Judge: Mel Red Recana, Case: 23STCV04730, Date: 2024-07-03 Tentative Ruling
Case Number: 23STCV04730 Hearing Date: July 3, 2024 Dept: 45
Hearing Date: July
3, 2024
Moving Party: Defendant
J M Dell, LLC
Responding
Party: Plaintiff Hollywood
Investments LLC
Motion for Judgment on the Pleadings
The court has
considered the moving, opposition, and reply papers.
The motion for
judgment on the pleadings is GRANTED with leave to amend within 20 days.
Background
On
March 3, 2023, plaintiff Hollywood Investments LLC (“Plaintiff”) filed this
action against defendants J M Dell LLC (“Defendant”) and Does 1 through 20,
asserting causes of action for (1) quiet title (equitable easement) and (2)
declaratory relief.
This
action concerns two properties: 2239 Alcyona Drive, Los Angeles, CA 90068
(“Alcyona Property”) and 6339 Ivarene Avenue Drive, Los Angeles, CA 90068 (the
“Ivarene Property”).
The
Complaint alleges the following in relevant part.
On
or about December 27, 2022, Plaintiff acquired the Alcyona Property (the
Complaint refers to it as the “Hollywood Property”) from Plaintiff’s principal,
Kim Oanh Pham (“Pham”). (Compl., ¶¶ 5, 6.) Pham had acquired the Alycona
Property via a grant deed record on June 1, 2022. (Compl., ¶ 6.)
On
July 11, 2022, Defendant acquired the Ivarene Property (referred to as the “J M
Dell Property” in the Complaint) from its principal, Laura Siegel Larson
(“Larson”), via a quitclaim deed. (Compl., ¶ 13.) Larson had acquired the
Ivarene Property through a grant deed record on April 5, 2017. (Compl., ¶ 14.)
In
October 2022, Pham received a survey of the Alcyona Property and, for the first
time, learned of its encroachments onto other properties, including the Ivarene
Property. (Compl., ¶ 18.)
Those
encroachments included a landing, three retaining walls, a concrete parking pad
structure, a portion of the storage area to the main house, and a large portion
of the structure of the back house (collectively, the “Encroachments”).
(Compl., ¶ 18.) On or about October 20, 2022, Pham’s hired contractors started
working on the landing and three retaining walls, which were falling over and
dangerous to the owner of the property on which the walls sat. (Compl., ¶ 19.)
While Pham’s contractors were doing their work, the sons of Larson told Pham to
tell their contractors not to work on their land and cease work. (Compl., ¶
19.) After Pharm explained the dangerous condition, the sons agreed to let Pham
finish the job. (Compl., ¶ 19.)
Defendant is
threatening to build a chain link fence along the property line between the
Alycona and Ivarene Properties, which will block Plaintiff’s access to the
Encroachments. (Compl., ¶ 20.)
On May 28, 2024,
Defendant filed the instant motion for judgment on the pleadings, arguing that
based on matters that can be judicially noticed, Plaintiff is not entitled to
any equitable easement over the Ivarene Property because Plaintiff’s predecessor
(through a quit claim deed) released all easement rights, including for any
equitable easement, over the Ivarene Property (a fact that Plaintiff has
admitted, repeatedly, in another pending lawsuit).
On June 20,
2024, Plaintiff filed its opposition, arguing (among other things) the
following. The parties’ predecessors executed the quitclaim deed. Those
predecessors were involved in litigation. As part of the resolution of that
litigation, the predecessors signed the quitclaim deed in favor of Defendant’s
predecessors. However, the predecessors’ intent in executing the deed
(including whether they intended to release all easements) should be determined
at trial. Moreover, the sine qua non of a claim for equitable easement
is the acknowledgement, implicit or explicit, that the plaintiff does not have
any legally enforceable interest in the property requested to be burdened.
Here, Plaintiff acknowledges it does not have an express easement over Defendant’s
property, and that is why it is asking the Court to create an equitable
easement. Defendant has not cited any law supporting the idea that the
Complaint should be dismissed given the facts of this case.
On June 26,
2024, Defendant filed its reply, contending the following (among other things).
Plaintiff filed another action against its predecessor, Dr. Jackson Leroy
Underwood, Los Angeles Superior Court Case Number 23STCV12295 (the “Underwood
Lawsuit”). In that lawsuit, Plaintiff repeatedly alleges both the scope of the
quitclaim deed and Underwood’s “intent” in executing it. For example, in Paragraph
24(a) of the original complaint in the Underwood Lawsuit, Plaintiff alleges: “Mr.
Underwood had executed a Quitclaim Deed on July 10, 2013, to remove or release
the [Alcyona] Property’s easement rights with respect [to] any encroachments
onto the neighboring property owned by Ms. Larson.’ (See Exhibit No. ‘10’ to
Defendant’s Request For Judicial Notice.)” (Reply, p. 3:13-19 [emphasis
removed].) Plaintiff repeated those allegations in its first amended complaint
filed in the Underwood Lawsuit. Therefore, Plaintiff has admitted in its
pleadings in the Underwood Lawsuit that Underwood’s “intent” in executing that Quitclaim
Deed was to release the Alcyona Property’s easement rights with respect to “any
encroachments” encroaching onto the Ivarene Property. Because Plaintiff is
bound by its “factual admission” in the Underwood Lawsuit regarding Underwood’s
prior release of all easement rights over the Ivarene Property for any
encroachments, then, according to case law, the Court can disregard Plaintiff’s
claim in this lawsuit, which allege that Plaintiff has satisfied all of the
elements necessary for an equitable easement for the Encroachments.
Jury trial is
set for August 11, 2025.
Legal
Standard
A defendant’s motion for judgment on the
pleadings may be made after the time to demur has expired, and an answer has
been filed. (CCP § 438(f).) A motion by a defendant may be made on the grounds
that (1) the court “lacks jurisdiction of the subject of one or more of the
causes of action alleged” or (2) the complaint or cross-complaint “does not
state facts sufficient to constitute a cause of action against that defendant.”
(CCP § 438(c).)
A motion for judgment on the pleadings has
the same function as a general demurrer but is made after the time for demurrer
has expired. Except as provided by statute, the rules governing demurrers
apply. (See Cloud v. Northrop Grumman
Corp. (1998) 67 Cal.App.4th 995, 999.) “A motion for judgment on the
pleadings is akin to a general demurrer; it tests the sufficiency of the
complaint to state a cause of action. [Citations.] The court must assume the
truth of all factual allegations in the complaint, along with matters subject
to judicial notice.” (See Wise v. Pacific
Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.)
Like a general demurrer, “ordinarily, a
[motion for judgment on the pleadings] does not lie as to a portion of a cause
of action, and if any part of a cause of action is properly pleaded, the
[motion] will be overruled.” (Fire Ins.
Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) In considering
a motion for judgment on the pleadings, courts consider whether properly pled
factual allegations—assumed to be true and liberally construed—are sufficient
to constitute a cause of action. (Stone
Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th
109, 116.)
“Whether a motion for judgment on the
pleadings should be granted with or without leave to amend depends on ‘whether
there is a reasonable possibility that the defect can be cured by amendment....’
[Citation.] When a cure is a reasonable possibility, the trial court abuses its
discretion by not granting leave to amend and a reviewing court must reverse.”
(Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)
Discussion
Meet and Confer
CCP § 439(a) states, in relevant part: “Before
filing a motion for judgment on the pleadings . . . the moving party shall meet
and confer in person or by telephone with the party who filed the pleading that
is subject to the motion for judgment on the pleadings for the purpose of
determining if an agreement can be reached that resolves the claims to be
raised in the motion for judgment on the pleadings.”
CCP § 439(a)(3)
provides: “The moving party shall file and serve with the motion for judgment
on the pleadings a declaration stating either of the following: [¶] (A) The
means by which the moving party met and conferred with the party who filed the
pleading subject to the motion for judgment on the pleadings, and that the
parties did not reach an agreement resolving the claims raised by the motion
for judgment on the pleadings. [¶] (B) That the party who filed the pleading
subject to the motion for judgment on the pleadings failed to respond to the
meet and confer request of the moving party or otherwise failed to meet and
confer in good faith.”
Defendant’s
counsel testifies he met and conferred with Plaintiff’s counsel via telephone
on May 21, 2024. (Motion, Declaration of Daniel J. Enowitz, ¶ 4.)
The court finds
that the meet and confer requirement has been satisfied.
Motion for Judgment on the Pleadings
Defendant moves
for judgment on the pleadings with respect to the first cause of action for
equitable easement and second cause of action for declaratory relief, arguing
that they fail to state facts sufficient to constitute a cause of action based
on matters subject to judicial notice. (CCP §
438(c)(1)(B)(ii).)
///
///
Request
for Judicial Notice
On
May 28, 2024, Defendant filed a request for judicial notice of various Los
Angeles County Record’s Office records (Exhibits 1, 2, 4, 5, 6, 7, 8, and 9)
and court documents (Exhibits 3, 10, 11, and 12).
The unopposed request for judicial notice is
GRANTED. (Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714,
718, fn. 3 [stating that a court “may take judicial notice of the existence,
facial contents, and legal effect of recorded documents and court records
(Evid. Code, §§ 452, subds. (c), (d), (h); [citations]) …”)].)
First
Cause of Action – Equitable Easement
Under the first
cause of action, Plaintiff seeks an equitable easement to allow the
Encroachments to remain to the extent those Encroachments are located in the
Ivarene Property. (Compl., ¶ 23.)
“The fundamental
law of easements provides that ‘an easement conveys rights in or over the land
of another. “An easement involves primarily the privilege of doing a certain
act on, or to the detriment of, another’s property.”’” (Thorstrom v.
Thorstrom (2011) 196 Cal.App.4th 1406, 1415 (“Thorstrom”) [italics
removed].)
“‘Easements may
be created by express words, by grant or reservation, usually by deed, by
implication (Civ. Code, § 1104) (usually involving division of land); by
necessity [citation] and by prescription (open and notorious use, continuous,
hostile to owner, exclusive and under claim of right). [Citation.]’
[Citation.]” (Thorstrom, supra, 196 Cal.App.4th at pp. 1415–1416.)
“In appropriate
cases in which the requirements for traditional easements are not present,
California courts have exercised their equity powers to fashion protective
interests in land belonging to another, sometimes referring to such an interest
as an ‘equitable easement.’ [Citations.]” (Tashakori v. Lakis (2011) 196
Cal.App.4th 1003, 1008 (“Tashakori”).)
“The trial court
may grant an equitable easement where the hardship to the party seeking the
easement is greatly disproportionate to the hardship caused to the servient
owner over whose property the easement is granted.” (Hinrichs v. Melton
(2017) 11 Cal.App.5th 516, 522 (“Hinricks”).)
“The ‘relative
hardship’ test helps courts assess whether to deny injunctive relief to a
property owner and instead grant an equitable easement to the encroaching user.”
(Tashakori, supra, 196 Cal.App.4th at p. 1009.)
According to
that test, “[t]o create an equitable easement, ‘three factors must be present.
First, the defendant must be innocent. That is, his or her encroachment must
not be willful or negligent. The court should consider the parties’ conduct to
determine who is responsible for the dispute. Second, unless the rights of the
public would be harmed, the court should grant the injunction if the plaintiff ‘will
suffer irreparable injury ... regardless of the injury to defendant.’ Third,
the hardship to the defendant from granting the injunction ‘must be greatly
disproportionate to the hardship caused plaintiff by the continuance of the
encroachment and this fact must clearly appear in the evidence and must be
proved by the defendant....’ [Citation.]’ [Citation.]” (Tashakori, supra,
196 Cal.App.4th at p. 1009.)
Here, Defendant
has submitted (as Exhibit 4 to its request for judicial notice) a quitclaim
deed (the “Quitclaim Deed”) it argues shows that Plaintiff’s predecessor
executed releasing all easements rights (equitable or otherwise) Plaintiff may
have over the Ivarene Property.
“Judicial
notice may be taken of ‘the fact of a document’s recordation, the date the
document was recorded and executed, the parties to the transaction reflected
in a recorded document, and the document’s legally operative language, assuming
there is no genuine dispute regarding the document’s authenticity. From
this, the court may deduce and rely upon the legal effect of the recorded
document, when that effect is clear from its face.’ [Citation.]” (Linda
Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC
(2015) 234 Cal.App.4th 166, 184 [emphasis added].)
Here, Plaintiff
does not dispute the authenticity of the Quitclaim Deed.
