Judge: Loren G. Freestone, Case: 37-2023-00033261-CU-MC-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Misc Complaints - Other Demurrer / Motion to Strike 37-2023-00033261-CU-MC-CTL FRANCES MOLTER-DECK AND WILLIAM J DECK TRUSTEES OF THE DECK FAMILY TRUST UNDER DECLARATION DATED 9/13/13 VS ASHLEE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Justin Lashlee and Sara Lashlee's demurrer to the first amended complaint filed by Plaintiffs Frances Molter-Deck and William J. Deck (as trustees of the Deck Family Trust dated 9/13/13) is SUSTAINED IN PART and OVERRULED IN PART.

The Lashlees' motion to strike portions of the Decks' complaint is GRANTED.

Preliminary Matters The Decks argue that the Lashlees did not discuss all of the arguments in their demurrer and motion when the parties' met and conferred. The Lashlees disagree. It is unnecessary to decide who is right because even if the meet and confer was deficient, that is not a basis for overruling the demurring or denying the motion. (Code Civ. Proc., §§ 430.41, subd. (a)(4), 435.5, subd. (a)(4).) Both parties cite to unpublished opinions. Those citations are disregarded, and the parties are reminded to not cite unpublished opinions in future briefing. (Cal. Rules of Court, rule 8.1115(a).) Ejectment The Lashlees demur to the first cause of action for ejectment on the ground the Decks' alleged easement is not a possessory right.

'Ejection is a possessory action in which the plaintiff must show himself entitled to the present possession.' (Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 363.) An essential element of the claim is 'a right to possession.' (Baugh v. Consumers Associates Ltd. (1966) 241 Cal.App.2d 672, 675, superseded by statute on other grounds.) The Lashlees cite Wood v. Truckee Turnpike Co. (1864) 24 Cal. 474 for the proposition that 'an action of ejectment will not lie in favor of a party to try his right to enjoy an easement' because 'the very subject matter of controversy is incorporeal.' (Id. at p. 488.) The Decks argue that Wood is 159 years old and fault the Lashlees for not citing a more recent case.

Despite its similarity to this case, neither party cited or discussed McBride v. Smith (2018) 18 Cal.App.5th 1160. In that case, the plaintiff alleged her neighbors had erected encroachments that Calendar No.: Event ID:  TENTATIVE RULINGS

3045982  39 CASE NUMBER: CASE TITLE:  FRANCES MOLTER-DECK AND WILLIAM J DECK TRUSTEES OF  37-2023-00033261-CU-MC-CTL prevented her from accessing her property via her easement over their land. (Id. at p. 1173.) The court noted that such a scenario could give rise to several claim. For example, under Civil Code section 809, the 'easement owner may sue to enjoin an obstruction or an unreasonable interference' of the easement. (Id. at p. 1175.) The easement owner could also 'bring a cause of action for declaratory and injunctive relief to resolve a dispute regarding the nature and scope of that easement.' (Ibid.) As another alternative, the easement owner could bring a nuisance claim to the extent interfering with the easement substantially and unreasonably interfered with the plaintiff's free use and enjoyment of her own property. (Id. at pp. 1178–1180.) However, the court held that the plaintiff could not state a claim for trespass because her easement did 'not give her a possessory right' and was instead 'only a nonpossessory right to use another's property.' (Id. at p. 1174.) The court noted the only 'possible caveat to this settled principle' was a so-called 'exclusive easement,' which was not alleged. (Id. at p. 1174, fn. 5.) McBride did not specifically discuss an ejectment claim. However, its discussion of whether an easement can form the basis of a trespass claim is instructive on the issue of whether an easement can form the basis of an ejectment claim. (See Shusett, Inc. v. Home Sav. & Loan Assn. (1964) 231 Cal.App.2d 146, 150 ['Both trespass and ejectment are possessory actions,' and 'to maintain these actions, a superior right to possession must be alleged in the plaintiff'].) Here, the Lashlees allegedly own the disputed strip of land at issue that serves as a driveway to their residence. The Decks do not allege that they are entitled to exclusive use of the Lashlees' driveway.

The Decks only allege that they have an easement entitling them to use the driveway to access a shed at the back of their own property. Under Wood and McBride, any such easement is not a possessory right and cannot form the basis for an ejectment claim. The demurrer to this cause of action is therefore sustained.

Quiet Title The Lashlees demur to the second cause of action for quiet title on the grounds the Decks failed to record a lis pendens and verify the complaint.

Lis Pendens A plaintiff must file a lis pendens immediately after filing a complaint to quiet title. (Code Civ. Proc., § 761.010, subd. (b).) The Decks concede a lis pendens has not yet been recorded (the issue would otherwise be beyond the scope of the complaint).

However, the failure to record a lis pendens does not affect the viability of the quiet title claim vis-a-vis the Lashlees. (Blackburn v. Bucksport & E.R.R. Co. (1908) 7 Cal.App. 649, 653.) The failure to record, or delay in recording, a lis pendens only impacts the effect of the judgment as to nonparties. (Ibid.; see Code Civ. Proc., §§ 764.030, 764.045.) The demurrer on this ground is therefore overruled.

Verification A complaint alleging a quiet title claim must be verified. (Code Civ. Proc., § 761.020.) The Decks' complaint is not verified.

The failure to verify a complaint is not a basis for a demurrer, but it is a basis for a motion to strike. (See Code Civ. Proc., § 436, subd. (b); Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 574–575.) Courts have discretion to construe a demurrer as a motion to strike. (See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 844.) The court treats the demurrer as a motion to strike the quiet title claim, and so construed, the motion is granted.

Declaratory Relief Calendar No.: Event ID:  TENTATIVE RULINGS

3045982  39 CASE NUMBER: CASE TITLE:  FRANCES MOLTER-DECK AND WILLIAM J DECK TRUSTEES OF  37-2023-00033261-CU-MC-CTL The Lashlees demur to the third cause of action for declaratory relief on the ground it is derivative of the defective quiet title claim.

'[L]itigants asking a court to decide their rights in property may do so through a panoply of different causes of action-quiet title, cancellation of instruments, and declaratory relief, to name a few.' (Ridec LLC v. Hinkle (2023) 92 Cal.App.5th 1182, 1201.) Quiet title claims are unique because judgments on such claims 'operate in rem-and hence are binding not only against the parties to the quiet title proceeding, but also against all the world.' (Ridec, supra, 92 Cal.App.5th at p. 1195.) The 'requirements for obtaining an in rem quiet title judgment are more stringent than the requirements for obtaining judgments resolving adverse claims to property under other in personam causes of action.' (Ibid.) Such requirements include filing a verified complaint and recording a lis pendens. (Id. at p. 1196.) A claim for declaratory relief, on the other hand, only resolves an 'actual controversy relating to the legal rights and duties of the respective parties.' (Code Civ. Proc., § 1060.) A party may obtain a declaratory judgment determining the property rights as between the named plaintiff and the named defendant without satisfying the additional procedural requirements applicable to quiet title claims. (See Code Civ.

Proc., §§ 760.030, subd. (a); XPO Logistics Freight, Inc. v. Hayward Property LLC (2022) 79 Cal.App.5th 1166, 1179–1180.) As noted above, the Lashlees do not contend that the quiet title claim is substantively deficient (i.e., that the Decks have not adequately pled a prescriptive easement). The Lashlees only argue that the quiet title claim is procedurally deficient because the complaint is not verified and a lis pendens was not recorded. The Decks' separate declaratory relief claim is not subject to those procedural requirements.

The demurrer to this cause of action is therefore overruled.

Attorney Fees The Lashlees move to strike the Decks' prayer for attorney fees on the ground there is no basis for recovering them.

'Under the American rule, as a general proposition each party must pay his own attorney fees. This concept is embodied in section 1021 of the Code of Civil Procedure, which provides that each party is to bear his own attorney fees unless a statute or the agreement of the parties provides otherwise.' (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.) The Decks do not cite any statutory basis supporting their prayer for attorney fees. Nor do the Decks allege any contractual basis for seeking attorney fees. In their opposition, the Decks indicate they have 'no objection to the court striking the request for attorney's fees.' The motion to strike the request is therefore granted.

Conclusion The demurrer to the first cause of action for ejectment is sustained. As there does not appear to be a reasonable possibility that it can be amended to allege a possessory right, the demurrer is sustained without leave to amend.

The demurrer to the second cause of action for quiet title, which the court construes as a motion to strike, is granted. As the Decks have indicated they have no objection to adding a verification (and recording a lis pendens), the motion is granted with leave to amend.

The demurrer to the third cause of action for declaratory relief is overruled.

The motion to strike the prayer for attorney fees is granted. As the Decks conceded the prayer should Calendar No.: Event ID:  TENTATIVE RULINGS

3045982  39 CASE NUMBER: CASE TITLE:  FRANCES MOLTER-DECK AND WILLIAM J DECK TRUSTEES OF  37-2023-00033261-CU-MC-CTL be struck, the motion is granted without leave to amend.

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