interpretation urged by the party. 

If it is not, the case is over.' "]; see also Scruby, supra, 37 Cal.App.4th at p. 705 [" '[I]n 

determining the scope of an easement, extrinsic evidence may be used as an aid to 

interpretation unless such evidence imparts a meaning to which the instrument creating 

the easement is not reasonably susceptible.' "].) We therefore decline to adopt the 

interpretation offered by Bank of America and the Aragon HOA.

B

We next consider the relationship between the scope of the reserved easement and 

the structures and improvements at issue. "Whether a particular use of an easement by 

either the servient or dominant owner unreasonably interferes with the rights of the other 

owner is a question of fact." (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 

143 Cal.App.4th 333, 350 (Red Mountain); see Smith v. Worn (1892) 93 Cal. 206, 214.) 

The question presented here is whether, in light of our interpretation of the reserved 

easement, any triable issue of fact exists regarding whether the structures and 

improvements constructed by Barratt on the Schmidt parcel are within the scope of the 

reserved easement.
20

Bank of America and the Aragon HOA contend that no triable issues of fact exist 

because all of the structures and improvements at issue would be within the scope of an 

easement for public right-of-way. However, because we conclude that the easement 

reserved by Parks confers a private "right of ingress and egress," the authorities cited by 

Bank of America and the Aragon HOA on the scope of easements for public rights-ofway do not support their position that no triable issue of fact exists here. 

The interpretation of public rights-of-way departs significantly from the traditional 

common law principles that govern private easements. As the court in Bello explained:

"The late 19th century saw a dramatic change in the judicially 

recognized scope of public rights-of-way in California. Before the 

widespread adoption of railroads, electricity, and the telephone, the 

term 'right of way' was given its literal meaning -- a public right to 

construct, maintain, and use a road over private land. Any other use 

required the landowner's consent. [Citations.] Shortly before the 

turn of the century, however, the Supreme Court recognized that 

urbanization was placing a much greater demand on public resources

than could be accommodated by this literal view of public rights." 

(Bello, supra, 121 Cal.App.4th at p. 308.)

During this period of change, our Supreme Court approved of the principle that " '[t]he 

establishment of a public highway practically divests the owner of a fee to the land upon 

which it is laid out . . . .' " (Montgomery v. Santa Ana Westminster Railway Co. (1894) 

104 Cal. 186, 193, quoting Paquet v. Mt. Tabor St. R. Co. (Ore. 1889) 22 P. 906, 907.) 

By contrast, the interpretation of easements held by private parties has not undergone the 

dramatic changes seen in public right-of-way cases.

Bank of America and the Aragon HOA have provided no grounds for the 

application of the public right-of-way cases where, as here, a public resource is not at 
21

issue. Rather, a private party reserved the easement under consideration here, and it 

continues to benefit private, rather than public, interests. (See County of Sacramento,

supra, 193 Cal.App.3d at p. 313; see also Bello, supra, 121 Cal.App.4th at p. 308.) 

Contrary to the Aragon HOA's suggestion, the fact that the public may use the easement 

to gain access to the Aragon project does not create a "public benefit" or create a public 

right-of-way. Just like any private driveway, the easement is used only for traffic to and 

from the Aragon project. No broader transportation purpose is served by the easement

that would benefit the public at large.

In the private context, "[t]he conveyance of an easement limited to roadway use 

grants a right of ingress and egress and a right of unobstructed passage to the holder of 

the easement. A roadway easement does not include the right to use the easement for any 

other purpose." (Scruby, supra, 37 Cal.App.4th at p. 703.) "The owner of a dominant 

estate may do that which is reasonably necessary to enjoy the easement and, as an 

incident thereto, keep it in repair and fit for use. [Citation.] But the easement may not be 

substantially altered without the consent of the owner of the servient estate." (Id. at

pp. 706-707.)11

 

11 Bank of America and the Aragon HOA contend that the Schmidts have waived 

their right to rely on the Scruby opinion on appeal because they did not cite Scruby in 

their briefing in the trial court. This contention has no merit. Where an appellant has not 

waived his right to argue an issue on appeal, he is free to cite new authority in support of 

that issue. (See Giraldo v. California Dept. of Corrections & Rehabilitation (2008) 168 

