Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises from a dispute between neighbors over a garage and a porte-cochere.  Plaintiffs Daniel Barrett M.D. and Rosalyn Barrett, as Co-Trustees of the Clover Trust Dated 6/20/2021 own real property located at 235 S. Bedford Drive, Beverly Hills, California 90212 (“Barrett Property”) and have done so since July 20, 2021.  The northern boundary of the Barretts Property abuts real property located at 231 S. Bedford Drive, Beverly Hills, California 90212 (“Tuchman Property”), which Defendants Aviv Tuchman and Janet Tuchman, as Trustees of the Tuchman Living Trust Dated 12/22/2003 own.  

Plaintiffs are constructing a new home on the Barrett Property and, in the process of doing so, allegedly obtained a topographic survey that purports to illustrate that a portion of the garage and porte-cochere on the Tuchman Property (the “Alleged Encroachments”) encroach onto the Barrett Property.  Based on the survey, Plaintiffs asked Defendants to immediately remove or abate the Alleged Encroachments, two permanent structures on the Tuchman Property which were built in 1931.  (Request for Judicial Notice (“RJN”), Exs. A, B, C.)  When the Tuchmans did not do so, the Barretts filed the instant lawsuit alleging causes of action for (1) trespass, (2) nuisance and (3) quiet title.   

This hearing is on Defendants’ demurrer to and motion to strike the Complaint.  Defendants argue that Plaintiffs’ claims are time barred as the Alleged Encroachments are permanent structures, and the statute of limitations for such structures is three years and begins to run from the moment the Alleged Encroachments came into existence, which in this case is 1931.  Plaintiffs’ complaint was not filed until October 15, 2024.  Defendants also move to strike Plaintiffs’ claims for punitive damages because they claim Plaintiffs have not sufficiently alleged malice, oppression or fraud.   

MEET AND CONFER   

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc., § 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., §§ 430.41(a)(3), 435.5(a)(3).)  Defendants submit the Declaration of Aria Guilani which fails to show the parties met and conferred in person or by telephone.  Rather, counsel attests she attempted to meet and confer “via letter correspondence.”  (Guilani Decl. ¶ 3.)  She then states “the parties were unable to resolve the issues, forcing [her] to file the demurrer and the motion to strike.”  (Id.)  While these meet and confer efforts are insufficient to satisfy the requirements of § 430.41, the Court cannot overrule a demurrer based on an insufficient meet and confer.  (Code Civ. Proc., § 430.41(a)(4).)   

REQUEST FOR JUDICIAL NOTICE 

Defendants seek judicial notice of (1) Building Permit Application dated August 9, 1929 for the Erection of Buildings; (2) Building Permit Application dated April 15, 1931 for the Erection of Buildings; and (3) Building & Safety Permit Applications dated September 29, 2008 (to modify existing garage wall to accommodate pool equipment, and convert existing garage to pool equipment room and 1-car garage) and December 11, 2008 (to drywall existing garage interior).  The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(h), and 453.   

Cal. Evid. Code § 452(c) permits the Court to take judicial notice of a record submitted to a City as an official record.  (See Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 416; accord Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved of on other grounds by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919.)  Cal. Evid. Code § 452(h) also permits the court to take judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.  Finally, Cal. Evid. Code §453 requires the Court to take judicial notice of matters specified in §452, if sufficient notice is provided to the opposing party and if the requesting party provides the trial court with sufficient information to enable it to take judicial notice 

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Defendants argue that Plaintiffs’ nuisance and trespass claims are time barred.  The Court agrees.   

The statute of limitations for nuisance and trespass are both three years. (Code Civ. Proc., § 338(b); Field–Escandon v. DeMann (1988) 204 Cal.App.3d 228, 233 234.)  When the statute of limitations begins to run depends on whether the nuisance or trespass is permanent or continuing. (See Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 592.)  The principles governing the permanent or continuing nature of a trespass or nuisance are the same, such that case law discusses the two without distinction. (See, e.g., Mangini v. Aerojet–General Corp. (1996) 12 Cal.4th 1087, 1093-1094; Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 605.)  

Continuing trespasses or nuisances are essentially a series of successive injuries, and the statute of limitations begins anew with each injury. (Starrh & Starrh Cotton Growers, 153 Cal.App.4th at 592.)  Conversely, a permanent trespass or nuisance is an intrusion on property under circumstances that indicate an intention that the trespass or nuisance shall be permanent. (Id.)  In such cases, the law considers the trespass or nuisance completed at the time of entry so that the “cause of action accrues and the statute of limitations begins to run at the time of entry.” (Kafka v. Bozio (1923) 191 Cal. 746, 751.)  It does not run anew every time ownership of a property changes hands. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216-1217.)  Once the statute of limitations has run, the “owner and all subsequent owners” are barred from asserting a claim premised on a permanent trespass or nuisance. (Id. at 1216.)  

