Judge: Armen Tamzarian, Case: 22STCV30058, Date: 2023-04-25 Tentative Ruling
Case Number: 22STCV30058 Hearing Date: April 25, 2023 Dept: 52
Tentative Ruling:
Defendant
Sandra Mariana Vidal’s Demurrer and Motion to Strike Portions of First Amended Complaint
Demurrer
Defendant
Sandra Mariana Vidal demurs to all nine causes of action alleged in plaintiffs
Sima Ashrafi and Mohammad Ali Nateghi’s first amended complaint. (Plaintiffs dismissed the former sixth cause
of action for financial elder abuse.)
1st,
2nd, 4th, and 7th Causes of Action
Defendant demurs to the first cause
of action for interference with easement, the second cause of action for
negligence, the fourth cause of action for nuisance, and the seventh cause of
action for declaratory relief solely on the grounds that “no valid easement
exists.” (Demurrer, p. 6.) The claims for negligence and nuisance do not
depend on the validity of the disputed easement.
Plaintiffs
allege sufficient facts for interference with easement and for declaratory
relief. Defendant argues the easement
agreement is invalid. She contends that
plaintiffs cannot show they are entitled to an exclusive easement and are
therefore “left with a purported grant for easement (i.e. the ‘Easement
Agreement’) that has no ascertainable scope.”
(Demurrer, p. 9.) Defendant
provides no authority supporting this all-or-nothing conclusion. The easement agreement (FAC, Ex. 1) expressly
gave plaintiffs an easement on defendant’s property. Any ambiguity concerns the easement’s scope, not
its existence.
3rd
Cause of Action: Trespass
Plaintiffs do not allege sufficient
facts for this cause of action. “Trespass
is an invasion of the plaintiff’s interest in the exclusive possession of land.” (McBride v. Smith (2018) 18
Cal.App.5th 1160, 1173.) Plaintiffs’
opposition acknowledges they can only allege trespass if they have “the
exclusive right” of possession or “ownership, of the disputed easement
area.” (Opp., p. 9.)
For
an exclusive right of possession, plaintiffs must show either that they own the
property or that their easement is exclusive.
The first amended complaint does neither. For the reasons discussed below under the
10th cause of action, plaintiffs have not alleged sufficient facts to show they
own the property.
The
first amended complaint also does not allege sufficient facts to establish an
exclusive easement. “[E]xclusive
easements generally are not favored by the courts.” (Romero v. Shih (2022) 78 Cal.App.5th
326, 349 (Romero), review granted August 10, 2022, S275023 [permitting
citation for persuasive value].) An
exclusive easement is a “ ‘rare’ ” and “ ‘unusual interest in land.’ ” (Ibid.)
One
can establish an exclusive easement either based on the parties’ intent or by
prescription. Courts “have upheld
exclusive easements in situations where the express language of the granting
instrument either uses the phrase ‘exclusive easement’ [citation] or the
parties intend that the dominant owner’s use necessarily must be exclusive
(e.g., an easement ‘ “for parking and garage purposes.” ’)” (Romero, supra, 78 Cal.App.5th at p.
350.) “Unless the language of the
creating instrument expressly provides the intention that the easement be
‘exclusive’ to the dominant owner,” courts will not “infer the granting of an
exclusive implied easement which precludes a property owner from any practical
use and is nearly the equivalent of a fee interest.” (Id. at p. 352.) “[A]n exclusive implied easement which, for
all practical purposes, amounts to fee title cannot be justified or granted
unless: 1) the encroachment is ‘de minimis’ [citations]; or 2) the easement is
necessary to protect the health or safety of the public or for essential
utility purposes.” (Ibid.)
The
court finds Romero persuasive.
The language of the creating instrument does not clearly express an
intention that the easement would be exclusive.
It never uses the word “exclusive” or even the word “possess.” The instrument does not define the easement’s
scope or precise use. It provides that
the defendant’s predecessor grants “an easement by prescription in the”
disputed portion of grantor’s real property.
(FAC, Ex. 1.) It further
provides, “The Easement hereby granted is perpetual and shall be deemed a
covenant which runs with the land.” (Ibid.) The legal description delineates the
easement’s location but does not address its scope. (Ibid.)
Plaintiffs
also do not show that the parties’ intent was necessarily for an exclusive
easement. The instrument does not provide
for using the property as, for example, a garage or other substantial and
permanent structure. Assuming parol
evidence is proper, the grantor stated “the purpose” of the easement was for
plaintiffs’ predecessor “to ‘beef up’ his garden.” (FAC, ¶ 10.)
That is not necessarily exclusive use akin to building a garage.
Finally,
plaintiffs do not allege sufficient facts for an exclusive easement by
prescription. “Prior decisions recognize
two exceptions where exclusive prescriptive easements have been allowed. The first is an exception in cases involving
utility services or important essential public health and safety
purposes.” (Romero, supra, 78
Cal.App.5th at p. 352.) “The second
involves the de minimis rule” where the encroachment is minimal, such as “where
the encroachment of the wall of a building on the adjoining property was from
one-half to five-eighths of an inch.” (Ibid.)
