Filed 5/5/20 Hajj v. Dodge CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KATIA HAJJ, et al.,

Plaintiffs and Appellants,

v.

MICHAEL L. DODGE, et al.,

Defendants and Respondents.

G057159 consol. w/ G057704

(Super. Ct. No 30-2018-00991306)

O P I N I O N

Appeal from judgments of the Superior Court of Orange County, David R. Chaffee and David A. Hoffer, Judges. Reversed.

Menke & Menke, Dennis V. Menke and James D. Menke for Plaintiffs and Appellants Katia Hajj and Antoine Abi-Abdallah.

Law Office of Christy L. Thomasson, Christy L. Thomasson for Defendants and Respondents Michael L. Dodge and Kristyn M. Dodge.

Baker Law Group, John H. Baker for Defendants and Respondents William D. Ransford and Victoria L. Ransford, individually and as trustees of the Ransford Family Revocable Trust dated April 12, 2000.

Katia Hajj and her husband Antoine Abi-Abdallah (collectively referred to as Appellants) filed a complaint alleging their right to an easement by necessity and/or implication across the residential properties of Michael and Kristyn Dodge and William and Victoria Ransford. The trial court granted the Ransfords’ demurrer to the complaint and the Dodges’ motion for judgment on the pleadings, both without leave to amend. We reverse the judgments because the trial court inappropriately weighed facts and evidence.

FACTS

I. The Properties at Issue

The following facts are taken from the allegations in the complaint. Appellants own real property (Hajj property) adjacent to the Ransfords’ property (Ransford property). The Dodges’ property (Dodge property) is also adjacent to the Ransford property.

All three of the properties were at one point possessed by a common owner, Baldwin Builders. The Dodge and Ransford properties share a driveway. The Hajj property is located at the end of that shared driveway. Without access to the shared driveway that traverses the Ransford and Dodge properties, Appellants do not have any access to their property, making it landlocked.

II. Procedural Facts

In 2018, Hajj filed a complaint alleging causes of action for encroachment against the Ransfords, and declaratory relief for easement by necessity and easement by implication against the Dodges and the Ransfords. Specifically, Hajj claimed “[the Hajj property] has no means to egress or ingress through any public access other than by way of the existing driveway [shared by the Ransford and Dodge properties].” Hajj explained, “said roadway was built adjacent to the boundary of the [Hajj property] and with the intention of allowing [Hajj] to access [her] parcel from the easement and roadway, notwithstanding that the deeds conveying said property to [Respondents] did not expressively state said intention.”

Hajj contended, “an easement has arisen by implication over [the Ransford and Dodge properties] as [the original owner] constructed the driveway over [the Ransford and Dodge properties] and to the edge of [the Hajj property] at the time they developed said parcels and that the intended use of the driveway was for future development, as well as for access to maintain the ever needed weed abatement and to preserve flood control.” Hajj asserted, she “has received notices of Weed Abatement which [Hajj] cannot practically resolve without access from either public land or by way of access from [the Ransford and Dodge properties].” “Since without access [Hajj] cannot abate the weeds and provide for the safety of the community,” Hajj alleged she “has no means of access to her parcel by any public or private road except by use of the existing driveway of [Respondents] and without such access, [the Hajj property] is ‘landlocked’ and [Hajj] is unable to access her property or to abate the safety and weed conditions that are necessary in order to protect the safety of the public.”

The Ransfords filed a demurrer to the second and third causes of actions (Ransford demurrer). Additionally, the Ransfords filed a request for judicial notice of 12 documents, including maps of the area. Hajj filed an opposition to the Ransford demurrer, but did not object to the request for judicial notice.

The trial court sustained the Ransford demurrer without leave to amend. The court did not state whether it granted the Ransfords’ request for judicial notice. The court determined “[t]here [was] no easement by necessity as there appear[ed] to be access to [Hajj’s] property by way of a public trail. Th[at] access does not mean that [Hajj’s] property is ‘landlocked.’” Additionally, “[t]here is no indication that there was an intent to provide an actual easement over the Ransfords’ property by Baldwin Builders, . . . when . . . there was a severance of unity of ownership.” Nor “does [there] appear to have been any specific use of [Hajj’s] property by Baldwin Builders that would have required an easement at the time of separation, or a use that had been ‘long continued and obvious.’” The court entered judgment in favor of the Ransfords.

Thereafter, the Dodges filed a motion for judgment on the pleadings (Dodge motion) and a request for judicial notice of 14 documents. The Dodges also included maps of the area. Hajj did not object to the Dodges’ request for judicial notice. Hajj filed a request for judicial notice in support of her motion to strike the Dodge motion. Hajj’s request included a Chino Hills State Park brochure, an enlarged map of the Hajj property in relation to the state park, and an aerial photograph of the area. Additionally, Hajj sought judicial notice in support of her opposition to the Dodge motion of a letter from the California Department of Justice in representing Chino Hills State Park and the California Department of Parks and Recreation (letter). The record is devoid of any objections to Hajj’s requests for judicial notice.

