Case Number: BC495877    Hearing Date: August 01, 2014    Dept: 32

CASE NAME: Sean C. Daily v. Mauricio Majano, et al.
CASE NO.: BC495877
HEARING DATE: 08/01/14
DEPARTMENT: 32
CALENDAR NO.: 5
SUBJECT: Motion for Summary Adjudication
MOVING PARTY: Defendants Susan and Tom Mogan and Mauricio Majano
RESP. PARTY: Plaintiff Sean C. Daily

COURT’S TENTATIVE RULING

Motion for Summary Adjudication (MSA) DENIED as to the second, third, fourth and fifth causes of action.

ANALYSIS

Timeliness of MSA

In opposition, Plaintiff contends that the MSA is procedurally defective because it was not served in final form until May 16, 2014. The proof of service indicates that the MSA was served personally on Plaintiff’s counsel on May 9, 2014, which would have been timely for the original hearing date of July 25, 2014. (CCP § 437c(a) [requiring 75 days notice].) Plaintiff contends that Defendants served a revised version of the MSA on May 16, 2014, less than 75 days before the hearing date. The table of changes submitted by Plaintiff reflects that the revised MSA made only minor changes. (Objection Exh. 1.) Plaintiff has not identified any prejudice from the service of these changes, and Plaintiff has not cited any authorities suggesting that this type of defect deprives the court of jurisdiction to hear the motion. Accordingly, as there is no evidence of prejudice, the court OVERRULES Plaintiff’s timeliness objection.

Separate Statement

Plaintiff contends that Defendants’ separate statement is procedurally defective because it does not segregate each issue sought to be adjudicated in the motion. Plaintiff is correct that the moving separate statement does not separately identify each cause of action, which technically violates CRC Rule 3.1350(d). The court’s power to deny summary judgment on the basis of failure to comply with CRC Rule 3.1350(d) is discretionary, not mandatory. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) Plaintiff has not shown sufficient prejudice in opposition to justify a denial of the MSA on this procedural basis. It is reasonably clear from the first page of the moving separate statement that all asserted facts were intended to apply to each of the second through fifth causes of action. The court OVERRULES Plaintiff’s objection to the moving separate statement.

Defendants’ Request for Judicial Notice

Exhibits 1-6 – GRANTED.

Plaintiff’s Evidentiary Objections

Declaration of Nancy Goldstein

(1) Overruled.
(2) Overruled.
(3) Overruled.
(4) Overruled.
(5) Overruled.
(6) Overruled.
(7) Sustained.
(8) Overruled as to March 15, 2012 Sean Daily email and March 23, 2012 Daily email. Sustained as to remainder.
(9) Sustained.

Declaration of Susan Mogan

(1) Overruled.
(2) Overruled.

Declaration of Tom Mogan

(1) Sustained.
(2) Sustained as to “boundary fence” and Overruled as to remainder.
(3) Overruled.
(4) Overruled.
(5) Overruled.
(6) Overruled.
(7) Overruled.
(8) Overruled.
(9) Sustained as to “Mauricio let me know that Mr. Contreras would sell for $4,000.” Overruled as to remainder.
(10) Sustained.

Defendants’ Evidentiary Objections

Declaration of Sean Daily

(1) Sustained.
(2) Overruled.
(3) Sustained.
(4) Sustained as to “Tom Mogan’s fabricated e mail” and Overruled as to remainder.
(5) Sustained.
(6) Sustained.
(7) Sustained as to “Due to Mogan’s interference”. Overruled as to remainder.
(8) Sustained.
(9) Sustained as to portion of quotation from page 6:3-6:16, “Cecilia advises … interfering with buyers since 2010.” Overruled as to remainder.
(10) Sustained.
(11) Overruled as to last sentence “I have used this road many times as have the Mogan’s order ….” Sustained as to remainder.
(12) Sustained.
(13) Sustained.
(14) Sustained.
(15) Sustained.
(16) Sustained.
(17) Sustained.
(18) Overruled.
(19) Sustained.
(20) Overruled.
(21) Overruled.
(22) Overruled.
(23) Overruled.
(24) Overruled as to first sentence and Sustained as to “Lot 8….”
(25) Sustained.
(26) Sustained.
(27) Overruled.
(28) Overruled.
(29) Sustained.
(30) Sustained.
(31) Overruled.
(32) Overruled.
(33) Overruled.
(34) Sustained.
(35) Overruled.

Declaration of Joe E. Teddy

(36) Overruled.
(37) Sustained.
(38) Overruled.
(39) Overruled.
(40) Overruled.
(41) Overruled.
(42) Overruled.
(43) Sustained.

Declaration of Frank Sobecki

(44) Overruled.

Declaration of Ramiro Adeva

(45) Overruled.
(46) Sustained.

Summary Adjudication Standard

This motion for summary adjudication is directed at the second, third, fourth and fifth causes of action alleged in the Second Amended Complaint. A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP § 437c(c).) There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) On its motion for summary judgment, the defendant must persuade the court that one of the elements in question cannot be established or that there is a complete defense. (Id.) Summary judgment motions are defined by the material allegations in the pleadings. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) A motion for summary adjudication proceeds in all procedural aspects as a motion for summary judgment. (CCP § 437c(f)(2).)

This is, generally stated, a dispute between adjoining landowners in Augora Hills. The court will discuss below the causes of action at issue in this motion.

Second Cause of Action – Interference with Plaintiff’s Use and Enjoyment

The second cause of action is based on Defendants action in constructing a fence which allegedly prevented Plaintiff from entering his land. In the second cause of action, Plaintiff alleges the following: “Commencing in 2012, the Defendants, and each of them, have interfered with Plaintiff’s use and enjoyment of his property be denying Plaintiff access to his property. The Defendants have denied Plaintiff access to his property by constructing a fence on their land which prevents Plaintiff from entering and/or leaving his property. The fence also prevents Plaintiff from attempting to sell his property because any prospective purchaser would then know that there was no way to access the property. Lot 35 was originally created for the city’s easement for maintenance of Renee Drive as part of the approval of the development of Tract 8793 in Agoura Hills.” (SAC ¶ 20.)

The elements of a claim for interference with use and enjoyment of property are: (1) Interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.)

“The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? …. This is, of course, a question of fact that turns on the circumstances of each case.” (Monks v. City of Rancho Palos Verdes (2008)
167 Cal.App.4th 263, 303.)

“Actions that make it more difficult to use an easement, that interfere with the ability to maintain and repair improvements built for its enjoyment, or that increase the risks attendant on exercise of rights created by the easement are prohibited … unless justified by needs of the servient estate.” (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, 429.) “Given that reasonableness depends on the facts and circumstances of each case, ‘[w]hether a particular use of the land by the servient owner … is an unreasonable interference is a question of fact for the jury. [Citations.]’” (Ibid.)

Defendants contend that Plaintiff has no evidence that the fence constructed by Defendants caused Plaintiff any damages. In support, Defendants cite evidence that the fence on Lot 35 was removed about two months after it was built, in September 2012, and that Plaintiff listed his property for sale in August 2012. (UMF 28, 31.)

As indicated by the authorities cited above, whether the interference is unreasonable and causes substantial damages are questions of fact. In Dolnikov, supra, the court held that the defendants’ refusal to sign a permission for a building permit to construct a retaining wall, which the city required before it would issue plaintiff the permits necessary to make the easement roadway useable, constituted an unreasonable interference with plaintiff’s use and enjoyment of the easement.

Defendants have not pointed the court in their moving papers to any material facts disputing Plaintiff’s allegation that “Defendants erected a fence on or adjacent to Lot 35, barring vehicular access to Lot 8, claiming their ownership of Lot 35 gave them the right to construct such a fence.” (SAC ¶ 22; see Mot. 9-12.) Accordingly, Defendants have not met their moving burden of establishing that Plaintiff did not suffer substantial damage and Defendants did not unreasonably interfere with Plaintiff’s enjoyment of his premises by constructing the fence on Lot 35. Even from the material facts cited by Defendants (UMF 28, 31), it seems possible that the fence on Lot 35 existed at the same time Plaintiff was attempting to sell his property. There are also triable issues of material fact as to whether the fence on Lot 35 undermined Plaintiff’s ability to sell Lot 8. (See DMF 18; Oppo. Exh. 10, Ugas Depo. at 166-168 and Exh. 127 thereto; see Daily Decl. ¶¶ 9-10.)

