Notice of Motion For Summary Adjudication, Points And Authorities

Motion

Cal. Super. - 4th Dist.January 25, 2018

© 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O MICHAEL C. HEWITT, Cal. Bar No. 148678 LAW OFFICES OF MICHAEL C. HEWITT, INC. 2082 Michelson Drive, Suite 300 Irvine, California 92612 Telephone: 949-825-5260 Facsimile: 949-825-5261 Mary Jean Pedneau, Esq. (SBN: 126157) PARKER & ZUBKOFF LLP 110 West A Street, Suite 615 San Diego, California 92101 Telephone: (619) 233-8292 Facsimile: (619) 233-8636 Attorneys for Defendants Edward J. Frost and Lau SUPERIOR COURT OF THE raA.Jesse-Frost STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER Hugh T. McNulty and Stacey L. McNulty, Trustees of the Hugh T. McNulty and Stacey L. McNulty Family Trust dated December 4, 2012, Plaintiffs, Edward). Frost and Laura A. J essee-Frost, husband and wife; Deena Barker; and DOES 1 through 50, inclusive, Defendants. TO ALL PARTIESAND THEIR RESPECTIV Case No. 30-2018-00969303-CU-OR-CJC NOTICE OF MOTION AND MOTION BY DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES Assigned for all purposes to: Hon. Derek W. Hunt, Dept. C23 Action Filed: January 25, 2018 DATE: March 15, 2019 TIME: 9:00 a.m. DEPT.: Dept. C23 COURT RESERVATION NO. 72949969 [Notice of Motion and Motion for Summary Adjudication, Separate Statement of Undisputed F acts, Request for J udicial Notice, Declarations of Michael C. Hewitt and Daniel Tobar, and Proposed Order filed concurrently herewith] E COUNSEL OF RECORD: PLEASE TAKE NOTICE that on March 15, 2019, at 9:00 a.m., or as soon thereafter as this matter may be heard in Department C23 of thejabove-entit ed Court, located at 700 Civic CenterDEFENDANTS EDWARD J.FROST AND LAURA A.J ESSE-FROST’S REQUEST FOR JUDICIAL NOTICEIN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION Drive West, Santa Ana, California 92701, Defendants Edward J. Frost and Laura A. J esse-Frost, husband and wife (hereinafter “Defendants” or “the Frosts”), will move the Court for an order granting summary adjudication of the issues. Defendants make this M otion for Summary Adjudication of the issues pursuant to California Code of Civil Procedure (“C.C.P.”) § 437c, on the grounds that there are no triable issue of material facts and Defendants are entitled to judgment as a matter of law, in that: © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O 1. Plaintiffs” First Cause ofAction to Quiet Title to Easements is without merit because there is no servient tenement for Plaintiffs to claim a real property interest (i.e.: easement) because Plaintiffs admit that the propane tank is not on the Frost property (Response to Request for Admission No. 17) and Plaintiffs own the property described as the “Subject Property” upon which the propane tank is located (See grant deeds attached hereto as Exhibits A, B, and C to the Request for Judicial Notice -- hereinafter referred to as “RIN”- - submitted concurrently herewith.); 2. Plaintiffs’ Second Cause of Action for Enforcement of Easements fails as a matter of law as a servient tenement in the Frost Property never existed and any alleged easement in the Barker Property is extinguished because Plaintiffs’ own the Subject Property upon which the alleged easement is located. (Civil Code §811.) (See grant deed, Exhibits A, B, and C to RJN.); 3. Plaintiffs’ Ninth Cause of Action for Injunctive Relieffails as a matter of law and is subject to summary adjudication because the action is not justiciable in that there is no actual case or controversy where the party asserting injunctive relief pursuant to an easement does not, as a matter of law, have an actionable claim for an easement; and 4, Plaintiffs’ Tenth Cause of Action for Declaratory Relief fails as a matter of law and is subject to summary adjudication because the action is not justiciable, and the Verified Complaint does not allege a written instrument upon which declaratoryrelief can be sought. The Frosts’ Motion for Summary Adjudication of the issues is based upon the instant motion, the accompanying memorandum of points and Jthorities, the separate statement of undisputed DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARYADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O facts, the declarations of Michael C. Hewitt and Daniel Tobar, the Request for Judicial Notice and accompanying Exhibits A, B, and C, all attached and referenced exhibits, such oral arguments as the Court may considerat the hearing of this motion, all records, papers and pleadings on file in this action, and any matters of which the Court may or must take J udicial Notice. PLEASE TAKE FURTHER NOTICE of the following tentative ruling information pursuant to the Local Rules of the Superior Court of California, County of Orange, Rule 382: “Those tentative rulings which are posted on the Internet may be viewed at www.occourts.org. In addition, tentative rulings on unlimited civil cases may be obtained by calling the clerk of the courtroom where the case is assigned, or the Clerk’s Office if the case is a limited civil action, after 3:00 p.m. on the court day before the scheduled hearing.” Dated: December 17, 2018 LAW OFFICES OF MICHAEL C. HEWITT By:fs MICHAEL C.HEWITT Attorneys for Defendants, Edward |. Frostand Laura A. J esse-Frost -3- DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O MEMORANDUM OF POINTS AND AUTHORITIES l. INTRODUCTION This lawsuit is predicated upon a property line dispute between the Plaintiffs, Hugh T. McNulty and Stacey L. McNulty, Trustees of the Hugh T. McNulty and Stacey L. McNulty Family Trust dated December 4, 2012 (hereinafter “Plaintiffs” or the “McNultys”) and Defendants Edward J. Frost and Laura A. J esse-Frost, husband and wife (hereinafter the “Frosts”). In responses to Request for Admissions, Set One, the M cN ultys have admitted that the propane tank in question is not on the Frost property. (Undisputed Fact No. 6.) The evidence establishes that the McNultys’ purchased the Subject Property from Deena Barker, upon which the propane tank, fence and chicken coop were located (Undisputed Fact No. 3). Therefore, the alleged easement and associated causes of action are moot. The McNultys dismissed Defendant Deena Barker on June 4, 2018. There is no factual dispute: the propane tank and service lines are located on the McNultys’ property and were never located on the Frosts’ property; therefore, the First, Second, Ninth and Tenth cause of action must be adjudicated in favor of the Frosts. The M cNultys have harassed the Frosts to the point that the Frosts have moved out of the Frost property, listed the Frost property for sale and purchased a new home far away from the M cNultys. I PROCEDURAL SUMMARY On January 25, 2018, the M cNultys filed a Verified Complaint against the Frosts alleging ten (10) causes of action: (1) To Quiet Title to Easements; (2) For Enforcement of Easements Pursuant to Civil Code Section 809; (3) To Enjoin Private Nuisance; (4) For Forcible Unlawful Detainer; (5) For Trespass; (6) For Conversion; (7) For Statutory Invasion of Privacy; (8) For Common Law Invasion of Privacy; (9) For Injunctive Relief; and (10) For Declaratory Relief. The Frosts respectfully request that the Court take Judicial Notice of McNultys’ Verified Complaint pursuant to Evidence Code §§ 452 and 453. 1 DEFENDANTS EDWARD J.FROST AND LAURA A.J ESSE-FROST’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O On March 20, 2018, the Frosts filed their Verified Answer to the Verified Complaint. The M cNultys dismissed Defendant Deena Barker on June 4, 2018 due to the fact that the M cNultys purchased Deena Barker’s property after filing the lawsuit. (See Undisputed Fact No. 3; see also RJN, Exhibit C). On or about June 27, 2018, the Frosts propounded Request for Admissions (Set One) (hereinafter “RFAS1”) against the McNultys. (See Hewitt Declaration, Exhibit D). On or about August 10, 2018, the M cNultys served their responses to the RFAS1. (See Hewitt Declaration, Exhibit E). True and correct copies of the RFAS1 and the McNultys’ responses thereto are attached the Declaration of Michael C. Hewitt (“Hewitt Declaration”) as Exhibits “D” and “E,” respectively. Il. UNDISPUTED FACTS The salient and undisputed facts for the purposes of this Motion for Summary Adjudication are as follows: A. The McNulty Property The McNultys are owners in fee simple of the real property located in the County of Orange, State of California, commonly known as 31305 Mountain View Trail, Silverado, California 92676, APN 105-191-38 (hereinafter the “McNulty Property”). The legal description of the McNulty Property is pled on page 3, lines 6-17, of the McNultys’ Verified Complaint. (See RJN, Exhibit A.) B. The Frost Property The Frosts are owners in fee simple of the real property located in the County of Orange, State of California, commonly known as 31319 Silverado Canyon Road, Silverado Canyon, California 92676, APN 105-191-322 and 105-191-05. (See RJN, Exhibit B). C. The Barker Property On May 17, 2018, the M cNultys became owners in fee simple (by Grant Deed) of the real property located in the County of Orange, State of California, commonly known as Vacant Land APN # 105-191-39, Orange, California 92676 (formerly known as and referred to in the Verified Complaint as the “Barker Property”). (See RIN, Exhibit C). 1.1. 9. DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O D. The McNulty E asement(s) The M cNultys allege that they own a propane tank, the underground gas line connecting the propane tank to the McNulty property and a chain link enclosure. (See the McNultys’ Verified Complaint, page 4, 118, lines 18-20, page 5, 120, lines 1-3). Plaintiffs also allege that the propane tank and underground service lines are “located in whole or in part on the Frost Property.” (See the McNultys’ Verified Complaint, page 4, § 19, lines 21-23). Lastly, the McNultys’ allege that the chain link enclosure was only “situated partially on the McNulty Property and partially . . . on the Barker Property” but never on the Frost Property. (See the McNultys’ Verified Complaint, page 5, 120, lines 1-3). E. The McNultys Did Not Conduct a Reasonable Investigation of the Boundary Lines Prior to Filing Their Verified Complaint The McNultys failed to conduct a boundary line survey of their own property prior to, and after, filing their Verified Complaint. (Hewitt Declaration, Exhibit D, RFAS1, nos. 6 and 7, along with the corresponding responses in Exhibit E.) The M cNultys failed to conduct a boundary line survey of the Frost Property prior to, and subsequentto, filling their Verified Complaint. (Hewitt Declaration, Exhibit D, RFASL, nos. 8 and 9, along with the corresponding responses in Exhibit E.) Lastly, the M cNultys filed their Verified Complaint without having a surveyor confirm the boundary lines for each parcel of real property involved for each claim alleged in their Verified Complaint. (Hewitt Declaration, Exhibit D, RFAS1, no. 16, and the corresponding response in Exhibit E.) F. The Propane Tank, Underground ServiceL ines, and the Chain Link Enclosure are Not L ocated on the Frost Property. The McNultys allege in their Verified Complaint that their propane tank and underground service lines are located, in whole or in part, on the Frost Property (See, the McNultys’ Verified Complaint, page 4, lines 18-26). A boundary line survey, conducted on July 2, 2018, conclusively establishes that the propane tank, underground service lines, and the chain link enclosure are not located on any part of the Frost Property. (See Declaration of Daniel Tobar at § 6). The M cNultys admit this fact. (Hewitt Declaration, Exhibit D thereto, RFAS1 no. 17, and the corresponding -3- DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O response in Exhibit E.) The M cNultys also admit that the chain link enclosure is not on the Frost Property. (See the McNultys” Verified Complaint, page 5, 20,lines 1-3). G. The Verified Complaint Fails To Allege Any Written Instrument Upon W hich Declaratory Relief Can Be Sought. The McNultys’ Verified Complaint does not contain a single reference to a written instrument upon which Declaratory Relief can be supported. (See generally, the McNultys’ Verified Complaint). IV. LEGAL STANDARD ON SUMMARY ADJUDICATION AND SUMMARY JUDGMENT. Pursuant to California Code of Civil Procedure § 437¢(f)(1) and (2), a party may bring a motion for summary adjudication under the same procedural requirements for summary judgment. (See also Food Pro Int’l, Inc. v. Farmers Ins. Exch. (2008) 169 Sal.App.4th 976, 995.) If made in the alternative to a summary judgment motion, a summary adjudication motion may refer to and depend on the same evidence submitted in support of the summary judgment motion. (Cal. Rules of Ct. 3.1350(b).) As such, the Frosts bring a motion for summary adjudication of the First, Second, Ninth and Tenth causes of action alleged in the McNultys’ Verified Complaint. A motion for summary adjudication should be granted