Memorandum Points and Authorities

Cal. Super. - 6th Dist.September 10, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22- 23 24 25 26 27 28 200V370543 Santa Clara - Civil C. Russell Georgeson (SBN 53589) Robert J. Willis (SBN 3 17327) GEORGESON LAW OFFICES 7491 North Remington. Avenue, Suite 100 Fresno, California 93711 Telephone: (559) 447-8800 Facsimile: (559) 447-0747 Attorneys for Defendants, INDU SINGLA, an individual, and CHANDRA SINGLA, an individual Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/29/2020 4:30 PM Reviewed By: Y. Chavez _ Case #20CV370543 Envelope: 5206299 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA IAN MCNISH, AN INDIVIDUAL, AND ) IAN MCNISH AS TRUSTEE OF THE IAN ) MCNISH REVOCABLE TRUST DATED ) DECEMBER 11, 2013 Case N0. 20CV370543 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF . Chavez ) . n ) Plamuffs, ) DEMURRER T0 PLAINTIFF? ) VERIFIED COMPLAINT v. ) ) INDU SINGLA, AN INDIVIDUAL; ) Date: CHANDRA SINGLA, AN INDIVIDUAL; ) Time: 9:00 a.m. AND DOES 1 THROUGH 50,INCLUSIVE ) Dept: 6 ) Defendants. ) ) Pagei MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DFMTTRRFR Tn PLAINTIFF? VERIFIED COMPLAINT 10 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS BACKGROUND LEGAL ARGUMENT A. Law Applicable To Demurrers B. The Parties Timelv Met And Conferred C. Demurrer To First Cause 0f Action For Tresnass D. Demurrer T0 Second Cause Of Action For Private Nuisance E. Demurrer T0 Third Cause Of Action For Easement BX Necessifl F. Demurrer T0 Fourth Cause Of Action For Easement By Implication G. Demurrer T0 Fifth Cause Of Action For Equitable Easement H. Demurrer T0 Sixth Cause Of Action For Iniunctive Relief I. Demurrer T0 Seventh Cause Of Action For Declaratory Relief J. Demurrer To Eighth Cause 0f Action For Quiet Title T0 Easement CONCLUSION PAGE 10 12 13 14 15-. Page ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DFMTTRRFR TO PLAINTIFF? WRTFTF‘J‘I COMPLATNT 10 11 12 13 14 15 16 _ 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Allen v. City ofSacramento (2015) 234 Ca1.App.4th 41, 65 Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 Burris v. People's Ditch C0. (1 894) 104 Cal. 248, 252 CA. v, William S. Hart Union High School Dist. (2012) 53 Ca1.4th 861, 872 Christensen v. Tucker (1952) 114 Ca1.App.2d 554, 564 City osz'lroy v. K622 (1924) 67 Cal.App. 734, 743 D. Cummins Corp. v. United States Fidelity d’c Guaranty C0. (2016) 246 Cal.App.4th 1-484, 1489 DeLaum v. Beckett (2006) 137 Cal.App.4th 542, 545 Del E. Webb Corp. v. Structural Materials C0. (1981) 123 Ca1.App.3d 593, 604 Dolnikov v. Ekizicm (2013) 222 Ca1.App.4th 419, 428 Emerson v. Bergin (1888) 76 Cal. 197, 201 Ephraim v. Metropolitan Trust C0. ofCaZ. (1946) 28 Ca1.2d 824, 833-834- LOS Angeles County v. Bartlett (1962) 203 Cal.App2d 523, 529 McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173, 1174, 1179 Mikels v. Eager (1991) 232 Ca1.App.3d 334, 357 PAGE 12 13 11 13 13 4,5 15 Page iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DFNHTRRER Tn ?TJATNTTFFR’ VERIFIED COMP} ,ATNT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1003 Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 as modified (NOV. 6, 2017) Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5fl1 155, 184 Red Mountain, LLC. v. Fallbrook Pubiz’c Utility Dist. (2006) 143 Ca1.App.4th 333, 350 San Diego Gas & Electric C0. v. Superior Court (1996) 13 Cal.4th 893, 938 Serrano v. Priest (1971) 5 ca1.3d 534, 591 Shell Oil C0. v. Richter (1942) 52 Cal.App2d 164, 168 Shoen v. Zacarias (2015) 237 Ca1.App.4th 16, 19 Smith v. David (1981) 120 Cal.App.3d 101, 114 Tashakori v. Lakis (201 1) 196 Ca1.App.4th 1003, 1009 Thorstrom v. Thorsrrom (201 1) 196 Cal.App.4th 1406, 1419 Walters v. Boosinger (2016) 2 Cal.App.5th 421, 438-439 Wilson v. Southern California Edison C0. (2018) 21 Cal.Appjth 786, 802 Zimmerman v. Young (1946) 74 Ca1.App.2d 623, 628 STATUTES CCP §389(c) CCP §430.10(d) & (e) CCP §430.10(d) 10 11 12 11 11 15 3 8, 9, 10, 13, 14 2 Page iv MEMORANDIM OF POINTS AND AUTHORITIES IN SUPPORT OF nRMImRRR Tn pLAmemv VERIFIED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CCP §430.10(e) 2, 4, 6, 12 CCP §430.41(a)(1)-(2) 3 CCP §761.020 14 CCP §1061 13 Civ. Code § 806 4 Civ. Code § 845(a) 5 California Rules 0f Court 3.1 10 3 OTHER AUTHORITIES 6 Miller & Star, Cal. Real Estate (4th ed. 2020) § 15:59 6 6 Miller & Star, Cal. Real Estate (4th ed. 2020) § 15:68 7 6 Miller & Star, Cal. Real Estate (4th ed. 2020) § 1527 8 Black’s Law Dictionary (1 1th ed. 2019) 8 CACI N0. 