I.

INTRODUCTION

Magnolia Partnership, LLC and Realm Real Estate, LLC (Defendants) received

approval from the City of Riverside (the City) to build a mixed -use project with

commercial space and 450 apartments. Wilson Holdings, L.P., Los Altos XXVII, L.P.,

and Northgate Gonzalez, LLC (Plaintiffs) sued Defendants and sought an injunction to

block construction of the project on the ground that it violated the parties’ easement

agreement. The trial court agreed, issued a preliminary injunction enjoining the project’s

construction, and ordered Plaintiffs to post a $10,000 bond. Defendants appealed the

injunction and the bond order.

After we issued a tentative opinion but before we held oral argument, Defendants

filed a request to dismiss the appeal. We exercise our discretion to dismiss the appeal

without reaching the merits.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Wilson Holdings and Los Altos own property in a shopping center in the City,

which they currently lease to Northgate, which runs a supermarket on the property. The

property is one of four contiguous parcels in the shopping center, one of which is owned

by Magnolia.

2 1 All four parcels are subject to an easement agreement (the Easement Agreement).

The Easement Agreement, which was entered into by the previous owners of the

Northgate and Magnolia parcels and the other two parcels in 1979, governs the use of the 2 shopping center buildings and its parking lot.

Its stated purpose is to “grant and establish reciprocal rights of ingress, egress,

access and parking with respect to” the four parcels. In its prefatory recitals, the

Easement Agreement explains that the four parcels it governs are “contiguous parcels of

real property which the parties intend to use or are presently using for shopping center

and commercial purposes” and that the parties entered into the Agreement “to grant and

establish reciprocal rights of ingress, egress, access and parking with respect to the

[p]arcels.”

Under its second provision, titled “Parking Areas Defined,” the Easement

Agreement states that “the parties intend to develop or have developed [the parcels] as

commercial and shopping center properties” and that the parcels “have been and will be

improved with buildings which will be used for shopping center and commercial

purposes.” The provision goes on to explain that the portions of the parcels “not devoted

to building uses are intended” and shall be used for, among other things, parking and

“access, ingress and egress to and within the shopping center and commercial areas.”

1 The parties sometimes refer to the Easement Agreement as the “Four-Party Agreement” or the “FPA.” We will refer to it as only the Easement Agreement. 2 Magnolia does not dispute it is bound by the Easement Agreement.

3 The next provision, “Parking Areas Purposes Defined,” similarly explains that “Parking

Area Purposes” in the Easement Agreement means, among other things, “the mutual and

reciprocal use of the Parking Areas for ingress and egress to and from public streets” and

“for access, ingress and egress within the shopping center and commercial areas.”

To that end, the Easement Agreement provides that the Parking Areas “shall be

constructed, kept and maintained in a manner that allows the free and reasonable use of

the easements granted” and that “there shall not be erected or maintained within [the

Parking Areas] any building, fence, wall, grade change or other obstruction, which would

unreasonably impede the free flow of traffic and use of the Parking Areas,” except for

“the buildings which the parties have constructed or anticipate constructing in connection

with development of shopping center and commercial facilities on their respective

parcels.”

Wilson and Los Altos bought one of the shopping center parcels in 2018, and

began a 20-year lease of their parcel in the shopping center to Northgate in June 2019. In

January 2019, the parties began discussing Magnolia’s plan to develop its parcel.

Magnolia intended to build the Realm-designed “Magnolia Flats” project on its parcel, a

“a mixed-use development consisting of a 450-unit multi-family residential building and

two multi-tenant commercial buildings totaling 9,000 square feet,” with other amenities.

The “residential complex” would take up 13.31 acres while the “commercial component

of the project” would cover 2.8 acres. Carports in the parking lot would narrow the aisles

in the shared parking lot from 30 feet to 24 feet.

4 The City approved the project in July 2021, with construction set to begin within

six to 12 months. Before construction began, however, Plaintiffs sued defendants for (1)

breach of contract; (2) quiet title; (3) enforcement of easement; and (4) declaratory relief.

The thrust of Plaintiffs’ lawsuit is that the Magnolia Flats project would violate the

Easement Agreement in two ways. First, because the Magnolia Flats project would be

predominantly an apartment complex, the Project was “residential” in violation of the

Easement Agreement’s terms that the parcels would be used for “shopping center” and

“commercial” purposes. Second, the Magnolia Flats project would unreasonably

interfere with Plaintiffs’ access, ingress, egress, and parking rights under the Easement

Agreement.

Along with their complaint, Plaintiffs moved ex parte for a temporary restraining

order to enjoin construction of the Magnolia Flats project, which Defendants opposed.

The trial court denied the motion and set the matter for a preliminary injunction hearing,

and allowed Defendants to file supplemental opposition and Plaintiffs to file a reply.

Defendants opposed Plaintiffs’ motion for a preliminary injunction on three main

grounds: (1) the Easement Agreement does not restrict Magnolia from using its parcel

for non-commercial, and even if it did, the Magnolia Flats project is “commercial”

because its proposed apartment complex is “commercial” in that it would be income-

producing, (2) Plaintiffs failed to exhaust their administrative remedies with the City

because they did not oppose or appeal the City’s approval of the Project, and (3) the

project would comply with the Easement Agreement in that it would not interfere with

5 Plaintiffs’ access, ingress, and egress rights. Defendants also argued they would be

irreparably harmed if an injunction issued.

The trial court rejected Defendants’ arguments. The court found that the Magnolia

Flats project would violate the Easement Agreement in two ways: (1) the Project would

be both “commercial” and “residential” even though the Easement Agreement “clearly

sets forth” that Magnolia’s parcel may be used only as a “commercial shopping area,”

and (2) the Project “would affect the parking for Plaintiffs’ customers” and “both

delivery trucks and customers will be impacted.” The trial court therefore found that

Plaintiffs were likely to succeed on the merits of their claims. The court then found that

the balance of harm weighed in favor of issuing an injunction because Plaintiffs’ “will be

harmed by” the Magnolia Flats Project and their Easement Agreement rights would be

violated, and allowing construction of the Project to begin would harm all parties if

plaintiffs later prevailed on their claims.

The trial court therefore issued an injunction enjoining Defendants from beginning

construction on the Magnolia Flats project and ordered Plaintiffs to post a $10,000 bond

(see Code Civ. Proc., § 529) in October 2021. Days later, Defendants moved to increase

the bond amount to about $5.5 million.

While that motion was pending, Defendants filed a Notice of Appeal, which

indicates they appeal only the trial court’s October 2021 “Order Granting Preliminary

Injunction.” A few weeks later, the trial court denied Defendants’ motion to increase the

bond amount and kept it at $10,000.

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III.

REQUEST FOR DISMISSAL

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater

(2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for

unreasonable delay in notifying appellate court that parties had settled and dismissed the

underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “[o]n

receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct

immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary.

We exercise our discretion and grant Defendants’ request to dismiss the appeal.

IV.

DISPOSITION

Defendants’ appeal is dismissed. Each party shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER Acting P. J.

MILLER

J.

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