Judge: Margaret L. Oldendorf, Case: 22AHCV00903, Date: 2023-01-03 Tentative Ruling
Case Number: 22AHCV00903 Hearing Date: January 3, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This action concerns a boundary dispute between the
owners of real properties located in South Pasadena on which multi-unit
residential dwellings are located. Defendants Allan and Kitty Kwok (the Kwoks) own
real property (held in trust) that encroaches on property owned by Plaintiff
Flair Capital Management, LLC (Flair).
There is a block wall sometimes called a retaining wall
(which seems to indicate that the Kwok property is on higher elevation than the
Flair property) dividing the two properties. On the Kwok side of the boundary
is a driveway. The allegation is that the wall encroaches on the Flair property
along the entire boundary. The strip of land in dispute is less than three feet
wide and amounts to approximately 480 square feet. Based on the allegations and
surveys attached to both the verified complaint and verified cross-complaint,
the retaining wall is entirely on the Flair property and the wall cuts off Flair’s
access to the Encroached Property. Flair sues for Trespass, Declaratory Relief,
and Quiet Title. The Kwoks have filed a cross-complaint for Quiet Title,
Prescriptive Easement, and Equitable Easement.
At issue is the Kwoks’ demurrer to the Flair Complaint
and their motion to strike. The demurrer is mainly based on a statute of
limitations argument that cannot be established on the pleadings; the demurrer
is therefore overruled. The motion to strike is addressed to the prayer for
punitive damages and attorney fees. As the allegations are insufficient to
support the prayer, the motion to strike is granted.
II. DEMURRER
A. Legal Standard
1. Law Governing Demurrers
Code
Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint
fails to state a cause of action. A demurrer admits, provisionally for purposes
of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th
1239, 1247. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.
2. Law Governing Judicial Notice
“It is the consequence of judicial notice that
the ‘fact’ noticed is, in effect, treated as true for purposes of proof. ‘Under
the doctrine of judicial notice, certain matters are assumed to be indisputably
true, and the introduction of evidence to prove them will not be required.
Judicial notice is thus a substitute for formal proof. [Citation.]’ (1 Witkin,
Cal. Evidence (3d ed. 1986) § 80, p. 74.) Therefore, a finding of fact that was
judicially noticed would be removed as a subject of dispute and would be
accepted for evidentiary purposes as true. The effect would be that without
resort to concepts of collateral estoppel or res judicata that would litigate
whether the issue was fully addressed and resolved, a finding of fact would be
removed from dispute in the other action in which it was judicially noticed.”
Sosinksy v. Grant (1992) 6 Cal.App.4th 1548, 1564 (declining to take judicial notice of
findings of fact made by a judge in a prior proceeding).
“Although the existence of a document may be judicially
noticeable, the truth of statements contained in the document and its proper
interpretation are not subject to judicial notice if those matters are
reasonably disputable. StorMedia, Inc. v. Superior Court (1999) 20
Cal.4th 449, 457, fn. 9, 84 Cal.Rptr.2d 843, 976 P.2d 214. The California
Supreme Court stated in StorMedia: ‘In ruling on a demurrer, a court may
consider facts of which it has taken judicial notice. (Code Civ. Proc., §
430.30, subd. (a).) This includes the existence of a document. When judicial
notice is taken of a document, however, the truthfulness and proper
interpretation of the document are disputable. (Joslin v. H.A.S. Ins.
Brokerage (1986) 184 Cal.App.3d 369, 374 [228 Cal.Rptr. 878].)’ (Ibid.)”
Freemont Indemnity Co. v. Freemont General Corp. (2007) 148 Cal.App.4th
97, 113.
3. Law Governing Statute of Limitations for
Quiet Title
“The Legislature has not established a specific statute
of limitations for actions to quiet title. (Muktarian v. Barmby (1965)
63 Cal.2d 558, 560).) Therefore, courts refer to the underlying theory of
relief to determine the applicable period of limitations. (Ibid.; see 53
Cal.Jur.3d (2012) Quieting Title, § 34, pp. 412-413.) An inquiry into the
underlying theory requires the court to identify the nature (i.e., the ‘gravamen’)
of the cause of action. (Hensler v. City of Glendale (1994) 8 Cal.4th 1,
22.) [¶] Generally, the most likely time limits for a quiet title action are
the five-year limitations period for adverse possession, the four-year
limitations period for the cancellation of an instrument, or the three-year
limitations period for claims based on fraud and mistake.” Salazar v. Thomas
(2015) 236 Cal.App.4th 467, 476 (internal citations shortened and footnotes
omitted).
