Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV23399
DAVIS, J.
In this action involving an alleged easement or license, the trial court sustained a demurrer without leave to amend and entered judgment against plaintiff Gerald B. DeLucchi individually and as trustee of his living trust (DeLucchi). We agree with DeLucchi that the trial court essentially “conducted a summary judgment proceeding based on the pleadings, failing to apply this state’s liberal pleading standards, and dismissing [DeLucchi’s] claims based on insufficient ‘proof.’� Consequently, we reverse the judgment in favor of defendants John and Janice Mensik, who also acted as designated representatives of the named defendant Rare Duck Club property owners.
Background
A general demurrer inquires only whether a complaint is sufficient to state a cause of action. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140 (Amarel).) Accordingly, we look to the allegations in the complaints here to furnish our background.
In the summer of 1996 DeLucchi purchased a parcel of real property in Colusa County (formerly the Heljik property) for use as a duck hunting facility. This property has no road access.
Historically, DeLucchi’s property had been accessed via a roadway across two other parcels: the Gunnersfield property and the Rare Duck Club (RDC) property.
As for access across the Gunnersfield property, DeLucchi and the representative of the Gunnersfield property, D.B. McGeoghegan, executed and recorded in August and September 1996 a “Memorandum of Intent to Issue License for Access.� This memorandum provided DeLucchi access subject to the terms and conditions set forth in an underlying agreement.
As for access across the RDC property, DeLucchi and defendant John Mensik, as president of the RDC on behalf of the RDC members, executed and recorded in September 1996 a document entitled “Road Access Agreement� (RAA). The RAA, which is attached to the complaint as an exhibit, states as pertinent:
“The following agreement, between the members of the Rare Duck Club (RDC) and Gerry DeLucchi of an adjacent duck club (ADC), is for the purpose of outlining the terms, conditions, and responsibilities of each party in regard to vehicle access allowed by and through the RDC for Mr. DeLucchi to reach his property . . . .
“Basic premises of this agreement include the recognition by RDC of the historic use of their club by ADC members (Mr. Ray Heljik et[] al.) for access for at least the past nine years and that very few difficulties because of said access have arisen. Also, recognition by Mr. DeLucchi of past responsibilities of ADC members in return for access permission and RDC concerns regarding the timing and amount of vehicle travel and associated maintenance costs that result. [¶] . . . [¶]
“4. This agreement will continue to be valid and automatically renew on an annual basis provided that the terms and conditions are properly adhered to. After notification of nonconformance, should the grantee fail to comply over a significant period of time (45 days), the agreement will be in jeop[a]rdy of being revoked.
“5. Access Road Maintanence [sic] [T]he grantee agrees to pay more than an equal share (75%) of all road maintanence [sic] costs associated with their use. . . . [¶] . . . [¶]
“7. It is the intent of the parties that this road access agreement be continuous and that its provisions and restrictions shall inure to, and be for the benefit of the parties’ successors and assigns in interest.�
Around October 1996, DeLucchi spent “approximately $2,700 improving the access road from the RDC property and onto the Heljik property with the majority of such amount being used to improve the RDC roadway.�
By 2005, DeLucchi and Mensiks/RDC were at loggerheads. DeLucchi claimed that RDC had violated the RAA by engaging in detrimental “management practices� for the RDC roadway, and he refused to pay the bulk of a maintenance bill. Mensiks/RDC countered that DeLucchi was using the RDC roadway excessively to run a commercial hunting operation on the DeLucchi property.
Things went from bad to worse, and there were confrontations on the RDC roadway between the parties. Mensiks/RDC revoked the RAA in December 2005. This lawsuit ensued.
DeLucchi has filed three complaints.
DeLucchi’s original complaint contained five causes of action or counts, including quiet title-easement by grant and quiet title-easement by prescription. As pertinent here, the complaint named Mensik, his wife Janice, and the RDC as defendants.
This complaint, as well as DeLucchi’s two subsequent complaints, also named D.B. McGeoghegan and the other Gunnersfield individuals and entities as defendants. The Gunnersfield parties did not demur and are not part of this appeal.
