Case Name: Susan St. Claire v. Feride B. Diri, et al.

Case No.: 2015-1-CV-288573

Defendant Feride Diri’s Demurrer to First Amended Complaint

Plaintiff Susan St. Claire (“Plaintiff”) is the owner of residential real property commonly known as 614 Dorothy Avenue in San Jose. (First Amended Complaint (“FAC”), ¶1.) Defendant Feride B. Diri (“Defendant”) is the owner of residential real property commonly known as 626 Dorothy Avenue in San Jose. (FAC, ¶2.) Plaintiff’s and Defendant’s property adjoins each other. (FAC, ¶3.) Defendant disputes and denies the true and correct boundary line between Plaintiff and Defendant’s properties. (FAC, ¶5.)

In 1999, Plaintiff, for no consideration, orally agreed with the prior owner of Defendant’s property that a gate post and fence could be temporarily installed on Plaintiff’s property. (FAC, ¶10.) The fence as installed was located in some parts up to two feet into Plaintiff’s property. (Id.) Plaintiff was not aware of the full extent of the encroachment by the fence when it was installed and only discovered the extent of the encroachment when the property was surveyed by Plaintiff in 2015. (Id.) At some time after the installation of the fence, the prior owner of Defendant’s property placed concrete in the area adjacent to the fence that included a portion of Plaintiff’s property without Plaintiff’s consent or knowledge. (Id.)

Plaintiff is informed and believes Defendant intends to tear down the existing garage on Defendant’s property and construct a new garage further away from the boundary with Plaintiff’s property. (FAC, ¶11.) As a result, the fence installed by the former owner of Defendant’s property would no longer serve to divide the Plaintiff and Defendant’s properties. (Id.) Plaintiff informed Defendant of her intent to remove the existing fence and install a new division fence along the actual boundary line. (Id.) Plaintiff also requested Defendant remove the encroaching concrete and gate post. (Id.) Defendant refused to consent to the removal of the existing fence, concrete, and gate post. (Id.)

Plaintiff also demanded Defendant pay the share of the cost to construct/ erect a division fence along the actual boundary line, but Defendant refused to pay her equal share. (FAC, ¶14.)

On or about February 5, 2015 and on a number of occasions thereafter, Defendant entered Plaintiff’s property without consent and cut and damage portions of Plaintiff’s trees, bushes, and other vegetation. (FAC, ¶17.)

On or about September 19, 2015, on the sidewalk in front of Plaintiff’s property, Defendant approached Plaintiff when she was meeting with representatives of a fence company, demanded the names of the individuals, screamed at Plaintiff with her face within 8 inches of Plaintiff’s face, raised her fists over Plaintiff’s head and brought them down several times in a threatening gesture. (FAC, ¶21.)

On December 1, 2015, Plaintiff filed a complaint against Defendant. On January 8, 2016, Defendant filed a demurrer to Plaintiff’s complaint. On February 11, 2016, pursuant to stipulation, Plaintiff filed the operative FAC which asserts causes of action for:

(1) Quiet Title
(2) Removal of Fences, Gate Post, and Concrete
(3) To Apportion Cost of Division Fence
(4) Trespass
(5) Assault

On February 23, 2016, Defendant filed this demurrer to the first through fourth causes of action of Plaintiff’s FAC.

DISCUSSION

I. Defendant’s demurrer to the FAC is OVERRULED.

A. First Cause of Action – Quiet Title.

“The elements of a quiet title action include all of the following: [1] A description of the property that is the subject of the action; [2] The title of the plaintiff as to which a determination is sought and the basis of the title; [3] The adverse claims to the title of the plaintiff against which a determination is sought; [4] The date as of which the determination is sought; [5] A prayer for the determination of the title of the plaintiff against the adverse claims.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §622, pp. 87 citing Code Civ. Proc. §761.020.) The Law Revision Commission Comment to Code of Civil Procedure section 761.020 states, with regard to the third element that, “Subdivision (c) requires the naming of specific adverse claims as to which the plaintiff seeks to quiet title.”

Defendant contends the first cause of action consists of three quiet title issues: (1) unknown defendants’ cloud on Plaintiff’s title; (2) the boundary line dispute; and (3) unknown defendants’ adverse claims. Defendant contends the first cause of action is uncertain with regard to the unknown defendants. However, the court need not address this concern as it is directed at only a portion of the cause of action. A defendant cannot demur to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778—“[A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682—“A demurrer does not lie to a portion of a cause of action;” Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274—“ A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action.”)

The gravamen of the first cause of action is the boundary line dispute. Defendant acknowledges as much by referencing the allegation at paragraph 5 which states, “Defendants claim some right, title, estate, lien, or interest in and to the lands of Plaintiff hereinbefore described, or a portion thereof, and dispute and deny that the true and correct boundary line between their respective properties runs as shown on the legal description and survey attached hereto as Exhibit ‘C’ and incorporated herein.”

Defendant takes further issue with Exhibit C and argues that it cannot be determined from the attached survey whether there is a boundary line dispute. “Under California law, the location of a disputed boundary line is proven by retracing, as nearly as possible based upon existing evidence, the footsteps of the original surveyor whose survey fixed the boundaries.” (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 736 (Bloxham).) Significantly, the determination of a boundary dispute is for a trier of fact.