Cal.App.4th 231, 251 ["We are aware of no prohibition against citation of new authority

in support of an issue that was in fact raised below . . . ."].) The efforts by Bank of 

America and the Aragon HOA to distinguish Scruby factually are likewise unpersuasive
22

The exact nature and extent of the structures and improvements constructed by 

Barratt on the Schmidt parcel are unclear from the record. As the parties moving for 

summary judgment on the grounds that the reserved easement covered these structures 

and improvements, Bank of America and the Aragon HOA were required to articulate 

their factual contentions regarding the nature and extent of these structures and 

improvements in order to allow an assessment of their relationship to the reserved 

easement. It appears that Bank of America and the Aragon HOA did not do so, which 

would provide independent grounds for denying their motions. Notwithstanding that 

deficiency, it appears that the structures and improvements constructed by Barratt include 

at least the following: (1) grading and pavement of the easement area on the Schmidt

parcel for a private roadway, Troy Lane; (2) a locked gate at the end of Troy Lane, on the 

Schmidt parcel, preventing access from Troy Lane southward to Troy Terrace; and 

(3) various subterranean infrastructure elements for the Aragon project, including sewer 

pipes, storm drains, oil and sand separators, and construction nails designed to hold steep 

dirt slopes in place.12

 

given the propositions for which the Schmidts rely on Scruby and the procedural posture 

of this appeal.

12 Bank of America and the Aragon HOA contend that subterranean improvements 

similar to those constructed by Barratt existed prior to Barratt's work, but they do not 

explain how the presence of such improvements entitles them to summary judgment on 

Schmidt's complaint. For example, Bank of America and the Aragon HOA do not 

describe the nature and extent of these prior improvements, by whom and under what 

circumstances they were placed, how they relate to any structures and improvements 

constructed by Barratt, and what legal effect the fact of these prior improvements might 

have on the Schmidts' claims.
23

In light of our construction of the language of the reserved easement, we conclude 

that Bank of America and the Aragon HOA have not met their burden of showing that no 

triable issues of material fact exist regarding whether these structures and improvements 

fall within the scope of the reserved easement. Their showing relies on the interpretation 

of the reserved easement as a public right-of-way, which we reject.13 Whether and to 

what extent these structures and improvements are consistent with "the right of ingress 

and egress for public road purposes over, along and across" a portion of the Schmidt 

parcel; whether they are "reasonably necessary to enjoy the easement and, as an incident 

thereto, keep it in repair and fit for use" (Scruby, supra, 37 Cal.App.4th at p. 707); or 

whether the easement was "substantially altered" by Barratt (ibid.) are material questions 

of fact that cannot be answered as a matter of law on the current record. (See Red 

Mountain, supra, 143 Cal.App.4th at p. 350.)

III

Bank of America contends, in the alternative, that summary judgment was 

properly granted because Bank of America does not own, control, or maintain the 

structures and improvements that the Schmidts allege violate the reserved easement. 

Bank of America claims that the trustee's deeds in the record show that it acquired only 

 

13 Bank of America criticizes the Schmidts for relying on discovery responses that 

are allegedly not part of the summary judgment record to establish the extent of the harm 

to their property as a result of the structures and improvements at issue. Because we 

conclude that Bank of America and the Aragon HOA have not demonstrated a prima 

facie entitlement to summary judgment (see Aguilar, supra, 25 Cal.4th at p. 850), we 

need not consider these discovery responses and whether they may be properly relied 

upon here.
24

certain real property on the Aragon parcel and not any of the structures and 

improvements that exist in, under, or along the easement area. Bank of America further 

argues that it does not have a right to the easement itself because, as an easement 

appurtenant to the Aragon parcel, that right passed automatically to the Aragon HOA 

when Barratt deeded certain portions of the Aragon parcel to the HOA before Bank of 

America's foreclosure and subsequent trustee's sale.

The Schmidts counter that Bank of America has not offered any legal analysis that 

would justify summary judgment in its favor based on these factual assertions. The 

Schmidts disagree with Bank of America's interpretation of the trustee's deeds and offer 

evidence that Bank of America took a security interest in various categories of personal 

property related to the Aragon project as collateral for its credit agreement with Barratt. 

