Judge: Joel R Wohlfeil, Case: 37-2020-00045974-CU-BC-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 25, 2023

10/27/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2020-00045974-CU-BC-CTL SOUZA VS ARGLEBEN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/08/2023

The Motion (ROA # 155) of Defendant Leah M. Mackay ('Defendant' or 'Mackay'), as Successor Trustee of the Argleben Family Trust Dated March 5, 1992 ('Argleben Trust') and as Personal Representative of decedent Donald Argleben for an order for summary judgment or, in the alternative, summary adjudication to the claims contained within the Second Amended Complaint ('SAC') by Plaintiffs John Souza and Carolyn Souza's ('Plaintiffs'), is GRANTED IN PART and DENIED IN PART.

The Motion for summary judgment is DENIED.

The alternative Motion for summary adjudication of each cause of action is DENIED to causes of action 1 - 5, and is GRANTED to cause of action 6.

This ruling is based on the analysis set forth below.

The Request (ROA # 160) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's '3, 19, 2, 2, 1, 31' and the date only on which Exh. '4' was filed with the Court; otherwise, the Request is DENIED.

Plaintiffs' evidentiary objections (ROA # 164) are OVERRULED IN PART and SUSTAINED IN PART.

The objections are OVERRULED except as follows: nos. 2 and 7 are SUSTAINED.

The Request (ROA # 167) for judicial notice is GRANTED.

The evidentiary objections (ROA # 171) are OVERRULED.

PROCEDURAL ISSUE -- LENGTH OF MOVING MEMORANDUM 'In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.' California Rules of Court, Rule 3.1113(d).

'A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum.' Id. at (e).

'A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.' Id. at (g).

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2997953 CASE NUMBER: CASE TITLE:  SOUZA VS ARGLEBEN [IMAGED]  37-2020-00045974-CU-BC-CTL The Court, in its discretion, may refuse to consider a late filed paper. California Rules of Court, Rule 3.1300(d).

In this case, the memorandum exceeds the page limit by one page. However, this page includes a non-substantive conclusion and a signature line. The Court exercises its discretion to consider the short substantive argument appearing on page 21 of the moving memorandum.

1st COA: BREACH OF CONTRACT 3rd COA: UNJUST ENRICHMENT 4th COA: COMMON COUNT – ACCOUNT STATED The breach of contract cause of action alleges that Plaintiff John Souza, individually, and Decedent Don Argleben made three agreements that have been breached.

First, they agreed to split the cost of hiring MRC Consulting to provide engineering services for floodway mapping of the adjoining properties. Paragraph 28 alleges: 'Decedent paid some of the costs, and then [orally] agreed to give a lien on the Argleben Property until the Argleben Property was sold for the rest that Defendants owed.' Second, paragraph 30 alleges: 'Defendants connected to the Souza Property water meter and promised to pay the full water and meter charges each month.' Third, paragraphs 30 - 35 allege an agreement to pay for damaged equipment that Defendant borrowed from Plaintiff.

A cause of action for breach of an oral agreement must commence two years after accrual. Code Civ.

Proc. 339.

A contract cause of action does not accrue until the contract has been breached. Spear v. California State Auto. Assn. (1992) 2 Cal. 4th 1035, 1042.

The opinion in Fuller v. White (1948) 33 Cal. 2d 236, 238, 239, states: 'This action was commenced on March 25, 1946. Inasmuch as it is specified in the body of the note that the principal sum of $1,500 is to be paid 'at any time my [the maker's] financial condition permits,' it is essential, in order to establish the defense of the statute of limitations, that the evidence show that such financial ability antedated the applicable statutory period prior to the filing of the action. (Van Buskirk v. Kuhns (1913), 164 Cal. 472, 475.) In this case the period would be four years prior to the death of the maker (Code Civ. Proc., § 337, subd. 1) and, if the four-year period had not fully run, an additional year between the death of the maker and the filing of this action (Code Civ. Proc., § 353; 11A Cal.Jur. 836-837, § 595). Plaintiff produced no evidence that decedent was able to pay during his lifetime, and rests the case upon decedent's signed declaration on the back of the note that 'In the event of my death this promissory note is to be paid out of my estate with precedence over any other claims.' Defendant's contention that there was a burden on plaintiff to prove that decedent, during his lifetime, was 'financially able' to pay the note is without merit.' (emphasis added, endnote omitted) In this action, the date on which each oral agreement was breached remains a disputed fact.

