2013-00148829-CU-OR

Troy J. Davis vs. Vadim Bachinsky

Nature of Proceeding:      Motion for Preliminary Injunction

Filed By:   Beaudoin, Gerald J.

Plaintiffs Troy and Debra Davis’ motion for preliminary injunction is denied.

In this action Plaintiffs seek to quiet title to a disputed piece of property based on an
adverse possession theory, to reform a grant deed, and to obtain a prescriptive
easement.  They previously sought and were denied a preliminary injunction on the
basis that they were unable to show a likelihood of success on their quiet title claim.
Plaintiffs have now amended the complaint to assert additional causes of action for
prescriptive easement and declaratory relief in which they seek to reform their grant
deed based on the theory that they were mistaken as to the property they purchased.
Specifically, they allege that they believed that the property they purchased from Louis
Bonacich included the portion of the adjoining parcel (Parcel 3), the disputed property
at issue.

They allege that in June 1999, they entered a 25 month lease-option agreement with
Louis Bonacich which gave them the option to purchase property located at 9319 Twin
Lakes Avenue, Orangevale, CA, (Parcel 1) which they allege included a portion of an
adjoining parcel (Parcel 3) which “additional piece” is the disputed property at issue in
this lawsuit.  Plaintiffs purchased the subject property [9319 Twin Lakes] pursuant to
the option in October 2001.  They allege that the subject property’s backyard was fully
fenced and that unknown to them, a portion of the backyard encroached onto Parcel 3,
owned by Bonacich, running along the back fence of the subject property.  Bonacich
allegedly owned the lot from 1994 to January 2013 when he sold it to Defendant
Vadim Bachinsky.  Defendant has allegedly threatened to remove the fencing on the
basis that the fencing encroaches upon his property.

“To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence
of the irreparable injury or interim harm that it will suffer if an injunction is not issued
pending an adjudication of the merits.  Past California decisions further establish that,
as a general matter, the question whether a preliminary injunction should be granted
involves two interrelated factors:  (1) the likelihood that the plaintiff will prevail on the
merits, and (2) the relative balance of harms that is likely to result from the granting or
denial of interim injunctive relief.”  ( White v. Davis (2003) 30 Cal.4th 528, 554.)  The
greater the showing on one factor, the lesser the showing must be on the other.  (Butt
th
v. State of California (1992) 4 Cal.4   668, 678.)

At the outset, the Court is inclined to agree with Defendant that the instant motion is an  improper renewal of the previous motion for preliminary injunction.  (CCP § 1008(a).)
Indeed, while the instant motion is based upon an amended complaint with additional
causes of action, Plaintiffs make no attempt to explain why those causes of action
could not have been presented in the prior version of the complaint and there is no
explanation as to how the new declarations offered in support of the instant motion by
Mr. Davis and his neighbor could not have been presented in connection with the
earlier motion.  On this basis alone, the motion could be denied.  However, assuming
that the amended complaint is sufficient to support a renewed motion pursuant to CCP
§ 1008(a), the Court address the merits of the motion below.

Likelihood of success

Reformation

Plaintiffs seek to reform the grant deed from Louis Bonacich claiming that the parties
[Plaintiffs and Bonacich] intended it to include a conveyance of the disputed portion of
Parcel 3.  The Court finds Plaintiffs have not shown they are likely to succeed on their
claim for reformation.  “When, through fraud or mutual mistake of the parties, or a
mistake of one party, which the other at the time knew or suspected, a written contract
does not truly express the intention of the parties, it may be revised, on the application
of the party aggrieved, so as to express that intention, so far as it can be done without
prejudice to the rights acquired by third persons, in good faith and for value.”  (Civ.
Code § 3399.)

