SUSAN WILSON VS. DANIELA HAGLUND

Case Number: EC061163 Hearing Date: October 31, 2014 Dept: B

Motion for Summary Adjudication re First Amended Complaint

Motion for Summary Judgment re: Cross-Complaint

The Plaintiffs and Defendants are adjacent landowners. By their Complaint, Plaintiff alleges that the Defendants have encroached onto the Plaintiffs’ property by negligently constructing an eight foot high concrete wall and retaining walls across the Plaintiffs’ property.

Masiela Lusha, the current title holder of the adjacent property filed a Cross-Complainant alleging that she obtained an interest in the real property on which the improvements were built through adverse possession or prescriptive easement.

The Causes of Action in the First Amended Complaint are for:
1) Negligence
2) Trespass
3) Private Nuisance
4) Invasion of Privacy
5) Injunctive Relief (removed by demurrer on March 28, 2014)
6) Declaratory Relief
7) Quiet Title
8) Ejectment

The Causes of Action in the Cross-Complaint are for:
1) Quiet Title based on Adverse Possession
2) Quiet Title based on Prescriptive Easement
3) Equitable Relief under Good Faith Improver Statutes
4) Unjust Enrichment

This hearing concerns the Plaintiffs’ motion for summary adjudication of the first, second, and third cause of action in their First Amended Complaint and the Plaintiffs’ motion for summary judgment of the Defendants’ Cross-Complaint.

1. Motion for Summary Adjudication

Under CCP section 437c(f), a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. The Legislative intent of CCP section 437c(f) was to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense. Lilienthal & Fowler v. Superior Court (1993) 12 Cal. App. 4th 1848, 1854.

Under CCP section 437c, the Plaintiffs have the burden of producing evidence that demonstrates that they can establish each element of the first, second, and third causes of action. An essential element of the negligence, trespass, and nuisance causes of action is the amount of damages for which the Plaintiffs seeks a judgment in their favor. This is necessary so that an order granting summary adjudication would completely dispose of these causes of action.

A review of the Plaintiffs’ memorandum, separate statement, and exhibits reveals that the Plaintiffs did not offer evidence to establish the amount of damages in each cause of action. For example, on page 14, the Plaintiffs argue that the Defendants’ trespass has caused them to suffer damages, including diminution of the fair market value of their property, interference with the use of their property, and exposure to liability for injury. However, the Plaintiffs did not offer any evidence regarding the monetary amounts of these damages. Since there is no evidence regarding the amount of damages, an order granting summary adjudication would not completely dispose of the cause of action because the Court would need further evidence to resolve the element of damages in the causes of action.

CCP section 437c is a complicated statute and there is little flexibility in the procedural imperatives of the section and, as a result, section 437c is unforgiving. Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 949-950. A failure to comply with any one of its myriad requirements is likely to be fatal to the offending party. Id.

Section 437c does not furnish the trial courts with a convenient procedural means, to which only “lip service” need be given, by which to clear the trial calendar of what may appear to be meritless or weak cases. Id. Any arbitrary disregard of the statutory commands in order to bring about a particular outcome raises procedural due process concerns. Id. The success or failure of the motion must be determined by application of the required step-by-step evaluation of the moving and opposing papers. Id. Because of the drastic nature of the remedy sought, the moving party is held to strict compliance with the procedural requisites. Id.

The Plaintiffs’ motion for summary adjudication of the first, second, and third causes of action does not meet their burden of proof under CCP section 437c because it does not offer evidence to establish the amount of damages. Therefore, , the Court denies the Plaintiffs’ motion for summary adjudication of the first, second, causes of action because the Plaintiffs did not meet their burden of proof.

2. Motion for Summary Judgment of Cross-Complaint

Under CCP section 437c, the Plaintiffs, as the Cross-Defendants, have the burden of proof to demonstrate that the Cross-Complainants cannot establish an essential element of each cause of action in the Cross-Complaint or that the Cross-Defendants have an affirmative defense to each cause of action.

