Judge: Ronald F. Frank, Case: 21STCV34889, Date: 2022-10-13 Tentative Ruling

Case Number: 21STCV34889    Hearing Date: October 13, 2022    Dept: 8

TENTATIVE RULING

Cross-Defendant Conjunction Junction LLC’s Demurrer to the Second Amended Cross-Complaint is sustained with leave to amend if Cross-Defendant believes the claimed prescriptive easement can be described with greater specificity, definiteness, and certainty.

Background

This is a nuisance and trespass action involving adjacent parcels of land in the Portuguese Bend area of Rancho Palos Verdes. The first parcel is owned by Plaintiff/Cross-Defendant Conjunction Junction LLC (“Cross-Defendant”), with no street address but designated as APN 7572-016-024 (“CJ Parcel”). The second parcel is owned by Defendant/Cross-Complainant Ashley Erin Ellison, as Trustee of The Porter Trust (“Cross-Complainant”) with a street address of 1 Pomegranate Road, Rancho Palos Verdes, California 90275 (“Porter Parcel”).

On September 22, 2021, Cross-Defendant commenced this action by filing the Complaint alleging that the house, driveway, and outlying buildings on the Porter Parcel are encroaching on CJ Parcel and Cross-Complainant has failed to remedy these conditions. The case was originally pending in downtown LA as a PI case, but was transferred to the SW District Department B (Judge Tanaka) in Torrance before being reassigned to this Court in Inglewood as of October 10, 2022. While the matter was pending in Torrance, Judge Tanaka denied Conjunction Junction’s motion to appoint a receiver, and denied Gretzel Hunt’s Motion for Leave to File a Complaint in Intervention. Hunt claimed to be the buyer of the Porter Parcel who opened escrow in March of 2021. The Court will inquire of the parties at the CMC as to whether escrow remains open.

On July 5, 2022, Cross-Complainant filed the operative Second Amended Cross-Complaint (“2AXC”) alleging that Cross-Complainant has a prescriptive easement to the disputed property. After filing an original and a first amended cross-complaint containing additional causes of action that have since been dismissed, the 2AXC contains a sole claim for quiet title.

Cross-Defendant now demurs to the 2AXC arguing:

1. The quiet title claim fails because Defendant/Cross-Complainant has not, and cannot, plead payment of property taxes as is required for an exclusive prescriptive easement such as the one sought in this case.

2. The quiet title claim has no legal or factual merit.

3. The quiet title claim is a legal nullity, as the quiet title claim is part of a cross-complaint that does not include a legal description of the easement sought and quiet title claims must include a legal description of the easement sought as a matter of law or they are considered a legal nullity.

(Demurrer 2:5-12.)

As of October 6, 2022, Cross-Complainant has not filed an opposition, which was due on September 30, 2022, i.e., nine court days before the scheduled hearing date of October 13, 2022. (Code Civ. Proc., § 1005, subd. (b).) The Court can treat Cross-Complainant’s failure to oppose as a concession on the merits. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) However, as this hearing presents the first opportunity time this Court has had to reviewing this matter, and because a CMC is also pending the same date, the Court will analyze the merits of the Demurrer arguments in the hope to further the ultimate and equitable resolution of the case.

Cross-Defendant Conjunction Junction’s Demurrer to 2nd Amended Cross-Complaint

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. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only¿if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd.¿(2009) 45 Cal.4th 992, 998.)

I. Payment of Property Taxes

Cross-Defendant demurs to the quiet title claim arguing that Cross-Complainant’s allegations of exclusive use bars the claim for a prescriptive easement because there is no allegation of payment of property taxes. The Court disagrees with this claimed ground for the Demurrer because payment of taxes is not an element of a true prescriptive easement claim even though tax payment is a mandatory element of an adverse possession claim.

Code of Civil Procedure section 761.020 requires a complaint for quiet title to be verified and to include the following elements: (1) a legal description of the property; (2) the basis of title as to which determination is sought; (3) the adverse claims to the title as to which determination

is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of title. (Code Civ. Proc. § 761.020.)

