Judge: Edward B. Moreton, Jr., Case: 19SMCV02073, Date: 2022-12-14 Tentative Ruling

Case Number: 19SMCV02073    Hearing Date: December 14, 2022    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Plaintiffs/Cross-Defendants George C. Kopek, Toni Kopek, and Richard S. Lee

RESPONDING PARTY:         Defendants/Cross-Complainants Bagram Mardirossian and Susanna Mardirossian

BACKGROUND

This case involves a dispute over parking spaces.  Plaintiffs George C. Kopek, Toni Kopek and Richard Lee live in a condominium building in Pacific Palisades and claim ownership of two parking spaces, G114 and G116 (the “Property”).  They contend Defendants Bagram and Susanna Mardirossian are illegally occupying the Property.  They have also sued their homeowners association, Casa Gateway Homeowners Association (“Casa Gateway”), for failing to enforce bylaws and a Declaration of Covenants, Conditions and Restrictions (CC&R’s).  Their complaint alleges claims for ejectment, preliminary injunction, trespass, nuisance, quiet title and enforcement of “governing documents”.

Defendants Bagram and Susanna Mardirossian have cross-claimed against Plaintiffs and Casa Gateway.  They allege they are owners of the Property by virtue of adverse possession.  They claim they have exclusively possessed and used the Property (which are located below their unit) for more than 20 years. Their cross complaint alleges claims for adverse possession, prescriptive easement and declaratory relief. 

Defendant Casa Gateway has cross-claimed against Moe Defendants.  It claims that in the event it is found liable to Plaintiffs, such liability will be due to acts or omissions of the Moe Defendants.  Its cross-complaint alleges claims for equitable and implied indemnity, apportionment and contribution, and declaratory relief.

This hearing is on the Kopeks’ motion for summary adjudication of the Mardirossians’ Cross-Complaint on grounds that: (1) the first cause of action for adverse possession fails as a matter of law because the Mardirossians cannot establish that they timely paid for a period of five years all the taxes on the Property or that for a period of five years, they did not recognize the Kopeks or Lee had any ownership rights over the Property, (2) the second cause of action for prescriptive easement fails because the Mardirossians admitted exclusive use incompatible with the nature or exercise of any prescriptive easement and they cannot establish they did not recognize the Kopeks or Lee had any ownership rights to the Property, and (3)  the Mardirossians’ affirmative defenses of prescriptive easement and adverse possession should also be summarily adjudicated.    

MOTION TO STRIKE

As a threshold matter, the Court must first address the Mardirossians’ motion to strike the motion for summary judgment or in the alternative for summary adjudication on ground that the Kopeks and Lee failed to timely file with the Court all the evidence that supports their motion.  After the filing of the motion to strike, the Kopeks and Lee corrected their error and filed all the missing exhibits with the Court on November 22, 2022.  Moreover, the Kopeks and Lee represent, and the Mardirossians do not dispute, that the missing exhibits were all served on the Mardirossians on June 16, 2022, within 75 days before the hearing date, as required under Code Civ. Proc. §437c(a)(2).  As a result, there was no prejudice to the Mardirossians from the late filing.  Accordingly, the Court denies the Mardirossians’ motion to strike the motion for summary judgment or in the alternative for summary adjudication. 

REQUEST FOR JUDICIAL NOTICE

The Court grants the Kopeks’ request for judicial notice of deeds, condominium plans, and tax bills pursuant to Evid. Code §452.  The Court also grants the Mardirossians’ request for judicial notice of condominium plans, CC&R’s, deeds, second amended cross-complaint and answer to second amended cross-complaint pursuant to Evid. Code §452. 

EVIDENTIARY OBJECTIONS

The Court overrules the Mardirossians’ evidentiary objections to the Declarations of Toni Kopek and Richard Lee, and to exhibits submitted in support of the motion for summary adjudication. 

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  CCP §437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67). 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense.  (CCP §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

Adverse Possession

            “The elements of an adverse possession claim consist of the following: (1) actual possession by the plaintiff of the property under claim of right or color of title, (2) the possession consists of open and notorious occupation of the property in such a manner as to constitute reasonable notice to the true owner; (3) the possession is adverse and hostile to the true owner; (4) the possession is uninterrupted and continues for at least five years, and (5) the plaintiff has paid all taxes assessed against the property during the five year period.”  (Bailey v. Citibank N.A. (2021) 66 Cal.App.5^th 335, 351.)  The dispute centers on whether the Mardirossians can show a triable issue on elements (3) and (5).  The Court concludes that they can as to the Kopeks but not as to Lee. 

