Opinion
B311109
07-28-2022
JACOB DEWITT, Plaintiff and Appellant, v. DAVID JOSEPH BURTON et al., as Trustees, etc., Defendants and Respondents.
Knapp, Petersen & Clarke, Robert D. Brugge, Barbara Ciolino; Law Offices of Stanley Denis and Stanley Denis for Plaintiff and Appellant. Keesal, Young & Logan, David D. Piper, and Cheryl S. Chang for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YC071859 Deirdre Hill, Judge. Reversed.
Knapp, Petersen & Clarke, Robert D. Brugge, Barbara Ciolino; Law Offices of Stanley Denis and Stanley Denis for Plaintiff and Appellant.
Keesal, Young & Logan, David D. Piper, and Cheryl S. Chang for Defendants and Respondents.
LAVIN, J.
INTRODUCTION
This is a dispute between neighboring property owners concerning encroachments and the use of an easement along their shared property line. Defendants and respondents David Joseph Burton and his wife Sandee Burton (the Burtons), as trustees of the 2008 Burton Family Trust, own residential property (Burton property) in Palos Verdes. Plaintiff and appellant Jacob Dewitt owns the abutting property to the north (the Dewitt property).
The Burton property is accessed via a paved private road terminating at the northwestern corner of their lot. Although the Dewitt property faces a public road to the north and has been accessed exclusively from that road in the past, Dewitt seeks to develop his property to include vehicular access from the southwestern corner of the lot via the private road adjacent to the Burton property. In order to do so, Dewitt would need to traverse the northwestern corner of the Burton property and he contends an easement allows him to do so. The Burtons assert any easement that might have existed in the past has been extinguished by their adverse use of the easement area over the last 30 years, e.g., their paved driveway, parked cars, and garbage can storage. And in any event, the Burtons claim, even if an easement does exist, Dewitt does not have any right to use it. Dewitt seeks declaratory relief concerning his right to use an easement over the Burton property.
The parties also dispute their relative rights to a small triangular area of approximately 50 square feet located along the shared property line in the area that Dewitt seeks to use for vehicular access. There, at the intersection of the northwest corner of the Burton property and the southwest corner of the Dewitt property, portions of a wooden border fence and wooden stairway belonging to the Burtons encroach on the Dewitt property. Dewitt seeks declaratory relief and asserts causes of action for ejectment and trespass regarding the encroachments. Finally, Dewitt asserts a cause of action for slander of title in which he alleges that the Burtons have made false statements that create doubt concerning his title.
The Burtons moved for summary judgment and/or summary adjudication and the trial court resolved all four causes of action in their favor. We conclude, however, that triable issues of material fact exist regarding each of Dewitt's four causes of action. Accordingly, we reverse the judgment and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
1. Background
Dewitt and the Burtons live in Palos Verdes. Dewitt's street address is 2418 Colt Road. Colt Road is a paved, public street. Dewitt's driveway connects to Colt Road and his home, garage, and driveway face north, toward Colt Road. The southern portion of the Dewitt property abuts the northern portion of the Burton property. Dewitt purchased his property in 2013.
The Burtons' street address is 2560 Colt Road, but their home is not situated on Colt Road. Instead, the Burtons' home is accessed via Little Colt Road, a short, paved, private road (private road) that connects to Colt Road. The private road terminates at the Burtons' western property line at the northwest corner of the Burton property. The Burtons purchased their property in 1986.
Approximately 30 years ago, the Burtons erected a wood fence, wood stairs, and an elevated deck at or near the boundary line between the two properties. Portions of the fence and stairway (the encroachments) encroach on the Dewitt property and occupy a triangular area of approximately 50 square feet (the encroached area) at the western edge of the shared property line. The Burtons' fence bars access to the Dewitt property from the south. During the 30 years the Burtons have owned their property, no one has ever attempted to access the Dewitt property from the south, which would require traveling over the Burton property. The Burtons' driveway is also located in the same general area, at the northwest corner of the Burton property at or near the shared property line.
The deck has been removed.
Dewitt wishes to create a vehicular access point at the southwestern corner of his property. But the Burtons' encroachments would need to be removed or modified and the southwest corner of the Dewitt property would need to be connected to the private road. Dewitt contends a 25-foot easement over the Burton property (boundary-line easement) exists for such a purpose but he was unable to reach an agreement with the Burtons regarding either his right to use the boundary-line easement or the removal of the Burtons' encroachments.
2. The Complaint
Dewitt initiated the present action in February 2017. The operative complaint asserts four causes of action styled as ejectment, trespass, declaratory relief, and slander of title.
Dewitt requests declaratory relief concerning the parties' respective rights to the encroached area and his right to utilize the boundary-line easement to access his property from the south. Dewitt alleges that in 1946, deeds relating to the Dewitt and Burton properties were simultaneously recorded. Both deeds reference a 50-foot nonexclusive 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." Declaratory relief is necessary because Dewitt asserts a right to use the boundary-line easement while the Burtons apparently contend they extinguished the easement through adverse possession or prescriptive use. Dewitt requests a ruling that he may use the boundary-line easement to access his property from the south and a further ruling that the Burtons have no rights to occupy the encroached area.
