Judge Blaine K. Bowman, Case Number: 37-2020-00045558-CU-OR-CTL, Date: 2024-05-31 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2020-00045558-CU-OR-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2020-00045558-CU-OR-CTL VICTORIA S EVANS TRUSTEE VICTORIA S EVANS TRUST DATED 5/19/2004 VS MARY ELIZABETH ADDERLEY TRUSTEE OF THE MARY ELIZABETH ADDERLEY CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant/Cross-Complainant Mary Elizabeth Adderley, Trustee of the Mary Elizabeth Adderley Trust dated April 16, 2002's evidentiary objections are OVERRULED.

The court then rules as follows. Defendant/Cross-Complainant Mary Elizabeth Adderley, Trustee of the Mary Elizabeth Adderley Trust dated April 16, 2002's motion for summary adjudication is DENIED.

Defendant Adderley seeks summary adjudication of the first cause of action for continuing trespass to real property and the fifth cause of action for continuing nuisance. Defendant Adderley argues that the alleged trespass/nuisance is permanent, not continuing, such that the CCP § 338(b) 3-year statute of limitations applicable to permanent trespass/nuisance controls. See, Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 ['plaintiffs ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected']. As pled the complaint identifies the alleged encroachment as 'a dividing wall ('Wall')' [Cplt. ¶ 6], 'the remodeled residence ('Residential Structure')' [Cplt. ¶ 8] and 'the area between Wall and property line' [Cplt. ¶ 8]. All three components of the alleged encroachment are referred to in the complaint as the 'Encroachment' [Cplt. ¶ 8]. Defendant Adderley submits undisputed evidence that the Encroachment has been in existence in the same location since Defendant Adderley purchased the property in 2002 [SSUMF 3, 4, 6, 8]. As pled, Plaintiff Victoria S. Evans, Trustee of the Victoria S. Evans Trust Dated 5/19/2004, has owned the adjacent property since February 2003 [Cplt. ¶ 5]. A review of the court file shows that Plaintiff Evans filed the complaint in this case on December 11, 2020 [ROA 1] more than 3-years after the Encroachment was in place and more than 3-years after Plaintiff Evans purchased the property adjacent to Defendant Adderley. As such, if the trespass/nuisance is permanent, these causes of action are barred by the CCP § 338(b) 3-year statute of limitations. In opposition Plaintiff Evans argues that the alleged trespass/nuisance is continuing such that the CCP § 338(b) statute of limitations does not apply. See, Baker, 39 Cal.3d at 869 ['[i]f a nuisance is . . . considered continuing in character . . . persons harmed by it may bring successive actions for damages until the nuisance is abated']. Both sides spend the majority of their arguments on the issue of whether the alleged Encroachment is a permanent or continuing trespass/nuisance. Neither side provides an analysis specific to the components of the Encroachment – the Wall, the Residential Structure and the area between the Wall and property line. The court finds a discussion specific to each of these components is critical to the analysis.

The court first considers the Residential Structure. The majority of the cases Plaintiff Evans relies on involve a trespass/nuisance based on circumstances other than a building or structure (e.g., Calendar No.: Event ID: TENTATIVE RULINGS

3100892 4 CASE NUMBER: CASE TITLE: VICTORIA S EVANS TRUSTEE VICTORIA S EVANS TRUST DATED 37-2020-00045558-CU-OR-CTL contamination, flooding). In Baker the issue was 'whether a plaintiff may elect to treat commercial airport noise and vibrations as a continuing, rather than a permanent, nuisance.' Baker, 39 Cal.3d at 865. While Baker does not involve an alleged nuisance/trespass by a building or structure, several of cases Baker cites do, including Rankin v. DeBare (1928) 205 Cal. 639. The evidence in Rankin was that . . . the plaintiff served upon the defendant a notice that the latter's building was encroaching upon the plaintiff's property to the extent of an inch and one-half, or thereabouts, to the damage of the plaintiff, and demanded a removal of defendant's building to the extent of such encroachment . . . .

Rankin, 205 Cal. at 640.

Rankin concludes, it is beyond dispute that the defendant's building rested on plaintiff's lot to the extent of an inch or two along the boundary line between the two lots . . . . the contention that the plaintiff's cause of action is barred must be sustained.

The record shows that the injury or trespass is permanent in character. Where the injury or trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action, and the entire cause of action accrues when the injury is suffered or the trespass committed. (Williams v. Southern Pacific R. R. Co., 150 Cal. 624 [89 Pac. 599]; Kafka v. Bozio, 191 Cal. 746 [29 A. L. R. 833, 218 Pac.

753].) The trespass was committed, according to the evidence and findings, on or about May 1, 1917.

