Filed 1/5/22 Grosman v. Kasloff CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ALAN GROSMAN et al.,

 Appellants and 

 Cross-Respondents,

v.

MASAKO T. KASLOFF,

 Respondent and 

 Cross-Appellant.

B298484

(Los Angeles County

Super. Ct. Nos. SC122883 &

SC124531)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mitchell L. Beckloff, Judge, and Mark A. Young, 

Judge. Affirmed in part and reversed in part.

Cox, Castle & Nicholson LLP, Alicia N. Vaz and Scott R. 

Laes, for Appellants and Cross-Respondents. 

Thompson Coburn LLP, Steven A. Morphy; K&L Gates LLP

and Helen B. Kim, for Respondent and Cross-Appellant.

______________________
2

INTRODUCTION

Alan and Michelle Grosman1 had an access easement 

through the property of Masako Kasloff.2 In this consolidated 

case, the Grosmans sued Kasloff for injunctive relief to remove a 

planter and retaining wall she built on part of the easement, and 

for damages for ficus trees and other items of the Grosmans that 

Kasloff allegedly removed or damaged. Kasloff sued the Grosmans 

for injunctive relief to trim their ficus trees, which bordered

Kasloff’s property, to six feet, in compliance with the Malibu 

Municipal Code. The trial judge3 bifurcated the case, heard the 

equitable issues in a bench trial, issued a statement of decision on 

those issues and scheduled a trial setting conference on the legal 

issues. 

Kasloff moved for entry of judgment. A subsequent judge4—

different from the one who presided over the trial of the equitable 

issues and wrote the statement of decision—granted the motion.

On appeal, the Grosmans argue: (1) the trial judge erred by 

denying their claim for injunctive relief regarding Kasloff’s use of 

the easement, (2) the trial judge erred by finding the Grosmans 

failed to establish their ficus trees were planted before 1993 and

consequently by granting Kasloff’s claim for injunctive relief

regarding the height of the Grosmans’ ficus trees, and (3) the 

1 We refer to Alan Grosman by his first name where necessary 

to avoid confusion with Michelle Grosman.

2 The property was owned by the Masako T. Kasloff Trust. 

Kasloff was a trustee of the trust and lived on the property.

3 Judge Mitchell L. Beckloff.

4 Judge Mark A. Young.
3

subsequent judge erred by finding the statement of decision on the 

equitable issues resolved the legal issues and consequently by 

granting judgment in favor of Kasloff. 

Both the Grosmans, on appeal, and Kasloff, on cross-appeal, 

argue the trial judge erred by saying the Grosmans may sue 

Kasloff for injunctive relief in the future. 

We affirm in part and reverse in part. We agree with the 

Grosmans that the trial court erred by finding the statement of 

decision resolved the remaining legal issue. But we disagree with

the parties’ other arguments.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties and Their Complaints

The Grosmans and Kasloff were neighbors. To understand 

the dispute, two background facts are necessary. First, to access 

their property (the dominant estate), the Grosmans had a 20-footwide nonexclusive easement through Kasloff’s property (the 

servient estate). Second, the Malibu Municipal Code does not 

allow hedges that form a barrier and serve the same purpose as a 

fence or wall to exceed six feet in height. (Malibu Mun. Code, ch. 

17.40, pt. 17.40.030(A)(3).) But the height requirement may not 

apply if the hedges were planted before March 26, 1993.

5 (Id., ch. 

17.60, pt. 17.60.040(A).) 

5 Kasloff, in her trial brief, argued that even though the 

Malibu Code excludes trees planted before March 26, 1993, from 

the height requirement, the code still requires that after 20 years,

those trees must follow the height requirement. (Malibu Mun. 

Code, ch. 17.60, pt. 17.60.040(C)(4).) But even this exception to 

the exception has exceptions, which the appellate record does not

address. Kasloff does not reraise this argument on appeal.
4

This appeal concerns two of the several lawsuits the 

neighbors have filed against each other. 

In the first lawsuit, the Grosmans sued Kasloff for injunctive 

relief and damages. The injunctive relief was for a court order 

that Kasloff remove a planter and retaining wall she had built in 

the easement. The damages were for Kasloff’s alleged removal 

and destruction of the Grosmans’ ficus trees, a fence, irrigation 

equipment and baseboards, and her alleged welding of a fence post 

to the Grosmans’ gate. 

In the second lawsuit, Kasloff sued the Grosmans for

injunctive relief/quiet title and damages. The injunctive relief was 

for a court order that the Grosmans trim their ficus trees, which 

formed a hedge bordering Kasloff’s property, down to the general 

six-foot height requirement, and for the easement to be deemed 

abandoned by the Grosmans. The damages were for the alleged

nuisance created by the Grosmans’ ficus trees exceeding 10 feet in 

height. 

