Opinion
D071256
03-29-2018
RANDALL G. SALATINO, Plaintiff and Appellant, v. OLIVENHAIN MUNICIPAL WATER DISTRICT, Defendant and Respondent.
Andrew K. Rauch for Plaintiff and Appellant. Bremer Whyte Brown & O'Meara, Vik Nagpal, Eric B. Alden; Wilson, Elser, Moskowitz, Edelman & Dicker, John R. Clifford and Kelly A. Van Nort for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00024880-CU-EI-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Andrew K. Rauch for Plaintiff and Appellant. Bremer Whyte Brown & O'Meara, Vik Nagpal, Eric B. Alden; Wilson, Elser, Moskowitz, Edelman & Dicker, John R. Clifford and Kelly A. Van Nort for Defendant and Respondent.
Plaintiff and appellant Randall G. Salatino, as trustee of a family trust (Plaintiff), sued defendant and respondent Olivenhain Municipal Water District (the District or OMWD) and numerous other governmental and private party defendants, on theories including inverse condemnation, slander of title and quiet title. Plaintiff has owned and occupied rural residential real property since 2000, and alleges the District, among others, interfered with his 20-foot wide recorded access easement, which lies within a wider dirt roadway. Based on a different 30-foot easement granted to it along the same roadway, the District took action between 2000 and 2007 to install pipe and pumping improvements under and on the surface of the roadway area, and has maintained them through the present time.
The District brought demurrers to the operative pleading, the second amended complaint (complaint), asserting its claims were barred by the applicable limitations periods. (Code Civ. Proc., §§ 318, 319 [five years for real property possession or title disputes]; § 338, subds. (g), (j) [three years for slander of title or inverse condemnation action].) In support of its demurrer, the District supplied judicially noticeable documents on the location of its recorded easement, granted by other property owners in 2000, along the roadway area. The District also provided recorded notices of completion of three stages of its construction work in this roadway area, which occurred between 2000 and 2007.
All further statutory references are to this code unless noted.
The trial court sustained the demurrers without leave to amend and dismissed the complaint. Plaintiff appeals, arguing the trial court erred as a matter of law in finding the action was barred and abused its discretion when denying him leave to amend his pleading. He essentially seeks to retain his historic private access to the property, in his capacity as a member of the public who should not be denied access to this public roadway. (Civ. Code, § 1007 [precluding adverse possession of publicly owned property].) Alternatively, Plaintiff argues he should have been allowed to expand his allegations to conform to proof, concerning a different nearby easement controlled by other defendants in the action, whose defenses were ruled on after the District obtained this judgment of dismissal. (See Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909 [amendments permitted to conform to proof at trial].)
The complaint includes numerous additional causes of action alleged against many other defendants, who were neighboring landowners and other public entities. They do not appear in this appeal and those issues need not be discussed, except as regards any potential amendments (pt. IV, post).
The trial court correctly determined as a matter of law, based on admissions in the complaint and on matters subject to judicial notice, that this action was not timely filed against the District. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, fn. 2 [ruling on demurrer appropriately takes into account those matters properly subject to judicial notice].) We affirm.
I
FACTUAL AND PROCEDURAL HISTORY
A. Lay of the Land
As individuals, Plaintiff and his wife purchased rural real property in 2000 and built a single family home there. In 2002, they conveyed the property to their family trust. Included in the grant deeds were references to an access easement, described as parcel C, a right of way for road purposes over and across the east 20 feet of "Section 26," which is County of San Diego (County) land. This roadway was located along a boundary between section 26 (County property) and section 25 (City of San Diego [City] property). Plaintiff and others used it to access their properties. He understood that before he bought his property, another landowner had made a recorded irrevocable offer to dedicate the eastern 30 feet of section 26 to the County for roadway purposes, and in 1978, the County had adopted it as a public road (known as Old Survey Road 124).
As alleged in the complaint, for survey purposes, a "township" is a small geographical area used to define property locations from a meridian and baseline. Each township contains several "sections" of land (which are one square mile or 640 acres in size). Plaintiff's property is located in section 26, township 13 south, range 3 west, San Bernardino base and meridian. Section 25 is located immediately to the east and adjacent to section 26. The boundary line between section 26 and section 25 runs north and south.
Plaintiff alleged that in the early 2000's, development in the area of his property started to accelerate. In July 2000, the District obtained from a nearby owner, the Dunn family, an exclusive 30-foot recorded easement for waterlines, pipelines and related improvements. The District's easement includes both a legal description and a plat map describing and depicting its location immediately adjacent to the "Artesian Trail" roadway, and those documents are attached to the complaint as exhibit B. Both the District and Plaintiff describe the 20-foot disputed easement area as paralleling and adjacent to the District's 30-foot easement along the same roadway.
