Judge Ronald F. Frank, Case 21STCV34889 2023-03-07 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV34889, Date: 2023-03-07 Tentative Ruling

Case Number: 21STCV34889 Hearing Date: March 7, 2023 Dept: 8

Tentative Ruling¿

¿¿

HEARING DATE: March 7, 2023¿¿

¿¿

CASE NUMBER: 21STCV34889

¿¿

CASE NAME: Conjunction Junction, LLC v. Ashley Erin Ellison, et al

¿¿

MOVING PARTY: Cross-Defendant Conjunction Junction, LLC

¿¿

RESPONDING PARTY: Defendant/Cross-Complainant, Ashley Ellison, on the demurrer and Third Party Custodian of Records for the City of Rancho Palos Verdes on the records subpoena and Motion to Quash

¿¿

TRIAL DATE: None set¿

¿¿

MOTION:¿ (1) Demurrer¿ to Third Amended Cross-Complaint

(2) Motion to Quash

Tentative Rulings: (1) Defendant Demurrer is sustained as to the prescriptive easement and adverse possession causes of action, overruled as to the equitable easement cause of action

(2) City’s Motion to Quash is granted in part and denied in part, with specific rulings outlined below as to the 24 separate calls of the subpoena.

I. BACKGROUND¿¿

¿¿

A. Factual¿¿

This is a nuisance, trespass and quiet title action plus plus, with a cross-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 (“Conjunction Junction”), 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 (“Ms. Ellison” or “Cross-Complainant”) with a street address of 1 Pomegranate Road, Rancho Palos Verdes, California 90275 (“Porter Parcel”). Ms. Ellison alleges in her Third Amended Cross-Complaint that her late mother acquired her interest in much of the 1 Pomegranate Road parcel by grant deed recorded February 29, 2012, but that major improvements had been constructed and used by prior owners at unspecified dates before 2012. Conjunction Junction alleges that it acquired title to its relevant parcel of land on September 21, 2021. While the original lawsuit as alleged seemed to pertain to just two parcels, after demurrers were sustained and leave to amend was granted, the scope of the main action plus the cross-action appears to have expanded to include potentially the entire Portuguese Bend slide area. That does not necessarily mean the Court will order discovery as to the entire area, however.

On September 22, 2021, Conjunction Junction 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 October 27, 2022, Ms. Ellison filed a Third Amended Cross-Complaint (“3AXC”) for quiet title including: (1) Prescriptive Easement on Lot 24; (2) Adverse Possession of Lot 24; (3) Prescriptive Easement on Lot 19; (4) Adverse Possession of Lot 22; (5) Prescriptive Easement on Lot 22; (6) Adverse Possession of Lot 22; and (7) Equitable Easement.

Conjunction Junction now demurs as it has to each prior version of Ms. Ellison’s cross-complaints. The Custodian of Records for the City has also filed a Motion to Quash Conjunction Junction’s Subpoena that sought 24 categories of documents, some which were described with reasonable particularity and some of which were not. The Court’s efforts to facilitate a resolution of the discovery dispute by the parties themselves was not successful, each side blaming the other for the failure to reach a resolution. The Court will now resolve the discovery dispute.

B. Procedural¿¿

Also, on December 29, 2022, City filed its Motion to Quash. On January 9, 2023, Plaintiff, Conjunction Junction, LLC and Conjunction Junction, Peppertree, LLC filed an opposition. On January 17, 2023, City filed a reply brief. On February 27, 2023, City of Rancho Palos Verdes’ filed its supplemental brief in support of its motion to Quash Subpoena & Preliminary Response to Motion for Contempt. On March 1, 2023, Plaintiff, Conjunction Junction, LLC and Conjunction Junction, Peppertree Estate, LLC filed an opposition to the motion to quash. On March 2, 2023, City of Rancho Palos Verdes filed a reply brief in support of its Motion to Quash Subpoena.

On January 5, 2023, Plaintiff/Conjunction Junction filed this demurrer to Cross-Complainant’s 3AXC. On January 31, 2023, Cross-Complainant filed an opposition. On February 7, 2023, Plaintiff/Conjunction Junction filed a reply brief.

II. REQUEST FOR JUDICIAL NOTICE

Custodian of Records, City of Rancho Palos Verdes, in connection to its supplemental briefing for the Motion to Quash has asked this Court to take Judicial Notice of the following:

1. Court’s Tentative Ruling dated January 25, 2023 requiring Plaintiff’s counsel and City’s counsel to meet and confer to narrow the scope of the subpoena; a true and correct copy of which is attached as Exhibit A.

2. Court’s Minute order, requiring Plaintiff’s counsel and City’s counsel to meet and confer to narrow the scope of the subpoena including a reduced time period, number of parcels, and related issues; a true and correct copy of which is attached as Exhibit B. Grounds for judicial notice are that Exhibit A and B form the basis of City’s claims, and its authenticity is not believed to be in question. A court may consider facts and take judicial notice of the existence of a document. (Stormedia Inc. v. Superior Court (1999) 20 Cal. 4th 449, 457, n.9.)