The trial judge consolidated the cases and bifurcated the 

trial, saying that the “[e]quitable [i]ssues, and only those facts, will 

be tried to the court as phase one. . . . If, after the [c]ourt [t]rial, 

legal issues still remain, they will be tried by jury trial as phase 

two.”

6 Both parties submitted briefs before the trial on equitable 

issues. The Grosmans’ brief explained how the equitable issues 

included “trespass and injunctive relief to make Mrs. Kasloff 

remove the things she impermissibly built within the Grosmans’ 

access easement,” but the “legal action [was] for damages (trebled 

6 The court referred to “legal issues” but the only remaining 

legal issue was whether Kasloff was liable for damages for 

removing the Grosmans’ ficus trees, as discussed.
5

and/or doubled) for willful and wrongful removal of their trees by 

Mrs. Kasloff.” 

B. Phase One – Trial of the Equitable Issues

The trial judge heard a bench trial on three equitable issues: 

“(1) The Grosmans’ claim related to Ms. Kasloff’s construction of 

certain permanent structures (a wall and planter) on her property 

but within Grosmans’ access easement; (2) Ms. Kasloff’s fire lane 

injunction request related to vegetation encroaching onto her 

property . . . ; and (3) Ms. Kasloff’s northern property line 

injunction request requiring the Grosmans to trim the height of 

their ficus hedge.”7 

1. Summary of relevant evidence

The trial court heard testimony from witnesses and received

photographs and documents in evidence.

On the first issue, the parties agreed the easement is a “20-

foot non-exclusive access easement,” and “the purpose of the 

easement is to provide ingress and egress to the dominant estate, 

the Grosman property.” The evidence showed Kasloff had built a

retaining wall and planter on the easement portion that the 

Grosmans were not using for ingress and egress. At trial and on 

appeal, the Grosmans acknowledged that Kasloff’s wall and 

planter did not hinder access to their property. But the Grosmans

were planning to develop their property “in such a way that 

7 The trial court found Kasloff was not entitled to relief on the 

second issue because Kasloff failed to allege it in her complaint. In 

any event, the court found she would not have been entitled to 

relief even if it had been raised because the evidence showed the 

Grosmans’ vegetation did not constitute a nuisance. Kasloff does 

not reraise this issue on appeal.
6

ingress and egress from their property will require use of that part 

of the easement where Ms. Kasloff has constructed 

improvements.” The Grosmans had submitted plans to the City of 

Malibu for permits, but the permits were not issued before the end 

of the trial. 

On the third issue, the parties stipulated the Grosmans’

ficus trees bordering Kasloff’s property are 12 feet tall. Alan

testified they ranged from eight to 16 feet tall. It was

uncontroverted that the Grosmans’ ficus trees did not comply with 

the general six-foot height limit. For the Grosmans’ ficus trees to 

be excepted from the height limit, the trees would have to have 

been planted before March 26, 1993. The parties did not dispute 

that the Grosmans’ ficus trees would also be excepted from the 

height limit if the trees replaced ficus trees planted before March

26, 1993, and removed by Kasloff in 2014.

According to the cover letter in the Grosmans’ exhibit 94, the

pictures in that exhibit included images of the Grosmans’ ficus 

trees, which were over six feet tall, before Kasloff removed them in 

2014. Some photos showed the Grosmans’ toddler grandson on a 

swing.

Carl Mellinger, an arborist and Kasloff’s expert, reviewed 

the Grosmans’ photographs, which included the toddler and 

testified the ficus trees appeared to be only one to two years old. 

Patrick Clemons, a surveyor, testified he was over six feet 

tall, and the ficus trees near the property line were much taller 

than him when he surveyed the property in 2013. 

Jo Ruggles, a friend of the former owner of the Grosmans’

property, testified tall trees had existed along the Grosmans’ and 

Kasloff’s property line during the times she visited between 1987
7

and 2004. She also identified pictures of the trees taken in the 

1990s and 2000.

8

Kasloff’s exhibit 15 was an invoice that showed the 

Grosmans’ gardener purchased 122 ficus trees of different sizes in 

October 2011. Carlos Cabrera, the Grosmans’ gardener, testified 

he planted new ficus trees in front of the old ones to increase 

privacy. 

2. Statement of decision

On September 1, 2016, the trial judge issued its statement of 

decision. The decision explained the trial court “bifurcated the 

equitable issues from the legal issues in the cases for purposes of 

trial. The court heard the equitable issues without a jury. The 

legal issues remained to be tried to a jury.” 