if the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (C.C.P. § 437c; Aguilar v. Atl. Richfield Co., (2001) 25 Cal.4th 826, 843.) To be “material” for the purposes of a summary adjudication proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way. (Zavala v. Arce (1997) 58 Cal.A pp.4th 915, 926.) A party is entitled to summary adjudication if it disproves at least one essential element of the plaintiff's cause of action or shows that an element of the cause of action cannot be established. (C.C.P. § 437c; Aguilar v. Atl. Richfield Co., (supra) 25 Cal.4th at 849.) “The “tried and true” way for defendants to meet their burden ofproofon summaryjudgment motions is to present affirmative evidence (declClprations, etc.) negating, as a matter of law, an DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O essential element of plaintiff’s claim.” (Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), 910:241, internal quotes from Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.) Thefollowing arguments show thatthe M cN ultys cannot succeed on the First, Second, Ninth and Tenth Causes of Action as a matter of law. V. ARGUMENT A. The McNultys’ First Cause of Action To Quiet Title To Easements Is Without Merit Because There Is No Servient Tenement For the McNultys To Claim A Real Property Interest (i.e: Easement). Summary adjudication is proper when one or more cause of action “has no merit.” (C.C.P. § 437¢(f)(1).) An easement is “[a] right ofuse over the property of another.” (See Black’s Law Dict. (5th ed. 1979) p. 457, col. 1; see also C.C. § 801) The prerequisite for making a claim for an easement, of any kind (i.e.: express, implied, prescriptive, or by necessity), is that two (2) parcels of land exist and the person claiming the easement does not own both parcels of land. California Civil Code section 805 specifically states in relevant part: “[a] servitude thereon cannot be held by the owner of the servient tenement.” (Emphasis added.) (See also Perez v. 222 Sutter Street Partners (1990) 222 Cal.App.3d 938.) Here, the M cNultys allege that they own a propane tank and the underground gas line connecting the propane tank to the McNulty property, along with a chain link enclosure. (Undisputed Fact No. 4: the M cNultys Verified Complaint, page 4, 118, lines 18-20, and page 5, 1 20, lines 1-3). The M cNultys seek quiettitle to establish an easement over the portion of the Frost Property where the propane tank and underground service lines are allegedly “located in whole, or in part.” (See the McNultys” Verified Complaint, page 4, 9 19, lines 21-23) However, as the M cN ultys have admitted under oath, the propane tank and underground service lines are not located on the Frost Property, either in whole or in part. (Undisputed Fact No. 6: Hewitt Declaration, Exhibits D and E, McNulty RFAS1 No. 17.) Admissions of a material fact made by the opposing party in a pleading DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARYADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O are particularly appropriate support for a summary judgment motion. (Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.4th 434, 444; Villa v. M cFerren (1995) 35 Cal.A pp.4th 733, 749; see also Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), 910:245.1.) TheM cNultys admit that the propane tank is not located on the Frost Property, thereby negating any allegation of the existence of a servient tenement. The McNulty’s also admit that the chain link enclosure is not located on the Frost Property. (Undisputed Fact No. 6: the McNultys” Verified Complaint page 5, 9 20, lines 1-3). A boundary line survey, taken on or about J uly 2, 2018, conclusively establishes that neither the propane tank nor its underground service lines are located on any part of the Frost Property. (Undisputed Fact No. 6: Declaration of Daniel Tobarat 16). Moreover, the surveyor’s declaration (Undisputed Fact No. 6: Declaration of Daniel Tobar, generally) further establishes the fact that the propane tank, service lines and the chain link enclosure are not located on the Frost Property but are in fact located on what was referred to as the Barker property, which is now owned by the M cNultys. (Undisputed Fact No. 3: RJN, Exhibit C). For the foregoing reasons, the M cN ultys have no valid cause of action to