The trial court sustained the Mensiks’ demurrer to the original complaint (with leave to amend) because all of the RDC real property owners subjected to quiet title by the alleged easement had not been named as defendants.
Responding to the trial court’s concern, DeLucchi filed a first amended complaint (FAC) that added, in addition to the Mensiks, the remainder of the RDC property owners as named defendants.
Through the Mensiks, the RDC defendants demurred to the FAC. The trial court sustained the demurrer without leave to amend as to the causes of action for quiet title-grant easement, quiet title-prescriptive easement, fraud and assault. On the pivotal easement counts, the trial court concluded that the RAA was not an easement but a license, given the language of the RAA and the operation of an adjunct rule to the statute of frauds--the equal dignities rule (in the statute of frauds context, an agent’s authority to act on behalf of the principal must be in writing too).
That brings us to the third and final pleading, the second amended complaint (SAC), which focused on causes of action or counts for quiet title-irrevocable license and breach of contract.
The RDC defendants, again through the Mensiks, demurred to the SAC, and the demurrer was granted without leave to amend as to all causes of action and counts relating to the RDC defendants. On the pivotal license cause of action, the trial court concluded the license could not be deemed irrevocable, because an irrevocable license would be the equivalent of an easement and because DeLucchi failed to show estoppel for irrevocability.
Discussion
1. Standard of Review and Causes of Action at Issue
In reviewing a general demurrer sustained without leave to amend, we must determine whether, assuming the facts alleged in the complaint are true, a cause of action has been or can be stated. (Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A general demurrer challenges only the legal sufficiency of the complaint, not the truth or the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations.� (Ball v. GTE Mobilnet of California (2000) 81 Cal.App.4th 529, 534-535; accord, Amarel, supra, 202 Cal.App.3d at p. 140.)
The following causes of action or counts are at issue here: quiet title-grant easement (alternatively, prescriptive easement); quiet title-irrevocable license; breach of contract; specific performance; declaratory relief; private nuisance; conspiracy to interfere with access; intentional and negligent interference with economic advantage; fraud in the inducement; false imprisonment; and assault.
As we shall now explain, we reverse the judgment with respect to all of these causes of actions and counts.
2. Quiet Title-Grant Easement (Alternatively, Quiet Title-Prescriptive Easement)
An easement by grant is an interest in the land of another, which entitles the easement owner to a limited use or enjoyment of the other’s land. (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 382, p. 446.)
On demurrer, two issues were raised with respect to this cause of action: (1) the interpretation of the RAA; and (2) the equal dignities rule, an adjunct of the statute of frauds. We will discuss each in turn.
First, the trial court concluded that the face of the RAA did not “strike [the court] as being an easement,� but rather a license.
The pertinent provisions of the RAA, however, as quoted in the Background section of this opinion, are ambiguous on whether the RAA sets forth an easement or a license. Where an ambiguous contract forms the basis of an action which has been demurred to, “it is proper, if not essential, for a plaintiff to allege its own construction of the agreement. So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement. (Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 233.)� (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 128.)
DeLucchi’s interpretation of the RAA as providing an easement by grant is not “clearly erroneous.� Consequently, the trial court erred in interpreting the RAA, in the demurrer context, as providing for a license rather than an easement.
Second, because an easement by grant conveys an interest in land, it is subject to the statute of frauds (i.e., the easement must be in a writing signed by its grantor). (Civ. Code, § 1091; see 12 Witkin, Summary of Cal. Law, supra, Real Property, § 382, p. 446 [nature of easement].) There is an adjunct to the statute of frauds that applies here--the equal dignities rule. This rule specifies that if an agent enters into an agreement or transaction on behalf of a principal--and the agreement or transaction requires a writing signed by the principal--the agent’s authority must be in writing. (Code Civ. Proc., § 1971; see also Civ. Code, § 1091; Black’s Law Dict. (7th ed. 1999) p. 556.)