Therefore, the
court may take judicial notice of the legally operative language and legal
effect of the deed.
The Quitclaim
Deed states that for valuable consideration, Jackson Underwood, Ph.D. (“Dr.
Underwood”) grants and conveys to Nicole Duckett Fricke (“Fricke”), a married
woman, all of the grantors’ right, title, and interest in the Ivarene Property.
(RJN, Exhibit 4, Quitclaim Deed, p. 1.)
At the center of
the Quitclaim Deed is the following note preceded by two asterisks: “This deed
is being recorded for the sole purpose of releasing and extinguishing any claims
grantor or he or his affiliates might have had based on claims of easement and no
Documentary Transfer Tax is owed R&T Code 11911.” (RJN, Exhibit 4,
Quitclaim Deed, p. 1.)
Therefore, one
of the legal effects of the Quitclaim Deed was to release and extinguish any
claims Dr. Underwood and “his affiliates” may have based on claims of easement.
To the extent
there is ambiguity as to Dr. Underwood and Fricke’s intent in executing the
Quitclaim Deed, Defendant points to Plaintiff’s allegations in the Underwood
Lawsuit.
In that lawsuit,
Plaintiff attached a copy of the Quitclaim Deed to her original complaint as
Exhibit D and then alleged the following: “Mr. Underwood had executed a
Quitclaim Deed on July 10, 2013 to remove or release the Property’s easement
rights with respect any encroachments onto the neighboring property owned by Ms.
Larson. (See Quitclaim Deed, Ex. D hereto.)” (RJN, Exhibit 10 – a copy of the
original complaint in the Underwood Lawsuit, ¶ 24(a).) Plaintiff made the same
assertation in her motion for leave to file a first amended complaint in the
Underwood Lawsuit. (RJN, Exhibit 11 – the plaintiffs’ Motion for Leave to File
First Amended Complaint in the Underwood Lawsuit, filed on November 20, 2023, p.
4:15-21[“Approximately a third of the Property's rear structure is encroaching
on the neighbor’s property. Plaintiff discovered after the close of escrow that
Mr. Underwood had executed a Quitclaim Deed on July 10, 2013 to remove or
release the Property's easement rights with respect to this encroachment.
However, Mr. Underwood did not disclose this material fact prior to the close of
escrow. Plaintiff cannot obtain a building permit to fix the existing building violations
or improve the Property without the easement Mr. Underwood released. Plaintiff has
lost significant rental income and faces the potential forced removal of her
encroaching structure(s)”].) As Defendant points out, in its first amended
complaint filed in the Underwood Lawsuit, Plaintiff again asserted that the
Quitclaim Deed relinquished all easement rights. (
(RJN, Exhibit 12 – a copy of the first
amended complaint filed in the Underwood Lawsuit, ¶¶ 18(e) [“The Exempt Seller
Disclosure signed by the Underwood/Hilliard Defendants and
Rassool states there are no matters
affecting title, yet this is untrue in light of Mr. Underwood’s
execution of the Quitclaim Deed removing
or releasing the Property’s easement rights with respect [sic] any encroachments
onto the neighboring property owned by Ms. Larson”].)
“‘“Generally,
after an amended pleading has been filed, courts will disregard the original
pleading. [Citation.] [¶] However, an exception to this rule is found ... where
an amended complaint attempts to avoid defects set forth in a prior complaint
by ignoring them. The court may examine the prior complaint to ascertain
whether the amended complaint is merely a sham.” [Citation.] ... Moreover, any
inconsistencies with prior pleadings must be explained; if the pleader fails to
do so, the court may disregard the inconsistent allegations. [Citation.]
Accordingly, a court is “not bound to accept as true allegations contrary to
factual allegations in former pleading in the same case.” [Citation.]’
[Citations.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230
Cal.App.4th 336, 343 (“Larson v. UHS”).)
“This
exception applies not only to an amended pleading filed in the same action, but
also to the first pleading filed in a separate action: ‘Both trial and
appellate courts may properly take judicial notice of a party’s earlier
pleadings and positions as well as established facts from both the same case
and other cases. [Citations.] The complaint should be read as containing the
judicially noticeable facts, ‘even when the pleading contains an express
allegation to the contrary.’ [Citation.] A plaintiff may not avoid a demurrer
by pleading facts or positions in an amended complaint that contradict the
facts pleaded in the original complaint or by suppressing facts which prove the
pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts
that contradict the facts or positions that the plaintiff pleaded in earlier
actions or suppress facts that prove the pleaded facts false.
