Filed 6/4/20 Pecherer v. Russian River Cemetery Dist. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

MICHAEL PECHERER,

Plaintiff and Appellant,

v.

RUSSIAN RIVER CEMETERY DISTRICT,

Defendant and Respondent.

A154992

(Mendocino County

Super. Ct. No. SCUK CVG 17¬

69536)

Appellant Michael Pecherer owns a vineyard adjacent to a cemetery owned by respondent Russian River Cemetery District (District). The District sued Pecherer after he cut down trees thought to be located on cemetery property. Only after the parties settled their dispute did Pecherer arrange for a survey of his property and learn that the trees in fact had been located on his property. Pecherer then initiated this lawsuit, and the trial court sustained the District’s demurrer without leave to amend. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

“Because this case comes to us at the demurrer stage, we take as true all properly pleaded material facts—but not conclusions of fact or law.” (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 395.)

The District is a public entity responsible for the management and care of various cemeteries in Mendocino County, including the one in Redwood Valley that is the subject of this litigation. The cemetery has been in existence for more than 100 years, though there have been no burials there since the 1920s. The District acquired title to the cemetery around 1952, at which point it installed a “low chain-link fence” along what it believed to be its eastern boundary. The “vast majority” of graves in the cemetery are unmarked or are no longer marked, and the cemetery presents as a woodland.

Pecherer is an attorney who is employed primarily through court appointments as a receiver or a referee. In December 2014 he purchased a 20-acre vineyard whose western boundary shares an approximately 150-foot boundary with the cemetery. Pecherer did not question that the cemetery’s chain-link fence represented the “true and correct boundary” between the cemetery and his vineyard.

When Pecherer purchased his vineyard, there were five black oak trees growing in the area fenced in by the cemetery on the vineyard’s western boundary that hung over Pecherer’s property. The trees were around 70 years old, showed signs of rot, were “grossly overgrown,” and “presented a potentially dangerous condition.” The trees’ dripping sap and shade caused some vines on Pecherer’s property to die and also reduced grape production on other vines. Pecherer planned to have the oaks pruned to avoid further damage, but before he could do so a neighbor arranged for a forester to cut down the oaks.

When the District learned that the oaks had been cut down, it filed a criminal complaint with the district attorney and also filed a civil lawsuit against Pecherer seeking more than $100,000 for the lost value of the oaks. Pecherer was arrested and charged with wrongfully cutting the trees in violation of Penal Code section 384a. According to the operative complaint in this action, the district attorney threatened Pecherer that the criminal case would proceed unless Pecherer “paid substantial sums to the District” or transferred his property to the district as part of a civil settlement. The district attorney also is alleged to have threatened Pecherer that he (the district attorney) would report any conviction to the state bar and that no judge would again appoint Pecherer as a receiver or referee. The district attorney refused to continue the criminal matter and insisted that criminal proceedings would continue unless Pecherer entered into a civil settlement with the District. Because of this “refusal and coercion,” Pecherer allegedly suffered emotional distress and feared that his reputation and livelihood were at risk. He felt he had no option but to settle with the District as quickly as possible. Pecherer entered into a settlement with the District in November 2015 and agreed to pay $80,000 plus interest as reimbursement for the five trees. The district attorney then dismissed the criminal matter on the condition that Pecherer satisfy the settlement agreement in full, which Pecherer has done by paying the District a total of $83,000.41.

Nearly a year after Pecherer and the District entered into their settlement agreement, and for reasons unrelated to their dispute, Pecherer in September 2016 employed a licensed surveyor to determine his property’s boundaries in order to prevent any further disputes. The survey revealed that the District’s fence did not sit on the boundary between Pecherer’s vineyard and the cemetery but in fact was “substantially over the boundary” and was on Pecherer’s property. We hereafter refer to the area fenced in by the District but alleged to be part of Pecherer’s property as the “disputed property.” The survey further revealed that the oaks (except possibly a portion of one of them) that were the subject of the parties’ previous dispute were located on the disputed property. The disputed property also includes “at least one grave” and “as many as 16 graves.”

Pecherer on January 17, 2017, presented a claim to the District under Government Code section 945.6. His claim did not mention his age (he was at least 73 years old at the time). The District denied the claim on February 20, and Pecherer filed this lawsuit in August. His first amended complaint alleged causes of action for trespass, nuisance, financial elder abuse, and rescission of settlement. Pecherer also sought an injunction to prevent the District from further trespass.

