On 02/14/2017 JACOB DEWITT filed a Property - Other Real Property lawsuit against DAVID JOSEPH BURTON. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
DEWITT JACOB AN INDIVIDUAL
DOES 1 THROUGH 20 INCLUSIVE
BURTON SANDEE AS TRUSTEE...
BURTON DAVID JOSEPH AS TRUSTEE...
STANLEY DENIS ESQ.
DENIS STANLEY THEODORE JR.
CHANG CHERYL SHAO-RAW
6/11/2019: Request for Judicial Notice
2/14/2017: Civil Case Cover Sheet
2/14/2017: Notice of Case Management Conference
3/6/2017: Legacy Document
7/19/2017: Case Management Statement
7/24/2017: Minute Order
8/10/2017: Notice of Case Reassignment and Order for Plaintiff to Give Notice
4/5/2018: Minute Order
4/6/2018: Notice Re: Continuance of Hearing and Order
12/26/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
1/4/2019: Certificate of Mailing for
2/20/2019: Declaration in Support of Ex Parte Application
Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Jury TrialRead MoreRead Less
Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Final Status ConferenceRead MoreRead Less
Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Summary JudgmentRead MoreRead Less
DocketRequest for Judicial Notice (in Support of Motion for Summary Judgment or in the Alternative, Summary Adjudication); Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketDeclaration (of David Joseph Burton in Support of Defendants Motion for Summary Judgment, or in the Alternative., Summary Adjudication); Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketSeparate Statement; Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketMemorandum of Points & Authorities; Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketDeclaration (of Cheryl S. Chang in Support of Defendants Motion for Summary Judgment, or in the Alternative Summary Adjudication); Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketNotice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication.; Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketCase Management Statement; Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketAnswer; Filed by BURTON, DAVID JOSEPH AS TRUSTEE... (Defendant); BURTON, SANDEE, AS TRUSTEE... (Defendant)Read MoreRead Less
DocketProof-Service/Summons; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
DocketNotice of Lis Pendens; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketSummons; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by JACOB, DEWITT (Plaintiff)Read MoreRead Less
Case Number: YC071859 Hearing Date: November 03, 2020 Dept: M
Torrance Dept. M
DAVID JOSEPH BURTON, et al.,
Hearing Date: November 3, 2019
Moving Parties: Defendants David Joseph Burton and Sandee Burton, as trustees
Responding Party: Plaintiff Jacob Dewitt
Motion for Summary Judgment or, in the alternative, for Summary Adjudication
The court considered the moving, opposition, and reply papers.
The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.
On February 14, 2017, Jacob Dewitt filed a complaint against defendants David Joseph Burton and Sandee Burton, husband and wife as trustees of the 2008 Burton Family Trust for (1) ejectment, (2) trespass, (3) declaratory relief, and (4) slander of title.
On September 18, 2019, plaintiff filed a FAC.
The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).
Defendants Burton request summary judgment against plaintiff Dewitt on the ground there are no triable issues of material facts and, as a matter of law, they are entitled to judgment in their favor. In the alternative, defendants request summary adjudication as follows:
Issue No. 1: On plaintiff’s claim for ejectment, any injury to plaintiff is so slight that there is a proper remedy at law and no equitable relief should be granted.
Issue No. 2: Plaintiff cannot establish a claim for trespass, as it is barred by the applicable three-year statute of limitations.
Issue No. 3: Plaintiff cannot establish that the Dewitt property benefits from the Easement and plaintiff is not entitled to the right to use the Easement.
Issue No. 4: Plaintiff cannot establish a claim for slander of title, as defendants did not make any unprivileged statements relating to the Dewitt property, the easement, or plaintiff’s rights thereto.
In the FAC, under the 1st cause of action for ejectment, plaintiff DeWitt alleges that defendant Burton (or Burton’s predecessor in interest) erected a fence, a stairway, and an elevated wood deck, which encroach on plaintiff’s property at the southwest corner of plaintiff’s property. FAC, ¶8. Plaintiff has requested that defendants remove the encroachment. Although defendants have removed the encroaching deck, defendants have failed and refused to remove the fence and stair encroachment. Id., ¶9. When plaintiff advised defendants that he would remove the remaining encroachments, defendants threatened plaintiff with liability and/or damages for initiating what defendants characterized as “self-help” remedies. Id., ¶10.