2000 4 Weil & Brown, California Practice Guide: Civil Procedure Before Tn'al (The Rutter Group 2020) §2:185 3 Page V NIEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F DEMTTRRER T0 PLATNTTFFQ’ VERIFIED (TOMPTATN’T‘ 10 11 12 13 14 15 16 17 18 19 20- 21 22 23 24 25 26 27 28 C. Russell Georgeson (SBN 53589) Robert J. Willis (SBN 317327) GEORGESON LAW OFFICES 7491 North Remington Avenue, Suita 100 Fresno, California 93711 Telephone: (559) 447-8800 Facsimile: (559) 447-0747 Attorneys for Defendants, INDU SINGLA, an individual, and CHANDRA SINGLA, an individual SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA IAN MCNISH, AN INDIVIDUAL, AND ) Case N0. 20CV370543 IAN MCNISH AS TRUSTEE OF THE IAN ) MCNISH REVOCABLE TRUST DATED ) DECEMBER 11, 2013 ) MEMORANDUM 0F POINTS AND ) AUTHORITIES IN SUPPORT 0F Plaintiffs, ) DEMURRER TO PLAINTIFFS’ ) VERIFIED COMPLAINT V- ) ) INDU SINGLA, AN INDIVIDUAL; ) Date: CHANDRA SINGLA, AN INDIVIDUAL; ) Time: 9:00 21.111. AND DOES 1 THROUGH 50, INCLUSIVE ) Dept: 6 ) Defendants. ) ) Defendants, INDU SINGLA, an individual, and CHANDRA SINGLA, an individual, (collectively “Singla” and/or “Defendants”) hereby submit the below Memorandum 0fPoints and Authorities in support 0f their Demurrer t0 Plaintiffs” Verified Complaint. Filed herewith and in support 0f the Demurrer are the Declaration 0f Robert J. Willis (“Dec RJW”) and a Request for Judicial Notice (“RJN”). 1. BACKGROUND On September 10, 2020 Plaintiffs, IAN MCNISH, an individual, and IAN MCNISH as Trustee 0f the IAN MCNISH REVOCABLE TRUST dated December 11, 2013 (collectively “McNish” and 0r “Plaintiffs”) filed their Verified Complaint For (1) Trespass; (2) Private Page 1 MEMORANDIM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMITRRER 'm PLAINTIFF? V1411:mum COMP] .AINT 10 11 12 13 14 15 16 17 18 19_ 20 21 22 23 24 25 26 27 28 A. Law Applicable T0 Demurrers Nuisance; (3) Easement By Necessity; (4) Easement By Implication; (5) Equitable Easement; (6) Injunctive Relief; (7) Declaratory Relief; And (8) Quiet Title T0 Easements against the Defendants in this Court. (RJN fl 1, EX. 1.) There is a concurrent case regarding the real property and easements at issue in this matter. Plaintiffs are currently suing Daniel B. Bikle (“Dan Bikle”) is Santa Clara County Superior Court Case N0. 20CV362574 (“Bikle Action”). (RJN 1] 2, EX. 2.) Plaintiffs filed there Verified First Amended Complaint For (1) Quiet Title; (2) Slander of Title; (3) Easement By Necessity; (4) Easement By Implication; (5) Equitable Easement; (6) Injunctive Relief; And (7) Declaratory Reliéf in the Bikle Action 011 September 21, 2020. (RJN ‘H 3, EX. 3.) A11 the causes 0f action, excluding the Second Cause 0f Action for Slander 0f Title, alleged 1'11 the Bikle Action are nearly identical t0 the cause 0f action alleged against the Defendants in this matter. 2. LEGAL ARGUMENT The Court should sustain a demurrer when “[t]he pleading does not state facts sufficient t0 constitute a cause 0f action.” (CCP §430.10(e).) For purposes 0f a demurrer, courts admit all material facts properly pleaded, but not contentions, deductions 0r conclusions 0f fact 01' law. (Serrano v. Priest (1971) 5 Ca1.3d 584, 591.) Courts also consider matters that may be judicially noticed. (Ibid) Courts can disregard allegations that are inconsistent With attached exhibits and mattersljudicially noticed. (De! E. Webb Corp. v. Structural Materials C0. (1981) 123 Cal.App3d 593, 604). A demurrer tests Whether the plaintiff alleges each fact essential t0 the cause of action asserted. (CA. v. William S. Hart Union High School Dist. (2012) 53 Ca1.4th 861 , 872.) Moreover, the Court should sustain a demurrer when “[t]here is a defect 0r misjoinder 01L parties.” (CCP §430.10(d).) “A complaint 0r cross-complaint shall state the names, if known to the pleader, 0f any persons as described in paragraph (1) 0r (2) 0f subdivision (a) who are not Page 2 NEEMORANDUM OF POINTS AND AUTHORITIES IN SUI’PORT OF DRMTTRRRR Tn p1 .AINTIFFR’ Vlmrmnn nnWI.ArNT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 joined, and the reasons Why they are not joined.” (CCP §389(c).) “If it appears 0n the face 0f the complaint that some person with a material interest in the subj ect 0f the action has not been joined, defendant may obj ect either by special demurrer 0n this ground . . . .” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) §2: 1 85.) B. The Parties Timely Met And Conferred “Before filing a demurrer pursuant t0 this chapter, the demurring party shall meet and confer in person 0r by telephone with the party who filed the pleading that is subj ect t0 demurrer [fl at least five days before the date the responsive pleading is due.” (CCP §430.41(a)(1)-(2).) “fhe parties may stipulate without leave 0f court t0 one 15-day extension beyond the 30-day time period prescribed for the response after service 0fthe initial complaint.” (California Rules 0fCourt 3 .1 10.) On October 16, 2020 Parties” respective counsel had a phone call t0 discuss Singla’s intention to file a demurrer t0 each and every cause 0f action in the Verified Complaint and t0 file a motion-to strike. (Dec. RJW fl 4.) After discussing the grounds for the demurrer and motion t0 strike, the Parties” respective counsel agreed to ascertain whemer their respective clients were willing t0 engage in early mediation 0f this matter. (Dec. RJW 1] 4.) McNish’s and Singla’s attorneys spoke 011 the telephone again 0n October 19, 2020. (Dec. RJW 1[ 5.) As a result 0f the October 19, 2020 phone conversation it was agreed that both Defendants would have an extension t0 October 29, 2020 t0 file responsive pleadings. (Dec. RJW 1] 5, EX. 1.) On October 23, 2020 Singla’s attorney emailed McNish’s attorney regarding the Defendants” intention t0 move forward with their demurrer and motion t0 strike. (Dec. RJW fl 6.) Moreover, Singla’s attorney offered t0 further meet and confer'with McNish’s attorney regarding the demurrer and motion t0 strike t0 afford McNish’s attorney an opportunity t0 either dismiss or Page 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF nEMImRER Tn PI.ATNTIFFS° VEHTFIED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amend McNish’s Verified Complaint. (Dec. RJW fl 6, EX. 2.) McNish’s attorney did not respond t0 Singla’s attorney’s October 23, 2020 email communication. C. Demurrer T0 First Cause Of Action For Trespass The First Cause 0fAction for Trespass fails t0 state facts sufficient t0 constitute a cause 0f action. (CCP § 430.10(e).) “Trespass is an invasion 0f the plaintiff’s interest in the exclusive possession 0f land.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.) “The elements 0f treSpass are: (1) the plaintiff’s ownership 0r control 0f the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack 0f penniséidn for the entry 0r acts in éficess 0f permission; (4) harm; and (5) the defendant” s conduct was a substantial factor in causing the harm. (See CACI N0. 2000.)” (Ralphs Grocery C0. v. Victory Consultants, Inc. (2017) 17 Ca1.App.5th 245, 262 as modified (NOV. 6, 2017).) “Thus, in order t0 state a cause 0f action for trespass a plaifi-tiff must allege an unauthorized and tangible entry 0n the land 0f another, Which interfered With the plaintiff s exclusive possessory rights.” (McBride; supra, 18 Cal.App.5th at 1174.) McNish admits in his Verified Complaint that Singla owns an Access Easement across 24183 Dawnridge D1, Los Altos Hills, California 94024 Which McNish owns (“McNish Property”). (RJNfl 1, EX. 1 [Verified Complaint (“VC”) 1T 17; See aiso VC Exhibits C, D, & E].) “The extent 0f a servitude is determined by the terms 0f the grant, 0r the nature 0f the enjoyment by Which it was acquired.” (Civ. Code § 806.) “The grant 0f an easement must be interpreted liberally in favor 0f the grantee. When an easement is based 0n a grant, as it i-s here, the grant gives the easement holder both those interests expressed in the grant and those necessarily incident thereto.” (Dolm'kov v. Ekizfan (2013) 222 Ca1.App.4th 419, 428 [Internal quotations and Page 4 MEMORANDUNI OF POINTS AND AUTHORITIES IN SUPPORT OF matmnnnmz Tn PLAINTIFF? vnnmmn CQWIATNT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 citations 0mitted].) McNish admits in his Verified Complaint and Exhibit C attached thereto that the granted Access Easement states in pertinent part: “[A] perpetual right 0f way and easement, for all purposes, into, over, across, upon and in and t0 that certain piece 0r parcel 0f land, and every part thereof, lying and being in the County 0f Santa Clara, State 0f California, and particularly described as follows, towit: being a strip 0f land thirty (30) feet wide, and lying fifteen feet uniformly 0n each side 0f the following described center line.” (RJN 1] 1, Ex. 1 [VC fl 12, EX. C].) “The owner of-any casement . . . shall maintain it in repair.” (Civ. Code §Il84_5(a).) “[T]he owner of an easement has the right at all reasonabléi times t0 enter 0n the servient premises and make any necessary repairs.” (Emerson v. Bergz'n (1888) 76 Cal. 197, 201.) “Every easement includes What are termed ‘ secondary easements”; that is, the right t0 d0 such things as are necessary for the full enjoyment 0f the easement itself.” (City osz'lroy v. Kell (1924) 67 Cal.App. 734, 743.) The owner 0f an easement “may make repairs, improvements, 0r changes that d0 not affect its substance.” (Burris v. People’s Ditch Co. (1894) 104 Cal. 248, 252.) “Normal future uses [0f an easement] are within the reasonable contemplation 0f the parties and