The Demurrer correctly notes that “Unlike adverse possession, a prescriptive easement does not require the payment of taxes. [Citation.] It is not an ownership right, but a right to a specific use of another's property. [Citation.] . . . To escape the tax requirement for adverse possession, some claimants who have exercised what amounts to possessory rights over parts of neighboring parcels, have claimed a prescriptive easement. Courts uniformly have rejected the claim. [Citations.]” (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1186-1187.) In Kapner, the party claiming a prescriptive easement was the owner of a 5-acre unimproved parcel within the Meadowlark Ranch near highway 246 in Santa Ynez. The defendant Meadowlark Ranch Association operated and maintained private roads within the 437-acre ranch, including a 60-foot wide roadway parcel adjacent to Kapner’s land. When Kapner built his house, driveway, gate and perimeter fence, the improvements encroached onto the roadway parcel but did not encroach on the paved portion of the Association’s roadway parcel. Because Kapner enclosed and possessed the land in question, the Second District found he could not avail himself of the law of prescriptive easement, noting “[t]he law does not allow parties who have possessed land to ignore the statutory requirement for paying taxes by claiming a prescriptive easement.” (Kapner, supra, 116 Cal.App.4th at p. 1187.)

Here, the Cross-Complaint alleges a cause of action to quiet title to a claimed Prescriptive Easement, not adverse possession. Unlike Kapner, Cross-Complainant here has not enclosed the area over which he claims the easement although he does claim exclusive use of the area where the prescriptive easement lies. While the Demurrer asserts that such an allegation should be deemed an adverse possession claim masquerading as a prescriptive easement claim, and that adverse possession claims require the payment of property taxes, the Court disagrees that the Cross-Complaint as a matter of law should be so deemed. If Cross-Complainant seeks leave to amend one more time, the Court will carefully scrutinize the prospective third and likely last amended Cross-Complaint as to whether it sounds more in adverse possession than prescriptive easement. The Court also notes that the Second District affirmed the trial court’s order in Kapner requiring the easement claimant to sign an encroachment agreement or remove the encroachment.

II. Joannou v. City of Ranchos Palos Verdes (2013) 219 Cal.App.4th 746

Cross-Defendant argues that Joannou v. City Rancho Palos Verdes (2013) 219 Cal.App.4th 746 (Joannou) has settled the issue as to an adjacent landowner’s pleading regarding the same factual scenario. The Court disagrees and would overrule the Demurrer if this were the only ground asserted.

In Joannou, the Court of Appeal examined circumstances where real property migrated onto other lots because of the slow-moving Portuguese Bend landslide. Critically, the Court of Appeal held that a claim for quiet title failed in this scenario because the boundaries are not fixed. (Joannou, supra, 219 Cal.App.4th at p. 746.) However, in its Demurrer Cross-Defendant overlooks that Joannou was evaluating a quiet title claim involving the Cullen Earthquake Act (Code Civ. Proc., §§ 751.50–751.65), which authorizes an in rem proceeding to replat and equitably adjust boundaries following a disaster resulting in earth movement, subsidence or lateral or vertical displacements, whether caused by man or by an earthquake or other acts of God. Cross-Defendant does not explain how a holding interpreting the Cullen Act should apply here, where the Cross-

Complainant has not sought to allege application of that statute. Further, Joannou involved a claim against the City, not against an adjacent private property owner. Nonetheless, the Court finds the factual discussion in Joannou instructive.1

III. Insufficient Facts Alleged for This Type of Easement Claim

Cross-Defendant argues that the quiet title claim still fails because of insufficient facts pleaded for the prescriptive easement claim. The Court agrees.

