Judge Ralph C. Hofer, Case Number: 22GDCV00379, Date: 2023-10-27 Tentative Ruling

Plaintiff Jean Kechichian alleges that plaintiff owns a parcel of residential property located at 945 Flanders Road in La Canada, and that defendant Linda K. Lee owns an adjacent parcel of property located immediately to the north of plaintiff’s property. Plaintiff alleges that a dilapidated wooden fence between the two properties has for the past several years become rotted, broken apart and overgrown with vines and shrubbery, and has most recently begun sliding down a small incline onto plaintiff’s property.

The complaint alleges that when plaintiff looked into replacing the fence, he discovered that it had slid down from its original placement on the property line by approximately ten feet. After having a survey completed, plaintiff approached defendant and her husband about having the fence re-built on the property boundary line. Defendant refused and began planting vegetation and depositing construction debris on plaintiff’s property, and then began to verbally threaten and harass plaintiff, which caused plaintiff great distress and fear, as plaintiff is an elderly man.

Plaintiff alleges that when plaintiff decided to simply pay for the wall himself and hire contractors to construct it, defendant called the police, and that, rather than negotiating to work out a solution, defendant recently initiated construction of a new fence on plaintiff’s property.

The file shows that on July 7, 2022, the court, Judge Rosen presiding, heard an ex parte application for a temporary restraining order and OSC re preliminary injunction brought by plaintiff. The ex parte application was granted, and the court signed an order restraining defendant and persons acting with defendant from erecting or taking any steps toward erecting a fence or wall along the boundary or within 20 feet of the boundary with plaintiff’s property, including digging holes, pouring concrete, setting poles or installing fencing, depositing construction related debris on the property line, or planting vegetation in the disputed area between the properties.

On August 5, 2022, the court heard the OSC re preliminary injunction. The application for preliminary injunction was granted, and plaintiff ordered to post bond with the court by August 19, 2022. It does not appear that any bond has been posted, so evidently the preliminary injunction has dissolved automatically, pursuant to the court’s August 5, 2022 order, which provided, “If no bond is posted on or before 4:00 p.m. on August 19, 2022, the injunction will dissolve automatically.”

Under CCP § 437c(p)(1) a plaintiff “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 that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

ISSUE 1: Plaintiff’s first cause of action for Trespass may be summarily adjudicated in Plaintiff’s favor because Lee has acknowledged and admitted the trespass onto Plaintiff’s property and no issues of disputed material facts exist as to the cause of action

ISSUE 2: Plaintiff’s second cause of action for Private Nuisance may be summarily adjudicated in Plaintiff’s favor because Lee has acknowledged and admitted the elements of the alleged nuisance and no issues of disputed material facts exist as to the cause of action

ISSUE 3. Plaintiff’s third cause of action for Conversion may be summarily adjudicated in Plaintiff’s favor because Lee has acknowledged and admitted the elements of the alleged Conversion and no issues of disputed material facts exist as to the cause of action

The elements of a cause of action for trespass are: Plaintiff’s lawful possession or right to possession as owner or otherwise of described property; Defendant’s wrongful act of trespass thereon; proximately causing damage to plaintiff or the property. Morgan v. French (1948) 70 Cal.App.2d 785, 787.

The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant’s substantial and unreasonable interference with the comfortable enjoyment of the property; separate and ongoing acts by defendant constituting nuisance; and past and future damages. Kafka v. Bozio (1923) 191 Cal.746; Alonso v. Hills (1950) 95 Cal. App.2d 778; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668.

To establish a cause of action for conversion, plaintiff must prove the following elements: Ownership, or right to possession of property; wrongful disposition of property right; and damages. Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355.

To recover damages based on a cause of action for Intentional Infliction of Emotional Distress, plaintiff must establish the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; and damages. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.

For each of these causes of action, plaintiff in the FAC seeks damages. The first cause of action for trespass seeks damages in multiple paragraphs. [FAC, paras. 29, 31, 31, 34]. The cause of action also expressly seeks “exemplary and punitive damages because of Defendants’ actions in an amount to be proven at time of trial.” [FAC, para. 31].

