Opinion
B295634
01-27-2021
PERIN KEKI AMARIA et al., Plaintiffs and Appellants, v. KRISTA BECKER, Defendant and Respondent.
Russell Law Group, Dennis Russell and Jordanna Thigpen for Plaintiffs and Appellants. Schwartz & Janzen, Steven H. Schwartz and Noel E. Macaulay for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. SC128954 APPEAL from a judgment of the Superior Court of Los Angeles County, Harry Jay Ford III, Judge. Reversed in part, affirmed in part, with directions. Russell Law Group, Dennis Russell and Jordanna Thigpen for Plaintiffs and Appellants. Schwartz & Janzen, Steven H. Schwartz and Noel E. Macaulay for Defendant and Respondent.
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INTRODUCTION
Plaintiffs Perin Keki Amaria and Marzban K. Amaria (collectively, the Amarias) sued their neighbor Krista Becker for nuisance and equitable relief after Becker erected a wall on a strip of property over which the parties dispute ownership. The Amarias appeal from the judgment of dismissal entered after the court sustained Becker's demurrer to the operative first amended complaint without leave to amend on the grounds that the claims are time barred and the complaint is a sham pleading. We reverse in part, affirm in part, and remand the matter for further proceedings.
Perin Keki Amaria sued in the capacity of "Trustee of The Survivor's Trust, Successor Trust to the Amaria Living Trust," and Marzban K. Amaria sued in the capacity of "agent and appointed trustee." Marzban K. Amaria is also known as Merzi K. Amaria.
FACTS AND PROCEDURAL BACKGROUND
1. The Property Dispute
The Amarias and Becker own adjacent parcels of residential property in Santa Monica. There is a three-foot strip of land between the two properties over which the parties dispute ownership.
The Amarias have a detached garage located behind their home that is only accessible via a paved and gated driveway that runs from the street along the property line that divides the two properties. Parts of the driveway and the gate are located on the disputed strip of land. Becker was aware that the Amarias accessed their garage by using the driveway and gate, including the parts that are located on the disputed strip of land, but she never objected to that use.
Sometime after the Amarias constructed the driveway and gate, Becker built a "wall" on part of the disputed strip of land. The wall interferes with the Amarias' ability to use their driveway and gate.
2. The Prior Lawsuit
In June 2016, the Amarias filed a verified complaint against Becker for claims arising out of the disputed ownership over the strip of land between the parties' properties. The complaint alleged that around August 27, 2009, Becker constructed a fence in the back of her property that may have been placed on the Amarias' property. Around August 1, 2011, Becker moved a fence in the front of her property one and a half feet toward the Amarias' property, such that it encroached on the disputed strip of land between the parties' properties. The complaint alleged that the fence interfered with the Amarias' use of their driveway to access the garage located in the back of their property.
Becker moved for summary judgment, arguing, among other things, that the Amarias' claims were time barred under Code of Civil Procedure sections 318 and 338. In June 2017, before filing an opposition, the Amarias dismissed their complaint without prejudice.
All undesignated statutory references are to the Code of Civil Procedure.
3. The Underlying Lawsuit
In March 2018, the Amarias initiated the underlying lawsuit against Becker, filing a complaint for: (1) private nuisance; (2) easement by necessity; (3) equitable easement; (4) prescriptive easement; (5) easement by estoppel; and (6) declaratory relief. The Amarias sought various forms of relief, including monetary damages, an injunction requiring removal of the wall, and a declaration establishing the parties' rights over the disputed strip of land.
While the complaint in the Amarias' prior lawsuit alleged Becker built a "wood/fiberglass fence" that was moved and encroached on the Amarias' driveway, the original complaint in this lawsuit alleged Becker built a "wall" that encroaches on the driveway. The parties agree, however, that the fence referenced in the complaint filed in the prior lawsuit is the same structure that the first amended complaint in this lawsuit refers to as a "wall." The original complaint in this case did not allege when Becker built the wall.
