Judge: Lee W. Tsao, Case: 20NWCV00566, Date: 2023-05-09 Tentative Ruling

Case Number: 20NWCV00566    Hearing Date: May 9, 2023    Dept: C

DOMINGUEZ v. AVALOS, et al.

CASE NO.:  20NWCV00566

HEARING:   5/9/23 @ 10:30 AM

#5

TENTATIVE RULING

Defendant Avalos’s demurrer to second amended complaint is OVERRULED.  Defendant is ordered to file her Answer within 10 days.

Opposing Party to give NOTICE.

Defendant Avalos demurs to the 1^st cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action, is inconsistent with the prior complaint, and is uncertain.

This is a real property dispute between two adjoining land owners.  Defendant Rosalba Avalos owns real property located at 7523 Muller Street, Downey California.  Plaintiff Ruben Dominguez owns the adjoining property located at 7531 Muller Street, Downey California.  The property in dispute is a strip of land that is approximately 3 feet wide by 120 feet long that is located within Avalos’s property boundary line, and which borders Dominguez’s property.  (8/18/22 Order.)

On August 18, 2022, this court granted Defendant Avalos’s motion for summary adjudication as to the 1^st cause of action for Easement by Prescription on the ground that Plaintiff Dominguez was not seeking nonexclusive use of any easement.

On October 20, 2022, this court granted Plaintiff Dominguez leave to file a Second Amended Complaint.  The SAC now asserts causes of action for:

1.    Nonexclusive Prescriptive Easement

2.    Adverse Possession

3.    Trespass

1^ST CAUSE OF ACTION

NONEXCLUSIVE PRESCRIPTIVE EASEMENT:   To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.  (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal. 3d 564, 570.)

Where an incorporeal interest in the use of land becomes so comprehensive as to supply the equivalent of ownership, and conveys an unlimited use of real property, it constitutes an estate, not an easement.  (Raab v. Casper (1975) 51 Cal. App. 3d 866, 876-877.)  “Achievement of that objective required proof and findings of the elements of adverse possession, not prescriptive use.”  (Id.) 

¶ 28 alleges that “Plaintiff seeks a nonexclusive easement by prescription to Parcel B-2/Walkway so that he may continue its historical use.”

Avalos initially argues that Dominquez’s installation of landscaping and an irrigation system completely prohibits Defendant from using that part of their land.  However, these facts do not appear within the four corners of the complaint.

Further, Plaintiff is entitled to allege alternative theories of recovery such as an easement on the one hand, or alternatively, an interest in the land by adverse possession.

Finally, “a demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that a defendant cannot reasonably respond. (Ibid.)

The court finds that the SAC is not so uncertain that Defendant cannot reasonably respond. 

Accordingly, the demurrer is OVERRULED.  Defendant is ordered to file her Answer within 10 days.