Judge: Timothy B. Taylor, Case: 37-2023-00013413-CU-OR-CTL, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00013413-CU-OR-CTL JONATHAN C CHAPIN AS TRUSTEE OF THE CHAPIN FAMILY TRUST DTD 8 16 2013 VS RICHARD G MURRAY AS TRUSTEE OF THE MURRAY FAMILY TRUST DATED CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/12/2023

Tentative Ruling on Demurrer to Complaint Chapin v. Murray, Case No. 2023-13413 Oct. 6, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a quiet title/trespass case between neighbors in Point Loma. The dispute focuses on a decades old brick wall which plaintiffs contend is not on the actual property line, and some outdoor 'improvements' in the 'disputed area.' It would be fair to say that some of the interactions between the parties have not been neighborly.

Presently, defendants generally demur to count 2 (trespass). ROA 9-14. Plaintiffs filed opposition.

ROA 28-29. Defendants replied. ROA 30. The court has reviewed the papers, and no further submissions are authorized in connection with this demurrer.

At the CMC held last month, the case was set for trial in August of 2024. ROA 23-27.

2. Applicable Standards.

A. A demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ. Proc. § 452.

B. 'Trespass is an unlawful interference with possession of property.' Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406. '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, 262 (citing CACI 2000).

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2983746  37 CASE NUMBER: CASE TITLE:  JONATHAN C CHAPIN AS TRUSTEE OF THE CHAPIN FAMILY TRUST  37-2023-00013413-CU-OR-CTL 3. Judicial Notice.

Defendants seek judicial notice of certain court records. ROA 12.

Courts of appeal review a trial court's ruling regarding a request for judicial notice pursuant to the abuse of discretion standard of review. In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271. Evidence Code section 453 provides that a trial court must take judicial notice of any matter specified in Evidence Code section 452, upon a party's proper request.

Judicial notice is taken as requested. Evid. Code § 452(d). 'However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.' Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.

4. Discussion and Ruling.

The demurrer to the complaint is overruled.

Sufficient facts have been pled to state a claim for trespass. See Ralph's Grocery, supra 17 Cal.App.5th at 262; see also CACI 2000. None of the authorities cited by defendants hold that trespass protects only possessory interests rather than ownership interests. Nor do any of the cases suggest that a plaintiff must physically occupy all of the subject property to the exclusion of others. Indeed, such a requirement would preclude any trespass action against an encroacher. That cannot be and is not the law. See Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246 ('All plaintiff needed to do was to show a possessory right superior to the right of the trespassers.'); see also 5 Witkin, California Procedure (6th ed. 2023) Pleading, § 634 ('The plaintiff, though not in actual possession, may allege a present or future right to possession.').

Defendants must file and serve an answer to the complaint by October 16, 2023.

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