In action based on a boundary dispute to recover real
property or possession thereof, the statute of limitations is five years. Martin
v. Van Bergen (2012) 209 Cal.App.4th 84, citing Code Civ. Proc. §318.
The statute of limitations does not run against one in
possession of the real property. Reuter v. Macal (2020) 57 Cal.App.5th
571, 578. A landowner who knows of potential adverse claims has no reason to go
to the expense of litigation until such claim is pressed against him. Salazar,
supra, 236 Cal.App.4th at 477-478; Reuter v. Macal (2020) 57
Cal.App.5th 571, 578.
4. Law Governing Statute of Limitations for
Trespass
The demurrer
argues that Flair alleges a permanent trespass (rather than a continuing trespass),
and therefore that Code Civ. Proc. §338(b)’s three-year statute of limitation
applies. “The crucial test of the permanency of a trespass or nuisance is
whether the trespass or nuisance can be discontinued or abated.” Mangini v. Aerojet-General
Corp. (1996) 12 Cal.4th 1087, 1097.
“Where a trespass consists of a physical entry upon the
lands of another and taking possession thereof under such circumstances as to
indicate an intention that the trespass shall be permanent, the law may regard
the wrong done in such case as complete at the time of the entry and allow
recovery in a single action of all damages resulting therefrom, including
prospective as well as past damages. . .
. But where the wrong consists of an encroachment which was not willful but
unintentional, and which is abatable, the law does not presume that such an
encroachment will be permanently maintained.” Kafka v. Bozio (1923)
191 Cal. 746, 750-751, bolding added.
In a recent Second District Case on somewhat similar
facts, a boundary dispute was found to be a continuing rather than permanent
trespass because the fence at issue in that case could be moved: “Under this test, sometimes referred to as the
‘abatability test’ (see, e.g., Beck, supra, 44 Cal.App.4th at p.
1220, 52 Cal.Rptr.2d 518), a trespass or nuisance is continuing if it ‘can be
remedied at a reasonable cost by reasonable means.’ (Mangini, supra,
12 Cal.4th at p. 1103, 51 Cal.Rptr.2d 272, 912 P.2d 1220.)” Madani v.
Rabinowitz (2020) 45 Cal.App.5th 602, 609.
B. Analysis
1.
The Complaint Is Not On Its Face Time-Barred
The defendants’ central argument on demurrer is that since
the Complaint admits at ¶7 that Flair has known since 2017 about the
encroachment, and since the trespass is permanent, the trespass cause of action
is time-barred as it was not filed within three years thereafter. Defendants further argue that the other claims
(quiet title and declaratory relief) stem from and are grounded in the alleged
trespass and are therefore barred as well.
The trespass is permanent, the Kwoks argue, “because the
driveway, which itself is permanent, cannot be moved as there is no room for
the driveway in any other location, and moving or shrinking of the driveway
would cause the 1734 Property to be in violation of the City of South Pasadena
zoning ordinances as to driveway width (as it would be less than 10 ft. in
width),” citing South Pasadena’s zoning ordinance 36.220.050(C). Memorandum of
Points and Authorities at 9:24 – 10:2. This argument cannot be made at the
demurrer stage, because it goes beyond the four corners of the pleading. There
are no allegations in the Flair Complaint about the width of the Kwok’s
driveway, or whether or not it can be moved to another location. The Kwoks did
not request that judicial notice be taken of their own verified cross-complaint,
which alleges at ¶10.d that moving the wall would cause the driveway to be out
of compliance with the ordinance’s 10-foot requirement. But even if they had,
and even if judicial notice were taken of the allegation, it is not enough to
sustain the demurrer. This is so because while Evid. Code §452(d) permits
judicial notice of court records, taking judicial notice does not establish the
truth of the allegations contained therein. Sosinksy
v. Grant (1992) 6 Cal.App.4th 1548; Freemont Indemnity Co. v. Freemont
General Corp. (2007) 148 Cal.App.4th 97. If the rule were otherwise, there
would be no need for litigation; one could proceed from a verified complaint
straight to judgment. Finally, even if the Court could take judicial notice of
the fact that the Kwok’s driveway would be less than 10 feet wide if the
boundary wall were moved to the correct location (causing them to be in violation
of the city ordinance), this would only be a factor, but not the sole
factor, in determining whether the trespass is permanent or continuing.