The District demurred to the first amended complaint and filed a motion to strike. Together, these pleadings asserted that all of the causes of action were barred (1) as a result of the parties’ settlement agreement, (2) by principles of res judicata/retraxit, (3) because the disputed property was long ago dedicated to the public, and (4) because Pecherer failed to include indispensable parties. They also asserted that the causes of action for trespass and nuisance were barred by the statute of limitations, the cause of action for elder abuse was barred because Pecherer failed to present it in his claim to the District, and the cause of action for rescission failed to allege the necessary elements of fraud in the inducement or duress.

The trial court sustained the District’s demurrer after Pecherer failed to oppose it, struck a second amended complaint that Pecherer filed without leave of the court, entered judgment, and dismissed the complaint with prejudice. The court later vacated the dismissal after Pecherer sought relief for attorney fault (Code Civ. Proc. § 473, subd. (b)) and permitted Pecherer to file an opposition to the District’s demurrer.

Following a hearing, the trial court again sustained the District’s demurrer. The court concluded that the operative complaint established that the disputed property was dedicated to the public more than a century ago and thus was never Pecherer’s property, meaning there was no controversy between the parties and all of Pecherer’s causes of action failed. Even if that were not the case, the court concluded, Pecherer’s causes of action failed for other reasons: (1) his nuisance and trespass causes of action were barred by the statute of limitations, and (2) his elder abuse cause of action was not fairly reflected in his governmental tort claim. Because the trial court sustained the demurrer on these grounds, it found it unnecessary to address the District’s arguments regarding the effect of the parties’ settlement agreement, the doctrine of retraxit, or failure to join indispensable parties.

The trial court entered a dismissal order, and Pecherer appealed. In an appeal from an order sustaining a demurrer, we review the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.)

DISCUSSION

A. Pecherer’s Complaint Did Not Establish Implied Public Dedication as a Matter of Law.

B.
As we have said, in sustaining the demurrer the trial court found that the disputed property was dedicated to public use and thus belonged to the District, negating all of Pecherer’s causes of action. We disagree that the complaint established an implied public dedication as a matter of law, although we recognize that it may be established when the facts are resolved.

“A ‘dedication’ is an uncompensated transfer of an interest in private property to the public, and ‘may occur pursuant to statute or the common law.’ [Citation.] ‘ “Dedication has been defined as an appropriation of land for some public use, made by the fee owner, and accepted by the public. By virtue of this offer which the fee owner has made, he [or she] is precluded from reasserting an exclusive right over the land now used for public purposes. American courts have freely applied this common law doctrine, not only to streets, parks, squares, and commons, but to other places subject to public use. California has been no exception to the general approach of wide application of the doctrine.” ’ ” (Friends of Hastain Trail v. Coldwater Development LLC (2016) 1 Cal.App.5th 1013, 1027.) There are two types of dedication under the common law: express and implied. (Ibid.) The trial court found implied dedication, which arises where a property owner shows an intent to dedicate without execution of a deed, such as “when the public use is adverse and exceeds the period for prescription.” (Ibid.) “An owner’s offer to dedicate can thus be inferred from factual circumstances in the same general manner as prescriptive rights are established, i.e., circumstances that show ‘the public has used the land “for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone.” [Citation.] . . . [T]he question is whether the public has engaged in “long-continued adverse use” of the land sufficient to raise the “conclusive and undisputable presumption of knowledge and acquiescence, while at the same time it negatives the idea of a mere license.” ’ ” (Ibid.)

Our Supreme Court set forth the requirements for a public dedication of land in Gion v. Santa Cruz (1970) 2 Cal.3d 29 (consolidated with Dietz v. King) (Gion). In that case, the court concluded that there had been an implied dedication of property rights in two cases where members of the public had freely and openly used private property to access recreational areas for a period of more than five years. (Gion, at pp. 34−36, 43.) Gion was decided following trials (id. at pp. 35, 38), and subsequent cases cited by the trial court likewise were not decided at the pleading stage. (See Scher v. Burke (2017) 3 Cal.5th 136, 140 [declaratory judgment]; Friends of Hastain Trail v. Coldwater Development LLC, supra, 1 Cal.App.5th at p. 1019 [trial]; Blasius, supra, 78 Cal. App. 4th at p. 819 [trial]; Bess v. County of Humboldt (1992) 3 Cal.App.4th 1544, 1549 [trial court made findings after presentation of evidence].) The issue of implied dedication is “ ‘ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom.’ ” (Gion, supra, 2 Cal.3d at pp. 40−41.) “Each inquiry depends on ‘ “the facts and circumstances attending the use.” ’ ” (Friends of Hastain Trail, at p. 1028.)