Plaintiff also alleges that defendants claim that they own that portion of plaintiff’s property upon which the encroachments exist, under a claim of adverse possession and/or have rights to continue the encroachment based on alleged prescriptive easement rights. Id., ¶11. Defendants have refused plaintiff admission to the contested area and continue to unlawfully withhold possession of said property. Id., ¶12. He alleges that he has incurred damages, including (1) the value of the use of the property for the time of its wrongful occupation for the five years preceding the commencement of this action, (2) the reasonable cost of repair or restoration of the property to its original condition, and (3) the costs, including attorney’s fees, of recovering possession. Id., ¶14. Plaintiff requests restitution of the premises and general and special damages.
Under the 2nd cause of action for trespass, plaintiff alleges that defendants’ actions constitute a trespass. Id., ¶7. Defendants’ wrongful acts, unless and until enjoined and restrained, cause great and irreparable injury through the ongoing deprivation of plaintiffs’ property and plaintiff’s peace of mind. Id., ¶10. Plaintiff has no adequate remedy at law for the injuries currently being suffered.” Id., ¶20.
Under the 3rd cause of action for declaratory relief, plaintiff allege that on October 30, 1946, two deeds were recorded simultaneously which established a boundary line easement for the establishment of a 50-foot wide non-exclusive easement for “road purposes, public utilities, and bridle trails, together with a right to grant same to others and/or dedicate to the public use.” Plaintiff’s property and other abutting owners north of this boundary line easement were contributing the southern 25 feet of their respective properties to this boundary line easement and defendants’ property and the other abutting owners south of this boundary line easement were contributing the northerly 25 feet of their respective properties to this boundary line easement. Id., ¶22. This 50 foot wide non-exclusive road easement is commonly known as and referred to as “Little Colt Road.” Id., ¶23. Defendants and those properties abutting defendants’ property to the south of this boundary line easement gain access to their respective properties via Little Colt Road. Id., ¶24. Plaintiff’s property and those properties abutting plaintiff’s property to the north of this boundary line easement gain primary access to their respective properties via a road to the north of their properties known as Colt Road, and also have secondary access to the rear of their respective properties via Little Colt Road. Id., ¶25.
Plaintiff further alleges that an actual controversy has arisen and exists concerning the parties’ respective rights and duties. Id., ¶26. Plaintiff contends that he has legal access to the rear of his property via the boundary line easement known as Little Colt Road where as defendants dispute these contentions and contend that plaintiff did not have legal access to the rear of his property via Little Colt Road or rights to that access have been terminated. Id., ¶27. Further, defendants contend that defendants have acquired prescriptive rights to the contested area either by way of adverse possession or a prescriptive easement whereas plaintiff disputes these contentions. Id., ¶28. Plaintiff desires a judicial determination of his rights and duties and a declaration as to which parties’ contentions are correct. Id., ¶29.
Under the 4th cause of action, plaintiff alleges that defendants wrongfully and falsely claim a prescriptive interest in the contested area by way of a prescriptive easement and/or adverse possession, including allegedly paying taxes on that portion of plaintiff’s property upon which defendants have trespassed and encroached. Id., ¶32. From approximately mid-2014 to the present time, defendant Burton has on numerous occasions made statements to both Jacob DeWitt and to Dewitt’s neighbor to the west, John Law, falsely claiming that the Burtons have prescriptive rights to maintain their encroachments on plaintiff’s property by way of either a prescriptive easement or by adverse possession. Id., ¶33. Additionally, pursuant to Civil Code §1102.6(a), based on the wrongful statements of Burton, plaintiff is now required by law to disclose to any and all prospective buyer the easement or encroachments claimed by the Burtons which negatively affect plaintiff’s title to and/or interest in his property. Id., ¶34. The statements by Burton were false in that defendants’ trespassing and encroachment is wrongful and gave the Burtons no prescriptive rights to maintain their trespass and encroachment by way of either a prescriptive easement or by adverse possession. Id., ¶ 35. Defendants’ actions have caused doubt to be cast on title to plaintiff’s property. Id., ¶36. Plaintiff requests general and special damages.
