Judge Lynette Gridiron Winston, Case Number: 24PSCV00403, Date: 2024-08-06 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 24PSCV00403, Date: 2024-08-06 Tentative Ruling

Case Number: 24PSCV00403 Hearing Date: August 6, 2024 Dept: 6

CASE NAME: Magdalena Thomas Aguilar, et al. v. Maya Mouawad, et al.

1 – Defendants’ Demurrer to Plaintiffs’ Complaint; and

2 – Defendants’ Motion to Strike Plaintiffs’ Complaint

TENTATIVE RULING

The Court OVERRULES Defendants’ demurrer to Plaintiffs’ complaint.

The Court DENIES Defendants’ motion to strike portions of Plaintiffs’ complaint.

Defendants must file and serve their answer to the complaint within 20 days of this order.

Plaintiffs are ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a boundary dispute case. On February 7, 2024, plaintiffs Magdalena Thomas Aguilar, Mauricio Aguilar, and Megan Samantha Thomas Aguilar (collectively, Plaintiffs), filed this action against defendants Maya Mouawad, an individual and trustee of The Joe and Maya Mouawad Family Living Trust dated July 31, 2020, Joe Mouawad, an individual and trustee of The Joe and Maya Mouawad Family Living Trust dated July 31, 2020 (collectively, Defendants), and Does 1 through 10, alleging causes of action for quiet title, willful trespass, negligent trespass, encroachment, private nuisance, negligence, declaratory relief, and injunctive relief.

On May 17, 2024, Defendants demurred to and moved to strike the complaint. On July 24, 2024, Plaintiffs opposed both motions. On July 30, 2024, Defendants replied.

LEGAL STANDARD – Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id., at pp. 993-994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.)

REQUESTS FOR JUDICIAL NOTICE – Demurrer

The Court DENIES the request for judicial notice of Exhibit 1 since that is simply a webpage, the contents of which are generally not subject to judicial notice. (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [court cannot take judicial notice of factual contents of website].) The Court DENIES the request for judicial notice regarding when the subject chain link fence was erected, as Defendants provided no reasonably indisputable source for the Court to reference and thereby be able to immediately determine its veracity. (See Evid. Code, § 452, subd. (h).) The Court GRANTS Defendants’ request for judicial notice as to Exhibit 2. (Evid. Code, § 452, subd. (h); see Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 536, disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 [court may take judicial notice of recorded documents that cannot reasonably be controverted].) The Court DENIES the request for judicial notice with respect to when Defendants obtained title to their property since Exhibit 2 already provides that information.

DISCUSSION – Demurrer

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ meet-and-confer efforts sufficient. (Brower Decl., ¶ 3.)

Statute of Limitations – Second, Third, and Fifth Causes of Action

“One of the primary functions of the demurrer is to filter out actions which lack substantial basis without the time and labor of trial. Where the complaint discloses that the statute of limitations bars the action, the general demurrer has long been held an appropriate means to assert such a facial defect. [Citations.]” (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Comm. for Green Foothills v. Santa Clara Cnty. Bd. of Supervisors (2010) 48 Cal.4th 32, 42, internal citations and quotation marks omitted.) “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer. [Citations.]” (United W. Med. Centers v. Superior Ct. (1996) 42 Cal.App.4th 500, 505, italics added.)

Defendants demur to each cause of action on the grounds that they are barred by the applicable statute of limitations. Defendants contend Plaintiffs’ Second, Third, and Fifth Causes of Action for willful trespass, negligent trespass, and private nuisance are subject to a three-year statute of limitations under Code of Civil Procedure section 338, subdivision (b). Defendants contend the encroaching structures are permanent and not continuing trespasses, and Plaintiffs’ claims are therefore time-barred. Defendants contend courts have long held that a foundation, like Defendants’ cement driveway, is permanent, and that a cause of action for trespass would have accrued as of the date of completion of its construction. Defendants contend the complaint does not allege any continuous act of Defendants that may otherwise be discontinued at any time, but the complaint instead asserts a permanent injury caused by the one act of erection or construction that occurred over five years before Plaintiffs filed the complaint. Defendants also contend the complaint alleges that Plaintiffs were aware of the encroaching structures when they purchased their property and therefore did not sustain a continuing injury.

In opposition, Plaintiffs contend their Second, Third, and Fifth Causes of Action for willful trespass, negligent trespass, and private nuisance are not barred by the three-year statute of limitations because these claims are based on two encroachments, i.e., the chain link fence and cement driveway, each of which are not permanent structures, but are continuing in nature. Plaintiffs contend whether these structures are permanent is a question of fact, which is not to be decided on a demurrer. Plaintiffs contend the complaint alleges sufficient facts to demonstrate that the chain link fence and concrete driveway are continuing trespasses and nuisances under the “adaptability test” set forth in Madani v. Rabinowitz (2020) 45 Cal.App.5th 602 (Madani), which is factually similar to this case, as it also involved a fence and was found to be a continuing trespass rather than a permanent trespass.