Mensik, as president of the RDC, entered into the RAA with DeLucchi on behalf of the RDC members. The issue is whether DeLucchi has properly pleaded Mensik’s authority to act as an agent on behalf of all the RDC property owners in entering into the alleged easement created by the RAA. We conclude DeLucchi has.
In the relevant pleading, the FAC, DeLucchi alleged that Mensik “represented himself to be president of the [RDC] and indicated that he had authority to grant an easement on behalf of all members of the [RDC], prior to executing the easement [set forth in the RAA].� DeLucchi then alleged that, “[a]s of the date of this amended complaint the owners of the [RDC property] are: [DeLucchi named the owners].�
A general allegation of agency is usually sufficient to withstand a demurrer. (Skopp v. Weaver (1976) 16 Cal.3d 432, 436-437; Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376 (Garton).) This is because such an allegation is considered a properly pleaded ultimate fact, rather than an improperly pleaded conclusion of law. (Ibid.) “At the trial it may be proved as evidence of this ultimate fact that an authorized agent acted on behalf of the [principal] . . . .� (Pfaff v. Fair-Hipsley, Inc. (1965) 232 Cal.App.2d 274, 279.) DeLucchi has properly pleaded a general allegation of Mensik’s agency.
There is an exception to the rule that a general allegation of agency is sufficient to avoid a demurrer, and Mensiks/RDC unsuccessfully try to come within it. This exception arises when the specific allegations of the complaint overcome the general allegation of agency by showing that no such relationship existed. (Garton, supra, 106 Cal.App.3d at p. 376.) Mensiks/RDC claim that “[n]either the FAC nor the SAC alleged that Mensik had actual written authority (or indeed any authority) from the owners of the [RDC property] to grant an easement.� In light of the pleading allegations we quoted just above, Mensiks/RDC are mistaken with respect to their “any authority� parenthetical.
In light of our resolution of the pleading issue involving the statute of frauds/equal dignities rule, we need not consider in detail DeLucchi’s alternative point that he has alleged facts that estop Mensiks/RDC from asserting this rule; suffice it to say, resolution of the factual allegations of such estoppel are not appropriate on demurrer either.
We conclude that DeLucchi has properly pleaded a quiet title cause of action based on an easement by grant.
Alternatively, DeLucchi has also properly pleaded in the FAC a cause of action for a prescriptive easement that encompasses the use of the RDC roadway that he has purportedly established since 1996. This cause of action is pleaded in the alternative should it be determined that the alleged easement by grant, irrevocable license or contract does not encompass this scope of use. As the court in Kerr Land & Timber Co. v. Emmerson (1965) 233 Cal.App.2d 200 (Kerr Land), stated along similar lines: “The fact that [defendants-appellants, who claim an easement] claim under the disputed interpretation of the [easement] grant, and in the alternative by prescription is perfectly proper. The claim in the pleadings that appellants are the owners of the easement created by the agreement is not, as asserted by respondent, a binding admission that the express rights they seek to enjoy are limited by whatever narrow interpretation may be placed on that instrument. ‘It is well settled in California that a defendant may plead as many inconsistent defense[] [theories based on noncontradictory facts] in an answer as she may desire and that such defenses may not be considered as admissions against interest in the action in which the answer was filed. [Citations.] [¶] . . . The existence of a grant [easement] does not preclude the acquisition of greater rights by prescription.â€� (233 Cal.App.2d at p. 228, fn. omitted; see also Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477 (Dubin).)
3. Quiet Title-Irrevocable License
With respect to real property, a license is a personal privilege, conferred either by written or oral agreement, to perform certain acts on the property; a license does not confer any interest in the land. (Jenson v. Kenneth I. Mullen Inc. (1989) 211 Cal.App.3d 653, 657.)
DeLucchi alleges two theories to support a quiet title claim based on an irrevocable license: (1) the RAA itself created an irrevocable license; and (2) even if the RAA created a revocable license, that license became irrevocable due to subsequent events.