“[T]he question presented to the court in a boundary dispute is not that of making a resurvey but one of determining as a question of fact from the preponderance of expert and nonexpert evidence (as in all other civil cases) the actual location of the monuments, corners or lines as actually laid out on the ground by the official surveyor.” (Chandler v. Hibberd (1958) 165 Cal.App.2d 39, 55, 332 P.2d 133.) “The questions where the line run by a survey lies on the ground, and whether any particular tract is on one side or the other of that line, are questions of fact. Russell v. Land–Grant Co., 158 U.S. 253, 259, 15 S.Ct. 827, 39 L.Ed. 971 [ (1895) ].” (U.S. v. State Inv Co (1924) 264 U.S. 206, 211, 44 S.Ct. 289, 68 L.Ed. 639.)

“Surveyors and civil engineers, like other experts, may give testimony on questions involving matters of technical skill and experience with which they are peculiarly acquainted. [Citations.]” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 741, 249 P.2d 600.) The weight and credence to be given an expert’s testimony is a question for the trier of fact. (See Estate of Schluttig (1950) 36 Cal.2d 416, 424, 224 P.2d 695.)

(Bloxham, supra, 228 Cal.App.4th at pp. 737 – 738.)

It is sufficient for Plaintiff to plead that Defendant claims an adverse interest in Plaintiff’s property based upon a disputed boundary line. Under well settled legal principles, the court must accept this allegation as true for purposes of a demurrer. Accordingly, Defendant’s demurrer to the first cause of action in Plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for quiet title and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

B. Second Cause of Action – Removal of Fences, Gate Post, and Concrete.

Although not labeled as a cause of action for declaratory relief, the second cause of action appears to assert a claim for declaratory relief. “Plaintiff need not allege a separate count seeking declaratory relief or label his or her complaint as one for declaratory relief. It is enough that the complaint alleges facts showing an ‘actual controversy’ and asks the court to adjudicate the parties’ rights and duties.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ¶6:190.5, p. 6-63 citing Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 807.)

“A complaint for declaratory relief should show the following: (a) A proper subject of declaratory relief within the scope of C.C.P. 1060; (b) An actual controversy involving justiciable questions relating to the rights or obligations of a party.” (5 Witkin, California Procedure (4th ed. 1997) §809, pp. 264 – 265; emphasis omitted.) Code of Civil Procedure section 1060 specifically provides:

Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.

In demurring, Defendant argues that to the extent Plaintiff is seeking declaratory relief, the second cause of action does not assert a proper subject of declaratory relief because Plaintiff has alleged an agreement between herself and the prior owner of Defendant’s property. Defendant contends she was not a party to that agreement. However, written instruments or contracts are not the only proper subjects of a declaratory relief claim. As set forth in Code of Civil Procedure section 1060, Plaintiff can properly seek declaratory relief concerning “his or her rights or duties with respect to another, or in respect to, in, over or upon property.” This is precisely what Plaintiff seeks here.

Accordingly, Defendant’s demurrer to the second cause of action in Plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for declaratory relief and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

C. Third Cause of Action – To Apportion Cost of Division Fence.

In the third cause of action, Plaintiff apparently seeks declaratory relief concerning the respective rights and duties of Plaintiff and Defendant to erect a division fence along the true boundary between their properties. Civil Code section 841, subdivision (a) states, “Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.”

In demurring, Defendant contends Plaintiff has not satisfied the requirements of Civil Code section 841 to be entitled to an apportionment of costs. Defendant contends a division fence is not necessary because a fence already exists. However, the necessity of a division fence is dependent upon whether Plaintiff can prevail on her claim that the current fence is not located on the actual boundary line and should be removed/ replaced. Moreover, necessity is but one factor the court considers in determining whether to order an equal contribution, something less than an equal contribution, or no contribution at all. (See Civ. Code, §841, subd. (b)(4).) Since the court cannot determine necessity at the pleading stage, a demurrer is not proper.

Defendant argues further that Plaintiff has not complied with the notice requirements of Civil Code section 841, subdivision (b)(2) which states:

Where a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days’ prior written notice to each affected adjoining landowner. The notice shall include notification of the presumption of equal responsibility for the reasonable costs of construction, maintenance, or necessary replacement of the fence. The notice shall include a description of the nature of the problem facing the shared fence, the proposed solution for addressing the problem, the estimated construction or maintenance costs involved to address the problem, the proposed cost sharing approach, and the proposed timeline for getting the problem addressed.

Impliedly, the notice provision applies to pre-litigation efforts an adjoining neighbor seeking a contribution for the erection of a division fence. The court does not view this as an impediment or prerequisite to asserting a cause of action. Moreover, the notice requirements set forth above can be enforced in a judgment, as necessary.

Accordingly, Defendant’s demurrer to the third cause of action in Plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for declaratory relief and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

D. Fourth Cause of Action – Trespass

Defendant contends the fourth cause of action is uncertain because it seeks damages, equitable relief, and punitive damages. Defendant also argues the fourth cause of action for trespass is uncertain because it refers to a driveway, but it is unclear where the driveway is located or what part of the driveway is on Plaintiff’s property.

“‘A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party. [Citations.] A special demurrer should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired. [Citations.] . . . [a] demurrer for uncertainty will not lie as to even uncertain and ambiguous allegations, if such allegations refer to immaterial matters. In such event, they will be treated as surplusage and disregarded. [Citations.]’” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 631.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The court finds the fourth cause of action to be sufficiently clear to apprise Defendant of the issues that must be met. Any ambiguity can be clarified during discovery. Accordingly, Defendant’s demurrer to the third cause of action in Plaintiff’s FAC on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED