Judge: Cynthia A Freeland, Case: 37-2022-00044399-CU-NP-NC, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 25, 2024

01/26/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00044399-CU-NP-NC STAVINOHA VS. AGUACATE RANCH COMMUNITY ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 10/25/2023

Defendant Aguacate Ranch Community Association ('Defendant' or the 'HOA')'s motion for summary judgment or, in the alternative, summary adjudication is granted.

Initial Considerations Defendant's request for judicial notice is granted. Defendant's objections to the Declarations of John O'Donnell and Kerry Stavinoha are sustained.

Plaintiffs Aaron Stavinoha and Kerry Stavinoha (collectively, 'Plaintiffs')'s evidentiary objections are ruled on as follows: Objection No. 1: sustained to the extent Ms. DeWalt represents that the HOA will not 'accept' a prescriptive easement.

Objection No. 2: sustained.

Objection No. 3: overruled.

Objection No. 4: overruled.

Objection No. 5: overruled.

Objection No. 6: overruled.

Objection No. 7: overruled.

Objection No. 8: overruled.

Objection No. 9: overruled.

Objection No. 10: overruled.

Objection No. 11: overruled.

Objection No. 12: overruled.

Objection No. 13: overruled.

Objection No. 14: overruled.

Before delving into the motion's merits, the court must address Plaintiffs' Separate Statement ('UMF') in response to Defendant's motion. See ROA No. 52. A separate statement must accompany an opposition to a motion for summary judgment or adjudication. See Cal. R. Ct. 3.1350(e)(2); Cal. Code Civ. P. § 437c(b)(3). The separate statement must 'respond[] to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. That statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this Calendar No.: Event ID:  TENTATIVE RULINGS

3039887 CASE NUMBER: CASE TITLE:  STAVINOHA VS. AGUACATE RANCH COMMUNITY ASSOCIATION  37-2022-00044399-CU-NP-NC requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.' Cal. Code Civ. P. § 437c(b)(3). The separate statement in opposition to the motion must, in relevant part, 'unequivocally state whether that fact is 'disputed' or 'undisputed.' An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.' Cal. R. Ct. 3.1350(f)(2).

In this case, certain aspects of Plaintiffs' Separate Statement are not Code-compliant. Specifically, there are instances where Plaintiffs failed to: (1) unequivocally state whether each fact set forth by Defendant is disputed or undisputed, and (2) sufficiently cite the evidence in support of the position. For example, in response to UMF Nos. 4-6, Plaintiffs state 'Plaintiffs decline to interpret the document.' In response to UMF Nos. 11 and 16, Plaintiffs state 'Plaintiffs are aware of that deed, which they discovered after discovering the drainage pipe.' Plaintiffs respond, in part, to UMF Nos. 14 and 17 by stating '[t]he document speaks for itself.' However, none of those responses are Code-compliant as Plaintiffs fail to state whether the proffered facts are disputed or undisputed. Moreover, to the extent that Plaintiffs dispute certain material facts (see UMF Nos. 18 and 23), they fail to cite to any evidence in support of their position. Furthermore, Plaintiffs' response to UMF No. 17 is not Code-compliant to the extent Plaintiffs object to the UMF as 'compound.' Plaintiffs did not assert a 'compound' objection into their separately filed evidentiary objections. Evidentiary objections must be submitted either: (1) in writing under California Rules of Court ('CRC'), Rule 3.1354, or (2) at the hearing in the presence of a court reporter. See Cal. R. Ct. 3.1352. CRC, Rule 3.1354(b) makes clear that evidentiary objections 'must be served and filed separately from the other papers in support of or in opposition to the motion.' Cal. R. Ct.

3.1354(b). While specific evidentiary objections must be referenced in the right column of the separate statement, it is insufficient to merely restate or reargue such objections in a separate statement in the absence of separately filed and served written objections. Ibid. Consequently, the court will not consider Plaintiffs' 'compound' objection to UMF No. 17.