The
first amended complaint does not allege sufficient facts for either exception
described in Romero. In similar
cases, the Court of Appeal has held, “[A]n exclusive prescriptive easement,
‘which as a practical matter completely prohibits the true owner from using his
land’ [citation] will not be granted in a case (like this) involving a
garden-variety residential boundary encroachment.” (Harrison v. Welch (2004) 116
Cal.App.4th 1084, 1093.) This case is
more-or-less a garden-variety residential boundary encroachment dispute concerning
property used, in part, as a garden.
(Comp., ¶¶ 8-10.)
Because
plaintiffs cannot establish they own or otherwise have a right to exclusive
possession of the property, they cannot maintain this cause of action for
trespass.
5th
Cause of Action: Intentional Infliction of Emotional Distress
Plaintiffs allege sufficient facts
for this cause of action. Intentional infliction of emotional distress
requires: “(1)
extreme and outrageous conduct by the defendant with the intention of causing,
or reckless disregard of the probability of causing, emotional distress; (2)
the plaintiff’s suffering severe or extreme emotional distress; and (3) actual
and proximate causation of the emotional distress by the defendant’s outrageous
conduct.” (Hughes v. Pair (2009)
46 Cal.4th 1035, 1050.) “Whether the
defendant’s conduct was outrageous and whether the plaintiff’s emotional
distress was severe are generally questions of fact.” (Murphy v. Allstate Ins. Co. (1978)
83 Cal.App.3d 38, 51.)
The first amended complaint alleges defendant
intentionally “cut[] down and d[ug] up Plaintiffs’ trees, landscaping and
garden” on the disputed property and “assault[ed] Plaintiffs with verbal
threats of harm while advancing toward Plaintiffs with metallic tools in hand. Additionally, Vidal destroyed a wall
separating the properties.” (FAC, ¶ 14.) This alleged conduct is sufficiently extreme
and outrageous to survive a demurrer. At
this stage in the proceedings, the court cannot conclude that, as a matter of
law, the alleged conduct is not extreme enough.
Plaintiffs also allege facts constituting
severe emotional distress and resulting damages. “Plaintiffs have suffered mental distress,
suffering, anguish, anger, disappointment and worry, all of which have
manifested themselves in emotional and physical distress of Plaintiffs’ minds
and health. Because of the worry and stress resulting in frailty and imbalance
experienced by Plaintiff Sima Ashrafi caused by Defendant, she lost her
balance, fell down a staircase and was rushed to a local hospital for emergency
medical treatment. Also, Plaintiff Mohammad Nateghi began to experience hand
tremors shortly after being the victim of verbal and physical attacks
perpetrated by Defendant.” (FAC, ¶ 36.) This alleged emotional distress is severe
enough to support this cause of action.
8th
Cause of Action: Assault
Plaintiffs
allege sufficient facts for assault. “The
essential elements of a cause of action for assault are: (1) defendant acted
with intent to cause harmful or offensive contact, or threatened to touch
plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed
she was about to be touched in a harmful or offensive manner or it reasonably
appeared to plaintiff that defendant was about to carry out the threat;
(3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was
harmed; and (5) defendant’s conduct was a substantial factor in causing
plaintiff’s harm.” (So v. Shin (2013)
212 Cal.App.4th 652, 668–669.)
The first amended complaint alleges
defendant made “verbal threats of harm while advancing toward Plaintiffs with
metallic tools in hand.” (FAC, ¶
14.) It further alleges defendant “made
threatening gestures towards Plaintiffs and aggressively screamed at Plaintiffs
while holding dangerous tools and objects.”
(¶ 51.) “Plaintiffs reasonably
believed Defendant intended to touch them in a harmful and offensive manner in
that Plaintiffs believed Defendant was going to hit Plaintiffs with the tools
in her hand while advancing toward Plaintiffs.
Plaintiffs did not consent” to that conduct. (Ibid.) Finally, the first amended complaint alleges,
“As a result of” that conduct, “Plaintiffs suffered harm in that they were
extremely fearful for their health and safety.”
(¶ 52.)
Defendant
contends, “That Defendant held tools while advancing towards Plaintiffs,
without more, is not sufficient to support a cause of action for assault. The term ‘advancing’ is vague and does not
demonstrate that Defendant, for example was charging towards Plaintiffs or raising
tools over her head towards Plaintiffs.”
(Demurrer, p. 14.) When liberally
construed, as required on demurrer, these allegations suffice for assault. Making threatening gestures, aggressively
screaming at them “while holding dangerous tools and objects,” and making
“verbal threats of harm while advancing toward Plaintiffs” can be construed to
constitute assault.