Defendants contend that a claim for private nuisance may not be maintained for interference caused by “fear of a future injury.” (Mot. 11:5-6.) This argument is not dispositive since, as discussed above, there are triable issues as to whether Plaintiff suffered actual damages as a result of the interference.

The motion is DENIED as to the second cause of action.

Third Cause of Action – Interference with Prospective Economic Advantage

The third cause of action is based on Defendants alleged interference with a sale of Plaintiff’s lot. The elements of a claim for interference with prospective economic advantage are: (1) Economic relationship between the plaintiff and third party; (2) probability of future economic benefit to the plaintiff; (3) defendant’s knowledge of the relationship; (4) defendant’s intentional acts designed to disrupt the relationship; (5) defendant engaged in an independently wrongful act in disrupting the relationship beyond just inducing disruption of economic advantage; (6) actual disruption of the relationship; and (7) economic harm to the plaintiff caused by the acts. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal. App. 4th 212, 241.)

A plaintiff alleging this claim “must plead and prove as part of its case-in-chief that the defendant’s conduct was wrongful by some legal measure other than the fact of interference itself.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154.) “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Id. at 1159.)

Defendants first imply that the putative buyer, Jeffery, was entitled to cancel the sale agreement because he was within the contingency period, and that Defendants therefore could not have interfered with a contract. (Mot. 12.) However, as Defendants recognize, the third cause of action is for interference with prospective economic advantage not contract. Thus, Jeffery’s right to cancel is not itself dispositive.

Defendants contend that Plaintiff has no evidence of interference that was independently wrongful. However, Defendants do not dispute that a cause of action for slander of title can satisfy this element of an intentional interference claim. For the reasons stated below as to the fifth cause of action, there are triable issues of material fact with respect to the slander of title claim. It follows that there are triable issues as to the element of independently wrongful conduct for the third cause of action.

The motion is DENIED as to the third cause of action.

Fourth Cause of Action – Trespass and Ejectment

This cause of action is based on the Defendants alleged acts of building a fence on Plaintiff’s property as well as allowing their horses to enter the property. Defendants contend that Plaintiff was not in possession of the land at the time of any trespass; that he is therefore required to show actual damage to the land; and that he is unable to do so.

“An action for trespass may technically be maintained only by one whose right to possession has been violated [citations] however, an out-of-possession property owner may recover for an injury to the land by a trespasser which damages the ownership interest. [Citations.] In our view, the inquiry in a case involving unlawful intrusion on property rights should focus upon the nature of the injury and the damages sought: If the right to possession has been abridged and possessory rights damaged, the possessor may complain by way of an action for trespass; if, on the other hand, an intruder harms real property in a manner which damages the ownership interest, the property owner may seek recovery whether the cause of action be technically labeled trespass or some other form of action, such as waste.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774-775.)

Defendants have not argued in the moving papers that Plaintiff will be unable to produce evidence of trespass onto Plaintiff’s land. (Mot. 14-15.) Defendants have not met their moving burden of showing that Plaintiff cannot establish damages. In the reply papers, Defendants point to material fact 32 in their separate statement, which refers to Plaintiff’s responses to form interrogatories and requests for admissions. (UMF 32.) However, these responses do not establish that Plaintiff lacks evidence of damages. For instance, in his supplemental response to Form Interrogatory No. 9.1 (regarding “other damages”), Plaintiff identified “surveyor expenses of $345.00, attorneys fees which are in excess of $50,000, and property taxes for the last two years at approximately $1,320 per year.” (Goldstein Decl. ¶¶ 2-3.)

