Judge: James L. Crandall, Case: 20-1166907, Date: 2022-12-15 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Motion for Summary Adjudication as to the Second Amended Cross-Complaint (SACC) is GRANTED as to the first cause of action and GRANTED as to the third cause of action.

Movant’s request for judicial notice, filed on 7/7/22, is GRANTED as to exhibits 1-17. Movant’s supplemental request for judicial notice, filed on 12/8/22, is granted as to exhibit 20. Cross-Complainants’ request for judicial notice, filed on 12/1/22, is granted as to Exhibit A.

Legal Standard

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.11 That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

Code of Civil Procedure section 437c(p)(2) states,

“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

Here, Defendant moves for summary adjudication of the first and third (erroneously identified as fourth) causes of action. 

First Cause of Action – Quiet Title to Implied Easement

In the first cause of action, Cross-Complainants “seek judgment quieting title to implied easements appurtenant to the Subject Residences, over and through the Marina, to the extent the decks and gangways existed at the time of the original construction of the Subject Residences.” (SACC, ¶ 25.) Cross-Complainants further allege, “When each of the Subject Residences was first conveyed out of common ownership, they were improved with decks and gangways in the same configuration and encompassing the same area that they currently exist and encompass. The benefits associated with the decks and gangways—which were visible and apparent at the time each of the Subject Residences was first conveyed out of common ownership by Cross-Defendant’s predecessor—still accrue to Cross-Complainants tod ay.” (Id. at ¶ 27.)

Civil Code section 1104 provides as follows:

“WHAT EASEMENTS PASS WITH PROPERTY. A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”

Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141–142 (footnotes omitted), holds:

“An easement will be implied when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement. (5 Miller & Starr, Cal. Real Estate (2d ed. 1989) §§ 15:21-15:23, pp. 455-459.)  ‘The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.’ (Fristoe v. Drapeau (1950) 35 Cal.2d 5, 8 [215 P.2d 729].) An easement by implication will not be found absent clear evidence that it was intended by the parties. (Walters v. Marler (1978) 83 Cal.App.3d 1, 21 [147 Cal.Rptr. 655].)”

Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049, states:

“An easement by implication requires the following conditions: ‘1. There must be a common ownership of a parcel and a transfer or conveyance of one parcel, or a portion of a parcel, to another. [¶] 2. Prior to the division of title, there must have been an existing obvious, and apparently permanent, use of the quasi-easement by the common owner. [¶] 3. The easement must be reasonably necessary to the use and benefit of the quasi-dominant tenement.” (Miller & Starr, Cal.Real Estate (2d ed. 1989) § 15:20, p. 454; Mikels v. Rager (1991) 232 Cal.App.3d 334, 357, 284 Cal.Rptr. 87.) [¶] No evidence was presented that prior to the division of title in 1873 there was an existing and obvious use of any easement over respondent's property. Appellants' claim of an easement by implication fails because, as appellants concede, they ‘can not show [obvious] use of the easement.’”

To prevail on their first cause of action under the foregoing legal authorities, Cross-Complainants must show that (1) there was common ownership of the marina property (Lot C) and the residential properties now owned by Cross-Complainants (Lots 1-5 and 7), (2) there was an existing obvious and permanent use of the quasi-easement by the common owner prior to the division of title, and (3) the easement was reasonably necessary to the use and benefit of Cross-Complainants.

Here, the first element of common ownership is established because it is undisputed that Huntington Harbour Corporation held the subject property in common ownership until November 1962, when it transferred Lot C (the marina property now subject to Movant’s easement) to the City of Huntington Beach. (Undisputed Facts 9-12.) Huntington Harbour Corporation then transferred title to Cross-Complainants’ properties (Lots 1-5 and 7) to Huntington Harbour Engineering & Construction Co. in May 1963. (Undisputed Fact 13.) (The Court notes that while Cross-Complainants “object” to fact 13 on the basis of an incorrect citation to evidence, they do not “dispute” fact 13.)

