Order Submitted Matter

Cal. Super. - 6th Dist.October 5, 2017

1 a L E 2 3 MAR l 9 2018 . 4 Supemggrmocwcm ("Exam cm BY EPUTY 5 6 7 ‘ 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CLARA 10 1 1 12 PEARL INDIVERI, ' Case No.: 17CV316895 13 Plaintiff, ORDER RE: DEMURRER To 1 4 VS. COMPLAINT 15 16 RUBIL AHMADI, et a1., 17 Defendants. 18 19 The demurrer to the complaint by defendants Rubil Ahmadi and Nargoi Rezvani came on 20 for hearing before the Honorable Peter H. Kirwan on March 15, 201 8, at 9:00 am. in 21 Department 19. The matter having been submified, the Court orders as follows: 22 I. Background 23 This action arises from a dispute over the location 0f a boundary line between property r4124 owned by plaintiff Pearl Indiveri.(“Plaintiff’) and property owned by defendants Rubil Ahmadi 25 and Nargoi Rezvani (collectively “Defendants”). - 26 As alleged inthe Complaint, Plaintiff has held title to her property since 1965. ‘ 27 (Complaint, 1] 5.) At the time of purchase, a fence separated the driveway 0n Plaintiff‘s property 28 from the driveway of the adjacent property and Plaintiff understood the fence to mark the 1 ORDER RE: DEMURRER ,_‘ N N N N N N N N N v-d y-t y-o u-n -o -- -I u-n -I u- ' ' 00 \l O\ M $ DJ N »-‘ O \O OO fl O\ LII h L») N ‘-‘ O \O 00 fl O\ KI! $ DJ N boundary line between the two properties. (Id. at 1h] 8-9.) From 1965 to November 2016, Plaintiff maintained and enjoyed the fence and the property on her side without interference or objection from the owner of the neighboring property. (Id. at {I 10.) During that time, she rebuilt the fence twice on the same line. (Id. at 1] 11'.) In November 2016, Defendants purchased the adjacent property and now assert their property extends past the fence and encroaches on the dn‘veway that has belonged to Plaintiff for the past 50 years (the “Disputed Property”). (Id. at 1] 12.) Plaintiff’s Complaint asserts four causes of action for: (1) declaratory relief; (2) quiet title; (3) injunctive relief; and (4) equitable easement. Currently before the Court is Defendants’ demurrer t0 the Complaint. Defendants filed a request for judicial notice in support. Plaintiff opposes the demurrer and objects to the request for judicial notice. II. Request for Judicial Notice Defendants seek judicial notice of a record of survey related to the boundary line between the two propetties that wag prepared by a professional land surveyor and recorded in the Santa Clara County Recorder’s Office. Their request is made pursuant t0 subdivision (h) 0f Evidence Code section 452, which provides for judicial notice of facts not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Plaintiff objects to the request, arguing the survey’s conclusion of where the boundary line lies is subject to dispute. Her argument is well-taken. The purpose ofjudicial notice is to serve as a substitute for fohnal proof, thereby . expediting the production and introduction of evidence that would otherwise be admissible. (Sosinsky v. Grant (1992) 6 Ca1.App.4th 1548, 1564; Mozzetti v. City ofBrisbane (1977) 67 Ca1.App.3d 565, 578.) A matter can therefore be subject to jutiicial notice only ifit is reasonably beyond dispute and the introduction of evidence to prove that matter would not be required. (Id.; seealso Herrera v. Deutsche Bank Nat. Tr; C0. (201 1) 196 Ca1.App.4th 13'66, 1374; Fremont Indemnity C0. v. Fremont Géneral Corp. (2007) 148 Ca1.App.4th 97, 113.) As such, while courts can take judicial notice of the existence of different types of records, including public records, 2 ORDER RE: DEMURRER A U) N H \ N N N N N N N N N t-I »-‘ pd n-I h-I p-I >-A ,-A p-A .--A 00 \l ON U1 h U) N '-‘ O \O 00 V O\ U! $ L») N ’-‘ O \O m fl O\ (11‘ 'Defendants’ surveyor reached a cenain conclusion regarding the location of the boundary line Iin 1965. 