As set forth above, the court could grant the motion for Plaintiffs' failure to submit a Code-compliant Separate Statement. However, in light of the issues presented and the lack of discernible prejudice demonstrated by Defendant, the court will disregard the foregoing deficiencies and proceed to the motion's merits. Plaintiffs are on notice that future failure(s) to comply with the applicable Rules of Court and/or the Code of Civil Procedure may not result in the same treatment. That being said, while the failure to submit a Code-compliant Separate Statement is not fatal in this case, the undisputed evidence nonetheless supports granting the motion.

Factual Background and Procedural History This action concerns a purported easement on real property. On September 15, 1999, Map No. 13848 was recorded with the County of San Diego. Map No. 13848 identifies the real property located at 1409 Dentro De Lomas Road, Bonsall, CA 92003 (the 'Property') as 'Lot 1.' See UMF No. 2. Page 9 of 13 of Map No. 13848 identifies a 15-foot drainage easement on the Property. See Ex. 3 to Defendant's CC&Rs. Page 8 of 13 of Map No. 13848 identifies a proposed 15-foot private drainage easement running downhill on Lot 3, under Dentro De Lomas Road, and then under the Property to connect the private drainage easement identified on Page 9. Ibid. On December 12, 2001, LB/L-EPAC Rancho Carmago, LLC ('LB') recorded certain CC&Rs with the County of San Diego. See UMF No. 3. The 'Initial Covered Property' identified in the CC&Rs by LB did not include the Property. See UMF No. 4.

Nor did the CC&Rs contain a grant of an easement from LB to Defendant over the Property. See UMF No. 5. On August 19, 2002, a First Amended to the CC&Rs was recorded; however, the Amendment did not alter the Initial Covered Property identified in the CC&Rs to include the Property. See UMF No. 6. LP developed the Property. See UMF No. 7. However: (1) LB never deeded, ceded, or otherwise conveyed a drainage easement concerning the Property, as the servient tenement, to Defendant, as the dominant tenement; (2) there is no recorded easement for drainage purposes on the Property conveyed to Defendant; and (3) Defendant never sought, filed suit, or otherwise attempted to, or did, obtain a prescriptive easement for drainage purposes (or any other purpose) on the Property. See UMF Nos.

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3039887 CASE NUMBER: CASE TITLE:  STAVINOHA VS. AGUACATE RANCH COMMUNITY ASSOCIATION  37-2022-00044399-CU-NP-NC 8-10.

On December 12, 2002, a grant deed was recorded transferring ownership of the Property from LB to Ralph and Shari Stock (the 'Stock Grant Deed'). See UMF No. 11. Exhibit A to the Stock Grant Deed identifies and describes the ownership transfer of Lot 1 as follows: 'Lot 1 of County of San Diego Tract No. 5037-1, according to Map thereof No. 13848, filed in the office of the County Recorder of San Diego County September 15, 1999.' The Stock Grant Deed further reserves an easement over Lot 1, running in favor of the dominant tenement (the HOA) and burdening the servient tenement (Lot 1, i.e., the Property). This Drainage Easement is described as follows: '[a]n easement for private drainage facilities, including the right to access and maintain pipe lines, concrete ditches and appurtenances, over, under, along and across a portion of Lot 1 of County of San Diego Tract No. 5037-1, according to Map 13848, filed September 15, 1999 in the Office of the County Recorder of San Diego County, Shown on said Map No. 13848 as '15' Private Drainage Easement.' See UMF No. 17. In April 2015, Plaintiffs purchased the Property from the Stocks subject to the easements, rights, and obligations set forth in Map No. 13848 and the Stock Grant Deed. See UMF No. 18.

The undisputed evidence establishes that the subject Stormwater Drain was designed and constructed in connection with the development of the HOA's subdivision. See UMF No. 19. Water flows into a stormwater drainage inlet on Chateau Saint Jean, a street that is part of the HOA's common area, and eventually into a junction box in the driveway of the Property where it diverts to two other drainpipes.