Here, it is undisputed that the cemetery at issue is public. The question is whether the erection of a fence around the disputed property when the district acquired the cemetery in 1952 establishes as a matter of law the implied dedication of the disputed property to the District. We are sympathetic to the District’s arguments and the trial court’s finding that the disputed property was impliedly dedicated to the District because of the decades-long presence of a fence on the property. But we cannot conclude that the existence of the fence conclusively establishes as a matter of law that the property was impliedly dedicated. Cases analyzing implied dedication focus not only on the actions taken by the parties who claim to have received an interest in the land, but also on the actions taken by the owners who impliedly dedicated an interest in their land. Here, the complaint alleges only that the District placed the fence on the disputed property believing it was the accurate boundary and that Pecherer and his predecessors were not aware of the true boundary.

Notwithstanding the complaint’s lack of factual specificity, the trial court concluded that the District acquired title in fee to the disputed property as a matter of law. The court relied on a footnote in Gion that listed cases where dedication for park purposes was done by way of a transfer of a full fee interest, and distinguished the limited interest that was transferred in Gion. (Gion, supra, 2 Cal.3d at p. 44, fn. 3.) But all the cases listed in that footnote involved a property owner’s express dedication of land for a public purpose (Slavich v. Hamilton (1927) 201 Cal. 299, 302 [property owner deeded land to city for use as a public park]; Archer v. Salinas City (1892) 93 Cal. 43, 48¬49 [property owner recorded a map of his property with one section labeled “Central Park” and treated area as public park]; Washington Boulevard Beach Co. v. Los Angeles (1940) 38 Cal.App.2d 135, 136 [corporation recorded map dedicating portion of property as “The Strand” for public use]) or abundant evidence of the circumstances under which the land was dedicated (Morse v. E. A. Robey & Co. (1963) 214 Cal.App.2d 464, 467 [property dedicated for use as a public beach]). Again, here we have no such detail.

The trial court also relied on Health and Safety Code section 8126, which provides that “[t]he title to lands situated in or near any city and used by the inhabitants without interruption as a cemetery for five years is vested in the inhabitants of the city and the lands shall not be used except as a public cemetery.” Again, Pecherer’s complaint alleges that the District is a public entity and that it manages land adjacent to his that has been used as a cemetery for more than 100 years. But that does not resolve whether the District acquired the disputed property in fee by way of an implied dedication.

It may well be that, following discovery, the District can establish a valid implied dedication. And our decision does not preclude the District from later asserting other defenses, such as adverse possession. Our conclusion is limited to our determination that Pecherer’s first amended complaint does not establish an implied dedication of public lands as a matter of law.

In light of this conclusion, we turn to the trial court’s alternative grounds for sustaining the District’s demurrer.

C. Pecherer’s Complaint Does Not Establish as a Matter of Law that the Statute of Limitations Bars His Causes of Action for Nuisance and Trespass.

D.
The trial court concluded that Pecherer’s causes of action for nuisance and trespass were barred by the three-year statute of limitations. (Code Civ. Proc., § 338, subd. (b) [“action for trespass upon or injury to real property”].) Although development of a factual record may ultimately support this conclusion, we cannot conclude as a matter of law that the limitations period had run when Pecherer filed his complaint. (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 607 [determination of when cause of action accrues normally is a question of fact].)

