Tine F. Sloan, et al. vs. Gregg Patronyk

Case Number

19CV04421

Case Type

Hearing Date / Time

Wed, 11/08/2023 - 10:00

Nature of Proceedings

Motion For Enforcement Of 2018 Roadway Easement Use And Maintenance Agreement, Liquidated Damages, Attorneys Fees And Restoration Modified Fence To Its Original Look

Tentative Ruling

For Plaintiffs Tine F. Sloan and Michael Corrigan: John R. Rydell II, Griffith &

Thornburgh, LLP

For Defendant Gregg Patronyk: Brighton K. Hushing-Kline, Hushing Law

RULING

For all reasons discussed herein, the motion of Plaintiff Tine F. Sloan to enforce the 2018 Roadway Easement Use And Maintenance Agreement and for liquidated damages, attorney fees, and restoration of a modified fence is denied.

Background

Plaintiffs Tine F. Sloan (Sloan) and Michael Corrigan (Corrigan) (collectively, Plaintiffs) filed this action against Defendant Gregg Patronyk (Patronyk) on August 20, 2019, to enforce the terms of a 2018 Amended and Restated Roadway Easement Use and Maintenance Agreement (the REUMA) with respect to the initiation and completion of a project to bury overhead powerlines (the powerline project) below a shared driveway along an easement, the use of which Plaintiffs alleged is governed by and defined in the REUMA. The operative second amended complaint (the SAC) filed on June 30, 2021, alleges three causes of action for breach of contract, specific performance, and declaratory relief against Patronyk who Plaintiffs allege failed to uphold the REUMA with respect to the powerline project. In the SAC, Plaintiffs sought a declaration that the REUMA is a legally enforceable contract, sought judgment for specific performance of the REUMA with respect to correcting and completing the powerline project, and sought liquidated damages, attorney’s fees, and costs.

On July 30, 2021, Patronyk filed an answer to the SAC generally denying its allegations and asserting twenty-two affirmative defenses.

On January 20, 2021, after a Court trial, the Court issued a judgment (the judgment) declaring that the REUMA is valid and legally enforceable, and that Plaintiffs were entitled to specific performance of the REUMA with respect to the powerline project. The Court further found that Patronyk breached the REUMA by failing to timely take reasonable steps to initiate the powerline project, among other things. Pursuant to specific terms, the Court awarded Plaintiff costs relating to the powerline project, liquidated damages, and attorney’s fees. (See Jan. 20, 2022, Judgment.)

On September 21, 2023, Sloan filed in this action a motion for an order requiring Patronyk to abide by the terms of the REUMA with respect to modifications to a fence located within the easement (the fence work) that Sloan contends is covered by the REUMA. Sloan further contends that the fence work was performed by Patronyk in violation of the REUMA. Patronyk opposes the motion.

In support of the motion, Sloan submits the declaration of Corrigan in which Corrigan declares that on July 29, 2023, he was made aware of the fence work. (Corrigan Decl., ¶ 2.) On that day, Corrigan sent an email to Patronyk advising him that the fence work was covered by and undertaken in violation of the REUMA, and requesting Patronyk to cease the fence work. (Ibid. & Exh. A.) Patronyk did not respond to Corrigan’s July 29, 2023, email. (Ibid.)

Corrigan again wrote to Patronyk on August 2, 2023, to inform Patronyk that his explanation for the fence work as asserted in an email from Patronyk’s counsel to Corrigan’s in-house counsel  “was too little to [sic] late as [Patronyk] had the opportunity to communicate with [Corrigan] in advance regarding any modifications to the fence and [Patronyk] chose not to respond.” (Corrigan Decl., ¶ 5.)

Sloan also submits the declaration of Corrigan’s in-house counsel, Kristina Thomas (Thomas), in which Thomas declares that on July 31, 2023, she observed the fence work. (Thomas Decl., ¶ 2.) On August 1, 2023, Thomas emailed Patronyk’s counsel to advise him that Patronyk was performing the fence work without discussing that work with the parties to the REUMA which Thomas asserts violates the REUMA. (Id. at ¶ 3.)

