Judge: Margaret L. Oldendorf, Case: 21AHCV00030, Date: 2023-01-06 Tentative Ruling

Case Number: 21AHCV00030    Hearing Date: January 6, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This action stems from a boundary dispute between two neighboring properties in South Pasadena. James Cheung initiated this litigation by suing his next-door neighbors Edmund Louie and Deborah Kotani. For ease of reference, the properties are referred to as the Cheung Property and the Louie Property. The source of conflict is a fence between the properties, which has existed there for decades, but which encroaches on the Louie Property.

            The Cheung Property is located at 1635 Via Del Rey (Lot 567), and the Louie Property at 1627 Via Del Rey (Lot 566) in South Pasadena. Attached to Cheung’s original verified complaint is a survey of the Cheung Property. It depicts the property line, as well as a “wooden fence” that does not run on the property line but instead is on the Louie Property. Cheung alleges that the fence has been there since 1964 (the year his home was constructed); and that the fence is affixed to the ground and is permanent and is supported by lush green foliage.

The gist of Cheung’s complaint is set forth at ¶17 of his original Complaint:

“Plaintiff claims some right, title, estate, lien or interest in and to the lands of Defendants hereinbefore described, or a portion thereof, and dispute and deny that the true and correct boundary line between the properties is as depicted in a Survey Report dated November 27, 2006 (signed as true and correct by Ray Lombera P.L.S. #7740 of by Ray Lombera & Associates, Inc.) but rather is the Fence Line depicted in said Survey Report attached hereto as Exhibit B and incorporated herein by this reference.”

            In other words, the theory of Cheung’s quiet title claim is that the fence marks the true boundary, not the surveyed property line. Louie/Kotani’s demurrer for failure to state a cause of action was sustained on the ground that the “agreed boundary” doctrine does not apply because there is no uncertainty about where the boundary is located.  Bryant v. Blevins (1994) 9 Cal.4th 47, 55. The agreed boundary doctrine provides that where two owners are uncertain of the true position of a common boundary, agree upon a boundary and build up and occupy the land on each side based thereon, the agreed boundary is the true boundary even if subsequent measurements show it to be inaccurate. Bryant holds that the agreed boundary doctrine does not apply where legal records provide a reasonable basis for fixing the boundary, and the party relying on the doctrine fails to establish uncertainty as to the location of the boundary.

            Cheung’s First Amended Complaint alleges essentially the same facts and theory. In Judge Leis’ order sustaining the demurrer to the First Amended Complaint, he notes that at oral argument he asked Mr. Cheung if he could allege uncertainty as to the boundary; and Mr. Cheung’s answer was that this is not a necessary element for an agreed boundary claim.  Referencing the Bryant case, Judge Leis sustained the demurrer without leave to amend as to the quiet title, boundary line, and injunctive relief causes of action. He sustained the demurrer to the property damage claim with leave to amend.

Defendants’ demurrer to Cheung’s Second Amended Complaint was sustained without leave to amend as to all causes of action, in part on the basis that the pleading continued to press claims for which Cheung was not granted leave to amend. That order was later modified to clarify that the property damage claim could remain. (That claim concerns the allegation that Louie and Kotani engaged in unauthorized trimming of the border hedge.)

            Louie and Kotani filed a verified Cross-Complaint against Cheung, as well as  Tiffany Chiu Yuk Leung and Randall Leung.  Darin Tung Choi Leung was added by Roe amendment. The cross-complaint alleges Tiffany, Randall, and Darin are the owners of the property, but that Cheung resides there. As reflected in the numerous deeds, title has changed hands among the various cross-defendants a number of times. According to the most recent instrument, recorded during the pendency of this action (Exhibit 10), all four individuals own a 25% interest in the property as tenants in common. The causes of action alleged in the Cross-Complaint are: (1) Quiet Title and Easement; (2) Trespass and Encroachment; (3) Negligent Trespass and Encroachment; (4) Injunctive Relief to Cease Nuisance, Trespass, and Encroachment; and (5) Declaratory Relief.

             Louie and Kotani now seek summary judgment on their Cross-Complaint, or alternatively, summary adjudication as to each cause of action contained in it. Based on the undisputed facts, summary adjudication is granted in favor of Louie and Kotani as to their claims for quiet title, declaratory relief, and injunctive relief. The motion is denied as to the trespass claims, as moving parties have not presented any evidence regarding damages.

