Judge: Theodore R. Howard, Case: 21-1201005, Date: 2022-09-01 Tentative Ruling

PRELIMINARY ISSUE

Demurrer to c/a for which prior demurrer was overruled:

Per Weil & Brown (The Rutter Group 2022) Cal. Prac. Guide Civ. Pro. Before Trial, Attacking the Pleadings, §7:140:

“When a demurrer has been sustained as to some causes of action but overruled as to others, and plaintiff then amends the complaint, it is not clear whether defendant may properly demur to the amended complaint on grounds overruled in the prior demurrer (i.e., whether defendant gets “two bites at the same apple”):

• [7:141] At least one case holds such demurrers are improper because the court is “foreclosed from rendering a new determination on the viability of those claims” absent a timely motion for reconsideration under CCP § 1008 (see ¶ 7:155.2 ff., 9:324 ff.). [Bennett v. Suncloud  (1997) 56 CA4th 91, 96-97, 65 CR2d 80, 83]

• [7:142] Other courts have allowed demurrers to amended pleadings on grounds previously overruled because “[t]he interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings.” [Pacific States Enterprises, Inc. v. City of Coachella  (1993) 13 CA4th 1414, 1420, fn. 3 (internal quotes omitted) (citing text); see Pavicich v. Santucci  (2000) 85 CA4th 382, 389, fn. 3—“Santucci was entirely within his rights to demur to the fifth cause of action of the first amended complaint … notwithstanding his prior unsuccessful efforts to demur to the fifth cause of action of the original complaint”; Carlton v. Dr. Pepper Snapple Group, Inc.  (2014) 228 CA4th 1200, 1211, 175 CR3d 909, 917—filing of amended complaint permitted renewed demurrer to entire complaint despite prior unsuccessful demurrer to same cause of action]”

In Carlton, supra, the plaintiff argued that the trial court erred by sustaining a demurrer to a breach of contract cause of action in the second amended complaint because the trial court overruled the demurrer to that cause of action in the first amended complaint and no changes were made to the cause of action in the second amended complaint. (Carlton, supra, 228 Cal.App.4th at p. 1210).

The fourth district, division two COA stated that the interests of all parties are advanced by avoiding a trial and later reversal due to defective pleadings, and that a party is within his or her rights to successively demur to a cause of action in an amended pleading despite a prior unsuccessful demurrer to the same cause of action. (Id. at p. 1211)

Consequently, the Court will rule on the merits of the demurrer to all c/a despite that fact that the court overruled Bales’ prior demurrer to c/a 2, 3 and 5 in the original X-C.

The general demurrer by plaintiffs/cross-defendants Lora Bales (“Lora”), and Dean Bales (“Dean”) (together “Bales”) to the First Amended Cross-Complaint (“FACC”) by defendants/cross-complainants Susan Belenardo (“Susan”) and John Belenardo (“John”) (together “Belenardos”) is OVERRULED IN PART, SUSTAINED IN PART WITHOUT LEAVE TO AMEND AND MOOT IN PART.

Demurrer Standards

The sole function of a demurrer is to test the sufficiency of the challenged pleading; matters of defense not apparent in the pleading are not available on demurrer. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856).

When ruling on a demurrer, the court does not consider matters outside the complaint, except for those properly subject to judicial notice. (Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1190-1191). Bales did not request judicial notice of any matters. Thus, the court has not considered any of the moving parties’ exhibits.

Merits

C/A 1 - To Establish Boundary and Quiet Title

The FACC sufficiently pleads all elements to state a claim for quiet title. (See CCP §761.020) The FACC is verified by both Belenardos. The FACC pleads the location of the land in question (FACC ¶10). In pleadings to quiet title, it is sufficient if from the description given, a competent surveyor can locate the land on the ground with or without the aid of extrinsic evidence. (Warren v. Atchison, T. & S. F. Ry. Co (1971) 19 Cal.App.3d 24, 36).

