Judge: Elaine Lu, Case: 22STCV25294, Date: 2023-02-24 Tentative Ruling

Case Number: 22STCV25294    Hearing Date: February 24, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

             On August 4, 2022, Plaintiff Passmore Properties, LLC (“Plaintiff”) filed the instant quite title to easement action against Defendants Michael W. Fong and Benjamin Cioppa-Fong, as Trustees of the Cioppa-Fong Living Trust dated June 18, 2022 (jointly “the Fongs”), Yi Chi Shih, and Sue Jane Liu Shin (jointly “the Shihs”) (collectively “Defendants”).  The complaint asserts six causes of action for (1) Quiet Title to Easement, (2) Breach of Easement, (3) Private Nuisance, (4) Intentional Inference with Easement, (5) Injunctive Relief and Damages, and (6) Declaratory relief.

            On October 6, 2022, Defendants filed the instant demurrer to the complaint.  On February 17, 2023, Plaintiff filed an opposition.  On February 16, 2023, Defendants filed a reply.

Allegations of the Operative Complaint

            The complaint alleges that:

            Plaintiff is the owner of an undeveloped lot at 3059 Passmore Drive, Los Angeles, CA 90068 (“Passmore Property”).  (Complaint ¶ 9, Exh. 1.)  The Fongs are the current owners of 3036 Beckman Road, Los Angeles, CA 90068 and 3042 Munro Circle, Los Angeles, CA 90068 (jointly the “Fong Properties”).  (Id. ¶ 10, Exh. 2.)  The Shihs are the current owners of 3040 Munro Circle, Los Angeles, CA 90068 (“Shih Property”).  (Id. ¶ 11, Exh. 3.) 

            “As set forth by a properly recorded Grant Deed dated May 6, 1948, there exists a 20-foot-wide easement for road and public utility purposes going across the Shih Property and Fong Properties for access to the Passmore Property (hereinafter referred to as the ‘Easement’). The Easement is recorded on the Passmore Property, Shih Property, and Fong Properties’ chain of title. As successor to the original grantee of the Easement, Plaintiff has a current interest in the Easement and a right to its use.”  (Id. ¶ 12, Exh. 4.)  “As set forth in a properly recorded Grant Deed dated May 6, 1948, the Passmore Property, Shih Property, and Fong Properties were under common ownership and are now all successor owenrs [sic].”  (Id. ¶ 15, Exh. 4.) 

            “Despite the existence of the Easement, as well as Defendants’ knowledge of said easement, Defendants have unreasonably and intentionally encroached on the easement and blocked the easement by placing an automated gate within the Easement. This encroachment infringes on Plaintiffs’ use and enjoyment of the Easement and denies it access to its property. Additionally, despite Defendants’ knowledge of said easement, Defendants have installed an automated gate box within the Easement, which blocks certain ingress and egress to the Passmore Property since it closes and locks the gate. Finally, at times, Defendants have completely blocked ingress and egress through the Easement, which infringes on the use and enjoyment of the Easement by Plaintiff.”  (Id. ¶ 13.)  Specifically, “within the last 2 years, and continuing to the present time, Defendants, and each of them, without Plaintiff’s consent, have maintained a private nuisance by intentionally obstructing, fencing, locking, blocking, encroaching, and installing improvements within the Easement, all of which impedes established ingress and egress, access, road, utility, and related purposes in favor of the Plaintiff for the Passmore Property.”  (Id. ¶ 28.) 

            “The easement is essential to Plaintiff’s beneficial use and enjoyment of the Passmore Property.”  (Id. ¶ 14.) 

Legal Standard

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. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)

Defendants have satisfied the meet and confer requirement.  (Cesar Decl. ¶¶ 4-6, Exh. A.)

Discussion

            Defendants contend that the entire complaint fails because (1) the entire complaint is time barred, (2) Plaintiff failed to properly verify the complaint, (3) Plaintiff failed to trace title back to a valid grantor, (4) the complaint is uncertain, (5) the alleged easement is in gross and not appurtenant, (6) the easement is not for ingress and egress, and (7) Plaintiff fails to allege all the necessary elements for an easement by implication or by necessity.

Statute of Limitations

            Defendants contend that the entire complaint is barred by the five-year statute of limitations imposed under Code of Civil Procedure sections 318 and 319.

            “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.  In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”  (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, [internal citations omitted].)

            “There is no statute of limitations specific to quiet title actions. [Citations.] Instead, courts refer to the underlying theory of relief (for example, adverse possession, breach of contract or fraud) to determine which limitations period applies.”  (Eleanor Licensing LLC v. Classic Recreations LLC (2018) 21 Cal.App.5th 599, 613, Fn. 12.)  Under Code of Civil Procedure section 318, “[n]o 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.”  (Id.)  Similarly, under Code of Civil Procedure section 319, “[n]o cause of action … arising out of the title to real property, … , can be effectual, unless it appear that the person prosecuting the action, … was seized or possessed of the premises in question within five years before the commencement of the act in respect to which such action is prosecuted or defense made.”  (Id.) 

