Judge: Marcella O. Mclaughlin, Case: 37-2023-00013413-CU-OR-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2023-00013413-CU-OR-CTL JONATHAN C CHAPIN AS TRUSTEE OF THE CHAPIN FAMILY TRUST DTD 8 16 2013 VS RICHARD G MURRAY AS TRUSTEE OF THE MURRAY FAMILY TRUST DATED CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 04/12/2024

Defendants' motion for summary adjudication is DENIED.

A. Plaintiffs' request for judicial notice (ROA 68) is granted. Evid. Code § 452(d).

B. The court rules on plaintiffs' evidentiary objections (ROA 66) as follows: -Objection 4 is sustained.

-The remaining objections are overruled.

C. The court declines to rule on defendants' objections to plaintiffs' opposition separate statement. ROA 74. 'A separate statement is not, in and of itself, evidence.' Brown v. El Dorado Union High School Dist.

(2022) 76 Cal.App.5th 1003, 1020.

D. '[T]he issues on summary judgment are framed by the pleadings.' Lona v. CitiBank, N.A. (2011) 202 Cal.App.4th 89, 115. Thus, '[i]f a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.' Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13.

Here, plaintiffs allege that they 'owned, occupied, and/or controlled the Chapin property.' (Complaint at ¶ 34.) Plaintiffs further allege that defendants 'have installed, or caused to be installed, several improvements on the Chapin Property[.]' (Id. at ¶ 18.) While it is undisputed that plaintiffs did not occupy or control the area where the improvements were installed (UMF 11-12), defendants have failed to submit any evidence showing that plaintiffs did not own the area. Accordingly, defendants have failed to carry their initial burden of showing that the first element of plaintiffs' trespass claim cannot be established. Code Civ. Proc. § 437c(p)(2).

Defendants argue that ownership alone is insufficient as a matter of law to support a claim for trespass.

The court disagrees. 'The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.' Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 (emphasis added). This is consistent with both CACI 2000 and California case law regarding encroachments. See, e.g., Rankin v. DeBare (1928) 205 Cal. 639, 641 (defendant's building that rested on plaintiff's lot by 'an inch or two' was a trespass); Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1243 ('An encroachment is usually...a trespass[.]'); Castelletto v. Bendon (1961) 193 Cal.App.2d Calendar No.: Event ID:  TENTATIVE RULINGS

3114607  70 CASE NUMBER: CASE TITLE:  JONATHAN C CHAPIN AS TRUSTEE OF THE CHAPIN FAMILY TRUST  37-2023-00013413-CU-OR-CTL 64, 65-67 (three buildings standing in part on plaintiffs' property was a trespass); Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 828 ('Where encroachments of a permanent nature are erected upon one's land, the remedy is by an action in trespass[.]'); Bertram v. Orlando (1951) 102 Cal.App.2d 506, 509 ('[T]he encroachment of a building obviously intended to be permanent upon the soil of another is a permanent trespass[.]').

Defendants' reliance on Veiseh v. Stapp (2019) 35 Cal.App.5th 1099 is misplaced. Veiseh did not involve an encroachment. Nor was ownership of the property at issue. The sole question before the court was whether a plaintiff who had transferred property for the benefit of his minor daughter pursuant to the California Uniform Transfers to Minors Act was in 'lawful possession' of the property despite not complying with the requirements of the Act. See Veiseh, 35 Cal.App.5th at 1101-02. 'A case is not authority for a proposition not considered therein or an issue not presented by its own particular facts.' McConnell v. Advantest America, Inc. (2023) 92 Cal.App.5th 596, 611.

E. In issuing this ruling, the court has not considered the reply separate statement filed by defendants (ROA 76). There is no authority for the filing of such a document. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.

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