The easement relates to the southern 25 feet of the Dewitt property and the northern 25 feet of the Burton property, i.e., a 50-foot easement with its center at the property line between the Dewitt and Burton properties. As noted, we refer to the 25-foot easement over the Burton property as the boundary-line easement.
With respect to the claims for ejectment and trespass, Dewitt alleges that portions of the Burtons' property-line fence and stairs encroach on his property. Dewitt seeks restitution of the premises, an injunction requiring the Burtons to remove the encroachments and to restore the property to its original condition, damages (including the value of the use of the encroached area for the five years preceding the filing of the original complaint), damages equal to the reasonable cost of repairing or restoring the encroached area to its original condition, costs and attorney's fees attendant to the lawsuit, and punitive damages.
Finally, and as to the claim for slander of title, Dewitt alleges the Burtons "wrongfully and falsely claim a prescriptive interest" in the encroached area through a prescriptive easement or adverse possession. Dewitt further alleges that the Burtons' false assertions, made to Dewitt and a neighbor, cast doubt on the title to the Dewitt property and have a "negative and material effect on the value or desirability" of the Dewitt property. Dewitt seeks general damages as well as punitive damages.
3. Summary Judgment Proceedings
3.1. The Burtons' Motion
In February 2020, the Burtons filed a motion for summary judgment and/or summary adjudication as to all four causes of action. Regarding declaratory relief, the Burtons argued Dewitt would be unable to establish that the Dewitt property benefits from an easement over the Burton property. Specifically, the legal description of the Dewitt property contained in the 2013 deed conveying the property to Dewitt does not include the grant of an easement over the Burton property. The Burtons further argued, in the alternative, that if a boundary-line easement for the benefit of the Dewitt property ever existed, it was extinguished many years before Dewitt purchased his property by the Burtons' long-term use of the Burton property in a manner adverse to the use of that easement for road purposes.
As to the ejectment cause of action, the Burtons asserted Dewitt would be unable to establish any actual damage resulting from their encroachments. Specifically, the Burtons argued the encroached area is small (an area of approximately 50 square feet) and is at the edge of an extreme slope in an area that was never developed, used, or even maintained, by the prior owners of the Dewitt property. Because any harm to the Dewitt property resulting from the encroachments was "de minimis," the Burtons urged, they should not be required to remove the encroachments.
The Burtons also contended Dewitt's trespass cause of action is barred by the applicable three-year statute of limitations. The Burtons claim the encroachments have been in place for more than 30 years and should be deemed permanent in nature. As a result, the three-year statute of limitations to bring an action for trespass expired long ago-and well before Dewitt purchased his property.
Finally, and as to the slander of title cause of action, the Burtons claimed Dewitt would not be able to establish that any false claims concerning the title to his property had been made by the Burtons. In the alternative, they argued, any statements relating to the current dispute concerning the encroached area and easement rights are protected by the common interest privilege under Civil Code section 47, subdivision (c).
3.2. Dewitt's Opposition
Dewitt opposed the Burtons' motion for summary judgment and/or adjudication on several grounds. First, and as to declaratory relief, Dewitt argued the Burtons failed to carry their initial burden to establish the absence of a triable issue of material fact. Specifically, Dewitt noted that his request for relief concerns both the encroached area and easement rights, but the Burtons had only addressed easement rights in their motion. And as to easement rights, the Burtons had failed to address the effect of the 1946 deeds referenced in the operative complaint-deeds that Dewitt claims establish his right to access the southern portion of his property via the boundary-line easement. Although Dewitt agreed that the legal description of the Dewitt property contained in the 2013 deed did not reference rights to use the boundary-line easement, he urged that fact was not determinative. Finally, Dewitt argued, triable issues of material fact exist as to whether the Burtons' use of the boundary-line easement area extinguished the easement. Specifically, Dewitt asserted that the Burtons' actions individually and collectively were not sufficiently adverse and hostile to extinguish the easement.
With respect to the ejectment cause of action, Dewitt noted that the Burtons only attacked the element of damages and only with respect to the loss of use of the encroached area. But, Dewitt asserted, monetary damages for loss of use are not the only damages recoverable in an ejectment action. Dewitt argued he was also entitled to recover the reasonable cost to repair or restore the property to its original condition as well as costs of suit-issues the Burtons had not addressed in their motion. And, in any event, because the Burtons asserted it would be costly for them to remove the encroachments, it must also be the case that Dewitt's cost to restore the property to its original condition would be costly. Dewitt also rejected the notion that the Burtons' use of the encroached area entitled them to a prescriptive easement.
Dewitt disputed the premise of the Burtons' trespass argument. Specifically, Dewitt asserted that under Code of Civil Procedure section 338, no statute of limitations exists for the recovery of real property wrongfully taken in the absence of a valid claim of adverse possession or prescriptive easement- neither of which the Burtons could establish.
Finally, and with respect to the cause of action for slander of title, Dewitt offered evidence that Mr. Burton had made statements to Dewitt and a neighbor asserting a right to occupy exclusively the encroached area and the boundary-line easement area. Dewitt claimed those statements were not made in good faith or without malice and, therefore, would not be protected under the common interest privilege. And in any event, Dewitt asserted, the Burtons were not entitled to summary adjudication of the claim based upon an affirmative defense, i.e., the common interest privilege, that was not asserted in their answer to the operative complaint.
