Case Number: BC713587 Hearing Date: December 10, 2019 Dept: 24

Plaintiff/Cross-Defendant Palos Verdes Peninsula Land Conservancy’s demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first, second, fourth, fifth, and tenth causes of action; SUSTAINED without leave to amend as to the third, sixth, eighth, and ninth causes of action; and OVERRULED as to the seventh and eleventh causes of action. Plaintiff/Cross-Defendant Palos Verdes Peninsula Land Conservancy’s motion to strike is DENIED.

On July 10, 2018, Plaintiff/Cross-Defendant Palos Verdes Peninsula Land Conservancy (“PVPLC”) filed a complaint against Defendants/Cross-Complainants Mike Chiles (“M. Chiles”) and Jayne Chiles (“J. Chiles”) (collectively the “Chileses”) for trespass to land, private nuisance, permanent private nuisance, quiet title, and declaratory relief. PVPLC, a domestic nonprofit corporation, alleged it is and at all relevant times was the legal fee owner of real property known as the “Figtree Parcel” (“Subject Property”), the Chileses are the fee owners of property directly adjacent to the Subject Property, and the Chileses have maintained a concrete slab and occasional storage of personal belongings, including a boat, trailer, motor vehicles, and construction materials, within the Subject Property boundary. PVPLC alleged the Chileses have failed to sign any License Agreement to justify their encroachment on the Subject Property, despite PVPLC’s request that they do so.

On February 5, 2019, the Chileses filed a cross-complaint against PVPLC, County of Los Angeles (the “County”), Dana Lynne Mendel (“Mendel”), Lisa Mendel Platt (“Platt”), and Zelda Miller (“Miller”). The operative First Amended Cross Complaint (“FACC”) asserts causes of action for: 11) prescriptive easement; 2) lateral and subjacent support; 3) equitable, resulting or constructive trust; 4) easement by implication; 5) enjoining nuisance and/or waste; 6) rescission; 7) equitable license; 8) declaration of PVPLC’s rights to Lot 63; 9) trespass or trespass on the case; 10) negligence; and 11) declaratory relief.

The FACC alleges the same general facts as the initial cross-complaint. The Chileses allege that they purchased their property from Miller, they have owned and resided in the house at Figtree for about 24 years (“Figtree Property”), the Figtree house includes a pool surrounded by a concrete/cement slab, PVPLC claims to own a parcel referred to in the complaint as Lot 63, which is coterminous/adjoining Figtree Property, Lot 63 provides lateral and subjacent support for the improvements on the Figtree Property, and Lot 63 is too narrow and steep to allow for building a house. Lot 63 was originally owed by the same owner who built the house on Figtree. When the Figtree house was built, landscaping lights, a fence around the pool, a deck and a portion of the concrete/cement slab, which surrounds the house and pool, and other items of real property, were constructed on Lot 63, and, therefore, it is believed that the cement slab was originally constructed in 1955, on a portion of the land which PVPLC claims is Lot 63. Chileses alleged that when they purchased the Figtree Property, the items of real property, such as landscape lighting, deck, pool fence, concrete slab and other items affixed to the land, made it appear as if Lot 63 was part of the residence and part of the Figtree Property. The real estate broker involved in the purchase of the Figtree Property indicated that purchase of the property included the land that PVPLC claims as Lot 63. There was never any fence or other indication of a boundary line between the Figtree Property and Lot 63. There was, however, a fence around the pool at the Figtree Property, and the fence included approximately 60 feet of what PVPLC claims is Lot 63, making it seem as if there was no borderline in the area where PVPLC now claims a borderline exists. From the time the Chileses began residing at the Figtree Property up until the present, they have had items of personal and real property on Lot 63. These items were kept on Lot 63 under a claim of right, adverse to any other claimant.

