Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC354136, Elizabeth A. Grimes, Judge.
Charles G. Kinney for Cross-complainants and Appellants.
Marcus, Watanabe, Snyder & Dave, David M. Marcus and Amy J. Cooper for Cross-defendant and Respondent.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellants Kimberly Kempton and Charles Kinney appeal from a judgment of dismissal entered after the trial court sustained respondent Michele R. Clark’s demurrer without leave to amend. We affirm.
FACTS
Appellants own a house at 3525 Fernwood Avenue in Los Angeles. They purchased the house from respondent in October 2005. Carolyn Cooper (Cooper) owns a house at 3531 Fernwood Avenue.
The house is actually owned by the 2004 Carolyn E. Cooper Revocable Trust dated March 17, 2004, of which Cooper is the trustee. For ease of reference, we refer to both as “Cooper.”
Sometime before October 1, 2005, Cooper had a concrete block and wood fence constructed between the two properties. She did not have a property survey done before the fence was constructed.
On June 1, 2006, appellants had a survey done on their property. It showed that the fence encroached on their property. On June 17, appellants wrote to Cooper demanding that she remove the fence. Cooper wrote back on June 30 stating that the fence had been in the same location for 15 years, with the knowledge and agreement of the previous owner of appellants’ property and Cooper knew of no encroachment of the fence on appellants’ property. She offered to review a copy of appellants’ survey report and warned appellants against attempting to remove the fence.
PROCEDURAL BACKGROUND
Appellants sued Cooper, setting forth a number of causes of action and seeking, inter alia, to quiet title to their property, injunctive relief to prevent encroachment of the fence on their property and an order allowing them to enter onto Cooper’s property to remove the fence.
Cooper filed an answer, alleging that she had the fence constructed in the location of the previous fence, with the knowledge and agreement of the previous owner of the property. The fence had been in that location for at least 15 years. Cooper also asserted a number of affirmative defenses.
Cooper then filed a cross-complaint against appellants, seeking declaratory relief and to quiet title. She alleged that she purchased her property in 1985. At that time, there was a chain link fence between her property and respondent’s adjacent property. In 1991, Cooper wanted to replace the chain link fence with a more substantial and aesthetically pleasing fence. She discussed the matter with respondent, who agreed to replacement of the fence at Cooper’s expense. Cooper then had the cement block and wood fence constructed on the site of the old chain link fence.
Appellants answered Cooper’s cross-complaint. They then filed a cross-complaint against Cooper and respondent. They sought equitable relief from Cooper, specifically a declaration that they had an equitable right to remove the fence. They sued respondent for lack of merchantable title, seeking damages.
Respondent filed a demurrer on the grounds of failure to state a cause of action and uncertainty. The trial court sustained the demurrer without leave to amend. It explained that appellants could not “state a cause of action for breach of the duty to convey marketable title arising from the obvious ‘open and notorious’ fence which was present and plainly visible at the time [respondent] conveyed title to [appellants].” The trial court then dismissed the cross-action as to respondent.
DISCUSSION
Standard of Review
A demurrer tests the sufficiency of the complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841-842.) A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.)
In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) The trial court also may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) However, it may not consider in making its ruling the available evidence, the ability to prove the allegations in the complaint or other extrinsic matters. (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922; see City of Atascadero, supra, at p. 459.)
In support of her argument that the trial court properly sustained her demurrer without leave to amend, respondent cites facts established at trial after appellants were dismissed from the action. We cannot consider these facts in determining whether the trial court’s ruling was correct.
On appeal, we review the trial court’s sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 718-719; Montclair Parkowners Assn. v. City of Montclair, supra, 76 Cal.App.4th at p. 790.) Appellants bear the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at p. 459.) To show abuse of discretion, appellants must show in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 18.)
Propriety of Sustaining the Demurrer Without Leave to Amend
A seller of real property has the duty to convey marketable title. (King v. Stanley (1948) 32 Cal.2d 584, 589-590.) “‘“‘A marketable title, to which the vendee in a contract for the sale of land is entitled, means a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear on such transactions, be willing and ought to accept.’”’ [Citation.] Marketable title ‘must be so far free from defects as to enable the holder, not only to retain the land, but possess it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will arise to disturb its market value.’ [Citation.]” (Mellinger v. Ticor Title Ins. Co. of California (2001) 93 Cal.App.4th 691, 695.)
A physical condition of the property which may give a third party an interest in the property affects the marketability of title. (Mellinger v. Ticor Title Ins. Co. of California, supra, 93 Cal.App.4th at pp. 696-697.) If the physical condition merely affects the value of the property, it does not affect the marketability of title. (Id. at p. 696; see also Mortgage Associates, Inc. v. Fidelity & Deposit Co. of Maryland (2002) 105 Cal.App.4th 28, 37.)
The application of these principles to the instant case is illustrated by Evans v. Faught (1965) 231 Cal.App.2d 698. In Evans, plaintiff purchased property from defendants. Prior to purchasing the property, he observed the county powder magazine on the property; the portion of the property on which it had been constructed had been leased to the county for a period of 25 years, and the county also had a right to use a road over the property for access to the powder magazine. Two years after purchasing the property, plaintiff bought out the county’s lease and sued defendants to recover the amount spent on the buy-out. (Id. at pp. 702-703.)