therefore permissible, but uncontemplated abnormal uses, which greatly increase the burden, are not.” (Red Mountain, LLC. v. Fallbrook Public Utz‘Zity Dist. (2006) 143 Cal.App.4th 333, 350.) “The right t0 use the property for road pu1poses carried with it a right t0 make necessary and reasonable improvements for the pmpose for which it was intended t0 be used.” (Zimmefman v. Young (1946) 74 Ca1.App.2d 623, 628.) “A right-of-way t0 pass over the land of another carries with it the implied right t0 make such changes in the surface of the land as are necessary t0 make it available for travel in a convenient manner.” (Dolnikov, supra, 222 Cal.App.4th at 428 [Emphasis added; Internal Page 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER Tn PTATNTTFFR’ VERIFIED COMPLAINT 10 11 12 13 14 _ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 qfiotations omitted].) “The owner 0f a road easement has a right t0 grade and pave the surface.” (6 Miller & Star, Cal. Real Estate (4th ed. 2020) § 15:59 [Emphasis added].) Therefore, the First Cause 0f Action fails a matter 0f law because Singla has the right t0 enter the Access Easement across the McNish Property and pave the Access Easement t0 allow for convenient use as a means 0f ingress and egress (i.e., a driveway) t0 Singla’s home. D. Demurrer T0 Second Cause 0f Action For Private Nuisance The Second Cause ofAction for Private Nuisance fails t0 state facts sufficient t0 constitute a cause 0f action. (CCP § 430.10(e).) “A private nuisance claim is a claim for a nontIGSpassory interference Iwith‘Ithe private use and enjoyment 0f land.” (Wilson v. Southern California Edison C0. (20] 8) 21 Cal.App.5th 786, 802 [Internal quotations 0mitted].) The elements for private nuisance are: “First, the plaintiff must prove an interference With the plaintiff” S use and enjoyment 0f that property.” “Second, the plaintiff must prove that the invasion 0f the plaintiff S interest in the use and enjoyment 0f the land was substantial, i.e., that it caused the plaintiff t0 suffer substantial actual damage.” “Third, [t]he interference With the protected interest must not only be substantial, but it must also be unreasonable [citation], 1.6., it must be 0f such a nature, duration 0r amount as t0 constitute unreasonable interference with the use and enjoyment 0f the land.” (Ibid. [Internal quotations 0mitted].) First, as noted above, Singla has a granted Access Easement across the McNiSh Property which Singla has the right t0 maintain and improve by paving it. Therefore, 011 its face this cause 0f action fails because McNish does not have exclusive private use 0f the Access Easement, but instead is required by law and the deed, granted, and recorded Access Easement t0 share that portion 0f the McNish Property with Singla. Page 6 MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF DEMTTRRER Tn pLAINTmFg’ VERIFIED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ..Easement is, is not significant enough t0 raise t0 the bar 0f a substantial actual damage. Second, While McNish has free use 0f the entire McNish Property including the portion containing the Access Easement, that does not mean that McNish can interfere with Singla’s maintenance and usage 0fthe Access Easement. (McBride, supra, 18 Cal.App.5th at 1179.) Third, Singla’s use 0f his granted Access Easement has not caused McNish substantial actual damage. “Ifnormal pérsons in that locality would not be substantially annoyed 0r disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies 0f the particular plaintiff may make it unendurable t0 him.” (San Diego Gas & Electric C0. v. Superior Court (1 996) 13 Cail4th 893, 938.) The paving 0f a driveway, Which is What the granted Access Fourth, Singla’s paving 0f his granted Access Easement, which functions as his driveway, is not unreasonable. “[T]he question is not whether the particular plaintiff found the invasion unreasonable, but “Whether reasonable persons generally, looking at the whole situation impartially 393 and objectively, would consider it unreasonable. (Ibid) N0 objective person would View the paving 0f a driveway unreasonable. “A de minimis interference With the enjoyment 0f land does not constitute a nuisance.” (Smith v, David (1981) 120 Cal.App.3d 101, 114 [Emphasis added].) Additionally, McNish’ s concern regarding the liability created by the paying 0f the Access Easement by Singla is without merit. “An easement owner has an interest in real estate and has the same duty and responsibilities t0 third persons Who enter the premises as has any other property owner. Because the owner 0f an easement has a duty t0 maintain and repair the easement, he 0r she also must keep it flee from