Opinion
D039554.
11-20-2003
WENDELLE A. ROSE, Plaintiff, Cross-Defendant, Cross-Complainant and Appellant, v. ROGER HEDGECOCK et al., Defendants, Cross-Complainants and Respondents; KDTD, INC. Intervenor, Cross-Complainant, Cross-Defendant and Respondent.
I.
INTRODUCTION
Wendelle A. Rose appeals from a summary judgment order entered in favor of defendants Roger Hedgecock and Cynthia Hedgecock (Hedgecocks) and cross-defendant KDTD, Inc. (KDTD). Rose contends the trial court improperly concluded that there was no triable issue of material fact with regard to her claims against the Hedgecocks and KDTD for adverse possession, prescriptive easement, and agreed boundary, pertaining to a strip of land on the boundary between her property and property previously owned by the Hedgecocks and now owned by KDTD. Rose also claims that because there is a question of material fact with regard to whether she has a legal interest in the strip of land, the trial court improperly concluded that various other derivative claims against the Hedgecocks and KDTD failed as a matter of law. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
KDTD owns property located at 1318 Grand Avenue in San Diego, California (KDTD Property). The KDTD Property was created by virtue of subdivision maps filed in the Office of the County Recorder of San Diego County. KDTD acquired the property in January 2001 from the Hedgecocks. The Hedgecocks acquired the property from Thomas Armstrong in May 2000. Armstrong purchased the property from Mary Mowry and her husband in 1999. The Mowrys had owned the property since 1964.
Rose owns property adjacent to the KDTD Property, at 1322-1328 Grand Avenue (Rose Property). The Rose Property was created by virtue of the same subdivision maps mentioned above. Rose acquired the property in 1994 from James Hunt.
Rose alleged in her complaint that she "owns a strip of land from the westerly boundary of her property extending east for approximately 12 feet to a line of cypress trees on the adjoining property owned by the Defendants" (Disputed Property). She also alleged that a portion of a residential structure built on her property encroaches onto the Disputed Property.
Rose filed an amended complaint against the Hedgecocks in January 2001. The amended complaint sought to quiet title to the Disputed Property based on three claims: adverse possession, prescriptive easement, and agreed boundary. In addition, the amended complaint contained additional claims for injunctive and declaratory relief.
The Hedgecocks filed a cross-complaint against Rose asserting causes of action for trespass and abatement of nuisance. After the Hedgecocks sold the KDTD Property to KDTD, KDTD was granted leave to intervene and to file a cross-complaint. Thereafter, KDTD filed a cross-complaint against Rose asserting causes of action for trespass, abatement of nuisance, and declaratory relief. Rose then filed a cross-complaint against KDTD asserting causes of action for adverse possession, prescriptive easement, agreed boundary, trespass, ejectment, and slander of title.
The Hedgecocks and KDTD jointly filed a motion for summary judgment as to all of Roses claims and cross-claims. The trial court granted the motion for summary judgment. The Hedgecocks and KDTD then voluntarily dismissed their cross-claims, and the court entered judgment in favor of the Hedgecocks and KDTD on all of Roses claims and cross-claims. Rose timely appealed the judgment.
III.
DISCUSSION
A. Standard of Review
Pursuant to Code of Civil Procedure section 437c, subdivision (c), summary judgment is proper where the papers submitted demonstrate that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.
"In moving for summary judgment, a defendant . . . has met his burden of showing that a cause of action has no merit if he has shown 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. 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 that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of his pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, quoting Code Civ. Proc., § 437c, subd. (o )(2) [current Code Civ. Proc., § 437c, subd. ( p)(2)].)
On appeal, our review is de novo. (Thunderburk v. United Food & Commercial Workers Union (2001) 92 Cal.App.4th 1332, 1337.)
B. Rose Has Not Raised a Triable Issue of Material Fact as to Whether She Has Paid Taxes on the Disputed Property
Rose claims the trial court improperly concluded that there is no triable issue of material fact with regard to her adverse possession claim.
Rose is required to establish as an element of her claim for adverse possession that either she or her predecessors in title paid the taxes assessed against the Disputed Property, over a five-year period. (See, e.g., Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305 (Mehdizadeh).) The record establishes that no reasonable juror could find that either Rose or her predecessors in title paid such taxes.
We note that the Hedgecocks and KDTD have moved to strike Roses reply brief on the ground that it contains new matters not presented in her opening brief. Roses reply brief consists largely of excerpts from deposition testimony relating to issues discussed in her opening brief. Accordingly, we deny the motion to strike.
Steven Irving, an employee of the County of San Diego Assessors Office (Assessors Office) who had assessed the Rose property, testified in his deposition that he never included any portion of the KDTD Property in his assessment of the Rose Property. Irving also testified that there was nothing in the records of the Assessors Office to indicate that the Rose Property had ever been assessed any portion of the KDTD Property. Similarly, Craig Rustad, chief deputy of the realty division in the Assessors Office, testified in a declaration that he had reviewed the appraisal records for the Rose Property and, based on this review, concluded, "I do not believe that the owners of the [Rose Property] have ever been billed for or assessed any real property taxes for the [KDTD Property.]"
In addition, the Assessors Office parcel map submitted in support of the motion for summary judgment showed that both the Rose Property and the KDTD Property were 50 feet by 125 feet. Robert Luitjens, who also is an employee of the Assessors Office, testified that according to the records in the Assessors Office, both the Rose Property and the KDTD Property were assessed as 50 feet by 125 feet. Thus, there was no evidence in the records of the Assessors Office indicating that the 12-foot strip of land on the KDTD Property was ever assessed to Rose.
Notwithstanding this testimony, Rose argues that because pre-Proposition 13 assessments included a visual inspection of property as part of the assessment process, the assessors may have observed certain encroaching improvements from the Rose Property on the Disputed Property and may have assessed those improvements to Rose or to her predecessors in title. Rose argues that because she or her predecessors may have paid property taxes on the Disputed Property, summary judgment was improperly granted. However, Rose presented no evidence showing that this ever actually occurred.
In support of her argument, Rose notes that employees of the Assessors Office testified in response to various hypothetical scenarios that a property holder might be assessed taxes on structures that encroached onto his neighbors property. For example, Rose relies on the following excerpt from Rustads deposition:
"[Roses attorney.] Just for the purpose of our discussion, lets assume that where you see [Roses tenants] alcove and where we see decks, lets assume those cross over the survey line and that theyve been over that surveyed line for at least 30 years, 20 years.
[¶] . . . [¶]
"[Roses attorney.] And if the Rose—the owner of the Rose [P]roperty paid all the taxes that were assessed to her on the tax bill, that person would necessarily have had to pay taxes on the encroached property—or on the encroached construction, wouldnt they?
[Objection omitted.]
"[Rustad.] The answer is yes, they would have if—whatever the line is. They would have gone ahead and paid taxes on that building. In other words, its shown in our building records that the property was assessed."
However, Rose omits the next sentence of Rustads testimony in which he states, contrary to the hypothetical that was posed to him by her counsel, that the records in the Assessors Office for the Rose Property do not show the encroaching improvements:
"[Rustad.] The — the only problem that I have with that, of course, is our building records dont seem to show decks and alcoves." (Italics added.)
Rose also cites the following excerpt from Rustads deposition to support her position:
"[Roses attorney.] So, if in fact the boundary went through part of the duplexes and the properties were assessed all to the Rose properties and all the taxes were paid, then in fact they would be Mrs. Rose would be paying taxes on property that in fact was part of the Hedgecock property.
"[Rustad.] If that was the fact if that was the actual case, yes." (Italics added.)
There is no testimony or other evidence showing that the encroaching improvements were actually assessed to Rose or to her predecessors in title. To begin with, Rose does not maintain that the structures on her property, as originally constructed, encroached on the KDTD Property. Moreover, Luitjens testified that if there were a change in the footprint of a building, and an assessor observed such a change, it would be noted in the records for the property in the Assessors Office. Luitjens further testified that it did not appear that any changes in the footprints of the structures had been noted in the records for the Rose Property. Similarly, Irving testified that at the time he appraised the Rose Property, the records in the Assessors Office did not indicate any changes in the footprints of the structures on the Rose Property and, further, that he did not note any such changes. Thus, the evidence offered in support of the motion for summary judgment established that the Assessors Office records contained nothing indicating that Rose had ever been taxed on the Disputed Property. That evidence also established that if Rose or her predecessors had in fact been so taxed, the records in the Assessors Office would have reflected this assessment.
Rose also relies on the California Supreme Courts statement that "where the [adverse possession] claimant by construction of buildings or other valuable improvements . . . has visibly shown occupation of a disputed strip of land adjoining the boundary, several cases have reasoned that the natural inference is that the assessor did not base the assessment on the record boundary but valued the land and improvements visibly possessed by the parties." (Gilardi v. Hallam (1981) 30 Cal.3d 317, 327, quoting Price v. De Reyes (1911) 161 Cal. 484, 489-490.) However, the Gilardi court held that such an inference could be dispelled. (See Gilardi, supra, 30 Cal.3d at p. 327 [affirming trial courts finding that adverse possession claimant had not paid taxes on disputed land where "[t]here [wa]s no direct evidence that the [improvements] were considered in the assessment of the lots"].)
