Opinion
B165391.
10-30-2003
WALDO KUSTERNS, Plaintiff and Appellant, v. JOSE B. RODRIGUEZ et al., Defendants and Respondents.
Michael J. Melton for Plaintiff and Appellant. Michael Levine for Defendants and Respondents.
This is a dispute between neighbors about a wall and whether it encroaches, with a complaint filed by one landowner, a cross-complaint by the other. The defendants motion for summary judgment was granted, notwithstanding that it addressed only the complaint and not his own cross-complaint, and the plaintiff purports to appeal from that judgment. We vacate the non-appealable judgment and dismiss the appeal.
FACTS
Jose Rodriguez (and his wife, who is included in our references to Rodriguez) own the residence located at 2712 West Avenue 30. Waldo Kusterns owns the adjacent property to the east, 2706 West Avenue 30.
In June 1996, Rodriguez built a 42 long, free-standing cinderblock wall along the property line between his lot and Kusternss lot. The "first part" of the cinderblock wall is 30 long and 12" wide, the "second part" 12 long and 6" wide, with a 12" square pilaster at one end and a wrought iron gate anchored to the pilaster.
The parties agree that the second part of Rodriguezs wall encroaches onto Kusternss property but dispute the extent of the encroachment (Rodriguez says it is a few inches, Kusterns says it is about a foot). According to Kusterns, the wall impedes his access to the outside wall of his garage and to a strip of property between his garage and the property line. Kusterns also claims the wall altered the "drainage pattern" so that Rodriguezs water now drains onto Kusternss property, pools in his garage, and seeps into the garage walls.
In June 2002, Kusterns sued Rodriguez for declaratory and injunctive relief and damages on theories of trespass, ejectment, and nuisance. Rodriguez answered, cross-complained for declaratory relief and to quiet title to an easement, and recorded a lis pendens. Kusterns demurred to the cross-complaint, but then filed a timely challenge to the judge to whom this case was assigned, and it does not appear that the demurrer was ever heard or decided.
Rodriguez then moved for summary judgment or, in the alternative, summary adjudication of issues, claiming that Kusternss encroachment, trespass, and nuisance claims were barred by the three years statute of limitations. Rodriguezs motion did not address his cross-complaint. In his supporting declaration, Rodriguez stated that he had built the plainly visible wall in June 1996, and intended the wall, pilaster and gate to be "permanent structures."
In opposition, Kusterns disputed Rodriguezs claim "that the wall is a permanent structure," conceded that the wall was built in 1996, and said he had "also learned that [Rodriguezs] construction of the wall altered the drainage pattern of [Rodriguezs] property so that water which previously drained onto [Rodriguezs] property now drains onto [Kusternss property]." He doesnt say when he learned about the drainage, or from whom, but says it was "[o]nly within the past year [that he] learned that the water in the walls has caused vegetation and mildew to grow within the wall space." Kusterns claimed the issue was whether the wall was permanent, and that the issue was one of fact, not law.
The trial court granted Rodriguezs motion for summary judgment and entered a judgment against Kusterns on his complaint, ignoring the still pending cross-complaint. Kusterns appeals.
DISCUSSION
Independent of the issues raised in Kusternss brief, the judgment cannot stand for the simple reason that it violates the one final judgment rule — because it does not dispose of the cross-complaint. (Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701-702 [there can be but one final judgment in an action, and it must determine the rights of the parties regarding all matters in controversy].) Rodriguezs cross-complaint seeks affirmative relief (a judgment quieting his title to the easement), and that claim was neither addressed by his motion for summary judgment nor disposed of by the judgment. At the most, Rodriguez would be entitled to summary adjudication with regard to Kusternss complaint.
The more immediate problem is that an appeal may be taken only from a final judgment. Because the complaint and cross-complaint are based on the same facts and should be decided together, a decision to treat this appeal as a petition for a writ of mandate would hinder rather than help the ultimate resolution of this issue, and we therefore decline to do so — except for the limited purpose of vacating the purported judgment to permit the trial court to consider the rules summarized in the following paragraph. (Cf. Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744-747.)
For the benefit of the parties and the trial court on remand, we note that, on the merits, Rodriguezs motion should have been denied — because there are triable issues of material fact about the permanency of the alleged encroachment and whether it could have been (or could still be) abated. As our Supreme Court explained in Spaulding v. Cameron (1952) 38 Cal.2d 265, 268, a "difficult problem" is presented when the "defendant is not privileged to continue the nuisance or trespass . . . [and] it has been recognized that in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent or not. [Citations.] If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place." (Italics added.) (See also Kafka v. Bozio (1923) 191 Cal. 746, 751-752 [where an encroachment is not permanent, the statute of limitations begins to run anew each day the encroachment exists and causes damages]; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1484 [in many cases, the distinction between permanent and temporary "depends upon the particular facts"]; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 678.)
DISPOSITION
The judgment is vacated and the cause is remanded to the trial court. The appeal is dismissed. The parties are to pay their own costs of this "appeal."
We concur: SPENCER, P.J. and MALLANO, J. --------------- Notes: Around that time, Rodriguez filed a notice of two related cases. In 1996, Kusterns sued Rodriguez for declaratory relief, quiet title, trespass, and slander of title, claiming that although the parties shared a common driveway that was their sole access to the street, Rodriguez did not have an easement for ingress and egress and was not entitled to use the driveway. Rodriguezs motion for summary judgment was granted. In May 2002 (about a month before the action now before us was filed), Rodriguez sued Kusterns for civil harassment, intentional infliction of emotional distress, abuse of process, and a variety of other torts. At the time Rodriguez filed his notice of related actions, he had not yet served Kusterns with summons and the complaint. The cases were deemed related, pending hearing dates were vacated, and the cases were assigned to the same trial court.