As for DeLucchi’s first theory of irrevocable license, to the extent that Mensiks/RDC argue that an irrevocable license under the RAA itself is nothing other than an easement and therefore suffers from the same two easement deficiencies involving the RAA’s language and Mensik’s authority as discussed immediately above, we have rejected that argument for purposes of demurrer review.
As for DeLucchi’s second theory--a revocable license becoming irrevocable--our state Supreme Court, over a century ago, set forth the following paraphrased principle that is still valid today: an otherwise revocable license becomes irrevocable when the licensee, acting in reasonable reliance either on the licensor’s representations or on the terms of the license, makes large expenditures of money or labor in the execution of the license; and the license will continue for as long as the nature of it calls for. (Stoner v. Zucker (1906) 148 Cal. 516, 518, 520 (Stoner); see also Cooke v. Ramponi (1952) 38 Cal.2d 282, 286-288; Hammond v. Mustard (1967) 257 Cal.App.2d 384, 388-389 (Hammond).)
With respect to this theory of irrevocable license, DeLucchi alleges in the SAC that (1) he purchased his duck club property based upon the RAA’s language and Mensik’s implied representations that he would have a permanent, recordable and transferable right of access across the RDC property; (2) he initially spent nearly $2,700 improving the RDC roadway access; (3) he has made improvements on his property; and (4) he has paid 75 percent of the RDC roadway maintenance costs.
Citing Kaler v. Brown (1951) 101 Cal.App.2d 716 (Kaler), the trial court here noted only the $2,700 expenditure and concluded this amount was not the requisite large and expensive improvement on which to find an irrevocable license under the Stoner principle. Kaler involved a trial, not a demurrer, and the court in Kaler noted that the value of labor and material expended in the execution of the alleged irrevocable license was “trivial.� (Kaler, supra, 101 Cal.App.2d at pp. 716, 719.)
In contrast to Kaler stands Hammond, where an irrevocable license was found to exist, again, though, after a trial. Hammond, supra, 257 Cal.App.2d at p. 386.) In Hammond, the licensee purchased real property, improved the access roadway to it (the roadway ran across the licensor’s land), and constructed three cabins on it, all in reliance upon the licensor’s permission to use the roadway as a means of getting to and from the licensee’s property. (Id. at p. 389, see id. at pp. 387-388.)
DeLucchi’s pleading allegations generally align with the factors of irrevocable license noted in Hammond. But resolution of these factual allegations is not appropriate on demurrer. Evidence will be needed to resolve these issues, not simply allegations.
We conclude, then, that DeLucchi has properly pleaded a quiet title cause of action based on an irrevocable license.
4. Breach of Contract; and Specific Performance; Declaratory Relief; Private Nuisance; Conspiracy to Interfere with Access; Intentional and Negligent Interference with Economic Advantage; and Fraud for the Purpose of Inducing DeLucchi to Enter Into the RAA and Purchase His Property
The trial court sustained the demurrer to DeLucchi’s cause of action for breach of contract on two grounds, both of which are based on the statute of frauds/equal dignities rule: (1) DeLucchi alleged that the RAA sets forth an easement or its equivalent, an irrevocable license (Civ. Code, § 1091; Code Civ. Proc., § 1971), but did not allege Mensik’s written authority from the RDC property owners to make this easement or equivalent; and (2) given DeLucchi’s assertion that under the RAA he could use the RDC roadway in perpetuity, the RAA could not be performed within one year (Civ. Code, § 1624, subd. (a)(1)).
As for the trial court’s first ground, we have already rejected it in part 2 of the Discussion, ante. There we found DeLucchi’s general allegations of Mensik’s agency to enter into the RAA (and estoppel) sufficient to overcome this ground for demurrer centered on the statute of frauds/equal dignities rule.
The trial court’s second ground for demurrer invokes Civil Code section 1624, subdivision (a)(1). This section specifies that the statute of frauds (and thereby its adjunct, the equal dignities rule) applies to an “agreement that by its terms is not to be performed within a year from the making thereof.� This language from section 1624, however, applies “‘only to those contracts which, by their terms, cannot possibly be performed within one year’� “‘under any contingency.’� (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 671, 674-675, italics omitted.)