We therefore refer to the structure as a "wall" throughout the rest of this opinion.
Becker demurred to the original complaint, arguing the Amarias' claims are barred by the three-year statute of limitations for actions for "trespass upon or injury to real property" under section 338, subdivision (b), and the five-year statute of limitations for actions to recover possession of real property under section 318. In support of her demurrer, Becker filed a request for judicial notice of the Amarias' complaint filed in the prior lawsuit, Becker's motion for summary judgment filed in the prior lawsuit, the Amarias' dismissal of the prior lawsuit, and a copy of the civil case summary from that lawsuit. The Amarias opposed the demurrer.
The court granted Becker's request for judicial notice and sustained the demurrer with leave to amend. The court found that the Amarias admitted in the complaint filed in their prior lawsuit that Becker built the wall that forms the basis for this lawsuit at the latest in 2011. The court also found the disputed wall is, as a matter of law, a permanent nuisance. Consequently, the three-year statute of limitations for the Amarias' nuisance claim expired in 2014 (§ 338, subd. (b)), and the five-year limitations period for the easement claims expired in 2016 (§ 318). Because the Amarias' claim for declaratory relief was derivative of the other claims asserted in the complaint, the court found it too was time barred. The court granted the Amarias 10 days leave to amend their complaint with allegations "showing why the admissions contained in their judicially noticeable June 21, 2016 Complaint do not defeat the instant action."
In August 2018, the Amarias filed the operative first amended complaint, which contains several cosmetic changes—e.g., the Amarias removed holding and italics that were in the original complaint—as well as some amended allegations. For instance, where the original complaint alleged the Amarias' driveway has existed "[f]or many years," the amended complaint alleges the driveway has existed "[s]ince September 2015." The amended complaint also alleges that "[a]s recent as January 2018," the Amarias have maintained the gate located on the driveway and that, since that time, one of the gate's posts has been situated on the disputed strip of land between the parties' properties. The original complaint, on the other hand, alleged the gate had been maintained "[f]or many years," without specifying how long the gate post has been on the disputed strip of land.
The amended complaint also restyled the first cause of action from "Private Nuisance" to "Continuing Private Nuisance," and it added allegations to that claim that the encroachment by Becker's wall "is currently continuing," will "vary over time because of the Wall's degrading condition," and "can be abated at any time." And the amended complaint added the phrase "Quiet Title" to the beginning of the names of the five other causes of action.
Becker demurred to the first amended complaint, raising the same statute of limitations arguments asserted in her demurrer to the original complaint. Becker asked the court to take judicial notice of all the same documents included in the first request for judicial notice she filed, plus a copy of the court's order sustaining Becker's demurrer to the original complaint in this lawsuit. The Amarias filed an opposition that is nearly identical to their opposition to Becker's first demurrer.
The court sustained Becker's demurrer to the first amended complaint without leave to amend. The court found all the Amarias' claims in the first amended complaint are time barred under sections 318 and 338. Specifically, the court reasoned the Amarias failed to allege facts showing why the allegations in their June 2016 complaint don't constitute judicial admissions that Becker constructed the challenged wall in 2009 or 2011, or at least more than five years before the Amarias brought this lawsuit. The court also found the first amended complaint is a " 'sham pleading' " because the Amarias tried to conceal the allegations from their June 2016 complaint "by omitting any reference in the amended complaint to when the wall and gate/fence were installed."
The court entered judgment in favor of Becker and dismissed the Amarias' first amended complaint with prejudice. The Amarias appeal.
DISCUSSION
1. Standard of Review and General Principles of Law
We independently review a trial court's order sustaining a demurrer to determine whether the operative complaint alleges facts sufficient to state a cause of action. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) We assume the truth of all properly pled factual allegations and matters that are judicially noticeable. (Ibid.) We also liberally construe the complaint's allegations with a view toward substantial justice. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) But where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents. (Ivanoff, at p. 726.)