The Schmidts contend that Bank of America holds or held a security interest in the 

easement and the structures and improvements thereon, and that triable issues of material 

fact remain regarding Bank of America's interest in the Aragon project.

We examine Bank of America's assertions according to the applicable standards of 

review. As a defendant moving for summary judgment, Bank of America "bears an 

initial burden of production to make a prima facie showing of the nonexistence of any 

triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) Bank of America 

"must present evidence that would preclude a reasonable trier of fact from finding that it 

was more likely than not that the material fact was true [citation], or [it] must establish 

that an element of the claim cannot be established, by presenting evidence that the 

plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' " (Kahn,
25

supra, 31 Cal.4th at p. 1003.) If Bank of America does not meet this initial burden, "it is 

unnecessary to examine the plaintiff's opposing evidence; the motion must be denied."

(San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1534.)

A

As to Bank of America's claim that it does not own the structures and 

improvements at issue, we conclude that Bank of America has not met its initial burden. 

(See Aguilar, supra, 25 Cal.4th at p. 850.) Bank of America offers the trustee's deeds 

reciting Bank of America's interest in real property related to the Aragon parcel and a 

declaration from a Bank of America employee summarizing one of those deeds. In its 

briefing, Bank of America refers generally to the effect of the trustee's deeds, but it does 

not parse their language or explain the relationship between them. At oral argument, 

however, Bank of America walked through the deeds and contended that specific 

language excludes the structures and improvements at issue from Bank of America's 

ownership. It was inappropriate for Bank of America to offer detailed analysis of the 

trustee's deeds for the first time at oral argument. (See Acquire II, Ltd. v. Colton Real 

Estate Group (2013) 213 Cal.App.4th 959, 977, fn. 12.) Nonetheless, even considering 

the merits of Bank of America's contention, we disagree that the trustee's deeds establish 

a prima facie case that Bank of America does not own the structures and improvements at 

issue. 

With the first trustee's deed, Bank of America obtained ownership of certain 

completed condominium units in phases 1 and 2 of the Aragon project, as well as several 

proposed condominium units in the uncompleted phase 3. With the second trustee's deed, 
26

Bank of America obtained ownership of the entire Aragon parcel, including Parks's 

reserved easement, with the exception of any property that had already been deeded to 

the Aragon HOA or individual condominium owners. To the extent reflected in the 

record, the deeds conveying the excepted property (including the deeds to the Aragon 

HOA) do not recite the structures and improvements at issue, and Bank of America has 

not offered any evidence that the structures and improvements were included in the 

property that was conveyed prior to Bank of America's foreclosures.14 In fact, as noted 

above, the second trustee's deed to Bank of America expressly recites the reserved 

easement as part of the conveyance. Thus, neither the trustee's deeds themselves, nor any 

of the excepted deeds, establish that the structures and improvements are not owned at 

least in part by Bank of America. Given our conclusion, we need not address the 

Schmidts' contentions regarding Bank of America's alleged continuing security interest in 

the structures and improvements and Bank of America's rebuttal thereto.15

 

14 To the extent that Bank of America argues that exclusive ownership of the 

easement, and thus the structures and improvements, was conveyed to the Aragon HOA 

even in the absence of an express grant, we address and reject that argument in part III.C., 

post. Further, to the extent that Bank of America argues that the Aragon HOA CC&R's 

establish that the Aragon HOA exclusively owns the structures and improvements at 

issue, we are unpersuaded. The CC&R's define the "Association Property" owned by the 

Aragon HOA as "all real property owned, from time-to-time, in fee title by" the Aragon 

HOA and restate a portion of the legal descriptions from the Aragon HOA deeds. By 

contrast, the CC&R's describe the easement area encompassing the structures and 

improvements at issue as an "Offsite Maintenance Area[]" that is "outside the boundaries 

of the Project." 

15 Moreover, we note that Bank of America's citation, in its rebuttal, to Code of Civil 

Procedure section 726 lacks sufficient analysis to establish its relevance or applicability 

here. For example, it is not clear that the trustee's sales at issue would fall within that 
27

Even if Bank of America had established that it has never owned the structures 

and improvements at issue, it has not shown through argument or authority how its lack 

of ownership of these items (as opposed to the easement itself) would affect the 

Schmidts' claims. Bank of America asserts that "[a] trust deed holder is not an owner and 

cannot be liable for encroachments." Bank of America cites only the trial court's order 

for that assertion.16 Bank of America does not offer any legal authority on this point. 

