Judge: Armen Tamzarian, Case: 23STCV30780, Date: 2024-08-06 Tentative Ruling

Case Number: 23STCV30780    Hearing Date: August 6, 2024    Dept: 52

Cross-Defendant Jacob David Smith’s Demurrer to Cross-Complaint

            Cross-defendant Jacob David Smith demurs to the second, third, fourth, and fifth causes of action alleged by cross-complainant Chancie Elizabeth Ann Meehan.

2nd Cause of Action: Trespass

            Meehan alleges sufficient facts for this cause of action.  Smith demurs to this cause of action on the ground that any trespass was de minimis and caused no damages.  Binding authority provides that “an action for trespass will support an award of nominal damages where actual damages are not shown.”  (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) 

The demurrer argues, “Where a trespass is so minor as to fall within the rule of de minimis, there is no actual damage, and no recovery possible.”  (Demurrer, p. 5, citing Nebel v. Guyer (1950) 99 Cal.App.2d 30, 33.)  Nebel v. Guyer did not involve a cause of action for trespass.  The plaintiffs “brought [the] action to compel defendants … to remove a building which they claimed was constructed in part on the lot of plaintiffs.”  (99 Cal.App.2d at p. 31.)  The court reasoned, “[P]laintiffs, in asking for the removal of the portion of defendants’ building which they claim encroaches upon their lot, are relying upon a bare legal right unsupported by any damage shown.”  (Id. at p. 33.) 

The court applied the rule that “where the encroachment is slight, the cost of removal will be great and the corresponding benefit to the adjoining owner small, or compensation in damages can be had, a court will ordinarily decline to compel removal, and will leave the complaining party to his remedy at law.”  (Nebel v. Guyer, supra, 99 Cal.App.2d at pp. 33-34.)  That remedy at law is an action for trespass, including one for nominal damages.  The court recognized authority “holding that even though an encroachment was found to exist, $10 was adequate to compensate plaintiffs for any damage suffered, there being no evidence that the encroachment caused any actual damage to them.”  (Id. at p. 33.)

Assuming Nebel v. Guyer applies to trespass actions, the court cannot conclude from the face of the cross-complaint that any encroachment caused no damages.  The cross-complaint alleges Smith’s “garage and adjacent driveway [are] encroaching on the Meehan Property.”  (¶ 33.)  One can reasonably infer that such encroachment causes damages by diminishing her property’s value.

3rd Cause of Action: Equitable Easement

            Meehan alleges sufficient facts for this cause of action.  There are three elements for an equitable easement: (1) the trespasser or encroacher must be innocent rather than willful or negligent; (2) the public or the property owner will not be irreparably harmed by the easement; and (3) the hardship on the trespasser or encroacher from having to cease its trespass or encroachment must be greatly disproportionate to the hardship caused to the owner.  (Ranch at the Falls, LLC v. O’Neal (2019) 38 Cal.App.5th 155, 183; Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1028 (Hansen).)

            Smith argues the trespass was not innocent because Meehan “admits her use is pursuant to what she claims was an ‘agreement’ by the prior owners” and therefore “cannot claim innocence if she was aware of the encroachment.”  (Demurrer, p. 6.)  Examples of innocent encroachment include when the trespasser mistakenly “believed … he a right of way over the” neighboring property.  (Hinrichs v. Melton (2017) 11 al.App.5th 516, 523.)  Assuming she knew her improvements encroached on the neighboring property, Meehan alleges the neighboring owner agreed to allow the encroachment.  Trespassing with permission is innocent.  Smith cites no authority supporting the proposition that any awareness of encroachment itself negates innocence.

            Smith also argues Meehan did not adequately allege the harm of removing improvements would be greatly disproportionate to the harm caused to Smith.  Meehan alleges the (potentially) encroaching improvements include “[a]n 800-gallon rain water tank structure”, “[a] pool filtration system on a concrete slab,” “eight olive trees,” and “[r]etaining walls.”  (Cross-Comp., ¶ 19.)  One can reasonably infer that removing these extensive improvements would be difficult.  Meehan further alleges that, rather than being harmed, Smith “benefit[s] by the Improvements” because they “support a rain water catch system,” without which “both parties’ properties would be vulnerable to rain run-off.”  (¶ 44.)  On demurrer, the court cannot conclude these allegations are insufficient to support an equitable easement. 

4th Cause of Action: Prescriptive Easement

            Meehan does not allege sufficient facts for this cause of action.  Smith relies on the following rule: “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, supra, 22 Cal.App.5th at p. 1033.)  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.)  The law generally “prohibit[s] the acquisition of an easement by prescription where the easement would deprive the property owner of all or most practical uses of the easement area.”  (Romero v. Shih (2024) 15 Cal.5th 680, 696.) 

            The cross-complaint alleges Meehan acquired a prescriptive easement via encroachments in the disputed area including “a variety of structures, improvements, landscaping, underground plumbing and electrical” (¶ 18), and the large structures discussed above with respect to trespass (¶ 19).  As Smith argues, the prescriptive easement Meehan seeks is not limited to a particular use.  Meehan’s alleged prescriptive easement would be so comprehensive as to deprive Smith of all or most practical uses of the area. 

Meehan’s opposition does not address this argument.  She makes only a conclusory assertion that she “has alleged the necessary facts in the Cross-Complaint to establish these requisite elements” of a prescriptive easement.  (Opp., p. 6.)   

5th Cause of Action: Adverse Possession

Meehan does not allege sufficient facts for this cause of action.  “ ‘To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.’ ”  (Hansen, supra, 22 Cal.App.5th at pp. 1032–1033.)

Meehan does not allege facts establishing the final element.  Code of Civil Procedure section 325(b) provides, “In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed.  Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.” 

Meehan does not allege she paid taxes on the disputed portion of the property.  The opposition argues, “For the instant lawsuit, Cross-Complainant has set forth allegations on information and belief in that discovery of the square footage of the real estate upon which property taxes were paid has not been ascertained at this pleading stage.”  (Opp., p. 7.)  She cites no allegations in the cross-complaint.  It does not include the word “tax” or any other allegation on this element of adverse possession. 

Meehan’s reliance on Code of Civil Procedure section 323 is misplaced.  That section provides, “For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in the following cases,” including cultivation or substantial enclosure.  (Italics added.)  The statute addresses only how to meet the first and second elements of adverse possession.  It does not permit any alternative to the fifth element: paying taxes.

Disposition

            Cross-defendant Jacob David Smith’s demurrers to cross-complainant Chancie Elizabeth Ann Meehan’s second and third causes of action are overruled.  Smith’s demurrers to Meehan’s fourth and fifth causes of action are sustained with 20 days’ leave to amend.