On the first issue, the court found “the Grosmans did not 

meet their burden of demonstrating that Ms. Kasloff has 

unreasonably interfered with the easement’s purpose.” The court 

applied Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 

697 (Scruby). The issue was “whether the Grosmans have met 

their burden of establishing that Ms. Kasloff’s use of her property–

–the servient estate––unreasonably interferes with the easement’s 

purpose.” Because there was no evidence that Kasloff’s structures 

interfered with the Grosmans’ access to their land, the court 

denied the Grosmans’ requested relief. The court said, “That the 

Grosmans may develop their property in the future is of no 

consequence today; the issue is speculative.”

But the court did acknowledge that “in the future, facts 

could develop that might assist the Grosmans in meeting their 

8 The Grosmans did not include these pictures with the 

exhibits they lodged with our court.
8

burden of demonstrating unreasonable interference by Ms. 

Kasloff.” 

On the third issue, the court found “the Grosmans did not 

meet their burden of demonstrating that the ficus trees in issue 

existed prior to March 23, 1993.” The court explained that because 

“[t]here is no dispute that the ficus trees running along the northsouth boundary line do not comply with the current six feet [sic]

height limit that is now in effect in the City of Malibu,” the 

Grosmans had to demonstrate that “the trees existed prior to 

March 26, 1993, to successfully defend against Ms. Kasloff’s 

request.” According to the court, “[t]he evidence before the court 

does not support the Grosmans’ claim that a ‘thick, lush, full, tall 

and quite lovely’ ficus hedge existed between the properties prior 

to the Grosmans’ purchase of the property in 2011. In fact, the 

court finds that to the extent ficus trees existed at or near the 

border of the properties, the ficus trees were planted sometime 

after the Grosmans purchased their property.” The court ordered 

the Grosmans to cut their ficus trees to six feet. 

The court also noted, “If the trees were ripped out as claimed 

by the Grosmans, Mr. Mellinger opined that there would have 

been substantial disruption to the soil from removal of the root 

balls where the trees were allegedly removed. There were no holes 

in the soil where trees were allegedly removed. The court finds 

Mr. Mellinger’s testimony on this issue persuasive.”

The court set a date for the “trial setting conference for the 

remaining legal issues.”9 

9 After the City of Malibu issued the Grosmans permits to 

develop their property but before judgment was entered in this 

case, the Grosmans sued Kasloff, for among other things, 
9

C. Kasloff’s Motion for Entry of Judgment and the Grosmans’ 

Motion for Reconsideration

In March 2018, before the trial setting conference, Kasloff 

moved for entry of judgment. According to Kasloff, the “resolution 

of the equitable issues also resolved the legal issues.” Kasloff 

argued the legal issue was damages caused by Kasloff’s alleged

removal of the Grosmans’ ficus trees, but the court had already 

found that no trees had been removed. Kasloff relied on the trial 

judge’s note in his statement of decision that according to 

Mellinger, the removal of ficus trees would have caused

substantial disruption to the soil, but there were no holes. 

In September 2018, the parties stipulated to continue the 

hearing on Kasloff’s motion and the trial setting conference until 

the trial judge returned to his department after a temporary 

reassignment. The trial court set the hearing on the motion for 

May 29, 2019.

In November 2018, the case was reassigned to the 

subsequent judge. 

On May 17, 2019, the Grosmans filed a one-paragraph 

opposition to Kasloff’s motion.10 They argued that the issues 

raised by Kasloff were “essentially duplicative of those raised in 

injunctive relief to remove her structures from the easement. 

Kasloff filed a motion for summary judgment, seeking a dismissal 

based on the statement of decision in this case.

10 Code of Civil Procedure section 1005, subdivision (b), states 

an opposition to a motion should be filed nine court days before a 

hearing. 

The Grosmans conceded their opposition, filed on May 17, 

2019, was not timely. Their counsel said it was due to his and his 

office’s calendaring error. 
10

the now-denied motion to abate” filed in a previous case. They 

requested judicial notice of the trial judge’s statement of decision, 

which the Grosmans argued “specifically left open the issues which 

Ms. Kasloff would have deemed to somehow be determined.” 

On May 29, 2019, Kasloff filed a reply, arguing that the

Grosmans’ opposition was untimely and that the motion to abate

was irrelevant because it was based on their claims regarding 

Kasloff’s interference with the easement, not the removal of trees.

The subsequent judge heard the motion on the same day. 

