Judge Edward B. Moreton, Jr., Case Number: 22SMCV00709, Date: 2024-08-22 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 22SMCV00709, Date: 2024-08-22 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

EKO SUBSTANCE THREE LLC,

Plaintiff,

MICHAEL KASABA, et al.,

Defendants.

Case No.: 22SMVC00709

Hearing Date: August 22, 2024

[TENTATIVE] ORDER RE:

DEFENDANTS’ MOTION FOR JUDGMENT

ON THE PLEADINGS

This action arises from a dispute over easements. Plaintiff Eko Substance, LLC bought a property located at 27835 Borna Drive, Malibu, California (“Plaintiff’s Property”). Defendants Michael Kasaba and Michael E. Kasaba LLC’s (“MEK”) own the property located at 2210 Mar Vista Ridge Drive, Malibu, California (“MEK Property”).

Plaintiff claims that there are two recorded 40 foot wide easements, across the MEK Property, that benefit Plaintiff’s Property and provide Plaintiff’s Property “with unfettered ingress and egress for roadway and public utilities over Defendants’ land” (“Easements”). (Compl. ¶ 3.) Plaintiff further alleges that “an improved paved road runs within the geographical limitations of the Easements” (“Improved Road”). (Compl. ¶ 6.)

Plaintiff identifies as “the first easement benefitting Plaintiff’s land” a document “which is recorded as document no. 07-2646335 O.R., Rec. December 03, 2007” (“First Easement”). (Compl. ¶ 7.iii at 5:26-27.) Plaintiff identifies as “the second easement benefitting Plaintiff’s land” a document “which is recorded as document no. 07-2646336 O.R., Rec. December 03, 2007” (“Second Easement”) (Compl., ¶ 7.iii at 6:1-3.)

Plaintiff alleges that Defendants “have engaged in wrongful, deceptive, unauthorized and illegal conduct concerning Plaintiff’s land, the Easements and the Improved Road” (Compl. ¶ 7.) The alleged misconduct includes (1) submitting proposed plans to government agencies in which Defendants failed to disclose that their planned development on the MEK Property “encroaches not only on the existing Improved Road but seriously and materially encroaches upon the Easements” (Compl. ¶ 7.i at 4:19-20), and (2) placing yard improvements and plantings, and engaging in illegal grading, over both Easements (Compl. ¶ 7.iii.).

The operative complaint alleges claims for (1) continuing nuisance, (2) permanent nuisance, (3) trespass, (4) slander of title, (5) intentional interference with prospective economic relations, (6) declaratory relief, and (7) negligence.

Each of Plaintiff’s alleged causes of action is based on Plaintiff’s purported rights to the Easements and Improved Road across the MEK Property. The First Cause of Action for Continuing Nuisance, and the alternative Second Cause of Action for Permanent Nuisance, allege Defendants owed Plaintiff a duty to refrain from doing acts that “interfere with” or “obstruct the free use of” the Easements and Improved Road. (Compl., ¶¶ 14, 18.) The Third Cause of Action for Trespass and/or Interference with Property Rights is based on the assertion that Defendants “entered upon the Easements and performed the actions as described above”. (Compl., ¶ 23.) The Fourth Cause of Action for Slander of Title charges Defendants with “publishing, misrepresenting and deceiving, as above described, to the land use authorities the rights of Plaintiff to the Easements and Improved Road through Defendants’ land” and “casting doubt on plaintiff’s title and rights to the Easements and Improved road”. (Compl., ¶¶ 27, 30.) To support its Fifth Cause of Action for Quiet Title and Cancellation of Cloud on Title, Plaintiff alleges that “Defendants have no right, title, estate, lien, or interest whatsoever in the lands adverse to Plaintiff’s title to the Easements and the Improved Road”. (Compl., ¶ 37.) The Sixth Cause of Action for Intentional Interference with Prospective Economic Advantage is based on “the submission of false and deceptive land use applications, and the encroachments and injury to property as above described”. (Compl., ¶ 40.) In the Seventh Cause of Action for Declaratory Relief, Plaintiff seeks to “ascertain its rights and duties concerning the Easements and Improved Road”. (Compl., ¶ 48.) Finally, in its Eighth Cause of Action for Negligence, without specifying any other conduct, Plaintiff alleges that “defendants in acting as set forth above owed Plaintiff a duty of care and said defendants acted negligently in performing the actions alleged herein”. (Compl., ¶ 50.)