Bales admit that the easement is displayed on an official survey, (Dem. 8:14-15) thereby defeating their argument that the description of the easement/area in dispute is too vague. Bales also defeat their vagueness argument by contending that the same description of the property alleged in the FACC at ¶10 is so clear that no dispute of title is required via judicial intervention. (Dem. 7:20-06)

The FACC satisfies the remaining elements by seeking to quiet title to the “Disputed Ownership Area” as of the date the Cross-Complaint was filed, 8/23/2021, against the Bales with a determination that the Bales are without any right, title, estate, lien or interest in the disputed area except as servient tenements to the easement. (FACC ¶¶22-23)

The court declines to consider Bales’ contention that Belenardos’ claims, including to quiet title, are barred by the statute of limitations as this is a new contention raised for the first time in the reply brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764).

The demurrer to the first cause of action To Establish Boundary and Quiet Title is OVERRULED.

C/A 2 - Declaratory Relief

“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that the rights and duties be adjudged by the court.” (Twain Harte Homeowners Assn. v. Patterson (1987) 193 Cal.App.3d 184, 188).

The FACC alleges there is an actual controversy between the parties relating to the legal rights with respect to the dominant and servient tenements to the easement under the CC&Rs.  This is sufficient to state a claim for declaratory relief.

The demurrer to the second cause of action for Declaratory Relief is OVERRULED.

C/A 3 - Permanent Injunction

Bales’ contention that the demurrer should be sustained because all causes of action in the FACC fail, and injunctive relief is a remedy which cannot survive on its own, lacks merit.

“An easement owner may sue to enjoin an obstruction or an unreasonable interference with her specific, limited, definable use of the easement by the servient owner. (Citations omitted.) Or the easement owner may bring a cause of action for declaratory and injunctive relief to resolve a dispute regarding the nature and scope of that easement.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1175).

To properly plead facts for injunctive relief, the complaint must plead (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) “[t]he grounds for equitable relief of this kind, i.e., a showing of inadequacy of the remedy at law.” (5 Witkin, Cal. Procedure (5th ed. 2010) Pleading, § 823.) (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 647)

The FACC pleads that the Bales have unreasonably interfered with the Belenardos’ use of the easement by, among other actions, cutting the Belenardos’ rose bushes (FACC ¶16a -16c, 16h, 16j). Bales threatened to remove Belenardos’ landscape lights (FACC ¶16e), Bales have placed an “X” in the disputed area claiming everything on one side is the Bales’ exclusive property including the rose bushes (¶17b), Lora has threatened that a fence installed by Belenardos’ is illegal (¶17c), Dean has threated to remove roses (¶17d), Dean placed marker stakes on Belenardos’ property and drew lines in permanent marker (¶17e) Bales yelled at Belenardos to remove everything on one side of the stakes (¶17f).The FACC alleges that on numerous occasions the Bales have unlawfully entered the Belenardos’ private property outside of the easement without legitimate purpose and disturbed Belenardos’ use and occupation of the land (FACC ¶35). The FAC further alleges that Belenardos have no adequate remedy at law to curb the Bales unreasonable interference with the Belenardos’ use of the easement.

These facts are sufficient to support a claim for injunctive relief to resolve the parties’ dispute regarding the easement.

The demurrer to the third cause of action for Permanent Injunction is OVERRULED.

C/A 4 - Willful Trespass

Trespass is an unauthorized entry onto another’s land that disrupts the rights to exclusive possession. (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16).  Any physical intrusion onto another’s property is actionable trespass even if no harm occurs. (See Gaab & Reese (2021) Cal. Prac. Guide: Civil Pro. Before Trial Claims & Defenses, Real Property: Trespass to Land §§11:812, 11:850)

While the one to whom the easement is granted cannot state a cause of action for trespassing against the owner of the land because the easement does not give a possessory right let alone an exclusive possessory right in the property (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174), the fourth cause of action alleges that on numerous occasions, Bales entered the Belenardos’ private property, outside of the easement, without notice or legitimate purpose and disturbed the Belenardos’ use and occupation/quiet enjoyment of their land. (FACC ¶35-36)

The FACC sufficiently pleads a cause of action for trespass onto the Belenardos’ private property (outside of the easement). 

