HomeMy WebLinkAbout2019-01-30 McVeigh Ltr to City Bldg DeptJEFFREY Z B. SPRINGER
STEPHEN A. DEL GUERCIO
MICHAEL A. FRANCIS
BRIAN D. LANGA
JENNIFER T. TAGGART
LESLIE M. DEL GUERCIO
TAMMY M. J. HONG
DEMETRIOU, DEL GUERCIO, SPRINGER & FRANCIS, LLP
ATTORNEYS AT LAW
915 WILSHIRE BLVD, SUITE 2000
LOS ANGELES, CALIFORNIA 90017
(213) 624-8407
FAX (213) 624-0174
WWW.DDSFFIRM.COM
January 30, 2019
Via Email (iwiatrak(M-laauintaca.gov) and Federal Express
James Wiatrak,
Building Official and ADA Coordinator
Department of Design and Development
CITY OF LA QUINTA
78-495 Calle Tampico
La Quinta, CA 92253
CHRIS G. DEMETRIOU (191 5- 1989)
RONALD J. DEL GUERCIO (RETIRED)
RICHARD A. DEL GUERCIO (RETIRED
SENDER'S EMAIL ADDRESS
JSPRINGER@DDSFFIRM.COM
SENDER'S DIRECT LINE
(213) 624-8407 EXT. 148
Re: Permits for Swenson Residence at 77210 Loma Vista, La Quinta, 92253
Dear Mr. Wiatrak:
This letter is sent on behalf of this firm's clients, Mr. and Mrs. Swenson, the
owners of the property located at 77210 Loma Vista, La Quinta, California (the
"Property"). This letter is sent in response to correspondence dated January 23, 2019
addressed to the City of La Quinta Department of Building and Safety by Douglas P.
Carstens on behalf of AJA Investments, LP ("AJA"). A copy of Mr. Carstens'
correspondence was forwarded to me by M. Katherine Jenson.
According to Mr. Carstens' correspondence, the following planned improvements
to be placed upon the Swensons' property constitute "encroachments" upon a drainage
easement in which AJA claims to own an interest: (1) a rockfall wall, (2) an underground
retention system, (3) a gate for proposed flood control access, and (4) a depressed
planter area.
The easement in question was identified in Tract Nos. 26251 and 28335-R as "an
easement for drainage and incidental purposes." The noted easement does not purport
to be exclusive. Indeed, both maps show a private street for residential use that goes
over the drainage easement area, thereby expressly denoting the intended residential
uses of the Property.
Settled California law provides that "[e]very incident of ownership that is not
inconsistent with the use and enjoyment of the easement is reserved to the owner [of
the land]." (E.g., Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.AppAth 697, 702.)
And the owner of the land "may use the easement area as long as the use does not
unreasonably interfere with the purpose of the easement." (E.g., Camp Meeker Water
James Wiatrak
CITY OF LA QUINTA
January 30, 2019
Page 2
System, Inc. v. Public Utility Comm. (1990) 51 Cal.3d 845, 867.)
Here, both the Swensons' and the Homeowners Association's engineers have
determined that the proposed improvements do not interfere with the drainage
easement. Indeed, the retention system and the rockfall wall will reduce the chance of
future flooding of the neighbors' properties. Since the proposed development does not
interfere with the easement, there is simply no factual or legal basis for AJA's claim of
"encroachment."
AJA's claim is also barred by the rule prohibiting the relitigation of claims, known
as "res judicata." In the action entitled, Joseph McVeigh v. City of La Quinta, Riverside
Superior Court Case No. RIC 1606159, Mr. McVeigh alleged that he was the general
partner of AJA, the owner of the property located at 77220 Loma Vista. (Petition for
Writ of Mandate, ¶ 11.) In his Opening Brief, McVeigh argued that the Swensons'
proposed project would encroach into the drainage easement. (Op. Br. p. 9 —10.) In
the court's tentative ruling, the court rejected the argument. (Tent. Rul., p. 5.) Such
tentative ruling became the ruling of the court. (Minute Order dated May 17, 2016.)
Judgment was entered thereon on June 13, 2017.
Accordingly, any further action would be barred under the rule of "res judicata."
This rule prevents multiple lawsuits where a party has been exonerated in an earlier suit
brought by the same plaintiff or a party in privity with the plaintiff in the prior lawsuit.
(Bernhard v. Bank of America (1942) 19 Cal.2d 807, 811 — 812.) Because AJA and
McVeigh are in "privity," AJA is barred from raising the same claim as that which was
raised by McVeigh in the previous action. (/d.)
Accordingly, this letter shall confirm that, pursuant to CUP 2013-152, Mr. and
Mrs. Swenson own all of the property rights necessary for the construction and
operation of the proposed development.
Please contact us at your earliest convenience if you should have any questions
regarding this matter.
JZBS/lp
cc: M. Katherine Jenson (via emaio
Douglas P. Carstens (via email)
Client (via email)