any dangerous condition that might injure third persons Who rightfully come 0n the easement. With the possible exception 0f those engaged in wrongful 0r criminal conduct, if anyone is injured 0n the easement because 0fa dangerous condition, the owner 0f the easement is liable for the resulting damages.” (6 Miller & Star, Cal. Real Estate (4th ed. 2020) § 15:68.) Therefore, the Second Cause 0f Action fails a matter 0f law. Page 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F mamnnnmn Tn pigA'INT'mm’ VERIFIED nnMpI.AINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Demurrer T0 Third Cause 0f Action For Easement BY Necessity The Third Cause 0f Action for Easement by Necessity fails t0 state facts sufficient t0 constitute a cause 0f action, fails t0 join Dan Bikle as a necessary party (CCP § 430.1001) & (6).) T0 use the requested easement herein MCNish must cross over Bikle’s Property, thus he is a necessary party t0 this cause 0f action. (RJN fl 1, EX. 1 [VC 1H] 4, 10, 17, 18, 30, 31, 32, 33, 35, 50, 53, 55, 66]; RJN fl 3, Ex. 3 [Verified First Amended Complaint (“FAG”) 1H] 4, 13, 25, 26, 27, 28, 30, 37, 38, 40, 46, 50, 51, 53, 54, 56, 66, 67].) “An easement is created because 0fnecessity only in very limited circumstances Where (1) the Islefifient and dominant tenements were in common ownership at some point in time and (2), as a result 0f a conveyance by the common owner, one parcel became completely landlocked.” (6 Miller & Star, Cal. Real Estate (4th ed. 2020) § 1527.) The Thjrd Cause 0f Action fails t0 allege the McNish Property and Singla Property were in common ownership at some time. (Ibid) The Third Cause 0f Action fails t0 allege that “as a result 0f a conveyance by the commofi owner, one parcel became completely landlocked.” (Ibid) Moreover, none 0f the McNish Property is completely landlocked. (LANDLOCKED, Black’s Law Dictionary (1 1th ed. 2019) [“Surrounded by land, with n0 way t0 get in 0r out except by crossing the land 0f another”] .) The bisection 0f the McNish Property by Hale’s creek does not render the property landlocked. Lastly, it is a known fact that McNish has a footbridge t0 access the portion 0f his property bisected by the creek, that he can drive from his driveway t0 Access Easement, and there is enough room t0 park and turnaround 0n the Access Easement 011 the McNish Property. (RJN W 4-9, Exs. 4-9.) Therefore, the Third Cause 0f Action fails a matter 0f law. Page 8 . MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DRMURRER Tn PLAINTIFFR’ VFRTFIEB COMPI .AINT 10 11 12 13 I14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. Demurrer T0 Fourth Cause Of Action For Easement By Implication The Fourth Cause 0f Action for Easement by Implication fails t0 state facts sufficient t0 constitute a cause of action, fails t0 join Dan Bikle as a necessary party (CCP § 430.10(d) & (9).) T0 use the requested easement herein McNish must cross over Bikle’s Property, thus he ié a necessary party t0 this cause 0f action. (RJN 1] 1, EX. 1 [VCW 4, 10, 17, 18, 30, 31, 32, 33, 35, 50, 53, 55, 66]; RJN fl 3, Ex. 3 [FAC 1m 4, 13, 25, 26, 27, 28, 30, 37, 38, 40, 46, 50, 51, 53, 54, 56, 66, 67.) “It is Well settled that the law never imposes an implied easemént 0r an easement by necessity contrary t0 the express intent 0fthe parties.” (L05 Angeles County v. Bartlett (1962) 203 Cal.App2d 523, 529.) “The purpose 0f the doctrine 0f implied easements is t0 give effect t0 the actual intent 0f the parties as shown by all the facts and circumstances.” (Id. at 530.) “An implied reservation 0f an easement may be inferred where there is an obvious ongoing use that is reasonably necessary t0 the enjoyment 0f the land granted.” (Thorstrom v. Thorsrrom (201 1) 196 Cal.App.4th 1406, 1419.) “An additional element usually required at common law for the creation 0f an easement by implication is that the easement should be reasonably necessary for the enjoyment 0fthe prepefiy conveyed.” (Ibid) “An implied easement may arise When, under certain specific circumstances, the law implies an intent 0n the part 0f the parties t0 a property transaction t0 create 0r transfer an easement even though there is n0 written document indicating such an intent.” (Mikels v. Rager (1991) 232 Ca1.App.3d 334, 357, reh'g denied and opinion modified (Aug. 13, 1991) [Emphasis added].) The elements required t0 establish an implied easement are: “(1) A separation 0f title; (2) [B]ef0re the separation takes place the use which gives rise t0 the easement shall have been so long continued and so obvious as t0 show that it was intended to be permanent; and Page 9 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF nFMTmRER Tn PLAINTIFFR’ VERIFIED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3) [T]he easement shall be reasonably necessary t0 the beneficial enjoyment 0f the land granted.” (Ibid. [Internal quotations omittedD The Verified Complaint fails t0 allege any facts showing the three required elements, and thus the Fourth Cause 0f Action fails as a matter 0f law. Moreover, it is a known fact that McNish has a footbridge t0 access the portion 0f his property bisected by the creek, that he can dIive from his driveway t0 Access Easement, and there is enough room t0 park and turnaround on the Access Easement 011 the McNish Property. (RJN 1N 4-9, EXS. 4-9.) G. Demurrer To Fifth Cause Of Action For Equitable Easement The Fifth Cause ofAction for Equitable Easement fails t0 state facts sufficient t0 constitute a cause of action, fails t0 join Dan Bikle as a necessary party (CCP § 430.10(d) & (6).) T0 use the requested easement herein McNish must cross over Bikle’s Property, thus he is a necessary party t0 this cause 0f action. (RJN ‘fl 1, Ex. 1 [VC W 4, 10, 17, 18, 30, 31, 32, 33, 35, 50, 53, 55, 66]; RIN 1] 3, Ex. 3 [FAC fl 4, 13, 25, 26, 27, 28, 30, 37, 38, 40, 46, 50, 51, 53, 54, 56, 66, 67.) Equitable Easement is not a cause 0f action, it is an affinnative defense. (Nellie Gail Ranch Owners Assn. v. AJcMullin (2016) 4 Ca1.App.5th 982, 1003, as modified 0n denial 0f reh'g (Oct. 2'7, 2016).) “For a trial court t0 exercise its discretion t0 deny an injunction and grant an equitable easement, three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful 0r negligent. The court should consider the parties” conduct t0 determine Who is responsible for the dispute. Second, unless the rights 0f the public would be harmed, the court should grant the injunction if the plaintiff Will suffer irreparable injury regardless 0f the injury to defendant. Third, the hardship t0 the defendant from granting the injunction must be greatly dispmportionate t0 the hardship caused plaintiff by the continuance 0f the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant... Unless all three prerequisites are established, a court lacks the discretion t0 grant an equitable easement.” Page 10 NIEMORANDUIVI OF POINTS AND AUTHORITIES IN SUPPORT OF DFMTTRRFR TO PLAINTIFFQ’ VERFFTFD COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id. at 1003-1004 [Internal quotations and citations omitted; Emphasis added].) “This same relative hardship test has been applied in cases involving not physical encroachments 011 another’s property, but rather disputed rights 0f access over a neighbor’s property.” (Tashakori v. Lakis (201 1) 196 Cal.App.4th 1003, 1009.) “[T]he equitable nature 0fthis doctrine does not give a court license t0 grant easements 011 the basis 0f whatever [a court] deems important, even When these prerequisites are absent.” (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19, as modified 011 denial 0f reh'g (June 17, 201 5).) In fact, McNish only alleges the existence 0f the third element. (RIN fl 1, EX. 1 [VC 1[ 55].) Thus, the Fifth Cause 0f Action fails. Additionally, “the authorities state that the first factor - showing the trespass is innocent rather than Willfill 0r negligent m is the most important.” (Ranch az‘ the Falls LLC v. O’Neal (201 9) 38 Ca1.App.5th 155, 184, reh'g denied (Aug. 21, 2019), review denied (NOV. 13, 2019).) 111 order t0 obtain an equitable easement the trespass at issue “must be the result 0f inadvertence and mistake”, that is “the trespass must be the result 0f an innocent mistake 0f fact 0r there must be a bonafide claim 0f right.” (Christensen v. Tucker (1 952) 1 14 Cal.App2d 554, 564 [Italics original; Internal quotations 0mitted].) McNish has failed t0 allege facts showing an innocent treSpass onto Singla’ s Property. Particularly;McNish alleges that without an equitable easement he must choose between “trespassing 0n the Singla’s 0r Bikle’s property,” establishing any use 0f Singla’sfl Property as willful, and thus precluding an equitable easement. McNish has failed t0 allege Singla would not suffer an irreparable harm. (Shoen, supra, 237 Ca1.App.4th at 19.) “[E]quitable easements give the trespasser What is, in effect, the right 0f eminent domain by permitting him t0 occupy property owned by another. Such a right is in tension With the general constitutional prohibition against the taking 0f private property. This is why courts approach the issuance 0f equitable easements with an abundance of caution, and resolve all doubts against their issuance. It explains why additional weight is given t0 the owner’s Page 11 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F TIFMTTRRF‘R T0 PLAINTIFF? VERIFIED