The parties do not dispute that defendant Burtons have owned the Burton residence [at 2560 Colt Road] on a private street known as “Little Colt Road” since December 1986. Defendants’ Separate Statement of Undisputed Material Facts (“DUMF”) 1. The parties do not dispute the legal description as set forth in the deed conveying the property to the Burtons. DUMF 2. According to the legal description, Parcel 2 gives “a non-exclusive easement for road and utility purposes over the northerly 25 feet . . . .” as measured according to the deed, and Parcel 3 gives “a non-exclusive easement for road and utility purposes, over, under, and along a strip of land 50 feet wide, 25 feet” as measured according to the deed. DUMF 2, 16, 17. Plaintiff Dewitt purchased his home located at 2418 Colt Road in Rancho Palos Verdes, on January 11, 2013. DUMF 5. The parties do not dispute the legal description of the Dewitt property in the deed which conveyed the property to him in 2013. DUMF 7. The only point of access to the Burton property is from the west side via a small road known as “Little Colt Road.” DUMF 10. Little Colt Road has not been accepted by the City of Rancho Palos Verdes and is not a part of the city’s road system for maintenance. DUMF 11.
The parties also do not dispute that according to the title insurance policy of the Dewitt property, the “easement” affects 25 feet of land along the southwesterly boundary line of the Dewitt property. DUMF 14. The “easement” affects 25 feet of land along the northeasterly boundary line of the Burton property. DUMF 13. The “easement” connects directly to Little Colt Road, which was created by two separate easements in order to provide access to the residential properties located on Little Colt Road, including the Burton residence. DUMF 15. The legal description of the Dewitt property does not include the benefit of any easement. DUMF 19.
The parties further do not dispute that when the Burtons purchased their home in December 1986, the “easement” was already obstructed with a berm, concrete curb, and asphalt driveway. DUMF 21. In 1987, shortly after taking ownership, Burton planted a ficus tree along the southern end of the berm just above his driveway. DUMF 22. The ficus tree is now over 20 feet tall and 30 feet wide. DUMF 23. Burton also built a wooden stairway from the north[westerly] corner of his driveway heading down along the boundary line between the Burton residence and the Dewitt property. DUMF 24. The stairway provides access to the bottom (easterly) portion of the Burton residence from the driveway. DUMF 25.
In around 1988 or 1989, Burton and his father built a wooden fence along the stairway, which further and completely obstructed the use of the easement. DUMF 26. The fence and stairway between the Dewitt property and the Burton residence blocked the easement. DUMF 28. The Burtons have openly and continuously stored trash bins and other items in front of that fence making the area even more impassible. DUMF 29. Since 1987, the Burtons have continuously parked their cars in their driveway, which directly blocks access to the easement. DUMF 30. Plaintiff and his predecessors-in-interest have not had the ability to use the easement for over 30 years. DUMF 31. In order for plaintiff to have access to the Dewitt property, plaintiff would have to remove the berm, curb, and the ficus tree, all of which have been in place for over 30 years. DUMF 32. All of these obstructions were visible to plaintiff’s predecessors-in-interest and plaintiff before he purchased the Dewitt property, and they were on notice of the Burtons’ adverse use of the easement. DUMF 33. No one has entered the Dewitt property from Little Colt Road in the over 30 years the Burtons have lived on Little Colt Road. DUMF 34.
The parties also do not dispute that according to a boundary/topographic survey completed on the Dewitt property in March 2014 and Site Plan mapping plaintiff’s anticipated construction, the area occupied upon by the encroachments is, at most, approximately five feet wide onto the Dewitt property and runs approximately 20 feet long at an angle to the edge of the Dewitt property. DUMF 36. As depicted in the Survey, the area occupied by the encroachments creates an obtuse triangle with a total area of approximately 50 square feet. DUMF 37. The encroachments have been in the exact same location and had the same boundary line footprint for over 30 years. DUMF 40.
1st cause of action for ejectment
The elements for ejectment are (1) a valid interest in the property; (2) the defendant’s wrongful possession and withholding of it; and (3) damages arising from the wrongful withholding. Civil Code §3334 states that “The detriment caused by the wrongful occupation of real property . . . is deemed to include the value of the use of the property for the time of that wrongful occupation. . . .” “A plaintiff in ejectment is entitled to recover from the defendant only the value of the use and occupation of the premises, and is not entitled to the fruits of the land.” McCaffrey v. Wiley (1951) 103 Cal. App. 2d 621, 625. “If there is an adequate remedy at law, no relief will be granted, especially where there is no appreciable damage, and its issuance would require the performance of an act which would be difficult, and involve considerable expense.” McKean v. All Land Co. (1927) 200 Cal. 396, 399.