3.3. The Burtons' Reply
The Burtons' reply generally reaffirmed the arguments previously made. Additionally, and in response to Dewitt's assertion that the 2013 deed is not determinative with respect to easement rights attached to the Dewitt property, the Burtons argued that the Dewitt deed refers to a specific lot contained on a tract map. And where such reference is made, the tract map is deemed to be a comprehensive description of the rights and privileges attached to a property contained within it. According to the Burtons, the tract map makes no reference to any easement rights over the Burton property.
3.4. The Court's Ruling
The court summarily adjudicated each of the four causes of action in favor of the Burtons. With respect to Dewitt's request for declaratory relief, the court noted that Dewitt's 2013 deed makes no reference to any easement rights. Further, the court found that any easement contained in the 1946 deed to the Burton property had been extinguished by the Burtons' adverse use of the boundary-line easement area for more than 30 years. The ruling on the declaratory relief claim does not address the encroachments.
As to the ejectment cause of action, the court agreed with the Burtons that Dewitt would be unable to establish the element of damages. Specifically, the court found that the damage resulting from the encroachments was de minimis and that removing the encroachments "would require the performance of acts that would be difficult and involve considerable expense." Regarding the trespass cause of action, the court found it was undisputed that the encroachments were permanent. And because the encroachments had been in place for approximately 30 years, the trespass claim was barred by the three-year statute of limitations.
Finally, and as to the slander of title claim, the court found Dewitt would be unable to establish that the Burtons made false statements in the first instance, that any statements made were not privileged, and that anyone relied on statements by the Burtons to Dewitt's detriment.
4. Judgment and Appeal
The court signed the judgment in favor of the Burtons and against Dewitt. In addition, the judgment stated that any easement which may have burdened the Burton property and benefitted the Dewitt property was extinguished. The court also awarded costs to the Burtons.
The court entered judgment in favor of the Burtons on January 8, 2021. Dewitt timely appeals.
DISCUSSION
1. Standard of Review
The standard of review is well established. "The purpose of the law of summary judgment 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.) The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Id. at p. 850; Code Civ. Proc., § 437c, subd. (c).) The pleadings determine the issues to be addressed by a summary judgment motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, reversed on other grounds by Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)
On appeal from a summary judgment, we review the record de novo and independently determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment. (Saelzler, at p. 768.) "In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party's favor, and (3) the opposition-assuming movant has met its initial burden-to 'decide whether the opposing party has demonstrated the existence of a triable, material fact issue.'" (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.) "We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale." (Ibid.)
The appellant has the burden to show error, even if the appellant did not bear the burden in the trial court, and" 'to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.'" (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) Further, "an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)
2. Ejectment
2.1. Plaintiff's Complaint
A plaintiff asserting a cause of action for ejectment is required to establish ownership of the disputed property and the defendant's wrongful possession of the disputed property. (Nathan v. Dierssen (1913) 164 Cal. 607, 610 ["The complaint contains every allegation necessary in an action of ejectment. It alleges ownership in plaintiff, that defendant wrongfully entered and dispossessed him and that he still keeps him out of possession."]) In addition to seeking to recover the wrongfully possessed property, a plaintiff may also seek monetary damages for the loss of use of the wrongfully withheld property. (See 5 Witkin, Cal. Procedure (6th ed. 2022) Pleading, § 637 [elements of ejectment are "(1) The plaintiff's ownership of some interest in real property … [¶] (2) The defendant's possession and withholding … [¶] (3) Damage to the plaintiff, if any, and value of rents and profits, if recovery of their value is sought"].)
Dewitt alleges that portions of the Burtons' property-line fence and stairway encroach on his property and that the Burtons have refused to allow Dewitt to access the encroached area. Further, according to Dewitt, the Burtons have refused to remove the encroachments or to allow Dewitt to do so.
These allegations sufficiently state a claim for ejectment.
2.2. The Burtons' Evidence
As the moving party, the Burtons had the initial burden to show that Dewitt's claim has no merit-that is, that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); see Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945 (Jones).) "If a defendant's moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact." (Jones, at p. 945; Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965.)
In their motion, the Burtons did not dispute that Dewitt owns the encroached area nor did they dispute that their encroachments have occupied the encroached area to the exclusion of Dewitt. The size and location of the area- approximately 50 square feet in the shape of an obtuse triangle along the southwestern boundary line-are also undisputed.
The Burtons complain that it would be costly for them to remove the encroachments. In a declaration, Mr. Burton states that in order to remove the encroachments, the Burtons "would have to remove and reconstruct the fence, stairway, and a portion of their driveway, which would cost thousands of dollars." Further, "[r]emoval of the encroachments would require substantial effort by and cost to [the Burtons] to dig up portions of the ficus tree and driveway, and tear down portions of the fence and stairway. [¶] [The Burtons] will incur additional costs to restore and repair the fence, stairway, and driveway, and tear down portions of the fence and stairway." Mr. Burton added that the encroachments "have been in the exact same location and had the same boundary line footprint for over thirty years" and that encroachment area "has been overgrown with weeds and was never used by [Dewitt's] predecessors-in-interest since [the Burtons] bought [their] home in December 1986."