As to the second element, the issue is whether there was an existing obvious and permanent use of decks and gangways on the properties that now belong to Cross-Complainants prior to the division of ownership in November 1962. Movant submits evidence that construction permits for the residences on Lots 1-5 and 7 were issued by the City of Huntington Beach in October 1963. (Undisputed Facts 14-19.) Movant asserts that Lots 2, 3, and 4 were conveyed to their first owners after decks were constructed, althoughMovant’s separate statement doesn’t state when building permits were issued for the decks of Lots 2, 3, and 4. (See Undisputed Facts 26-29.) However, Movant’s evidence reflects that building permits for decks were issued as to Lot 1 on 9/2/64, Lot 2 on 11/30/64, Lot 3 on 11/30/64, Lot 4 on 11/4/64, Lot 5 on an unknown date with a notation stating “permit expired,” and as to Lot 7 on 12/17/64.

“All material facts must be set forth in the separate statement.” (Massingill v. Department of Food & Agriculture (2002) 102 Cal.App.4th 498, 511.) However, San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316, states, “[w]hether to consider evidence not referenced in the moving party's separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion.” Here, Movant has failed to set forth facts in its separate statement as to when building permits for decks were issued as to Lots 2, 3, and 4. However, Movant sufficiently stated this contention in its separate statement to allow Cross-Complainants to respond. Therefore, the Court will rely on the evidence including the building permits submitted by Movant as Exhibits 3-8.

Based on the building permits, Movant has met its initial burden of showing that the decks and gangways were not an existing and obvious use prior to the division of title. Based on the issuance of building permits for the residences in October 1963, and issuance of permits for “decks” or “wooden decks” for all but one of the lots dated no earlier than 1964, Movant has shown the docks and gangways were not in place at the time the property passed out of common ownership in November 1962.

In opposition, Cross-Complainants contend the building permits reflect inspection of “decks” on their lots as early as October 1963. Movant responds that these notations reflect inspection of “under pin or steel deck,” which Movant asserts is a component of the homes’ support structure or foundation, not the wooden decks over the water. However, even assuming the reference to inspection of decks in October 1963 referred to the disputed decks rather than elements of the homes’ foundation, this evidence is not dispositive because it does not show the decks were in place before November 1962. 

Cross-Complainants also contend there is a dispute of fact based on the existence of City of Huntington Beach Ordinance No. 1114, adopted in January 1965, which states in part, “WHEREAS, the City Council, at the request of the Huntington Harbour Corporation, did grant said corporation the right to build decks and windscreens over public water-ways within the harbor.” Section 8176 of the Ordinance states, “This ordinance shall apply only to lots designated as ‘Waterfront lots’ and patio decks projecting beyond the bulkhead line shall be limited to wharfage areas assigned to said waterfront lots.”

Movant contends Ordinance No. 1114 doesn’t apply to Cross-Complainants’ lots because under the CC&Rs for Huntington Harbour recorded on 1/22/63, Lots 1-5 and 7 didn’t include wharfage areas.

The Court declines to decide at this stage whether Ordinance No. 1114 applies to Lots 1-5 and 7 because, even assuming Ordinance 1114 applied to Cross-Complainants’ properties, it was adopted in January 1965, after division of the common ownership in November 1962. Therefore, under the legal standard set out above, such evidence is not relevant to the determination of an implied easement because it does not demonstrate an existing obvious and permanent use prior to the division of common ownership. 

Therefore, Cross-Complainants have failed to meet their burden of demonstrating a triable issue of material fact as to the first cause of action, and the Court grants the motion as to this cause of action.

Third Cause of Action – Quiet Title by Adverse Possession

Movant also seeks summary adjudication as to Cross-Complainants’ third cause of action for quiet title by adverse possession, erroneously identified as the fourth cause of action in the motion.

Movant seeks summary adjudication as to this cause of action on the basis that, “[i]n California, property ‘dedicated to or owned by the state or any public entity’ cannot be adversely possessed. Civil Code § 1007.” (Motion, 16:1-2.) It is undisputed that Lot C, on which the alleged easement exists, was transferred to the City of Huntington Beach in November 1962. (Undisputed Facts 9-12.)

Cross-Complainants’ opposition states, “Cross-Complainants will agree to dismiss their Third Cause of Action for Quiet Title by Adverse Possession. . .” (Opposition, 5:7-8.)

Therefore, movant has shown that there is no triable issue of material fact as to the third cause of action for quiet title by adverse possession of property in the SACC. Cross-Complainants have conceded this cause of action. Therefore, the motion is granted as to the third cause of action.