See UMF No. 20. On November 2, 2022, Plaintiffs commenced this action by filing a Complaint against Defendant. See ROA No. 1; UMF No. 1. The operative Second Amended Complaint (the 'SAC'), filed on May 30, 2023, alleges causes of action against Defendant for: (1) violation of California Civil Code ('CC') § 845(a); (2) negligence; (3) nuisance; (4) trespass; and (5) declaratory relief. See ROA No. 27.

The SAC alleges, in essence, that the Stormwater Drain under the driveway of the Property has completely eroded and caused significant damage to the Property, a problem which Plaintiffs first discovered in July 2021. See UMF No. 21. Plaintiffs contend that the Stormwater Drain failed because Defendant did not properly maintain, repair, manage, operate, replace, and/or improve the Stormwater Drain. See UMF No. 22. Plaintiffs ask the court, among other things, to find that Defendant obtained a prescriptive easement over the Stormwater Drain and, as such, has violated CC § 845(a) by failing to properly maintain it. Defendant now seeks summary judgment as to the entire Complaint on the grounds that Plaintiffs, as a matter of law, cannot impose a prescriptive easement upon Defendant. Alternatively, Defendant seeks summary adjudication of the following issues: (1) the first cause of action fails because Plaintiffs have no standing to impose a prescriptive easement upon Defendant; (2) the first cause of action fails because Plaintiffs cannot establish the hostile and adverse use requirement for imposition of a prescriptive easement; (3) the second, third, and fourth causes of action are barred by California Code of Civil Procedure ('CCP') § 338(b)'s three-year statute of limitations; and (4) the fifth cause of action fails because Plaintiffs cannot establish the existence of a prescriptive easement.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable Calendar No.: Event ID:  TENTATIVE RULINGS

3039887 CASE NUMBER: CASE TITLE:  STAVINOHA VS. AGUACATE RANCH COMMUNITY ASSOCIATION  37-2022-00044399-CU-NP-NC issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Defendant's motion for summary judgment or adjudication as to the first cause of action for violation of CC § 845(a) and the fifth cause of action for declaratory relief is granted. CC § 845(a) provides that '[t]he owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.' Cal. Civ. Code § 845(a). Consequently, before a violation of CC § 845(a) can be found, it first must be determined that the purported violator owns an easement in the first instance. That being said, the court respectfully must agree with Defendant that Plaintiffs, as owners of the servient tenement, lack standing to impose a prescriptive easement on Defendant, as owner of the dominant tenement. CC § 804 provides that '[a] servitude can be created only by one who has a vested estate in the servient tenement.' Cal. Civ. Code § 804. CC § 805 makes clear that '[a] servitude thereon cannot be held by the owner of the servient tenement.' Cal. Civ. Code § 805. CC § 809 states that '[t]he owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto.' Cal. Civ. Code § 809. CC § 810 provides that '[t]he owner in fee of a servient tenement may maintain an action for the possession of the land, against any one unlawfully possessed thereof, though a servitude exists thereon in favor of the public.' Cal. Civ. Code § 810. Notably, a leading treatise has explained: The owner of any estate in a dominant tenement, or the occupant of that tenement, is broadly authorized by the Civil Code to maintain an actin for the enforcement of an easement attached to that tenement.