The Plaintiffs did not seek summary adjudication as an alternative to their motion. It is improper to grant summary adjudication absent a motion for summary adjudication. Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 949-950. When a party did not move in the alternative for summary adjudication, the Court does not address whether the party may have prevailed on some issues in the case. Id.

a) First Cause of Action for Quiet Title based on Adverse Possession

The elements of a cause of action to quiet title by adverse possession are the following:

1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner;
2) Possession must be hostile to the owner’s title.
3) The holder must claim the property as his own, either under color of title, or claim of right.
4) Possession must be continuous and uninterrupted for five years.
5) The possessor must pay all of the taxes levied and assessed upon the property during the period.
West v. Evans (1946) 29 Cal. 2d 414, 417.

The Plaintiffs argue that the Defendants cannot establish that they had continuous and uninterrupted possession for five years or that they paid all taxes levied and assessed upon the property.

First, the Plaintiffs offer evidence in the declaration of Susan Wilson that the concrete wall and retaining wall that encroach on their property were built in 2011 (Separate Statement of Facts (“SSF”) 14). Further, the Plaintiffs offer evidence in the declaration of Susan Wilson that the patio and steps that encroach on their property were built in 2011 (SSF 21). This case was commenced on August 21, 2013. Since these facts indicate that the Defendants obtained possession of the Plaintiffs’ property in 2011 when their walls, patio, and steps were built, these facts demonstrate that the Defendants have not had five years of continuous and uninterrupted possession when the case was filed two years later, on August 21, 2013.

Second, the Plaintiffs offer evidence in the declaration of Susan Wilson that they have paid property taxes on the entirety of their property from 2007 to the present and that the Defendants have never offered to pay or paid any of the property taxes (SSF 40 to 44). Ms. Wilson states that she reviewed the records at the Los Angeles County Tax Assessor’s Office to determine that neither Defendant paid property taxes for any portion of the property at 5 Skyline Drive, including the area of encroachment.

These facts are sufficient to meet the Plaintiffs’ burden because they establish that the elements of continuous and uninterrupted possession for five years and payment of property taxes cannot be established. Under CCP section 437c, these facts shift the burden of producing facts to the Defendants.

In the reply, the Plaintiffs argue that this is insufficient because it does not demonstrate that the Cross-Complainant, Masiela Lusha, had possession for five years. However, this is not required because Masiela Lusha may rely on the periods of possession of her predecessors to establish continuous possession for the five-year period, i.e., through “tacking”. Sorensen v. Costa (1948) 32 Cal. 2d 453, 461. In order to tack one person’s possession to that of another, some form of privity between successive claimants is required. Id.

The Plaintiffs provide this evidence of privity in their own papers. The Plaintiffs’ evidence establishes the following:

1) the Cross-Complainant, Masiela Lusha, purchased the property at 3 Skyline Drive in 2005 (SSF 8);
2) Daniela Haglund obtained title in 2009 and then owned the property until 2013 (SSF 9 and 10); and
3) Daniela Haglund transferred title back to Masiela Lusha in 2013 (SSF 12).

Daniela Haglund is the mother of Masiela Lusha. In addition, the Defendants offer facts in their opposition papers. Masiela Lusha states in her declaration that she acquired title in 2005, quitclaimed her interest to Daniela Haglund in 2009, and then recovered title in 2013 when Daniela Haglund quitclaimed her interest back to Masiela Lusha. These facts regarding the record of the ownership of the property indicates that there was some form of privity between Masiela Lusha and Daniela Haglund through which the five-year period of adverse possession of a portion of the Plaintiffs’ property can be established.

Accordingly, the Cross-Complainant has evidence that creates a question of fact whether she can establish the five year period of continuous possession.

However, the Cross-Complainant offers no evidence that she paid the taxes for the portion of the property over which she claims she had possession. The Cross-Complainant cites to legal authority holding that when a party is visibly in possession of land under a claim of right and has placed valuable improvements on the land, the natural inference is that the assessor did not base the assessment on the true boundary but valued the land and improvements visibly possessed by the claimants. Raab v. Casper (1975) 51 Cal. App. 3d 866, 878.

However, the Cross-Complainant offers no evidence that an assessor performed an assessment of her property after the improvements began to encroach on the Plaintiffs’ property in 2007. Since there is no evidence that an assessor performed an assessment, there is no evidence that the taxes that the Cross-Complainant paid was based on an assessment that included the land and improvements visibly in their possession.

The Cross-Complainant offers no evidence that she paid property taxes for the portion of property that she is claiming by adverse possession. Accordingly, the undisputed facts demonstrate that the Cross-Complainant cannot establish that she paid all of the taxes levied and assessed upon the disputed property during their period of possession.