When a demurrer is sustained without leave to amend, we decide whether there is a reasonable possibility that the plaintiffs can amend their complaint to cure the defect. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the defect can be cured, "the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." (Ibid.) "The burden of proving such reasonable possibility is squarely on the plaintiff." (Ibid.) Such a showing can be made for the first time on appeal. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)
2. The Amarias forfeited their challenges to the form of Becker's demurrers.
As a preliminary matter, the Amarias argue the court should have overruled Becker's demurrers to the original complaint and the operative first amended complaint because the demurrers were procedurally defective. Specifically, the Amarias contend Becker failed to identify proper grounds for demurrer set forth in section 430.10 and failed to include a "demurrer in [her] papers." The Amarias, however, never raised any of these issues in their oppositions to the demurrers filed in the trial court. And the Amarias have not provided copies of the reporter's transcripts from the hearings on Becker's demurrers, or any suitable substitutes, to show they raised the alleged procedural defects in the trial court. Because the Amarias fail to explain why they did not or could not raise these arguments below, they have forfeited them on appeal. (See Superior Strut & Hanger Co. v. Port of Oakland (1977) 72 Cal.App.3d 987, 1001 [if a party fails to object to procedural defects that could have been cured in the trial court, that party waives any challenge on appeal based on those alleged defects].)
3. The court erred when it sustained the demurrer to the private nuisance cause of action in the first amended complaint.
The Amarias contend the court erred in sustaining Becker's demurrer to the first cause of action for private nuisance. Specifically, the Amarias argue that whether Becker's wall is a permanent nuisance triggering the nuisance claim's statute of limitations at the time the wall was erected is a question of fact that cannot be decided at the demurrer stage. We agree.
An action "for trespass upon or injury to real property" must be brought within three years of the trespass or injury. (§ 338, subd. (b).) The same statute of limitations applies to a claim for private nuisance damaging real property. (Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925.)
The point at which the limitations period begins to run for a nuisance claim depends on the nature of harm caused by the nuisance. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868 (Baker).) If the nuisance is classified as "permanent," the three-year statute of limitations begins to run when the injury occurs, usually at the time the structure creating the nuisance is installed or constructed. (Id. at p. 869.) If the nuisance may be abated at any time, however, it is considered a "continuing" nuisance. (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103 (Mangini II).) A nuisance is " 'abatable' " if it "can be remedied at a reasonable cost by reasonable means." (Ibid.) " 'Where a continuing nuisance is alleged, every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.' " (Id. at p. 1093.) Thus, a plaintiff harmed by a continuing nuisance may bring successive actions for damages until the nuisance is abated. (Baker, at p. 869.)
Generally, whether a nuisance is permanent or continuing is a question of fact subject to proof at trial. (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 597, 598.) While buildings, railways, underground sewers or pipes, and other similar structures are typically found to be permanent nuisances (see Baker, supra, 39 Cal.3d at pp. 868-869), and disturbances such as noise, water, gas, vibrations, or smoke are generally found to be continuing nuisances that can be abated at any time (id. at pp. 869-870), "[t]here is no short and all-inclusive rule for distinguishing between permanent and continuing nuisances." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1217.) Indeed, one prominent nuisance case held a locked gate, which bore several characteristics of a permanent structure, was in fact a continuing nuisance because there was evidence that the gate could be removed at any time. (See Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 108.) Thus, whether a nuisance qualifies as permanent or continuing must be determined after reviewing the particular facts and circumstances of the case. (Beck, at p. 1217; see also Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1147 (Mangini I).)
Here, the private nuisance claim in the first amended complaint is based on the allegation that Becker constructed a wall that encroaches on the disputed strip of land between the parties' properties and interferes with the Amarias' ability to use their driveway and gate. The judicially noticeable allegations from the complaint the Amarias filed in their prior lawsuit establish the wall was built, at the latest, in 2011. (See Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343 [when ruling on a demurrer, a court may take judicial notice of the plaintiffs' prior pleadings and positions in the same action as well as those from prior lawsuits].) Thus, if the wall is a permanent nuisance, the three-year statute of limitations for the Amarias' nuisance claim would have expired in 2014.