The parties make various arguments about whether the
trespass can be abated, none of which is appropriately resolved at the pleading
stage. Thus, to the extent the demurrer is based on the argument that Flair’s
claims are barred by the statute of limitations for trespass, the demurrer is
overruled.
In opposing the demurrer, Flair urges that the statute of
limitations for quiet title is five years and that it is essentially based on
an adverse possession claim that did not accrue until the Kwoks filed their
cross-complaint. The Kwoks vigorously disagree with the adverse possession
analysis in their Reply, arguing they are not claiming any ownership interest.
That argument is at odds with their cross-complaint, which pleads a competing quiet
title claim and prays for a judgment quieting title in them.
In sum, whether grounded in trespass or adverse
possession, the Kwoks have not shown that the quiet title claim is on its face time-barred.
The issues of which statute of limitations applies and when it accrued cannot
be decided at the demurrer stage.
2. Plaintiff May Allege A Declaratory
Relief Cause Of Action
The other demurrer argument is that declaratory relief is
a remedy, not a cause of action. While cases have affirmed the sustaining of a demurrer
where a declaratory relief claim is based on other nonviable causes of action
(as in Faunce v. Cate (2013) 222 Cal.App.4th 166, 173), the reasoning is
that declaratory relief should not be permitted as a way around those
non-viable claims. Other cases state that where the claims in a declaratory
relief cause of action are “fully engaged” by other causes of action,
declaratory relief may be “unnecessary and superfluous.” Hood v. Superior
Court (1995) 33 Cal.App.4th 319, 324.
In
this case Flair’s declaratory relief cause of action seeks a determination that
it is and has been the sole owner of the Encroached Property, and that the
Kwoks must either return it or pay fair market value for it. That part may be
redundant of the quiet title cause of action. But Flair also alleges that once
the correct boundary is settled, it seeks a determination that the Kwoks must
contribute 50% to the upkeep of the boundary. Complaint, ¶25. This is not
redundant of the other claims.
In sum, the pleading alleges sufficient facts to
demonstrate that there is an existing controversy relating to the rights and
duties of the parties with respect to real property. Code Civ. Proc. §1060. Consequently,
sufficient facts are alleged to state a cause of action for declaratory relief.
The
demurrer is therefore overruled on all grounds.
III. MOTION
TO STRIKE
A. Legal Standard
1.
Motions to Strike
Code Civ. Proc. §436: “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.”
2. Punitive Damages
Civ.
Code §3294:
“(a)
In an action for the breach of an obligation not arising from contract, where
it is proven by clear and convincing evidence that the defendant has been
guilty of oppression, fraud, or malice, the plaintiff, in addition to the
actual damages, may recover damages for the sake of example and by way of
punishing the defendant.”
“(c)
As used in this section, the following definitions shall apply:
(1) ‘Malice’
means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.
(2) ‘Oppression’
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
(3) ‘Fraud’’
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.”
B.
Motion to Strike is Granted
The
Kwoks move to strike the prayer for punitive damages and attorney fees. This
motion has merit. The pleading does not allege any facts to support the
recovery of attorney fees, making the prayer for fees improper. In fact, Flair
concedes this in its opposition to the motion to strike.
As
for punitive damages, the only pertinent allegation is that the Kwoks “intentionally,
recklessly, and/or negligently entered the property.” Given the facts here, an
existing retaining wall that does not mark the true boundary line, the trespass
appears to be unavoidable until the dispute is resolved. These facts do not demonstrate
malice, fraud or oppression. As such, the prayer for punitive damages is
improper and properly stricken. Flair’s request for leave to amend is denied at
this time; but it is without prejudice to a later motion requesting leave to amend, if
appropriate, after evidence has been developed to support such allegations.
IV. CONCLUSION
AND ORDER
For the foregoing reasons, the demurrer to the complaint
is overruled. The Kwoks are ordered to
file an answer within ten days.
The motion to strike the prayer for attorney fees and for
punitive damages is granted. This order is without prejudice to a later motion
for leave to amend to allege a right to punitive damages, if appropriate.
Plaintiff Flair is ordered to give notice of this ruling.
Dated: _______________________________
MARGARET OLDENDORF
JUDGE
OF THE SUPERIOR COURT