The following pertinent provision of the RAA shows that it possibly can be performed within one year: “4. This agreement will continue to be valid and automatically renew on an annual basis provided that the terms and conditions are properly adhered to. After notification of nonconformance, should the grantee fail to comply over a significant period of time (45 days), the agreement will be in jeop[a]rdy of being revoked.� Consequently, the statute of frauds/equal dignities rule embodied in Civil Code section 1624, subdivision (a)(1), does not apply to the RAA.
Mensiks/RDC raise an additional point regarding DeLucchi’s breach of contract cause of action. They argue that this cause of action essentially alleges that they breached the RAA by denying DeLucchi roadway access and eventually terminating the agreement. From this springboard, Mensiks/RDC then turn to DeLucchi’s prescriptive easement allegations of use exceeding that conferred by the RAA, and they assert that, in light of this excessive use, DeLucchi cannot meet the following elements of a contract cause of action: performance, injury, or meeting of the minds.
As we noted in part 2 of the Discussion, DeLucchi has alleged his cause of action for prescriptive easement as an alternative claim should his easement, irrevocable license or contract claims either not go as far as he seeks or go down in flames altogether. In this context, Mensiks/RDC cannot use DeLucchi’s allegations of prescriptive easement to defeat his contract claim on demurrer. This is because “[a] plaintiff is permitted to plead alternative inconsistent theories� (Dubin, supra, 96 Cal.App.4th at p. 477), and, in any event, “[t]he existence of a grant [of easement] does not preclude the acquisition of greater rights by prescription� (Kerr Land, supra, 233 Cal.App.2d at p. 228). The factual issues involving DeLucchi’s use of the RDC roadway, as well as those involving Mensiks/RDC’s maintenance, denial and termination of that roadway access, cannot be resolved at the demurrer stage.
We conclude that DeLucchi has properly pleaded a cause of action for breach of contract.
In light of this conclusion, we also conclude DeLucchi has stated a cause of action for specific performance. As an alternative to the pleading of an easement or irrevocable license, DeLucchi alleges that the RAA creates a contractual right of access, which may be enforced through a claim for specific performance.
And in light of our conclusions that DeLucchi has stated alternative causes of action for easement, irrevocable license, or contract, we conclude he has stated these related counts that are based on one or more of these three causes:
-- Declaratory Relief (a dispute exists whether DeLucchi has an easement, irrevocable license or contract, and whether the parties violated it);
-- Private Nuisance (a substantial and unreasonable invasion of DeLucchi’s interest in the use and enjoyment of his land caused by Mensiks/RDC blocking the RDC roadway access to DeLucchi’s land);
-- Conspiracy to Interfere with Access (interference with use under DeLucchi’s easement or irrevocable license);
-- Intentional and Negligent Interference with Economic Advantage (DeLucchi purchased his property for the purpose of operating a duck hunting club); and
-- Fraud for the Purpose of Inducing DeLucchi to Enter into the RAA and Purchase His Property (pleaded in the FAC as an alternative to the quiet title-easement action in the event it is determined that DeLucchi does not have a perpetual, transferable right of way as allegedly promised by Mensik). Characterizing the fraud action as fraud in the inducement also obviates any issue posed by the parol evidence rule. (See Pacific State Bank v. Greene (2003) 110 Cal.App.4th 375, 389 [“‘It is . . . settled that parol evidence of fraudulent representations is admissible as an exception to the parol evidence rule to show that a contract was induced by fraud’â€�], quoting Richard v. Baker (1956) 141 Cal.App.2d 857, 863.) And DeLucchi has implicitly alleged in the FAC that he discovered the fraud within the three-year statute of limitations. (Code Civ. Proc., § 338, subd. (d).)
5. False Imprisonment
“The tort of false imprisonment is the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.â€� (City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810, citing, inter alia, Rest.2d Torts, § 35.)