2.3. Analysis
2.3.1. Dewitt does not need to prove monetary damages.
The Burtons and the court both assume that damages for loss of use of the encroached area are a necessary element of an ejectment claim. They are wrong. Ejectment is primarily a claim to recover possession of land wrongfully withheld. Although monetary damages may also be recovered, such damages are not a necessary element of an ejectment action. (See 34 Miller & Starr, Cal. Real Estate (4th ed. 2022) §§ 34:225-34:226.)
At common law, ejectment was an equitable remedy for a claim of wrongful possession of land.
The court and the Burtons quote McCaffrey v. Wiley (1951) 103 Cal.App.2d 621 (McCaffrey) in support of the proposition that monetary damages are both a necessary element of an ejectment claim and are limited to the value of the loss of use of the land. Their reliance is misplaced.
In McCaffrey, the defendant was in wrongful possession of 120 acres of farmland that had been leased to the plaintiff. In a prior ejectment action, the plaintiff obtained a judgment against the defendant for possession of the land. The plaintiff then sued the defendant a second time seeking monetary damages relating to the wrongful possession of the property, e.g., the mesne profits from the defendant's harvest of crops planted on the plaintiff's 120 acres. Applying principles of res judicata, the court concluded the second suit was barred because the primary right at issue in the two lawsuits was the same. (McCaffrey, supra, 103 Cal.App.2d at p. 624 ["The matter of ejectment and the matter of damages for withholding possession are both based upon the same invasion of the same right."])
Both the court and the Burtons quote the following line from the opinion for the proposition that a plaintiff must establish monetary damages for loss of use of the land in an ejectment action: "[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, supra, 103 Cal.App.2d at p. 625.) Taken out of context, this excerpt could suggest that the only remedy available in an ejectment action is monetary damages equivalent to the value of the use of the land. But viewed in context, it is evident that the court in McCaffrey was discussing a case that considered the type of monetary damages, if any, available in an ejectment action. (Ibid., citing Johnston v. Fish (1895) 105 Cal. 420, 422 [noting possession of land resolved by stipulation of the parties, and discussing proper measure of damages in wrongful possession action].)
In any event, section 3334 of the Civil Code provides, as pertinent here, "(a) 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, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession." Thus, even if Dewitt is ultimately unable to prove that he suffered damages flowing from the loss of use of the encroached area, he may still be entitled to recover as damages the reasonable cost of repair or restoration of the property as well as the costs of suit, both of which he requested in the operative complaint. Accordingly, the court erred in summarily adjudicating the ejectment claim in favor of the Burtons based solely on the purported absence of damages for loss of use of the encroached area.
2.3.2. Triable issues of material fact exist as to whether the encroachments are de minimis.
The court also erred in finding as a matter of law that the encroachments are so inconsequential, i.e., "de minimis," that they need not be removed. In so ruling, the court effectively gave the Burtons an exclusive prescriptive easement-akin to fee title in the encroached area-a result that is both disfavored under the law and unjustified on the facts before us.
Our colleagues in Division Eight of this District recently considered the issue presented here, although in somewhat different circumstances. Their analysis is of assistance, however, and we therefore quote it at length.
"In most cases involving prescriptive easements, the courts have not allowed the easement owner exclusive use (equivalent to fee title) of the servient tenement. [Citations.] 'The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute … . An easement, after all, is merely … the right to cross the land of another …, is not an ownership interest, and certainly does not amount to a fee simple estate.' [Citations.] Similarly, an adjoining property owner cannot obtain the equivalent of adverse possession (and exclusive use of neighboring property) by alleging the elements of a prescriptive easement. [Citation.] 'Unsurprisingly, claimants have often tried to obtain the fruits of adverse possession under the guise of a prescriptive easement to avoid having to satisfy the tax element. [Citation.] That is, they seek judgments "employing the nomenclature of easement but … creat[e] the practical equivalent of an estate." [Citation.] Such judgments "pervert[ ] the classical distinction in real property law between ownership and use."' [Citation.]
"In Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, a survey showed that some of Kapner's improvements including portions of his driveway, gate, and perimeter fence encroached on another's parcel. (Id. at p. 1186.) The Court of Appeal affirmed that Kapner could not acquire an exclusive prescriptive easement over neighboring land by enclosing that land with a fence. (Id. at pp. 1186-1187.) The court further found Kapner's use of the neighboring land was not in the nature of an easement; instead, the landowner had enclosed and possessed the land. (Ibid.) The landowner could not establish adverse possession because he had not satisfied the necessary requirement of paying taxes for the enclosed land. (Id. at p. 1187.) '[A]dverse possession may not masquerade as a prescriptive easement.' (Id. at p. 1185.)
"Mehdizadeh is similar to the facts of the case before us, as it also involved a dispute between neighbors after discovery that a fence built many years earlier was not located on the legal boundary between their properties. In Mehdizadeh, a prior owner of property A built a fence between property A and property B in 1967. (Mehdizadeh [v. Mincer (1996)] 46 Cal.App.4th [1296,] 1301 [(Mehdizadeh)].) The owner of property B, who purchased the property after the fence was built, paid half of the cost, even though the parties did not know whether the fence was located on the property line. (Ibid.) Property A was sold in 1985 to the current owners, who 'knew from plot maps' that the fence was not on the property line. (Ibid.) After property B was sold to the current owners in 1990, the owner of property A obtained a survey that showed the fence was 10 feet within the property line of property A. He constructed a new fence on the surveyed boundary. (Ibid.) The 10-foot area between the properties was used by the owner of property B for vegetation, a sprinkler/irrigation system, and the owner's dog. (Id. at pp. 1301- 1302.) The owner of property B filed an action to establish a prescriptive easement over the 10-foot strip. (Id. at p. 1302.)