Defendants argue that any damage to plaintiff as a result of defendants’ alleged withholding of property is de minimis. See DUMF 36, 37. Defendants argue that to remove the Encroachments, defendants would have to remove and reconstruct the fence, stairway, and small portion of defendants’ driveway, which would cost thousands of dollars. David Burton decl., ¶34, 40-41.
Defendants also argue that plaintiff cannot produce any evidence of actual damage as a result of the Encroachments. A review of the Survey shows that the area encroached upon is only a few feet at the very edge of an “extreme slope.” Cheryl Chang decl., Exh. G. Defendants argue that the Encroachments along the shared boundary line do not in any way hinder plaintiff’s access to the Dewitt property.
In opposition, plaintiff contends he seeks to regain possession of the property along with damages. He argues that although damages from the wrongful occupation may be negligible, defendants have shown that the costs to restore the property by removing the encroachment will be significant.
In reply, defendants contend that although plaintiff argues that the principal purpose of an action for ejectment is to regain possession of property, he misses the point of defendants’ argument—that the facts of this case do not entitle plaintiff to an order requiring defendants’ to remove the encroachments because the portions of the fence, stairway, and driveway encroaching on the Dewitt property do not and will not hinder plaintiff’s use and enjoyment of his property; the encroachments are de minimis and there is an adequate remedy at law; and defendants will incur significant cost to remove the encroachments.
The court finds that defendants have met their burden of showing that plaintiff cannot establish damages arising from the purported withholding. See DSUF 47, 48 where plaintiff does not dispute de minimis damages from the encroachments over an area of 50 square feet. Defendants have also shown that any order regarding ejectment would require the performance of acts that would be difficult and involve considerable expense. Plaintiff has not presented any evidence to raise a triable issue of material fact.
2nd cause of action for trespass
Defendants argue that the claim is barred by the three year statute of limitations under CCP §338.
“[P]laintiffs ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected.” Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal. 3d 862, 869. Defendants contend that the Encroachments should be deemed permanent in nature. The fence’s posts are securely fastened by poured concrete foundations and substantial stirrups and bolts. D. Burton decl., ¶38. The driveway was originally paved with asphalt, was later reconstructed with concrete and rebar, and is currently covered with concrete pavers. D. Burton decl., ¶39.
In opposition, plaintiff argues that the claim is not barred by the statute of limitations under CCP §338 and that this section does not apply because he is seeking restitution of the premises, i.e., regaining possession of the property upon which defendants have wrongfully encroached of which there is no statute of limitations.
In reply, defendants contend that plaintiff’s argument that his claim is really a claim for recovery of real property is not appropriate. Defendants reiterate that this claim is barred by the statute of limitations.
The court finds that defendants have shown that plaintiff cannot establish the elements for a cause of action for trespass because it is barred by the three year statute of limitations. Plaintiff does not dispute that the encroachments are permanent.
3rd cause of action for declaratory relief
“’It is not essential to the validity of the grant of a right of way that the way be indicated by metes and bounds or by figures or other description giving definite dimensions of the easement. A grant which designates the right of way as such and definitely describes the lands which are servient is sufficient. If the location and limits of the right of way are not defined in the grant, a reasonably convenient and suitable way is presumed to be intended, and the right cannot be exercised over the whole of the land.’” Maywood Mut. Water Co. No. 2 v. City of Maywood (1972) 23 Cal. App. 3d 266, 270.
“’It is fundamental that the language of a grant of an easement determines the scope of the easement.’” Schmidt v. Bank of America, N.A. (2014) 223 Cal. App. 4th 1489, 1499 (citation omitted). “An easement agreement is subject to the rules of interpretation that apply to contracts. As with all contracts, the paramount goal of interpreting the writing creating an easement is to determine the intent of the parties.” Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal. App. 4th 764, 777.