DeLucchi bases this cause of action on two incidents.
In the first incident, an RDC defendant locked the RDC roadway gate on DeLucchi and told him to leave via a different road that he did not have permission to use. DeLucchi called the sheriff’s department and, after a deputy arrived, DeLucchi cut the lock.
In the second incident, another RDC defendant blocked DeLucchi’s RDC roadway exit and had him arrested for trespassing.
The demurrer was sustained on two grounds.
The first ground was that the two RDC property owner defendants were simply terminating what at most for DeLucchi was a revocable license, since these defendants had not signed the RAA or authorized in writing anyone else to enter into the RAA on their behalf. This ground again implicates the statute of frauds-equal dignities rule, which DeLucchi’s general allegations of agency and estoppel have overcome for purposes of demurrer.
The second ground was that DeLucchi failed to allege that he was confined, a required element of false imprisonment. The trial court cited the Restatement Second of Torts, section 36, and its comment “aâ€�, as follows: “. . . To make the actor liable for false imprisonment, the other’s confinement within the boundaries fixed by the actor must be completeâ€� (Rest.2d Torts, § 36); that is, one claiming to be falsely imprisoned cannot “refuse to utilize a means of escape of which he is himself aware merely because it entails a slight inconvenience or requires him to commit a technical invasion of another’s possessory interest in land or chattels which subjects him at most to the risk of an action for nominal damages which in practice is seldom if ever broughtâ€� (Rest.2d Torts, § 36, com. a).
As framed by these legal standards, the issue of whether DeLucchi was “confined� is laden with factual questions inappropriate for resolution by demurrer here.
We conclude that DeLucchi has properly pleaded a cause of action for false imprisonment.
6. Assault
The tort of assault adopts the criminal definition that an “assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.â€� (Pen. Code, § 240; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 381, p. 598.) “[T]he term ‘violent injury’ used in defining an assault is not synonymous with the term ‘bodily harm,’ but includes ‘any wrongful act committed by means of physical force against the person of another.’â€� (People v. Herrera (1970) 6 Cal.App.3d 846, 851, quoting People v. McCoy (1944) 25 Cal.2d 177, 191.)
For his assault cause of action, DeLucchi alleged in the FAC as pertinent:
“. . . On or about January 21, 2006, at the entry gate for ingress to [DeLucchi’s] . . . real property, defendant Peter M. Carley [an RDC property owner acting as an RDC agent] installed, maintained and operated a fire hose across the [RDC] road . . . .�
“. . . Said fire hose was operated in a manner whereby the stream could have caused [DeLucchi] physical injury if [DeLucchi] would have attempted to unlock the gate so as to travel to his real property. Carley claimed that the [RDC] defendants revoked [DeLucchi’s] license and [Carley] was blocking the gate to deny access by [DeLucchi] across their real property.
“. . . In doing the acts as alleged above, defendant [Carley] intended to cause or to place [DeLucchi] in apprehension of a harmful contact with [DeLucchi’s] person.
“. . . As a result of defendant [Carley’s] acts as alleged above, [DeLucchi][] in fact was placed in great apprehension of a harmful contact with [DeLucchi’s] person.�
These allegations align with the cause of action for tortious assault recognized by our state high court in Thing v. La Chusa (1989) 48 Cal.3d 644. Thing stated: “Assault is a tort which today recognizes the right of the individual to peace of mind, to live without fear of personal harm. ‘A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm.’� (Thing, supra, 48 Cal.3d at p. 649, quoting Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 7.) And DeLucchi’s allegations regarding the operation of the fire hose are akin to the facts recognized in Lowry as constituting a tortious assault. Said Lowry: “It is clear that a person’s right to live in society free from being put in fear of personal harm is invaded if he believes that an unloaded firearm being pointed at him is loaded.� (Lowry, supra, 63 Cal.App.2d at p. 7.)
We conclude that DeLucchi has properly pleaded a cause of action for the tort of assault.
Disposition
The judgment is reversed. DeLucchi is awarded his costs on appeal.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.