Therefore, the Plaintiffs’ have met their burden with respect to the first cause of action for quiet title by adverse possession.

However, as noted below, the Plaintiffs are not entitled to summary judgment of the Cross-Complaint because there are disputes of fact with regards to the second, third, and fourth causes of action. Further, since the Plaintiffs did not seek summary adjudication in the alternative, they cannot obtain summary adjudication of the first cause of action.

b. Second Cause of Action for Quiet Title based on Prescriptive Easement

The elements of a cause of action for prescriptive easement are the following:

1) use of the property which has been open, notorious, continuous and adverse; and
2) the use was for an uninterrupted period of five years.
Aaron v. Dunham (2006) 137 Cal. App. 4th 1244, 1249-1250.

The term adverse use means only that the owner has not expressly consented to by lease or license. Id. Whether the elements of prescriptive use have been established is ordinarily a question of fact, reviewed under the substantial evidence standard. Id.

The Plaintiffs argue that the Defendants cannot establish that they had continuous and uninterrupted possession for five years. In addition, the Plaintiffs argue that the affirmative defense of unclean hands bars the claim.

First, the Plaintiffs offer evidence in the declaration of Susan Wilson that the concrete wall and retaining wall that encroach on their property were built in 2011 (Separate Statement of Facts (“SSF”) 14). Further, the Plaintiffs offer evidence in the declaration of Susan Wilson that the patio and steps that encroach on their were built in 2011 (SSF 21). This case was commenced on August 21, 2013. Since these facts indicate that the Defendants began using the Plaintiffs’ property in 2011 when their walls, patio, and steps were built, these facts demonstrate that the Defendants have not had five years of continuous and uninterrupted use of the Plaintiffs’ property when the case was filed two years later, on August 21, 2013.

The Defendants meet this burden with regards to the element of five years continuous possession with the facts in the declarations of Daniela Haglund. Ms. Haglund states in paragraph 5 that she began construction of the patio and stairs that encroached on the Plaintiffs’ property in 2007. This evidence creates a question of fact when the use of the Plaintiffs’ property began, i.e., in 2007 or 2011. If the Defendants began using the property in 2007, then the use would have been for a period of six years when the case was commenced. As noted above, there is evidence of the record of ownership of the Defendants’ property that indicates that the time period can be established through the period when title was held by Masiela Lusha, then Daniela Haglund, and the back to Masiela Lusha. This creates a question of fact whether the Defendants can establish that they had five years of continuous use of a portion of the Plaintiffs’ property.

Accordingly, this is not grounds to find that the cause of action for quiet title of prescription easement cannot be established because there is a dispute of fact regarding the issue of whether the Defendants had five years of continuous use.

Second, the Plaintiffs argue that the Defendants acted with unclean hands when they constructed the walls, patio, and steps. The doctrine of unclean hands is a defense to an equitable action, including an action to quiet title. Aguayo v. Amaro (2013) 213 Cal. App. 4th 1102, 1110. It rests on the maxim that a party who seeks equity must come with clean hands. Id. The doctrine demands that a plaintiff act fairly in the matter for which the plaintiff seeks a remedy. Id. The plaintiff must come into Court with clean hands, and keep them clean, or the plaintiff will be denied relief, regardless of the merits of the plaintiff’s claim. Id. Whether the doctrine of unclean hands applies is a question of fact. Id.

The Plaintiffs argue that the Defendants did not act with clean hands because the construction of the walls, patio, and stairs were unlawful, unpermitted, and unsafe. The Plaintiffs cite to evidence throughout their Separate Statement of Facts to demonstrate that the walls, patio, and stairs encroach on their property, that the construction was done without permits, that the construction violates code sections, and that the construction is unsafe. However, the Plaintiffs offer no evidence to demonstrate that the Defendants acted without good faith, i.e., that the Defendants knew that the walls, patio, or stairs were encroaching on the Plaintiffs’ property or that the improvements were unlawful, required permits, or unsafe. For example, there is no evidence that the Defendants knew and intended to construct the walls, patio, and stairs on the Plaintiffs’ property.

