Judge Christopher K. Lui, Case Number: 23STCV05471, Date: 2024-02-07 Tentative Ruling

Defendants Eitan Zviely and Aliza Zviely’s demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the second and third causes of action and OVERRULED as to first, fourth and fifth causes of action.

Defendants are ordered to answer the remaining allegations in the First Amended Complaint within 10 days.

The Declarations of Joseph G. McCarty reflect that Defendants’ counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

1. First Cause of Action (Ejectment); Fourth Cause of Action (Declaratory Relief); Fifth Cause of Action (Quiet Title).

Where a cause of action is properly characterized as one to recover real property—as are the causes of action for ejectment[1], declaratory relief and quiet title—the statute of limitations does not begin to run until the encroacher’s use of the property ripens into title by adverse possession or a valid prescriptive easement:

Welch’s final argument is that the trial court “erred by decreeing the forfeiture or removal of [her] improvements, even while recognizing that any injunctive relief in favor of [the Harrisons] was time-barred.” The Harrisons contend that, notwithstanding the trial court’s conclusion, their claim for injunctive relief was not time-barred, and therefore the relief the trial court granted was proper. We agree with the Harrisons.

Section 312 provides that “<civil“> [c]ivil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” The limitation periods for actions to recover real property are set out in sections 315 through 330. The limitation periods “for the commencement of actions other than for the recovery of real property” are set out in section 335.1 et seq. (§ 335.)

The basic limitations period for bringing an action to recover real property is prescribed by section 318, which provides: “ No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action.” This statute must be read in conjunction with section 321 (Schoenfeld v. Pritzker (1967) 257 Cal. App. 2d 117, 123 [64 Cal. Rptr. 592]), which provides: “ In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action.” (§ 321.) Thus, “ ‘[s]ection 321 [**102] … establishes the presumption of possession in the legal owner, unless such presumption is rebutted by the actual adverse possession … of another; … .’ ” ( Schoenfeld, at p. 123.)

What this means is that once the Harrisons established their legal title to lot 8 by offering into evidence their deed to the property, they were entitled to pursue an action to recover possession of their property from Welch unless Welch showed she had been in adverse possession of the disputed portion of lot 8 for five years prior to the filing of the Harrisons’ complaint. In other words, the running of the five-year limitations period for bringing an action to recover real property is the same as the five-year period of use and [*1096] occupancy required to establish either title by adverse possession or a prescriptive easement. (See Welsher v. Glickman (1969) 272 Cal. App. 2d 134, 137 [77 Cal. Rptr. 141].) As one court has written with respect to a claim of title by adverse possession, “to start the statute to running against the legal owner of the land, there must be an avowed claim of ownership by the party relying upon the statute and substantially all the elements essential to the establishment of title by adverse possession shown to exist.” ( Wood v. Henley (1928) 88 Cal.App. 441, 460 [263 P. 870], italics added.) The same rule applies to a claim of a prescriptive easement. (See Welsher v. Glickman, supra, 272 Cal. App. 2d at p. 137.) Thus, unless and until the encroacher’s use of the property ripens into title by adverse possession or a valid prescriptive easement, the legal title holder’s right to bring an action to recover his or her property from the encroacher never expires. This must be so, “otherwise, the record owner would be unable to recover possession, and a possessor would be unable to establish title” or a prescriptive easement. ( Schoenfeld v. Pritzker, supra, 257 Cal. App. 2d at p. 122.)

With the law thus properly understood, it follows that because Welch’s encroachment on the Harrisons’ property never ripened into either title by adverse possession or a prescriptive easement (for reasons we have previously explained), the limitations period for the Harrisons to bring an action to recover their property from Welch had not expired when they filed their complaint in December 2001, even though Welch had been encroaching on their property for more than seven years. Thus, the trial court was not barred by the statute of limitations from granting the Harrisons the injunctive relief they sought—requiring Welch to “remove the … encroachments and restore possession of the portions of lot 8 occupied by [the] encroachments” to the Harrisons.

In erroneously determining the Harrisons’ request for injunctive relief was time barred, the trial court followed a number of appellate court decisions holding that an action for a mandatory injunction seeking to enjoin a permanent encroachment must be instituted within three years from the inception of the encroachment. (See, e.g., Field-Escandon v. DeMann (1988) 204 Cal. App. 3d 228, 233 [251 Cal. Rptr. 49]; Troeger v. Fink (1958) 166 Cal. App. 2d 22, 26–27 [332 P.2d 779]; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 14:14, p. 40, fn. 3 [citing other cases].) Those cases rely on subdivision (b) of section 338, which provides that the limitations period for “[a]n action for trespass upon or injury to real property” is three years. The flaw in those cases is that an action seeking to enjoin a permanent encroachment is properly characterized as an action for the recovery of real property subject to the five-year limitation period in sections 318 and 321, rather than as an action for trespass subject to the three-year limitation period in section 338, subdivision (b).

(Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1095-96 [bold emphasis and underlining added].)

Defendants argue that these causes of action are barred by the statute of limitations. Defendants rely upon the doctrine of adverse possession. However, the theory of adverse possession cannot be considered here because it requires facts extrinsic to the 1AC.

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

(b) 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.

“The demurrer admits the facts pleaded in the complaint and raises the question whether those facts are sufficient to state a cause of action on any legal theory. . . . ‘The function of a demurrer is to test the sufficiency of the complaint alone and not the evidence or other extrinsic matters. [Citation.]’ (Citation omitted.)” (Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1308-09.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

As such, Defendants must establish a statute of limitations defense as to these causes of action, if at all, by summary adjudication or summary judgment.

The second cause of action for nuisance (1AC, ¶¶ 40, 44) and the third cause of action for negligence (1AC, ¶¶ 50, 52) seek to recover damages. These causes of action are time-barred.

Construction of the Encroaching Structure, the Encroaching Fence and Adjacent Structure occurred in 2004. (1AC, ¶¶ 11, 12.) The Complaint was filed on March 10, 2023—at least 18 years after it was constructed. There is no 18-year statute of limitation, and no basis to toll the statute of limitations for an obvious encroaching fence and structure.

When a trespass is of a permanent nature, the cause of action accrues when the trespass is first committed. (Citation omitted.) "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." (Citation omitted.)

(Field-Escandon v. DeMann (1988) 204 Cal. App. 3d 228, 233 [bold emphasis added].)

"Where one party so constructs a permanent building that it encroaches upon the land of another, the trespass is regarded as permanent in nature; causes of action for damages and for injunctive relief accrue when the trespass is committed and are barred three years thereafter." . . .

In our case, 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 v. Bendon (1961) 193 Cal.App.2d 64, 66-67 [bold emphasis added].)

In an action involving tortious injury to property, the injury is considered to be to the property itself rather than to the property owner, and thus the running of the statute of limitations against a claim bars the owner and all subsequent owners of the property. (Citations omitted.) In other words, the statute of limitations does not commence to run anew every time the ownership of the property changes hands. (Citation omitted.) The injury to the property of which Beck complains occurred more than 40 years before this action was commenced and thus this action is time-barred unless there is some cause for avoidance of the statute of limitations.

(Beck Dev. Co. v. S. Pac. Transp. Co. (1996) 44 Cal.App.4th 1160, 1216 [bold emphasis added].)

As such, the causes of action for damages resulting from the alleged nuisance and negligence cause by the construction of the Encroaching Structure, the Encroaching Fence and Adjacent Structure, which occurred in 2004, are time-barred.

The demurrer to the second and third causes of action is SUSTAINED without leave to amend.

Defendants are ordered to answer the remaining allegations in the First Amended Complaint within 10 days.

[1]

An action for ejectment, i. e., to recover the possession of real property, is within the original jurisdiction of the superior court. (Article VI., sec. 5, Constitution of the State of California.)

(Hebert v. Gray (1942) 49 Cal.App.2d 162, 167.)