The Court grants City of Rancho Palos Verdes’ request for judicial notice, and takes judicial notice of the above.

Plaintiff, in connection with the Demurrer, has requested that this Court take judicial notice of the following:

Exhibit 1 – City of Rancho Palos Verdes Website

Exhibit 2 – City of Rancho Palos Verdes Survey

Exhibit 3 – Pictures showing the GPS Survey Map and the Google Map showing Defendant’s Parcel side-by-side

Exhibit 4 – Stewart Title Report

Exhibit 5 - Satellite Photos

Cross-Complainant also requested the Court take judicial notice of the following document under the California Evidence Code, a copy of which was attached to the Verified 3^rd Amended Cross-Complaint as Exhibit F. Exhibit F depicts by shaded area the different areas discussed in the Demurrer and the Opposition, to that the various areas are in visual form which makes it easier to understand the location of each of such adverse claim area, as well as the adjacent roadways and easement, including:

1. The “Currently Travelled Roadway” known as Peppertree Drive;

2. The “Currently Travelled Roadway” known as Pomegranate Road;

3. The location of the “50 Foot Road Easement” which traverses the southerly 50 feet of the Pomegranate Property; and

4. The location of the Pomegranate Property being a corner lot, at the corner of West Pomegranate Road and Peppertree Drive.

The Court GRANTS Plaintiff’s request and takes judicial notice of the above.

As an aside, the Court also notes but does not take judicial notice of the fact that on the day before the hearings on these matters, the Los Angeles Time ran a front-page article dealing with the Portuguese Bend slide area of Rancho Palos Verdes, where the parcels at issue are located.

III. MOVING PARTY’S GROUNDS FOR THE DEMURRER¿¿

Conjunction Junction demurs to Cross-Complainant’s 3AXC on the grounds that: (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; and (3) The adverse possession claims were added after a demurrer was sustained and Cross-Complainant did not obtain leave of Court to add additional causes of action; (4) The adverse possession claims fail 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; and (5) The adverse possession claims have no legal or factual merit.

IV. ANALYSIS¿

A. Demurrer¿¿¿

The Court has seen prior iterations of the cross-complaint as did Judge Tanaka, and the Court will not repeats its detailed thoughts and the contentions of each side. Ms. Ellis has not resolved many of the concerns the Court raised with respect to the 2AXC, and the Court’s ruling and tentative as to those issues will not be repeated here. Further, new cross-defendants have been added without leave of court. The ultimate difficulty the Court has with the first 6 causes of action in the 3AXC is that they involve efforts to hit a bulls-eye on a moving target. That may be part of the reason Ms. Ellis has not and apparently cannot allege the payment of property taxes for the claimed adverse possession claim areas. The pleadings in this case allege that the earth beneath the properties is in the constant state of movement towards the sea, and although the parties argue how quickly or in what direction the land is moving, it becomes a legal impossibility for the Court to find a valid prescriptive easement cause of action or a valid adverse possession cause of action when the property lines themselves, the metes and bounds and surveyors’ landmarks are constantly moving. The Court can and does take judicial notice of the fact that the Portuguese Bend slide area has been in a state of movement both horizontally and vertically for decades if not much longer, and from before the City of Rancho Palos Verdes became a city. Ms. Ellis has been given multiple opportunities to amend, and there comes a point when the Court’s patience reaches a limit.

The Court sustains the Demurrer to the adverse possession and prescriptive easement causes of action without leave to amend, but overrules the demurrer to the equitable easement cause of action. The Court finds that the equitable easement cause of action is sufficiently fluid and adaptable to embrace the physical movement of the property lines, trees, structures on the property, and boundary and surveyor markers.

B. Motion to Quash

At the last hearing, the Court ordered the City and Plaintiff’s counsel to meet and confer to (hopefully) narrow the scope of the subpoena. More specifically, this Court’s minute order demanded that the parties must meet and confer to address a “reduced time period, number of parcels, and related issues.” If the parties were able to not able to reach an agreement, the Court determined that Supplemental Briefing must be filed by February 27, 2023, and the matter would be heard on March 3, 2023. The City notes that its and Plaintiff’s counsel met and conferred several times, but an agreement could not be made with respect to the above-referenced issues. As such, the City has filed a supplemental brief in support of its Motion to Quash, or in alternative, modify the subpoena, and Conjunction Junction has filed a further brief as well. Both sides also provided separate statements, which were not filed initially, and the Court had exercised its discretion to review the motion without the benefit of a separate statement.

First, the City argues that Plaintiff is not entitled to any and all documents he may want as a matter of right. City notes that the subpoena is burdensome when it requires a search of potentially extensive records without specifically limiting the same to documents directly relevant to this case. City also asserts that Plaintiff’s subpoena is still overbroad both in terms of time and scope even after multiple meet and confer efforts. Declarations of several City employees were submitted to provide admissible evidence bearing on the extent of the burden.

Next, City argues that there are some documents retained in electronic format but not every document is retained from the year 2000. (Declaration of Teresa Takaoka (“Takaoka Decl.”) at ¶ 3.) City also asserts that Plaintiff has several ambiguous words and phrases that he believes City’s staff can discern. (Takaoka Decl. at 6, 12-20.) As written, City believes that the scope of the subpoena is so expansive that it will take hundreds of hours to attempt to comply. (Declaration of Octavio Silva (“Silva Decl.”) at ¶¶ 9-12; Takaoka Decl. at 10.) City puts forth that many of the documents are not maintained in readily searchable format (Silva Decl. at ¶¶ 8, 13; Takaoka Decl. at ¶ 3.) Additionally, City asserts that the documents are not all located in the City; some responsive documents are more located at the County Register/Recorder’s Office, including documents that pre-date the City’s creation. (Silva Decl. at ¶ 14; Takaoka Decl. at ¶ 8.)

Moreover, City contends that several different kinds of searches must be conducted including looking at physical indices. (Silva. Decl. at ¶ 14.) City claims these indices are separated by different departments, however, documents can be commingled with other departments. (Takaoka Decl. at ¶¶ 7, 9-10.) Because different departments in the City use both electronic and physical indices, City believes the search could take a team hundreds of hours to locate the documents. (Silva. Decl. at ¶¶ 9-12, 15.) City notes that some documents are handwritten records and must be handled with care. (Silva Decl. at ¶ 16; Takaoka Decl. at ¶ 12.) For items in the subpoena that have no year referenced, City will have to search all locations and almost every box at those locations. (Silva Decl. at ¶ 17; Takaoka Decl. at ¶¶ 10-11.)

City notes that for items in the subpoena that start in the year 2000, City must search through physical documents because not all items are stored electronically. (Silva Decl. at ¶ 18; Takaoka Decl. at ¶¶ 5-6.) City contends the task is all the more difficult for items referencing the Portuguese Bend Community Association because the City does not maintain records of every interaction with this organization, rendering more difficult to undertake a search without names, parcel numbers, addresses, and email addresses. (Silva Decl. at ¶ 19; Takaoka Decl. at ¶ 16.) Additionally, City argues the same issue exists for code enforcement complaints; noting that without identifying information pertaining to various parcels, the search will be difficult to conduct. (Silva Decl. at ¶ 20; Takaoka Decl. at ¶ 17.) As written, it would take several teams several months to attempt to comply with Plaintiff’s subpoena. (Silva Decl. at ¶ 21; Takaoka Decl. at ¶ 11.)

In opposition Plaintiff argues that its subpoena was targeted to address specific issues:

• Categories 1-6: Effects of the landslide on the parcels Defendant/Cross-Complainant Ashley Ellison claims to have property interests in, whether fee or easement.

• Categories 7-12: The building permits issued by the City for the parcels Defendant/Cross-Complainant Ashley Ellison claims to have property interests in, whether fee or easement.

• Categories 13-14: Communications with Defendant/Cross-Complainant Ashley Ellison, her predecessors in interest, and her claimed buyer for her parcel Gretzel Hunt.

• Categories 15-18: Documents on the origin and exacerbation of the Portuguese Bend Landslide that caused the improvements to migrate from Defendant/Cross-Complainant’s property onto Plaintiff’s the various properties.

• Categories 19 & 23: Documents regarding the HOA that controls the region and the parcels at issue in this lawsuit. • Categories 20-22 & 24: Documents regarding the City’s policies for improvements shifting parcels such as has happened here.

Further, Plaintiff claims it agreed to narrow the scope of their requests as set forth in the Declaration regarding Meet and Confer and the Separate Statement. However, Plaintiff asserts that the City retains its position that it will not compromise, that it does not understand basic English, and that every document request is seeking a needle in a haystack.

The Court’s rulings on the motion to quash as to the 24 categories of the Subpoena are as follows:

Categories 1-6: Grant motion to quash in part, and limit the City’s required production. In the Court’s judgment, these 6 categories, one call of the subpoena as to each of 6 different parcels, are overly broad, burdensome, and oppressive as phrased. Instead, the Court will narrow the scope of what is requested to non-privileged staff or consultant reports, Government Code claims against the City, and minutes of either the City Council or a City Department such as Planning or Public Works, which documents are dated on or after February 29, 2012, in the City’s possession, custody, or control, that discuss or analyze the Portuguese Bend landslide’s “effect” on any or all of the 6 APN parcels listed in the subpoena. The word “effect” in this context means and refers to the impact of the landslide on erosion, on the provision of City services, or the physical movement of structures, surveyor monuments, or boundary markers. If the City has what Conjunction Junction refers to as a “Landslide Report” or if the City itself commissioned a survey or surveys of Portuguese Bend landslide area, those documents dated on or after February 29, 2012 should also be produced. The Court’s ruling is without prejudice to a further motion seeking to enlarge the time period of the subpoena for good cause shown, after Plaintiff’s consultants or experts have reviewed the documents the City produces. For example, if a City report dated in 2012 references a geological report dated in 2007, that would be good cause for the City to produce the 2007 document.