“The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff’s land.  (Rankin v. DeBare (1928) 205 Cal. 639 ,640-641).  Here, the Alleged Encroachments are a permanent nuisance or trespass as they are permanent structures on the Tuchman Property.  (Tracy v. Ferrera, 144 Cal.App.2d at 828 (encroachments resulting from structure erected upon one’s land is a permanent nuisance or trespass).) This is not the situation with a smaller structure, such as a fence, where the encroachment alleged can be abated for a reasonable amount. (See, e.g., Madani v. Rabinowitz, 45 Cal.App.5th at 605.)  

The Complaint concedes that the Alleged Encroachments are buildings that have existed on the Tuchman Property since at least 2008. (Compl., ¶ 12.)  Thus, at best, the statute of limitations for the alleged trespass or nuisance expired in 2011.  

Plaintiff’s reliance on Madani v. Rabinowitz is unavailing.  There, when the defendant moved onto his property, a fence made of chain link and grape stake ran alongside the driveway. (Id. at 606.)  In 2015, defendant replaced the original fence with a wooden one in the same location.  (Id.) Plaintiff filed suit in 2016 seeking to have the fence removed, to which defendant argued that the fence was a permanent rather than a continuing trespass. (Id.)  After the trial court ruled that the fence was a continuing trespass, the court of appeal affirmed. (Id. at pp. 609-610.)  In so ruling, the court of appeal noted that Defendant could remove the existing fence for a comparatively modest cost ($5,000 to $6,000), which costs pale in comparison to the property value.  (Id.)  

Here, the Alleged Encroachments are buildings on the Tuchman Property, which means that they are permanent structures that cannot be discontinued at any time. (Rankin, 205 Cal. at 640-641.) This is not the situation with a temporary structure, such as a fence or boundary wall, where the encroachment alleged can be abated for a reasonable or nominal amount. (See, e.g., Madani, 45 Cal.App.5th at 605.)  To abate these Alleged Encroachments would require completely reconstructing an entire garage and porte-cochere. This is not the type of work contemplated in Madani, nor are the Alleged Encroachments the equivalent to a boundary fence or wall. (Id. at 609-610.)  

Plaintiffs invoke the doubtful cases doctrine.  Under that doctrine, where a court is uncertain as to the nature of the trespass or nuisance, a plaintiff is entitled to “elect” whether to treat a particular nuisance as permanent or continuing.  (Mangini, 230 Cal.App.3d at p. 1145.) However, “a plaintiff cannot simply allege that a nuisance is continuing in order to avoid the bar of the statute of limitations, but must present evidence that under the circumstances the nuisance may properly be considered continuing rather than permanent. [Citation.] It is only where the evidence would reasonably support either classification that the plaintiff may choose which course to pursue.”  (Beck, 44 Cal.App.4th at 1216-1217.)  

As noted above, courts have characterized structures and buildings as permanent in nature.  (Rankin, 205 Cal. at 641 (building encroaching onto a neighboring property “to the extent of an inch or two” was permanent in character); Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 828 (“walls, foundations, pipes and vents” erected on the plaintiffs’ property were permanent in nature); Field–Escandon v. DeMann (1988) 204 Cal.App.3d 228, 233-234 (sewer pipe running below plaintiff's property was a permanent trespass when evidence showed it was intended to be a “permanent structure for sewage disposal”).)  There is no uncertainty as to whether the Alleged Encroachments are permanent or temporary.  Thus, Plaintiffs cannot avail themselves of the doubtful cases doctrine to avoid the limitations bar. (Beck, 44 Cal.App.4th at 1216-1217.)  

Plaintiffs cannot cure a statute of limitations bar.  Nothing can change the fact that the Alleged Encroachments are permanent structures existing on the Tuchman Property, or that California courts have treated buildings and similar structures as permanent structures.  No amount of re-pleading can change the date upon which these two permanent structures came into existence, and therefore, when the limitations period began to run.   

Although Plaintiffs assert that they can provide evidence of the costs of moving the Alleged Encroachments and the value of the Tuchman Property, these facts would be necessary only if it were not true that a structure (such as the Alleged Encroachments) is not per se considered a permanent trespass.  While such facts can be added to an amended complaint, they will not change the legal effect of the pleading.  

As such, the Court sustains the demurrer without leave to amend.  (Jackson v. Doe (2011) 192 Cal.App.4th 742, 752-753 (court properly sustained demurrer without leave to amend where claims were barred by statute of limitations).)  Moreover, the Court denies the motion to strike as moot because Plaintiffs’ punitive damages allegations and claims are in relation to the trespass and nuisance claims which the Court has dismissed.  Plaintiffs’ only remaining claim is for quiet title for which Plaintiffs are not seeking punitive damages.  (Compl. ¶¶ 37-42.) 

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Defendants’ demurrer to the Complaint, without leave to amend, and DENIES the motion to strike as moot. 

IT IS SO ORDERED. 

 

DATED: January 8, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court