COMPLATNT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 room t0 park and turnaround 0n the Access Easement 0n the McNish Property. (RJN W 4-9, EXS. loss 0fthe exclusive use ofthe property arising from her ownership, independent 0f any hardship caused by the owner’s loss 0f specific uses in a given case. And it elucidates Why there must be a showing that the hardship 0n the trespasser be greatly disproportionate t0 these hardships 0n the owner. T0 allow a court t0 reassign property rights 0n a lesser showing is to dilute the sanctity 0fproperty rights enshrined 1'11 our Constitutions. (Id. at 20-21 [Emphasis added; Internal quotations and citations ' omitted].) Thus, requested equitable easement is a Fifth Amendment taking 0f Singla’ s Pr0perty which would irreparably harm Singla. Moreover, the balance of hardships d0 not weigh in McNish’s favor. McNish alleges an equitable easement is needed on Singla’s Property t0 tum around While using the Access Easement, however, McNish fails t0 allege why vehicles cannot use the McNish Property t0 tum around. McNish can use his own property t0 park vehicles and turn vehicles around. Additionally, McNish fails t0 allege any facts showing McNish’ s right t0 use the Access Easement from Magdalena Road up t0 the MoNish Property line Which would allow vehicles 011 the Access Easement without first crossing the McNish Property. Lastly, it is a known fact that McNish has a footbridge t0 access the portion of his property bisected by the creek, that he can drive from his driveway t0 Access Easement, and there is enough 4-9.) H. Demurrer T0 Sixth Cause Of Action For Iniunctive Relief Injunctive reliefis a remedy, not a cause 0f action. (Allen v. City ofSacmmento (2015) 234 Cal.App.4th 41, 65; and Shell Oil C0. v. Richter (1942) 52 Cal.App.2d 164, 168.) “A cause 0f action must exist before a court may grant a request for injunctive relief.” (Allen, supra, 234 Ca1.App.4th at 65.) Therefore, the Sixth Cause 0f Action fails t0 state a cause 0f action. (CCP § 4301003).) Page 12 MEMORANDIM OF POINTS AND AUTHORITIES IN SUPPORT OF DFWTRRFR TO PLATNTTFFQ’ VERIFIED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22' 23 24 25 26 27 28 I. Demurrer T0 Seventh Cause Of Action For Declaratory Relief The Seventh Cause 0f Action for Declaratory Relief fails t0 state facts sufficient t0 constitute a cause 0f action, fails t0 join Dan Bikle as a necessary party (CCP § 430.10(d) & (6).) To use the requested easement herein McNish must cross over Bikle’s Property, thus he is a necessary party t0 this cause 0f action. (RJN 1] 1, Ex. 1 [VC fl 4, 10, 17, 18, 30, 31, 32, 33, 35, 50, 53, 55, 66]; RJN 11 3, EX. 3 [PAC 1H] 4, 13, 25, 26, 27, 28, 30, 37, 38, 40, 46, 50, 51, 53, 54, 56, 66, 67.) “One cannot analyze requested declaratory reliefWithout evaluating the nature 0f the rights and duties that plaintiff is asserting, which must follow some recognized 0r cognizable legal theories that are related t0 subjects and requests for relief that are properly before the court.” (D. Cummins Corp. v. United States Fideiity cf: Guaranty C0. (2016) 246 Ca1.App.4th 1484, 1489.) “The court may refuse t0 exercise the power granted by this chapter in any case Where its declaration 0r determination is not necessary 0r proper at the time under all the circumstances.” (CCP §1061.) “Where a trial court has concluded the plaintiff did not state sufficient facts t0 support a statutory claim and therefore sustained a demurrer as t0 that claim, a demurrer is also properly sustained as t0 a claim for declaratory reliefwhich is “wholly derivative” of the statutory claim.” (Ball v. FZeez‘Boston Financial Corp. (2008) 164 Ca1.-App.4th 794, 800.) “The court may sustain a demurrer 0n the ground that the complaint fails t0 allege an actual 0r present controversy, 0r that it is not justiciable. The court also may sustain a demurrer Without leave t0 amend if it determines that a judicial declaration is not necessaly 0r proper at the time under all the circumstances.” (DeLaum v. Beckett (2006) 137 Cal.App.4th 542, 545 [Internal quotations 0mitted].) The Seventh Cause 0f Action merely restates and incorporates each and every preceding cause 0f action. (RJN 1] 1, EX. 1 [VC W 6166].) Thus, the Seventh Cause 0f Action is wholly derivative 0f the preceding causes 0f action, and thus the Seventh Cause 0f Action fails because Page 13 DIEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF nnwnmmm Tn PLAINTWFR’ VERIFIED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the preceding causes 0f action fail t0 state a claim. AS stated above, Singla’s have an absolute right t0 use the Access Easement and pave the Access Easement on the McNish Property. Moreover, McNish has