"The Court of Appeal held that the owner of property B could not establish title by adverse possession to the disputed parcel because he had not paid the taxes for the parcel. (Mehdizadeh, supra, 46 Cal.App.4th at p. 1305.) He could not acquire an easement by prescription if the easement were to be exclusive and would grant rights tantamount to a fee title. (Ibid. [the easement granted by the trial court 'would divest [property A owner] of nearly all rights that owners customarily have in residential property. A fence will bar [their] access to the property, and they cannot build on, cultivate, or otherwise use it.'].) The easement included a fence that barred the owner of property A from physical access and excluded his use of the property, except minimally for light and air. (Id. at p. 1308.) Owner of property B could not acquire a prescriptive easement which is substantially equivalent to a fee title, by satisfying the lesser requirements for prescription. 'To affirm the creation of this novel "fencing easement" would dispossess an unconsenting landowner of property while circumventing readily available, accurate legal descriptions.' (Ibid.)" (Romero v. Shih (2022) 78 Cal.App.5th 326, 350-352 (Romero).)
It is undisputed that the Burtons' encroachments include a misplaced boundary-line fence excluding Dewitt from the encroachment area which lies on his side of the property line. Thus, the present case requires the application of the principles just summarized. We must therefore conclude that the court erred in resolving the ejectment claim in favor of the Burtons, leaving the fence in place, because the court effectively dispossessed Dewitt of the encroached area and gave the Burtons exclusive use of it.
It appears that the court and the Burtons believe an exception to the general rule prohibiting exclusive prescriptive easements applies in this case. Specifically, the Burtons asserted that due to the location of the encroached area-at the edge of an extreme slope in an area never used or maintained by the prior owners-damages for loss of use, if any, would likely be de minimis and Dewitt had not provided any evidence of actual damages.
Again, Romero is of assistance. "In some cases, courts have denied a mandatory injunction to compel the removal of an encroachment by an adjoining landowner if the encroachment comes within the de minimis rule. For instance, where the encroachment of the wall of a building on the adjoining property was from one-half to five-eighths of an inch, the court in McKean v. Alliance Land Co. (1927) 200 Cal. 396 (McKean), sustained a judgment denying a mandatory injunction and instead awarded damages of $10 where there was no direct evidence that the less-than-an-inch encroachment caused any actual damage to the plaintiff. (Id. at p. 399.) The court stated that where the injury was so slight as to bring it within the maxim 'de minimis,' a mandatory injunction should not be issued. (Ibid.)" (Romero, supra, 78 Cal.App.5th at p. 352.)
As we will explain, triable issues of material fact exist regarding Dewitt's right to use the boundary-line easement that abuts the encroached area. And if it is ultimately determined that Dewitt may use that easement to access his property at the southwestern corner, the encroachments (if left in place) would block access to the Dewitt property at that location. Accordingly, it is impossible to conclude at this stage that the encroachments fall within the "de minimis" exception. The court therefore erred in summarily adjudicating the ejectment claim in favor of the Burtons.
3. Trespass
3.1. Plaintiff's Complaint
" 'Trespass is an unlawful interference with possession of property.' (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm. [Citation.]" (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262; see also CACI No. 2000.)
As with the ejectment claim, Dewitt alleges that portions of the Burtons' wood fence and stairway encroach on his property and constitute a trespass. Dewitt contends there is no adequate remedy at law for the trespass and seeks restitution of the premises, an injunction requiring the Burtons to remove the encroachments and restore the property to its original condition, damages according to proof, and punitive damages. These allegations sufficiently state a cause of action for trespass.
3.2. The Burtons' Evidence
In their motion, the Burtons did not dispute that the encroachments constitute a trespass. Instead, they contended (and the court found) that Dewitt's trespass cause of action is barred by the three-year statute of limitations applicable to a permanent trespass. To establish that the encroachments were permanent, the Burtons offered evidence that the encroachments had been in place for more than 30 years. Specifically, Mr. Burton stated in his declaration that after he acquired the property in 1986, he built the wooden stairway from the northeasterly corner of his driveway heading down along the boundary line between the Burton property and the Dewitt property. In 1988 or 1989, he built the wooden fence along the stairway. According to Mr. Burton, "The encroachments … were intended to be permanent structures. [¶] The fence posts are securely fastened by concrete foundations and substantial stirrups and bolts … . [¶] The driveway was originally paved with asphalt, was later reconstructed with concrete and rebar, and is currently covered with concrete pavers." And as noted, Mr. Burton attested that the encroachments had been in place for more than 30 years.
