Filed 9/27/22; Modified and Certified for Publication 10/26/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SAIFUDDIN TARIWALA et al., 

 Respondents and 

Respondents. 

v.

KEITH MARTIN MACK, 

 Defendant and Appellant. 

2d Civ. No. B311232

(Super. Ct. No. 56-2017-

00501406-CU-OR-VTA)

(Ventura County)

Appellant Keith Martin Mack (Mack) once owned two 

adjoining properties in Thousand Oaks. He lost title to one of the 

properties when he defaulted on a secured loan in 2011. Mack 

has spent the last decade frustrating the attempts of new owners 

to renovate or occupy the house on his former property. 

Saifuddin Tariwala and two other individuals (respondents) 

bought the house from the foreclosing lender in 2017.1 Mack 

1 Tariwala’s co-respondents include Shabbir Saifee and a 

party identified by the mononym “Husaina.”
2

immediately blocked physical access to the house by locking a

gate that spanned their recorded driveway easement. 

Respondents sued and obtained a preliminary injunction

prohibiting Mack from obstructing the easement pending trial. 

The court twice found Mack in contempt after he blocked entry

with garbage, old appliances, and a shifting fleet of decaying cars 

and recreational vehicles. After trial, the court declared the 

easement valid and permanently enjoined Mack from obstructing 

respondents from accessing their property. 

Mack contends the doctrine of merger extinguished the

easement as a matter of law. The trial court abused its 

discretion, he adds, by denying his mid-trial motion to amend his 

answer to raise adverse possession as a defense. We affirm. 

FACTS AND PROCEDURAL BACKGROUND

Mack owns a vacant parcel at 2957 Los Robles Road in 

Thousand Oaks (Mack property). Respondents own a small 

house on an adjoining lot at 2949 Los Robles Road (Tariwala 

property). A recorded easement over the Mack property provides 

the Tariwala property with its only access to the road (the 

easement). 

Mack and his family owned both properties for many years. 

Intra-family transfers and purchases resulted in Mack acquiring 

sole title in 2000. He lost title to the Tariwala property in 2011, 

however, after defaulting on a loan secured by a deed of trust. 

The foreclosing lender initially allowed Mack to remain on the 

Tariwala property so he could remove garbage, inoperable 

vehicles, and other personal items he had accumulated over the 

decades. Mack neither cleared the property nor vacated, forcing 

the lender to file an unlawful detainer and evict him in 2015.

2

2 CitiMortgage, Inc. v. Keith Mack (Super. Ct. Ventura 

County, 2011, No. 56-2011-00405818-CL-UD-SIM).
3

Respondents bought the Tariwala property from the bank 

in 2017.3 Mack did not welcome his new neighbors. He denied 

an easement existed and refused them access over his property so 

they could begin clearing their lot and renovating the nowdilapidated house. Respondents filed a complaint to enforce the 

driveway easement under Civil Code section 809.4 They also 

sought preliminary and permanent injunctions. The trial court 

granted respondents’ motion for a preliminary injunction

prohibiting Mack from obstructing the easement. The court 

found Mack in contempt twice for blocking the easement by

parking vehicles on plaintiff’s easement, including an 

immobilized RV. We affirmed the preliminary injunction in a 

prior appeal. (Tariwala v. Mack (Jan. 24, 2019, B286146) 

[nonpub. opn.] (Tariwala I).)

Respondents prevailed at a three-day court trial.5 The trial

court found the easement valid and enforceable, rejecting the 

argument that Mack’s common ownership of the two lots between 

2000 and 2011 had extinguished the easement through the 

doctrine of merger of title (merger doctrine). It denied Mack’s 

mid-trial motion to amend his answer to plead the affirmative 

defense of adverse possession. The resulting judgment 

permanently enjoined him from “obstructing, interfering with, or 

3 Plaintiff bought the property from First Nationwide 

Mortgage Corporation (FNMC). FNMC was the successor in 

interest of Mack’s foreclosing lender, CitiMortgage, Inc.

