As Defendants point out, only two reported decisions after Rowe use the "substantially or permanently diminished" standard: Dieterich Internat. Truck Sales, Inc. v. J. S. J. Services, Inc. (1992) 3 Cal.App.4th 1601 [ 5 Cal.Rptr.2d 388] ( Dieterich) and Freeze v. Brinson (1991) 3 Cal.App.4th Supp. 1 [ 5 Cal.Rptr.2d 227]. Dieterich was not a waste case, but addressed the issue whether a prescriptive easement could be obtained against a landlord reversioner.
Senior argues that Plaintiffs cannot assert a claim for trespass because as landlords, they do not have a possessory interest in the land at issue and thus cannot bring a trespass claim. Sen. Mot. 22 (citing Dieterick Int'l Truch Sales v. J.S. & J. Servs., Inc. , 3 Cal.App.4th 1601, 1609, 5 Cal.Rptr.2d 388 (1992) ). Senior's reliance on Dieterick is misplaced.
.Restatement (First) of Property § 222 (emphasis added); see also 16 Powell on Real Property § 91.12 (2006). See generally Dieterich Int'l Truck Sales, Inc. v. J.S. & J. Serv., Inc., 3 Cal.App.4th 1601, 1608, 5 Cal.Rptr.2d 388, 392 (1992) (“A future interest, such as a landlord's reversion cannot be the subject of a prescriptive easement because the statutory period for acquiring the easement runs only against a possessory interest.”)..Restatement (Second) of Property: Landlord & Tenant § 1.2 (1977)(“A landlord-tenant relationship exists only if the landlord transfers the right to possession of the leased property.”
Appellants rely primarily on California Civil Code section 741 and Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Services, Inc. (1992) 3 Cal.App.4th 1601 (Dieterich), where the court held that a prescriptive easement could not ripen against a landlord who was not in possession of the property and was legally unable to bring an action to prevent the plaintiff from gaining the easement by prescription. The Dieterich court held that its holding was "supported by Civil Code section 741 which explicitly recognizes that a future estate cannot be harmed during the pendency of the intervening estate.
Thus, they argue a prescriptive easement cannot be found against a landlord who is not in possession of the property citing Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Services, Inc. (1992) 3 Cal.App.4th 1601 (Dieterich). In Dieterich, the plaintiff owned a truck sales and repair business.
The Landowners' last argument is that the application of the Gion-Dietz doctrine is unfair because, in light of the NID easement, their predecessor in interest lacked the ability to prevent the public use. The Landowners point to Dieterich International Truck Sales, Inc. v. J.S. J. Services, Inc. (1992) 3 Cal.App.4th 1601, which holds that a landlord has no cause of action to sue to halt a trespass, hence prescription cannot run against the landlord's reversion. They argue that the situation is analogous to the NID easement in this case.
( Dieterich Internat. Truck Sales, Inc. v. J.S. J. Services, Inc. (1992) 3 Cal.App.4th 1601, 1603-1604 [ 5 Cal.Rptr.2d 388] [quiet title to an easement for access]; Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179, 1182-1183 [ 242 Cal.Rptr. 403] [quiet title to lease]; Twain Harte Homeowners Assn. v. Patterson (1987) 193 Cal.App.3d 184, 188-189 [ 239 Cal.Rptr. 316] [quiet title to easement]; see also German-Amer. Savings Bank v. Gollmer (1909) 155 Cal. 683, 686 [ 102 P. 932] [title may be quieted to leasehold]; 5 Witkin, supra, Pleading, § 605, p. 63 [quiet title available to quiet any interest in real property]; but see Code Civ. Proc., § 761.020, subd. (b) [complaint shall allege plaintiff's "title"].
"A plaintiff asserting a claim for trespass must have a possessory interest in the land at issue; mere ownership is not sufficient." Gregory Vill. Partners, L.P., 805 F. Supp. 2d at 902 (citing Dieterich Int'l Truck Sales, Inc. v. J.S. & J. Servs., Inc., 3 Cal. App. 4th 1601, 1608-10 (4th Dist. 1992)). A trespass claim may include wrongful entry or invasion by pollutants.
However, the state court decisions cited by defendants do not extend a tenant's right to exclude others to encompass common areas beyond their own leased apartment or residence. SeeFriends of the Trails v. Blasius, 78 Cal.App.4th 810, 830, 93 Cal.Rptr.2d 193 (2000) (affirming judgment against irrigation district and landowners establishing public easement for recreational trail on portion of irrigation district's canal easement, and distinguishing authority recognizing that a landlord has no cause of action to prevent a trespass because “under the law of landlord tenant relations, the landlord surrenders possession, ‘that stick in the bundle of rights” which is critical’ ”) (quoting Dieterich Int'lTruck Sales, Inc. v. J.S. & J. Serv. Inc., 3 Cal.App.4th 1601, 1610, 5 Cal.Rptr.2d 388 (1992) (holding that a landlord, who does not have a present possessory interest, has no cause of action for trespass to prevent a prescriptive easement across a portion of the landlord's property, and that a prescriptive easement could not ripen against the landlord's future reversionary interest)); Allred v. Harris, 14 Cal.App.4th 1386, 1390 and n. 3, 18 Cal.Rptr.2d 530 (1993) (recognizing that “[a]s a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership,” and finding that the tenant “had a possessory interest in the parking lot and walkways, had the landlord's specific authorization to take steps necessary for the security of the parking areas and was affected by the defendants' activities which were aimed at disrupting his normal business activities”) (citation omitted); Smith v. Cap Concrete, Inc., 133 Cal.App.3d 769, 774, 184 Cal.Rptr. 308 (Cal.Ct.App
Id. at 775; see also, Dieterich Internat. Truck Sales, Inc. v. J. S. & J. Servs., Inc., 3 Cal. App. 4th 1601, 1610 (Cal. Ct. App. 1992) (adopting and applying the distinction set forth in Smith). Here, Mardikian alleges that CMI and Safeguard's unlawful trespass onto the Property injured Mardikian in that "Plaintiff has been unable to enter his property to begin making repairs and therefore has been unable to bring the property to rentable condition, thus losing potential rental income, and has been unable to bring the property to marketable condition, resulting in Plaintiff not being able to sell his property at a time when the property market is skyrocketing."