II.        LEGAL STANDARD

            A plaintiff may move for summary judgment in an action if it is contended that there is no defense to the action. Code Civ. Proc. §437c(a).

            Subsection (p) provides:

“For purposes of motions for summary judgment and summary adjudication:

(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

            However, a plaintiff who moves for summary judgment does not have the burden of disproving affirmative defenses. Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 565.

            A motion for summary judgment shall be granted where all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. Section 437c(c).

            Summary adjudication may be granted where it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty. Section 437c(f).         

III.      ANALYSIS

            This litigation, by way of both the verified complaints and verified cross-complaint, present a fundamental question: what is the legal boundary between the two properties? Cheung’s theory of the case is that the legal boundary is marked by a fence and hedge that have existed on the land for decades. Louie/Kotani’s theory of the case is that the boundary is as identified in the recorded deeds and surveys. In this case, the question is a legal rather than factual one, and it therefore may appropriately be decided by either demurrer or summary judgment.

Judge Leis’ order sustaining Cheung’s demurrer without leave to amend has no res judicata effect, as moving parties argue in their moving papers. This is so because the demurrer order did not result in a final judgment; and in any event it was not issued in a prior action. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.  Louie and Kotani do not rely on res judicata alone, however, and proffer undisputed evidence in support of their motion.

            It should be noted that Cheung failed to timely file and serve his opposition papers. Pursuant to Code Civ. Proc. §437c(b)(2), all opposition papers are due 14 days prior to the hearing. Here, that date was December 23, 2022. Cheung filed and served his responsive memorandum of points and authorities on December 23, but filed and served his responsive separate statement and declaration on December 27, 2022. Despite this fact, the Court has considered Cheung’s late-filed documents.  (The other cross-defendants did not file any opposition.)

            A. Undisputed Evidence

                        1. Judicial Notice

            Louie and Kotani request judicial notice of a number of recorded deeds. Judicial notice of the documents and their legally operative language is granted pursuant to Evid. Code §452(c) and (h); Evid. Code §453; Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754-755. Judicial notice of the deeds includes not just the documents’ existence, but the legal effect of statements contained therein concerning the boundary of properties. Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1461.

            Accordingly, judicial notice is taken of Exhibits 1-4 and 6-10.

            Judicial notice is taken as to the balance of the documents (pleadings and orders in this litigation) pursuant to Evid. Code §452(d). Judicial notice of these documents is taken as to the existence of the documents only and not the truth of any matters stated therein. Sosinksy v. Grant (1992) 6 Cal.App.4th 1548, 1564.

                        2. Declarations

            The declarations of Louie and Kotani are offered in support of their claim of ownership of the Louie Property, the encroachment of the fence and hedge as well as portions of a sprinkler system and some brick edging, and the fact that they did not consent to the alleged encroachment and trespass.

            The Declaration of David Knell, a professional surveyor, reinforces the legal description of the boundary contained in the deeds and confirms the encroachment of the fence and hedge onto the Louie Property.

            Cheung has not filed any objections to any of this evidence. To the extent the comment in his late-filed responsive separate statement (to the effect that the Louie grant deed is only a photocopy and lacks foundation), it is resolved by moving parties’ filing a certified copy of the instrument on January 5, 2022.   

            Cheung offers his own declaration in opposition to the motion. Louie and Kotani raise numerous objections to it. All 31 of their objections are sustained on the ground of relevance.

            B. Quiet Title Is Granted In Favor Of Louie and Kotani

            In one sense, quiet title is not a very apt cause of action here; the parties have title to their respective properties, as reflected in the recorded instruments. However, because Cheung’s complaint asserted an interest in property actually owned by Louie and Kotani,  quiet title is an appropriate means of resolving this dispute. Cheung sought a judgment granting him title to the disputed strip of land defined as the space between the boundary described in the deeds and the fence/hedge. The Cross-Complaint identifies this as an adverse claim and seeks to quiet title in Louie and Kotani. Cross-Complaint at ¶¶15-18. Each of the elements outlined in Code Civ. Proc. §761.020 is contained in these allegations and the evidence proffered by Cross-Complainants establishes the validity of their claim.

