Judge: Mark H. Epstein, Case: 22SMCV01084, Date: 2023-01-20 Tentative Ruling
Case Number: 22SMCV01084 Hearing Date: January 20, 2023 Dept: R
The demurrer is SUSTAINED WITH LEAVE TO AMEND.
Plaintiff filed a trespass action against its neighbors. Defendants’ predecessor-in-interest allegedly erected a boundary wall and other structures on plaintiff’s property without permission and plaintiff demands that the wall be removed or plaintiff be compensated. Defendants refused and plaintiff alleges trespass, quiet title, “injunctive relief,” and declaratory relief.
Defendants’ request for judicial notice in their moving papers is GRANTED. It is DENIED as to the reply evidence because new evidence in reply is disfavored and defendants seek judicial notice not only of the document but also the truth of the matters asserted therein (not just the jural effect thereof).
Defendants argue that the complaint is barred by the statute of limitations. The court considers this in the context of the trespass action because the remaining causes of action as presently pled seem to stand or fall on that one.
The statute of limitations on trespass is three years from the date of accrual. (Code Civ. Proc. § 338 subd. (b).) However, the real question is whether the trespass is a permanent one or a continuing one. A permanent trespass accrues when the trespass is complete and after three years it ends and the defendant can no longer be sued for trespass. On the other hand, a continuing trespass re-starts with each day. Determining whether the trespass is continuing or permanent is not always an easy task. Generally, though, “A permanent trespass is an intrusion on property under circumstances that indicate an intention that the trespass shall be permanent. . . . In contrast, a continuing trespass is an intrusion under circumstances that indicate the trespass may be discontinued or abated.” (Starrh & Starrh Cotton Growers v. Aera Energy, LLC (2007) 153 Cal.App.4th 583, 592.) Here, it at least seems from the complaint that the wall is, and was meant to be, permanent. And there is evidence that the parties have been at this for far more than 3 years. Indeed, there was an earlier dispute in which defendants here sued to obtain an easement (prescriptive or equitable) and a declaratory judgment finding that they wall could be kept. More on that later.
Another way to look at the permanent/continuing dichotomy under Starrh is the ease with which the trespass can be abated. Where a building is placed on another’s land, moving the building is not feasible. The trespass is permanent. On the other hand, a chain-link fence is easy to remove (relatively speaking) and thus easy to abate. Similarly, the defendant’s use of the property as a garden is easy to abate. The allegations here at least suggest a very permanent wall. If so, it is hard to see how it can be reasonably abated, at least based on the allegations in the current complaint.
That said, more detail concerning the wall may lead to a different conclusion. The court will give plaintiff that opportunity. The court is also concerned that defendant is overstating the case. Even if the statute of limitations has run, the court does not believe—at least based on this briefing—that it means that plaintiff is without any remedy at all. Reduced to its essentials, defendant asserts that after the statute of limitations has run, it automatically has full control of the property and there is nothing to be done. That is the equivalent of adverse possession—giving one party exclusive use of another’s property without compensation has those essential hallmarks. (It is more than a prescriptive easement, which suggests that the property can be used by both parties. And even an equitable easement, which allows one party exclusive use, requires payment.) The Legislature has enacted specific and exacting requirements to an adverse possession claim. The use must be open and notorious and without permission for at least five years and the party claiming adverse possession must have paid the property tax on the disputed area during that time. It would be anomalous at best to allow a party to avoid those requirements by building the structure and waiting three years for the statute to run. When amending, plaintiff should be clear as to what relief, if any, it will seek if the statute of limitations on trespass has indeed run.
Defendant also claims that the action is barred by the compulsory cross-complaint rule. That statute holds that a compulsory cross-complaint must be brought in the original action or it is barred forever. The earlier action here was one brought by defendant against plaintiff (that is, Liu against Merlin). In it, Liu sought a prescriptive easement (first cause of action), and equitable easement (second cause of action), and declaratory relief (third cause of action). Following demurrer, only the third cause of action remained. The case was later dismissed by Liu without resolution of the third cause of action. Merlin did not bring a cross-action. Merlin asserts that the cross-complaint bar does not apply here because all that remained was an action for declaratory relief, and the statute exempts such actions from its reach. Liu counters that there is an exception to the exception. Where the declaratory relief action seeks not only a declaration but also coercive relief, the bar remains. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150.)
The matter is not so easy as it seems. It is true, as Liu asserts, that the declaratory relief cause of action in the earlier case sought a declaration that Liu was entitled to an easement. But the actual easement causes of action were no longer active against Merlin at that time. The court will not presume that where the “coercive” causes of action were no longer in play, the declaratory relief cause of action still was to the same effect. As a practical matter, the declaratory relief action in the earlier case was, after the other two causes of action were no longer in play against Merlin, not coercive. After all, Merlin had demurred to the easement causes of action and the demurrer was sustained without leave to amend. When one steps back, the reasoning is also clear. A declaratory relief cause of action is unlike others. If the defendant prevails, the defendant actually gets affirmative relief in many cases without the need to file a cross-action. In other words, the end result is a declaration in defendant’s favor and clarifying that defendant’s asserted rights are correct. (That is why it is almost impossible to demur to a declaratory relief cause of action—the demurrer cannot be based on the theory that the defendant is correct and the plaintiff is wrong, it must be based on the theory that there is no dispute at all.) In other words, where the action is one for declaratory relief, there is no need for the defendant to file a cross-action because the defendant can obtain the same relief by being successful in defeating the main action.
The court is also concerned with the procedural posture. In the earlier case, after Merlin’s partially successful demurrer, Liu dismissed. That leads to this interesting position. Under Liu’s theory, Liu was free to bring the case again—after all, the dismissal was without prejudice and there was no final order on Merlin’s partially successful demurrer. Yet Merlin is forever barred. The court agrees with Liu that the point of this rule is to bar piecemeal litigation. But the application Liu suggests encourages piecemeal litigation rather than discourage it. The court is not prepared to believe that the Legislature meant this statute to give a plaintiff an option to bring later litigation but not a defendant. In any event, the court need not reach a final conclusion on that point given its ruling on the statute of limitations issue.