The Grosmans argued the statement of decision did not decide 

their damage claims in their complaint, which included Kasloff’s 

alleged removal of the Grosmans’ ficus trees, a shared fence and 

landscaping irrigation. The court was reluctant to hear the new 

arguments made by the Grosmans during oral argument. The 

court noted that the Grosmans did not even bring a complaint to 

the hearing. The court said it had read the complaint but did not 

recall “any other claims for damages that weren’t address[ed] by 

[the trial judge].” The court said it was granting the motion in 

part because, in their opposition, the Grosmans referred to the 

motion to abate, which had no bearing on the damages issue, and 

because the Grosmans “made no record before the court.” 

In its minute order, the court found that the Grosmans’

opposition was untimely and did not address the issues 

encompassed in Kasloff’s motion for entry of judgment. The court 

wrote that the trial judge “determined that [Kasloff] did not 

remove the ficus trees from [the Grosmans’] property. Therefore, 

[the Grosmans’] damage claims . . . based on those allegations are 

barred. Therefore, [Kasloff’s] motion to enter judgment in [her] 

favor as to the remaining legal claims . . . is GRANTED.” 

On May 31, 2019, the Grosmans filed a motion for 

reconsideration, explaining that the statement of decision did not 
11

decide the legal issues and attaching their complaint. Kasloff 

opposed the motion.

In June 2019, after a hearing, the court denied the motion

because there were no new facts, law, or circumstances to justify 

reconsideration. The court entered judgment, explaining “based 

upon the September 1, 2016 Statement of Decision with respect to 

the parties’ equitable claims, the Grosmans’ legal claims for 

damages against [Kasloff] are barred, and judgment should be 

entered in favor of [Kasloff] and against the Grosmans on those 

claims.”

DISCUSSION

A. The Trial Court Did Not Err by Denying the Grosmans’

Claim for Injunctive Relief Regarding Kasloff’s Use of the 

Easement

1. Relevant law

The rule under Scruby is “[t]he owner of the servient estate 

may make continued use of the area the easement covers so long 

as the use does not ‘interfere unreasonably’ with the easement’s 

purpose.” (37 Cal.App.4th at pp. 703-704.) In Scruby, the 

appellant, who had a “‘nonexclusive easement, 52 feet in width, for 

road and utility purposes,’” sued the respondent, the owner of the 

servient estate, to enjoin the respondent from placing an 

obstruction in the designated easement area. (Id. at pp. 700-701.) 

The trial court and court of appeal, relying on extrinsic evidence, 

determined that the easement’s purpose was to provide the 

appellant, the dominant estate owner, a right of ingress and egress 

to the appellant’s property. (Id. at p. 705.) The court of appeal

affirmed the judgment for the respondent because the appellant 

conceded the respondent’s use of the easement area did not block 

access to its property. (Id. at pp. 706, 708.) The court explained, 
12

“when the width of an easement is definitely fixed by the grant or 

reservation creating the same, its use may be interpreted as 

commensurate with the entire width thereof.” (Id. at p. 704.) But 

“[i]t is equally well settled . . . that ‘[t]he specification of width and 

location of surface rights-of-way does not always determine the 

extent of the burden imposed on the servient land.’” (Ibid.)

Scruby’s rule rests on the two principles articulated by the 

Supreme Court in Ballard v. Titus (1910) 157 Cal. 673 (Ballard),

and City of Pasadena v. California-Michigan Land & Water Co.

(1941) 17 Cal.2d 576 (City of Pasadena). First, the owner of a 

dominant estate of an easement of an expressly specified width 

“may have the absolute right to use to the limits of the specified 

width.” (Ballard, at pp. 681-682.) Second, “the general rule is 

clearly established that, despite the granting of an easement, the 

owner of the servient tenement may make any use of the land that 

does not interfere unreasonably with the easement.” (City of 

Pasadena, at p. 579.)

2. Standard of review

“[T]he application of law to undisputed facts ordinarily 

presents a legal question that is reviewed de novo.” (Boling v. 

Public Employment Relations Board (2018) 5 Cal.5th 898, 912.)

“‘[W]here the issue on appeal turns on a failure of proof at 

trial, the question for a reviewing court becomes whether the 

evidence compels a finding in favor of the appellant as a matter of 

law. [Citations.] Specifically, the question becomes whether the 

appellant’s evidence was (1) “uncontradicted and unimpeached” 

and (2) “of such a character and weight as to leave no room for a 

judicial determination that it was insufficient to support a 

finding.”’” (Sonic Manufacturing Technologies, Inc. v. AAE 

Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466 (Sonic); see also 
13

Ajaxo, Inc. v. E*Trade Financial Corporation (2020) 48 

Cal.App.5th 129, 163-164.) 

