Judge: Robert B. Broadbelt, Case: 22STCV20785, Date: 2024-02-06 Tentative Ruling

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Case Number: 22STCV20785    Hearing Date: February 6, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Gregg Buskett, Trustee of the Gregg Buskett 2011 Revocable Trust dated July 28, 2011

RESPONDING PARTY:       Plaintiff Shahrooz Abootalebi

Motion for Summary Judgment or, in the Alternative, Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendant Gregg Buskett, as trustee of the Gregg Buskett 2011 Revocable Trust dated July 28, 2011 (“Defendant”) moves the court for an order granting summary judgment in favor of Defendant and against plaintiff Shahrooz Abootalebi (“Plaintiff”) on Plaintiff’s First Amended Complaint or, in the alternative, granting summary adjudication in favor of Defendant and against Plaintiff on the first through fifth causes of action.

1.     First Cause of Action for Nuisance

“Anything which is . . . an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.”  (Civ. Code, § 3479.)  A plaintiff asserting a cause of action for private nuisance must prove three elements.  “First, the plaintiff must prove an interference with his use and enjoyment of its property.  Second, the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage.  Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.”  (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176 [emphasis in original].)

The court finds that Defendant has not met his burden of showing that the first cause of action for nuisance has no merit because Defendant has not shown that the element of Defendant’s interference with Plaintiff’s property cannot be established.

Defendant contends that the pine tree that is the subject of this action is a “line tree” and, therefore, is the common property of both Plaintiff and Defendant, such that Plaintiff’s cause of action for nuisance is based on “his own action” and conduct in creating the nuisance.  (Mot., p. 9:7-12; FAC ¶ 15 [alleging that the presence of branches and roots, and Defendant’s failure to maintain the branches and roots of the pine tree, constitute a nuisance].)  Thus, Defendant contends that Plaintiff cannot establish the element of an affirmative act of interference with his property by Defendant.  (Mot., p. 7:21-23 [“Plaintiff’s nuisance claim has no merit because nuisance requires an affirmative act by Defendant”]; Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 [“Although the central idea of nuisance is the unreasonable invasion of this interest and not the particular type of conduct subjecting the actor to liability, liability nevertheless depends on some sort of conduct that either directly and unreasonably interferes with it or creates a condition that does so”].)  The court disagrees.

“Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.”  (Civ. Code, § 833.)  Conversely, “[t]rees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.”  (Civ. Code, § 834; Russell v. Man (2020) 58 Cal.App.5th 530, 537 [a line tree is “a tree on the boundary line between two pieces of property”].) 

Defendant has submitted the declaration of a land surveyor, Chris Nelson, in which Nelson attests that “[t]he trunk of the pine tree that is [the] subject of Plaintiff’s Complaint stands partly on the land of both Plaintiff and Defendant’s property.”  (Nelson Decl., ¶ 7; Nelson Decl., Ex. G [Nelson’s site survey].)  Thus, Defendant has submitted evidence showing that the subject tree belongs to Plaintiff and Defendant in common.  (Civ. Code, § 833.)  However, Defendant has not cited legal authority establishing that, if the subject tree is a line tree, Defendant cannot be found to have interfered with, or permitted the interference with, the use and enjoyment of Plaintiff’s property.  The court therefore finds that Defendant has not shown that Plaintiff cannot establish that Defendant interfered with Plaintiff’s property.

Further, even if Defendant had met his burden to negate the element of interference, the court finds that Plaintiff has shown the existence of a triable issue of material fact as to this issue.

Plaintiff has submitted the declaration of Walt Warriner, an arborist, in which Warriner states that (1) the pine tree was originally planted (or sprouted) entirely on Defendant’s property, and its growth has since expanded toward the shared boundary line, and (2) although the tree has developed “wound wood” where the bark of the tree meets the wood deck, the trunk underneath the wood deck (i.e., where the trunk meets the ground) “is still completely within the confines of the block wall that is on the property line[,]” and therefore “stands entirely on Defendant’s property[.]”  (Warriner Decl., ¶ 4; Warriner Decl., Ex. 1, Report, pp. 4 [stating that the subject tree “gives the appearance that a small section of the flare is bulging across the property line[,]” but that is “actually wound wood”], 5 [stating that “[t]he trunk is completely within the old block wall that is on the property line”].)

