Judge: Joel R Wohlfeil, Case: 37-2023-00043437-CL-OR-CTL, Date: 2024-01-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Limited  Other Real Property Demurrer / Motion to Strike 37-2023-00043437-CL-OR-CTL SMALLEY VS SILVERGATE RSF [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/20/2023

The special and general Demurrer (ROA # 20, 37, 42) of Defendant SILVERGATE RSF, LLC ('Defendant' or 'Silvergate RSF') to the First Amended Complaint ('FAC' - ROA # 12, 17) filed by Plaintiff NADIA SMALLEY ('Plaintiff'), is SUSTAINED IN PART and MOOT IN PART.

The general Demurrer is SUSTAINED.

The special Demurrer is MOOT in light of the ruling sustaining the general Demurrer.

Defendant's Request (ROA # 21) for judicial notice is GRANTED.

'In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.' Code Civ. Proc. 325(b).

The failure to pay the taxes assessed in any one year defeats a claim premised on adverse possession.

Southern Land Co. v. McKenna (1929) 100 Cal. App. 152, 158.

The judicially noticed and certified County records demonstrate Plaintiff cannot satisfy the adverse possession element requiring the payment of property taxes.

This ruling is made without leave to amend the pleading unless Plaintiff appears at the hearing and is able to articulate the ability to state a cognizable claim. In the event Plaintiff is not permitted leave to amend, this ruling will completely dispose of this action and Defendant is instructed to submit a proposed judgment.

The Court read and considered 'Plaintiffs verified answer to Demurrer' (ROA # 33) and treats this filing as Plaintiff's opposition to this Demurrer. Even assuming Plaintiff qualifies as a tax exempt charitable organization, no legal authority is cited for the proposition that a charitable organization can acquire title to property by adverse possession without the payment of property taxes where that property was previously owned by an entity that is not tax exempt.

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