Defendant's Separate Statement focuses on the date each agreement was initially entered into, but not the date of breach. It is disputed when the floodway mapping was underway and completed. Disputed facts support the contention that Plaintiff was responsible for the water meter charges such that Plaintiff has standing to assert that aspect of this claim.

Disputed facts exist regarding decedent Don Argleben's promise to pay the amounts owed to Plaintiff Calendar No.: Event ID:  TENTATIVE RULINGS

2997953 CASE NUMBER: CASE TITLE:  SOUZA VS ARGLEBEN [IMAGED]  37-2020-00045974-CU-BC-CTL when he had the money to do so. It is disputed whether Argleben, or his estate, achieved this ability to pay these debts two or more years prior to the date this action was commenced. Summary adjudication of these causes of action is denied for all of these reasons.

Defendant also argues any claim based on an oral agreement to convey a lien on property would be barred because an oral agreements for conveyance of an interest in real property is barred by the statute of frauds. However, the doctrine of estoppel to plead the statute of frauds may be applied where necessary to prevent either unconscionable injury or unjust enrichment. Tenzer v. Superscope, Inc.

(1985) 39 Cal. 3d 18, 27.

In this case, disputed material facts exist supporting estoppel to assert the statute of frauds defense. In addition, even if the lien claim was invalid, this cause of action also alleges one or more promises to pay money that are independent of the property lien.

2nd COA: PRIVATE NUISANCE Paragraph 38 within this cause of action alleges: 'The Souza Property drained westward over the Argleben Property when there were large rains or from overbank of the Santa Maria Creek, which runs along the South of both properties.' Paragraph 39 alleges that Defendants used fill material 'to raise the level of the Argleben Property and filled the southern side of the Argleben Property into the Santa Maria Creek without permits.' Paragraph 40 alleges: 'The actions taken by Defendants has obstructed, diverted, and blocked the historical surface water drainage from the Souza Property and has caused damage to the Souza Property, its equipment and business and has created an on-going nuisance and interfering with Plaintiffs' free use of the property, so as to interfere with the comfortable enjoyment of the property.' The commencement of the statute of limitations for a nuisance action varies, depending on whether the nuisance is characterized as permanent or continuing. Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal. App. 4th 732, 744.

A permanent nuisance is generally of a type where a single occurrence causes permanent injury, and damages are assessed once and for all. Id. If a nuisance is permanent, Plaintiff must bring one action for past, present and future damage within three years after the creation of the permanent nuisance. Id. But where the nuisance involves a use which may be discontinued at any time, it is characterized as a continuing nuisance, and persons harmed by it may bring successive actions for damages until the nuisance is abated. Id. The crucial test of a continuing nuisance is whether the offensive condition can be discontinued or abated at any time. Id. In case of doubt as to the permanency of the injury, Plaintiff may elect whether to treat a particular nuisance as permanent or continuing. Id. 'Abatable' means that the nuisance can be remedied at a reasonable cost by reasonable means.

Mangini v. Aerojet-General Corp. (1996) 12 Cal. 4th 1087, 1103.

The Court should be cautious not to enlarge the category of permanent nuisance beyond those structures or conditions that truly are permanent. Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal. App. 4th 583, 597 (subsurface trespass resulting from the migration of ponding water on adjacent property).

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2997953 CASE NUMBER: CASE TITLE:  SOUZA VS ARGLEBEN [IMAGED]  37-2020-00045974-CU-BC-CTL Where some means of abatement exist, classifying the trespass or nuisance as permanent will discourage remedial efforts. Id. Generally, whether a trespass is continuing or permanent is a question of fact properly submitted to the jury. Id. In Tracy v. Ferrera (1956) 144 Cal. App. 2d 827, 828, a nuisance was alleged as follows: '...