In this case, the testimony of the employees of the Assessors Office that the Rose Property was never assessed taxes for any portion of the Disputed Property is uncontroverted. The hypothetical circumstances and unsupported inferences Rose posits do not establish that there is a triable issue of material fact with regard to whether Rose or her predecessors in title paid the taxes necessary to establish her adverse possession claim.
C. Rose Cannot Claim an Exclusive Prescriptive Easement to the Disputed Property
Rose contends the trial court improperly concluded that her prescriptive easement claim fails as a matter of law.
In Mehdizadeh, supra, 46 Cal.App.4th 1296, the plaintiffs claimed a prescriptive easement over a certain portion of their neighbor-defendants land. The trial court granted to plaintiffs the right to use a portion of the defendants property for landscaping and recreation, as well as the right to restrict the defendants access to the property. (Id. at p. 1305.) The Court of Appeal reversed, concluding that because the easement the trial court granted so completely divested the defendants of their rights as owners of the property, the easement was tantamount to a grant of possession. (Id. at pp. 1304-1305.) The court held that such an easement cannot arise in backyard boundary disputes between neighbors:
"An exclusive prescriptive easement is . . . a very unusual interest in land. 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 use the land of another for a specific purpose—most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate." (Mehdizadeh, supra, 46 Cal.App.4th at p. 1307, quoting Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564.)
In this case, Rose does not argue that this action is anything other than a "backyard dispute." (Mehdizadeh, supra, 46 Cal.App.4th at p. 1307.) Rather, she maintains that she is not seeking an "exclusive" easement. (Ibid.) We disagree.
In their statement of undisputed material facts, the Hedgecocks and KDTD asserted: "Rose claims an exclusive use of a twelve-foot strip of the KDTD Property on which to construct sun decks and/or alcoves, and use for landscaping (the Disputed Property). Rose contends that KDTD and its guests are excluded from using any portion of the easement for their own purpose without permission." (Italics added.) In her response to this statement, Rose did not dispute that she was seeking exclusive use of the Disputed Property. Rather, she disputed only the width of the strip of land at issue. Further, in her deposition Rose stated that she was seeking an interest in the Disputed Property that would preclude the Hedgecocks from using the Disputed Property without her permission. Finally, Roses complaint states that the basis for her prescriptive easement claim is that certain structures are "built from [Roses] property" onto the Disputed Property. It is clear that Rose is in fact seeking an exclusive easement. The trial court properly concluded that such relief is barred as a matter of law. (Mehdizadeh, supra, 46 Cal.App.4th at p. 1307.)
D. Rose Cannot Establish the Elements Necessary to Establish Title by Agreed Boundary
Rose claims that the trial court improperly concluded that her effort to quiet title to the Disputed Property through the doctrine of agreed boundary fails as a matter of law.
"The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. [Citations.] The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position. [Citation.] [¶] [T]he doctrine should not be applied broadly to resolve boundary disputes where there is no evidence that the neighboring owners entered into an agreement to resolve a boundary dispute and where the true boundary is ascertainable from the legal description set forth in an existing deed or survey. [Citations.] The common theme of these decisions is a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation." (Bryant v. Blevins (1994) 9 Cal.4th 47, 55, italics added.)
In this case, the only direct evidence regarding whether there was ever any uncertainty regarding the boundary line and whether there had ever been an agreement to fix the boundary line came from Mowry. Mowry testified in a declaration that during the years she and her husband owned the KDTD Property, there was "never any dispute as to the location of the property line between the properties." In addition, she declared: "At no time did my husband or I enter into an agreement with any adjoining property owner which would have provided for a change in the actual location of the property line."
Notwithstanding Mowrys unequivocal declaration, Rose contends that there is evidence of a boundary dispute between KDTDs predecessor in title and Roses predecessor in title. First, Rose maintains that Mowrys deposition testimony provides evidence of a boundary dispute involving the Disputed Property because Mowry testified that she had a dispute with Hunt over the pruning of some vegetation located between the two properties. However, Mowry did not testify that this dispute involved any disagreement over the proper boundary between the two properties. This testimony does not support the assertion that there was a boundary dispute.
In addition, Rose asserts that when Mowry sold the KDTD Property to Armstrong in 1999, Mowry declared in a real estate transfer disclosure statement that there were no encroachments on her property. Based on this statement, Rose claims Mowry must either have believed the Disputed Property belonged to Rose or have made a misrepresentation. We disagree. Mowry did not declare that the KDTD Property was without encroachments. She merely checked, "[n]o," in response to a question on the disclosure statement that asked: "Are you (seller) aware of any of the following: . . . [¶] . . . Any encroachments, easements or similar matters that may affect your interest in the subject property." (Italics added.) This is fully consistent with Mowrys declaration, in which she states: "At the time that I sold the KDTD Property to Mr. Armstrong, I had no knowledge of any encroachment . . . ."