In 1974, several cubic yards of earth, from the steep portion of Lot 63, suddenly slid downhill and onto Narcissa Drive, a private road. The Chileses alleged people hired by the County entered Lot 63, which was owned by Miller at the time, without any consent and excavated at the bottom of the sleep slope on Lot 63. The County cleared away the dirt which had slid down from Lot 63. This excavation made the slope on Lot 63 to become more unstable and no effort had been made to stabilize the slope. The County added the cost of the second excavation on Lot 63 to the taxes due on Lot 63, as a tax lien, when Lot 63 was still owned by Miller. The tax lien was not paid, which ultimately resulted in a tax auction sale in 1978. Lot 63 was sold to Alan Mendel. The Chileses alleged they would have become the record owners of Lot 63, when they purchased the Figtree Property, had the County given proper notice of the work, recorded required documents, and/or given proper notice for a valid tax lien foreclosure sale.

The Chileses alleged PVPLC did not pay anything for Lot 63. PVPLC gave a tax credit to acquire Lot 63. Lot 63 is not suitable for any other use or purpose, other than for constructing improvements intended to provide the lateral and subjacent support incident to ownership of the Figtree Property. Lot 63 needs measures designed to reduce the chances of another slide, and to increase the stability, as needed to provide lateral and/or subjacent support to the Figtree Property. Lot 63 has suffered, in the last year, at least some amount of subsidence, which has caused an open space under the concrete/cement slab. Another landslide and/or more subsidence of Lot 63 would adversely affect the lateral and/or subjacent support from Lot 63, to the Figtree Property. The Chileses alleged no efforts are being made by PVPLC to stabilize the slope of Lot 63. On the contrary, PVPLC is causing the removal of plants from the steep slope on Lot 63, where the landslide occurred, which plants would otherwise help stabilize the slope. In the plant removal process, PVPLC is making the soil loose and making holes in the steep slope on Lot 63, which causes more rain water to be absorbed, making the soil heavier, more slippery and more likely to slide, which decreases Lot 63’s slope’s stability and increases the chance of another landslide on Lot 63. PVPLC’s acts have reduced the lateral and subjacent support from Lot 63 to the Figtree Property and Lot 63 currently requires slope stabilization in order to protect Narcissa Drive and protect the lateral and subjacent support to the house on the Figtree Property. PVPLC can only properly acquire and hold title to land equitably and Lot 63 is of no equitable use or value. The Chileses, as the owners of Lot 11, need Lot 63 for slope maintenance purposes, and to make recommended improvements for lateral and subjacent support to the house at the Figtree Property. PVPLC also needs to keep people off of the sloped area of Lot 63 because of the damage to the land and the plants, and any recommended improvements designed to stabilize Lot 63, by people walking or climbing on the steeply sloped area of Lot 63, at or near the landslide area. The FACC alleges the Figtree Property has very slowly moved and is very slowly moving Westerly towards the ocean and the original location of Lot 63.

On October 23, 2019, PVPLC filed a demurrer and motion to strike the FACC. On November 25, 2019, the Chileses filed an opposition to the demurrer and a declaration in opposition to the motion to strike. On December 3, 2019, PVPLC filed replies.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Pier Decl. ¶¶ 2-10.)

Motion to Strike Late Filed FACC

To the extent that the FACC was filed a single day late, the Court will exercise its discretion to accept the FACC as the operative pleading. In the future, all amended pleadings should be submitted timely, or they risk being stricken by the Court. Accordingly, the motion to strike is DENIED.

First Cause of Action – Exclusive Prescriptive Easement

California courts will not grant exclusive prescriptive easements. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296.) “An easement is a restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership.” (Id. at 1261 [italics omitted]). A prescriptive easement does not grant the easement holder title over property. (Id. at 1306). By its very definition, a prescriptive easement cannot effectuate a taking of property. Since an exclusive prescriptive easement is tantamount to acquiring title through adverse possession, the only way to obtain exclusive use of land is by satisfying the adverse possession elements. (Id. at 1305-1308.)