The third cause of action for conversion indicates that plaintiff has demanded that defendants vacate his land, “and pay damages for their unlawful use,” and alleges that as a result of the alleged conversion, “Plaintiff suffered harm, in an amount to be determined at trial.” [FAC, paras. 42, 43].

Similarly, the fourth cause of action for IIED alleges that due to defendant’s actions, plaintiff suffered mental anguish, emotional and physical distress, “and has been injured in mind and body as follows: damages in the sum to be determined at trial based on proof.” [FAC, para. 46].

“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 that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

In Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, the Second District held that where damages are an element of a cause of action, a plaintiff cannot obtain judgment on such a cause of action, “in an amount of damages to be determined later.” Paramount Petroleum, at 241. Accordingly, summary judgment or adjudication are improper where “the issue of calculation of damages apparently remain to be determined.” Paramount Petroleum, at 243, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) 10:40.1.

“Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., § 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) ¶ 10:40.1, p. 10-17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., § 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.

The trial court in Department of Industrial Relations had apparently ordered appellant in that case to move for summary judgment on the issue of liability, with damages to be determined in a later accounting procedure, which the court of appeal found improper under the summary judgment statute in effect at the time. Id.

“(t) Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

(2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.

(3) If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

(4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: “This motion is made pursuant to subdivision (t) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.”

No such stipulation was filed or court determination was obtained here, and the notice does not conform with this subdivision. The motion accordingly is improperly made for “partial” summary judgment or adjudication, as the essential element of damages is not established by plaintiff, and punitive damages cannot be determined on summary adjudication as a matter of law.

In addition, defendant has briefly argued that with respect to the conversion cause of action that plaintiff has failed to show that defendant converted any personal property. This conclusion also appears to be the case, and it is held that there can be no conversion of real property, only of personal property. See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295 (“The tort of conversion applies to personal property, not real property. (5 Witkin, Summary of Cal. Law, supra, Torts, § 699, p. 1023.)”). The conversion cause of action fails on this additional ground.

The section requires the “filing” of a “petition for orders under this section,” in order to obtain a temporary restraining order, permits the respondent to file a response, or a cross-petition, and provides for the conduct of a hearing, at which “the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an order shall issue prohibiting the harassment.” Civil Code section 527.6 (d), (h), and (i).

The moving papers fail to establish that the statutory procedures have been followed, or, indeed, that a separate cause of action under this Civil Code section exists apart from the relief which may be provided only upon petition under that section. The moving papers advance as an undisputed material fact that “Lee began to verbally threaten and harass plaintiff.” [UMF No. 8, and evidence cited, Kechichian Decl., paras. 9-10]. There are no allegations showing compliance with the statutory scheme upon which the FAC relies. Plaintiff has accordingly failed to meet the initial burden on the motion as to this cause of action, and the motion will be denied.

This court has doubts whether a cause of action exists in this separate civil proceeding, or whether this court could conduct the “hearing” authorized by the section as part of this action. It would appear that if plaintiff wants to pursue the remedies under Civil Code section 527.6, plaintiff would have to file an appropriate petition for a temporary restraining order in a separate proceeding. This cause of action appears to be one which should properly be withdrawn by plaintiff, as not actionable in this civil action as a matter of law. Plaintiff should be mindful that under CCP section 438 (b)(2), the “court may upon its own motion grant a motion for judgment on the pleadings.”

ISSUE 6. Plaintiffs sixth and seventh causes of action for Declaratory and Injunctive Relief, respectively, can be summarily adjudicated in Plaintiff's favor because the evidence establishes an actual controversy that exists between the parties and no issues of disputed facts exist as to the requested declaratory and injunctive relief sought by Plaintiff

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property,... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

To establish a claim for injunctive relief in equity, plaintiff must plaintiff must establish: A wrongful act; and grounds for equitable relief (remedy inadequate at law), consisting of irreparable injury, actual or threatened, or threatened multiplicity of suits. Porters Bar Dredging Co. v. Beaudry (1911) 15 Cal.App.751, 760; McPheeters v. McMahon (1933) 131 Cal.App. 418.

