Rita Watnick, et al. v. Eyal Abergel, et al.

DEMURRER TO FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendants Eyal Abergel and Binyamin Sasy

RESPONDING PARTY(S): Plaintiffs Rita Watnick and Michael Stoyla

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Rita Watnick and Michael Stoyla, as Trustees of the Watnick/Stoyla Revocable Trust, own real property in Beverly Hills. Plaintiffs’ property is downhill from real property currently owned by Defendants Eyal Abergel and Binyamin Sasy. Until about 1960, Plaintiffs’ and Defendants’ properties were a single parcel under common ownership. A dispute has now arisen over the property line between the two properties. Plaintiffs allege portions of their driveway, pool, and other fixtures lay partly on Defendants’ property. Plaintiffs’ allege Defendants have failed to maintain their property, causing damage to Plaintiffs’ property. Plaintiffs bring causes of action for (1) willful trespass, (2) negligence, (3) abatement of private nuisance, (4) prescriptive and equitable easement, (5) adverse possession, (6) reformation of deed, (7) quiet title, and (8) declaratory and injunctive relief.

Defendants now demurrer to each cause of action in the First Amended Complaint. Plaintiffs opposed.

TENTATIVE RULING:

Defendants’ Demurrer to the First Amended Complaint is OVERRULED in its entirety. 

Defendants are ordered to file an Answer to the FAC within 21-days of this ruling

Plaintiffs to give notice.

DISCUSSION:

Demurrer

I. Meet and Confer

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

III. Analysis 

A. Demurrer to First, Second, and Third Causes of Action

Defendants argue the First, Second, and Third causes of action are uncertain because they fail to allege the dates relevant to the claims, making it impossible to ascertain if the claims are timely within the applicable statute of limitations. 

“While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer. (United W. Med. Centers v. Superior Ct. (1996) 42 Cal. App. 4th 500, 505.) In that case, the defendant’s remedy “is to ascertain the factual basis of the contentions through discovery and, if necessary, file a motion for summary judgment to eliminate that cause of action should the facts reveal the claim is time barred.” (Id.) Moreover, “demurrers for uncertainty are disfavored,” and are strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.”  (Lickiss v. Fin. Indus. Regul. Auth. (2012) 208 Cal. App. 4th 1125, 1135.)  

Accordingly, Defendants’ Demurrer to the First, Second, and Third Causes of Action is OVERRULED.

B. Demurrer to Fourth Cause of Action for Prescriptive and Equitable Easement; Fifth Cause of Action for Adverse Possession; Seventh Cause of Action for Quiet Title

First, Defendants argue the Fourth, Fifth, and Seventh Causes of Action are uncertain because Plaintiffs have not “legally defined” the property or area(s) at issue. 

But here, reading the allegations liberally and in context (Taylor, supra, 144 Cal. App. 4th at 1228), Plaintiffs have alleged the approximate locations and descriptions of the properties and appurtenances sufficient to place Defendants on notice of the relief that Plaintiffs seek. (Lickiss, supra, 208 Cal. App. 4th at 1135 [“demurrers for uncertainty are disfavored”].)  Indeed, any remaining confusion or uncertainty as to the property line highlights the reason for this lawsuit. 

Second, Defendants argue the Fifth Cause of Action for adverse possession fails because Plaintiffs have not pled that they timely paid property taxes on the property. Under CCP section 325(b), a party seeking adverse possession must “have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.” 

Plaintiffs allege that “[f]rom at least 1983 to the present, including, but not limited to the five years prior to the filing of this complaint, Plaintiffs (and their predecessors) have paid all applicable taxes assessed on the Driveway Area and Pool Area.” (FAC ¶ 68.) 

While the pleading omits the word “timely,” Defendants’ have cited no authority stating the failure to do so is grounds for a demurrer. Similarly, Defendants cite no authority that the pleading itself must attach the certified records necessary to prove the claim. 

Accordingly, Defendants’ Demurrer to the Fourth, Fifth, and Seventh Causes of Action is OVERRULED.

C. Demurrer to Sixth Cause of Action for Reformation

First, Defendants argue the reformation cause of action is uncertain and outside the three-year statute of limitations. 

As discussed already in this ruling, the FAC is not uncertain, and the demurrer fails on this ground. 