Three years expired on May 1, 1920, and as this action was not commenced until January 5, 1923, the cause of action was barred. Further, in view of the plaintiff's long delay in asserting his rights, the case is not one for a mandatory injunction to compel the defendant to remove his building from the said portion of plaintiff's land (see Rothaermel v. Amerige, 55 Cal. App. 273, 275 [203 Pac. 833]).

Rankin, 205 Cal. at 641.

Another case cited in Baker is Castelletto v. Bendon (1961) 193 Cal.App.2d 64. Castelletto summarizes the facts.

There is no serious dispute as to the facts. Plaintiffs' lot and that of the defendants have a common boundary. Three wooden buildings which stand mainly on defendants' lot, do have a toe hold over the line. They had stood in this position for at least 12 years before this action was filed, but neither the defendants nor the plaintiffs were aware of the fact of the trespass until shortly before the action was brought.

Castelletto, 193 Cal.App.2d at 65.

In concluding that the plaintiff's claims were barred by the statute of limitations applicable to permanent trespass, Castelletto explains, . . . defendant's buildings were constructed where they were with no thought of moving them elsewhere.

One was erected on concrete piers, another on a 'permanent continuous foundation.' As the term is used in the cases they were of a 'permanent, nature' and the statute had run long before the plaintiffs acquired their property and before the action was commenced.

Castelletto, 193 Cal.App.2d at 67.

The third building/structure case Baker cites to holds similarly. ['We are satisfied that under the California cases herein cited the encroachment of a building obviously intended to be permanent upon the soil of another is a permanent trespass and that the cause of action based thereon is barred by Code of Civil Procedure, section 338, subdivision 2, in three years.' Bertram v. Orlando (1951) 102 Cal.App.2d 506, 509.] Calendar No.: Event ID: TENTATIVE RULINGS

3100892 4 CASE NUMBER: CASE TITLE: VICTORIA S EVANS TRUSTEE VICTORIA S EVANS TRUST DATED 37-2020-00045558-CU-OR-CTL Under these authorities the court finds the Residential Structure portion of the Encroachment is a permanent nuisance. Although Plaintiff Evans argues for application of the abatability test, none of the authorities Plaintiff Evans relies on applies this test to a building structure such as the Residential Structure component of the Encroachment in this case. To the extent Plaintiff relies on Kafka v. Bozio (1923) 191 Cal. 746, this case is distinguishable for the same reasons set forth in Castelletto.

Castelletto, 193 Cal.App.2d at 66-67.

A different analysis is required as to the Wall and area between the Wall and property line components of the Encroachment. As to these components, the court finds the abatability analysis as applied to the wooden fence at issue in Madani v. Rabinowitz (2020) 45 Cal.App.5th 602 and as applied to the locked gate at issue in Phillips v. Pasadena (1945) 27 Cal.2d 104 governs. Madani explains, the courts, when deciding whether a trespass or nuisance is permanent or continuing, previously considered whether the circumstances of a structure's construction 'indicate an intention that the trespass shall be permanent' (Kafka v. Bozio (1923) 191 Cal. 746, 750, 218 P. 753) and whether a trespass or nuisance's 'impact may vary over time.' (Field-Escandon v. Demann (1988) 204 Cal.App.3d 228, 234, 251 Cal.Rptr. 49.) More recently, however, our Supreme Court acknowledged the ' 'crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated.' [Citation].' (Mangini, supra, 12 Cal.4th at p. 1097, 51 Cal.Rptr.2d 272, 912 P.2d 1220.) Under this test, sometimes referred to as the 'abatability test' (see, e.g., Beck, supra, 44 Cal.App.4th at p. 1220, 52 Cal.Rptr.2d 518), a trespass or nuisance is continuing if it 'can be remedied at a reasonable cost by reasonable means.' (Mangini, supra, 12 Cal.4th at p. 1103, 51 Cal.Rptr.2d 272, 912 P.2d 1220.) Madani, 45 Cal.App.5th at 608–609. Beck further describes the relevant considerations as including 'such things as the feasible means of, and alternatives to, abatement, the time and expense involved, legitimate competing interests, and the benefits and detriments to be gained by abatement or suffered if abatement is denied.' Beck, 44 Cal.App.4th at 1220.

Defendant Adderley provides no evidence, discussion or analysis of these considerations. Absent addressing these considerations, the court finds Defendant Adderley fails to meet her burden on summary adjudication as to the Wall and the area between the Wall and property line components of the Encroachment. While the court finds Defendant Adderley meets her burden for summary adjudication as to the Residential Structure component of the Encroachment, because summary adjudication is allowable 'only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty' [CCP § 437c(f)(1)] Defendant Adderley's motion must be DENIED.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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