Judge: Margaret L. Oldendorf, Case: 22AHCV00903, Date: 2023-03-06 Tentative Ruling

Case Number: 22AHCV00903    Hearing Date: March 6, 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 allegedly 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 a 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 (the Encroached Property) 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 prevents Flair’s access to the Encroached Property. Flair sued the Kwoks for Trespass, Declaratory Relief, and Quiet Title. The Kwoks responded by demurring to Flair’s complaint, and by filing a cross-complaint. The demurrer to Flair’s complaint was overruled January 3, 2023.  

            Before the Court is Flair’s demurrer to the Kwok cross-complaint. The cross-complaint alleges claims for Quiet Title, Prescriptive Easement, and Equitable Easement. Based on the facts alleged, the easement claims are sufficiently alleged. Demurrer to the quiet title cause of action is sustained with leave to amend, because the Kwoks have failed   to allege a title interest.       

II.        LEGAL STANDARD

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.4^th 968, 994. 

            III.      DISCUSSION

            A. Summary of the Kwok Cross-Complaint

            The Kwoks allege they are the trustees of the Kwok Family Trust, which owns real property located at 1734 Ellincourt in South Pasadena. They allege they have owned the real property since April 7, 2011. Immediately next door at 1720 Ellincourt is the property owned by Flair.  Flair purchased the property in 2017. The Kwoks allege that in 2017 Flair contacted them about the retaining wall that runs between their properties, requesting that they share in the expense of its repair. Also in 2017, Flair informed the Kwoks that a 480- square foot portion of land on the north side of the wall, used by the Kwoks and its predecessor as a driveway (referred to in the Cross-Complaint as “Disputed Property”), was in fact part of the 1720 property.

            The Kwoks allege an absolute necessity to use the driveway, and further allege Flair has no use for the land. The alleged reasons for the Kwok’s need to continue using the Disputed Property are set forth in ¶10: zoning requirements would be violated if the lot line were moved; the recorded power pole easement straddles both properties, which restricts movement of the wall without exorbitant cost; moving the wall would be of little or no benefit to the 1720 property owned by Flair; moving the wall would put the 1734 property’s driveway out of compliance with zoning laws.

            The Kwoks allege that several years passed after the 2017 discussions, but in 2021 Flair again made demands about wall repair. The Kwoks allege at that time they had a survey done, copies of which are attached to the cross-complaint. In ¶12, they allege that they discovered at that time the boundary wall is several feet south of the boundary line and sits entirely on the Flair property. The Kwoks allege they tried several times to resolve the matter with Flair, without success. In ¶14 the Kwoks allege that they have no responsibility for the boundary and that they have right, title, and/or interest in the Disputed Property.

            B. Demurrer to the Quiet Title Cause of Action is Sustained

             A claim of title is essential to a quiet title cause of action.

            Code Civ. Proc. §760.010 defines “claim” as “a legal or equitable right, title, estate, lien, or interest in property or cloud upon title.”

            Section 760.020 (a) provides that, “An action may be brought under this chapter to establish title against adverse claims to real or personal property or any interest therein.”

(Bolding and italics added.)

            Section 761.020 provides the elements that must be alleged:

(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.

(c) The adverse claims to the title of the plaintiff against which a determination is sought.

(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.

(e) A prayer for the determination of the title of the plaintiff against the adverse claims.

            “An element of a cause of action for quiet title is ‘[t]he adverse claims to the title of the plaintiff against which a determination is sought.’ (Code Civ. Proc., § 761.020, subd. (c).)” West v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802, bolding added.

            Flair argues that not all elements of a quiet title claim have been plead, because the facts as alleged do not indicate the Kwoks have a claim of title. The Kwoks oppose by arguing that a claim for quiet title extends to other legal or equitable interests in real property. As is clear from the statute, quiet title concerns title, as challenged by other property rights/claims. The case on which the Kwoks rely supports this:  “Title is not quieted as to boundaries, moving or otherwise; it is quieted as to legal interests in property.” Lechuza Villas West v. California Coastal Commission (1997) 60 Cal.App.4th 218, 242.       

            The Cross-Complaint does not contain any allegation regarding the source of the Kwoks’ title. Rather, the Kwoks allege they are the sole users and occupiers of the Disputed Property and that their use (and that of their predecessors) has been open and hostile for decades. Absent an allegation that they have paid taxes for the Disputed Property, this is not enough to constitute a claim of title. The Kwoks’ argument that they can seek rights other than title by means of the quiet title statute is not supported by the law they cite. The demurrer is therefore sustained as to this cause of action.

            C. Prescriptive Easement

            “To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. [Citations.] To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.” (Mehdizadeh, supra, 46 Cal.App.4th at p. 1305, 54 Cal.Rptr.2d 284.)” Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1032-1033, bolding added.

            Each of these elements is alleged in ¶¶16, 20-24. Flair fairly concedes that this is so (Demurrer at 9:15) but argues that because the Kwoks allege that their use of the Encroached Property is exclusive, the complaint is deficient (Demurrer at 10:6). Based on the facts pleaded, including copies of surveys attached to the Cross-Complaint, the Kwoks’ use of the Encroached Property is exclusive. That anyone could potentially walk on the Kwok driveway does not alter the fact that Flair has lost the use of the Encroached Property. But the argument Flair raises goes to the merits rather than the sufficiency of the pleading. Some cases hold that where possession of disputed property is exclusive, the elements of adverse possession must be established in order to obtain a prescriptive easement.

            “Because of the taxes element, it is more difficult to establish adverse possession than a prescriptive easement. The reason for the difference in relative difficulty is that a successful adverse possession claimant obtains ownership of the land (i.e., an estate), while a successful prescriptive easement claimant merely obtains the right to use the land in a particular way (i.e., an easement). (Mehdizadeh, supra, 46 Cal.App.4th at p. 1300, 54 Cal.Rptr.2d 284.)

            “Unsurprisingly, claimants have often tried to obtain the fruits of adverse possession under the guise of a prescriptive easement to avoid having to satisfy the tax element. (Kapner v. Meadowlark Ranch Assn (2004) 116 Cal.App.4th 1182, 1187, 11 Cal.Rptr.3d 138.) That is, they seek judgments ‘employing the nomenclature of easement but ... creat[ing] the practical equivalent of an estate.’ (Raab, supra, 51 Cal.App.3d at p. 877, 124 Cal.Rptr. 590.) Such judgments ‘pervert[ ] the classical distinction in real property law between ownership and use.’ (Silacci, supra, 45 Cal.App.4th at p. 564, 53 Cal.Rptr.2d 37.) The law prevents this sophistry with the following rule: If the prescriptive interest sought by a claimant is so comprehensive as to supply the equivalent of an estate, the claimant must establish the elements of adverse possession, not those of a prescriptive easement. (Raab, at pp. 876–877, 124 Cal.Rptr. 590.) In other words, the law simply ‘does not allow parties who have possessed land to ignore the statutory requirement for paying taxes by claiming a prescriptive easement.’ (Kapner, at p. 1187, 11 Cal.Rptr.3d 138.)” Hansen, supra, 22 Cal.App.5th at 1033, bolding added.

            The Kwoks rely on Otay Water District v. Beckwith (1991) 1 Cal.App.4th 1041, 1047, for the proposition that where possession has been exclusive the court may determine a prescriptive easement has been established. That holding is still law, though its holding has been more often distinguished than followed. Whether or not Otay will ultimately provide the rule in this action is not presently before the Court.

            D. Equitable Easement

            The Second District recently summarized the law governing equitable easements this way:

            “Where there has been an encroachment on land without any legal right to do so, the court may exercise its powers in equity to affirmatively fashion an interest in the owner's land which will protect the encroacher's use, namely, a judicially created easement sometimes referred to as an ‘equitable easement.’ (Hirshfield, supra, 91 Cal.App.4th at pp. 764–765, 110 Cal.Rptr.2d 861; Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008, 126 Cal.Rptr.3d 838 (Tashakori).) In making its determination, the court engages in equitable balancing to determine, on the one hand, whether to prevent such encroachment or, on the other hand, permit such encroachment and award damages to the property owner. (Hirshfield, at p. 759, 110 Cal.Rptr.2d 861.)

            “California courts have ‘discretionary authority to deny a landowner's request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an [equitable] easement over the trespassed-upon property in the trespasser’s favor, provided that the trespasser shows that (1) her trespass was “ ‘innocent’ ” rather than “ ‘willful or negligent,’ ” (2) the public or the property owner [seeking the injunction] will not be “ ‘irreparabl[y] injur[ed]’ ”  by the easement, and (3) the hardship to the trespasser from having to cease the trespass is “ ‘greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.’ ” ’ (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19, 187 Cal.Rptr.3d 560 (Shoen); accord Tashakori, supra, 196 Cal.App.4th at pp. 1008–1009, 126 Cal.Rptr.3d 838 [factors apply to both physical encroachments and disputed rights of access over neighbors’ properties].)

            “Unless all three elements are established, a court lacks discretion to grant an equitable easement. (Shoen, supra, 237 Cal.App.4th at p. 19, 187 Cal.Rptr.3d 560; see Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5th 155, 184–185, 250 Cal.Rptr.3d 585.) This is true even if the court believes the imposition of an equitable easement is fair and equitable under all circumstances. (Shoen, at pp. 19–21, 187 Cal.Rptr.3d 560.) Thus, the court’s focus must be on the three elements, rather than ‘“a more open-ended and free-floating inquiry into which party will make better use of the encroached-upon land, which values it more, and which will derive a greater benefit from its use.”’ (Id. at p. 21, 187 Cal.Rptr.3d 560.)” Romero v. Shih (2022) 78 Cal.App.5th 326, 355-356.

The Cross-Complaint alleges each of the necessary three elements for an equitable easement. The Kwoks’ innocent trespass/use of the Encroached Property is alleged in ¶¶5, 10, 16, and 27. The lack of irreparable harm to Flair is alleged in ¶28. And the Kwoks’ hardship from having to cease trespassing/using the Encroached Property is alleged in ¶29.

Flair urges that the Kwoks must allege facts establishing that they are innocent; but the facts alleged show that the Kwoks have been using the property in the same manner since they purchased it in 2011, just as their predecessors in interest had, and that they did not learn of the encroachment issue until 2017. Flair urges that the Kwoks cannot pass the relative hardship test. That is not a question to be resolved at the demurrer stage.  The factual allegations regarding the hardships involved in ceasing use of the Encroached Property are sufficiently plead.

IV.      CONCLUSION AND ORDER

            Demurrer to the quiet title cause of action is sustained for failure to state a cause of action. Code Civ. Proc. §430.10(e). The pleading lacks any allegation that the Kwoks have an ownership interest in the Encroached Property.

            Demurrers to the prescriptive easement and equitable easement causes of action are overruled.

            The Kwoks are granted leave to amend the quiet title cause of action.

            Any amended complaint must be filed within 14 days of today’s date (i.e., by March 20).

            If no pleading is filed by that date, Flair is to answer within 10 days thereafter (by March 30).

            Flair is ordered to give notice of this ruling.

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT