Judge: Olivia Rosales, Case: 20NWCV00566, Date: 2022-08-09 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail  for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 20NWCV00566    Hearing Date: August 9, 2022    Dept: SEC

DOMINGUEZ v. AVALOS, et al.

CASE NO.:  20NWCV00566

HEARING:   8/9/22 @ 1:30 PM

JUDGE:  RAUL A. SAHAGAUN

 

#3

TENTATIVE RULING:

 

I.             Defendant Avalos’s motion for summary judgment and in the alternative summary adjudication to Plaintiff Dominguez’s first amended complaint is DENIED.

 

II.            Cross-Complainant Avalos’s motion for summary judgment or summary adjudication to cross-complaint is DENIED.

 

Opposing Party to give NOTICE.

 

 

This is a real property dispute between two adjoining land owners.  Defendant / Cross-Complainant Rosalba Avalos owns real property located at 7523 Muller Street, Downey California.  Plaintiff / Cross-Defendant Ruben Dominguez owns the adjoining property located at 7531 Muller Street, Downey California.  The property in dispute is a strip of land that is approximately 3 feet wide by 120 feet long that is located within Avalos’s property boundary line, and which borders Dominguez’s property. Dominguez built a fence (which was previously an unpermitted patio structure) that encroaches past the boundary line into Avalos’s property.

 

Dominguez alleges that he has been using the strip of land as a walkway and patio, and therefore, Dominguez claims he owns a prescriptive easement or owns the entire strip of land by adverse possession.  Dominguez’s First Amended Complaint (“FAC”) asserts causes of action for:

 

1.    Easement by Prescription

2.    Adverse Possession

3.    Trespass

 

Avalos’s Cross-Complaint alleges that Dominguez has trespassed on her property and created a nuisance by constructing an unpermitted structure that encroached past the boundary line into her property.  The Cross-Complaint asserts causes of action for:

 

1.    Nuisance

2.    TRO and Preliminary and Permanent Injunction

3.    Declaratory Relief

 

 

 

I.             MSJ/MSA as to the First Amended Complaint

 

Defendant Avalos moves for summary judgment or alternatively, for summary adjudication pursuant to CCP § 437c.

 

EVIDENTIARY RULINGS

 

Dominguez’s RJN 1-2 are granted.  RJN 3-4 are granted as to their existence, but not as to the truth of their content.

 

Dominguez’s Objections Nos. 1-21 are overruled.

 

Avalos’s Objections Nos. 1-2 to the exhibits are overruled.

 

Avalos’s Objections Nos. 1-2 to Cable Declaration are overruled.

 

Avalos’s Objection No. 1 to Fernandez Declaration is overruled.

 

Avalos’s Objection Nos. 1-20 to Dominguez Declaration are overruled.

 

STANDARD

 

A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (CCP § 437c(p)(2).) 

 

MERITS

 

Avalos contends that she is entitled to summary adjudication of Issues 1-3 in the First Amended Complaint.

 

ISSUES 1-2

 

1st cause of action for EASEMENT BY PRESCRIPTION:   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.  (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal. 3d 564, 570.)

 

“There are some circumstances in which the grant of an exclusive easement, which resembles or is nearly the equivalent of a fee interest, can be justified. Under a proper showing, the courts may recognize, for example, the socially important duty of a utility to provide an essential service, such as water or electricity.”  (Mehdisadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1306.)

 

Where an incorporeal interest in the use of land becomes so comprehensive as to supply the equivalent of ownership, and conveys an unlimited use of real property, it constitutes an estate, not an easement.  (Raab v. Casper (1975) 51 Cal. App. 3d 866, 876-877.)  “Achievement of that objective required proof and findings of the elements of adverse possession, not prescriptive use.”  (Id.)  Where the claim is adverse possession and not mere prescriptive use, payment of taxes for the statutory period is essential.  (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707; Mehdisadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305-1308.)

 

2nd cause of action for ADVERSE POSSESSION:  An action alleging adverse possession, "the burden is on the claimant to prove every necessary element:  1) possession must be by actual possession under such circumstances as to constitute reasonable notice to the owner; 2) It must be hostile to the owner's title; 3) the holder must claim the Property as his or her own under either color of title or claim of right; 4) Possession must be continuous and uninterrupted for 5 years; and 5) the holder must pay all the taxes levied and assessed upon the Property during the period."  (Dimmick v. Dimmich (1962) 58 Cal. 2d 417, 421; CCP § 325(b).)

 

Avalos submits the following evidence:

 

·        Avalos is the owner of the real property located at 7523 Muller Downey CA 90241.  (Defense Separate Statement (DSS) 1.)

·        The boundary line between the 7523 and the 7531 Muller Downey CA 90241 properties are depicted in the Boundary Survey in Exhibit 3, which is setback 3 feet from the Garage located on the 5231 Muller Downey CA 90241.  (DSS 2.)

·        The 7531 Muller Downey CA 90241 property has a 3-foot-wide pathway that runs alongside of the Garage that was being blocked by a fence on April 7, 2022.  (DSS 3.)

·        The structure has been demolished but there remains a fence blocking and excluding the Defendant Avalos from accessing the pathway.  (DSS 4.)

·        Dominguez cannot establish nonexclusive use of easement as there is no access to the pathway on the Avalos's property because Dominguez's fence excludes Defendant Avalos 100% access.  (DSS 5-6.)

·        The unpermitted patio structure in the violation of several Downey Municipal code and thus is illegal.  (DSS 7-8.)

·        Avalos has paid all the property taxes from October 23, 2013, to
the current date for the 7523 Muller Downey CA 90241 property.  (DSS 9-10.)

 

The court seeks clarification from Avalos.  In comparing the pictures to the Avalos’s separate statement, it appears that DSS 2-3 may contain numerical errors.

 

Avalos’s DSS 2 states that the boundary survey shows a “setback 3 feet from the Garage located on the 5231 Muller Downey CA 90241.”  Is “5231” a clerical error?  Based on Avalos’s Exhibit 4, the Garage that abuts the Disputed Strip appears to be located on “7523” Muller.  Should the boundary line be 3 feet from the 7523 Muller garage? 

 

Further, if the boundary line is 3 feet from the 7523 Muller garage, then is it not true that the pathway is within the 7523 Muller boundary line?  DSS 3 states that the “7531” Muller property has a 3-foot-wide pathway that runs alongside the Garage that was being blocked by a fence.”  Should DSS 3 state that the “7523” Muller property has a 3-foot-wide path that is blocked by a fence that is abutting from the “7531” property?

 

Assuming arguendo, that the above interpretation is accurate, the court will now analyze whether triable issues exist regarding Dominguez’s claims for a prescriptive easement and/or adverse possession.

 

Avalos contends that the prescriptive easement claim fails because Dominguez cannot establish nonexclusive use of easement because Dominguez's fence excludes Defendant Avalos 100% access to the pathway.  (DSS 5-6.)  The court finds triable issues exist.  Although the back portion of the Disputed Strip (once containing the patio, but now containing a fence) is not subject to a prescriptive easement since it blocks Avalos’s access, the front portion of the Disputed Strip was nonexclusive because it was not blocked by the patio or fence.  Thus, triable issues exist regarding whether the front portion is subject to a prescriptive easement. 

 

Additionally, Avalos contends that Dominguez has not paid taxes on the Disputed Strip (DSS 9-10), and as such, Dominguez’s claims for adverse possession and prescriptive easement fail.  However, in opposition, Dominguez submits evidence that he has paid all taxes on the Disputed Strip.  (Disputed DSS 9-10.)  Accordingly, the court also finds that triable issues exist regarding whether Dominguez paid any taxes on the Disputed Strip. 

 

Although Avalos argues that this evidence cannot be believed because it is based on Dominguez’s self-serving declaration, the declaration also contains assessments that were imposed after the purported patio improvement was made in the 1960s.  This evidence is enough to create a triable issue. 

 

To guide the parties at trial, in Raab v. Casper (1975) 51 Cal. App. 3d 866, 877, the trial court made a finding that defendants paid taxes on the improvement.  However, the appellate court found that this finding was in error.  The court held, “This finding is completely contradicted by the evidence. Both sides placed their county assessment notices in evidence.  These notices show that the affected parcels were assessed by the assessor's parcel numbers. There is no proof whatever that defendants' domestic grounds were assessed separately to defendants, divorced from the assessor's parcel comprising plaintiffs' property.” 

 

Triable issues therefore exist regarding whether the County Assessor assessed the improvement separately (as opposed to an assessment by the assessor’s parcel number), and the assessment was completely “divorced from the assessor’s parcel comprising of Plaintiff’s property.”  For example, was the taxes on Avalos’s parcel reduced by Dominguez’s increased assessment in the 1960s?  These are triable issues.

 

Summary adjudication of Issues 1-2 is DENIED.

 

ISSUE 3

 

3rd cause of action for TRESPASS:  The elements are:  1) Plaintiff's lawful possession or right to possession of real property; 2) defendant's wrongful, intentional, reckless or negligent act of trespass on the property; 3) plaintiff did not give permission for the entry or scope of permission was exceeded; and 4) damage to plaintiff caused by the trespass.  (5 Witkin Cal. Pro. (4th ed. 1997) Pleading §590; CACI 2000.)


Avalos submits the following evidence:

 

·        “At no time had I of my workers ever entered, set foot, or trespassed on Mr. Ruben Dominguez's Property located at7531 Muller Downey, CA 90241. My workers have never trespassed on Mr. Dominguez's Property because I supervise them while building a cinder block wall. I specifically told the workers to work from my side of the wall and not enter Mr. Ruben Dominguez's property.”  (Avalos Decl., ¶ 11; DSS 11.)

 

In opposition, Dominguez submits the following evidence:

 

·        In July 2020, Avalos erected a brick wall directly upon the front portion of the Disputed Strip.  (Disputed DSS 11.)

 

The court finds that triable issues exist regarding Dominguez’s claim of adverse possession over the Disputed Strip, and as such, triable issues exist regarding whether Avalos committed a trespass.

 

Accordingly, summary adjudication of Issue 3 is DENIED.

 

II.            MSJ/MSA as to the Cross-Complaint

 

Cross-Complainant Avalos moves for summary judgment or alternatively, for summary adjudication pursuant to CCP § 437c.

 

EVIDENTIARY RULINGS

 

Avalos’s RJN 1-5 are granted.

 

Dominguez’s RJN 1-2 are granted.  Dominguez’s RJN 3-4 are granted as to their existence, but not as to the truth of their content.

 

Dominguez’s Objections 1-17 are overruled.

 

Avalos’s Objections Nos. 1-2 to the exhibits are overruled.

 

Avalos’s Objections Nos. 1-2 to Cable Declaration are overruled.

 

Avalos’s Objection No. 1 to Fernandez Declaration is overruled.

 

Avalos’s Objection Nos. 1-20 to Dominguez Declaration are overruled.

 

 

STANDARD

 

A cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (CCP § 437c(p)(1).) 

 

MERITS

 

Avalos contends that she is entitled to summary adjudication of Issues 1-3 in the Cross-Complaint.

 

ISSUE 1

 

1st cause of action for NUISANCE:  In order to establish a Private Nuisance claim, Plaintiff must prove that: 1) Plaintiff owned the property; 2) Defendant, by acting or failing to act, created a condition or permitted a condition to exist that was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, unlawfully obstructed the free passage or use, in the customary manner; 3) Defendant’s conduct in acting or failing to act was intentional and unreasonable; 4) this condition substantially interfered with Plaintiff’s use or enjoyment of her land; 5) an ordinary person would reasonably be annoyed or disturbed by Defendant’s conduct; 6) Plaintiff did not consent to X-Defendant Defendant’s conduct; 7) Plaintiff was harmed; 8) Defendant’s conduct was a substantial factor in causing the harm; and 9) the seriousness of the harm outweighs the public benefit of Defendant’s conduct.  (CACI 2021 (2022); Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 261-262.

 

A nuisance is anything that is an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. Defendant’s conduct that produces the nuisance may be intentional, reckless, negligent or ultrahazardous.  (Tint v. Sanborn (1989) 211 Cal.App.3d 1225, 1228; Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306.) 

 

Avalos submits the following evidence:

 

·        Avalos is the owner of the subject real property located at 7523 Muller Downey CA 90241.  (Cross-Complainant’s Separate Statement (XCSS) 1; Avalos Decl., ¶ 2; Ex. 10.)