4 All further statutory references are to the Civil Code 

unless otherwise specified.

 

5 This was the first phase of a bifurcated trial. The 

statement of decision refers to a second phase at which the 

parties would decide respondents’ claims for monetary relief. 
4

impeding” respondents’ use of the easement and ordered him to 

remove existing encroachments. Mack appealed. 

DISCUSSION 

Merger Doctrine

Mack contends that any easement burdening his property 

was extinguished when he obtained sole title to both properties in 

2000. He contends the trial court erred when it declined to apply 

the merger doctrine under these circumstances. Mack requests 

de novo review, characterizing his appeal as based on undisputed 

facts. We disagree. The court heard conflicting evidence on 

Mack’s merger defense. (See Hamilton Court, LLC v. East

Olympic, L.P. (2013) 215 Cal.App.4th 501, 505 (Hamilton Court), 

citing 4 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 10:41, pp. 

139-140, fns. omitted. [whether merger has occurred is a question 

of fact requiring inquiry into the parties’ intent].) We apply the

substantial evidence standard to factual findings. (See Beyer v. 

Tahoe Sands Resorts (2005) 129 Cal.App.4th 1458, 1470 (Beyer) 

[“To the extent that resolution of the appeal turns on factual 

findings made by the trial court, we review such findings under a 

substantial evidence standard”].)

The merger doctrine is codified in section 811 which states, 

in part, that “[a] servitude is extinguished: [¶] 1. By the vesting 

of the right to the servitude and the right to the servient 

tenement in the same person. . . .” Similarly, section 805 states 

that “[a] servitude thereon cannot be held by the owner of the 

servient tenement.” These statutes “avoid nonsensical easements 

– where they are without doubt unnecessary because the owner 

owns the estate.” (Beyer, supra, 129 Cal.App.4th at p. 1475.) 

“But application of the merger doctrine,” we observed in Mack’s 

prior appeal, “is not automatic.” (Tariwala I, supra, B286146, at 

p. *6.) It requires “a unity of title, in that title and ownership of 

[the dominant and servient tenements] must be coextensive and 
5

equal in validity, quality, right to possession, and all other 

characteristics.” (Beyer, at p. 1473.) Merger will not extinguish 

an easement if the result would be inequitable or would result “in 

an injustice, injury, or prejudice to a third person.” (Hamilton 

Court, supra, 215 Cal.App.4th at p. 505, citing 4 Miller & Starr, 

Cal. Real Estate (3d ed. 2011) § 10:41, pp. 139-140, fns. omitted.) 

At trial, Mack contended the easement was extinguished by 

merger when he acquired sole title to both properties in April of 

2000. Respondents disagreed. They produced evidence that he 

had simultaneously executed a deed of trust that expressly 

referred to the easement. Mack responded that he did not intend 

to pledge the easement at the time; he simply signed the papers 

placed in front of him. He denied knowing any other recorded 

instruments contradicting his account.

The trial court reviewed decades of evidence relating to the 

properties’ chains of title. It concluded Mack never held the two 

properties in unity of title because he encumbered the dominant 

tenancy (the Tariwala property) immediately after acquiring sole 

ownership and again in 2001 and 2005. The court declined to

apply the doctrine because doing so would render the lender’s 

security interest essentially worthless by eliminating the 

Tariwala property’s only access to the road. (Hamilton Court, 

supra, 215 Cal.App.4th at pp. 505-506.) 

Mack contends the trial court applied Hamilton Court in a 

way that “swallows” the merger doctrine whenever third party’s 

interests come into play.6 The trial court’s analysis was more 

6 Justice Mosk proposed such a “mortgage exception” to the 

merger doctrine in his Hamilton Court concurrence. He noted, 

“there is or should be a so-called mortgage—in this case, deed of 

trust—exception to the merger doctrine.” He then continued: “To 

extinguish the interest of the beneficiary of a deed of trust or 

mortgage security by merger would ‘jeopardize, if it did not 
6

nuanced. It scrutinized the parties’ conduct as well as the chain 

of title and physical characteristics of each property. Granting a 

security interest in one property but not the other left open the 

possibility that the “unified” estate could be disjoined if he 

defaulted on the loan. 