On appeal, the District admits there is a scrivener's error in the legal description of the 2000 deed, which shows its own water easement is located in section 25 (City), not in section 26 (County), where Plaintiff's property is found. However, the District argues the associated map and descriptions placed Plaintiff on sufficient notice of the existence of the written easement, as did the 2000 to 2007 recorded completion notices, along with the evident creation of a prescriptive easement.
Starting in the early 2000s, the District installed various improvements for water service within its easement area, including water pipelines and associated infrastructure for distribution. These improvements were mainly constructed between 2003 and 2007. Because of the ongoing development in the area, Plaintiff obtained the use of a new primary access road to his property, starting in 2005.
During 2014, Plaintiff sought permission to subdivide his property and learned that he was required to provide a secondary emergency access. He became aware that the District's exclusive easement restricted all use of his claimed easement area. Plaintiff took the position that the water facilities had been constructed in ways he thought were encroaching on his existing easement, and claimed that the District had incorrectly recorded its easement. He filed governmental tort and late claims against the District in 2015, requesting compensation, which was denied.
B. Complaint and Demurrers; Ruling
Plaintiffs sued the District and others in July 2015 on theories of inverse condemnation, trespass, private nuisance and quiet title, among others. Plaintiff researched title documents and found that both the City and County have dedicated public roadways in the same vicinity.
After a demurrer conference, several sets of demurrers and amendments, the operative second amended complaint was filed. As against the District, Plaintiff contended in his first cause of action that he is entitled to damages for inverse condemnation. As part of the District's public project, it installed pipelines and equipment that are said to have encroached on the portion of the road representing Plaintiff's easement, but without his knowledge or permission and restricting its use. Also, the District had recorded an exclusive easement that restricted all use of the area (attached to the complaint as exhibit B).
For his slander of title and quiet title claims (cause of action nos. 8 and 9), Plaintiff alleged the District made public record claims that it has superior rights over Plaintiff's easement, which denigrated his own rights. Plaintiff alleged he was unable to discover the existence of his claims until 2014, when he attempted to subdivide his property.
In response, the District demurred to the complaint on the grounds that at least the first and eighth causes of action were barred by the statute of limitations. The District further asserted it had obtained a prescriptive easement over the disputed area, to the exclusion of Plaintiff's own claim of an easement. (§§ 318, 319 [five years to file action on real property possession or title dispute]; § 338, subds. (g), (j) [three years for slander of title or inverse condemnation action].) Plaintiff had admitted in the complaint he had been continually driving on the same roadway where the improvements were being constructed until 2007, using it as the "sole access" to his property. The District argued the complaint was insufficient on its face in light of these admissions, and that the District's open and exclusive use of its recorded easement resulted in a prescriptive use in its favor.
The District submitted judicially noticeable documents about the 2000 deed granting the 30-foot water easement to it, and its recorded 2000 through 2007 notices of completion of the work. (Evid. Code, § 452, subds. (c), (d).)
Plaintiff argued in opposition to the demurrer that the District was unable to adversely possess public property. According to the complaint, Plaintiff acquired a historic access along Old Survey Road 124, "a road running north of his property along the boundary of section 25 and section 26." In 1978, the County ordered that a portion of the road within the unincorporated County area, along an adjacent and continuous traveled way dedicated to the City, was public in nature. Plaintiff's access was 20 feet wide at this location. In 1979, the most easterly 30 feet of section 26 was dedicated to the County for roadway purposes. Plaintiff had continually used this same access and argued the District could not obtain rights by prescription against the County (or by extension, himself), pursuant to Civil Code section 1007 (no adverse possession allowed as to property "dedicated to or owned by the state or any public entity"). Plaintiff opposed the judicial notice requested by the District (deeds and notices of completion) as inappropriate in some respects (duplicative or unnecessary).
In reply, the District contended that based on Plaintiff's admissions about regularly driving past ongoing construction on the easement until 2007, he had not been prevented from determining at an earlier time whether his easement was affected by such construction. The District's public uses of its own easement, by installing below grade waterlines and above grade facilities at least eight years ago, did not adversely affect any other public entity's different public uses of the same property. The District concluded, "As such, Plaintiff's argument here is wholly misplaced and fails to address the matter before the Court, that each of his causes of action [is] barred by the applicable statute of limitations."
Following a hearing, the trial court sustained the District's demurrer without leave to amend. In connection with companion motions heard at the same time on behalf of different defendants, the court noted that the complaint "concedes that [the District] was granted an exclusive easement over plaintiff's easement in 2000."