Although it is not stated clearly in Roses brief, we assume Roses argument is premised on the fact that there were structures from her property that encroached on the Mowry property at the time of the sale to Armstrong.
Rose also suggests that a memorandum of a telephone call between Cynthia Hedgecock and Mowry provides evidence of a boundary dispute. However, Rose fails to make any argument regarding the relevance of this memorandum. In any event, the memorandum does not state that there was any uncertainty regarding the boundary between the KDTD Property and the Rose Property. In fact, the memorandum emphasizes that Mowry "emphatically stated that there was no agreement to CHANGE the property line."
Rose also notes that the trees she claims constitute the boundary line between the two properties were there before Mowrys purchase of the property. Rose asserts that Mowry never maintained the Disputed Property east of the trees, other than occasionally cutting some branches. Rose argues that such acquiescence is evidence of an implied boundary agreement. Even assuming we were to conclude that Mowry had acquiesced to the row of trees as constituting the boundary and to the use of the Disputed Property by the owners of the Rose Property, the California Supreme Court in Bryant rejected the notion that such acquiescence is sufficient to establish a claim of an agreed boundary under circumstances such as those in the present case. In Bryant the Supreme Court held that the parties long term acquiescence in a fence that separated the parties property, but was slightly off the legal property line, was insufficient to support a claim of an agreed boundary:
"Although the presence of the fence since at least 1977 suggests a lengthy acquiescence to its existence (on the part of plaintiffs predecessors in interest), that circumstance alone did not nullify [the doctrines] other requirements—namely, that there be an uncertainty as to the location of the true boundary when the fence was erected, and an agreement between the neighboring property owners to employ the location of the fence as the means of establishing the boundary. [Citation.] In the present case, there is no evidence to support the existence of either one of these prerequisites. . . . [W]hen existing legal records provide a basis for fixing the boundary, there is no justification for inferring, without additional evidence, that the prior owners were uncertain as to the location of the true boundary or that they agreed to fix their common boundary at the location of a fence." (Bryant v. Blevins, supra, 9 Cal.4th at p. 58.)
In this case, it is undisputed that the properties were created by virtue of subdivision maps. Rose has not claimed that those maps were inaccurate. Thus, existing legal records provide a basis for fixing the boundary between the two properties. In addition, we have concluded that there is no evidence that the prior owners of the properties were uncertain as to the location of the boundary or that they agreed that the row of trees would constitute the boundary. Accordingly, any purported acquiescence by Mowry is insufficient to establish a claim for an agreed boundary. (Bryant v. Blevins, supra, 9 Cal.4th at p. 58.)
Rose relies on Vella v. Ratto (1971) 17 Cal.App.3d 737, 742, for the proposition that acquiescence in conjunction with use of the Disputed Property is sufficient to support a claim for an agreed boundary. However, the Court of Appeal in Vella held only that such an inference could be drawn where there was no direct evidence of the lack of agreement as to a boundary. (Ibid. ["Where there is circumstantial evidence of long usage and acquiescence, and no contradictory evidence . . . it is the duty of the court to make a finding predicated upon such circumstantial evidence"], italics added.) In this case, we have such contradictory evidence—Mowrys unequivocal declaration that there was no agreement with Rose regarding the boundary between the KDTD Property and the Rose Property. Thus, whatever vitality Vella has in the wake of Bryant, Vella is inapposite under the facts of this case.
In summary, there is no evidence that there was uncertainty as to the true boundary, or that there was an express or implied agreement to accept the trees as the boundary. Therefore, Roses agreed boundary claim fails as a matter of law.
Rose concedes that her claims for declaratory or injunctive relief against the Hedgecocks and her claims for trespass, ejectment, slander of title, negligence, and injunctive relief against KDTD are "necessarily predicated upon a finding that [she] has an interest in the Disputed Property." We have concluded that Rose has no such interest. Therefore, the trial court properly granted summary judgment on these claims.
Similarly, in light of our affirmance of the trial courts grant of summary judgment, we need not consider Roses claim that the trial court improperly granted summary judgment in favor of the Hedgecocks on the ground that they are no longer owners of the property.
IV.
CONCLUSION
Rose has failed to raise a triable issue of material fact as to whether she has paid the taxes on the Disputed Property. Therefore, her adverse possession claim fails as a matter of law. In addition, Roses claim to an exclusive prescriptive easement is barred as a matter of law under the circumstances of this case. Further, Rose cannot establish the elements necessary to acquire title by the doctrine of agreed boundary. Finally, Roses claims for declaratory and injunctive relief against the Hedgecocks and her claims for trespass, ejectment, slander of title, negligence, and injunctive relief against KDTD all fail because she has no legal interest in the Disputed Property.
V.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. & NARES, J.