Further, the Defendants offer evidence to demonstrate that there is a dispute of fact in the declaration of Daniela Haglund. Ms. Haglund states that in paragraph 5 that she began construction of the patio and stairs in 2007 and that she did not know that she needed to obtain a permit. Further, Ms. Haglund states in paragraph 5 that she did not know that a portion of the stairs and patio encroached on the Plaintiffs’ property. Ms. Haglund states that the stairs and patio are not accessible to the Plaintiffs and that they can be accessed only through her property, which offers an explanation for her lack of knowledge that she was encroaching on the Plaintiffs’ property.

Accordingly, there is a dispute of fact whether the affirmative defense of unclean hands bars the cause of action.

Therefore, the Plaintiffs have not established that this cause of action cannot be established. Since the Plaintiffs have not demonstrated that each cause of action in the Cross-Complaint cannot be established, they are not entitled to summary judgment on the Cross-Complaint.

c. Third Cause of Action for Equitable Relief under Good Faith Improver Statutes

The good-faith improver of property owned by another may seek relief under a statute scheme enacted at CCP section sections 871.1 to 871.7. A “good faith improver” is defined under CCP section 871.1 as one who makes an improvement to land in good faith and under a mistaken belief that he is the landowner. Under CCP section 871.3, a good faith improver may bring an action or file a cross-complaint in a pending action for relief so that the Court may effect such adjustments in the parties’ positions as are consistent with substantial justice under the circumstances. Lack of care, as well as dishonesty, may negate or diminish the good faith requirement that the good faith improver must establish to obtain relief. Raab v. Casper (1975) 51 Cal. App. 3d 866, 872.

The Plaintiffs argue that the Defendants cannot establish this cause of action because they did not act in good faith. The Plaintiffs rely upon the same evidence identified above, e.g., evidence that the walls, patio, and stairs encroach on their property, that the construction was done without permits, that the construction violates code sections, and that the construction is unsafe. However, the Plaintiffs offer no evidence to demonstrate that the Defendants acted without good faith, i.e., that the Defendants knew that the walls, patio, or stairs were encroaching on the Plaintiffs’ property or that the improvements were unlawful, required permits, or unsafe. For example, there is no evidence that the Defendants knew and intended to construct the walls, patio, and stairs on the Plaintiffs’ property.

Accordingly, there is a dispute of fact whether the Defendants acted in good faith when they constructed the improvements on the Plaintiffs’ property.

The Plaintiffs also argue that the Defendants are not entitled to relief because the improvements are not constructed entirety on the land of another. CCP section 871.6 states that the good faith improver statutes do not affect the rules of law that determine the relief to be granted when a person constructs an improvement that encroaches on adjoining land.

This is a reference to legal authority holding that the Court may, in its discretion, deny an injunction to remove an encroachment and compel the plaintiff to accept damages when:

1) the encroachment does not irreparably injure the plaintiff,
2) the encroachment was innocently made, and
3) the cost of removal would be great compared to the inconvenience caused plaintiff by the continuance of the encroachment.
Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal. 2d 855, 858.

However, this case involves walls, stairs, and patios that were built on the Plaintiffs’ property. The case involves much more than an encroachment by a matter of inches. Instead, the Plaintiffs offer evidence that the steps, patio, and walls are built over 391 square feet of their property (see diagram on page 4 of exhibit 4 to Wilson declaration that identifies the Defendants’ improvements that are on the Plaintiffs’ property). The Plaintiffs’ evidence that they are claiming that the improvements were built on 391 square feet of their property is evidence that the improvements were constructed entirely on the Plaintiffs’ property.

d. Fourth Cause of Action for Unjust Enrichment

The elements of an unjust enrichment claim are the 1) receipt of a benefit and 2) the unjust retention of the benefit at the expense of another. Peterson v. Cellco Partnership (2008) 164 Cal. App. 4th 1583, 1593.

The Plaintiffs argue that the Defendants cannot establish that the Plaintiffs have received a benefit. However, the evidence in the Plaintiffs’ own motion demonstrates that they received the benefit of several improvements to their property, e.g., walls, stairs, and a patio. Since this is evidence that improvements have been constructed on the Plaintiffs’ property, it is evidence that creates a question of fact whether the Plaintiffs have received a benefit from the construction of improvements on their property.

Therefore, the Court denies the motion for summary judgment on the Cross-Complaint because the Plaintiffs/Cross-Defendants did not establish that each cause of action in the Cross-Complaint cannot be established.

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SUSAN WILSON VS. DANIELA HAGLUND

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