“The appellate court cannot substitute its factual 

determinations for those of the trial court; it must view all factual 

matters most favorably to the prevailing party and in support of 

the judgment. [Citation.] ‘“‘All conflicts, therefore, must be 

resolved in favor of the respondent.’”’” (Dreyer’s Grand Ice Cream, 

Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838 (Dreyer’s 

Grand Ice Cream).)

3. The trial court did not err by applying Scruby’s rule

The Grosmans argue the trial judge erred by applying 

Scruby to analyze Kasloff’s easement use.

We review this issue de novo and disagree with the 

Grosmans.

Scruby’s rule applies and, by extension, the principles from 

Ballard and City of Pasadena. As the trial court noted, the access 

easement in this case resembles the access easement in Scruby. It 

is uncontroverted the easement is a “20-foot non-exclusive access 

easement,” and “the purpose of the easement is to provide ingress 

and egress to the dominant estate, the Grosman property.” 

The Grosmans’ primary argument is that because the 

easement in Scruby was ambiguous, the court’s holding was 

limited to ambiguous easements. Not so. No portion of the Scruby 

opinion outlining the rule governing easements is prefaced with 

the notion that the rule only applies when the easement is

ambiguous. (See Scruby, supra, 37 Cal.App.4th at pp. 702-703, 

704; see also Vieira Enterprises, Inc. v. McCoy (2017) 8 

Cal.App.5th 1057, 1087 [rejecting the argument that Scruby’s rule 

only applies to ambiguous easements: “[Appellant] contends that 

Scruby is distinguishable because [appellant]’s recorded right of 
14

way is not ambiguous. We regard Scruby as illustrating the 

principle . . . ‘an injunction . . . will be denied when the obstruction 

does not constitute a material interference with the right of the 

owner of the easement.’”].) 

Also, the ambiguous nature of the easement in Scruby was 

about the easement’s purpose. (Scruby, supra, 37 Cal.App.4th at 

p. 705 [“Resort to surrounding circumstances leaves no doubt in 

our minds, as it left no doubt for the trial court, that the easement 

before us can be reasonably construed as granting Scruby the right 

of ingress and egress to the property.”].) After the court of appeal 

determined the easement’s purpose was access to the dominant 

estate, the court applied the general rules outlined in City of 

Pasadena to find no unreasonable interference by the servient 

estate owner. Here, the easement’s purpose—giving the Grosmans 

access to their property—was undisputed. So, all that was left to 

determine was whether Kasloff unreasonably interfered.

The Grosmans’ argument that the trial court “essentially” 

extinguished their right to use the entire width of the easement 

mischaracterizes the court’s holding. The court expressly declined 

“Kasloff’s invitation” to interpret the scope of the easement, which 

the court noted was Kasloff’s attempt to “ask[] for a partial 

extinguishment of the easement.” The court explained, “‘[n]o 

California case, or any logical extension of a California case, 

supports’” the idea that an owner of a servient estate can 

extinguish an easement through the owner’s use of the property. 

4. The trial court did not err by finding the Grosmans 

failed to establish Kasloff unreasonably interfered with 

the easement’s purpose

The evidence does not compel a finding for the Grosmans as 

a matter of law. (See Sonic, supra, 196 Cal.App.4th pp. 465-466).
15

It was uncontroverted the easement’s purpose was to provide 

the Grosmans’ ingress and egress to their property. The 

Grosmans acknowledged in the trial court and on appeal at oral 

argument that Kasloff’s retaining wall and planter did not impede 

access to the Grosmans’ property. So, as the trial court explained, 

“There is no evidence . . . that Ms. Kasloff has in any way 

interfered with the Grosmans’ access to their land. As their 

property is currently developed, the Grosmans have complete and 

total ingress and egress to their property.” 

The Grosmans’ argument that the trial court found their 

claim premature is a mischaracterization of the court’s holding. 

The court never found the Grosmans’ claim was premature. 

Instead, the court specifically said, “On the facts before this court, 

the court cannot find that Ms. Kasloff has unreasonably interfered 

with the purpose of the easement.” The court was required to 

assess Kasloff’s use based on the facts before it. As the court 

acknowledged, the fact that the Grosmans’ may develop their 

property in a way that would render Kasloff’s future use an 

unreasonable interference does not mean that Kasloff’s current 

use is unreasonable. 

5. The trial court’s acknowledgment that the Grosmans 

may sue Kasloff for injunctive relief in the future is not 

a cognizable issue for appeal

In his statement of decision, the trial judge said, “Of course, 

in the future, facts could develop that might assist the Grosmans 

in meeting their burden of demonstrating unreasonable 

interference by Ms. Kasloff.” 