“It is well settled that an easement, regardless of whether it was created by grant or use, may be extinguished by the owner of the servient tenement upon which the easement is a burden, by adverse possession thereof by the servient tenement owner for the required statutory period. Perhaps more accurately stated an easement may be extinguished by the user of the servient tenement in a manner adverse to the exercise of the easement, for the period required to give title to land by adverse possession.” Glatts v. Henson (1948) 31 Cal. 2d 368, 370-71 (citations omitted). “Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar any action for the recovery of the property confers a title thereto, denominated by title by prescription, which is sufficient against all . . . .” Civil Code §1007. “No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seised or possessed of the property in question, within five years before the commencement of the action.” CCP §318. “In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action.” CCP §321.
As stated above, plaintiff alleges that an actual controversy has arisen and exists concerning the parties’ respective rights and duties. He contends that he has legal access to the rear of his property via the boundary line easement known as Little Colt Road whereas defendants dispute these contentions and contend that plaintiff did not have legal access to the rear of his property via Little Colt Road or rights to that access have been terminated. Further, defendants contend that defendants have acquired prescriptive rights to the contested area either by way of adverse possession or a prescriptive easement whereas plaintiff disputes these contentions. Plaintiff desires a judicial determination of his rights and duties and a declaration as to which parties’ contentions are correct.
Defendants argue that declaratory relief is not appropriate because the Dewitt property does not have the right to use the easement and/or the easement was terminated by prescription.
Defendants argue that a property owner cannot own a legal interest or benefit in an easement if the applicable deed does not include an express conveyance of or reflect any intent to create such an easement. Defendants point to the legal description of the Dewitt property, asserting that plaintiff is not entitled to the benefit of the Parcel 2 easement, the Parcel 3 easement, or the Easement, because it does not include an express grant of any benefit in any easement or an intent to create an easement. Defendants argue that the Dewitt property is burdened by the Easement and does not benefit from it.
Defendants also contend that even if plaintiff did have the benefit of any easement, defendants’ use of the area located within the Easement, for the past 30 years, has been adverse to anyone’s use of the Easement for road purposes or otherwise for over the prescriptive period of five years. When the Burtons purchased their home in 1986, the Easement was already obstructed with a berm, concrete curb, and asphalt driveway. In 1987, Burton planted a ficus tree along the southern end of the berm just above their driveway. He also built a wooden stairway from the northeasterly corner of his driveway heading down along the boundary line between the Burton residence and Dewitt property. In 1988, Burton built a wooden fence along the stairway. The Burtons, in good faith, believed the fence, stairway, and wood deck were built within the boundary lines of the Burton residence. The fence and stairway between the Dewitt property and the Burton residence blocked the Easement. Defendants contend that they openly and continuously stored trash bins and other items in front of the fence, making the area even more impassable. They have also parked their cars in their driveway, which blocks access to the Easement. Defendants argue that plaintiff and his predecessors in interest have not had the ability to use the Easement for over 30 years. All the obstructions were visible to plaintiff’s predecessors-in-interest and plaintiff before he purchased the Dewitt property. No one has entered the Dewitt property from Little Colt Road in the over 30 years the Burtons have lived on Little Colt Road. Burton decl., ¶¶15-16, 18, 21-26, 32. Accordingly, defendants argue, the Easement was terminated by prescription and no longer exists.
In opposition, plaintiff argues that this claim is not subject to summary adjudication because it involves two separate and distinct issues: (1) the removal of encroachments, and (2) Dewitt’s rights to access his property via Little Colt Road. Plaintiff contends that defendants did not address the first issue. As to the second issue, plaintiff contends that in their moving papers, defendants failed to provide the 1946 Deeds creating the Little Colt Road easement and that defendants do not even argue as to the scope of the two 25-foot wide right of way easements within those deeds. Further, plaintiff argues, even if defendants had provided the 1946 Deeds, defendants have not shown that there is no triable issue “that these complicated metes and bounds descriptions did not include easements which benefit the Dewitt property.”
Plaintiff also argues that defendants’ reliance on the 2013 Dewitt Deed is erroneous because the fact that the 2013 Dewitt deed fails to mention an easement across the Burton property benefiting the DeWitt property is irrelevant. Plaintiff asserts that the Burton Deed fails to mention any easement across the Dewitt property benefitting the Burton property. As he asserts, he has an easement over the Burton property because the Burton title policy lists an easement across the Burton property as an “Exception” on the Burtons’ title policy arising from the sister Grant Deed recorded in 1946.