Essentially, Plaintiffs assert that Bonacich led them to believe that when they
purchased Parcel 1, it also included the disputed portion of Parcel 3.  Mr. Davis
declares that when he entered the Lease Option with Bonacich, he thought he was
leasing the property he could see, which included the now disputed portion of Parcel 3.
(Davis Decl. ¶ 2.)  He states that Bonacich never told him that the parcel he and his
wife purchased pursuant to the Lease Option did not include the fenced in backyard
and the large shed on the disputed portion of Parcel 3 and had he been so advised, he
would have never purchased the property.  (Id.)  This was his first home purchase and
he did not read the grant deed other than to “glance” at it to confirm he and his wife
were purchasing property sold by Bonacich.  (Id. ¶ 6.)  He states that Bonacich never
told him that any portion of the backyard was on the disputed portion of Parcel 3.  He
claims he was unaware until Defendant purchased his property that Bonacich
constructed part of what Davis considered his backyard on Parcel 3 or that the rear
fence was on the property line of parcels 3 and 4.  (Id. ¶ 3.)  Plaintiffs also submit a
declaration from their neighbor stating that since the property was sold to Plaintiffs, he
only recalls seeing Bonacich at the property a few times talking to Mr. Davis and never
saw him go into or come of the backyard.  (O’Neal Decl. ¶¶ 6-8.)

The Court finds, for purposes of this motion only, that the above evidence is not
sufficient to show that Plaintiffs are likely to succeed on their reformation claim.
Indeed, in opposition, Defendant again submitted a declaration from Bonacich in which
he states that he told Plaintiffs they were only purchasing Parcel 1 and that he was
retaining the other three parcels.  (Supp. Bonacich Decl. ¶ 4.)  This is consistent with
the parties’ Lease-Option Agreement which provided that only Parcel 1 was being sold
and that Bonacich would retain ownership of the other three parcels.  (Davis Decl. Exh.
A. [Lease-Option] “As soon as Louis Bonacich receives a payment of $12,000, he will
deliver 9319 Twin Lakes Avenue (Parcel 1) to Troy Davis…The three adjoining lots
owned by Louis Bonacich shall be developed single family of comparable construction
and value.”][emphasis added])  Further, the grant deed which conveyed the property to
Plaintiffs only conveyed Parcel 1.

Critically, the legal description of Parcel 1 in the deed does not include any portion of
Parcel 3.  While Mr. Davis declares that he did not read the deed, he concedes that he
looked at the deed in that he confirmed he purchased property sold by Bonacich.
(Davis Decl. ¶ 6.)  As a result, Plaintiffs are charged with knowledge of the subject
deed’s contents, which included a description of the property that did not include any
part of Parcel 3.  (E.g., Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th
1582, 1596 [plaintiff had actual knowledge of omissions/misrepresentations regarding
documents once he read the documents.)  Plaintiffs do not allege or declare that
Bonacich “either prevented them from reading the grant deed[ ] or affirmatively misled
them about [its] contents.  This notice amounts to plaintiffs’ discovery of the alleged
[mistake]…”  (Alfaro v. Community Housing Improvement System & Planning
th
Association, Inc. (2009) 171 Cal.App.4   1356, 1393.)  This alone, again for purposes
of this motion, demonstrates that the grant deed captured the parties’ intent, and to the
extent Mr. Davis was mistaken, there is nothing which indicates that Bonacich was
aware of that mistake such that reformation of the grant deed would be proper.

Plaintiffs’ citation to Carpenter v. Froloff (1939) 30 Cal.App.2d 400, is of no assistance.
They argue that Carpenter stands for the proposition that “where the mistake at issue
involves a claim that not all the property promised to be conveyed was included in the
deed, and the grantor owned the additional property, it will be presumed that the
grantor intended to sell the additional property” and that “[i]n that situation, the
ownership by the grantor of the disputed property will be a sufficient basis for
reformation [of the deed]…”  (Reply 2:2-13.)  This proposition is inapplicable because
as discussed above, and further below, Plaintiffs failed to show that there was any
intent of the parties that the disputed portion of Parcel 3 would be included in the
subject deed.  Indeed, in Carpenter, it was found that the grantor was actually aware of
the mistake that the grant deed did not include the property promised to be conveyed.
(Carpenter, supra, at p. 405 [trial court reformed contract “because of mistake on the
part of the cross-complainant and of her assignor, said mistake being known to
cross-defendants, and as a result said contract failed to express the true intention
and meaning of the parties…] [emphasis added].)  That is inapposite to the situation at
hand because Plaintiffs have failed to show that Bonacich was aware of any mistake
that the deed failed to include any property that was intended to be included
(specifically the disputed portion of Parcel 3). Indeed, the evidence in the instant action
is to the contrary. Rather, the deed included the exact property promised to be
conveyed.  Carpenter made clear, as in any case of reformation, that where the
alleged mistake is claimed to be a unilateral mistake, it is only a sufficient basis for
reformation where the other party knew of or suspected the mistake.  (Id., supra, at
409.)