            On the issue of taxes, there is a triable issue as to whether taxes were separately assessed on the garage spaces.  Where the taxes are not separately assessed, there is no requirement to show payment of taxes against the property.  (Glatts v. Henson (1948) 31 Cal.2d 368, 371-372 (to prove adverse possession, there is no need to show payment of taxes on property where no taxes were levied or assessed against the easement).)      

            On the issue of whether their use was adverse and hostile, the Mardirossians have presented evidence that in 2002, the Kopeks demanded that Mardirossian vacate garage space 116 and give them the garage door opener.  (Exs. 5-9; Mardirossian Decl. ¶¶16, 18-20.)  This creates a triable issue on whether the Mardirossians’ possession of garage space 116 was adverse and hostile to the Kopeks.  Accordingly, the Court denies the motion for summary adjudication of the adverse possession claim against the Kopeks.     

            As to Lee, however, the Mardirossians have not presented a triable issue that their possession of garage space 114 was adverse and hostile to Lee.  They merely allege that Lee’s father did not object to improvements made by the Mardirossians to the garage, never requested use of the garage space, and did not request a remote opener or key to the exterior garage door.  These are all acts consistent with the fact that Lee permitted the Mardirossians’ use of garage space 114 and did not consider the Mardirossians’ use adverse or hostile.  Accordingly, the Court grants the motion for summary adjudication of the adverse possession claim against Lee.    

Prescriptive Easement

            “To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owners; and (4) under claim of right.”  (Mehdizadeh v. Mincer (1996) 46 Cal.App.4^th 1296, 1305.)  As discussed above, the Mardirossians have shown a triable issue that their possession was hostile to the Kopeks but not to Lee.  Accordingly, the Court grants summary adjudication of the prescriptive easement claim against Lee.

            Further, in a case involving a garden variety residential boundary dispute, a prescriptive easement cannot be based on the exclusive use of the subject property.  (Harrison v. Welch (2004) 116 Cal.App.4^th 1084, 1093 (“an exclusive easement which as a practical matter prohibits the true owner from using his land will not be granted in a case … involving a garden variety residential boundary encroachment”)  Here, the Mardirossians have factually pled in their Cross-Complaint to exclusive use -- “placed locks and electronic controls which prevented others from accessing Parking Spaces”.  (2d Am. Cross Compl. ¶10).  The garage spaces were completely enclosed with a locked garage door.  (Id.)  This matter is also a “garden variety residential boundary” dispute where an exclusive easement will not be granted, distinguishable from the rare exceptions found in cases involving public utilities like the case relied on by the Mardirossians, Otay Water Dist. v. Beckwith (1991) (1 Cal.App.4^th 1041, 1044-1045.  (See Silacci v. Abramson (1996) 45 Cal.App.4th 558, 560 (limiting Otay to its difficult and peculiar facts involving a public water company’s right to keep drinking water safe from contamination and holding that there is no exclusive prescriptive easement in a dispute between neighbors over use and ownership of a portion of land behind their houses).  Accordingly, the Court also grants summary adjudication of the prescriptive easement claim against the Kopeks.

Affirmative Defenses

            The Mardirossians argue that the Kopeks and Lee are not entitled to summary adjudication of the affirmative defenses of adverse possession and prescriptive easement because their separate statement fails to separately identify each affirmative defense, as required under Rule of Court 3.1350, subdivisions (b) and (d).  But even if some additional headings had been required, the Court's power to deny summary judgment on the basis of failure to comply with Rule 3.1350 is discretionary, not mandatory. (Truong v. Glasser (2009) 181 Cal.App.4^th 102, 118; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523.)  The Court finds that the facts critical to summary adjudication of the two affirmative defenses were adequately identified, and the Mardirossians have not explained how any alleged deficiency in the separate statement impaired their ability to marshal evidence to show that material facts were in dispute.  For the same reasons set forth above, the Court grants summary adjudication of the adverse possession defense against Lee, and of the prescriptive easement defense against both the Kopeks and Lee. 

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the motion for summary adjudication.  The Court grants summary adjudication as to the adverse possession claim against Lee and the prescriptive easement claim against both the Kopeks and Lee.  The Court also grants summary adjudication of the adverse possession defense as to Lee and the prescriptive easement defense as to both the Kopeks and Lee.

IT IS SO ORDERED.

DATED: December 14, 2022                                              ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court