The statute of limitations for reformation is three years. (See CCP § 338(d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Id.) “Under this rule constructive and presumed notice or knowledge are equivalent to knowledge. So, when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to [its] investigation (such as public records or corporation books), the statute commences to run.’ [Citation.]” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1525.)

Plaintiffs allege “in or about 1960,” the then-owner of the joint parcel divided the parcel into the two separate lots. (FAC ¶ 11.) But Plaintiffs also invoke delayed discovery by alleging they did not discover the dispute over the property line until they hired a surveyor in 2020. (Id. ¶¶ 20-23.) 

Relying on Civil Code section 1213, Defendants counter in reply that Plaintiffs had constructive notice of the boundary of the property by operation of the 1998 deed transferring the property to Plaintiff Rita Watnick. Under section 1213, “[e]very conveyance of real property or an estate for years therein acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees.” (Emphasis added.) 

Defendants’ argument fails because Plaintiff, as grantee of the 1998 deed, was not a “subsequent purchaser” of that deed. (See Berendsen v. McIver (1954) 126 Cal. App. 2d 347, 354 [“Section 1213 does not apply to a grantee of the particular deed recorded. The section provides for constructive notice to ‘subsequent purchasers and mortgagees’ only.”].) 

Therefore, transfer of that deed to Plaintiff did not give Plaintiff constructive knowledge of the purported errors. “The mere recording of an instrument is not notice of a mistake therein: for otherwise, as has been observed, no contract could be reformed after the lapse of three years from that date.” (Id.)

Accordingly, Defendants’ Demurrer to the Sixth Cause of Action is OVERRULED.

D. Demurrer to Eighth Cause of Action for Declaratory and Injunctive Relief

Plaintiffs have alleged declaratory and injunctive relief in a single cause of action. It is policy to emphasize substance over form when construing pleadings. (Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386.) Although pled in the same count as declaratory relief, this court construes the request for injunctive relief as a standalone remedy that is not subject to demurrer. “Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) 

As to declaratory relief, Defendants argue the cause of action is uncertain. As already discussed, that argument fails, as demurrers for uncertainty are disfavored. 

Accordingly, Defendants’ Demurrer to the Eighth Cause of Action is OVERRULED.

E. Sham-Pleading Doctrine

Finally, Defendants argue Plaintiffs’ First Amended Complaint violates the sham pleading doctrine because it alleges that the legal description of the property included in the Complaint is now believed to be incorrect. 

“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.]”  (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal. App. 4th 336, 344).  

Here, while Plaintiff’s new allegations in the FAC are inconsistent with those in the Complaint, the discrepancy was explained: 

In analyzing the declaration of a Fredrick Jones, a survey expert who submitted a declaration in support of the Abergel/Sasy Defendants’ Motion For Summary adjudication filed or about April 27, 2023, Plaintiffs’ counsel noticed certain irregularities in a survey map created by Mr. Jones that prompted Plaintiffs’ counsel to examine the legal descriptions set forth on Plaintiffs’ and Defendants’ acquiring deeds. Plaintiffs’ counsel ultimately learned that the legal descriptions on these deeds do not “close” (i.e., they do not begin and end at the same point), are inconsistent with each other, are inconsistent with the metes and bounds used in the 2020 survey, are inconsistent with the lot lines used by Defendants’ survey expert, are inconsistent with the legal descriptions of both subject parcels on the Los Angeles Tax Assessor’s website, and are inconsistent with the assumptions underlying certain allegations in Plaintiffs’ initial Complaint. Plaintiffs submit this Amended Complaint, in part, to correct their mistaken prior understanding of these legal descriptions as reflected in their prior pleading. 

(FAC ¶ 33.)

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.]” (Id.) Here, for pleadings purposes, this court construes the amendments as good faith modifications based on changing information. There is no abuse of process by allowing them.

Accordingly, the Demurrer fails on this ground.

Defendants’ Demurrer to the First Amended Complaint is OVERRULED in its entirety.

Defendants are ordered to file an Answer to the FAC within 21-days of this Ruling. 

Plaintiffs to give notice.

IT IS SO ORDERED.

Dated:   February 21, 2024 ___________________________________

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.