1n the alternative, she alleges that if she is not the owner of the fence and the Disputed they do not take notice of the truth of the matters stated therein as those facts are not reasonably beyond dispute. (Herrera, Supra, 196 Ca1.App.4th at 1375.) ‘ Here, Defendants seek judicial notice of the record of survey solely for the purpose 0f establishing the truth of the conclusion, contained therein - namely, that the boundary line between the properties lies on Plaintiff’s side of-the fence. This is impermissible. While the existence of the survey is judicially noticeable, its statement of where the boundary line falls is not because that is not a fact that a reasonably beyond dispute. Put another way, even though between the propenies, this does not preclude the possibility that another surveyor could come to a different conclusion. As such, Defendants’ request for judicial notice is DENIED. III. Demurrer Defendants demur to each 0f the four causes of action in the Complaint on the ground of failure to state facts sufficient t0 constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) Defendants also demur to the first cause of action on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (1).) Defendants d0 hot address the causes of action in numerical order. As such, the Court will discuss the claims in the order they are addressed in Defendants’ memorandum of points and authorities. A. Second Cause of Action - Quiet Title The second cause 0f action is for quiet title. Plaintiff alleges she is the sole owner of the fence and the Disputed Propeny through the gant deed under which she took title to her property Property, she has acquired ownership through adverse possession or an interest through a prescriptive easement. Defendants first argie this claim is deficient because Plaintiff fails to affirmatively state if the Disputed Propeny is located on her property or Defendants’ propeny and instead alleges alternative theon'es requiring her to plead inconsistent facts. By way 0f example, Defendants 3 ORDER RE: DEMURRER \OOOQQUIAwmp-n NNNNNNNNNHHHfl-I-np-Ap-p-np-A OO \l O\ VI A U3 N >-‘ O-KO 00 N O\ U1 -b La.) N >-‘ O point out that a quiet title claim premised on Plaintiff‘s ownership of the property requires an allegation the Disputed Property is on her parcel but a claim premised on the theories 0f adverse possession or prescriptive easement requires an allegation the property is on Defendants’ parcel. Defendants’ argument is not well-taken. It is well-established that “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Contental Sales C0. (2006) 140 Ca1.App.4th 1395; see also Rader Co. v. Stone (1986) 178 Ca1.App.3d 10, 29.) “Tolerance for such pleading rests on the principle that uncertainty as t0 factual. details or their legal significance should not force a pleader to gamble on a single formulation 0f his claim if the facts ultimately found by the coun, though diverging from those the pleader might have considered most likely, still entitle him to relief.” (Blickman Turkus, LP v4 MF Downtown Sunnyvale, LLC (2008) 162 Ca1.App.4th 858, 886.) Though a pleader cannot bloiv hot and cold as to the facts positively stated 0r allege contradictory or antagonistic facts iii describing the same transaction, the law permits inconsistent theories of recovery “so long as the differing grounds are separately stated and free of self-contradiction.” (Id.; Manti v. Gunari (1970) 5 Ca1.App.3d 442, 449; Owens v. Traverso (1954) 125 Cal.App.2d 803, 806.) Here, Plaintiff has not positively stated the boundary line between the properties is both on her parcel and on Defendants’ parcel. Rather, the pleading reflects Plaintiff is unsure where the boundary line lies and therefore pleads her quiet title action based on the alternative theories that she owns the Disputed Property or has some possessory or usage right if it is owned by Defendants. Moreover, she pleads eaeh ground separately and does so in a way that is free from self-contradiction. Specifically, Plaintiff first alleges 0n information and belief that she owns the Disputed Property and her title is based on the 1965 grant deed. (See Complaint, 1] 18.) She then goes on to say that “[i]f [she] is not the sole owner. . .of the Disputed Property,” she acquired an ownership or other interest through adverse possession or a prescriptive easement. (Id. at 1H] 19- 20.) In framing her pleading this way, Plaintiff does not allege antagonistic facts but different facts in support of different legal theories. This type of alternative pleading is permissible and 4 ORDER RE: DEMURRER \OOONONUIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is not required to gamble on a single formulation of the facts when she is in doubt about what can be established by the evidence. Next, Defendants argue the quiet title action fails because there are no facts that would support her claim the Disputed Property is on her parcel. In support, they rely on the recorded survey, which they Contend “establishes that the fence is located on Defendants’ property at n distance ofbetween 1.5-1 .8 feet from the property line.” (Dem. at p. 4:7-9.) This argument lacks merit because it is premised on the erroneous assumption that the record of survey is a proper subject ofjudicial notice when it is not. In evaluating a demurrer, a court treats the demurrer as admitting all material facts properly pleaded and also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 31 1, 3 1 8.) Here, Defendants’ request for judicial notice of the record of survey was denied because judicial notice cannot be taken of the survey’s conclusion regarding the location of the boundary line. As such, the contents of the survey cannot be referenced in the Court’s evaluation of the demurrer and the Complaint otherwise affirmatively alleges the Disputed Property exists on Plaintiff‘s property - a fact which must be accepted as true for purposes of a demurrer. (See Blank, supra, 39 Cal.3d at 318.) Defendants’ argument is mis‘guided for the additional reason that it appears to be predicated on a misunderstanding regarding the purpose and function of a demurref. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County onolo (1977) 73 Cal.App.3d 698, 702.) It admits the truth of all factual allegations in the complaint and “the question of plaintiff‘s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing coutt.” (Alcorn v. Anbro Eng ’g, Inc. (1970) 2 Ca1.-3d 493, 496.) A demurrer is not the appropriate procedure for determining the truth of disputed facts. (Fremont Indem. C0., supra, 148 Cal.App.4th at 115.) Here, Plaintiff alleges she owns the Disputed Property. (See Complaint, 1m 9, l4, 18-19.) Whether or not she will be able to prove this allegation is of no concern to this Court in evaluating the sufficiency ofher pleading. (See Alcorn, supra, 2 Cal.3d at 496.) Moreover, it is apparent there is a factual dispute between the parties regarding the location of the boundary line 5 ORDER RE: DEMURRER \oooqoxmpwmi- NNNNNNNNNt-I-lt-tu-Au-nu-Ap-a-Au-np-t mflawwaflocmNO‘M-RWNHO ' between their properties. As such, regardless of what the record o‘f survey indicates, a demurrer is not the appropriate vehicle for resolving this factual dispute. Defendants’ demurrer to this claim is therefore not sustainable on the basis Plaintiff lacks facts to establish her allegations. For the reasons stated, Defendants fail to identify any pleading defect regarding the pertion of the quiet title claim that is predicated on the theory of Plaintiff’s ownership of the Disputed Property. Because a demurrer does not lie to a portion of a cause of action, their . demurrer to the entire quiet title claim is therefore not sustainable. (See PH 11, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Even if this were not the case, the remaining arguments Defendants advance are otherwise flawed for the reasons set forth below. Defendants contend that, to the extent the quiet title cause of action is based on a theory of adverse possession or prescriptive easement, it fails because Plaintiff does not allege she “paid Defendant’s property taxes and that the same can be established by the certified records 0f the County Tax Collector.” (Dem. at p. 6:1 1-13; 823-5.) Though they acknowledge Plaintiff does allege she paid taxes on the Disputed Property, they contend such allegation is insufficient because, if read in conjunction with her allegation that she owns the Disputed Property, she is only alleging she paid taxes on her own propeIty and not someone else’s.‘ First, the contention Plaintiff fails to allege she paid taxes on property owned by someone else lacks merit. Plaintiff clearly alleges she paid taxes on the Disputed Property in the portion of her claim' discussing scenarios in which she does not own the Disputed Property. For example, she states that “[i]f [she] is not the sole owner in fee simple ofThe Fence and Disputed Property by way of grant deed, then. . .[she] has acquired ownership [or an interest] over the Disputed Property by way of adverse possession [or prescriptive easement].” (Complaint, 1111 20-21.) Following these allegations, Plaintiff avers that her “use of The Fence and Disputed Property was continuous and uninterrupted for over five years; open and notorious; and hostile; and that Plaintiff paid property taxes on the Disputed Property.” (1d. at 1] 22.) As such, her allegation regarding payment of taxes is properly read in reference t0 conditions under which she doles not own the Disputed Property and is rriost reasonably construed as an allegation she therefore paid taxes 0n another person’s property. 6. ORDER RE: DEMURRER OOOONQ'JIbUJNt-t NNNNNNNNNHv-IH-w-ng-A-A 00 Q O\ U1 A DJ.N >-‘ O \o 00 \l O\ U1 A DJ N -‘ Second, Defendants’ reliance on Code of Civil Procedure section 325, subdivision (b) (“Section 325”) for the proposition that a plaintiff must plead the payment of taxes can be established by the certified records of the county tax collector, is misplaced. Section 325 provides that adverse possession will not be considered “established” unless payment of taxes on the property has been “established by certified records of the county tax collector.” (Code Civ. Proc., § 325, subd. (b).) As such, this provision relates to a fact that must be proved before title through adverse possession is given. Section 325 is otherwise silent as to what must be pled to validly state a claim for adverse possession or prescriptive easement in the context of a demuner. Moreover, the Court observes that where title is sought by adverse possession, the “complaint- shall alllege the specific facts constituting the adverse possession,” including the payment of all taxes levied and assessed on the property. (Code Civ. Proc., § 761.020, subd. (b); Dimmick v. Dimmick (1962) 58 Cal.2d 417, 421-422.) Here, Plaintiff specifically alleges she paid the property taxes on the Disputed Property (Complaint, 1] 22) and the Court is unaware of any authority stating more must be alleged. For the reasons stated, Defendants’ demurrer to the second cause of action on the ground of failureto state facts sufficient to constitute a claim is OVERRULED. B. Fourth Cause of Action The founh cause of action is for an equitable easement. Plaintiff alleges she is entitled to an equitable easement over the fence and Disputed Property because her encroachment was innocent, she would suffer irreparable harm if Defendants were not “enjoined to allow the encroachment,” and the severe hardship she would suffer in eliminating the encroachment would be greatly dispmponionate to the harm Defendants would suffer if the encroachment remained. (Complaint, 1m 30-32.) As a preliminary matter, an affirmative claim for an equitable easement is properly construed as one for declaratory relief. (Tashakori v. Lakis (201 1) 196 Cal.App.4th 1003, 101 1- 13.) In essence, the encroaching paity is seeking a judicial determination that he or she is equitably entitled to continue accessing the property. (1d. at 1011 [“The fact that the equitable easement claim is not denominated as a request for declaratory relief is inconsequential. . .[t]he 7 ORDER RE: DEMURRER p-t OOOONOLII-bwtx) NNNNNNNNNH-I-‘Hp-‘HHH-n-l OO\IO\LII#UJN'-‘O\OOO\IO\LIIJ>UJNH subject matter of an action and the issues involved are determinable from the facts pleaded, rather than from the title or prayer for relief.”]; see also Greenwald & Bank, Cal. Prac. Guide: Real Property Transactions (Rutter Group 2017) 1] 42102.22.) Therefore, in evaluating a cause of action for an equitable easement, courts apply the pleading standard for a declaratory relief claim. (Tashakori, supra, 196 Ca1.App.4th at 101 1.) Defendants argue this claim is not sufficiently pled because Plaintiff fails to address two of the three elements of the relative hardship doctrine, citing Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 (“Hirshfield ") in support. Their argument is misplaced because the standard they reference is used by courts to determine if an injunction should be gamed to remove an encroachment upon a party’s property. (Id. at 758; see also Christensen v. Tucker (1952) 114 Cal.App.2d 554, 562-563.) In Hirshfield, the patty whose property was encroached upon filed a complaint and the court applied the relative hardship doctrine in deciding whether the trespass should be enjoined. Here, where it is the encroaching party that affirmatively seeks an equitable easement, the argument Plaintiff fails to adequately plead elements of the relative hardship doctrine lacks merit. Defendants have not cited and the Court is unaware of any authority suppoxting the proposition that this doctrine should be applied in the context of evaluating the sufficiency of an affirmative cause of action for an equitable easement. I Accordingly, the demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a claim'is OVERRULED. C. First Cause of Action The first cause of action is for declaratory relief. Plaintiff alleges an actual controversy has arisen between the parties regarding their rights and duties relative to the fence and Disputed Property. She seeks a judicial determination to} settle the issue. Defendants argue this claim is uncertain and insufficiently pled because it is based on the substantive causes of action in the Complaint (i.e. the causes of action for quiet title and i equitable easement), essentially rendering this claim duplicative. This argument is not well- taken. First, Defendants cite absolutely no legal authority in support of their contention and, as 8 ORDER RE: DEMURRER \OOONQKIIAUJNt-I MNNNNNNNNHwaflflHflflH ooqom-bwwv-‘oxooouoxmhwmwo such, fail to substantiate their arglment. (See Cal. Rules of Court, rule 3.1 1 13(b) [supporting memorandum must include a discussion of legal authority in suppén of the position advanced].) Second, the fact that causes of action are duplicative “is not a gound 0n which a demurrer [on the ground of failure to state facts sufficient to constitute a cause of action] may be sustained.” (Blickman, supra, 162 Cal.App.4th at 889-90, citing Code Civ. Proc., § 430.10.) Third, there is no legal authority stating a demurrer on the gound 0f uncertainty may be sustained where a claim is duplicative. The standard for uncenainty is that the allegations 0f the pleading must be so unintel_ligible the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts 0r claims are directed against him or her. (Khoury v. Maly's ofCalzf, Inc. (1993) 14 Cal.App.4th 612, 616.) This standard is not addressed in Defendants’ demurrer. Accordingly, the demurrer to the first cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a claim is OVERRULED. D. Third Cause of Action The third cause 0f action is for injunctive relief. Plaintiff alleges Defendants have threatened her quiet enjoyment and use of the Disputeii Property and requests an order enjoining them fiom continuing to do so. Defendants argue this claim is‘ improper because injunctive relief is a remedy and not a cause of action. This argument is well-taken. “Injunctive relief is a remedy, not a cause of action.” (Allen v. City ofSacramento (201 5) 234 Cal.App.4th 41, 65; see also Roberts v. Los Angeles Cry. Ber Assn. (2003) 105 Cal.App.4th 604, 61 8; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) As such, while a patty may obtain an injunction if he or she is otherwise entitled to such relief, a court may sustain a demurrer to a claim for injunctive relief because it is not actually a cause of action. (Ibid.) The Court notes that this remedy is also listed in Plaintiff‘s prayer for relief. /// /// /// 9 ORDER RE: DEMURRER \OOONONKII-KBUJNH NNNNNNMNNt-v-‘r-IH-I-I-Av-Ap-AH OONONKII-kwNHOoOONQKJl&WN’-‘O Accordingly, the demurrer lo the third cause of action on the ground of failure to state facts sufficient to constitute a claim is SUSTAINED WITHOUT LEAVE TO AMEND. (flu H- \L-§r‘-‘-- a l ts 5t 8 ‘ PeterH. Kirwan Judge of the Superior Court 10 ORDER RE: DEMURRER SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRermEr SAN Jose, CALIFORNIA 95113 CIVIL DIVISION I [10’ lu RE: Pearl Indiveri vs Rubil Ahmadi et al 8y fi‘ JT Case Number: 17CV31 6895 (7 g W4fi£HALPROOF OF SERVICE ORDER RE: DEMURRER TO COMPLAINT was delivered to the parties listed below the above entitled case as set forth in th‘e sworn declaration below. » If you. a party represented by you. or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator’s office at (408) 882-2700. or use the Court‘s TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid. in the United States Mail at San Jose. CA on March 19, 2018. CLERK 0F THE COURT, by Stacie Marshall, Deputy. cc: Richard James Hogan 773 Lorinda Lane CHICO CA 95973 .Eric Allen Gravink Rossi Hamerslough et al 1950 The Alameda #200 San Jose CA 95126 Benjamin David Harvey 260 Sheridan Ave Ste 208 PALO ALTO CA 94306 CW-9027 REV 12/08/16 PROOF OF SERVICE