Further, Mr. Davis’ statements regarding the location of the rear fence on the boundary
line of Parcels 3 and 4, which he claims indicates Bonacich intended to sell him
everything in front of the fence, including the disputed portion of Parcel 3 does not
suggest that Bonacich intended to sell Plaintiffs the disputed portion of Parcel 3.  First,
in order to accept this statement, the Court would have to disregard the fact that the
Lease-Option and the grant deed, both make clear that the sale did not include what is
the disputed portion of Parcel 3.  In addition, Defendant’s evidence shows that at the
time Plaintiffs purchased Parcel 1, there was a fence running the boundary line
between Parcels 1 and 3 to denote the boundary line.  (Supp. Bonacich Decl. ¶ 8.)  It
is averred that Bonacich allowed Mr. Davis to remove much of this fence because he
had given them permission to use the now disputed portion of Parcel 3.  (Id.)  This
seriously undercuts the credibility of Mr. Davis’ statement that since the date he
entered the Lease-Option, “there was nothing marking or indicating a boundary line or
similar demarcation with respect to the now disputed portion of the Subject Property”
and his statement that since “the date we entered into the Lease Option agreement
with Bonacich, the fence-line which encloses the backyard has remained
unchanged.”  (Davis Decl. ¶¶ 7, 13.)  In sum, Mr. Davis’ statement regarding the
location of the fence on the boundary between Parcels 3 and 4 does not indicate that
Bonacich intended to sell Plaintiffs the disputed portion of Parcel 3.

Moreover, as seen from the previous ruling denying Plaintiffs’ motion for preliminary
injunction, and as reiterated again in Defendant’s opposition to this motion, at the
same time Plaintiffs purchased Parcel 1, Bonacich gave Plaintiffs permission to use
Parcel 3 on condition that Plaintiff would have to remove anything they installed in the
event it was sold, that Plaintiffs had to maintain the grass and weeds on Parcels 2, 3,
and 4, and Bonacich would still be permitted to use Parcel 3 since he routinely stored
items in and around a shed located on Parcel 3.  Plaintiffs’ neighbor Dean Weston
routinely saw Mr. Davis mowing the grass on Parcels 2, 3, and 4.  (Weston Decl. ¶ 4.)
This evidence corroborates the parties’ intent with respect to the sale and the fact that
it did not include any portion of Parcel 3.

While Mr. Davis declares that Bonacich never used the shed and that he had thrown
away most of the items in the shed except for “pay phones, a compressor, and a glass
door for a cooler”, Defendant’s evidence, photographs of the shed taken on November
15, 2013, show that Bonacich still had numerous items in the shed including boat
parts, car parts, numerous compressors, house lights, a tool-box, and other items.
(Supp. Bonacich Decl.; Ouzts Decl. Exhs. 1-9.)  This further corroborates the parties’
agreement and further undercuts Mr. Davis’ credibility.  In addition, while Mr. Davis
testifies that Bonacich never used the shed because it was locked, as seen from
Bonacich’s declaration, the door jam was rotted and so even if the shed’s door was
locked, it could be opened.  (Supp. Bonacich Decl. ¶ 7.)  Further, while Plaintiffs offer
the declaration of their neighbor, his testimony that he can only recall Bonacich at the
property a few times talking to Plaintiff Troy Davis and never saw him go into or come
of the backyard to access the shed does not alter the analysis.  (O’Neal Decl. ¶¶ 6-8.)
That Mr. O’Neal never saw Bonacich use the shed does not mean he did not.

Moreover, Defendant offers a declaration from Mr. Davis’ neighbor [Weston] regarding
a conversation the two had about the landscaping duties Mr. Davis was performing on
Parcel 3.  (Weston Decl.)  Mr. Weston states that Mr. Davis told him that “although Mr.
Bonacich still owned the Subject Property [emphasis added], he didn’t think Mr.
Bonacich was ever going to do anything with the Subject Property (such as sell it or
develop it), so he just decided to landscape it.”  (Id. ¶ 5.)  This testimony, a party
admission by Mr. Davis [see, e.g. Evid Code § 1220], also corroborates Plaintiffs’
agreement with Bonacich that the sale did not include any portion of Parcel 3 and
further undercuts Mr. Davis’ credibility.  Indeed, the Court must conclude that Mr.
Davis’ declaration is almost entirely unworthy of credence.  (Voeltz v. Bakery &
Confectionery Workers International Union (1953) 40 Cal.2d 382, 386 [overruled on
other grounds] [Court determines credibility of declarations in connection with
application for preliminary injunction].)

The sum of the above, again, for purposes of the instant motion only, demonstrates
that Plaintiffs have failed to show that they are likely to succeed on their reformation
claim.  There is nothing which would lead the Court to conclude that there was any
intent to include any portion of Parcel 3 in the sale.  Further, there is no evidence that
Bonacich was aware of any mistake on the part of Plaintiffs that the sale would include
a portion of Parcel 3.  In fact, given the above, there is no evidence of any mistake at
all.  The Lease Option and grant deed were clear, as were the discussions between
the parties, that Parcel 3 was not part of the transaction.

Separate from the above, Plaintiffs are unlikely to prevail because an action for
reformation based on mistake must be brought within three years from discovery of the
th
mistake.  (CCP § 338(d); see also Alfaro, supra,  171 Cal.App.4   1356, 1391.)  Here,
as already discussed above, while Mr. Davis declares that he never read the grant
deed, which contains the legal description of the property actually conveyed to
Plaintiffs, he concedes that he “glance[d]” at the deed to confirm he purchased
property sold by Bonacich.  (Davis Decl. ¶ 6.)  As a result, Plaintiffs are charged with
knowledge of the subject deed’s contents, which of course included a description of
the property that did not include any part of Parcel 3.  (E.g., Amtower, supra,  158
th
Cal.App.4   at 1596.  Again, Plaintiffs do not allege or declare that Bonacich “either
prevented them from reading the grant deed[ ] or affirmatively misled them about [its]
contents.  This notice amounts to plaintiffs’ discovery of the alleged [mistake]…”  (
th
Alfaro, supra,  171 Cal.App.4   at 1393.)  Given the notice in 2001, the reformation
cause of action asserted in 2013 is untimely, at least on the record before the Court on
this motion.

Finally, reformation is only available when it does not prejudice the rights of a bona
fide purchaser and Plaintiffs do not allege that Defendant is not a bona fide purchaser.
Indeed, if Defendant is a bona fide purchaser, and there are no allegations or evidence
that he is not, “there [can] be no reformation affecting his rights.”  (Sieger v. Standard
Oil Co. (1957) 155 Cal.App. 2d 649, 655-656.)  On this additional basis alone, Plaintiffs
failed to show a likelihood of success on the reformation claim.

In sum, Plaintiffs failed to demonstrate that they are likely to succeed on the
reformation claim.

Prescriptive Easement

To establish a prescriptive easement, Plaintiffs must show they used the disputed
property:  (1) for a five year period; (2) in a manner adverse to the owner; (3) in a
manner that is open and notorious; and (4) in a manner that is continuous and
uninterrupted.  (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.)

For reasons addressed in the Court’s prior ruling, and presently, Plaintiffs fail to show
that they are likely to succeed on their prescriptive easement claim. The Court finds
that Plaintiffs have failed to establish that their possession of Parcel 3 was adverse.
Indeed, they are required to show, among other things, a use adverse to the owner for
a period of five years.  ( Windsor Pacific, LLC v. Samwood Co. Inc. (2013) 213
th
Cal.App.4   263, 270.)  Here, however, the Court finds that the credible evidence
shows that Plaintiffs used the disputed portion of Parcel 3 with Bonacich’s permission
at all times.  (Supp. Bonacich Decl. ¶¶ 4-5, 8; Bonacich Decl. ¶¶ 6-13 [attached as
Exh. 1 to Def’s RJN].)

Given the above, the Court need not reach the issue of whether the balance of harms
th              tips in Plaintiffs’ favor.  (Hunt v. Superior Court (1999) 21 Cal.4   984, 999 [“trial court
may not grant a preliminary injunction, regardless of the balance of the interim harm,
unless there is some possibility that the plaintiff would ultimately prevail on the merits
of the claim.”]; see also Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d
454, 459 [court may deny preliminary injunction solely on finding that the moving party
failed to demonstrate reasonable probability of success on the merits].)

Plaintiffs’ evidentiary objections to the Bonacich Supplemental Declaration and
Defendant’s counsel’s declaration are overruled.

This minute order is effective immediately.  No formal order pursuant to CRC rule
3.1312 or other notice is required.