But while an encroaching wall, in theory, seems like a permanent nuisance, the Amarias could present evidence that the nuisance is abatable—i.e., the wall could be removed or relocated to a non-encroaching location through reasonable means and expense—and is, therefore, a continuing nuisance. (Mangini II, supra, 12 Cal.4th at p. 1103.) Indeed, while the Amarias' first amended complaint does not include allegations describing the nature of Becker's wall, such as what materials were used to construct it, the pleading does allege that the wall is "degrading." And the Amarias' complaint from their prior lawsuit, on which Becker relies to contend the statute of limitations for the private nuisance claim in this case has expired, alleges the wall was made of wood or fiberglass and relocated in 2011, which could lead to an inference that the nuisance is abatable and, therefore, a continuing nuisance. (See Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 609 ["it is difficult to conceive of a case where relocation of a boundary fence or wall would be so costly as to render it a permanent encroachment"].)
Becker does not point to any admission in the first amended complaint or any of the Amarias' other complaints, nor does she identify any judicially noticeable evidence anywhere else in the record, that would compel a finding that, as a matter of law, the wall giving rise to this lawsuit is a permanent nuisance. Thus, under a liberal construction of the allegations in the first amended complaint, we cannot conclude the three-year statute of limitations for the nuisance claim expired before the Amarias filed this lawsuit. (See Austin v. Medicis (2018) 21 Cal.App.5th 577, 585 [for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed].) And because the allegations in the operative pleading are not inconsistent with the allegations in the Amarias' other complaints, the sham pleading doctrine does not apply. (See Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426 [the sham pleading doctrine is not intended to prevent correction of ambiguous facts].)
4. The Amarias failed to show the court erred in sustaining the demurrer without leave to amend as to the second through sixth causes of action asserted in the first amended complaint.
In their opening (and only) brief, the Amarias claim in passing that the court erred in sustaining Becker's demurrer as to the remaining causes of action in the first amended complaint—i.e., the claims seeking to establish various types of easements and the claim for declaratory relief. While the Amarias suggest the court erred in finding those claims are time barred because they arose when Becker constructed the wall that interferes with the Amarias' use of their driveway, the Amarias do not present any arguments specifically addressing why the court erred in sustaining Becker's demurrer as to those claims. For instance, the Amarias fail to discuss the elements of any of those claims, and they make no effort to address what statute of limitations applies to them, including when any applicable limitations period would start to run. The Amarias don't even attempt to argue the same limitations period that applies to their nuisance claim also applies to their other causes of action. In other words, the Amarias ignore the second through sixth causes of action in the argument section of their opening brief.
It is a fundamental rule of appellate law that a challenged judgment or order is presumed correct and all presumptions must be indulged in favor of its correctness. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799.) An appellant, therefore, bears the burden to affirmatively demonstrate why the challenged judgment or order is wrong and should be reversed. (Ibid.) As part of that burden, the appellant must provide reasoned argument and citations to relevant legal authority that support that argument. (Ibid.) It is not sufficient to merely assert that a judgment is wrong. " ' "Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived." [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]' [Citation.]" (Ibid.)
Because the Amarias failed to present any reasoned argument addressing why the court erred in sustaining Becker's demurrer without leave to amend as to the second through sixth causes of action alleged in the first amended complaint, they have forfeited any challenge to the court's ruling concerning those claims. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief issue constitutes a waiver or abandonment of the issue on appeal].)
DISPOSITION
The judgment of dismissal is reversed. The trial court shall vacate its order sustaining Becker's demurrer to the first amended complaint without leave to amend. The court shall enter a new order sustaining the demurrer without leave to amend as to the second through sixth causes of action and overruling the demurrer as to the first cause of action. The court shall conduct further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J. WE CONCUR:
EGERTON, J.
DHANIDINA, J.