The FAC in connection with the sixth cause of action for declaratory relief alleges that an actual controversy has arisen between plaintiff and defendants “as to their respective rights as they relate to the property lines between them,” that plaintiff alleges “that his property line is properly drawn pursuant to the attached Survey (Exhibit A),” that defendant disputes plaintiff’s contentions, and requests:

“Plaintiffs contentions set forth in this Cause of Action. A declaratory judgment determining that Plaintiffs property line is property [sic] drawn pursuant to the attached Survey will help the Parties to replace and repair the retaining wall between their two properties.”

The cause of action for injunctive relief alleges that the piles of construction debris on plaintiff’s property and the erosion and movement of the unsightly retaining wall have created a nuisance, that unless enjoined defendants will continue this conduct, and that no adequate remedy exists at law. [FAC paras. 57-59].

When plaintiff investigated replacing the fence, he obtained a survey of the property and discovered that the fence had been sliding down from its original placement on the property line by approximately ten feet onto plaintiff’s property. [UMF No. 5, and evidence cited, Kechichian Decl., para. 2-3; RFJN, Ex. 2, FAC, Ex. A]. The Deputy County Surveyor for the County of Los Angeles reviewed and examined the Survey and confirmed the determination of the legal boundary lines. [Kechichian Decl., para. 5; RFJN, Ex. 2, FAC, Ex. A].

The survey submitted with the moving papers shows the survey was conducted on September 30, 2013, by a Licensed Land Surveyor, setting forth the property line at page 2, and that the record was examined and filed by the Deputy County Surveyor on October 16, 2013. [RFJN, Ex. 2, FAC, Ex. A].

Plaintiff also submits evidence that after having the survey completed, plaintiff approached defendant about having the fence rebuilt on the property line, but defendant refused to cooperate, and when plaintiff decided to pay for the fence himself and hire contractors to construct it, defendant called the police, who showed up in the middle of the night. [UMF Nos. 7, 10, and evidence cited, Kechichian Decl., paras. 7-10, 15-16].

Plaintiff also shows that defendant, instead of cooperating with plaintiff, hired contractors who initiated construction on a new fence on plaintiff’s property shortly before plaintiff could obtain a restraining order against defendant, which was subsequently obtained. [UMF No. 12, and evidence cited, Kechichian Decl., para. 17-19; RFJN Ex. 7].

Plaintiff also submits evidence showing that plaintiff has acknowledged in a declaration in opposition to plaintiff’s motion for a preliminary injunction in this matter that the fence was in fact constructed on plaintiff’s property. [UMF No. 13, and evidence cited, RFJN, Ex. 6. Lee Decl., paras. 11, 12].

Specifically, defendant states in her sworn declaration that in June of 2022, she informed plaintiff that she would be erecting, “a new fence to replace the one he removed and destroyed in the exact same location where the predecessor fence stood,” and that construction was begun on “the new perimeter fence using the same footing as its predecessor,” which was finalized on July 6, 2022, the day before the ex parte TRO was heard. [RFJN, Ex. 6, Lee Decl., paras. 11, 12].

This showing is sufficient to meet plaintiff’s initial burden of obtaining a declaration concerning the location of the property line, and that defendant has built a wall which is on plaintiff’s side of the boundary line, which structure clearly interferes with plaintiff’s use of plaintiff’s property as designated by the property line.

Defendant in opposition to the motion on this issue does not dispute this evidence, and the separate statement does not for the most part explain why certain statements are disputed, citing only to evidence, and stating in response to UMF Nos. 1 and 13 that plaintiff’s property is subject to an equitable easement. Defendant argues that defendant’s acts were justified and privileged because defendant has an equitable easement, and whether an equitable easement exists inherently involves a disputed question of fact.

Defendant does not argue in the opposition memorandum that defendant has obtained an easement by grant, or by adverse possession, but depends solely on this theory of an equitable easement having arisen to protect the construction of the fence and other encroachments on plaintiff’s property created and maintained by defendant.