The Court finds Defendants’ statute of limitations arguments fail. First, although not raised by Plaintiffs’ opposition, the Court notes that the complaint does not clearly and affirmatively allege facts on its face demonstrating that Plaintiffs’ claims are time-barred. (See Compl., ¶¶ 15-20.) The earliest alleged date with respect to the chain link fence and cement driveway is July 21, 2022, when Plaintiffs bought their property. (Compl., ¶¶ 15-16.) This at most shows that Plaintiffs’ claims may be time-barred, which is not enough for purposes of a demurrer. (Comm. for Green Foothills v. Santa Clara Cnty. Bd. of Supervisors, supra, 48 Cal.4th at p. 42.) There is no precise date provided in the complaint alleging when the fence and driveway were first constructed and allegedly began to encroach on Plaintiffs’ property. (United W. Med Centers. v. Superior Ct., supra, 42 Cal.App.5th at p. 505.)

Moreover, as noted above, the Court denied the majority of Defendants’ requests for judicial notice, so those are of no help to Defendants here. The one document to which the Court granted judicial notice was the grant deed evidencing when Defendants acquired title to their property. (Request for Judicial Notice, Ex. 2.) However, this does not establish when the fence and driveway were constructed or erected and when they began to encroach on Plaintiffs’ property.

Furthermore, the Court agrees with Plaintiffs that this case is factually similar to Madani. (See Madani, supra, 45 Cal.App.5th at pp. 609-610.) The Court of Appeal held in Madani that the plaintiff’s claims for trespass and nuisance were not time-barred because the fence and concrete encroachments could be remedied at a reasonable cost by reasonable means. (Id., at p. 609.) Here, the complaint alleges the existence of a chain link fence and cement driveway, whereas the encroachments in Madani involved a wooden fence with cement posts. (See Compl., ¶¶ 16-17; 20; Madani, supra, 45 Cal.App.5th at pp. 606, 608.) The complaint also alleges that the chain link fence fell sometime in June 2023, after which Defendants had it reinstalled. (Compl., ¶ 20.) The Court infers from this allegation that these alleged encroachments are not necessarily permanent, and that remedying them would not be unreasonably cost prohibitive or impose an unreasonable burden on Defendants. (See Code Civ. Proc., § 452; Madani, supra, 45 Cal.App.5th at pp. 608-609.) Whether an encroachment is permanent or continuing is a question of fact not suitable for demurrer. (See Id., at p. 607; M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 703 [questions of fact generally not suitable for resolution on demurrer].)

Based on the foregoing, the Court OVERRULES the demurrer to the Second, Third, and Fifth Causes of Action.

Statute of Limitations – First, Fourth, Seventh, and Eighth Causes of Action

The statute of limitations for adverse possession and prescriptive easement is five years. (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1030 (Hansen).) Defendants contend that Plaintiffs’ First, Fourth, Seventh, and Eighth Causes of Action for quiet title, encroachment, declaratory relief, and injunctive relief are all premised on an alleged encroachment onto Plaintiffs’ property, which renders them subject to the five-year statute of limitations period for adverse possession or prescriptive easement per Harrison v. Welch (2004) 116 Cal.App.4th 1084 (Harrison).

Plaintiffs contend that their causes of action for quiet title, encroachment, declaratory relief, and injunctive relief are not barred by the five-year statute of limitations because the legal title holder’s right does not expire until the encroachment ripens into adverse possession or a prescriptive easement per Harrison. Plaintiffs contend whether an alleged encroachment satisfies the requirements of adverse possession or a prescriptive easement is a question of fact.

The Court again finds the complaint does not allege sufficient facts on its face to sustain a demurrer based on the statute of limitations for the First, Fourth, Seventh, and Eighth Causes of Action. As noted above, the complaint does not precisely allege when the chain link fence and concrete driveway were constructed or when they began to encroach on Plaintiffs’ property. As such, the complaint does not allege facts showing that the five-year statute of limitations for adverse possession or prescriptive easement has been satisfied. (See Harrison, supra, 116 Cal.App.4th at pp. 1095-1096.) The complaint also does not allege other facts necessary for adverse possession, such as the Defendants’ payment of taxes for the disputed portion of the property for five years. (See Hansen, supra, 22 Cal.App.5th at p. 1033.)