            Here, the instant action is not clearly on its face barred by the statute of limitations under Code of Civil Procedure sections 318 or 319.  As alleged in the Complaint, “within the last 2 years, and continuing to the present time, Defendants, and each of them, without Plaintiff’s consent, have maintained a private nuisance by intentionally obstructing, fencing, locking, blocking, encroaching, and installing improvements within the Easement, all of which impedes established ingress and egress, access, road, utility, and related purposes in favor of the Plaintiff for the Passmore Property.”  (Complaint ¶ 28.)  Thus, the wrongful conduct of depriving Plaintiff of use of the Easement would not be clearly barred by a five-year statute of limitations. 

            Moreover, the complaint alleges that the Easement is an easement of necessity.  (Complaint ¶ 18.)  “An easement by necessity cannot be extinguished as long as the necessity exists.”  (Hinrichs v. Melton (2017) 11 Cal.App.5th 516, 530.)  Thus, “[t]he five-year statute of limitations on quiet title actions found in Code of Civil Procedure section 318 does not apply to an easement by necessity.”  (Ibid.) 
            Accordingly, Plaintiff’s claims are not clearly barred by the statute of limitations, and Defendants’ demurrer based on the statute of limitations is overruled.

Verification

            A complaint for quiet title must be verified.  (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866; CCP § 761.020.)  “In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same.”  (CCP § 446(a).)

            Here, the complaint is properly verified under oath by Ofer Dayan as the managing member of Plaintiff.  (CCP §§ 446(a), 761.020.)  Defendants contend that this verification is somehow insufficient because “Plaintiff’s entire claim is premised on the scope and validity of a 1948 grant deed. Plaintiff and its managing member, Ofer Dayan (who verified the complaint), clearly do not have personal knowledge about the 1948 grant deed. Plaintiff does not allege or demonstrate personal knowledge. The complaint also does not contain any allegations of information upon which Ofer Dayan could even form a belief about the 1948 grant deed or Plaintiff’s later entitlement to the alleged easement.”  (Motion at p.12:12-17.)  This contention is without merit.

            The Complaint does not allege that Plaintiff was personally involved with the 1948 Grant deed.  Rather, the complaint alleges that the 1948 grant deed contains the easement which is clear on the face of the attached document.  (Complaint ¶ 12, Exh. 4.)  Thus, Plaintiff is alleging and verifying that it aware of the existence of the public record containing the Easement.  The statute does not require intimate, personal knowledge of every document attached to a complaint for a verification to be valid.  In fact, for pleadings, verification can be on information and belief – which in the instant case would clearly be the public record document supporting the claim.  (CCP § 446(a).)

            Accordingly, Defendants’ demurrer to the complaint based on the sufficiency of verification is overruled.

Trace of Title Back to Grantor

            Defendants contend that the entire complaint fails because Plaintiff failed to trace its title back to a valid grantor.  In support of this contention, Defendants rely on Tobin v. Stevens (1988) 204 Cal.App.3d 945 which held that “‘[a] plaintiff who relies on paper title alone (i.e., who is not in possession) must, when the defendant also asserts paper title, trace title back to one of four sources: the government, a grantor in possession, a grantor common to plaintiff and defendant, or a grantor who had obtained a judgment quieting title.’ [Citation.]”  (Id. at p.952, [italics in original].) 

            Tobin involved a grant of summary judgment -- not a demurrer -- and addressed evidentiary standards.  Thus, the reasoning of Tobin is inapplicable.  This is because “a plaintiff who relies solely on paper title must, in order to establish a prima facie case, trace his title back to the government, a common grantor or a grantor in possession of the property was applicable in both of those cases.”  (Id. at p.952.)  A Plaintiff does not need to establish a prima facie case in the pleadings.  Rather, a complaint need only state a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)

            Accordingly, Defendants’ demurrer to complaint on the ground that Plaintiff failed to trace title back to valid grantor is overruled.

Uncertainty

            A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 

            Here, Defendants contend that the complaint is uncertain because the scanned version of the 1948 Grant Deed attached to the complaint is largely illegible.  This is not a ground for uncertainty.  Defendants can easily determine what the claims are against them and the basis therefor.  The fact that an attachment to the complaint is hard to read does not render the allegations so incomprehensible that Defendants cannot reasonably respond to the complaint.  In fact, Defendants have raised substantive arguments against the claims in the complaint and can clearly determine what the claims are and can reasonably respond to such claims.

            Accordingly, Defendants’ demurrer to the complaint based on uncertainty is overruled.

The Alleged Easement is in Appurtenant

            Defendants contend that Plaintiff’s allegations fail to establish that the alleged easement was appurtenant, and thus, the alleged easement is an easement in gross that does not run with the land.

            “Easements are classified as appurtenant or in gross. [Citations.] The basic effect of the distinction between easements appurtenant and easements in gross arises when the owner of an easement conveys his property. The conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even though the easements are not specifically mentioned in the deed. [Citations.] An easement in gross, unlike an appurtenant easement, is merely a personal right to use the land of another.”  (Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568.) “Generally, the determination of whether an easement is appurtenant or in gross is made by reference to the instrument creating it.”  (Ibid.)