quiettitle because an easement cannot be established for their benefit as a burden against the Frosts’ Property by any means (i.e.: express, implied, prescriptive, or by necessity), as the propane tank, service lines and the chain link enclosure are not, and were never, located on the Frost Property. Therefore, the Frosts are entitled to have the court grant the motion for summary adjudication of issues as to the first cause of action. B. The McNultys’ Second Cause Of Action For Enforcement Of Easements Fail By Operation Of Law. Maintaining a quiet title action on an easement when the claimant is owner of both the dominant and servient tenement is “a legal impossibility . . . since one cannot hold an easement across one's own property.” (Perez v. 222 Sutter Street Partners (supra) 222 Cal.A pp.3d at 948.) The McNultys’ Second Cause of Action seeks enforcement of an easement. It is predicated upon the First Cause of Action giving rise to the McNultys’ easementrights. -6- DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O In their responses to RFAS1, the M cNultys admit that the propane tank, service lines and the chain link enclosure are not located on the Frosts’ Property, therefore negating any allegation of the existence of a servient tenement. (Undisputed Fact No. 6: Hewitt Declaration, ExhibitD, RFAS1 no. 17, and the corresponding response in Exhibit E.) Moreover, surveyor Daniel Tobar’s declaration further supports the fact that the propane tank, service lines and the chain link enclosure are not located on the Frost Property but are in fact located on what was referred to as the Barker property and is now owned by the McNultys. (Undisputed Fact No. 6). Lastly, on May 17, 2018, the M cNultys, by grant deed, acquired the Barker Property, upon which the propane tank, underground gas lines, and the chain link enclosure are located. (Undisputed Fact No. 3: RJN, Exhibit C). In effect, the M cN ultys are claiming an easement over their own land. For the foregoing reasons, the M cNultys have no valid cause of action to enforce an easement, because an easement cannot be established for their benefit as a burden against the Frosts’ property by any means (i.e.. express, implied, prescriptive, or by necessity), as the propane tank, service lines and the chain link enclosure are not located on the Frost Property. As such, based on the doctrine of impossibility, the facts of this case and by operation of law, the McNultys’ Second Cause of Action must fail. Consequently, the Frosts are entitled to the court granting the motion for summary adjudication of issues as to the second cause of action. C. The McNultys’ Remedial Cause Of Action For Injunctive Relief Fails Because the M cNultys Cannot Succeed On The Underlying E asement-Based C auses of Action And Therefore No Actual Case or Controversy E xists. “It is settled that the duty ofthis court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” (Paul v. Milk Depots,Inc. (1964) 62 Cal.2d 129 (internal quotes omitted).) 1.1. 7 DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O “Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65; accord, City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 [“A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.”]; see Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159). The McNultys’ claim that if the Court does not grant injunctive relief, that their rights to access and use of the easement(s) will be restricted. (See, the M cNultys Verified Complaint, page 13, 972, lines 8-15). Pursuant to the evidence stated above, there can be no easement on the Frosts’ Property because the McNultys’ propane tank and underground service lines and the chain link enclosure are not located on the Frost Property. (Undisputed Fact No. 6). The McNultys also seek a judicial determination that they are the lawful owners of the easement(s) over the Frosts’ Property. (See the McNultys Verified Complaint, page 13, 9 76, lines 27-28, and page 14, 9 76, lines 1-3). There is no need for injunctive relief because the M cNultys admit that the propane tank is not located on the Frosts’ Property. (Undisputed Fact No. 6, Hewitt Declaration, Exhibit D RFAS1 no. 17, and the corresponding response in Exhibit E.) M oreover, the surveyor’s declaration further supports the fact that the propane tank, service lines and the chain link enclosure are not located on the Frosts’ Property, but are in fact located on what was referred to as the Barker property and is now owned by the M cNultys. (Undisputed Fact No. 6: Declaration of Daniel Tobar at 4 6, Hewitt Declaration, Exhibits D and E, and RJ N, Exhibit C). In other words, the relief sought by through an injunction is unnecessary and summary adjudication on the cause of action should be granted. 