The Chileses do not meaningfully distinguish this case with their cited facts, as most (if not all) of the cited facts are irrelevant to the point of law discussed by Mehdizadeh. Nor do they require the application of any narrow public safety exception contemplated in that case. (See Mehdizadeh, supra, 46 Cal.App.4th at 1307 [the courts may recognize the socially important duty of a utility to provide an essential service, such as water or electricity, and impose a corresponding easement, citing for example Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041 and concluding that that case “must be limited to its facts”].) According to the FACC, the very nature of the easement requested involves an exclusive taking with no such public concerns.

The Chileses alleged they have occupied, maintained weed growth, trimmed and removed dead brush, live plants, filled low areas of lot 63, stored items of personal property, had a fence around a portion of lot 63, used Lot 63 for over 20 years, and claimed Lot 63 as their own land, as a matter of right, without recognition of any rights to title or use by others, for over 20 years. (FACC ¶ 22.) The Chileses allege they are entitled to an easement by prescription for the entirety of Lot 63 for these uses, and for any and all related uses, and that they are entitled to use Lot 63 as if it were part of 11 Figtree, and to make and maintain any improvements on Lot 63 intended to stabilize Lot 63. (FACC ¶ 23.) The FACC even alleges that they should be able to use it as their own “back yard” of 11 Figtree. (FACC ¶ 23.) These allegations do not amount to the mere use of PVPLC’s land. (See Raab v. Capser (1975) 51 Cal.App.3d 866, 876-877 [“[i]n determining whether a conveyance creates an easement or estate, it is important to observe the extent to which the conveyance limits the uses available to the grantor…”].) The Chileses seek a possessory interest in Lot 63.

The Chileses do not allege facts supporting their claim for adverse possession. to state a claim for adverse possession, the FACC must allege: (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, supra, 46 Cal.App.4th at 1605.) Specifically, the Chileses do not allege facts showing payment of all taxes assessed against Lot 63 during the five-year period.

Accordingly, PVPLC’s demurrer is SUSTAINED with leave to amend.

Second Cause of Action for Lateral/Subjacent Support

CCP section 832 provides, in pertinent part, as follows:

Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction or improvement, under the following conditions:

[…]

2. In making any excavation, ordinary care and skill shall be used, and reasonable precautions taken to sustain the adjoining land as such, without regard to any building or other structure which may be thereon, and there shall be no liability for damage done to any such building or other structure by reason of the excavation, except as otherwise provided or allowed by law.

The operative facts of the FACC have not changed since the previous pleading. The only facts that the Chileses point to is that PVPLC has not made any stabilizing efforts for Lot 63 and that they are causing workers to climb up and down the steep slope of Lot 63 to remove vegetation, and that this work is causing the soil to be loosened, and causes the sole to absorb more rain, and increases the danger of another slide, invading their right to lateral support. (FACC ¶¶ 25-26.) These are essentially identical to the allegations of the cross-complaint. (See CC ¶¶ 25-26.) Again, the allegations only amount to a mere list of activities that PVPLC conducted on their own land, rather than affirmative showing that PVPLC failed to exercise ordinary care, or failed to take reasonable precautions in their maintenance of their property. The Chileses argue that there is an affirmative duty not to remove plants from the steep slope and that instead there is a duty to take reasonable precautions to prevent water from soaking into the soil, by planting helpful plants and using walkways on the steep slope. The Chileses cite no authority for this proposition. Confusingly, the Chileses still make arguments about subjacent without any ownership interest in subsurface land under lot 63, or any subsurface activity under the Figtree property.

Accordingly, the demurrer is SUSTAINED with leave to amend.

Third Cause of Action for Unjust Enrichment

“[T]here is no cause of action in California for unjust enrichment.” (Melchior v. New Line Prods., Inc. (2003, 2nd Dist.) 106 Cal.App.4th 779, 793; McKell v. Wash. Mut., Inc. (2006, 2nd Dist.) 142 Cal.App.4th 1457, 1490; Jogani v. Superior Court (2008, 2nd Dist.) 165 Cal.App.4th 901, 911.) Unjust enrichment is “not a cause of action … or even a remedy, but rather a principle, underlying various legal doctrines and remedies. It is synonymous with restitution.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387.) Accordingly, PVPLC’s demurrer to the third cause of action is SUSTAINED without leave to amend.

Fourth Cause of Action for Implied Easement

The Chileses concede that they have not stated a claim for implied easement. Instead, they offer that they can state a claim under an implied reservation of an easement, without a discussion as to whether the FACC meets the elements of that cause. In any event, that cause is not alleged. Accordingly, PVPLC’s demurrer is SUSTAINED with leave to amend.

Fifth Cause of Action for Nuisance and Waste

The Chileses also concede that they have failed to allege facts showing either private or public nuisance, or waste. Instead, they seek to assert these claims under a negligence theory, which is a separate cause of action and is further embraced by other causes of action already present. Accordingly, PVPLC’s demurrer is SUSTAINED without leave to amend.

Sixth Cause of Action for Rescission

The Chileses seek to rescind the contract between the Mendels and PVPLC. However, “[r]escission is a remedy that disaffirms the contract.” (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1145.) “Only the parties to a contract may rescind it.” (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 959.) The Chileses cite no contract that they were a part to that they wish to rescind. The Chileses seek an order “rescinding the tax auction foreclosure sale of Lot 63 [from 1978], and rescinding the resulting tax deed, and for an order rescinding the deed, by the Mendels, to the conservancy, thereby restoring title to Zelda Miller and an order that Zelda Miller quit-claim Lot 63 to cross-complainants on equitable terms.” The Chileses have not, however, provided any legal authority for disturbing these actions and none of the alleged facts support the requested relief. The Chileses plainly lack standing to assert this claim. Accordingly, PVPLC’s demurrer is SUSTAINED without leave to amend.

Seventh Cause of Action for Equitable Easement

Courts have the discretion to deny a landowner’s request to eject a trespasser and impose an equitable easement if: (1) the trespass was innocent rather than willful or negligent; (2) the easement will not irreparably injure the property owner or the public; and (3) the hardship to the trespasser in ceasing to trespass would be greatly disproportionate to the hardship on the property owner caused by continuation of the easement. (Tashakori v. Lakis (2011). 196 Cal. App. 4th 1003, 1009.) Although this doctrine is sometimes referred to as involving relative hardships or a “balancing of conveniences,” the doctrine actually requires a greatly disproportionate hardship to be faced by the trespasser. (Ibid.) The equitable easement doctrine arose in the context of permanent physical encroachments to preclude the tendency of property owners engaging in legal extortion against the trespasser. (See Christensen v. Tucker (1952) 114 Cal. App. 2d 554.) Because equitable easements give a trespasser the practical equivalent of the right of eminent domain, courts must resolve all doubts against their issuance. (Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 269.)

PVPLC only attacks the first element as lacking, as the Chiles were not “innocent” (i.e. not willful or negligent) in their encroachment. (See FACC ¶ 6 [from the time they began residing at 11 Figtree, “up to the present time, cross-complainants have had items of personal and real property on Lot 63”]; ¶ 48 [from 1978 until about two years ago, the fenced area “extended about 60 feet onto lot 63, according to PVPLC’s survey”].) PVPLC notes that the Chileses have alleged that they placed personal property on Lot 63. PVPLC argues that this precludes a finding that they were innocent, despite allegations to the contrary. (FAC ¶ 64.)

