Case Name:   Frankel v. Jeffrey King d.b.a. King Grading, et al.

Case No.:       1-12-CV-236236

 

After full consideration of the evidence, the separate statements submitted by each party, and the authorities submitted by each party, the court makes the following rulings:

Plaintiff Louis S. Frankel (“Plaintiff”) filed an action for trespass against defendant Jeffrey King d.b.a. King Grading (“King”), alleging that King performing grading work on his real property (“the Property”), causing damage.  (Compl., ¶¶ 5-9.)

In the first amended cross-complaint (“FAXC”), King alleges that he entered into an agreement (“the Subcontract”) with cross-defendant Santa Clara County Open Space Authority (“SCCOSA”) to perform grading work on the Property, and King’s work on the Property was sanctioned by SCCOSA such that SCCOSA should be held liable for damages in the event that Plaintiff prevails on his claim against King.  (FAXC, ¶¶ 9-12 & Ex. A.)  King asserts causes of action against SCCOSA for (1) implied indemnity, (2) breach of contract, (3) declaratory relief, and (4) apportionment of fault.

King moves for summary judgment against Plaintiff’s claim.  (See Code Civ. Proc. [“CCP”], § 437c, subd. (a).)  SCCOSA moves for summary judgment, or in the alternative, summary adjudication, of the claims asserted against it in the FAXC.  (See id., at subds. (a) & (f).)

I.          King’s Motion for Summary Judgment

King’s request for judicial notice in support of his motion is GRANTED, but not as to the truth of hearsay statements in the court records.  (See Evid. Code, § 452, subd. (d); see also People v. Woodell (1998) 17 Cal.4th 448, 455.)

Plaintiff’s only claim is for trespass.  To prevail on a this claim, a plaintiff must prove: (1) he owned, leased, occupied, or controlled the property; (2) the defendant intentionally, recklessly, or negligently entered or caused another to enter the property; (3) the plaintiff did not give permission for the entry or the defendant exceeded the plaintiff’s permission; (4) he was actually harmed; and (5) the defendant’s entry or conduct was a substantial factor in causing the harm.  (CACI No. 2000.)  To meet his initial burden on summary judgment, King must show that one or more elements of Plaintiff’s trespass claim cannot be established, or that there is a complete defense thereto.  (CCP, § 437c, subd. (p)(2).)  If King meets this burden, then the burden shifts to Plaintiff to demonstrate that a triable issue of material fact exists.  (Id.)

King asserts that he is entitled to judgment as a matter of law because his work on the Property was performed pursuant to an “easement” held by SCCOSA, and Plaintiff cannot establish facts necessary to prove that the work was performed outside of the boundaries of the “easement.”

King first argues that he had Plaintiff’s consent to enter into the Property by virtue of an “easement.”  It is undisputed that Plaintiff granted SSCOSA two separate easements (collectively, “the Easements”).  (King’s Separate Statement of Undisputed Facts [“UMF”] Nos. 7-8.)  King does not specify which of the two separate easements supposedly authorized him to enter the Property and perform soil grading work.

The first easement (“Conservation Easement”) provides that 54 acres of the Property (“Conservation Area”) will be “maintained in its natural state,” and Plaintiff’s ownership rights that are not prohibited by or inconsistent with the easement are expressly reserved.  (Conservation Easement, pp. 1-2.)  The Conservation Easement only authorizes SCCOSA to enter the Conservation Area, after notifying Plaintiff of the entry, for the purposes of monitoring and identifying uses, practices, and conditions to determine whether they are consistent with the easement, so long as the entry does not unreasonably interfere with Plaintiff’s use and enjoyment of the Property.  (Id., at pp. 2-4.)  The Conservation Easement also expressly prohibits the construction of “improvements of any kind,” including roads and fences, or any activity that is likely to cause significant soil degradation or erosion, the removal of trees, and the grading or excavation of rock or topsoil.  (Id., at pp. 2 & 16-17.)  Since the Conservation Easement expressly forbids soil grading and the removal of trees from the Conservation Area and does not authorize SCCOSA to enter the Conservation Area in a manner that unreasonably interferes with Plaintiff’s use and quiet enjoyment of the Property, the Conservation Easement does not support King’s assertion that he had Plaintiff’s consent.