Thus, the court finds that Plaintiff has shown the existence of a triable issue of material fact as to whether the subject tree trunk “stand[s] partly on the land of” both Plaintiff and Defendant, such that there is a triable issue of material fact as to whether the subject tree is owned solely by Defendant or owned by Plaintiff and Defendant in common.  (Civ. Code, §§ 834, 833.)

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for nuisance.

2.     Second Cause of Action for Trespass

“‘Trespass is an unlawful interference with possession of property.’  [Citation.]  The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.”  (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262 [internal citation omitted].)

The court finds that Defendant has not met his burden of showing that the second cause of action for trespass has no merit because Defendant has not shown that the element of entry onto Plaintiff’s property cannot be established.

In support of this cause of action, Plaintiff has alleged that (1) the subject tree “originated entirely on Defendant’s property[,]” (2) a number of the tree’s roots have penetrated Plaintiff’s property, including by burrowing under the concrete foundation of Plaintiff’s house, and therefore (3) the limbs of the pine tree and its root system have trespassed over and under the subject property.  (FAC ¶¶ 8-9, 11, 21.)  However, Defendant has not addressed this theory of trespass in his motion, i.e., that the subject tree originated on Defendant’s property (as Defendant’s sole property) and, through trespassory acts, encroached on Plaintiff’s property before it could be deemed property belonging to them in common.

Further, as set forth above, even if the court were to determine that Defendant’s evidence was sufficient to show that the subject tree is a line tree, such that Defendant has shown that Plaintiff cannot establish the element of unauthorized entry onto his property, the court has found that Plaintiff has shown the existence of a triable issue of material fact as to whether the subject tree stands wholly on Defendant’s land and therefore is Defendant’s sole property, such that Plaintiff has shown the existence of a triable issue of material fact as to the element of entry onto Plaintiff’s property.

The court therefore denies Defendant’s motion for summary adjudication as to the second cause of action for trespass.

3.     Third Cause of Action for Negligence

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.”  (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The court finds that Defendant has not met his burden of showing that the third cause of action for negligence has no merit because Defendant has not shown that the element of duty cannot be established. 

Although Defendant has, as set forth above, submitted evidence showing that the subject tree is owned in common by both Plaintiff and Defendant, Defendant has not cited authority establishing that Defendant does not owe Plaintiff a legal duty to maintain the tree—even if it were jointly owned by the parties—in such a way as to prevent it from causing damage to Plaintiff’s property.  (Nelson Decl., ¶ 7; FAC ¶¶ 26-27; Civ. Code, § 834.)  Defendant did not sufficiently set forth, in his memorandum of points and authorities, legal authority and analysis explaining how the parties’ common ownership of the subject tree negates the element of duty. 

Moreover, as set forth above, even if Defendant had met his burden to show that he did not owe a legal duty to Plaintiff on the ground that the subject tree is considered the property of both Plaintiff and Defendant, Plaintiff has submitted evidence showing the existence of a triable issue of material fact as to that issue.

The court therefore denies Defendant’s motion for summary adjudication as to the third cause of action for negligence.