On appeal, both parties argue this comment was error. In 

fact, this is Kasloff’s sole issue on cross-appeal.
16

But the comment is not reviewable because it was not an 

order, ruling or finding, but rather dicta. The comment did not 

decide an issue before the court or guarantee the success of a 

future lawsuit by the Grosmans against Kasloff.

B. The Trial Court Did Not Err by Finding the Grosmans 

Failed To Establish the Ficus Trees Were Planted Before

1993

1. Standard of review

As discussed, when a trial court finds a party failed to meet 

its burden, “‘the question for a reviewing court becomes whether 

the evidence compels a finding in favor of the appellant as a 

matter of law.’” (Sonic, supra, 196 Cal.App.4th at p. 466.) And we 

view “all factual matters most favorably to the prevailing party 

and in support of the judgment,” meaning all conflicts are resolved 

in favor of the respondent. (Dreyer’s Grand Ice Cream, supra, 218 

Cal.App.4th at p. 838.) 

2. The evidence does not compel a finding in favor of the 

Grosmans as a matter of law

“This is simply not a case where undisputed facts lead to 

only one conclusion,” and it is not the function of this court to retry 

the case. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528-1529, 

disapproved of on another ground by Conservatorship of O.B.

(2020) 9 Cal.5th 989, 1010, fn. 7.)

On appeal, the Grosmans rely on five pieces of evidence: 

three photographs in exhibit 94, specifically 94-333, 94-335 and 

94-336, and the testimonies of Clemons and Ruggles. But based 

on the record before us, this evidence is not dispositive. 

The photographs do not compel a finding the ficus trees at 

issue existed before March 26, 1993. According to the cover letter
17

in exhibit 94, the “pictures show some of the trees that were later 

destroyed.” But it is at best arguable when or where the photos

were taken. For example, the trees in image 94-336 appear to 

have been planted in 2011. That image depicts the Grosmans’

toddler grandson on a swing in front of hedges. Their grandson 

was born in 2011. Mellinger, an expert, testified the trees in the 

background were only one to two years old, and an invoice showed

the Grosmans’ gardener bought 122 ficus trees in 2011. 

Likewise, the testimonies of Clemons and Ruggles do not 

compel a finding the ficus trees existed before March 26, 1993. 

Clemons said that when he visited the property during a 2013 

survey, he saw the ficus trees near the property line were over six 

feet tall. But Clemons’s testimony does not necessarily mean that 

the trees were planted before March 26, 1993. Similarly, Ruggles 

testified tall trees existed along the Grosmans’ and Kasloff’s 

property line between 1987 and 2004, but not that they were the 

ficus trees at issue. 

C. The Trial Court Erred by Finding the Statement of Decision 

on the Equitable Issues Resolved the Legal Issue

1. Relevant law and standard of review

The meaning of a court order is determined by the whole 

order and, when necessary, the entire record: “‘The true measure 

of an order . . . is not an isolated phrase appearing therein, but its 

effect when considered as a whole. [Citations.] In construing 

orders they must always be considered in their entirety, and the 

same rules of interpretation will apply in ascertaining the 

meaning of a court’s order as in ascertaining the meaning of any 

other writing. If the language of the order be in any degree 

uncertain, then reference may be had to the circumstances 

surrounding, and the court’s intention in the making of the same.’” 
18

(In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 

1429-1430 (Ins. Installment).) “‘The rule with respect to orders 

and judgments is that the entire record may be examined to 

determine their scope and effect.’” (Dow v. Lassen Irrigation Co.

(2013) 216 Cal.App.4th 766, 780.)

“The meaning of a court order or judgment is a question of 

law within the ambit of the appellate court.” (Ins. Installment, 

supra, Cal.App.4th at p. 1429.) “We review questions of law under 

the independent standard of review.” (Fisher v. State Personnel 

Board (2018) 25 Cal.App.5th 1, 14.)

2. The statement of decision resolved only the equitable 

issues

In his minute order, the subsequent judge found the trial 

judge’s statement of decision on the equitable issues also 

resolved the one remaining legal issue between the parties. 

Specifically, the subsequent judge wrote that “the Grosmans’ legal 

claims for damages against [Kasloff] are barred” “based upon the 

September 1, 2016 Statement of Decision with respect to the 

parties’ equitable claims.” According to the subsequent judge, the 

trial judge had “determined that [Kasloff] did not remove the ficus 

trees from [the Grosmans’] property. Therefore, [the Grosmans’] 

damage claims . . . based on those allegations are barred.” The

subsequent judge relied on this quote from the trial judge’s 

statement of decision: “‘[if] [sic] the trees were ripped out as 

claimed by the Grosmans, Mr. Mellinger opined that there would 

have been substantial disruption to the soil from removal for [sic]

the root balls where the trees were allegedly removed. There were 

no holes in the soil where trees were allegedly removed. The 

Court finds Mr. Mellinger’s testimony on this issue persuasive.’” 
19

On appeal, the Grosmans argue the subsequent judge erred 

by finding the trial judge’s statement of decision resolved more 

than the equitable issues.

We agree with the Grosmans.

“‘It is well established that, in a case involving both legal 

and equitable issues, the trial court may proceed to try the 

equitable issues first, without a jury . . . , and that if the court’s 

determination of those issues is also dispositive of the legal issues, 

nothing further remains to be tried by a jury.’” (Orange County 

Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 

252, 355.) 

But here, the determination of the equitable issues was not 

dispositive of the legal issue of whether Kasloff removed the 

Grosmans’ ficus trees. The trial judge did not have to decide the 

legal issue to resolve the equitable issues. And in any case, the 

judge’s statement of decision did not explicitly decide the legal 

issue.

Reading the statement of decision as a whole, it is clear the

trial judge intended to resolve only the equitable issues during its 

phase one bench trial and intended to have a separate trial on the 

remaining legal issue. The court explained that it had “bifurcated 

the equitable issues from the legal issues,” and that although the 

court “heard the equitable issues without a jury,” “[t]he legal 

issues remain to be tried to a jury.” The court noted the limited 

scope of its bench trial: “the parties present[ed] three issues for 

determination by the court: (1) The Grosmans’ claim related to Ms. 

Kasloff’s construction of certain permanent structures (a wall and 

planter) on her property but within Grosmans’ access easement; 

(2) Ms. Kasloff’s fire lane injunction request related to vegetation 

encroaching onto her property . . . ; and (3) Ms. Kasloff’s northern 

property line injunction request requiring the Grosmans to trim 
20

the height of their ficus hedge.” As a result, the court scheduled a

“trial setting conference for the remaining legal issues in the 

cases.” 

In Darbun Enterprises, Inc. v. San Fernando Community 

Hospital (2015) 239 Cal.App.4th 399, 411 (Darbun), the court of 

appeal held “the [trial] court’s determination of the equitable issue 

was not dispositive of the legal issue of breach because the court, 

on its own, decided to limit the scope of the first phase to exclude”

the issue of breach. (Ibid.) The appellate court explained, the trial 

court’s limitation on the issue of breach meant “it was not acting 

as the proper fact finder on breach, [so] the court’s statements 

relating to [the appellant’s] breach did not foreclose jury 

determination on that issue.” (Ibid.) “The court’s finding of 

breach, if it was an actual ruling of the court, improperly usurped 

an issue that was reserved for the jury, which ultimately found in 

favor of [the appellant]. It was not necessary for the court to make 

a finding on breach in order to decide the availability of specific 

performance and . . . the court had made it clear that it was not 

doing so.” (Ibid.)

This case is like Darbun. Most obvious, in both cases, the 

trial courts limited the scope of their phase one bench trial to an 

equitable issue or issues and excluded a legal issue. (See Darbun, 

supra, 239 Cal.App.4th at p. 411.) Here, before the bench trial, the

trial court said, “The [e]quitable [i]ssues, and only those facts, will 

be tried to the Court as phase one.” Also, in both cases, it was not 

necessary for the trial court to make a finding on the legal issue to 

decide the equitable issues. (See ibid.) Here, the trial court did 

not need to resolve whether Kasloff removed the Grosmans’ ficus 

trees to determine whether either party was entitled to injunctive

relief. Kasloff acknowledged this point in her trial brief: “We 

point out to the Court that the issues of the allegedly removed 
21

ficus trees are not part of the ‘equitable bundle’ and we do not

expect them to be litigated in the first phase of the trial.” Here, as 

in Darbun, the trial court’s determination of the equitable issues 

was not dispositive of remaining the legal issue.

3. The remaining legal issue included only the Grosmans’

damage claim for Kasloff’s alleged removal of the

Grosmans’ ficus trees

The Grosmans argue their remaining legal issues included

damage claims against Kasloff for more than removing ficus trees. 

Their complaint also alleged Kasloff’s welding of a post to the 

Grosmans’ gate, and Kasloff’s removing and destroying the 

Grosmans’ chain-link fence, irrigation equipment and baseboards. 

But the Grosmans forfeited this argument. First, as the 

Grosmans acknowledge, their written opposition to Kasloff’s

motion for entry of judgment was untimely. Second, in their 

opposition, the Grosmans did not argue legal issues or damages

consisted of more than Kasloff’s alleged removal of the ficus trees.