Because the nature of the claimed trespass or prescriptive use continues to increase each year due to the ongoing landslide, Cross-Complainant is essentially seeking a “floating” prescriptive easement to increase accordingly. But a floating easement must be expressly granted and cannot be obtained as a prescriptive easement. (See Southern California Edison Co. v. Severns (2019) 39 Cal.App.5th 815, 823 (involving an expressly recorded conveyance to allow an electric utility company to access its power lines.) Additionally, Cross-Complainant has acknowledged that the subject improvements keep moving to new locations, and therefore, the use of the property is not continuous, and certainly not for the time period of five years as required. (2AXC ¶¶ 22-23, Ex. C.)

To plead a prescriptive easement, “[t]he party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.) Whether the claimant has established the elements of a prescriptive easement is ordinarily a question of fact for the trier of fact. (O'Banion v. Borba (1948) 32 Cal.2d 145, 149.) Prescriptive easements ordinarily arise from the claimant’s use of a right of way or a driveway in a definite and certain, unchanging location. “[T]he existence of a prescriptive easement must be shown by a definite and certain line of travel for the statutory period.” (Warsaw, supra, at p. 571, citing Dooling v. Dabel (1947) 82 Cal.App.2d 417.) “The line of travel over a roadway which is claimed by prescription may not be a shifting course, but must be certain and definite. Slight deviations from the accustomed route will not defeat an easement, but substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights ....” (Matthiessen v. Grand (1928) 92 Cal.App. 504, 510 (emphasis added).) Matthiesen involved a trespass action coupled with a cross-complaint for easement by prescription to a 12-foot roadway for a ten-mile stretch across plaintiff’s cattle ranch. The appellate court reversed a judgment in favor of the easement claimant because the course of the right of way was not and could not be definitely described and the evidence showed that the course varied and changed over time. “A change of 20 feet in the location of a ditch has been held to defeat an easement.” (Matthiessen, supra, 92 Cal.App. at p. 510.)

Per ¶ 22-24 of the 2AXC, Cross-Complainant Ellison apparently contends that its predecessor’s improvements such as a house, driveway, carport, walls, and shed have moved

across the original property line between the parties’ parcels because of the Portuguese Bend landslide. The Court views the Cross-Complainant’s claim as attempting to fit a round peg in a square hole. Ellison is not claiming a right of way or driveway, but rather, apparently, the acquisition of the exclusive right to use an ever-changing portion of Conjunction Junction’s land that is now beneath these improvements by virtue of the inexorable movement of the Portuguese Bend towards the Pacific Ocean at 6 to 12 inches per year. (See Joannou, supra, 219 Cal.App.4th 746 (describing such slow movement by virtue of the landslide proximate to the subject parcels.) Without a more definite and specific description of the precise location of the claimed prescriptive easement Ellison will not be able to proceed under such a cause of action.

Accordingly, the Court sustains the demurrer on this basis, but with leave to amend if Cross-Defendant can give a definite and certain description of the claimed easement location that is not subject to change over time.

IV. Legal Description of Area

Cross-Defendant argues that Cross-Complainant did not comply with the procedural requirements for a quiet title claim. The Court agrees. Critically, the 2AXC does not contain a “description of the property that is the subject of the action” that includes a legal description and a street address or common designation. (Code Civ. Proc., § 761.020, subd. (a).) It is simply not enough to attach a map with proposed new boundaries with qualifying language from a surveyor. (2AXC Ex. C.)

Accordingly, the Court sustains the demurrer on this basis, with leave to amend.

V. Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the court that a pleading can be amended successfully. (Ibid.)

VI. Conclusion

The Court sustains the Demurrer, but with leave to amend as described above.

Cross-Defendant is ordered to give notice of this ruling.

3. CASE MANAGEMENT CONFERENCE.

The Court file does not reflect a CMC Statement filed by the Plaintiff. Defendant and Cross-Complainant’s CMC statement indicates an estimated 2-day trial and that discovery may well be completed by the end of 2022. The Court has posted Courtroom Information including the form of Trial Setting Order it uses for civil trials. The parties should come to the CMC prepared to discuss a trial date, ADR options, a discovery plan, and whether a dispositive motion is contemplated.