Plaintiffs also correctly contend that whether the encroachment constitutes adverse possession or a prescriptive easement is generally a question of fact, (see Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572; Sevier v. Lochier (1990) 222 Cal.App.3d 1082, 1087), and therefore is generally not appropriate for resolution on a demurrer, (M.F. v. Pacific Pearl Hotel Management LLC, supra, 16 Cal.App.5th at p. 703). Additionally, as noted above, the Court denied the majority of Defendants’ requests for judicial notice, so those are of no help to Defendants here either.

Based on the foregoing, the Court OVERRULES the demurrer to the First, Fourth, Seventh, and Eighth Causes of Action.

Duty

A landowner may be found negligent for encroaching on a neighbor’s property where there is a known uncertainty as to the property boundaries. (See Hansen, supra, 22 Cal.App.5th at p. 1030 [“While growers do not have a general duty to survey or otherwise confirm boundaries before planting, it is negligent to plant permanent crops on a swath of land, knowing that some unspecified part of that land is in need of a ‘lot line adjustment.’”])

Defendants demur to the Sixth Cause of Action for negligence on the grounds that Defendants did not owe a duty to Plaintiffs. Defendants contend that since the complaint alleges the encroaching structures were erected or constructed before Plaintiffs purchased their property, Defendants therefore owed no duty to Plaintiffs. Defendants also argue that negligence is subject to a three-year statute of limitations period under Code of Civil Procedure section 338, subdivision (b).

In opposition, Plaintiffs cite to facts not alleged in the complaint, (Opp., 10:1-8), but otherwise point to the actions of Defendants in June 2023 when the fence fell down and Defendants reinstalled it despite Plaintiffs’ protests to the contrary. Plaintiffs contend Defendants are similar to the defendants in Hansen and that they knew of the boundary dispute, but nevertheless persisted in encroaching on Plaintiffs’ property.

The Court finds the complaint alleges sufficient facts to state a cause of action for negligence. While the complaint does not allege facts demonstrating that Defendants were aware of the boundary dispute before the chain link fence was originally installed or the cement driveway was constructed, the complaint does clearly allege that Plaintiffs apprised Defendants of this boundary problem in June 2023 but Defendants proceeded to reinstall the fence anyway. (Compl., ¶ 20; see Hansen, supra, 22 Cal.App.5th at p. 1030.) The Court reads this alleged reinstalment of the fence as a new and separate act of encroachment, which the Court finds sufficient to support Plaintiffs’ claim that Defendants breached their duty to not encroach upon Plaintiffs’ land.

As for the statute of limitations, that argument fails for the same reasons set forth above, namely that the complaint does not allege sufficient facts demonstrating when the chain link fence or cement driveway were constructed or otherwise became an issue for Plaintiffs. Moving Parties’ requests for judicial notice also fail to support Moving Parties arguments for the same reasons set forth above.

Accordingly, the Court OVERRULES the demurrer to the Sixth Cause of Action.

LEGAL STANDARD – Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)

REQUESTS FOR JUDICIAL NOTICE – Motion to Strike

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 435.5, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendants’ meet-and-confer efforts sufficient. (Brower Decl., ¶ 3.)

Analysis

Defendants seek to strike all references in the complaint to the alleged encroaching cement driveway on the grounds that the cement driveway is a permanent structure subject to a three-year statute of limitations period. Defendants contend Plaintiffs concede as much based on the allegations that a portion of the chain link fence fell in June 2023 and Defendants purportedly hired a repairman to reinstall the fence.

In opposition, Plaintiffs contend that Defendants concede in their moving papers that the chain link fence might not be permanent since it fell down and was reinstalled. Plaintiffs contend either way, both the chain link fence and driveway are not permanent since they can easily be remedied per Madani and removed by a reputable contractor.

For the same reasons set forth above regarding the demurrer, the Court finds Defendants’ arguments unavailing. The complaint fails to allege sufficient facts demonstrating when the cement driveway was constructed and began to encroach on Plaintiffs’ property. (See Compl., ¶¶ 15-20.) Moreover, as also noted above, the alleged encroachments in this case are similar to those in Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, which the Court of Appeal found to not be permanent because the defendants in that case could easily remedy them, and thus the plaintiff’s claims were not barred by the statute of limitations. (Id., at p. 609.) Additionally, whether an encroachment is continuing or permanent is a question of fact, not suitable for a motion to strike. (See Id., at p. 607; cf. M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 703 [questions of fact generally not suitable for resolution on demurrer].) Furthermore, the Court denied the majority of Defendants’ requests for judicial notice, so those do not help Defendants here either.

Based on the foregoing, the Court DENIES Defendants’ motion to strike.

CONCLUSION

The Court OVERRULES Defendants’ demurrer to Plaintiffs’ complaint.

The Court DENIES Defendants’ motion to strike portions of Plaintiffs’ complaint.

Defendants must file and serve their answer to the complaint within 20 days of this order.

Plaintiffs are ordered to give notice of the Court’s ruling within five calendar days of this order.