The second easement (“Trail Easement”) provides that some land within the Conservation Area will be used as a public multi-use trail (“Trail Corridor”), and Plaintiff conveys to SCCOSA the exclusive right to use the Trail Corridor as a public trail.  (Trail Easement, at pp. 1-3.)  The Trail Easement also authorizes SCCOSA to install and maintain the public trail.  (Id., at p. 2.)  However, the Trail Easement does not specify where the Trail Corridor will be located, and instead states that “the exact location [of the Trail Corridor will] be determined at a future date by [Plaintiff] and [SCCOSA].”  (Id., at p. 3.)  It further provides that “[a]t such time as a survey and/or an accurate legal description is completed by [SCCOSA], the resulting legal description will then merge with and be incorporated into [the Trail Easement, and] [i]n the event any one or more surveys are necessary for [SCCOSA]’s use, such surveys shall be conducted and paid for by [SCCOSA].”  (Id., at p. 2.)  Thus, while the Trail Easement allows for soil grading and tree removal in order to construct a trail in the Trail Corridor, the exact location of the Trail Corridor must be agreed upon by Plaintiff and SCCOSA before a trail may be constructed.  King proffers no evidence that suggests the location of the Trail Corridor had been agreed upon by Plaintiff and SCCOSA.  Accordingly, the Trail Easement does not support King’s contention, and King’s evidence pertaining to the Trail Easement does not show that he had Plaintiff’s consent to enter the Property to grade the soil.

Therefore, King has not proffered sufficient evidence to demonstrate that, by virtue of the Easements, Plaintiff consented to King’s entry onto the Property.

Next, King asserts that Plaintiff must produce “competent” evidence—e.g. photographs and testimony from witnesses who themselves measured the location of the boundaries of the Conservation Area and saw King allegedly trespass beyond those boundaries—showing the location of the Conservation Area and the damage King allegedly caused to the Property outside of the Conservation Area.  King further contends that the evidence Plaintiff has produced to date is insufficient because Plaintiff has only testified as to his personal knowledge of the location of the boundaries, and Plaintiff’s personal knowledge of the boundaries of the Conservation Area arises from representations made to him by agents of SCCOSA.

As an initial matter, King’s contention is predicated on his assertion that Plaintiff somehow consented to having an agent of SCCOSA enter the Conservation Area to grade soil and clear foliage.  As discussed above, however, King has not proffered sufficient evidence to demonstrate that Plaintiff consented to his entry onto the Property by virtue of the Easements.  Thus, whether the alleged damage to the Property occurred within or outside of the Conservation Area is immaterial.  In addition, Plaintiff is not obligated to present evidence regarding the Easements, since King—as the moving party—has the initial burden of production, and since a party asserting an easement has the burden of demonstrating its location.  (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468-473 [“Consumer Cause”]; see also CCP, § 437c, subd. (p)(2); see also Tucker v. Watkins (1967) 251 Cal.App.2d 327, 332.)  Unless King meets its initial burden, Plaintiff is not obligated “to introduce a scintilla of evidence challenging” King’s assertion.  (See Consumer Cause, supra, at p. 468.)

Regardless, King’s evidence is insufficient to show that Plaintiff does not possess and cannot reasonably obtain supporting evidence.  (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  The basis of King’s argument is that Plaintiff’s evidence as to the location of the Conservation Area is inadequate because it is based on “hearsay” statements made by SCCOSA’s agents, and thus, Plaintiff’s claim that King crossed the boundary is mere “speculation.”  (See King’s UMF No. 25, citing Plaintiff’s deposition at pp. 33:18-34:16, 47:18-48:22, 71:16-72:19, 109:1-110:8, & Ex. 11.)  However, King cites to portions of Plaintiff’s deposition transcript wherein Plaintiff testified that he believes that King damaged the Property outside of the Conservation Area, his belief as to the location of the Conservation Area is based on representations made to him by SCCOSA, SCCOSA agreed to locate the exact boundaries of the Conservation Area and mark said boundaries for Plaintiff’s reference, and other witnesses—e.g., the agents of SCCOSA—may provide corroborating testimonial evidence as to the location of the boundaries of the Conservation Area.  King cites no legal authority supporting his position that a Plaintiff’s knowledge cannot be based on information obtained from others.  King’s second argument is therefore unavailing.