Plaintiff relies on Harrison v. Welch (2004) 116 Cal.App.4th 1084, in which the court of appeal reviews the case law on this subject and concludes that in a case like the one presented here, with a boundary border dispute between neighbors, the easement holder cannot prevent the title holder from using his property:

The court of appeal in Harrison further observed that an encroaching substantial structure, “just as much as any encroaching fenced-in landscaping, ‘as a practical matter completely prohibits the true owner from using his land.’” Harrison, at 1093, quoting Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564. This ruling suggests that here the fence most certainly, and likely the landscaping on plaintiff’s side of the border which defendant also evidently seeks to protect, would be subject to this limitation.

Plaintiff also relies on Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564, relied upon and quoted in Harrison, in which the court of appeal reversed a trial court judgment finding on a complaint for declaratory relief brought by property owners against their neighbors that the trial court had erred in finding that defendants had established an exclusive prescriptive easement for an enclosed yard.

“The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one. An easement, after all, is merely the right to use the land of another for a specific purpose—most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate. To permit Abramson to acquire possession of Silacci's land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real property law between ownership and use. The trial court's order here amounted to giving Silacci's land completely, without reservation, to Abramson. This the court did, using the term “exclusive prescriptive easement,” an unusual doctrine which does not apply.”

Here, any equitable easement claimed by defendant in connection with the construction and placement of the current fence, in this simple backyard dispute, would completely prevent plaintiff from using what is conceded as plaintiff’s own land, awarding an exclusive easement, and cannot be recognized in this action to the extent it would be exclusive. As a matter of law, defendant has failed to raise triable issues of material fact on the declaration sought by this motion.

Defendant has accordingly failed to raise triable issues of material fact with respect to a declaration concerning 1) the proper designation of the property line, and 2) that the wall as it is currently constructed, unquestionably on plaintiff’s land, can be properly ordered removed pursuant to such a declaration and injunctive relief.

The court declares that the proper designation of the property line is that set forth in the Corner Record, Document Number 1917, prepared on 09/30/2013, and examined and signed by the Deputy County Surveyor on October 16, 2013, as set forth at page 2]. The court also declares that the current fence, located on plaintiff’s property pursuant to the survey and the acknowledgement of the parties, is subject to removal.

The court in making this declaration does not foreclose defendant from pursuing arguments concerning an equitable easement in connection with any placement of a new border wall between the parties to be determined in connection with the remaining causes of action in both the complaint and cross-complaint. The court makes no orders concerning the replacement of the wall between the properties, or its appropriate placement pending resolution of the factual issues remaining on that issue.

A court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498. Where only certain claims or defenses are raised, the court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

There is no mention of this argument as an issue, the issue is not set forth in the separate statement, and no facts are offered in support of such an issue in the separate statement. Defendant has objected on this ground. The memorandum also fails to specify which of the specific elements of the causes of action cannot be established by cross-complainant to meet moving party’s initial burden as a cross-defendant on a motion for summary adjudication.

Under CCP § 437c(p)(2) a cross-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 that cause of action.”

The motion accordingly is not considered with respect to the cross-complaint, which will remain to be adjudicated in this action, including on the issue of whether an equitable easement can be established by defendant as cross-complainant which would not fully prevent plaintiff from access to his property.

Motion is DENIED. Plaintiff has failed to meet his initial burden of proving each element of the first through fourth causes of action entitling plaintiff to judgment on the causes of action, as plaintiff does not address the essential elements of damages, and so fails to shift the burden to defendant to raise triable issues of material fact. The motion fails to dispose of any entire cause of action, as required under CCP § 437c(f) (“a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”). The motion instead seeks a determination only as to liability, without citing any legal basis for seeking such relief and without complying with CCP § 437c(t) by filing the required stipulation and obtaining a determination by the court permitting the filing of a motion for summary adjudication on an issue which does not dispose of an entire cause of action. The cause of action for trespass also expressly seeks punitive damages, which cannot be awarded on summary judgment, and the cause of action for conversion is not supported by an initial showing by plaintiff that defendant allegedly converted anything other than real property, which is not the proper subject of a conversion cause of action.