Patronyk’s counsel responded to Thomas on August 2, 2023, indicating that Patronyk was not making significant changes to the fence but merely replacing rotten wood posts with metal posts and making other structural improvements. (Thomas Decl., ¶ 4 & Exh. C.) Patronyk’s counsel referenced paragraph 3 of the REUMA to support Patronyk’s position that the fence is not covered under that paragraph and does not impact access to the easement. (Ibid.) On August 7, 2023, Thomas responded to Patronyk’s counsel taking issue with the reference to paragraph 3 of the REUMA and Patronyk’s position that the fence does not fall under the REUMA and that the modifications to the fence were insignificant, and requesting details as to what Patronyk was doing with regard to the fence. (Id. at ¶ 5 & Exh. D.)

In support of his opposition to the motion, Patronyk declares that the fence that is connected to the REUMA had rotting and decaying fence posts that had to be replaced or repaired. (Patronyk Decl., ¶ 3.) Due to the state of the fence posts, and the potential damage that they could cause, Patronyk began the fence work. (Id. at ¶ 3.) Because the fence, and repairs to the fence, were not referenced or mentioned in the judgment, Patronyk argues, he did not believe the fence work was subject to consultation requirements or that the aesthetic differences in the fence work would be worth Sloan’s time to consult. (Id. at ¶¶ 4, 7.)

Patronyk further declares that he did not remove the fence work because he believed that basic repair consultation was not covered under the REUMA and asserts that there exists difficulties in obtaining materials and other cost related factors as further described in the Patronyk declaration. (Patronyk Decl., ¶¶ 5, 6.) Patronyk attaches copies of a previous permit regarding repairs to the fence and the underlying description of the easement referenced in the REUMA. (Id. at ¶¶ 8, 9.) Patronyk also asserts that he made final payment on the judgment on May 2, 2022. (Id. at ¶ 10.)

Analysis

In the present motion, Sloan requests that the Court enforce the judgment by entering an order finding Patronyk has violated the REUMA when he failed to confer with the REUMA parties regarding the fence work and by requiring Patronyk to restore the fence to its original condition upon timely consulting and conferring with the REUMA parties, among other things. Sloan does not seek to enforce that part of the judgment that requires the payment of money from Patronyk. (See Code Civ. Proc., §§ 680.270, 695.010 et seq.) Rather, Sloan effectively contends that because the Court has already interpreted the terms of the REUMA and has made orders relating to the REUMA, the Court may now enforce the judgment with respect to the fence work performed by Patronyk. (See Motion at p. 8, ll. 25-27.)

The manner and extent to which a civil judgment is enforceable is subject to the detailed statutory provisions set forth in Code of Civil Procedure section 680.010 et seq. (the Enforcement of Judgments Law or ELJ). (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546; Code Civ. Proc., § 680.010 et seq.) Under the ELJ, “[a] judgment requiring performance of an act not described in subdivisions (a) to (d), inclusive, or requiring forbearance from performing an act, is enforceable as provided in Chapter 5 (commencing with Section 717.010) of Division 3.” (Code Civ. Proc., § 681.010, subd. (e).) Under Code of Civil Procedure section 717.010, “[a] judgment not otherwise enforceable pursuant to this title may be enforced by personally serving a certified copy of the judgment on the person required to obey it and invoking the power of the Court to punish for contempt.” (Code Civ. Proc., §§ 717.010, 1209 [“[d]isobedience of any lawful judgment” constitutes contempt].)

“ ‘The facts essential to jurisdiction for a contempt proceeding are “(1) the making of the order; (2) knowledge of the order; (3) ability of the Respondent to render compliance; (4) willful disobedience of the order.” [Citations.]’ [Citation.] ‘The record of the Court must affirmatively show upon its face the facts upon which jurisdiction depends so that an appellate Court can determine if a contempt has been committed. [Citation.]’ [Citation.]” (Board of Supervisors v. Superior Court (1995) 33 Cal.App.4th 1724, 1736 (Board of Supervisors).)

