Case Name: Indiveri v. Ahmadi, et al.
Case No.: 17CV316895

I. Background

This action arises from a dispute over the location of a boundary line between property owned by plaintiff Pearl Indiveri (“Plaintiff”) and property owned by defendants Rubil Ahmadi and Nargoi Rezvani (collectively “Defendants”).

As alleged in the Complaint, Plaintiff has held title to her property since 1965. (Complaint, ¶ 5.) At the time of purchase, a fence separated the driveway on Plaintiff’s property from the driveway of the adjacent property and Plaintiff understood the fence to mark the boundary line between the two properties. (Id. at ¶¶ 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 ¶ 10.) During that time, she rebuilt the fence twice on the same line. (Id. at ¶ 11.) In November 2016, Defendants purchased the adjacent property and now assert their property extends past the fence and encroaches on the driveway that has belonged to Plaintiff for the past 50 years (the “Disputed Property”). (Id. at ¶ 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 to 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 properties that was prepared by a professional land surveyor and recorded in the Santa Clara County Recorder’s Office. Their request is made pursuant to subdivision (h) of 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 of judicial notice is to serve as a substitute for formal proof, thereby expediting the production and introduction of evidence that would otherwise be admissible. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.) A matter can therefore be subject to judicial notice only if it is reasonably beyond dispute and the introduction of evidence to prove that matter would not be required. (Id.; see also Herrera v. Deutsche Bank Nat. Tr. Co. (2011) 196 Cal.App.4th 1366, 1374; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) As such, while courts can take judicial notice of the existence of different types of records, including public records, they do not take notice of the truth of the matters stated therein as those facts are not reasonably beyond dispute. (Herrera, supra, 196 Cal.App.4th at 1375.)

Here, Defendants seek judicial notice of the record of survey solely for the purpose of 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 Defendants’ surveyor reached a certain conclusion regarding the location of the boundary line between the properties, 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 of the four causes of action in the Complaint on the ground of failure to state facts sufficient to 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. (f).)

Defendants do not 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 of action is for quiet title. Plaintiff alleges she is the sole owner of the fence and the Disputed Property through the grant deed under which she took title to her property in 1965. In the alternative, she alleges that if she is not the owner of the fence and the Disputed Property, she has acquired ownership through adverse possession or an interest through a prescriptive easement.

Defendants first argue this claim is deficient because Plaintiff fails to affirmatively state if the Disputed Property is located on her property or Defendants’ property and instead alleges alternative theories requiring her to plead inconsistent facts. By way of example, Defendants 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 of 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 Co. (2006) 140 Cal.App.4th 1395; see also Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.) “Tolerance for such pleading rests on the principle that uncertainty as to factual details or their legal significance should not force a pleader to gamble on a single formulation of his claim if the facts ultimately found by the court, though diverging from those the pleader might have considered most likely, still entitle him to relief.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 886.) Though a pleader cannot blow hot and cold as to the facts positively stated or allege contradictory or antagonistic facts in 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 Cal.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 each ground separately and does so in a way that is free from self-contradiction. Specifically, Plaintiff first alleges on information and belief that she owns the Disputed Property and her title is based on the 1965 grant deed. (See Complaint, ¶ 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 ¶¶ 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 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 a distance of between 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 of judicial 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 311, 318.) 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 misguided for the additional reason that it appears to be predicated on a misunderstanding regarding the purpose and function of a demurrer. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (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 court.” (Alcorn v. Anbro Eng’g, Inc. (1970) 2 Cal.3d 493, 496.) A demurrer is not the appropriate procedure for determining the truth of disputed facts. (Fremont Indem. Co., supra, 148 Cal.App.4th at 115.)

Here, Plaintiff alleges she owns the Disputed Property. (See Complaint, ¶¶ 9, 14, 18-19.) Whether or not she will be able to prove this allegation is of no concern to this Court in evaluating the sufficiency of her 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 between their properties. As such, regardless of what the record of 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 portion 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 II, 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 of the County Tax Collector.” (Dem. at p. 6:11-13; 8:3-5.) 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 property 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 of The 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, ¶¶ 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.” (Id. at ¶ 22.) As such, her allegation regarding payment of taxes is properly read in reference to conditions under which she does not own the Disputed Property and is most reasonably construed as an allegation she therefore paid taxes on another person’s property.

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 demurrer. Moreover, the Court observes that where title is sought by adverse possession, the “complaint shall allege 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, ¶ 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 failure to state facts sufficient to constitute a claim is OVERRULED.

B. Fourth Cause of Action

The fourth 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 disproportionate to the harm Defendants would suffer if the encroachment remained. (Complaint, ¶¶ 30-32.)

As a preliminary matter, an affirmative claim for an equitable easement is properly construed as one for declaratory relief. (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1011–13.) In essence, the encroaching party is seeking a judicial determination that he or she is equitably entitled to continue accessing the property. (Id. at 1011 [“The fact that the equitable easement claim is not denominated as a request for declaratory relief is inconsequential…[t]he 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) ¶ 4:102.22.) Therefore, in evaluating a cause of action for an equitable easement, courts apply the pleading standard for a declaratory relief claim. (Tashakori, supra, 196 Cal.App.4th at 1011.)

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 granted 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 party 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 supporting the proposition that this doctrine should be applied in the context of evaluating the sufficiency of an affirmative claim for an equitable easement.

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 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 such, fail to substantiate their argument. (See Cal. Rules of Court, rule 3.1113(b) [supporting memorandum must include a discussion of legal authority in support of the position advanced].) Second, the fact that causes of action are duplicative “is not a ground on 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 ground of uncertainty may be sustained where a claim is duplicative. The standard for uncertainty is that the allegations of the pleading must be so unintelligible the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., 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 of action is for injunctive relief. Plaintiff alleges Defendants have threatened her quiet enjoyment and use of the Disputed Property and requests an order enjoining them from 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 of Sacramento (2015) 234 Cal.App.4th 41, 65; see also Roberts v. Los Angeles Cty. Bar Assn. (2003) 105 Cal.App.4th 604, 618; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) As such, while a party 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.

Accordingly, the demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a claim is SUSTAINED WITHOUT LEAVE TO AMEND.