Judge Elaine W. Mandel, Case 20SMCV01281 2022-10-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20SMCV01281, Date: 2022-10-06 Tentative Ruling

Case Number: 20SMCV01281 Hearing Date: October 6, 2022 Dept: P

Tentative Ruling
Radfar v. Aaronson, et al., Case No. 20SMCV01281
Hearing Date October 6, 2022
Defendants’ Motion for Summary Judgment
Plaintiff’s Motion for Summary Judgment

In this neighbor boundary dispute plaintiff’s FAC alleges: (1) trespass; (2) quiet title; (3) declaratory relief; and (4) conversion due to a fence, patio and landscaping that allegedly encroached on her property. The parties file cross motions for summary judgment on the trespass cause of action. The parties agree defendants’ sale of their home moots all non-trespass causes of action.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” Code Civ. Proc., § 437c, subd. (f)(1). “Code of Civil Procedure section 437c, subdivision (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. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519. A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” Code Civ. Proc, § 437c, subd. (p)(2). A defendant can also prove that summary judgment is proper by establishing a complete defense to a cause of action. Genisman v. Carley (2018) 29 Cal.App.5th 45. “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 the cause of action or a defense thereto.” Ibid. “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.

A plaintiff moving for summary judgment “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the case of action.” Code Civ. Proc., § 437c, subd. (p)(1). “Once the plaintiff . . . has met that burden, the burden shift to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Ibid.

The motions raise similar issues, so the court addresses them jointly.

Defendants request the Court to take judicial notice of a transcript of proceedings of August 17, 2016, in LASC Case No. SS026275 Aaronson v. Heshmati, Ex. 6 to Aaronson Declaration. The Court grants the unopposed request. Plaintiff requests the Court to take judicial notice of deeds (Ex. 1-3). The Court grants the unopposed request. Defendants’ objections to portions of the Radfar declaration are overruled.

Defendants argue: (1) statute of limitations; (2) plaintiff cannot establish that defendants built the fence; and (3) plaintiff cannot establish damages. An opposition was filed by third party Ray Willfor, who lives at the Radfar home. As a non-party, he has no standing.

Defendants argue the trespass claim is barred by the three-year statute of limitations. Code Civ. Proc. § 338. The critical determination in evaluating the statute of limitations for a trespass claim is whether the trespass is a continuing or permanent trespass. Beck Dev. Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App.4th 1160, 1219-1222. “A permanent trespass is an intrusion on property under circumstances that indicate an intention that the trespass shall be permanent.” Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 592. A permanent trespass claim’s statute of limitations begins to run at the time of the entry. Ibid. “[A] continuing trespass is an intrusion under circumstances that indicate the trespass may be discontinued or abated.” Ibid. “Continuing trespasses are essentially a series of successive injuries, and the statute of limitations begins anew with each injury.” Ibid. When determining a trespass is permanent or continuing, a court may examine whether: (1) the offense activity is continuing; (2) the impact of the condition will vary over time; or (3) the nuisance can be abated at any time, in a reasonable manner and for reasonable cost, and is feasible by comparison of the benefits and detriments to be gained by abatement. Id. at p. 594. The crucial determination is whether the trespass can be discontinued or abated. Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1097.

The distinction between permanent and continuing nuisances or trespasses should not be applied rigidly; if there is doubt as to which category applies, plaintiff may choose to treat it as either permanent or continuing, but the election must be reasonable and supported by evidence. Beck, supra, 44 Cal.App.4th at p. 1217.

Defendants argue the alleged trespass, the fence between the properties, constitutes a permanent trespass. Defendants allege they did not build the fence (UMF ¶¶ 3, 8, 10, 13), but it existed for over 14 years, from at least May 2007, when defendants purchased their home. Aaronson Decl. ¶¶ 4-9, Ex. 5 at 12-15, 31-32, Ex. 6 at 17. Defendants argue the trespass began to accrue no later than 2007 and had long since expired when plaintiff filed her claim.

Plaintiff argues the fence is a continuing trespass, relying on Madani v. Rabinowitz (2020) 45 Cal.App.5th 602. In Madani, the Court of Appeal held a boundary fence that encroached on plaintiff’s land was a continuing encroachment for statute of limitations purposes. Madani, supra, at pp. 609-610.