·        Dominguez created or permitted a condition to exist (i.e. the unpermitted patio) that was an obstruction to the free use of Avalos’s property.  (XCSS 2.)  The patio interferes with Avalos’s access to the sidewalk way of her own house. The unpermitted structure also has prevented her from constructing a permitted brick wall along her own property line. (Avalos Decl., ¶ 6; Ex. 3, Reyes Deposition, 19:8-25; Lopez Decl., ¶ 5, Ex. 9 Boundary Survey.)

·        Avalos did not consent to Dominguez’s conduct.  (XCSS 6.)

·        Avalos was harmed.  (XCSS 7.)

·        Dominguez’s conduct was a substantial factor in causing Avalos’s harm.  (XCSS 8.)

·        Dominguez violated Downey Municipal Code 110.1.1 (unpermitted Structures) and 105.1 (building permitted required).  (XCSS 10.)

·        The unpermitted structure caused damage to Avalos’s garage, requiring repairs in the amount of $3,375.00.  (Avalos Decl., ¶ 10, Lopez Decl., ¶ 6.)

·        The City of Downey Code enforcement Unit determined that Dominguez violated Municipal Codes 110.1.1 (Unpermitted Structures) and 105.1 (Building Permit Required). (Reyes Deposition. Ex. 5, 23:10-23 and Ex. 6, 23:24-24:23.)

 

In opposition, Dominguez submits the following evidence:

 

·        Dominguez was granted title to the Dominguez property in January 2013.  (Cross-Defendant’s Separate Statement (XDSS) 24.)

·        Avalos first received title to the Avalos Property on or about September 2013.  (XDSS 25.)

·        Avalos obtained the property with the same indicia of boundary conditions.  (XDSS 26.)

·        The disputed strip has been used continuously and exclusively by the Dominguez Property’s occupants since 1960.  (XDSS 28.)

·        The Disputed Strip was picked up as an assessment onto the Dominguez Property by the Los Angeles County Assessor on or about 1969 after the Disputed Strip was improved by Dominguez’s predecessors in the 1950s and 1960s.  (XDSS 29.)

·        Dominguez inherited the Disputed Strip’s conditions.  (XDSS 30-31.)

·        Avalos acquiesced to the Disputed Strip’s conditions for almost a decade.  (XDSS 32.)

·        The front portion of Disputed Strip was used as a walking path for over seven years.  (XDSS 33-39.)

·        Avalos erected a brick wall in July 2020, obstructing the walking path.  (XDSS 40.)

·        The back quarter portion of the Disputed Strip was fully engulfed by a structure and wall prior to Dominguez or Avalos possessing their respective properties.  (XDSS 47.)

·        The Downey permitting records and Los Angeles County Assessor records show that the Patio was erected in 1960.  (XDSS 48.)

·        The patio remains enclosed by a fence.  (XDSS 50.)

 

The court finds that triable issues exist regarding who owns the Disputed Strip, and therefore, triable issues exist regarding Avalos’s Nuisance claim.  (XCSS 1, XDSS 28-39; see also Issues 1-2 in the accompanying MSJ/MSA as to the FAC.)  Avalos presents evidence that the Disputed Strip is on her side of the boundary line (XCSS 1), while Dominguez presents evidence that Dominguez has been using the Disputed Strip continuously and openly, and paid taxes on the improvement (XDSS 28-39). 

 

Accordingly, summary adjudication of Issue 1 is DENIED.

 

ISSUE 2

 

2nd cause of action for TRESPASS:  The elements are:  1) Plaintiff's lawful possession or right to possession of real property; 2) defendant's wrongful, intentional, reckless or negligent act of trespass on the property; 3) plaintiff did not give permission for the entry or scope of permission was exceeded; and 4) damage to plaintiff caused by the trespass.  (5 Witkin Cal. Pro. (4th ed. 1997) Pleading §590; CACI 2000.)


Avalos submit evidence that Dominguez’s patio/fence encroached upon her side of the boundary line (XCSS 12-16).  In opposition, Dominguez presents evidence that he may have a claim of adverse possession over the strip (XDSS 28-39).

 

Accordingly, triable issues exist, and summary adjudication of Issue 2 is DENIED.

 

ISSUE 3

 

3rd cause of action for DECLARATORY RELIEF:

 

For the same reasons as in Issues 1-2, triable issues also exist regarding Issue 3 for Declaratory Relief.

 

Accordingly, summary adjudication of Issue 3 is DENIED.