2013-00148829-CU-OR

Troy J. Davis vs. Vadim Bachinsky

Nature of Proceeding: OSC Re: Why a Preliminary Injunction Should not be Ordered

Filed By: Beaudoin, Gerald J.

Plaintiffs Troy and Debra Davis’ application for a preliminary injunction is denied.

Plaintiffs filed this action seeking to quiet title to a disputed piece of property based on
an adverse possession theory. They allege that in June 1999, they entered a 25
month lease-option agreement with Louis Bonacich which gave them the option to
purchase property located at 9319 Twin Lakes Avenue, Orangevale, CA, (Parcel 1)
which they allege included a portion of an adjoining parcel (Parcel 3) which is the
disputed property at issue in this lawsuit. Plaintiffs purchased the subject property
pursuant to the option in October 2001. They allege that the subject property’s
backyard was fully fenced and that unknown to them, a portion of the backyard
encroached onto Parcel 3, owned by Bonacich, running along the back fence of the
subject property. Bonacich allegedly owned the lot from 1994 to January 2013 when
he sold it to Defendant Vadim Bachinsky. Defendant has allegedly threatened to
remove the fencing on the basis that the fencing encroaches upon his property.

On October 24, 2013, the Court granted Plaintiffs’ application for a TRO and issued
the instant OSC re: Preliminary injunction.

“To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence
of the irreparable injury or interim harm that it will suffer if an injunction is not issued
pending an adjudication of the merits. Past California decisions further establish that,
as a general matter, the question whether a preliminary injunction should be granted
involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or
denial of interim injunctive relief.” ( White v. Davis (2003) 30 Cal.4th 528, 554.) The
greater the showing on one factor, the lesser the showing must be on the other. (Butt
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v. State of California (1992) 4 Cal.4 668, 678.)

Likelihood of success

In order to prevail on their claim that they have adversely possessed a portion of
Parcel 3, Plaintiffs must show “(1) possession under claim of right or color of title; (2)
actual, open, and notorious occupation of the premises constituting reasonable notice
to the true owner; (3) possession which is adverse and hostile to the true owner; (4)
continuous possession for at least five years; and (5) payment of all taxes assessed
against the property during the five-year period.” (Mehdizadeh v. Mincer (1996) 46
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Cal.App.4 1296, 1305; CCP § 325.)

Plaintiffs’ moving papers and verified complaint are insufficient to demonstrate that
they are likely to succeed on their adverse possession claim, the only claim alleged in
the complaint. Indeed, Plaintiffs fail to demonstrate that they paid the property taxes
for Parcel 3. In his supplemental declaration, Plaintiff Troy Davis declares that
Plaintiffs paid the taxes for the “Subject Property” and attaches tax records from the
Sacramento County tax collector. (Troy Davis Supp. Decl. ¶ 13, Exh. D.) However, an
examination of those records shows that they are for the taxes assessed on 9319 Twin
Lakes Avenue, Orangevale, CA, parcel number 235-0382-040-000, e.g., Parcel 1.
(Id.) This is not the property that Plaintiffs allege they adversely possessed. That
property is a portion of Parcel 3 which is parcel number 235-0382-042-000.
Defendant’s opposition evidence shows that at all times, Bonacich paid the taxes for
Parcel 3. (Bonacich Decl. ¶ 15, Exh. D.)

Indeed, Plaintiffs never even allege in the complaint that they paid the taxes for Parcel
3. Instead they only carefully allege that they paid taxes for the “Subject Property,”
again defined as 9319 Twin Lakes Avenue. (Verified Comp. ¶¶ 1, 22.) Critically,
however, they are seeking to establish that they adversely possessed a portion of
Parcel 3. (Id. ¶ 3 “Parcel 3, as noted in the preceding paragraph, is also real property
that is the subject of this litigation. It is a portion of Parcel 3 that plaintiffs acquired by
adverse possession.”) Having failed to set forth any evidence that they paid the taxes
on Parcel 3 or any portion thereof, Plaintiffs have failed to demonstrate a likelihood of
success on their adverse possession claim and the motion for preliminary injunction is
denied on this basis alone. (Mehdizadeh, supra, 46 Cal.App.4th at 1305 [party “could
not claim adverse possession of the disputed property because he did not pay taxes
on it”].)