As Bank of America acknowledges, our review of the trial court's order is de novo. If the 

Schmidts' claims must fail based on Bank of America's lack of ownership of the 

structures and improvements, Bank of America needed to explain why. Otherwise, the 

point is waived. " 'Appellate briefs must provide argument and legal authority for the 

positions taken. "When an appellant fails to raise a point, or asserts it but fails to support 

it with reasoned argument and citations to authority, we treat the point as waived." '

 

section's "one action" rule. "[A] private sale under the power contained in the trust deed 

is not a judicial foreclosure within section 726 . . . ." (Walker v. Community Bank (1974) 

10 Cal.3d 729, 736; see Birman v. Loeb (1998) 64 Cal.App.4th 502, 509 ["The 

nonjudicial foreclosure was not an action within the meaning of section 726."].) The 

record shows that Bank of America effected at least two trustee's sales to take title to 

various portions of the Aragon parcel, and that the deed of trust tendered by Barratt 

specifically authorized successive sales, in addition to other judicial and non-judicial 

remedies. 

16 Bank of America's briefing contains numerous factual and legal assertions that are 

supported only by citation to the trial court's orders or hearings below. Citations to the 

trial court's orders and statements have no evidentiary or persuasive value where, as here, 

we must conduct an independent review of the trial court's ruling. Where Bank of 

America's assertions are supported only by reference to the trial court's orders or 

statements, we may properly consider them waived. (See Cahill, supra, 194 Cal.App.4th 

at p. 956.)
28

[Citation.] 'We are not bound to develop appellants' argument for them.' " (Cahill,

supra, 194 Cal.App.4th at p. 956.) Because Bank of America has not explained why it is 

entitled to summary judgment on this ground, we cannot affirm on this basis.17

B

Bank of America also contends that the Aragon HOA, and not Bank of America, 

controls and maintains the easement area, including the allegedly offending structures 

and improvements. We agree that the Aragon CC&R's require the Aragon HOA to 

"maintain the Offsite Maintenance Areas . . . in a good condition of maintenance and 

repair [in] accordance with all City requirements."

Bank of America does not explain how this maintenance provision absolves it of

liability for the presence of the structures and improvements or for the use of the 

easement by the various owners of the Aragon parcel (including Bank of America). Nor 

does Bank of America otherwise explain how this provision affects the Schmidts' ability 

to prove their causes of action. Because Bank of America has not met its initial burden of 

establishing an entitlement to summary judgment on this ground, we cannot affirm on 

this basis.

 

17 Similarly, the Aragon HOA's assertion that it "did not in any way participate in the 

construction or improvement of the Project, nor in the improvements of the Easement" is 

unaccompanied by any argument or legal authority that would support its implied 

contention that it is entitled to summary judgment based on that alleged fact. We 

therefore treat the Aragon HOA's contention that we should affirm the judgment on this 

basis as waived. (See Cahill, supra, 194 Cal.App.4th at p. 956.)
29

C

Bank of America argues that only the Aragon HOA, and not it, "owns" the 

reserved easement. Bank of America contends that the reserved easement was 

appurtenant to the Aragon parcel and that Barratt's transfer of one part of the Aragon 

parcel to the Aragon HOA automatically transferred all rights to the easement. When 

Bank of America later took title to other portions of the Aragon parcel, it argues, all 

rights to the easement had already passed to the Aragon HOA. Although we agree that 

the reserved easement is appurtenant (see fn. 6, ante), Bank of America has not shown 

that Barratt transferred all rights to the reserved easement to the Aragon HOA.

"In case of partition of the dominant tenement the burden must be apportioned 

according to the division of the dominant tenement, but not in such a way as to increase 

the burden upon the servient tenement." (§ 807; see Moylan v. Dykes (1986) 181 

Cal.App.3d 561, 572.) "Each separately owned parcel is entitled to make the uses 

privileged by an easement or profit; provided, however, that if apportionment is required 

to avoid an unreasonable increase in the burden on the servient estate, the use rights are 

appropriately apportioned among the parcels." (Rest.3d Property, Servitudes, § 5.7, 

subd. (1).) 