The demurrer to the fourth cause of action for Trespass is OVERRULED.

C/A 5 - Slander of Title

The renewed demurrer to this cause of action is OVERRULED for the same reasons stated in the court’s prior Minute Order.   (See ROA #212).

Bales’ new argument, that the allegedly slanderous statements fall within the litigation privilege, do not defeat this cause of action at the demurrer stage. Whether the Bales’ statements regarding the rose bushes, spa and deck were made in contemplation of litigation cannot be determined without considering evidence beyond the allegations in the FACC. As such, this affirmative defense is not available on demurrer. (See Elder, supra, 205 Cal.App.4th at p. 856).

The demurrer to the fifth cause of action for Slander of Title is OVERRULED.

C/A 6 - Prescriptive Easement

The elements of a prescriptive easement require the use of the property for the statutory period of five years, which use has been (1) open and notorious (2) continuous and uninterrupted (3) hostile to the true owner; and (4) under claim of right.” (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090) “Adverse use” means that the owner has not expressly consented to the use. (Aaron v. Dunham (2006) 137 Cal.App.4th 1244, 1249; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450).

“Hostility” means not that the parties have a dispute over the title during the period of possession, but that the claimants’ possession is adverse to the record owner, unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.” (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1077).

“[T]he element of hostility is met when the claimant intends to occupy the land as the owner and not in subordination to the true owner. In the easement context, hostility entails an intent to occupy land without subordination to the rights of the holder of the dominant estate.” (Id. at p. 1078 citing Faulconer v. Williams (1998) 327 Or. 381, 391)

Although the existence of an easement does not preclude the acquisition of greater rights by prescription (McBride, supra, 18 Cal.App.5th at p. 1181) to state a cause of action for easement expanded by prescription, the Belenardos must state facts showing they used the easement in a manner which violated the recorded grant.  (Ibid.)

Belenardos allege the opposite, that “as the dominant tenement to the Easement, they have the right to use, occupy and maintain landscaping and other improvements in the Easement; and that the Easement includes the Disputed Ownership Area.” (FACC ¶25) While the FACC no longer incorporates ¶25 into the cause of action for prescriptive easement, these allegations were incorporated into the 6th cause of action for prescriptive easement stated in the initial cross-complaint. (ROA #59, ¶¶23, 39). The court may consider allegations asserted in prior complaints when ruling on a demurrer to an amended complaint. (McBride, supra, 18 Cal.App.5th at p. 1173).

Because the cross-complaint alleges that the Belenardos were using the disputed area consistent with the granted easement, the FACC fails to allege facts establishing the necessary element that the use was hostile to the Bales.

Further, the Belenardos do not allege that they intend to occupy the disputed area without any recognition of the Bales’ rights.  On the contrary, the FACC alleges that the Bales’ lot is the servient tenement (FACC ¶11), that the Bales have the right at all reasonable times to enter upon the easement area, including the right to cross over the dominant tenement for such entry, in order to perform work related to the use and maintenance of the servient tenement and the right of drainage over, across and upon the easement area for water draining from the servient tenement. (FACC ¶12) These paragraphs are incorporated by reference into ¶41. The relief prayed for in the 6th cause of action includes that the Bales be allowed to enter the Disputed Ownership Area as servient tenements under the easement. (FACC ¶46)

As this is the Belenardos’ second attempt at pleading a cause of action for prescriptive easement and based on their admissions, the demurrer to the sixth cause of action for Prescriptive Easement is SUSTAINED WITHOUT LEAVE TO AMEND.

The demurrer to the seventh cause of action for Elder Abuse is MOOT based on Belenardos’ representation to the court that they do not intend to pursue a claim for Elder Abuse. 

The Bales’ request for $3,628.40 in sanctions is DENIED.

The moving party is ordered to give Notice of Ruling.