The Court does not find that PVPLC has met its burden in this context. First, the facts do not conclusively establish that the Chileses knowingly or negligently encroached onto lot 63 as a matter of law. The Chileses correctly point out that they purchased the property without any indication that the concrete slab encroached onto the property. (FACC ¶¶ 5-6.) Further, the concrete slab is naturally moving very slowly towards lot 63. (FACC ¶ 8.) At best, this appears to be an issue of fact not determinable at the demurrer stage. The Court notes that PVPLC has not cited a single decision where an equitable easement was denied at the demurrer stage or as a matter of law on that element. Accordingly, PVPLC’s demurrer is OVERRULED as to this cause of action.

Eighth Cause of Action for Declaratory Relief

Any person claiming rights with respect to property, a contract, or a written instrument (other than a will or trust) may bring an action for a declaration of the party’s rights or duties with respect to another. (CCP § 1060.) A plaintiff’s declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) The complaint will be found sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties’ legal rights and duties, and requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.) “Strictly speaking, a demurrer is a procedurally inappropriate method for disposing of a complaint for declaratory relief.” (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221 [disapproved on other grounds].) Nevertheless, the court may sustain a demurrer to a declaratory relief claim if the complaint fails to allege an actual or present controversy, or that the controversy is not “justiciable” or if it determines that a judicial declaration is not “necessary or proper at the time under all the circumstances.” (CCP § 1061; DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.)

This cause of action explicitly seeks “an order stating the rights and duties of the parties under the contract by which PVPLC acquired lot 63.” (FACC ¶ 71.) As stated above, the Chileses have no rights or duties under that contract; they are strangers to that contract. Thus, Chileses have no standing to assert this claim. Accordingly, PVPLC’s demurrer is SUSTAINED without leave to amend as to this cause.

Ninth Cause of Action for Trespass

“The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. [Citation]” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262.) The Chileses only allege that PVPLC has entered into lot 63. (FACC ¶ 75.) The Chileses do not allege that they the owners of Lot 63. They do not allege that PVPLC entered their property. The Chileses appear to conflate their other causes of action for lateral support for trespass.

The Chileses argue that the action is stated as a “trespass on the case.” Trespass on the case was a common law form of action that encompassed a wide variety of causes of action that are now considered separate. (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 401 fn. 25.) There, the Fourth District provided a history of the tort, and questioned its continued existence:

“…Historically, trespass on the case was a common law form of action that encompassed a wide variety of causes of action that we now consider separate. Chief among them was negligence. For example, an early Supreme Court opinion on negligence relies on a treatise discussing trespass on the case for the applicable standards. California no longer adheres to the common law forms of action. And, to the extent trespass on the case survived as a counterpart to the modern cause of action for trespass (one that would allow recovery of additional damages), that distinction has been abolished. All such actions are now known as trespass.”

(Ibid. [citations omitted].) Accordingly, PVPLC’s demurrer is SUSTAINED without leave to amend as to this cause.

Tenth Cause of Action for Negligence

The elements of any negligence cause of action are: 1) duty; 2) breach of duty; 3) proximate cause; and 4) damages. (Peredia v. HR Mobile Servs., Inc. (2018) 25 Cal.App.5th 680, 687.)

The Chileses do not identify the duty that PVPLC has breached. The FACC alleges that there it is “reasonably foreseeable” that the house, pool, the concrete slab, and the land at 11 Figtree, “will be” damaged if there is subsidence of Lot 63, or further landslides on Lot 63. (FACC ¶ 77.) However, this damage is speculative and has not come to pass. Thus, the cause would lack an element of damages. To the extent that the Chileses assert a duty for lateral support, the analysis is identical to that cause of action discussed above. The Chileses also argue that PVPLC has a duty to try to prevent further landslides, but cites no authority for this point.

Accordingly, PVPLC’s demurrer is SUSTAINED with leave to amend.

Eleventh Cause of Action for Declaratory Relief

Here, PVPLC contends that the declaratory relief claim is derivative of the other causes of action. (See Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 796.) While true, the seventh cause of action for equitable easement remains and is embraced by this cause as well. Accordingly, PVPLC’s demurrer to this cause of action is OVERRULED.

Moving party is ordered to give notice.