The fence is a solid structure; generally, a solid structure that encroaches on another party’s land constitutes a permanent nuisance or trespass. E.g., Southern California Edison Co. v. Severns (2019) 39 Cal.App.5th 815, 829. A solid structure can constitute a permanent nuisance, even if it produces continuing damage if it cannot be reasonably removed. Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal. App.4th 1478, 1490 [“raised rail bed and culvert pipe” in place over 100 years was a permanent nuisance but “locked gate” could be removed and therefore was continuous].

Plaintiff presents evidence the fence could be relocated or removed; it was, in fact, moved and replaced for approximately $10,000 after defendants sold their home. Radfar Decl. ¶¶ 13, 30, 34; Heshmati Decl. ¶ 7. Replacement occurred quickly after defendants sold their home, for a relatively modest sum, evidence the alleged trespass was easily abatable. Madani upheld the trial court’s determination that $5,000-$6,000 to move a fence was not sufficient to regard the fence as a permanent installation. Madani at 609. The court finds a triable issue of material fact as to whether the fence is a continuing trespass for statute of limitations purposes.

The elements of a common law trespass are (1) plaintiff’s ownership or control of the property; (2) defendant’s intentional, reckless, or negligent entry on the property; (3) lack of permission; (4) actual harm; and (5) substantial factor. Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 (2010) 113 Cal.Rptr.3d 88, 93, reversed on other grounds by 55 Cal.4th 1083 (2012). “[I]n order to state a cause of action for trespass a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights.” McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174.

Defendants argue plaintiff cannot establish they built the fence and offer evidence the fence existed when they purchased their home in May 2007. Aaronson Decl. ¶¶ 4-9, Ex. 5 at 12-15, 31-32, Ex. 6 at 17. Plaintiff did not know who built the fence. Id. Ex. 1 at 49. There is evidence plaintiff informed defendants the fence was not on the correct boundary line, yet defendants did not allow plaintiff to move the fence and contacted police to stop relocation of the fence. Radfar Decl. ¶¶ 6-12; Heshmati Decl. ¶¶ 3-5, Ex. 1. Even if defendants did not build the fence, their conduct is an effective ratification of the ongoing trespass and is sufficient to create a triable issue of fact as to whether plaintiff satisfies the second element of a trespass claim.

Defendants argue plaintiff cannot establish damages. Defendants argue plaintiff has not produced evidence of emotional damages (Aaronson Decl. Ex. 3-4 at Nos. 6.1-6.7); she has possession of the disputed areas (id. ¶ 10); and has no evidence of lost rent due to the trespass (Ex. 6 at 34).

Plaintiff’s current possession does not negate any damages plaintiff might have suffered before she regained possession. Plaintiff and occupants of her home were unable to use the full property because of the encroachment. Defendants’ reliance on plaintiff’s interrogatory response is sufficient to meet the initial burden, but plaintiff proffers evidence to show a triable issue of fact as to damages.

Plaintiff offers evidence to meet her initial burden on most of the elements of the trespass claim (see Ralphs, supra, 113 Cal.Rptr.3d at p. 93). Plaintiff owned the home during the relevant time period; defendants effectively ratified the existence/location of the fence; defendants refused to allow plaintiff to move the fence and maintained it without permission.

Regarding damages, plaintiff seeks $130,417.29. Plaintiff contends defendants’ use of the allegedly encroached area: (1) inflated defendants’ property value, such that defendants sold their home for an extra $103,214.65 (UMF ¶¶ 16-17; Radfar Decl. ¶¶ 14-15); and (2) deprived plaintiff of use of her entire property in the amount of $17,202.44 in rental value for five years. UMF ¶ 18; Radfar Decl. ¶ 16.

The alleged inflated sales price of defendants’ home caused no damage to plaintiff. How much a nonparty purchaser paid defendants cannot establish plaintiff’s damages. Plaintiff proffers no proof of loss of rental income; her calculation of loss of rent is speculative and unsupported by evidence. Plaintiff has not established economic damages sufficient to shift the burden of proof to defendants.

Both motions are DENIED.