9th
Cause of Action: Prescriptive Easement
Plaintiffs allege sufficient facts
for this cause of action. Defendant does
not argue plaintiffs fail to allege the elements of a prescriptive easement in
general. Instead, defendant argues “an
exclusive easement cannot be obtained by prescription.” (Demurrer, p. 15.) Whether the easement is exclusive or limited,
the first amended complaint alleges sufficient facts for a prescriptive
easement of some kind. On demurrer, courts “examine the factual
allegations of the complaint, ‘to determine whether they state a cause of
action on any available legal theory.’ ” (Adelman v. Associated Intern. Ins. Co. (2001)
90 Cal.App.4th 352, 359.)
The ninth cause of action does not allege the
prescriptive easement is exclusive. It alleges,
“Plaintiffs acquired an easement by prescription in the disputed land based on
the use from 1986 to 2005 by Plaintiffs’ predecessor in interest.” (Comp., ¶ 58.) Plaintiffs allege sufficient facts for that
theory.
10th
Cause of Action: Quiet Title
In
their tenth cause of action, plaintiffs allege that rather than an easement,
they own a fee interest in the disputed land.
Plaintiffs allege that “their predecessor in interest, Mr. Simon,
acquired title to the disputed land by purchasing it from Mr. Goldhammer in
2005” in an “exchange for fee title.”
(Comp., ¶ 60.) “[T]he document
entitled ‘Easement Agreement’ incorrectly defined the agreement as the transfer
of an easement when, in truth, the parties intended that Mr. Goldhammer would
convey fee title to the disputed area to Mr. Simon.” (Comp., ¶ 61.)
The
first amended complaint does not allege sufficient facts for quiet title to a
fee interest—even assuming an exclusive easement. “Whether a so-called exclusive easement
constitutes ownership in fee, rather than an easement, depends upon the circumstances
of the case [citation], including the terms of any applicable conveyance.” (Blackmore v. Powell (2007) 150
Cal.App.4th 1593, 1600 (Blackmore).)
“Thus, a conveyance that purported to transfer to A an unlimited
use or enjoyment of Blackacre ... would be in effect a conveyance of ownership
to A, not of an easement. In contrast,
an easement incorporating a right of exclusive use may fall short of ownership
in fee when the easement is restricted in scope.” (Ibid., internal quotes
omitted.)
“In determining whether a conveyance creates
easement or estate, courts look to the extent to which the conveyance limits
the uses available to the grantor; an estate entitles the owner to the
exclusive occupation of a portion of the earth’s surface; that is, the property
owner would not be able to use the disputed land for any practical purpose.” (Romero, supra, 78 Cal.App.5th at p.
353, internal quotes and alterations omitted.)
As
discussed above, plaintiffs do not show their easement prohibits the servient
tenement from using the land for any practical purpose. But even in Blackmore, where the
easement was for the necessarily exclusive use as a parking garage, the court
held the “grant deed … expressly accords [plaintiff] rights short of fee
ownership.” (Blackmore, supra, 150
Cal.App.4th at p. 1601.) Here, the grant
deed never purports to transfer fee title.
It instead uses the word “easement” seven times and once more in the
legal description. (FAC, Ex. 1.) It provides, “The Easement hereby granted is
perpetual and shall be deemed a covenant which runs with the land.” (Ibid.) Fee title cannot be a “covenant which runs
with the land.”
To
succeed on a cause of action for quiet title to a fee interest, plaintiffs
therefore must allege they acquired that interest by adverse possession. “If the prescriptive interest sought by a
claimant is so comprehensive as to supply the equivalent of an estate, the
claimant must establish the elements of adverse possession, not those of a
prescriptive easement.” (Hansen v.
Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1033.) Plaintiffs do not allege at least one element
of adverse possession: paying taxes on the property for five years. As the Court of Appeal has noted,
“[C]laimants have often tried to obtain the fruits of adverse possession under
the guise of a prescriptive easement to avoid having to satisfy the tax
element.” (Ibid.)
Motion
to Strike
Defendant Sandra Mariana Vidal moves
to strike five portions of the first amended complaint regarding punitive damages. Courts may strike “irrelevant matter” (CCP §
436(a)), including “[a] demand for judgment requesting relief not supported by
the allegations of the complaint” (CCP § 431.10(b)(3)). Courts
may strike allegations related to punitive damages where the facts alleged “do
not rise to the level of malice, oppression or fraud necessary” to recover
punitive damages under Civil Code section 3294.
(Turman v. Turning Point of Central California, Inc. (2010)
191 Cal.App.4th 53, 64.)
As discussed above, the first amended complaint alleges
sufficient facts for intentional infliction of emotional distress and
assault. Those factual allegations rise
to the level of malice or oppression.
Disposition
Defendant
Sandra Mariana Vidal’s demurrer to the first, second, and fourth through ninth
causes of action is overruled.
Defendant’s demurrer to the third cause of action for trespass and the 10th
cause of action for quiet title is sustained with 20 days’ leave to
amend.
Defendant
Sandra Mariana Vidal’s motion to strike
is denied.