The fifth cause of action seeks relief under Civil Code section 527.6, without plaintiff making any showing that the procedural requirements for pursuing such a claim have been satisfied by plaintiff, or that the claim can be legally pursued in a separate civil action such as this one.

The moving papers establish that the property line between the properties is properly reflected in the survey conducted by plaintiff. Specifically, plaintiff indicates that a wooden fence between the properties had become rotted, broken apart and overgrown with vegetation, and in recent years began to subside down a small incline onto plaintiff’s property. [UMF nos. 3, 4, and evidence cited, Kechichian Decl., paras. 2, 3]. When plaintiff investigated replacing the fence, he obtained a survey of the property and discovered that the fence had been sliding down from its original placement on the property line by approximately ten feet onto plaintiff’s property. [UMF No. 5, and evidence cited, Kechichian Decl., para. 2-3; RFJN, Ex. 2, FAC, Ex. A]. The Deputy County Surveyor for the County of Los Angeles reviewed and examined the Survey and confirmed the determination of the legal boundary lines. [Kechichian Decl., para. 5; RFJN, Ex. 2, FAC, Ex. A]. The Survey was conducted on September 30, 2013, by a Licensed Land Surveyor, setting forth the property line at page 2, and the record was examined and filed by the Deputy County Surveyor on October 16, 2013. [RFJN, Ex. 2, FAC, Ex. A].

Plaintiff also submits evidence that after having the survey completed, plaintiff approached defendant about having the fence rebuilt on the property line, but defendant refused to cooperate, and actively interfered in plaintiff’s efforts to pay for and construct a fence on the property line himself. [UMF Nos. 7, 10, and evidence cited, Kechichian Decl., paras. 7-10, 15-16].

Defendant instead hired contractors who constructed a new fence where the previous fence had been located, which defendant recognizes and acknowledges was on plaintiff’s property according to the property line established by the Survey. [UMF Nos. 12, 13, and evidence cited, Kechichian Decl., para. 17-19; RFJN Exs. 6, 7; Lee Decl., paras. 11, 12].

This showing is sufficient to meet plaintiff’s initial burden of obtaining a declaration concerning the location of the property line, and that plaintiff has built a wall which is on plaintiff’s side of the boundary line, which structure clearly interferes with plaintiff’s use of plaintiff’s property as designated by the property line.

To the extent defendant briefly argues that triable issues of fact remain concerning the existence of an equitable easement in favor of defendant, under the facts of this case, such an easement would necessarily constitute an exclusive easement, precluding the owner of the property on which the fence has been constructed from the use of his property, which is not legally permissible in a case of this nature. See Harrison v. Welch (2004) 116 Cal.App.4th 1084, (an exclusive easement, “which as a practical matter completely prohibits the true owner from using his land will not be granted in a case… involving a garden-variety residential boundary encroachment.”) Harrison, at 1093, quotation, footnote omitted; Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564 (“The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one.”)

Here, any equitable easement claimed by defendant here in connection with the construction and placement of the current fence, in this simple backyard dispute, would completely prevent plaintiff from using what is conceded as plaintiff’s own land, awarding an exclusive easement, and cannot be recognized in this action to the extent it would be exclusive. As a matter of law, defendant has failed to raise triable issues of material fact with respect to a declaration concerning 1) the proper designation of the property line, and 2) that the wall as it is currently constructed, unquestionably on plaintiff’s land, can be properly ordered removed pursuant to such a declaration and injunctive relief.

The Court accordingly grants the motion on the stated issue and declares that the proper designation of the property line is that set forth in the Corner Record, Document Number 1917, prepared on 09/30/2013, and examined and signed by the Deputy County Surveyor on October 16, 2013, as set forth at page 2]. The Court also declares that the current fence, located on plaintiff’s property pursuant to the survey and the acknowledgement of the parties, is subject to removal.

Plaintiff’s UNOPPOSED Request for Judicial Notice Filed in Support of Plaintiff’s Motion for Summary Judgment or, In the Alternative, Motion for Summary Adjudication is GRANTED. As to Court records, the Court takes judicial notice as permitted under Day v. Sharp (1975) 50 Cal.App.3d 904:

“A court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”