Moreover, as argued in opposition, Defendants cite no authorities for the argument that Plaintiff would be considered “out of possession” simply because the property is undeveloped and he does not live there. It is undisputed that Defendants built a fence that encroached on Plaintiff’s land and also allowed their horses to exercise on Plaintiff’s property. (See Tom Mogan Decl. ¶ 3; see Mot. 14-15.) At the summary adjudication stage, Defendants had the moving burden of establishing that Plaintiff could not prove damages from these trespasses. Defendants failed to do so.

Finally, Plaintiff submits some evidence in opposition that Defendants’ trespass caused Plaintiff to lose up to $27,000 in the fair rental value of the property. (See DMF 32; Civ. Code § 3334.) Thus, triable issues exist as to Plaintiff’ damages.

The motion is DENIED as to the fourth cause of action.

Fifth Cause of Action – Slander of Title

This cause of action is based on Defendants alleged acts of stating that the Plaintiff’s property lacked access to the road, i.e., that it was landlocked. The elements of a claim for slander of title are: (1) False and unprivileged disparagement; (2) of title to property; and (3) resulting in actual pecuniary damage. (Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 419.)

Defendants contend that the fifth cause of action must be summarily adjudicated because there was no false statement, and any deemed publication was privileged.

False Statement

In the SAC, Plaintiff alleges the following: “Defendants MOGAN have slandered Plaintiffs title to Lot 8. The slander occurred when Defendants MOGAN published orally and in writing to Cecilia Ugas and Paul Jeffery that
Plaintiff’s Lot 8 had no access to a public road. Defendants made these slanderous accusations in order to prevent Plaintiff from listing and selling his property through Cecilia Ugas of Century 21 Realty, and to interfere and prevent the sale of the property to Paul Jeffery who had submitted an offer to Ms. Ugas to purchase Lot 8 prior to March 15, 2012.” (SAC ¶ 32.)

Defendants have not met their moving burden of showing that no triable issue exists as to the allegation that Defendants told Ugas, who transmitted the information to potential buyer Jeffery, that Lot 8 was landlocked. Although Defendants do not cite the material facts at issue in their moving brief (Mot. 18), it seems from the reply brief that Defendants rely on material facts 14, 17, 18, 24, and 25. It is correct, as Defendants assert in reply, that material facts 24 and 25 refer to emails sent by Defendants after Jeffery cancelled the sale on March 16, 2012. (See UMF 24, 25; Tom Mogan Decl. Exh. N and O.) However, material facts 14, 17, and 18 do not dispostively negate the possibility that Defendants told Ugas prior to March 16, 2012 that Lot 8 was landlocked, as alleged in the SAC. Indeed, Defendants seem to admit that Susan Mogan told Ugas about the access issue with Lot 35 on March 9, 2012. (See UMF 18; Susan Mogan Decl. ¶ 2.)

Moreover, Plaintiff points to evidence in opposition that establishes a triable issue as to whether Defendants told Ugas Lot 8 was landlocked before Ugas transmitted that information to Jeffrey. (See DMF 18; Oppo. Exh. 10, Ugas Depo. at 166-168 and Exh. 127 thereto.) At deposition, Ugas testified that she told Jeffery that Lot 8 might be landlocked based on a conversation with Susan Mogan. (See Ibid.) This testimony is consistent with Ugas March 15, 2012 email to Jeffery alerting him that the “lot could be landlocked.” (Ugas Depo. at Exh. 127.) Therefore, a triable issue exists as to whether Defendants made a false statement to Ugas that Lot 8 was landlocked.

Defendants do not dispute in their papers that, at the least, a triable issue of material fact exists as to whether Lot 8 was landlocked. (See Mot. 18.) Defendants have not challenged Plaintiff’s allegation in the second cause of action that “Lot 8 has an easement by operation of law over Lot 35 because it was dedicated as a public road as part of Tract 8793’s approval by the County of Los Angeles.” (SAC ¶ 22.) Therefore, for purposes of this motion, this allegation regarding Plaintiff’s alleged easement over Lot 35 must be deemed true. (See also Reply 1-2 [admitting that this question remains to be decided].)