The letter responded to Hajj’s request for an easement through Chino Hills State Park and stated, “an easement . . . would not actually allow you to access your property. First, accessing the South Ridge Trail from Rimcrest Drive requires crossing approximately 230 feet of private property. The owner of that property prohibits public use of his land and has put up ‘No Trespassing’ signs. Without that owner’s permission, you have no access to the South Ridge Trail from Rimcrest Drive. Second, the South Ridge Trail is not immediately contiguous to your land and so does not provide access to the boundary of your land. At least forty feet exist between the trail and your property

. . . . Accessing your property would require leaving the designated trail and hopping a fence, both of which are prohibited by Park policy. [¶] . . . As mentioned above, Parks prohibits the public from leaving designated trails. . . . [¶] An easement through Chino Hills State Park would not provide you with access to your property and would violate Park’s policies and mission. For these reasons, Parks cannot grant you an easement through [the] Park for your own private purposes.”

The trial court granted the Dodge motion without leave to amend, and entered judgment in favor of the Dodges. The court determined, “There is no easement by necessity as there appears to be access to [the Hajj] property by way of a public trail. This access does not mean that [the Hajj] property is ‘landlocked.’ Although not the easiest or possibly least costly way to access [the Hajj] property, the public trail does allow access. As there are other means of accessing the property other than across the Dodges’ property, there is no ‘easement by necessity.’ [Citation.]” The court also stated there was “no indication that there was an intent to provide an actual easement over the Dodges’ property by Baldwin Builders, the original owner of both the Dodges’ and [Ransfords’] properties, when there was a severance of unity of ownership.” Additionally, there “appear[ed] to have been any specific use of [the Hajj’s] property by Baldwin Builders that would have required an easement at the time of the separation, or a use that had been ‘long continued and obvious.’”

DISCUSSION

I. Standard of Review

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) “Our task in reviewing a judgment sustaining a demurrer is to determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] We assume the truth of the properly pleaded material facts and the reasonable inferences that may be drawn therefrom. [Citation.] . . . We also consider matters that may be judicially noticed. [Citation.]” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083, fn. omitted (Reynolds).) “[O]ur review is de novo. [Citation.]” (TracFone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1363.)

A demurrer may be supported by matters that are subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) The court may also take judicial notice of facts not reasonably subject to dispute and “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subd. (h).)

“‘“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.”’ [Citation.]” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 (Poseidon).) When ruling on a demurrer, “[a] court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. [Citation.]” (Ibid.) “Strictly speaking, a court takes judicial notice of facts, not documents. [Citation.]” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)

The trial court applies the same standard on a demurrer when considering a motion for judgment on the pleadings. (Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, 1098.) “‘A motion for judgment on the pleadings, like a general demurrer, tests the allegations of the complaint or cross-complaint, supplemented by any matter of which the trial court takes judicial notice, to determine whether plaintiff or cross-complainant has stated a cause of action. [Citation.] Because the trial court’s determination is made as a matter of law, we review the ruling de novo, assuming the truth of all material facts properly pled.’ [Citations.]” (Ibid.)

II. Analysis

A. Easement by Necessity

The elements of a cause of action for an easement by necessity are:

“(1) there is a strict necessity for the right-of-way, as when the claimant’s property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity. [Citation.]” (Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049.) “To satisfy the strict-necessity requirement, the party claiming the easement must demonstrate it is strictly necessary for access to the alleged dominant tenement. [Citation.] No easement will be implied where there is another possible means of access, even if that access is shown to be inconvenient, difficult, or costly. [Citation.]” (Murphy v. Burch (2009) 46 Cal.4th 157, 164.)

Respondents do not dispute these basic pleading requirements. Indeed, Respondents do not cite any specific pleading defect, but rather argue the allegations in the complaint are contradicted by judicially noticeable information or inferences drawn from that information. We disagree.

The Dodges argue the complaint “does not contain any facts to support the contention, deduction[,] or conclusion of law that the Appellants’ property is landlocked and an easement is necessary for access to the property.” The Dodges ignore the clear language of the complaint, which alleged the Hajj property was landlocked and it “has no means to egress or ingress through any public access other than by way of the existing driveway [shared by the Ransford and Dodge properties].” Indeed, Appellants succinctly state they, “cannot access [the Hajj] property without use of the private driveway. Instead, the Dodges assert Appellants have conceded the issue because in their opposition to the Ransford demurrer, Appellants described their property as “landlocked with a large public park on one side.” Because we must accept the allegations in the complaint as true, this additional description of the Hajj property does not add to our analysis. Similarly, the Ransfords assert Appellants cannot truthfully amend the second cause of action to their complaint to include an allegation, “‘that there is no access to their property from the Park.’” As discussed above, because the complaint clearly stated the Hajj property was landlocked and had no public access, that implies there is no access from the park. Appellants adequately pled their cause of action for an easement by necessity.