Plaintiff’s prayer for relief likewise is based on the Easements. Among other things, Plaintiff seeks (i) injunctive relief “requiring the removal of the offensive [encroachments and] improvements, foliage and trees from the Easements” and “correction of the land use applications of Defendants containing the false and deceptive representations concerning the Easements and Improved Road” (Compl. at 16:8-11, 16:24-27), and (ii) an order that “the Easements and Improved Road thereon are valid and enforceable” (Compl. at 17:4-5.)

This hearing is on Defendants’ motion for judgment on the pleadings. Defendants argue that each of Plaintiff’s causes of action fails because they are premised on purported easement rights that were extinguished upon a prior foreclosure sale of the MEK property.

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc. §438(b)(1) and (c)(1)(B)(ii).) “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (citations omitted).)

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).)

Like a demurrer, a motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. (Lora v. Garland (1946) 27 Cal.2d 840, 850; Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.) If addressed to separate counts, the motion may be granted as to some counts and denied as to others. (Steiner v. Rowley (1950) 35 Cal.2d 713, 720; Heredia, 228 Cal.App.3d at 1358.)

A party moving for¿judgment on the pleadings must¿meet and confer in person or telephonically with the party who filed the pleading that is subject to the motion to determine if an agreement can be reached regarding the claims raised in the motion. (Code Civ. Proc., § 439, subd. (a).) The moving party must file a declaration detailing the¿meet and confer efforts. (Code Civ. Proc. § 439, subd. (a)(3).) Defendants submit the Declaration of Mak Hurwitz which attests the parties met and conferred by telephone. This satisfies the meet and confer requirements of § 439.

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of the following documents recorded in the Official Records of the Los Angeles County Recorder’s Office: (1) a Deed of Trust, recorded with the County Recorder on January 25, 2005 as Instrument No. 05 0174612, executed by Raymond Munro in favor of Washington Mutual Bank FA; (2) a Grant of Road and Utility Easement, recorded with the County Recorder on December 3, 2007 as Instrument No. 20072646335; (3) a Grant of Road and Utility Easement, recorded with the County Recorder on December 3, 2007 as Instrument No. 20072646336; (4) a Notice of Trustee’s Sale dated July 23, 2008, and recorded with the County Recorder on July 25, 2008 as Instrument No. 20081332370; (5) A Trustee’s Deed Upon Sale dated January 28, 2009, and recorded with the County Recorder on January 30, 2009 as Instrument No. 20090127166; (6) a Grant Deed, recorded with the County Recorder on October 15, 2019 as Instrument No. 20191095187. In addition, Defendants request that the Court take judicial notice of the (a) the Complaint filed on May 22, 2018, (b) the Answer filed on February 22, 2023, and (c) the Amended Answer filed on July 12, 2023.

Defendant’s¿request for judicial notice is not made in a¿separate document in violation of California Rules of Court, Rule 3.113. (Cal. Rules Ct. 3.1113(l)¿(“Any¿request for judicial notice must be made in a¿separate document listing the specific items for which notice is requested….”).) Nonetheless, in the interest of moving the case forward, the Court will take judicial notice of (1)-(6) pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453, although it admonishes Defendant to familiarize itself, and comply, with the rules of Court. The Court denies the request to take judicial notice of the pleadings filed in this action as it is unnecessary. Defendants need only call the Court’s attention to such pleadings.

Plaintiff also seeks judicial notice of (1) the Deed Restriction recorded on August 30, 2002 in the Official Records of Los Angeles County as Document Number 02 2047545, and (2) the Amendment to Deed Restriction recorded on November 6, 2022 in the Official Records of Los Angeles County as Document Number 02 02657968. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453.

Defendants argue that the easements upon which Plaintiff’s claims are based were extinguished in a foreclosure sale, and accordingly, there is no basis for any of Plaintiff’s claims. The Court agrees.

In January 2005, a prior owner of the MEK Property, Raymond Munro (“Munro”), executed a Deed of Trust to the MEK Property in favor of Washington Mutual Bank, FA. (Request for Judicial Notice (“RJN”), Ex. A.) The Deed of Trust was recorded nearly three years before the Easements were recorded on December 3, 2007. (RJN, Exs. B & C.)