Here, Barratt effectively subdivided the dominant Aragon parcel among various 

individual owners, including both the Aragon HOA and Bank of America. The Aragon 

HOA and Bank of America thus both have rights of use over, and accordingly "own," the 
30

reserved easement.18 The fact that Barratt conveyed a portion of the Aragon parcel to 

the Aragon HOA first is of no moment. There is no evidence that Barratt gave up the 

right to use the reserved easement that attached to the remainder of the Aragon parcel, a 

portion of which was later conveyed to Bank of America. Bank of America's argument is 

further undermined by the second trustee's deed obtained by Bank of America, which 

expressly recites the reserved easement in the conveyance to Bank of America. On the 

current record, Bank of America is not entitled to summary judgment on this ground.

IV

As a further alternative ground, Bank of America argues that it "is merely a 

lender" with respect to the Aragon project and thus cannot be liable for Schmidt's claims 

under section 3434. Section 3434 provides as follows:

"A lender who makes a loan of money, the proceeds of which are used or 

may be used by the borrower to finance the design, manufacture, 

construction, repair, modification or improvement of real or personal 

property for sale or lease to others, shall not be held liable to third persons 

for any loss or damage occasioned by any defect in the real or personal 

property so designed, manufactured, constructed, repaired, modified or 

improved or for any loss or damage resulting from the failure of the 

borrower to use due care in the design, manufacture, construction, repair, 

modification or improvement of such real or personal property, unless such 

loss or damage is a result of an act of the lender outside the scope of the 

activities of a lender of money or unless the lender has been a party to 

misrepresentations with respect to such real or personal property."

 

18 For its part, the Aragon HOA states that it "does not exclusively own the Easement 

but rather the [Aragon HOA] has the right to use it just like Bank of America." (Italics 

added.) The Aragon HOA further explains that "[a]s a result of the 2008 and 2010 

Foreclosures, under Section 2.26 of the CC&R's, Bank of America succeeded to Barratt's 

position as 'Declarant' with the potential rights to create or modify easements." 
31

As a preliminary matter, Bank of America argues that the Schmidts have waived 

their ability to argue that the court's judgment cannot be affirmed on this ground because 

they allegedly failed to address section 3434 in their opening brief. "Although our review 

of a summary judgment is de novo, it is limited to issues which have been adequately 

raised and supported in plaintiffs' brief. [Citations.] Issues not raised in an appellant's 

brief are deemed waived or abandoned." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 

466, fn. 6 (Reyes).) 

Here, the Schmidts' opening brief discussed Bank of America's contention that it 

was a "mere construction lender" and provided argument and factual support for their

position that Bank of America's involvement in the Aragon project went beyond lending. 

While the Schmidts do not explicitly mention section 3434, it is plain that their argument 

is directed at Bank of America's defense based on that section. Under these 

circumstances, the Schmidts have not waived their ability to challenge the trial court's 

judgment on this basis.

On the merits, Bank of America has provided no argument or analysis regarding 

why section 3434 would support the court's summary judgment ruling. Bank of America 

merely cites the trial court order for support. This is insufficient. (See, fn. 16, ante.) For 

example, Bank of America does not explain how its ownership of various portions of the 

Aragon parcel, which is undisputed, is within "the scope of the activities of a lender of 

money." (§ 3434.) Because Bank of America has not shown that the Schmidts' claims 

are founded solely on its activities as a lender of money, rather than "act[s] of the lender 
32

outside the scope of the activities of a lender of money," summary judgment is 

unavailable on this ground on the current record. (Ibid.)

V

As a final alternative ground, Bank of America argues that former section 1365.9 

entitles it to summary judgment on the Schmidts' claims. That section provided: "Any 

cause of action in tort against any owner of a separate interest arising solely by reason of 

an ownership interest as a tenant in common in the common area of a common interest 

development shall be brought only against the association . . . ." (Former § 1365.9, subd. 

(b).) In order to invoke this section, Bank of America must show that "[t]he association 

maintained and has in effect for this cause of action, one or more policies of insurance 

which include coverage for general liability of the association." (Former § 1365.9, subd. 

(b)(1).) The relevant association here is the Aragon HOA. 