Although it is unnecessary for the court to decide at this time whether Plaintiff in fact has an easement on Lot 35, which is the subject of the first cause of action, the court notes Plaintiff’s discussion of this issue at page 20 of the opposition brief. “The vacation of a street or highway extinguishes all private easements therein claimed by reason of the purchase of a lot by reference to a map or plat upon which the street or highway is shown, other than a private easement of ingress and egress to the lot from or to the street or highway.” (CA Street and Highway Code § 8353(a) [emphasis added]; see also Neff v. Ernst (1957) 48 Cal.2d 628, 636-637.) Based on these authorities and the undisputed allegations from the SAC, at the least a triable issue would exist as to whether Lot 8 was landlocked and whether Defendants knew their alleged communications were false.

Defendants argue for the first time in reply that a statement that a property is landlocked is a non-actionable statement of opinion. (Reply 10.) As Defendants did not raise this argument in the moving papers, they waived it for purposes of this motion. (See Regency Outdoor Advertising, Inc. v. Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 1333.)

Defendants also do not argue that a slander of title claim cannot be based on statements made to an agent, such as Ugas, and then transmitted to the potential buyer. (See Mot. 18; Reply 9.)

Privilege

Defendants contend that in any case the communication at issue is privileged. Defendants rely on a conditional privilege pursuant to Civ. Code § 47(c). (Mot. 19.)

“Civil Code section 47, subdivision (c), provides a conditional privilege for communications made ‘without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.’ ‘Application of the privilege involves a two-step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice. [Citation.]’” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal. App. 4th 90, 108.)

“‘The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiff’s rights [citations].’” (Taus v. Loftus (2007) 40 Cal.4th 683, 721; see also Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 344 [malice includes ill will or with reckless disregard for the truth or other’s rights, but not negligence].)

It appears from the undisputed facts that the communications at issue were made between parties to a transaction. It also appears that Ugas may have requested information from Defendants regarding the status of Lot 8. (See DMF 18; Oppo. Exh. 10, Ugas Depo. at 166-168 and Exh. 127 thereto.) Therefore, Defendants have met their initial burden of establishing that a qualified privilege would apply pursuant to Civ. Code § 47(c) in the absence of malice.

Taking the evidence in the light most favorable to Plaintiff, as the court must on this motion, there is a triable issue as to whether Defendants acted with malice. As discussed above, there is evidence that in July 2012 Defendants constructed a temporary fence on Lot 35 that prevented vehicle access to Lot 8. (See Tom Mogan Decl. ¶ 3.) Since there is evidence that the sale of Lot 35 did not extinguish Plaintiff’s easement, the construction of the temporary fence could be viewed by a trier of fact as an attempt to interfere with Plaintiff’s enjoyment of his property.

Although sent after Jeffery’s cancellation of the sale, two letters by Tom Mogan also suggest inferentially that Defendants may have acted with malice in claiming that Lot 8 was landlocked. Tom Mogan wrote Ugas on March 22, 2012, that “I would hope that you would provide the above information [that Lot 8 is landlocked] to anyone considering purchasing the lot so that they can make an informed decision.” (Tom Mogan Decl. Exh. N.) Mogan wrote Plaintiff on March 23, 2012: “Lot 8 has NO ACCESS to a public road…. Without control of Lot 35 – you are selling a landlocked parcel. I am sending a copy of this letter to Cecilia to ensure that she properly informs prospective buyers that Lot 8 has no access. [¶] If you wish to reconsider selling to me, let me know.” (Id. Exh. O.) These letters suggest that Defendants were using the argument that Lot 8 was landlocked to pressure Plaintiff to sell Lot 8 to them, and to discourage other buyers. This motive suggests that the publications at issue could have been made intentionally or at least without reasonable grounds for their truth.

As discussed in Plaintiff’s opposition papers, it is undisputed that Defendants allowed their horses to trespass onto Plaintiff’s property. (See Oppo. 18-19.) The strained relations between Plaintiff and Defendants also supports an inference that Defendants acted with malice.

The motion is DENIED as to the fifth cause of action.