Lastly, King contends that Plaintiff cannot seek monetary damages for a breach of the Easements, and therefore, Plaintiff’s trespass claim fails as a matter of law.  This argument is not well-taken for several reasons.  First, Plaintiff’s claim is for trespass to property, not for a violation of the Easements, and the Easements do not limit Plaintiff’s ability to seek monetary damages for trespass.  (See Civ. Code, §§ 815.4 & 815.7, subd. (c); Wright v. Austin (1904) 143 Cal. 236, 241 [landowner may bring an action for trespass against the public entity for using the land in manner expressly prohibited by or inconsistent with the easement].)  Thus, whether Plaintiff may seek monetary damages for an alleged violation of the Easements is immaterial to this motion.  Second, Plaintiff’s trespass claim is for harm caused to the Property partly within and partly outside of the boundaries of the Conservation Area.  As such, even if the Easements somehow limited Plaintiff’s ability to recover monetary damages for a trespass within the Conservation Area, the Easements would nevertheless not limit his ability to seek monetary damages for trespass to the Property outside of the Conservation Area.  Third, assuming the trespass allegedly occurred within the Conservation Area and the Easements somehow limited Plaintiff’s ability to recover monetary damages for a trespass claim, King’s assertion is insufficient to meet his burden on summary judgment because Plaintiff’s prayer for relief includes other requested forms of relief, e.g. injunctive relief, and therefore, disposing of the monetary damages claim would not dispose of the entire trespass cause of action.  (See CCP, § 437c, subds. (c) & (p)(2).)  Accordingly, King’s assertion is not well-taken.

In sum, King has not met its initial burden.  Therefore, the Court does not need to consider Plaintiff’s evidence.  (See CCP, § 437c, subd. (p)(2).)

In light of the foregoing, King’s motion for summary judgment is DENIED.

Plaintiff’s evidentiary objections lack merit, and thus, are OVERRULED.

Given that King did not meet his initial burden, Plaintiff’s evidence was not considered, and King’s evidentiary objections are therefore OVERRULED.

II.        SCCOSA’s Motion for Summary Judgment or Summary Adjudication

SCCOSA moves for summary judgment on the ground that King’s action has no merit, and alternatively it moves for summary adjudication of each of King’s causes of action against it on the ground that King’s claims necessarily fail because Plaintiff’s trespass claim against King will fail.  (See CCP, § 437c, subds. (c) & (f).)

Rather than filing an “opposition” to SCCOSA’s motion, King filed a “response.” In King’s “response,” he makes a request for judicial notice, but the request does not comply with California Rules of Court, rule 3.1113(l), and therefore, it is DENIED.

Turning to the merits of SCCOSA’s motion, Plaintiff asserts a trespass claim against King, and King asserts causes of action against SCCOSA for (1) implied indemnity, (2) breach of contract, (3) declaratory relief, and (4) apportionment of fault.  SCCOSA asserts that Plaintiff will be unable to prove his trespass cause of action because he has no admissible evidence that the alleged damage occurred outside the Conservation Easement.  SCCOSA proffers the same evidence in support of its motion as King presents in support of his.  As discussed above, this evidence is insufficient to establish that Plaintiff does not possess, and cannot reasonably obtain, evidence necessary to support his trespass claim.  SCCOSA therefore has not proffered sufficient evidence to meet its initial burden in support of summary judgment.

SCCOSA’s motion for summary judgment, or in the alternative, summary adjudication is accordingly DENIED.