Even if Mack had established a unity of interest, we 

conclude the equitable component of the court’s decision would 

have placed its decision on firm footing. Mack did not dispute the 

Tariwala property was legally and physically landlocked. 

Documenting the easement in the pledged deed of trust ensured 

his lender could foreclose on marketable collateral in the event of 

default. Mack presented no evidence the lender would have 

funded his loan in the absence of this crucial provision. The trial 

court correctly considered the profound prejudice the lender’s 

successors in interest, i.e., respondents, would have suffered if 

the merger doctrine were applied and they were left with no 

means to lawfully access their house. We agree with the trial 

court’s rejection of Mack’s plea of ignorance and his

interpretation of sections 805 and 811. The statement of decision 

is a forthright application of Hamilton Court.

Motion to Amend Answer to Proof

Mack moved to amend his answer to plead adverse 

possession as an alternative ground to extinguish the easement.

wholly destroy, the stability of every [such] security.’ [Citation.] 

In this case and most such cases, the holder of the security is not 

a party to the transaction giving rise to the merger doctrine. It 

would be inequitable under the circumstances here to extinguish 

the security rights of such a beneficiary of the deed of trust when 

that security holder has no control over the transaction upon 

which extinguishment of the easement by the merger doctrine is 

claimed.” (Hamilton Court, supra, 215 Cal.App.4th at p. 506-507 

(conc. opn. of Mosk, J.).)
7

The trial court requested supplemental briefing on the point then

denied the motion as untimely. It found allowing the amendment 

would prejudice respondents. The trial court acted well within 

its discretion given the late timing of Mack’s motion and his 

failing to justify the delay. (See Leader v. Health Industries of 

America, Inc. (2001) 89 Cal.App.4th 603, 613, quoting Roemer v. 

Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940 [“‘The law is 

also clear that even if a good amendment is proposed in proper 

form, unwarranted delay in presenting it may—of itself—be a 

valid reason for denial’”].) 

DISPOSITION

The judgment is affirmed. Respondents shall recover their 

costs on appeal.

PERREN, J.*

We concur:

GILBERT, P. J. YEGAN, J. 

* Retired Associate Justice of the Court of Appeal, Second 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
8

Vincent O’Neill, Judge

Superior Court County of Ventura

______________________________

Law Offices of Michael D. Kwasigroch, Michael D. 

Kwasigroch, for Defendant and Appellant. 

Law Office of Daniel Friedlander, Daniel A. Friedlander, 

for Respondents and Respondents. 
Filed 10/26/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

SAIFUDDIN TARIWALA et al., 

 Plaintiffs and Respondents, 

v.

KEITH MARTIN MACK, 

 Defendant and Appellant. 

2d Civ. No. B311232

(Super. Ct. No. 56-2017-

00501406-CU-OR-VTA)

(Ventura County)

ORDER MODIFYING AND 

CERTIFYING OPINION FOR 

PUBLICATION

[No Change in Judgment]

THE COURT*:

The opinion in the above-entitled matter, filed on 

September 27, 2022, was not certified for publication in the 

Official Reports. For good cause it now appears that the opinion 

should be published in the Official Reports and it is so ordered.

It is also ordered that the designation for Saifuddin 

Tariwala et al. in the caption and the counsel page originally 

reading “Respondents and Respondents” be revised to read: 

Plaintiffs and Respondents.
2

There is no change in the Judgment.

*PERREN, J.* GILBERT, P.J. YEGAN, J.

* Retired Associate Justice of the Court of Appeal, Second 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.