18-CIV-01684 TEJINDER SINGH, ET AL. VS. ERICA STEINER, ET AL.

TEJINDER SINGH ERICA STEINER
DAVID G. FINKELSTEIN

HEARING ON DEMURRER TENTATIVE RULING:

Defendant’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.

In an action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties and requests that those rights and duties be adjudged. Jefferson, Inc. v. City of Torrance, (1968) 266 Cal App.2d. 300, 302. Plaintiffs’ Second Amended Complaint has done so here, and so is not subject to demurrer.

The holding in Pulido v. Pereira (2015) 234 Cal.App.4th 1246 that Civil Code Section 1009 is not applicable to a plaintiff’s assertion of a prescriptive easement to access their property for recreational purposes was not disapproved by Scher V. Burke (2017) 3 Cal.5th 137, which disapproved on other grounds. Plaintiffs in this case are seeking such an easement, so Civil Code Section 1009 is not applicable and Plaintiffs’ claim for prescriptive easement is not barred as a matter of law.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiffs shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.