4.     Fourth Cause of Action for Quiet Title

“The purpose of a quiet title action is to establish title against any adverse claims to property or any interest therein.”  (Water for Citizens of Weed California v. Churchwell White LLP (2023) 88 Cal.App.5th 270, 281; Code Civ. Proc., § 761.020, subd. (c) [complaint for quiet title shall include “[t]he adverse claims to the title of the plaintiff against which a determination is sought”].)  “The ultimate fact to be found is the ownership of the property.”  (Water for Citizens of Weed California, supra, 88 Cal.App.5th at p. 281.)  In connection with this cause of action, Plaintiff seeks a determination “that the trunk of the pine tree is entirely on Defendant’s property or originated entirely on Defendant’s property and grew partially over onto the Subject Property, and that Defendant is fully and exclusively responsible for the management and maintenance of the pine tree and all damage caused by the trunk, roots and/or branches of the pine tree, not Plaintiff.”  (FAC ¶ 34.)

The court finds that Defendant has met his burden of showing that the fourth cause of action for quiet title has no merit because Defendant has shown that an element of the cause of action (a claim adverse to Plaintiff’s title) cannot be established.  As set forth above, Defendant has submitted evidence showing that the subject tree is on the property of both Plaintiff and Defendant, and therefore has shown that the presence of the tree on Plaintiff’s property does not constitute an adverse claim by Defendant to Plaintiff’s property.  (Water for Citizens of Weed California, supra, 88 Cal.App.5th at p. 281; Nelson Decl., ¶ 7.)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of an adverse claim to Plaintiff’s property.  As set forth above, Plaintiff has submitted evidence showing that the subject tree trunk is completely on Defendant’s property, and therefore has shown a triable issue of material fact as to whether the presence of the tree (i.e., property belonging solely to Defendant) constitutes an adverse claim to Plaintiff’s property.  (Water for Citizens of Weed California, supra, 88 Cal.App.5th at p. 281; Warriner Decl., ¶ 4.)

The court therefore denies Defendant’s motion for summary adjudication as to the fourth cause of action for quiet title.

5.     Fifth Cause of Action for Declaratory Relief

“Any person . . . 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 . . . for a declaration of his or her rights and duties in the premises. . . .”  (Code Civ. Proc., § 1060.)  A plaintiff requesting declaratory relief must show “‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.’”  (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.)

In connection with this cause of action, Plaintiff requests a declaration “that [the] pine tree is entirely Defendant[’s] responsibility, and that Defendant is required to abate the nuisance by removing the tree or otherwise trimming the branches and cutting off and barricading encroaching roots from the pine tree and compensating Plaintiff for all damage and injuries caused.”  (FAC ¶ 38.)  Plaintiff further requests “a judicial determination with respect to his rights and remedies in this regard and as to Defendant’s ownership of the pine tree and obligation to abate a continuing nuisance as to the pine tree.”  (FAC ¶ 40.)

The court finds that Defendant has met his burden of showing that the fifth cause of action for declaratory relief has no merit because Defendant has shown that an element of the cause of action (that Plaintiff is entitled to a declaration that Defendant is entirely responsible for the pine tree) cannot be established.  As set forth above, Defendant has submitted evidence showing that the subject tree is on the property of both Plaintiff and Defendant, and therefore has shown that the subject tree is deemed to be owned by both of them in common, such that Defendant is not the sole person responsible therefor.  (Civ. Code, § 834; Nelson Decl., ¶ 7.)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to whether Plaintiff is entitled to a declaration that Defendant is entirely responsible for the pine tree.  As set forth above, Plaintiff has submitted evidence showing that the subject tree trunk is completely on Defendant’s property, and therefore has shown a triable issue of material fact as to whether the tree is owned solely by Defendant, such that Defendant is responsible for the tree and required to abate the nuisance presented by it.  (Civ. Code, § 833; Warriner Decl., ¶ 4.)

The court therefore denies Defendant’s motion for summary adjudication as to the fifth cause of action for declaratory relief.

ORDER

The court denies defendant Gregg Buskett, Trustee of the Gregg Buskett 2011 Revocable Trust Dated July 28, 2011’s motion for summary judgment or, in the alternative, summary adjudication on plaintiff Shahrooz Abootalebi’s First Amended Complaint.

The court orders plaintiff Shahrooz Abootalebi to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 6, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court