Judge Joel R Wohlfeil, Case Number: 37-2020-00045974-CU-BC-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2020-00045974-CU-BC-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 04, 2024

06/07/2024 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 Motion Hearing (Civil) 37-2020-00045974-CU-BC-CTL SOUZA VS ARGLEBEN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to Amend, 04/25/2024

The Motion (ROA # 200) of Plaintiffs and Cross-Defendants John J. Souza, Jr. and M. Carolyn Souza, Trustees of the Souza Family Trust under Instrument dated December 11, 1986 as Community Property ('Plaintiffs') for leave to record a late notice of intent to preserve the recorded easement for public and private sewer and water lines burdening that certain real property located at 242 Pine Street, Ramona, California, APN: 281-122-14 owned by Defendant and Cross-Complainant Leah M. Mackay, as Successor Trustee of the Argleben Family Trust dated March 5, 1992 ('Defendant' or 'Mackay'), is GRANTED.

Plaintiffs' Request (ROA # 203) for judicial notice is GRANTED.

'In an action to establish the abandonment of an easement pursuant to this chapter, the court shall permit the owner of the easement to record a late notice of intent to preserve the easement as a condition of dismissal of the action, upon payment into court for the benefit of the owner of the real property the litigation expenses attributable to the easement or portion thereof as to which the notice is recorded. As used in this section, the term 'litigation expenses' means recoverable costs and expenses reasonably and necessarily incurred in preparation for the action, including a reasonable attorney's fee.' Civ. Code 887.070.

'An easement is not abandoned for purposes of this chapter if ... � ... [a] notice of intent to preserve the easement is recorded pursuant to Section 887.070 after commencement of the action to establish the abandonment of the easement and before judgment is entered in the action.' Civ. Code 887.060(c)(2).

'There is no statutory abandonment if (1) a notice of intent to preserve is recorded within the 20-year period immediately preceding any action to declare the easement abandoned, or (2) a notice of intent to preserve is recorded after the action has commenced and prior to judgment when (a) permitted by a court order as a condition to the dismissal of the action, and (b) the claimant pays to the owner of the property all litigation expenses attributable to the action relating to the easement.' 6 Miller and Starr, California Real Estate (4th ed. 2023) at � 15:79 (internal citations omitted).

This practice guide continues: 'Easement owner may record a notice to preserve. The owner of an interest in real property may preserve the interest, even though it is not used or there is an appearance of abandonment or termination, by recording a notice of an intent to preserve the interest. The notice may be recorded at any time, and it may refer to a specifically described easement or contain a general statement that the Calendar No.: Event ID: TENTATIVE RULINGS

3120355 CASE NUMBER: CASE TITLE: SOUZA VS ARGLEBEN [IMAGED] 37-2020-00045974-CU-BC-CTL declarant intends to preserve all easements held in the county. On recordation of the notice, the easement is preserved for a 20-year period after recordation.

Time to file the notice. An easement will not be considered as abandoned if the notice is filed within 20 years immediately preceding the commencement of the servient tenement owner's action to declare an abandonment. If an action has been filed, the notice can be recorded with leave of the court, and the action dismissed, if the declarant pays the servient tenement owner's costs of the litigation, including attorney's fees. However, the payment of litigation costs in connection with a notice of intent to preserve an easement can be required only if the easement is preserved on dismissal of the statutory abandonment claim. Where the action to terminate the easement is based on two separate theories, and the easement is terminated because of a theory other than the statutory abandonment for 20-year nonuse, the owner is not required to pay the litigation costs.' Id. at � 15:82 (internal citations omitted).

In Worthington v. Alcala (1992) 10 Cal. App. 4th 1404, an action was filed for termination based upon two theories: statutory abandonment and prescription. A notice of intent to preserve was filed after the action commenced, and the action for statutory abandonment was dismissed. The Court found that the easement was terminated by prescription and, therefore, the owner of the easement was not required to pay the litigation costs.

The opinion noted that the purpose of section 887.070 is to enable the owner of an easement to preserve the easement, after commencement of an action to establish its abandonment and clear title, by filing a late notice of intent to preserve the interest. Id. at 1410.

This opinion continues: 'The statute does not address the situation presented in this case, however, where an action seeking to terminate an easement is brought on two different theories, only one of which is statutory abandonment. While the commission's comments to sections 887.030 and 887.040 make it clear that the Legislature intended such an action to supplement the common law principles 'of abandonment of easements' (18 Cal. Law Revision Com. Rep., supra, at p. 264), we find no indication that the Legislature intended it to supplement or displace any other common law principle pursuant to which an easement might be extinguished, such as prescription.

Further, we find no indication from the statutory scheme that the Legislature intended section 887.070 to be applied, as it was in this case, to mandate payment of a plaintiff's litigation costs where payment fails to preserve the easement, because it is extinguished on a theory other than statutory abandonment. The primary purpose of section 887.070 is not the payment of litigations costs. It is to 'enable[] the owner of an easement to preserve the easement, after commencement of an action to establish its abandonment ....' (18 Cal. Law Revision Com. Rep., supra, at p. 267.) This intent is frustrated where the burden of litigation costs is imposed on an owner who is, nevertheless, denied the benefit of retention of the easement.

Therefore, we conclude that the Legislature intended litigation costs to be imposed pursuant to section 887.070 only where the sole theory of extinguishment of the easement is statutory abandonment or other theories are voluntarily dismissed and the application of the section will therefore result in preserving the easement interest. It follows that since the trial court found the easement in this case extinguished by prescription, it erred in imposing litigation costs upon appellants pursuant to section 887.070.' Id. at 1411.

Based on this authority, this Motion is granted. Attorney fees are not payable because the Cross-Complaint alleges an alternative 'common law' theory supporting abandonment of the easement.

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3120355 CASE NUMBER: CASE TITLE: SOUZA VS ARGLEBEN [IMAGED] 37-2020-00045974-CU-BC-CTL However, this ruling is made without prejudice of Defendant and Cross-Complainant Mackay's ability to seek the payment of litigation expenses after a determination is made on the remaining causes of action.

The Court will execute the proposed order (ROA # 204) at the hearing of this Motion.

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3120355