            In particular, Undisputed Material Facts (UMFs) 1-4 establish that Cross-Complainants are the fee owners of Lot 566, and Cross-Defendants are the fee owners of Lot 567, and that the boundary between them is certain. To the extent the boundary is contested, judgment in Cross-Complainants’ favor settles that contest. Cheung has not demonstrated that any material triable issues exist as to these UMFs.

            Based on the undisputed evidence, Louie and Kotani have established that they are the owners in fee simple of the property described in their deed, and that Cheung (and all other cross-defendants) have no right or title to their property. The adverse claim raised by Cheung in his pleadings (that have been disposed of by way of demurrer rulings) fail, and title is quieted in Cross-Complainants as against such adverse claims.

C. Summary Adjudication Is Denied As To The Claims For Intentional and Negligent Trespass

            “May a plaintiff seek summary adjudication of liability only, leaving the resolution of damages to a later trial? The statutory language mandates the question be answered in the negative. A plaintiff can obtain summary adjudication of a cause of action only by proving ‘“each element of the cause of action entitling the party to judgment on that cause of action.”’ As damages are an element of a breach of contract cause of action (Citation.), a plaintiff cannot obtain judgment on a breach of contract cause of action in an amount of damages to be determined later.” Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.

            The 2^nd and 3^rd causes of action are for intentional and negligent trespass. Here, Cross-Complainants allege that Cross-Defendants have allowed improvements (rotting wood fence, hedge, sprinkler systems, concrete) to be placed on the Louie Property and that such encroachment constitutes a continuing trespass. The trespass is alleged to have diminished their property value, diminished their personal privacy, diminished the aesthetics of their property, and imposed costs on them for removal.

            While Cross-Complainants have presented evidence of the trespass at UMFs 5-10, they have proffered no evidence as to their damages. Summary adjudication is therefore denied on the grounds that these causes of action cannot be completely disposed of.

            D. Injunction and Declaratory Relief

            Based on the undisputed nature of the legal border between the properties (UMFs 1-4) and the existence of the fence, hedge, etc. on the Louie Property (UMFs 5-10), Cross-Complainants are entitled to an order declaring the rights and obligations of the parties as to the property line, and to an injunction prohibiting further trespass or encroachment.

            E. Cheung’s Opposition Arguments Lack Merit

            As already noted, moving parties have presented admissible undisputed evidence establishing the legal boundaries of the properties and the encroachment of certain fixtures (fence, hedge, sprinklers, cement edging) on the Louie Property. Cheung has failed to offer any opposing evidence that demonstrates the existence of a triable issue of material fact. Instead, he argues that summary adjudication is not proper because the facts are different now than when the pleadings were filed because Cross-Complainants have moved ahead with their pool construction project, including building a retaining wall. He contends that this activity gives rise to new torts (for which he seeks leave to add by amendment), and which he claims preclude adjudication of Cross-Complainants’ causes of action. The Court disagrees. Whether or not the pool construction has given rise to new claims has no bearing on the boundary dispute at the heart of the Cross-Complaint, and which is resolved in Cross-Complainants’ favor here. Cheung’s claims for property damage may potentially be added by amendment, as will be discussed in connection with the motion concurrently heard this date.

IV.      CONCLUSION AND ORDER

            Cross-Complainants have presented admissible, undisputed evidence establishing the validity of their quiet title claim as it pertains to the border. Consequently, summary adjudication is granted in favor of Cross-Complainants and against Cross-Defendants as to the 1^st cause of action for quiet title.

            Based on the order quieting title as to the boundary, the rights and obligations of the parties may be fairly declared. On that basis, summary adjudication is granted in favor of Cross-Complainants on the 4^th and 5^th causes of action. Cross-Complainants are entitled to the full use of their property to the legal boundary line, and to an order enjoining Cross-Defendants from their continued trespass by way of any and all improvements located on the Louie Property. Cross-Complainants have the right to remove such improvements. Cross-Defendants are enjoined from continuing to trespass on the Louie Property by way of such improvements.

            Summary adjudication as to the 2^nd and 3^rd causes of action for trespass is denied on the basis that no evidence of damages was presented.       

            Moving parties are ordered to give notice of this ruling.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT