Judge: Mark H. Epstein, Case: 24SMCV05330, Date: 2025-03-10 Tentative Ruling

Case Number: 24SMCV05330    Hearing Date: March 10, 2025    Dept: I

The demurrer to the first and second causes of action is SUSTAINED WITH LEAVE TO AMEND.  The demurrer to the third cause of action is OVERRULED.

This is a quiet title case.  Plaintiff alleges that in 2024, defendant bought property next door to property plaintiff owns, which is essentially vacant land.  Plaintiff contends, though, that he owns the property by virtue of adverse possession.  Plaintiff alleges that he has maintained the property since 2019, fenced the property to protect it from animals and trespassers, and oversees the utility lines including propane lines.  Plaintiff also contends that he has paid property taxes on the property.  Defendant demurs, arguing that the property taxes were not timely paid, and therefore there can be no adverse possession.  Defendant also argues that the prior owner gave plaintiff an easement to do what he did, and therefore plaintiff’s use was permissive and not hostile.  Because of that, defendant asserts, plaintiff’s claims must fail, and defendant has demurred.  Plaintiff opposes.  Defendant’s request for judicial notice of the recorded easement is GRANTED.  The court notes that the request should have been made in a separate document, but the court will overlook that issue.

The requirements for adverse possession are: (1) possession under a claim of right or color of title; (2) actual, open, and notorious occupation of the premises providing reasonable notice to the true owner; (3) adverse and hostile possession as to the true owner; (4) continuous possession for at least five years; and (5) timely payment of all property taxes during that five year period.  (Code Civ. Proc. sec. 325; Hansen v. Sandridge Partners, L.P.  (2018) 22 Cal.App.5th 1020.)  The quiet title cause of action stands or falls with adverse possession.

Plaintiff contends that he meets the property tax requirement (which is generally the downfall of adverse possession claims).  He asserts that the prior owner did not pay the property taxes, causing a default.  Plaintiff learned of the default and potential foreclosure of the property, and plaintiff therefore paid the taxes himself.  Essentially, the default began in 2020.  However, plaintiff did not make the payment until 2023.  According to defendant, by 2023 it was plain that at least some of the payments were not timely.  Plaintiff counters that he made the payment as soon as he learned of the issue, and therefore the payments are timely for statutory purposes.  The court disagrees.  The requirement for “timely” payment was added by the Legislature in 2010.  The requirement was added to foreclose the doctrine to those who scoured the tax records to find delinquent properties and make a lump sum payment and claim that they met the other requirements.  The court agrees that plaintiff did not do that, but the court’s job is not to further the court’s view of legislative intent; the court’s job is to enforce the statute as written.  Plaintiff relies on Smith v. Byer (1960) 179 Cal.App.2d 118.  However, that case was decided before the amendment adding the “timely” requirement.  More recent authority, including McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, makes it clear that timely means timely.  The court could conceive of a substantial compliance argument such that if the bill was paid a month late or so it would count.  But the bills here were paid years late.  The court is by no means faulting plaintiff; plaintiff understandably did not pay the taxes until plaintiff was aware that no one was paying them.  But it still will not satisfy the timeliness requirement.

The court must also agree with the defense as to the hostile use issue.  While it is true that “hostile” does not mean that the parties have to write nasty letters back and forth, it does mean that the use must be without permission.  Here, there was an express easement granted by the prior owner that allowed for much of the work that plaintiff claims he did.  Because that use was pursuant to an easement, it is not hostile; it is permissive.  The easement was recorded on January 13, 2023, which was during the five year period plaintiff alleges possession.  Once the easement was granted, the hostile possession stopped.  Plaintiff contends that the easement’s intent was far more limited than the work the plaintiff actually did.  The court cannot consider those issues because they are outside the pleadings.  But even if the court could so consider, the prior owner’s mental intent in granting the easement is of no worth; the key fact is what the easement itself says.  And the easement language does not have all of the limitations plaintiff asserts.  True enough, if the easement was for utility lines and plaintiff built a house on the property, the easement would not destroy the hostile use argument.  But it is not clear to the court that such is the case.  It could be that plaintiff can plead around this one, but the current complaint does not do so.

The court need not, and does not, address plaintiff’s claim of exclusive use.  There are issues there, such as defendant’s argument that the use could not have been exclusive because of the easement.  But the court need not go there because, frankly, the timeliness issue seems insurmountable and for present purposes, so does hostile use.

The bottom line is that the demurrer is SUSTAINED.  The court will give plaintiff leave to amend because it is almost reversable error not to do so.  But if plaintiff does choose to amend, plaintiff will need to demonstrate timely payment or, in the next round of briefing, find some much, much stronger legal authority as to why taxes paid years late are “timely” within the statute’s meaning.  Plaintiff should also address the hostile use issue and ought to be prepared to deal with the other arguments.  Plaintiff will have 30 DAYS’ LEAVE TO AMEND.

This disposes of the first and second causes of action.  However, the third cause of action is different.  It is for unjust enrichment.  While the court understands defendant’s argument about taxes paid for periods before defendant owned the property, the court need not and does not address that issue.  It is enough that at least some of the taxes are for the period when defendant did own the property.  The court is not prepared to say that plaintiff’s payment of those taxes did not unjustly enrich the defendant, who presumably therefore did not have to pay property tax on property defendant owned.  And because a demurrer must go to an entire cause of action, that is enough to require that the demurrer to the third cause of action be OVERRULED.