11 11 11 11 111 8 DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O D. The McNultys’ Remedial Causes Of Action For Declaratory Relief Fails Because The M cNultys Do Not Predicate Such Relief Upon A Written Instrument And There Is No Actual Case or Controversy For Any Easement Over The Frosts’ Property. Summary Judgment or summary adjudication is appropriate to dispose of a declaratoryrelief cause of action if the uncontroverted evidence shows that there is no triable issue of material fact. (See Arroyo v. Regents of Univ. of Cal. (1975) 48 Cal. App. 3d 796, 797) “A complaint for declaratory relief is sufficient ifit sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court.” (See Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947; see also Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 605). Under the statutory provisions of the Code of Civil Procedure § [131060, one of the procedural requirements for a judicial determination of rights is a “written instrument.” The M cNultys assert the remedial causes of action for Declaratory Relief based upon their rights to an alleged easement on the Frosts’ Property. The McNultys do not predicate declaratory relief upon any written instrument. (Undisputed Fact No. 7: the McNultys” Verified Complaint, generally). Pursuant to the evidence stated above, there can be no easement on the Frosts’ Property because the McNultys’ propane tank and underground service lines and the chain link enclosure are not located on the Frosts” Property. (Undisputed Fact No. 6). The M cNultys also seek a judicial determination that they are the lawful owners of the easement(s) over the Frosts’ Property. (See, the M cNultys Verified Complaint, page 13, 176, lines 27-28, and page 14, 176, lines 1-3). There is no need for injunctive relief because the M cNultys admit that the propane tank is not located on the Frosts Property. (Undisputed Fact No. 6, Hewitt Declaration, Exhibit D Request for Admission no. 17, and the corresponding response in Exhibit E.) Moreover,the surveyor’s declaration further supports the fact that the propane tank, service lines and the chain link enclosure are not located on the Frosts Property but are in fact located on what was referred to as the Barker property and ignow owned by the McNultys. (Undisputed Fact DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES © 0 0 d N o o u t B A Ww W N O B N N N N N N N N N N H B FR B R B 9 B F E p F p b p l c o ~ N O O U T B A O W O N F P O O O W 0 0 N N O o U l B p W N N P M O No. 6: Declaration of Daniel Tobar at 1 6, Hewitt Declaration, Exhibits D and E, and RJ N, Exhibit C). In other words, the relief sought by the declaratory relief cause of action does not exist and summary adjudication on the Declaratory Relief cause of action should be granted. VI. CONCLUSION Based on the fact that the M cNultys own the property upon which they seek an easement and the fact that the Frosts do not own the property upon which the McNultys’ propane tank, service lines and chain link enclosure lie, and the fact that the McNultys’ propane tank and chain link enclosures are not, and were never, on the Frost Property, the Frosts are entitled to summary adjudication of the First Cause of Quiet Title to Easements, the Second Cause of Action for Enforcement of Easements, the Ninth Cause of Action for Injunctive Relief and the Tenth Cause of Action for Declaratory Relief. The Frosts respectfully request that the Court grant the motion for Summary Adjudication of issues against the M cNultys and in favor of the Frosts on the First, Second, Ninth and Tenth causes of action. Dated: December 17, 2018 LAW OFFICES OF MICHAEL C. HEWITT By:fs MICHAEL C.HEWITT Attorneys for Defendants, Edward |. Frostand Laura A. J esse-Frost -10- DEFENDANTS EDWARD J. FROST AND LAURA A.J ESSE-FROST’SMOTION FOR SUMMARY ADJUDICATION AND MEMORANDUM OF POINTS AND AUTHORITIES