In addition, the Court also finds that Plaintiffs failed to establish that their possession of
Parcel 3 was adverse. Nor do plaintiffs hold the portion of Parcel 3 under claim of right
against the world. (See, e.g. Newman v. Cornelius (1970) 3 Cal. App. 3d 279, 289 [”
Thus it has been held that one who occupies the land of another in the mistaken belief
that he, and not some other person, is the owner, doing so openly for the statutory
period, and paying all taxes levied against the land, acquires title by adverse
possession. His occupancy is deemed hostile as against the world, including the true
owner, unless that owner be the sovereign.”] As seen from the opposition evidence,
once Bonacich, Defendant’s predecessor, sold Plaintiffs Parcel 1, the plaintiffs used
the portion of Parcel 3 with Bonacich’s permission at all times in exchange for Plaintiffs
providing landscaping maintenance for Parcels 2, 3, and 4, allowing him to utilize
Parcel 3 for his own needs, and agreeing that if he ever sold the property, Plaintiffs
would have to remove anything they had on Parcel 3 and could no longer use it.
(Bonacich Decl. ¶¶ 6-13). Possession with the owner’s consent is not adverse. (
Beckett v. City of Petaluma (1915) 171 Cal. 309, 316.) Further, as seen from
Bonacich’s detailed declaration, he [Bonacich] continued to use Parcel 3 along with
Plaintiffs as he had a storage shed on the parcel, stored trailers and equipment on the
parcel and routinely accessed Parcel 3 to retrieve equipment and bring in new
equipment. (Bonacich Decl. ¶¶ 12-13) Thus, Defendant’s evidence also shows that
Plaintiffs’ use of Parcel 3 was also not exclusive given the owner at the time
continually used the property as well. This evidence also lends itself to the conclusion
that the use by plaintiffs was not open and notorious.

In sum, the Court finds Defendant’s evidence to be credible and more persuasive than
Plaintiff Troy Davis’ declaration containing the brief statement that Bonacich never
advised Plaintiffs that they were using Parcel 3 with Bonacich’s permission. ( Voeltz v.
Bakery & Confectionery Workers International Union (1953) 40 Cal.2d 382, 386
[overruled on other grounds] [Court determines credibility of declarations in connection
with application for preliminary injunction].) In addition to the failure to pay taxes,
Plaintiffs also failed to establish a likelihood of success because they have not shown
that their use of Parcel 3 was adverse or exclusive, open or notorious.

The Court notes that Plaintiffs’ original application and supplemental brief refer to
potential causes of action, for example prescriptive easement, that they may seek to
add by way of an amended complaint. None of these unpled causes of action can
support the instant application for preliminary injunction based on the existing pleading
which alleges only an adverse possession claim.

In sum, the Court concludes, for purposes of the instant motion only, that Plaintiffs
have failed to demonstrate any likelihood of success on their quiet title cause of action
based on adverse possession.

Given this finding, the Court need not reach the issue of whether the balance of harms
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tips in Plaintiffs’ favor. (Hunt v. Superior Court (1999) 21 Cal.4 984, 999 [“trial court
may not grant a preliminary injunction, regardless of the balance of the interim harm,
unless there is some possibility that the plaintiff would ultimately prevail on the merits
of the claim.”]; see also Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d
454, 459 [court may deny preliminary injunction solely on finding that the moving party
failed to demonstrate reasonable probability of success on the merits].)

Defendant’s request for judicial notice of recorded documents is granted.

Plaintiffs’ application for a preliminary injunction is denied. The TRO is dissolved and
the OSC is discharged.

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.