Categories 7-12: Grant motion to quash in part, and limit the City’s required production. These next 6 categories, again one call of the subpoena as to each of the 6 different parcels, seek building permits. That is a narrowly tailored type of document the Court should be able to locate without undue burden. As to the time period, the Court will narrow the unlimited period of time to the 21^st Century. Ms. Ellis’ Cross-Complaint alleges that structures were already in place before she purchased her parcel, and the Court will allow reasonable discovery as to permits to build on any of the 6 indicated parcels over the last 22 years, i.e., from January 1, 2000 to the date of the subpoena.

Category 13: Grant motion to quash in part. As phrased, Category 13 is perhaps unintendedly burdensome since it seeks documents from a third party bearing on any communication any employee or representative of the City may have had with owners whose identity changed over the time period requested. The Court also will narrow the requested time period to one year before Ms. Ellis’s mother acquired her property, i.e., from January 1, 2011 through the date of the subpoena. The Court also will limit the burden on the City of conducting manual records searches, in view of the discovery standard of what is “reasonably” calculated to lead to the discovery of admissible evidence, bearing in mind the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. Accordingly, at this time the Court will require the City only to search electronically accessible records of the requested owner communications.

Category 14: Grant motion to quash in part. As narrowed by the briefing and meet-and-confer process, the Court will narrow the requested time period to January 1, 2020 through the date of the subpoena. The Court also will limit the burden on the City of conducting manual records searches, in view of the discovery standard of what is “reasonably” calculated to lead to the discovery of admissible evidence, bearing in mind the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. Accordingly, at this time the Court will require the City only to search electronically accessible records of the requested communications with Ms. Gretzel Hunt.

Category 15: the Motion to Quash is granted. The City will not be required to produce records in response to this call of the subpoena.

Category 16: Grant motion to quash in part, and limit the City’s required production. As with respect to the first 6 categories, the Court will narrow the scope of what is requested to non-privileged staff or consultant reports, Government Code claims against the City, and minutes of either the City Council or a City Department such as Planning or Public Works, and any “Landslide Report,” which documents are dated on or after February 29, 2012, in the City’s possession, custody, or control, that discuss or analyze the factors or causal agents affecting the movement of the land in the Portuguese Bend landslide area, including natural and human factors. The Court’s ruling is without prejudice to a further motion seeking to enlarge the time period of the subpoena for good cause shown, after Plaintiff’s consultants or experts have reviewed the documents the City produces. For example, if a City report dated in 2012 references a geological report dated in 2007, that would be good cause for the City to produce the 2007 document. The Court is not ordering production of working documents relating to the current Environmental Impact Report unless those working documents are in final form and generally available to the public already.

Categories 17 and 18: Grant motion to quash in part. The call of the subpoena as phrased is vague. As to what Plaintiff intended by the undefined term “improvements owned [or maintained] by the City,” the Court will order the City to produce as to the singular example in Plaintiff’s Separate Statement the City’s drainage culvert the following documents: non-privileged staff or consultant reports, Government Code claims against the City, and minutes of either the City Council or a City Department such as Planning or Public Works, and any “Landslide Report,” which documents are dated on or after February 29, 2012, in the City’s possession, custody, or control, that discuss or analyze the effect or exacerbation of the landslide caused by the movement of water in and beyond the drainage culvert.

Category 19: Mostly deny motion to quash. The Court will narrow the requested time period to January 1, 2011 through the date of the subpoena. The meet-and-confer process provided a list of 11 names for the City to search its email server. Accordingly, at this time the Court will require the City only to search electronically accessible records of the requested communications with the 11 identified person or parties, including a search of emails with City employees.

Category 20: Mostly deny motion to quash. The Court will narrow the requested time period to January 1, 2011 through the date of the subpoena. The Court also will limit the burden on the City of conducting manual records searches, in view of the discovery standard of what is “reasonably” calculated to lead to the discovery of admissible evidence, bearing in mind the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. Accordingly, at this time the Court will require the City only to search electronically accessible records of the requested communications with its Code Compliance personnel, including the City Attorney.

Categories 21-24. Grant the motion to quash. The requests as phrased are vague. The Court’s ruling is without prejudice to a more detailed and cleared set of requests.