Ultimately, the trial court determined there was no easement by necessity because Appellants can access their land from a public trail. We infer the court took judicial notice of the maps submitted by Respondents as part of their requests for judicial notice because it referenced the public trail behind the Hajj property, which is not alleged in the complaint. Respondents contend Appellants failed to object to their requests for judicial notice and are thus bound by them.

We have reviewed the maps in the record. While they purport to show some sort of trail near the Hajj property, they are far from clear. The trial court seemed to acknowledge this, stating “[t]here [was] no easement by necessity as there appear[ed] to be access to [Hajj’s] property by way of a public trail. Th[at] access does not mean that [Hajj’s] property is ‘landlocked.’” Indeed, there is no way to conclusively determine from the map that the trail is public, precisely how far it is from the Hajj property line, whether there are any means of entrance from the trail to the Hajj property, or whether there are any impediments to entering the Hajj property from the trail, i.e., a fence or other barrier. The court may only take judicial notice of facts not reasonably subject to dispute. (Evid. Code § 452.)

The maps are highly contested and indeed embrace the ultimate issue as to whether the Hajj property is landlocked or not. It was thus an abuse of discretion for the court to take judicial notice of the maps, accept their contents as true, and make factual inferences therefrom. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1 [judicial notice taken of existence and contents of documents but not disputed or disputable facts stated].)

Excluding the maps as an improper subject for judicial notice, we are left with the allegations of the complaint, which we must accept as true for purposes of a demurrer and motion for judgment on the pleadings. (Reynolds, supra, 36 Cal.4th at p. 1083, fn. omitted.) Appellants alleged their property is landlocked and the properties at issue were once owned by a common owner. These allegations were sufficient to establish a cause of action for easement by necessity.

B. Easement by Implication

“The elements necessary to create a ‘quasi easement’ or grant by implication, upon severance of unity of ownership in an estate, are: (1) a separation of title (which implies unity of ownership at some former time as the foundation of the right); (2) necessity that before separation takes place the use which gives rise to the easement shall be so long continued and obvious as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the beneficial enjoyment of the land granted. [Citation.] The law does not favor the implication of easements. Such implication can only be made in connection with a conveyance, and in view of the rule that a conveyance is to be construed against the grantor, the court will imply an easement in favor of the grantee more easily than it will imply an easement in favor of a grantor. Whether an easement arises by implication on a conveyance of real estate depends on the intent of the parties, which must clearly appear in order to sustain an easement by implication. In order to determine the intent, the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted. [Citation.] The purpose of the doctrine of implied easements is to give effect to the actual intent of the parties as shown by all the facts and circumstances.” (Orr v. Kirk (1950) 100 Cal.App.2d 678, 681.)

The trial court ruled there was no easement by implication because Baldwin Builders did not intend to reserve an easement across the Ransford and Dodge properties to access the Hajj property, the use of the easement had not been long continued and obvious, and the easement was not reasonably necessary to the beneficial enjoyment of the Hajj property. Again, the trial court did not find any defect in Appellants’ pleading. Instead, the court speculated there was not, “any evidence that [Hajj] ever used her property for any means that was ‘long continued and obvious,’ which might otherwise require an easement.”

The complaint alleged facts showing unity of ownership of the three properties at a former time. It also alleges the driveway was built adjacent to the boundary of the Hajj property with the intention of allowing Appellants access. Construing the allegations as true and accepting all inferences therefrom, the allegation Appellants had the right to access their property via the shared driveway since the property was purchased approximately 18 years ago was sufficient to demonstrate the easement was long continued and obvious. As discussed above, the complaint alleges the Hajj property is landlocked, thus meeting the requirement the easement be reasonably necessary to the beneficial enjoyment of the land. Appellants’ allegations were sufficient to survive the demurrer and motion for judgment on the pleadings.

Whether an easement by implication exists is a factual matter for the jury to determine at trial. (Leonard v. Haydon (1980) 110 Cal.App.3d 263, 268-269.) The language used by the trial court, however, demonstrates it improperly usurped the jury’s factfinding role and weighed evidence at this early stage. However, the court was required to accept the facts alleged in the pleading as true, as well as fact implied or inferred from those expressly alleged. (Poseidon, surpa, 152 Cal.App.4th at p. 1111.) Similarly, Respondents state they “established, by a preponderance of the evidence, that the common grantor did not intend to reserve an easement,” and cite extensively to the exhibits attached to their requests for judicial notice. They, like the court, fail to apply the proper standard. At this early stage in the pleadings, it was clear error for the court to consider and weigh evidence. Because we determine the complaint properly alleged causes of action for easement by necessity and easement by implication, Appellants are not required to amend their complaint.

DISPOSITION

The judgments are reversed. The trial court is directed to vacate its order sustaining the demurrer and granting the motion for judgment on the pleadings. The court shall enter a new order overruling the demurrer and denying the motion for judgment on the pleadings. Appellants shall recover their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

GOETHALS, J.