Plaintiff further argues that there is a triable issue as to whether defendants’ acts were sufficiently hostile and adverse for the required five-year period. Plaintiff argues that none of defendants’ acts, individually or collectively, as a matter of law was hostile to or destructive of plaintiff’s right of way, citing to Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal. App. 5th 1057. Plaintiff had no need to exercise his rights to use Little Colt Road to access the rear of his property because he had unfettered ability to access his property from the north via Main Colt Road.
In reply, defendants reiterate that the legal description of the Dewitt property only conveys to Dewitt the parcel of land defined as “Lot 30 of Tract No. 19518” and does not create a legal right to Dewitt to cross over the Burton property. Defendants argue that plaintiff’s reference to the 1946 deeds are of no import because when property is described by a reference to a recorded map (as in the legal description of the Dewitt property), the recorded map demonstrates the property’s relationship to surrounding properties and appurtenances such as easements. The filing of the tract map, as in Tract No. 19518, is deemed to be a “declaration of the right to use streets and passageways abutting a lot as well as streets and ways leading to public places on highways, all of which pass in subsequent conveyances that refer to the description on the map. The recorded tract map for Tract No. 19518 makes no mention or reference to an easement burdening the Burton property.
The court finds that defendants have shown that plaintiff cannot establish that he has easement rights for access to Little Colt Road. The Dewitt deed does not show any easement rights. Further, any easement rights that may have been contained in the 1946 deed was extinguished by defendants’ use and the predecessors-in-interest’s use of the Burton property and the nonuse of the easement by Dewitt and the prior owners of the Dewitt property. Defendants have presented evidence of their continuous, exclusive, and adverse use of the easement over the last 32 years. See Sevier v. Locher (1990) 222 Cal. App. 3d 1082, 1087 (finding easement occupiers extinguished the easement because their use of the easement area “was wholly inconsistent with the right of the [easement holders] to use it at will for entry upon their property . . . .”).
4th cause of action for slander of title
The elements for slander of title are (1) publication, (2) falsity, (3) absence of privilege, and (4) disparagement of another’s land which is relied upon by a third party and which results in a pecuniary loss. Appel v. Burman (1984) 159 Cal. App. 3d 1209.
Defendants argue that plaintiff has not alleged defendants published any statements regarding the Dewitt property. At no point in time since December 1986, when the Burtons took ownership of the Burton residence, have defendants made any statements concerning the Easement, the Dewitt property, or plaintiff’s rights thereto to any third parties. Further, defendants contend, plaintiff has not produced any evidence that defendants made any false statements. Defendants also assert that any communications fall under the “common interest privilege” under Civil Code §47 because any alleged statements made by Burton were made in good faith and without malice between interested parties.
In opposition, plaintiff asserts that defendants have not provided any evidence in support.
In reply, defendants re-assert the common interest privilege and contends that it is pled in their answer under the 11th Affirmative Defense for “reasonableness and good faith,” alleging that any and all acts allegedly performed by or on behalf of defendants were performed reasonably, loyally and in good faith, without malice. Further, defendants argue that plaintiff’s argument that he will need to disclose to a “prospective buyer” is without merit because he has not presented any evidence that he attempted to sell or is considering selling. Thus, plaintiff could not have suffered pecuniary loss as a result of any alleged statement.
The court finds that defendants have met their burden of showing that plaintiff cannot establish the elements of slander of title, including falsity, absence of privilege, and defendants’ disparagement of plaintiffs’ land which is relied upon by a third party and which results in a pecuniary loss. Plaintiff fails to present substantial evidence to show a triable issue of material fact.
Plaintiff’s objections to D. Burton’s declaration are OVERRULED.
Defendants’ objections are SUSTAINED as to Nos. 1, 5, 8, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35 and OVERRULED as to Nos. 2, 3, 4, 6, 7, 9, 10, 11, 13, 14, 15, and 25.
The motion for summary judgment is GRANTED. The motion for summary adjudication is MOOT in light of the ruling on the motion for summary judgment.
Defendants are ordered to give notice of the ruling.
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