Third, the only time the Grosmans discussed additional legal 

issues, damages or the complaint was at the hearing on the 

motion, which was too late. (See Murray & Murray v. Raissi Real 

Estate Development, LLC (2015) 233 Cal.App.4th 379, 383-384, 

389, fn. 2 [explaining an argument “raised for the first time at the 

hearing on its motion . . . absent good cause . . . is unfair to 

opposing counsel and, in most circumstances, should not be 

condoned”].)

The Grosmans’ contention they raised the additional legal 

issues or damage claims in their motion for reconsideration lacks 

merit. Their motion for reconsideration was improper, as 

discussed below, and consequently could not preserve an issue for 

appeal.
22

4. The trial court did not abuse its discretion by denying 

the Grosmans’ motion for reconsideration11

Code of Civil Procedure section 1008, subdivision (a), allows 

parties to file a motion for reconsideration of an order “based upon 

new or different facts, circumstances, or law.” “[T]he party 

seeking reconsideration must provide not only new evidence but 

also a satisfactory explanation for the failure to produce that 

evidence at an earlier time.” (Mink v. Superior Court (1992) 2 

Cal.App.4th 1338, 1342.)

The Grosmans failed to present new or different facts in 

their motion for reconsideration. Instead, they argued “the actual 

operative complaint or an accurate itemization of the Grosmans’ 

damages claims” should suffice. But the complaint and the 

damage claims alleged in it were available since the case’s 

inception. 

The Grosmans also failed to give a satisfactory explanation 

for their failure to timely raise these facts in their written 

opposition to Kasloff’s motion for entry of judgment. According to 

the Grosmans, the facts were not before the court because Kasloff 

had misrepresented the damage claims in her motion, the 

Grosmans’ counsel failed to argue the complaint in the written

opposition to Kasloff’s motion, and a copy of the complaint was not 

in the courtroom during the hearing on Kasloff’s motion. None of 

this excuses the Grosmans’ tardiness. Once Kasloff served her 

motion, the Grosmans were on notice to file a written opposition, 

11 “An abuse of discretion standard applies to a court’s denial of 

a motion for reconsideration.” (Hudson v. County of Los 

Angeles (2014) 232 Cal.App.4th 392, 408.)
23

raising any argument, law or facts they thought necessary.

12 (See 

Hennigan v. White (2011) 199 Cal.App.4th 395, 406; Morris v. 

AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460 [“[T]he trial court 

denied a motion for reconsideration based on evidence that should 

have been included in the initial opposition to the motion but was 

not, and thus was not a proper basis for reconsideration”].)

The Grosmans’ reliance on Kalivas v. Barry Controls Corp.

(1996) 49 Cal.App.4th 1152, and Johnston v. Corrigan (2005) 127 

Cal.App.4th 553, is misplaced. In Kalivas, the court of appeal 

reversed an order denying a motion for reconsideration of an order 

granting summary judgment against the appellant. (Kalivas, at 

p. 1154.) According to the appellate court, the appellant’s failure 

to file an opposition or appear at the hearing on the motion for 

summary judgment was “excusable and resulted from an 

impermissible courtroom local rule.” (Ibid.) The appellant had 

been misled by local rules to believe that the hearing was canceled, 

and there was an order with the judge’s signature stating “‘the 

pending motion(s) is/are ordered off calendar.’” (Id. at p. 1161.) In 

Johnston, the court of appeal affirmed an order granting a motion 

for reconsideration of an order denying a motion for attorney fees. 

(Johnston, at pp. 556-557.) The appellate court explained the 

respondents had presented evidence in their motion for 

reconsideration that the trial court had failed to consider their

earlier timely filing. (Id., at p. 556.)

None of those facts are present here. In this case, the 

Grosmans had over a year to file an opposition and prepare for the 

12 Kasloff served the Grosmans with her motion to enter 

judgment on March 21, 2018. 
24

hearing on Kasloff’s motion to enter judgment. Although their 

opposition was untimely, the court still considered it.

DISPOSITION

The judgment and order granting the motion to enter 

judgment are reversed. The order, denying the Grosmans’ request 

for injunctive relief relating to Kasloff’s easement use and 

granting Kasloff’s request for injunctive relief relating to the 

height of the Grosmans’ ficus trees, is affirmed. The trial court is 

directed to set a trial on the Grosmans’ damage claim against 

Kasloff for her alleged removal of the Grosmans’ ficus trees. The 

parties are to bear their own costs on appeal.

IBARRA, J.*

We concur:

SEGAL, J., Acting P. J.

FEUER, J.

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.