For both types of actions, the question of when the statute begins to run turns on whether the erection of a fence constituted a “permanent” or “continuing” trespass or nuisance. “Whether a nuisance is continuing or permanent depends ‘on the type of harm suffered.’ [Citation.] ‘[P]ermanent nuisances are of a type where “ ‘by one act a permanent injury is done, [and] damages are assessed once for all.’ ” ’ [Citation.] Nuisances found to be permanent in nature include ‘solid structures, such as a building encroaching upon the plaintiff’s land [citation], a steam railroad operating over plaintiff’s land [citation], or regrade of a street for a rail system [citation].’ [Citation.] For a permanent nuisance, damages are ‘complete when the nuisance comes into existence,’ and an action must generally be brought ‘within three years after the permanent nuisance is erected.’ ” (Lyles v. State of California (2007) 153 Cal.App.4th 281, 291; see also Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 233 [“When a trespass is of a permanent nature, the cause of action accrues when the trespass is first committed.”].) “ ‘Where the injury or trespass is of a permanent nature, all damages, past and prospective, are recoverable in one action, and the entire cause of action accrues when the injury is suffered or the trespass committed.’ ” (Field-Escandon, at p. 233 [statute of limitations began to run when sewer pipe was installed on plaintiff’s property more than two decades before lawsuit was filed].) “By contrast, ‘each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based upon the new injury. [Citation.]’ [Citation.] Thus, if a trespass or nuisance is continuing, ‘ “an action may be brought at any time to recover the damages which have accrued within the statutory period, although the original trespass occurred before that period.” ’ [Citation.] The same principles apply whether the wrongdoing is characterized as a nuisance or trespass.” (Madani v. Rabinowitz, supra, 45 Cal.App.5th at p. 608.)

At the time the trial court sustained the District’s demurer, there apparently were no published cases on whether boundary fences are continuing or permanent in nature. The Second District Court of Appeal recently addressed the issue in Madani v. Rabinowitz, supra, 45 Cal.App.5th 602. There, the plaintiff conducted a survey indicating that a purported boundary fence in fact encroached on his property by approximately two feet at one end. (Id. at p. 606.) The fence had originally been made out of chain link and grape stake but had been replaced by the defendant with a wooden one. (Ibid.) After the plaintiff sued on theories of trespass and nuisance, the defendant argued that the claims were barred by the statute of limitations because a fence had been on the property for more than 25 years before the plaintiff sued. (Id. at pp. 605−607.) Following a bench trial, the trial court concluded that the causes of action were not time-barred, and the appellate court affirmed. (Id. at pp 606−607, 609—610.)

“The ‘ “crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated.” [Citation.]’ [Citation.] Under this test, sometimes referred to as the ‘abatability test’ [citation], a trespass or nuisance is continuing if it ‘can be remedied at a reasonable cost by reasonable means.’ ” (Madani v. Rabinowitz, supra, 45 Cal.App.5th at pp. 608−609.) In Madani, the trial court heard testimony that the existing fence could be moved to conform with the property boundary for a “comparatively modest cost,” and the appellate court concluded that those costs were insufficient to consider the fence a permanent installation. (Id. at p. 609.) “[P]roperty values have risen ‘to the point where even modest properties represent small fortunes.’ The cost of relocating a boundary fence or wall pales in comparison to the property value. Thus, it is difficult to conceive of a case where relocation of a boundary fence or wall would be so costly as to render it a permanent encroachment.” (Ibid.) Here, it is difficult to conceive that moving a chain-link fence on winery property in Northern California would be cost-prohibitive, though this will turn on facts as developed through discovery.

The complaint here further alleges that there is at least one and up to 16 graves located on the disputed property, with no information on whether they could be moved or at what cost. Pecherer contends that those graves could be moved, that there is a statutory procedure for doing so, and thus that they do not constitute a permanent encroachment. But it is at least possible that disinterring one or several graves would be cost-prohibitive or legally barred. Under Madani, this possibility cannot be the basis for us to conclude as a legal matter that the fence or graves are permanent encroachments such that Pecherer’s causes of action for nuisance and trespass are barred by the statute of limitations.

Pecherer’s cause of action for an injunction sought to enjoin the District from further trespass onto the disputed property. Because the cause of action for an injunction was tied to causes of action that we have now concluded were not time-barred as a matter of law, we reverse on his injunction cause of action as well. Again, nothing in this opinion precludes the District, after a factual record is developed in the trial court, from renewing its argument that Pecherer’s causes of action are time-barred.

E. Pecherer Adequately Put the District on Notice of His Cause of Action for Financial Elder Abuse.

F.
Pecherer also challenges the trial court’s conclusion that his cause of action for financial elder abuse was precluded because he failed to properly present it in his governmental tort claim. We agree that he provided the District with sufficient notice.