In addition, “[p]unishment for contempt ‘can only rest upon clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt citation. [Citations, fn. omitted.]’ [Citation.] It is not proper for a contempt citation to rest on an order ‘which incorporates by reference the entire history of a complicated lawsuit.’ [Citation.] The precise Court orders as written are what may be enforced, not any amplification of those orders by history of the litigation or documents incorporated by reference.” (Board of Supervisors, supra, 33 Cal.App.4th at p. 1737.)

In the present motion, Sloan does not invoke the Court’s power to punish Patronyk for a failure to obey the judgment. Instead, Sloan effectively requests that the Court declare Patronyk has violated the REUMA by performing the fence work and award Sloan damages and attorney’s fees. However, the relief sought by Sloan in the present motion is not permitted in a contempt proceeding. (See Code Civ. Proc., §§ 1218, 1219.) Furthermore, based on the information and evidence presented by Sloan, Sloan has not shown a willful refusal by Patronyk to comply with the judgment as it relates to the powerline project. (See In re Cassil (1995) 37 Cal.App.4th 1081, 1086 [in a contempt proceeding, guilt must be established “beyond a reasonable doubt”].) For these reasons, the Court cannot issue the precise order required to punish Patronyk for contempt for any failure to obey the judgment.

Notwithstanding the procedural deficiencies discussed above, there also exist substantive deficiencies here that require the Court to deny the motion. The SAC filed in this action “defines, and necessarily limits” the relief that may be granted by the Court in the judgment. (Howeth v. Coffelt (2017) 18 Cal.App.5th 126, 132 (Howeth).) As further discussed above, the SAC seeks declaratory and other relief in addition to damages with respect to whether the REUMA governs and is enforceable as it relates to the powerline project. Wholly absent from the SAC are any allegations regarding the validity or enforceability of the REUMA with respect to a fence within the easement or modifications to a fence within the easement.

An action for a declaratory judgment under Code of Civil Procedure section 1060 is effectively a derivative claim and requires an “actual” controversy “of a character which admits of specific and conclusive relief by judgment within the field of judicial determination, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.” (Redwood Coast Watersheds Alliance v. State Bd. of Forestry and Fire Protection (1999) 70 Cal.App.4th 962, 968; Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [declaratory relief action was “wholly derivative” of proposed cause of action for statutory violation].) As further discussed above, the actual controversy at issue in the SAC that was resolved by the judgment relates to the validity and enforceability of the REUMA with respect to the powerline project. (See Code Civ. Proc., § 577.)

In the SAC, Plaintiffs did not, and arguably could not, seek a declaration of the parties’ rights and duties with respect to the REUMA in the abstract or in the absence of an actual controversy. Therefore, the judgment does not establish liability for all future violations of the REUMA which would necessarily be based on a hypothetical set of facts not before the Court nor does the judgment establish liability with respect to all future disputes that may arise between the parties without regard to the issues raised in the SAC. As the judgment could only resolve the dispute at issue as alleged and defined in the SAC with respect to issues that relate to the powerline project, the judgment does (and could) not resolve any disputes relating the fence work as described in the moving and opposing papers.

Though the judgment may have some preclusive effect with regard to the enforceability of the REUMA, because Sloan effectively requests that the Court enforce the REUMA with respect to the fence work, the motion seeks to litigate an entirely new issue that arose after the judgment. The Court’s consideration of this new issue “summarily by way of a postjudgment motion would deprive [Patronyk] of [his] full panoply of procedural protections normally available to a Defendant before judgment, including discovery and the right to a jury trial.” (Howeth, supra, 18 Cal.App.5th at p. 135.) For these reasons, the motion is substantively deficient.

For all reasons discussed above, and as there exists no evidence or information before the Court to demonstrate that Patronyk has willfully failed to obey the judgment with respect to the powerline project, the present motion is procedurally and substantively deficient. Therefore, the Court will deny the motion.