On July 25, 2008, after the Easements were recorded, the Trustee under the Deed of Trust recorded a Notice of Trustee’s Sale (“Notice”) of the MEK Property. (RJN, Ex. D.) As reflected by the Trustee’s Deed Upon Sale (“Sale Deed”) recorded on January 30, 2009, the Trustee sold the MEK Property to the foreclosing beneficiary under the Deed of Trust on January 28, 2009. (RJN, Ex. E.) The Sale Deed, among other things, expressly identifies (i) the Deed of Trust by recording date and instrument number, (ii) Munro as the Trustor, and (iii) the APN and legal description of the MEK Property. (Id.)

Under well settled California law, the Sale Deed conveyed by the Trustee in January 2009 pursuant to the foreclosure sale of the MEK Property extinguished all easements or encumbrances recorded after the Deed of Trust, including but not limited to the alleged Easements, recorded in December 2007, on which Plaintiff bases the entire Complaint. See, e.g., Perez v. 222 Sutter St. Partners (1990) 222 Cal. App. 3d 938, 942-943, 949 (affirming summary judgment on ground that foreclosure sale extinguished easement rights); San Francisco Design Ctr. Assocs. v. Portman Cos. (1995) 41 Cal. App. 4th 29, 45 (“when property is sold under a trust deed, the purchaser obtains title free and clear of all encumbrances subsequent to the deed of trust”); R-Ranch Mkts. #2, Inc. v. Old Stone Bank (1993) 16 Cal. App. 4th 1323, 1328 (“When property is sold under a trust deed, the purchasers acquire title free and clear of all encumbrances subsequent to the deed of trust”); Dover Mobile Estates v. Fiber Form Prods. (1990) 220 Cal. App. 3d 1494, 1498 (“Liens which attach after execution of the foreclosed trust deed are extinguished. The purchaser at the trustee sale therefore takes title free of those junior or subordinate liens.”). As the leading treatise on California real property law confirms, “the foreclosure sale terminates any easements recorded after the deed of trust was recorded, and the purchaser’s title and possession are free and clear of the easement”. (4 Miller & Starr, California Real Estate (4th Ed.) § 10.100.)

Accordingly, at the time Plaintiff acquired Plaintiff’s Property in 2019, the Easements had already been extinguished by operation of law, and Plaintiff does not have any right of access, ingress, or egress across the MEK Property. Plaintiff therefore cannot state any claim based on, or even seeking a determination of, its purported rights to the Easements or any Improved Road thereon. Since each cause of action in the Complaint depends upon the Easements, and the Easements have been extinguished as matter of law, the entire Complaint does not and cannot state a cause of action against Defendants.

Plaintiff argues that Defendants’ attack goes only to a portion of their Complaint, and even if the easements were terminated, Plaintiff would still have certain rights in the easement area by virtue of the legal description set forth in the grant deed vesting Plaintiff’s Property to Plaintiff and/or an equitable easement. But the Grant Deed merely contains a legal description of the extinguished Easements. Plaintiff has cited no authority that, simply by a grantor including the description of the extinguished Easements in a grant deed, the extinguished Easements were somehow revived.

Similarly, Plaintiff’s references to purported deed restrictions from a permit application by a prior owner of the MEK Property in 2002 (“Purported 2002 Restrictions”) are entirely immaterial, as (a) the Complaint is not based on the Purported 2002 Restrictions, (b) the Purported 2002 Restrictions predate the Easements on which Plaintiff bases its claims, (c) the Purported 2002 Restrictions concern the MEK Property, and the rights of the owner thereof, but do not grant easement rights to any owner of Plaintiff’s Property, and (d) Plaintiff has not shown that it somehow could have acquired easement rights by the Purported 2002 Restrictions, between the California Coastal Commission and a prior owner of the MEK Property, to which neither Plaintiff nor any predecessor on Plaintiff’s Property was a party.

Plaintiff also cannot show that it can base any claim on Defendants’ alleged “deception” in their land use applications. Since the Easements have been extinguished as a matter of law, and Plaintiff therefore cannot claim any rights on the MEK Property, MEK’s use of its property is of no concern to, and certainly is not actionable by, Plaintiff. Plaintiff has no interest in the MEK Property, nor does Plaintiff have any right of access, ingress, or egress across the MEK Property. Accordingly, Plaintiff has no standing to pursue any purported claim thereon.