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Keene v. Superior Court of Los Angeles County1/12/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiffs and petitioners Wayne and Cheminah Keene seek an order directing respondent trial court to vacate summary adjudication in favor of real party in interest Judy Roberts of their specific performance cause of action in this quiet title action. We grant the petition.
FACTS
In the 1980's, the Kilmer family owned several entities, including VEK, Inc., KEM, Inc., and Hidden Hills West. The Kilmer entities owned real property suitable for residential development in the Lost Hills area of Chatsworth. Mark Kilmer, a principal of the Kilmer entities, also jointly owned property in the area in partnership with Eberhard Roofing Company. Neil Eberhard is a principal of Eberhard Roofing Company.
In 1988, Wayne and Cheminah Keene purchased a lot from VEK and entered into a construction contract with Tafco Pacific, Inc., another Kilmer entity, for the construction of a residence, swimming pool, and tennis court on the property. As construction progressed, the Keenes discovered that the lot would not be large enough to construct the swimming pool and tennis court. In 1990, the Keenes filed an action against various Kilmer entities and principals for construction defects, fraud, and specific performance of an agreement to transfer additional property to the Keenes. Several of the Kilmer entities filed for bankruptcy protection, resulting in two separate bankruptcy proceedings.
In order to settle the litigation and complete their construction project, the Keenes needed three parcels from adjacent properties owned respectively by Mark Kilmer and Eberhard Roofing, KEM, and Hidden Hills West. Eberhard and Eberhard Roofing were not parties to the litigation, but they were engaged in business dealings with the Kilmer entities. The Keenes approached Eberhard about transferring a portion of Eberhard Roofing's property. Eberhard was not willing to transfer the entire amount of property sought by the Keenes, but he orally agreed to transfer to the Keenes in fee the property necessary to complete the tennis court and a reasonable walkway and to grant an easement over the remainder of the property they had sought.
In December 1991, the Keenes settled the litigation. One settlement agreement provided for KEM to transfer property to the Keenes. This settlement agreement also provided for Mark Kilmer and Eberhard to grant the easement described above. A second settlement agreement provided for Hidden Hills West to transfer property to the Keenes. Neither settlement agreement reflected Eberhard's property transfer agreement.
In February 1992, Eberhard Roofing entered into a subdivision agreement with the County of Los Angeles in which Eberhard Roofing agreed to complete certain construction, including a debris basin. Plans were attached to the agreement and Eberhard Roofing paid for a bond to secure construction. In connection with the subdivision agreement, Eberhard Roofing granted an easement to the Los Angeles County Flood Control District for flood control purposes and the debris basin. The easement was recorded in December 1992. The location of the easement included the site of the tennis court.
The Keenes prepared a request for a certificate of compliance from the Department of Regional Planning for the County of Los Angeles approving lot line adjustments adding three parcels to th
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