[Citation.]’ [Citation.]” (Larson v. UHS, supra, 230 Cal.App.4th at
p. 344, quoting Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th
857, 877 (“Cantu”) [original italics removed; underline emphasis added]).)
“‘“‘The
principle is that of truthful pleading.’” ... [Citation.] When the plaintiff
pleads inconsistently in separate actions, the plaintiff’s complaint is nothing
more than a sham that seeks to avoid the effect of a demurrer. [Citations.]
Under such circumstances, the court will disregard the falsely pleaded facts
and affirm the demurrer.’ (Cantu, supra, 4 Cal.App.4th at pp.
877–878 [citations].)” (Larson v. UHS, supra, 230 Cal.App.4th at
p. 344 [original italics removed; underline emphasis added]).)
“‘The sham
pleading doctrine is not “‘intended to prevent honest complainants from
correcting erroneous allegations ... or to prevent correction of ambiguous
facts.’” [Citation.] Instead, it is intended to enable courts “‘to prevent an
abuse of process.’” [Citation.]’ [Citation.]” (Larson v. UHS, supra,
230 Cal.App.4th at p. 344.)
Here, the court
finds that based on (1) Plaintiff’s allegations on the Underwood Lawsuit, (2) the
fact that the Quitclaim Deed states that the contracting parties entered into
the Quitclaim Deed “for the sole purpose of releasing and extinguish any claims
… [Dr. Underwood’a] affiliates might have had based on claims of easement …,” (3)
Plaintiff does not dispute that Pham and Plaintiff were Dr. Underwood’s
“affiliates” within the meaning of the Quitclaim Deed, and (4) an “equitable
easement” is a claim that Plaintiff “might have had” within the meaning of the
deed (because to award that type of easement to Plaintiff, the court would have
had to determine (among other things) that Plaintiff’s hardship is greatly
disproportionate to the hardship caused to Defendant), Plaintiff is not
entitled to an equitable easement.
Accordingly, the
motion is granted with leave to amend as to the first cause of action within 20
days.
Second
Cause of Action – Declaratory Relief
“A complaint for declaratory relief must
demonstrate: (1) a proper subject of declaratory relief, and (2) an actual
controversy involving justiciable questions relating to the rights or
obligations of a party.” (Brownfield v. Daniel Freeman Marina Hospital
(1989) 208 Cal.App.3d 405, 410 (“Brownfield”).)
“The ‘proper subjects’ of declaratory
relief are set forth in Code of Civil Procedure section 1060 and other
statutes. [Citation.]” (Brownfield, supra, 208 Cal.App.3d at p.
410.) “Code of Civil Procedure section 1060, which governs actions for
declaratory relief, provides: ‘Any person interested under a written instrument
..., or under a contract, or who desires a declaration of his or her rights or
duties with respect to another ... may, in cases of actual controversy relating
to the legal rights and duties of the respective parties, bring an original
action ... for a declaration of his or her rights and duties in the premises,
including a determination of any question of construction or validity arising
under the instrument or contract.’” (California Public Records Research,
Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 185.)
“The ‘actual controversy’ requirement
concerns the existence of present controversy relating to the legal rights and
duties of the respective parties pursuant to contract (Code Civ. Proc., §
1060), statute or order. [Citation.] Where the allegations of the complaint
reveal the controversy to be conjectural, anticipated to occur in the future,
or an attempt to obtain an advisory opinion from the court, the fundamental
basis of declaratory relief is lacking.” (Brownfield, supra, 208
Cal.App.3d at p. 410.)
In the second
cause of action for declaratory relief, Plaintiff seeks a judicial determination
regarding the parties’ respective rights, if any, to an equitable easement. (Compl.,
¶ 29.)
No controversy exists regarding
whether Plaintiff has an equitable easement over the Ivarene Property.
Accordingly, the motion is granted with
leave to amend as to the second cause of action within 20 days.
It is so
ordered.
Dated:
July 3, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court