[R]espondents, upon their own land, maintained their premises without proper gutters or drainage, so as to deflect rain water from respondents' premises upon those of appellants, and also so maintained pipes and furnaces as to cause the emission of noxious odors and fumes upon appellants' property.' The opinion concluded as follows: 'The statute of limitations is not, on the face of the complaint, a bar to these three causes of action, because it is alleged that the acts occurred within three years. Even if this were not alleged, appellants might treat respondents' use of their own land as a continuing nuisance, and bring successive actions until it was abated.' Id. at 829.

Material disputed facts exist in this action regarding whether the drainage issue constitutes a continuing or permanent nuisance. It is not known whether the nuisance can be remedied at a reasonable cost by reasonable means, such as, e.g., installing a drainage system on Defendant's property to divert the rainwater. Summary adjudication of this cause of action is denied.

5th COA: QUIET TITLE -- PRESCRIPTIVE EASEMENTS Paragraph 24 of the SAC alleges: 'The Souza Property has had easements across the Argleben Property for water supply pipes, underground drainpipes and surface drainage to drain storm water, and underground sewer lines since the time the Souza Property was purchased in the 1980s.' Paragraph 58 within this cause of action alleges: 'Plaintiffs' title for water supply pipes, storm drainage and sewer rights across the Argleben Property are established through necessity and adverse possession.' Paragraph 59 alleges: 'Since the Souza Property was purchased in the 1980s, Plaintiffs have maintained water supply piping, storm water drainage (under and above ground until blocked by Argleben's elevating his ground level), and easements needed for sewer lines across the Argleben Property.' The party claiming a prescriptive easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. McLear-Gary v. Scott (2018) 25 Cal. App. 5th 145, 159.

Whether the elements of prescription are established is a question of fact for the trial court. Id. The prescriptive easement must be visible, open and notorious sufficient to impart actual or constructive notice of the use to the owner of the servient tenement. Id. A prescriptive right cannot be predicated on a permissive use. Irvin v. Petitfils (1941) 44 Cal. App. 2d 496, 501.

Continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence, and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment for a prescriptive easement. Warsaw v. Chicago Metallic Ceilings, Inc.

(1984) 35 Cal. 3d 564, 571, 572.

'Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of Calendar No.: Event ID:  TENTATIVE RULINGS

2997953 CASE NUMBER: CASE TITLE:  SOUZA VS ARGLEBEN [IMAGED]  37-2020-00045974-CU-BC-CTL fact to be determined in light of the surrounding circumstances and the relationship between the parties.' Id. at 572.

Material disputed facts exist regarding Plaintiff's open, continuous and exclusive use of prescriptive water and/or drain lines over the northern boundary of Defendant's property for the requisite number of years. Whether or not this use was permissive is also a disputed issue of material fact. Summary adjudication of this cause of action is denied.

6th COA: QUIET TITLE -- NECESSARY EASEMENTS 'Generally, an easement by necessity arises from an implied grant or implied reservation in certain circumstances when a property owner (the grantor) conveys to another (the grantee) one out of two or more adjoining parcels of the grantor's property. When there is no express provision for access, and the parcel conveyed is either landlocked entirely by the parcels retained by the grantor or landlocked partly by the grantor's retained land and partly by the land of others, the grantee may claim an implied grant of a right-of-way of necessity over the land retained by the grantor.' Murphy v. Burch (2009) 46 Cal. 4th 157, 162, 163.

An easement by necessity arises by implication based on the inferred intent of the parties to the property conveyance. Id. at 163.

Two circumstances are indispensable to the implication and must be shown: (1) a strict necessity for the claimed right-of-way, as when the claimant's property is landlocked; and (2) the dominant and servient tenements were under common ownership at the time of the conveyance giving rise to the necessity. Id. To satisfy the necessity requirement, the party claiming the easement must demonstrate it is strictly necessary for access to the alleged dominant tenement. Id. at 164.

No easement will be implied where there is another possible means of access, even if that access is shown to be inconvenient, difficult, or costly. Id. In this case, disputed facts exist demonstrating that the Souza and Argleben properties (the dominant and servient tenements) were under the same ownership at the time the water line across the Argleben property was installed. On the other hand, it is undisputed that there is another potential means to access the Souza property via highway 78. Even though this alternative access may be costly and difficult, it is nonetheless potentially available. The Motion for summary adjudication of this cause of action is granted on this basis.

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