An action may not be pursued against a public entity such as the District unless the plaintiff has first presented the claim to the public entity. (Gov. Code, §§ 905, 905.2, subd. (b), 910, 945.4; see State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1239.) “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (Bodde, at p. 1243.) “The claims requirement has a twofold purpose: (a) the entity should have an opportunity to investigate promptly while the evidence and witnesses are available; (b) the entity, having obtained full information, should have an opportunity to settle meritorious claims without litigation.” (4 Witkin, Cal. Procedure (2020 ed.) Actions, § 231.) Here, there is no dispute that Pecherer presented a claim to the District as required. The question is whether he provided enough detail about his claim for financial elder abuse to put the District on notice of this cause of action.

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) defines an “elder” as “any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.) Financial abuse of an elder occurs when a person or entity “[a]ssists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15310.30, subd. (a)(2).) The District argues it did not have notice of a single element of Pecherer’s cause of action: his age, which was omitted from his government claim but alleged in his complaint to be 73. We conclude that the omission was not fatal to Pecherer’s cause of action.

“When a civil action is brought following denial of a government tort claim ‘the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ ” (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 223–224 (Blair).) But notice to a government entity under Government Code section 910 requires only these basic elements: (a) the claimant’s name and address, (b) the address to which the claimant wants notices directed, (c) the date, place and other circumstances that gave rise to the asserted claim, (d) a general description of the loss incurred, (e) the name or names (if known) of the public employee or employees who caused the injury, and (f) the amount claimed if it totals less than $10,000. “As long as these general elements are present, it is not necessary that the claim comply with formal pleading standards. [Citation.] The purpose of the claim is to present sufficient detail ‘to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.’ ” (Blair, supra, at pp. 224−225.)

Here, the District does not contend that Pecherer failed to adequately describe the relevant underlying facts in his government claim. It acknowledges that it was on notice of Pecherer’s “tort claim to investigate potential property claims, but not elder abuse claims.” But his cause of action for elder abuse was based on the same underlying facts as his other claims: Pecherer alleged that the District wrongfully appropriated his property. The District thus cannot identify any way that knowing Pecherer met the statutory definition of an “elder” would have changed the way it investigated his underlying allegations. This is not a situation where there was “a complete shift in allegations” or Pecherer altered “fundamental facts set forth in the complaint.” (Blair, supra, 218 Cal.App.3d at p. 226.)

Our conclusion that the demurrer should not have been sustained on the cause of action for financial elder abuse based on Pecherer’s failure to specify his age in the notice does not, of course, preclude the District from establishing any other defense in the future.

G. Pecherer Stated a Cause of Action for Rescission.
H.
The trial court did not directly address Pecherer’s cause of action for rescission of the parties’ settlement agreement, except to state that because there was no current controversy between the parties, his other causes of action failed. We agree with Pecherer that he adequately pleaded a cause of action, although we again take no position on whether he can ultimately prove such a claim.

Civil Code section 1689, subdivision (b)(1), provides that a party to a contract may rescind the contract “[i]f the consent of the party rescinding, or of any party jointly contracting with him [or her], was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he [or she] rescinds, or of any other party to the contract jointly interested with such party.” “As other contracts, a stipulation for settlement may be rescinded if it was procured through fraud, duress, undue influence or mistake.” (Stermer v. Board of Dental Examiners (2002) 95 Cal.App.4th 128, 133.) At the demurrer stage a plaintiff is required only to plead—not to prove—a cause of action for rescission. (Marzec v. Public Employees’ Retirement System (2015) 236 Cal.App.4th 889, 914.)

Pecherer’s first amended complaint does not provide an abundance of detail and does not describe all of the provisions in the parties’ settlement agreement. We nonetheless conclude that he alleged sufficient facts to state a cause of action. He alleged that the settlement agreement was based on the mistaken belief that the District owned the disputed property. This was sufficient to allege rescission under Civil Code section 1689, subdivision (b)(1).

The District does not argue to the contrary on appeal. It notes that the trial court did not address whether the settlement agreement bars Pecherer’s complaint because it ruled that his causes of action were barred for other reasons. It may be true that the trial court did not address whether the settlement agreement could be used as a defense against Pecherer’s causes of action (and we take no position on whether it can), but the relevant question is whether Pecherer alleged a cause of action based on that settlement agreement. He has.

Again, our conclusion does not preclude the District from raising additional defenses in the future.

DISPOSITION

The dismissal order is reversed. The trial court is directed to vacate its June 12, 2018 order and to enter a new and different order overruling the District’s demurrer on Pecherer’s first amended complaint.

Pecherer shall recover his costs on appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Sanchez, J.

Pecherer v. Russian River Cemetery District A154992