            Here, the easement referenced in the four deeds attached to the complaint, (Complaint Exhs. 1-4), is “deficient because it fails to specify whether the easement is in gross or appurtenant and fails to identify a dominant tenement.”  (Moylan, supra, 181 Cal.App.3d at p.568.)  Moreover, in the instant action the character of the easement as appurtenant or in gross cannot be determined by the nature of the rights granted because easements for right of way (ingress and egress) may be either appurtenant or in gross.  “In interpreting incomplete or ambiguous deeds, courts may consider extrinsic evidence of the circumstances under which the deed was made.”  (Moylan, supra, 181 Cal.App.3d at p.569.)  “In considering extrinsic evidence of the nature of an easement, courts may consider the type of rights conveyed and the relationship between the easement and other real property owned by the recipient of the easement.”  (Ibid.)  For example, “where a roadway easement provides access to a particular parcel of real property a court may infer the easement is appurtenant to that parcel.”  (Ibid.) 

            Here, the easement is for a road that provides access to the Passmore Property.  (See Complaint ¶ 16.)  Thus, based on the allegations, the Court may infer that the easement would be appurtenant.  Moreover, “an easement will not be interpreted as being in gross if it may fairly be interpreted as being appurtenant.”  (Moylan, supra, 181 Cal.App.3d at p.569.)  As the complaint does not provide any reason for the alleged easement to be considered in gross, the Court must as a matter law presume that the easement is appurtenant.  Moreover, liberally construed, the Complaint does allege that the easement passed with the land to Plaintiff.  (See e.g., Complaint ¶ 15, [“As successors to the original grantees of the easement, Plaintiff has a current interest in the easement and a right to its use.”].)

            Accordingly, Defendants’ demurrer to the complaint on the ground that the easement is not alleged to be appurtenant is overruled.

The Alleged Easement is for Ingress and Egress

            Defendants contend that the alleged easement is not for ingress and egress.  The Court disagrees. 

            The complaint repeatedly alleged alleges that the easement is for ingress and egress.  (Complaint ¶¶ 13, 22, 28, 36, 37, 40, 42, 51, 56, 57.)  The specific terms of the alleged easement do not contradict this.  The legal description of the easement states that it is “AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES, TO BE USED IN COMMON WITH OTHERS, OVER THOSE PORTIONS OF BLOCK ‘E’ OF TRACT 8361 …”  (Complaint ¶ 12, Exh. 4.)  Defendants’ contention that the easement must expressly use the terms “ingress,” “egress,” or “right of way”: is unavailing.  The easement is for a road to the Passmore property for public utility and to be used in common with others.  Using the road would require ingress and egress to the property on which the road is located – i.e., the Fong Properties and the Shih Property.  Thus, the easement for a road is clearly an easement for ingress and egress.

            Accordingly, Defendants’ demurrer on the ground that the easement is not an easement for ingress and egress is overruled.

Elements for an Easement by Necessity

            Defendants contend that the entire action somehow fails because Plaintiff fails to allege all necessary elements for an easement by implication or an easement by necessity.

            As a preliminary matter, this contention is without merit because Plaintiff has alleged the existence of a written and recorded easement in its favor, and thus, Plaintiff is not required to allege an easement by implication or an easement by necessity.  (Complaint Edhs. 1-4.)  Regardless, the complaint does allege the elements for an easement by necessity.

            “An easement by way of necessity arises ... when it is established that (1) there is a strict necessity for the right-of-way, as when the claimant's property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity.” (Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.)

            Here, the Passmore Property, Shih Property, and Fong Properties were under common ownership per the 1948 Grant Deed which created the easement.  (Complaint ¶ 15, Exh. 4.)  As the complaint notes, without the easement “it impossible for Plaintiff to access … [the] Passmore Property, not only by foot, but also with vehicles, such as trucks, agricultural equipment, fire safety vehicles, and utility vehicles.”  (Complaint ¶ 42.)  Thus, the complaint alleges that there it is otherwise impossible to enter the property and that the properties were all owned by the same ownership when the necessity to enter had arisen.

            Defendants’ contention that this allegation is false as Plaintiff may be able to enter the property through the yellow strip of property denoted in the map is immaterial.  (See Complaint ¶ 16.)  There is no allegation that Plaintiff owns property that would purportedly give access to the Passmore Property. 

            Accordingly, Defendants’ demurrer to the complaint is OVERRULED.

CONCLUSIONS AND ORDER

Based on the forgoing, Defendants Michael W. Fong and Benjamin Cioppa-Fong, as Trustees of the Cioppa-Fong Living Trust dated June 18, 2022, Yi Chi Shih, and Sue Jane Liu Shin’s demurrer to the complaint is OVERRULED.

Defendants are to file an answer within twenty (20) days of notice of this order.

Moving Parties are to give notice and file proof of service of such.

DATED: February 24, 2023                                                   ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court