failed allege facts sufficient t0 constitute a right t0 an easement across Singla’s Property. J. Demurrer T0 Eighth Cause Of Action For Quiet Title T0 Easement The Eighth Cause 0f Action for Quiet Title t0 Easement fails t0 state facts sufficient t0 constitute a cause 0f action, fails to join Dan Bikle as a necessary party (CCP § 430.10(d) & ((3).) To use the requested easement herein McNish must cross over Bikle’s Property, thus he is a necessary party to this cause 0f action. (RJN 1[ 1, EX. 1 [VC fl 4, 10, 17, 18, 30, 31, 32, 33, 35, 50, 53, 55, 66]; RJN 1T 3, EX. 3 [FAC W 4, 13, 25, 26, 27, 28, 30, 37, 38, 40, 46, 50, 51, 53, 54, 56, 66, 67.) A cause of action for quiet title must allege the following: “‘(a) A description of the property that is the subj est 0fthe action. In the case 0f tangible personal property, the description shall include its usual location. In the case 0f real property, the description shall include both its legal description and its street address or common designation, if any. (b) The title 0f the plaintiff as t0 Which a determination under this chapter is sought .and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. (c) The adverse claims t0 the title 0f the plaintiff against Which a determination is sought. (d) The date as 0f which the determination is sought. If the determination is sought as 0fa date other than the date the complaint is filed, the complaint shall include a statement 0f the reasons Why a determination as 0f that date is sought. (e) A prayer for the determination of the title 0f the plaintiff against the adverse claims.” (CCP §761.020.) Page 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRFR Tn PLAINTIFF? VERIFIED COMPI ,ATNT 10 11 12 13 14_ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A demurrer t0 a cause 0f action for quiet title is properly sustained where the quiet title cause 0f action is premised 0n a theory that fails. (Walters v. Boosinger (2016) 2 Ca1.App.5th 421, 438439; See also, Ephraim v. Mefiopolil‘an Trust Co. ofCaZ. (1946) 28 Cal.2d 824, 833-834.) As stated above, this Cause ofAction fails because McNish has failed allege facts sufficient t0 constitute a right t0 right t0 use the Access Easement from Magdalena Road t0 the McNish Preperty line, and McNish has failed allege facts sufficient t0 constitute a right t0 an easement 0n the Singla Property. 3. CONCLUSION For the foregoing reasons, Defendants request that their Demurrer t0 Plaintiffs’ Verified Complaint be granted in its entirety as t0 the First, Second, Third, Fourth, Fifth, Sixth, Seventh, and Eighth Cause 0f Action. A Proposed Order has been filed herewith for the Court’s convenience. DATED: October 29, 2020 B Rdfbert J. Willisé/ Attorneys for Defendants, INDU SINGLA and CHANDRA SINGLA Page 15 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF T)F.M1TRRF.R T0 PLATNTTF‘FQ’ VERIFIED COMPLAINT 11 12 13 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE [1013A131 CCPI STATE 0F CALIFORNIA ) ) ss. COUNTY 0F FRESNO ) I am employed in the County 0f Fresno, State 0f California. 1am over the age 0f 18 and not a party t0 the within action. My business address is: 7491 N. Remington Avenue, Suite 100, Fresno, California 9371 1. On October 29, 2020, I served the foregoing document described as: MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEMURRER T0 PLAINTIFFS’ VERIFIED COMPLAINT 0n the party/parties named below in said action by placing D the original a true copy thereof enclosed in a sealed envelope address as follows: VIA EMAIL & U.S. MAIL KAVEH BADIEI . RALLS GRUBER & NIECE LLP 1700 South El Camino Real, Suite 150 San Mateo, CA 94402 D BY OVERNIGHT DELIVERY: I deposited the document in a box 0r other facility reg- ularly maintained by UPS and in an envelope 0r package designated by the UPS With delivery fees paid 0r provided for. E BY MAIL: I am “readily familiar” With the film’s practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the U. S. postal service 0n that same day with postage thereon fully prepaid at Fresno, California, in the ordinary course 0f business. I am aware that on motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date is'more than one day after date 0f deposit for mailing in affidavit. ' E VIA ELECTRONIC MAIL: I caused a true and correct scanned image (.PDF file) t0 be transmitted Via electronic mail t0 the above address(es) indicated above. D BY PERSONAL SERVICE: I delivered such envelope by hand t0 the offices 0f the ad- dresses. Executed 0n October 29, 2020 at Fresno, California. E STATE: I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. \9 4"; ’ . ' kkk ‘- ,. 3: z \KLMA .35.; a,“vwgz#"iw-vmwugg g‘é-‘mé? i g: - O Mo: Kellle Dundore