[Civ. Code, § 809; for discussion of available remedies, see §§ 12:28 to 12:36] The owner in fee of a servient tenement is statutorily authorized to maintain an action for the possession of the land against anyone unlawfully possessed of it. The action may be brought even though an easement exists on the land in favor of the public. [Civ. Code, § 810] See Cal. Civ. Prac. Real Property Litigation § 12:27 (Nov. 2023 Update). Other secondary sources and case law are in accord. See 6 Miller & Starr, California Real Estate 4th, Easements, § 1540 ('On establishing the required use for the prescribed period the user acquires a vested, enforceable, and defensible right against the owner of the servient tenement and any successors to the same extent if the easement had been created by an express grant.'); Restatement 3d of Property, Servitudes, § 8.1 ('A person who holds the benefit of a servitude under any provision of this Restatement has a legal right to enforce the servitude.'); Jones v. Young (1957) 147 Cal. App. 2d 496. In sum, Plaintiffs lack standing to enforce the proposed prescriptive easement and cannot force Defendant to accept such an interest in land. Plaintiffs, in their opposition, merely argue, without authority, that CC §§ 805 and 809 'have no bearing on the issue of prescriptive easement findings . . . it is normal and appropriate to find a prescriptive easement at the request of the servient landowner.' Aside from citations to authority that generally explains the law on prescriptive easements, Plaintiffs do not cite specific authority for the proposition that the owner of a servient tenement can impose a prescriptive easement on the owner of a dominant tenement against its will.

Accordingly, the court grants Defendant's motion for summary judgment as to the first and fifth causes of action.

Defendant's motion for summary judgment or adjudication as to the second cause of action for negligence, the third cause of action for nuisance, and the fourth cause of action for trespass is granted.

The court finds that the second, third, and fourth causes of action are time-barred. More specifically, CCP § 338(b) imposes a three-year statute of limitations for '[a]n action for trespass upon or injury to real property.' Cal. Code Civ. P. § 338(b). In this case, it is not disputed that Plaintiffs first learned of the damage caused by the Stormwater Drain in July 2021. Plaintiffs initiated this action on November 2, 2022 – within the three-year limitations period. However, the undisputed evidence establishes that the Calendar No.: Event ID:  TENTATIVE RULINGS

3039887 CASE NUMBER: CASE TITLE:  STAVINOHA VS. AGUACATE RANCH COMMUNITY ASSOCIATION  37-2022-00044399-CU-NP-NC Stormwater Drain running under the Property was built at the time of the improvements thereon, completed in 2002, and was intended as a permanent structure under the Property. See UMF No. 23.

Plaintiffs respond to UMF No. 23 by stating '[d]isputed as to the intentions of the installer of the stormwater drainage system.' However, they do not cite any evidence to support their position. Nor have they submitted any admissible evidence to that effect. Under California law, a cause of action for a permanent nuisance or trespass accrues at the time the nuisance or trespass comes into existence regardless of subsequent sue of the property. See Capogeannis v. Sup. Ct. (1993) 12 Cal. App. 4th 668, 675-676 ('If a nuisance is permanent, then in the ordinary case the plaintiff must 'bring one action for all past, present and future damage within three years after the permanent nuisance is erected. [Citations.] ... Damages are not dependent upon any subsequent use of the property but are complete when the nuisance comes into existence. [Citation.]'' See also Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal. 3d 862, 869; Castelletto v. Bendon (1961) 193 Cal. App. 2d 64. Indeed, courts have determined that various structures erected on another's property are permanent in nature, including piping. See, e.g., Field-Escandon v. Demann (1988) 204 Cal. App. 3d 228, 233-234. To the extent Plaintiffs argue that the Stormwater Drain is a continuing trespass/nuisance as opposed to a permanent one, they must show that there 'is an intrusion under circumstances that indicate the trespass may be discontinued or abated.' Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal. App. 4th 583, 592. The flaw in Plaintiffs' logic, however, is that they have not established a trespass or nuisance that Defendant can discontinue or abate. As set forth above, the undisputed evidence establishes that Defendant does not hold a prescriptive easement over the Stormwater Drain and thus does not have a duty to maintain the Stormwater Drain.

Accordingly, the court grants Defendant's motion for summary judgment or adjudication as to the second, third, and fourth causes of action.

Conclusion In light of the foregoing, the court grants Defendant's motion for summary judgment or, in the alternative, summary adjudication. The court directs Defendant to submit a proposed Judgment within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 26, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 26, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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