3.3. Dewitt's Evidence
The court found it was undisputed that the encroachments were permanent. The court was incorrect. Dewitt pointed out that Mr. Burton's declaration-the only evidence regarding permanency-said only that he "intended" for the encroachments to be permanent, which was not determinative of the issue. Dewitt also submitted photographs of the wood fence and staircase. Those photographs show that the staircase is comprised of wood stringers and treads without risers. The staircase transitions to a ramp as it moves down the hill and the lower portion of the ramp/staircase is in substantial disrepair. The fence positioned next to the staircase is composed of posts (which appear to be 4 inches or 6 inches square and 6 to 8 feet high) placed at intervals along the staircase, connected by two horizontal wood slats (which appear to be 1 to 2 inches thick, 4 to 6 inches wide, and approximately 8 feet long) that are screwed into the posts. The top edges of the uppermost horizontal slats appear to be approximately four feet above the ground and the top edges of the lower slats appear to be approximately two feet above the ground.
3.4. Analysis
In California, the statute of limitations for bringing a trespass claim is three years. (Code Civ. Proc., § 338, subd. (b).) Whether a trespass or nuisance claim is barred by the statute of limitations turns on whether the wrongdoing is permanent or continuing in nature. (See Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 592; Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 607 (Madani).) "Where a nuisance is of such a character that it will presumably continue indefinitely, it is considered permanent, and the limitations period runs from the time the nuisance is created. (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107 [(Phillips)].) Where, however, a nuisance may be discontinued at any time, it is considered continuing in character. (Ibid.) A person injured by a continuous nuisance may bring successive actions, even though an action based on the original wrong may be barred. (Id. at pp. 107-108.) The same rules apply whether the wrong is characterized as nuisance or trespass. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1148 [(Mangini)].)" (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1489 (Bookout).)
Nuisance is distinguishable from trespass in that the mere intentional entry on land may violate the right of exclusive possession and create a right of action for trespass, while conduct or activity cannot amount to a nuisance unless it substantially interferes with the use and enjoyment of the land. An encroachment is usually both a trespass and a nuisance. (6 Miller & Starr, Cal. Real Estate (4th ed. 2022) § 17:2.)
As noted, the Burtons assert, and the court found, that the wood fence and staircase are permanent structures and, therefore, the trespass claim is barred by the applicable three-year statute of limitations. We disagree.
The encroachment of a building on a neighboring property is a typical permanent trespass or nuisance. (See, e.g., Rankin v. DeBare (1928) 205 Cal. 639, 640-641 [claim that building encroached on plaintiff's lot by inches barred by three-year statute of limitations]; Castelletto v. Bendon (1961) 193 Cal.App.2d 64, 65-67 [three buildings standing in part on plaintiffs' property was permanent trespass and nuisance]; Tracy v. Ferrara (1956) 144 Cal.App.2d 827, 828 [demurrer properly sustained when trespass cause of action filed more than three years later; trespass consisted of "walls, foundations, pipes and vents"]; see also Bertram v. Orlando (1951) 102 Cal.App.2d 506, 509 ["the encroachment of a building obviously intended to be permanent upon the soil of another is a permanent trespass" subject to three-year statute of limitations].) Other types of structures or utilities are also typically permanent in nature. (See Williams v. Southern Pac. R.R. (1907) 150 Cal. 624, 625-628 [railroad tracks]; Bookout, supra, 186 Cal.App.4th at pp. 1489- 1490 [raised railbed and culvert pipe]; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1482, 1486-1488 [underground telephone lines]; Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 233-234 [sewer pipe].)
But not every physical encroachment is permanent. A plaintiff may bring a continuing nuisance or trespass claim with regard to trees that fell upon his land more than three years prior. (Mattos v. Mattos (1958) 162 Cal.App.2d 41, 42-43.) Moreover, a steadily increasing invasion of one neighbor's air space by a tilting building on the neighboring property is a continuing nuisance. (Kafka v. Bozio (1923) 191 Cal. 746, 746-748, 751-752.) And our Supreme Court concluded that it is a question of fact whether a locked gate preventing safe entry to a neighbor's land is a permanent or continuing nuisance, where it appeared the gate could have been removed at any time. (Phillips, supra, 27 Cal.2d at pp. 105-106, 108.)
The evidence here creates a dispute of material fact regarding the permanency of the Burtons' encroachments. The fence and staircase, built by Mr. Burton in the late 1980's, are made of wood-a material that naturally degrades over time and which has, according to Mr. Burton, been in place for more than 30 years. And the photographs submitted by Dewitt show that the bottom portion of the staircase is currently in disrepair. Further, a wooden fence and staircase-even one that has fence posts bolted to concrete footings-is more easily relocated or redirected than, for example, a portion of a building that has been constructed on neighboring land which our courts have repeatedly found to be permanent in nature.
Our Supreme Court has also said that one important factor in determining whether a trespass or nuisance is permanent as opposed to temporary is whether the trespass or nuisance can be discontinued or abated at a reasonable cost by reasonable means. (Mangini, supra, 12 Cal.4th at pp. 1097, 1103; Madani, supra, 45 Cal.App.5th at pp. 607-609.) The Burtons failed to carry their initial burden to establish that removing the encroachments cannot be accomplished "by reasonable means at a reasonable cost." (Mangini, at pp. 1097, 1103; Madani, at pp. 607-609.) Although Mr. Burton attested that removing the encroachments would cost "thousands of dollars," he provided no context for his conclusion on that point. He gave no indication, for example, that he was qualified to provide an estimate of the cost of the necessary work, nor did he describe in detail the type of materials and labor that would be required. And there is no indication that Mr. Burton consulted with a qualified contractor regarding the removal or adjustment of the encroachments. In any event, even "thousands of dollars" may prove to be reasonable given the impact of leaving the encroachments in place. As discussed ante with respect to the ejectment claim, the encroachments effectively give the Burtons total control over the encroached area of Dewitt's property, to the exclusion of Dewitt.
In sum, the court erred in summarily adjudicating the trespass claim on the basis of the statute of limitations because the evidence fails to establish as a matter of law that the encroachments at issue are permanent.
4. Declaratory Relief
As noted, we consider the allegations of the operative complaint to determine the scope of the issues. Dewitt requests an order from the court affirming his right to use the boundary-line easement to connect the southwest corner of his property with the paved private road terminating at the western edge of the Burton property. Dewitt alleges that in October 1946, deeds were recorded that established a 50-foot wide nonexclusive easement straddling the property line between what are now the Dewitt and Burton properties. According to Dewitt, the 50-foot wide easement-25 feet of which is on the northern portion of the Burton property along the property line (the boundary-line easement)-could be used for "road purposes, public utilities, and bridle trails" and still burdens the Burton property. But, Dewitt alleges, the Burtons claim they have extinguished the boundary-line easement by adverse possession or through prescriptive rights.
Dewitt also requests an order declaring that the Burtons have no right, title, or interest to the encroached area as well as an injunction requiring the Burtons to remove their encroachments from the Dewitt property.
The court's ruling does not address this portion of Dewitt's request for declaratory relief. It was error for the court to summarily adjudicate the entire cause of action without resolving all aspects of the claim. (Code Civ. Proc., § 437c, subd. (f)(1) ["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."].)
4.1. The Existence of the Boundary-Line Easement Over the Burton Property
As the moving party, the Burtons had the initial burden to show that Dewitt's claim for use of the boundary-line easement has no merit. The Burtons concede that their property is burdened by the boundary-line easement. They assert, however, that Dewitt is not entitled to use it.
As noted, Dewitt claims his right to use the boundary-line easement stems from the 1946 deed to the land occupied by his predecessors-in-interest. That land was subsequently subdivided and developed, as reflected in the legal description of the Dewitt property: "The land referred to herein below is situated in the City of Rancho Palos Verdes, County of Los Angeles, State of California, and is described as follows: [¶] Lot 30 of Tract No. 19518, in the County of Los Angeles, State of California, as per map recorded in Book 630 Pages 74, 75 and 76 of maps, in the Office of the County Recorder of said county."
In their request for summary adjudication of the declaratory relief cause of action, the Burtons did not directly address the effect of the 1946 deed. We could conclude, on that basis, that they failed to carry their burden to establish that Dewitt's claim that he has the right to use the boundary-line easement is without merit. In any event, the Burtons recite hornbook law stating that the conveyance of an express easement must generally be reflected in the legal description of the land in a deed to real property. We do not disagree, but it is undisputed that the 1946 deed to Dewitt's predecessor-in-interest contains such language. The Burtons focus instead on Dewitt's 2013 deed, which does not include the easement language from the 1946 deed, and on that basis contend Dewitt obtained no easement rights when he purchased his property. Here, we disagree. The absence of an explicit reference to an easement in Dewitt's deed does not establish, as a matter of law, that no easement rights exist. (See, e.g., Civ. Code, § 1084 ["The transfer of a thing transfers also all its incidents, unless expressly excepted … ."; 3 Miller & Starr, Cal. Real Estate (4th ed. 2022) § 8:60 ["The general rule that the property conveyed must be described in the deed is subject to the principle that the transfer of a thing passes all of its incidents and appurtenances unless expressly excluded or reserved from the grant."].)
The Burtons did address the 1946 deeds in their reply brief below.
The Burtons also asserted in their reply brief below, and they assert again on appeal, that when a property is described by reference to a recorded map, such as the tract map referenced in Dewitt's deed, the map becomes part of the deed and the deed conveys only those rights and appurtenances described by the recorded map. According to the Burtons, the tract map referenced in the Dewitt deed does not refer to any easement burdening the Burton property. The Burtons are partially correct. It is well established that a subdivision map establishes easement rights within the subdivision. (E.g., Danielson v. Sykes (1910) 157 Cal. 686, 689; Tract Development Services, Inc. v. Kepler (1988) 199 Cal.App.3d 1374, 1381-1382.) But the Burtons have provided no authority for their further assertion that a tract map must also include any property rights relating to abutting properties outside the subdivision. Indeed, neither the Burtons nor the court made a substantial inquiry into the chain of title for the Dewitt property or the legal effect of the Subdivision Map Act. Such an inquiry is necessary to determine Dewitt's easement rights, if any, to the boundary-line easement. We conclude, therefore, that the Burtons failed to carry their burden to establish that the boundary-line easement created in 1946 does not benefit the Dewitt property. The court erred in so concluding.
4.2. Extinguishment of the Boundary-Line Easement by the Burtons
The court found, and the Burtons contend, that even if Dewitt's predecessors-in-interest had the right to use the boundary-line easement, that easement has been extinguished by their use of the property in a manner hostile to the easement. The Burtons offered evidence that when they purchased the property in 1986, access to the easement was obstructed by a berm and a concrete curb, and the prior owners of the Burton property placed an asphalt driveway on a portion of the easement area. After the Burtons purchased the property, they planted a ficus tree in the easement area which has now grown to a height of 20 feet and a width of 30 feet. And throughout the time the Burtons have lived in their home-more than 30 years-they have stored their garbage cans and parked their cars, as well as the cars of visitors to their property, in the easement area. Finally, portions of the Burtons' wood fence along the boundary line of the two properties obstruct access to the Dewitt property through the easement.
As the Burtons note, 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. [Citations.] … [¶] The nonpermissive erection and maintenance for the statutory period of permanent structures, such as buildings, which obstruct and prevent the use of the easement will operate to extinguish the easement. [Citations.]" (Glatts v. Henson (1948) 31 Cal.2d 368, 370-371.)
"To establish hostility for adverse possession 'there need not be open aggression or combat, neither need a notice to the owner be given other than the claimant's occupancy.' [Citation.] On the other hand, '[t]o extinguish an easement by adverse use the use "must either interfere with a use under the easement or have such an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement." [Citation.] Moreover, "[a]n easement cannot be acquired or extinguished by adverse use unless the party whose rights are affected thereby has knowledge of the adverse nature of such use. This knowledge may be either actual or constructive, resulting from notice either express or implied." [Citation.]' [Citation.] … [¶] What kinds of use are recognized to be adverse and hostile naturally depend on the circumstances of the case, including the nature of the property interest that has been arguably extinguished." (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1078.)
The Burtons' evidence does not establish, as a matter of law, that their use of their property extinguished the boundary-line easement. As we have already explained, triable issues of material fact exist as to whether the portions of the wood fence and staircase that encroach on Dewitt's property are sufficiently permanent to trigger the statute of limitations for a trespass claim. Similar reasoning applies here as well. The portions of the fence and stairway in the easement area are wood, subject to degradation, and are currently in some disrepair. Moreover, those structures would be removed if Dewitt ultimately prevails on his ejectment claim. Further, several of the adverse and hostile actions cited by the Burtons-the storage of trash cans, for example-may have been long-standing but cannot be considered permanent. And with respect to the driveway, the information submitted to the trial court fails to establish conclusively that the Burtons' driveway could not coexist with the sort of vehicular access Dewitt seeks. The plan developed by Dewitt requires a small point of entry and the evidence submitted by the Burtons is not sufficiently precise to allow a determination, as a matter of law, that their prior use of the easement area is wholly incompatible with Dewitt's proposed use of the boundary-line easement.
In sum, the Burtons failed to establish as a matter of law that Dewitt has no right to use the boundary-line easement and, in the alternative, that the boundary-line easement has been extinguished.
5. Slander of Title
5.1. Plaintiff's Complaint
To prevail on a claim of slander of title, a plaintiff must prove"' "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss."' [Citation.]" (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 433, fn. 14.)
Dewitt alleges the Burtons "wrongfully and falsely claim a prescriptive interest" in the encroached area through a prescriptive easement or adverse possession. Dewitt further alleges that the Burtons' false assertions, which were made by Mr. Burton to Dewitt and a neighbor, cast doubt on the title to the Dewitt property and have a "negative and material effect on the value or desirability" of the Dewitt property. Dewitt seeks general damages as well as punitive damages. These allegations sufficiently state a cause of action for slander of title.
5.2. The Burtons' Evidence
In their motion for summary judgment, the Burtons claimed Dewitt would not be able to establish the first or second elements of his claim for slander of title. Specifically, the Burtons argued that Dewitt had not produced any evidence that they made any false claims concerning the title to the Dewitt property. The Burtons, however, provided no affirmative evidence to establish that they had not made any false statements concerning rights to the encroached area and property-line easement. Oddly, Mr. Burton's declaration in support of the motion for summary judgment does not address the issue.
5.3. Analysis
Had the Burtons offered some evidence that they had not made any false statements concerning the present dispute, we could conclude that they met their initial burden to show that Dewitt would be unable to establish an essential element of his claim, thereby shifting the burden to Dewitt to submit opposing evidence. But because they did not do so, we conclude the Burtons failed to carry their burden as to the first element- publication-of the slander of title claim. Their contention that Dewitt had not produced any evidence that they made any false claims concerning the title to the Dewitt property is misplaced. As we have said, the initial burden to establish that a plaintiff's case lacks merit rests with the defendant moving for summary judgment. (Code Civ. Proc., § 437c, subd. (o); see Jones, supra, 230 Cal.App.4th at p. 945.)
The Burtons also urged, in the alternative, that any false statements they might have made relating to the current dispute concerning the encroached area and easement rights would be protected by the common interest privilege under Civil Code section 47, subdivision (c). But again, they provided no explanation or evidence relevant to the application of the common interest privilege. We conclude they failed to carry their initial burden on this point as well.
Accordingly, the court erred in summarily adjudicating the claim for slander of title.
DISPOSITION
The judgment is reversed. Appellant Jacob Dewitt shall recover his costs on appeal.
WE CONCUR: EDMON, P. J., ADAMS, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.