The question before the court was whether defendants breached the covenant against encumbrances set forth in Civil Code section 1113 (section 1113). This section provides that “in any conveyance by which an estate . . . [in] fee simple is to be passed,” the grantor covenants “[t]hat such estate is at the time of the execution of such conveyance free from encumbrances done, made, or suffered by the grantor . . . .” Civil Code section 1114 (section 1114) provides that “‘[e]ncumbrances’ includes taxes, assessments, and all liens upon real property.”
The court noted that the term “encumbrances” as used in sections 1113 and 1114 has been interpreted broadly to mean anything which impairs the use or transfer of land, including encroachments and easements. (Evans v. Faught, supra, 231 Cal.App.2d at p. 706.) The court then observed that “[i]t has been held, however, that an alleged encumbrance consisting of a physical burden upon the land, permanent in character and of an open and notorious nature, is not an encumbrance under section 1113.” (Id. at p. 707.) “[S]uch burdens, ‘by way of open and notorious easements,’ are not really encumbrances within the meaning of the covenant against encumbrances because the real subject matter of the dealings between the grantor and the grantee is the land, subject to visible easements; . . . where there is a physical burden of this sort there is a reasonable presumption, in the absence of an express agreement, ‘that both parties act with reference to this plain, existing burden, and that that the vendor on the one hand demands, and the vendee on the other hand pays, only the fair value of the land as visibly encumbered.’” (Id. at p. 708.)
The court thus held that “if the alleged encumbrance consists of a physical burden upon the land, permanent in character and of an open and notorious nature, which affects only the physical condition of the property, it is not an encumbrance under section 1113, and the covenant is not, therefore, broken at the time of the transfer.” (Evans v. Faught, supra, 231 Cal.App.2d at p. 709.) The vendee will be “presumed to have contracted to accept the land subject to physical encumbrances of an open and notorious nature.” (Ibid.)
Applying these principles to the case before it, the court observed that the county powder magazine and access road obviously could constitute a burden on the land because they obstructed or impaired its use. (Evans v. Faught, supra, 231 Cal.App.2d at p. 709.) They clearly “were not encumbrances within the meaning of section 1113 because they unquestionably constituted physical burdens upon the land of an open and notorious nature. Accordingly, plaintiff was presumed to have contracted to accept the land subject to such physical encumbrances.” (Id. at p. 710.)
The instant case is analogous. When appellants purchased their property from respondent, the fence was in place. Since it consisted of a “physical burden upon the land, permanent in character and of an open and notorious nature, which affects only the physical condition of the property, it is not an encumbrance under section 1113, and the covenant [was] not, therefore, broken at the time of the transfer.” (Evans v. Faught, supra, 231 Cal.App.2d at p. 709.) Appellants are “presumed to have contracted to accept the land subject to physical encumbrances of an open and notorious nature.” (Ibid.)
We reject appellants’ claims that the fence was not permanent in character or notorious. They claim that the fence was not permanent, in that it could be physically removed. The question is not whether it could be physically removed, because every encroaching structure could be physically removed. The question is whether it was intended to be permanent in character or whether it was built for temporary purposes. (Cf. Perich v. Maurer (1915) 29 Cal.App. 293, 297-298.) There is nothing to suggest that a concrete block and wood fence was intended to be other than a permanent boundary between the two properties, not merely a temporary divider between the properties.
Appellants equate “notorious” with “hostile,” citing Harrison v. Welch (2004) 116 Cal.App.4th 1084. Harrison discusses the requirements for establishing a prescriptive easement, which are that the use of the property have been “‘(1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.’” (Id. at p. 1090.) “Notorious” and “hostile” are two separate elements of a prescriptive easement. “Notorious” rather is synonymous with “open,” and means generally known or recognized. (Black’s Law Dict. (6th ed. 1990) p. 1063.) In Evans v. Faught, supra, the county powder magazine and access road were considered an open and notorious use of the property, even though they were constructed with the permission of the seller. (231 Cal.App.2d at p. 709.) Thus, that Cooper constructed her fence with respondent’s permission does not prevent it from being open and notorious.
In summary, we hold that the duty to convey marketable title is not breached by the sale of property encumbered by a “physical burden upon the land, permanent in character and of an open and notorious nature, which affects only the physical condition of the property.” (Evans v. Faught, supra, 231 Cal.App.2d at p. 709.) Rather, the purchasers are “presumed to have contracted to accept the land subject to” the physical encumbrance. (Ibid.) Since appellants alleged that at the time they purchased the property from respondent there was a permanent, open and notorious fence on the property, the presumption arises. Therefore, they failed to state a cause of action for breach of the duty to convey marketable title. The trial court did not err in sustaining respondent’s demurrer. (Friedland v. City of Long Beach, supra, 62 Cal.App.4th at pp. 841-842.)
Appellants assert that the trial court should have given them a chance to amend their cross-complaint to state a cause of action, but they do not indicate how they would be able to state a cause of action if given leave to amend. Accordingly, they have not met their burden of demonstrating that the trial court abused its discretion in denying leave to amend. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349; J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co., supra, 59 Cal.App.4th at p. 18.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.