To establish this requirement, Bank of America relies on the declaration of Curt 

LaBarre, an insurance agent who was involved in obtaining liability insurance policies 

for the Aragon HOA. Attached to LaBarre's declaration are two insurance policies for 

the Aragon HOA, one general liability policy and one umbrella liability policy. As to 

each, LaBarre's declaration states, "Coverage for this policy includes tort claims." Bank 

of America argues that because the Schmidts' causes of action are based in tort, and 

because the Aragon HOA has insurance that covers tort claims, the insurance requirement 

of former section 1365.9 is satisfied. 

Bank of America's showing is insufficient. It does not address whether the Aragon 

HOA's insurance covers the Schmidts' causes of action as alleged in their complaint. 
33

(See former § 1365.9, subd. (b)(1) [requiring that the "association maintained and has in 

effect for this cause of action, one or more policies of insurance" (italics added)].) 

LaBarre's statement that the Aragon HOA's "[c]overage . . . includes tort claims" does not 

establish or imply that the Aragon HOA's coverage includes all tort claims. Nor does 

LaBarre's statement address whether the Aragon HOA's coverage includes the Schmidts'

causes of action specifically. While the policies themselves might shed light on the 

coverage (if any) that would be applicable to the Schmidts' claims, Bank of America has 

not pointed to any portion of the policies to support its argument. Together, the general 

and umbrella liability policies contain more than two hundred pages of endorsements, 

qualifications, and exclusions. We are not required to independently review and analyze 

the various policy provisions to determine whether they might support Bank of America's 

position and satisfy its burden on summary judgment. (See Cahill, supra, 194 

Cal.App.4th at p. 956.) 

Because Bank of America has not shown that the Aragon HOA's insurance 

policies satisfy the insurance requirements of former section 1365.9, subdivision (b), the 

trial court's summary judgment cannot be affirmed on this ground. In light of our 

conclusion, we need not address the Schmidts' other contentions regarding why former 

section 1365.9 is not applicable here.

VI

Bank of America and the Aragon HOA argue that the Schmidts have forfeited 

their ability to challenge the court's judgments with respect to their causes of action for 

declaratory and injunctive relief because they contend the Schmidts did not discuss those 
34

causes of action in their opening brief. (See Reyes, supra, 65 Cal.App.4th at p. 466,

fn. 6.) The Schmidts counter that their requests for declaratory and injunctive relief are 

factually and legally intertwined with their other causes of action and thus cannot be 

severed and considered separately on appeal. (See American Enterprise, Inc. v. Van 

Winkle (1952) 39 Cal.2d 210, 217 (American Enterprise).)

"Generally, appellants forfeit or abandon contentions of error regarding the 

dismissal of a cause of action by failing to raise or address the contentions in their briefs 

on appeal. [Citations.] Thus, failure to address summary adjudication of a claim on 

appeal constitutes abandonment of that claim." (Wall Street Network, Ltd. v. New York 

Times Co. (2008) 164 Cal.App.4th 1171, 1177.) In this case, however, the parties'

contentions with respect to the Schmidts' requests for declaratory and injunctive relief 

overlap with the Schmidts' other causes of action. The trial court's order granting the 

Aragon HOA's motion for summary judgment treated the Schmidts' requests for 

declaratory and injunctive relief as entirely dependent on the Schmidts' causes of action 

for trespass and nuisance: "As Schmidt is unable to establish causes of action for trespass 

and nuisance, Schmidt has also failed to establish causes of action for declaratory and/or 

injunctive relief as a matter of law." Similarly, the trial court's order granting Bank of 

America's motion recites grounds for adjudicating the Schmidts' requests for declaratory 

and injunctive relief that are largely subsets of the grounds for the Schmidts' other causes 

of action. By asserting error in the trial court's determination of issues common to all of

their causes of action, the Schmidts adequately put at issue the trial court's judgments 

with respect to their requests for declaratory and injunctive relief. Moreover, resolution 
35

of these issues as to the Schmidts' trespass and nuisance causes of action necessarily 

affects the resolution of the same issues as to the Schmidts' requests for declaratory and 

injunctive relief. As such, consideration of all of the Schmidts' causes of action together 

is proper. (See American Enterprise, supra, 39 Cal.2d at p. 217.)

DISPOSITION

The judgments are reversed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.