On the merits, the court determined that all causes of action against the District "appear to be barred by the statute of limitations. Plaintiff had notice of [the District's] acquisition and use of the easement in as early as 2000 when [the District's] easement was recorded, and from 2000 through 2007, when different phases of grading, construction and the installation of improvements were completed. Regardless of the applicable date of accrual, the five-year statute of limitations has run." The court relied on statutory authority (§§ 338, subd. (j), 318, 319) and case law, Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1048 (Otay Water Dist.) and Lyles v. State of California (2007) 153 Cal.App.4th 281, 287 (Lyles). Judgment of dismissal was entered accordingly. Plaintiff appeals.
II
APPLICABLE STANDARDS
A. Review
"When a trial court sustains a demurrer on the ground that the complaint 'does not state facts sufficient to constitute a cause of action' [citation], the appellate court conducts a de novo review—that is, it independently decides whether the allegations are sufficient." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235.) We treat a demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We seek to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
The courts must take into account any well-pleaded material allegations of the operative facts, and matters properly subject to judicial notice. (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 734, fn. 2; Thornton v. California Unemployment Ins. Appeals Bd. (2012) 204 Cal.App.4th 1403, 1408; Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) This ruling did not expressly grant or deny the opposing judicial notice requests of the existence of recorded documents. However, a judgment of dismissal after demurrer will be affirmed if proper on any grounds stated in the demurrer. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)
Where a demurrer was sustained without leave to amend, we utilize an abuse of discretion standard to review the trial court's decision to deny leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. (Ibid.)
B. Limitations Rules
The trial court sustained the demurrer without leave to amend by relying solely on limitations principles. Regarding Plaintiff's claim for recovery for physical damage to private property under a governmental taking or inverse condemnation theory, section 338, subdivision (j) establishes a three-year limitations period. (Cal. Const., art. I, § 19.)
Alternatively, for Plaintiff's claim his property was wrongfully taken, section 318 provides that such an action to recover possession of property must be brought within five years of the time when the plaintiff retained possession of it. Section 319 requires that an action by a plaintiff in possession of premises, arising out of a claim of title to them, must be brought within five years of the adverse act giving rise to the claim.
Case law in this context explains that a "cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act." (Lyles, supra, 153 Cal.App.4th 281, 286 [interpreting § 338, subd. (j)].) A limitations period should not start to run until the plaintiff is placed on notice of the facts constituting the injury. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807 (Fox).) Even so, a plaintiff is deemed to have the ability "to discover a cause of action when he or she 'has reason at least to suspect a factual basis for its elements.' " (Id. at p. 807.) Under this discovery rule, the plaintiff need not be aware of the specific facts or legal theory necessary to establish the claim. (Ibid.) "[W]hen one's property is damaged, one should reasonably suspect that someone has done something wrong to him and, accordingly, be charged with knowledge of the information that would have been revealed by an investigation." (Lyles, supra, at p. 287.)
III
ANALYSIS
A. Inverse Condemnation Cause of Action
The just compensation clause of the California Constitution "is primarily aimed at making a landowner whole for any governmental taking or damage to his or her property." (Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 715.) Nonetheless, the five-year statutes, sections 318 and 319, apply to inverse condemnation claims. (Otay Water Dist, supra, 1 Cal.App.4th at pp. 1048-1049; Ocean Shore R. Co. v. City of Santa Cruz (1961) 198 Cal.App.2d 267, 270.)
Whether a three-year or five-year limitations period applies, an inverse condemnation claim begins to run when the governmental entity takes possession of the property. (§ 338, subd. (j); see Otay Water Dist, supra, 1 Cal.App.4th at pp. 1048-1049.) "Where, however, there is no direct physical invasion of the landowner's property and the fact of taking is not immediately apparent, the limitations period is tolled until 'the damage is sufficiently appreciable to a reasonable [person] . . . .' " (Id. at p. 1049, citing Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717.)
On appeal, Plaintiff does not directly argue he is excused from either the three- or five-year requirements for becoming aware of and bringing his claim. Rather, he cites to Civil Code section 1007, which precludes adverse possession of property "dedicated to or owned by the state or any public entity." "[T]he reason for prohibiting adverse possession of public property is because there may be little incentive for a public entity to be aware of who is using public property or take steps to interfere with a potential adverse possessor." (Hays v. Vanek (1989) 217 Cal.App.3d 271, 286.)
The correct statement of this rule, as codified by Civil Code section 1007, includes a proviso "that no right in a public highway 'as against the public' can be so obtained." (Abar v. Rogers (1972) 23 Cal.App.3d 506, 512.) In that case, where the public highway rights had long been abandoned by the entity, then the subsequent occupier of the abandoned portion was allowed to assert adverse possession rights against a neighbor, despite claims that the previous dedication to public use made that inappropriate or impossible. (Id. at p. 513 ["It is established law that one, while recognizing a superior title or right in a governmental entity, may nevertheless adversely possess land as against others."].)
In the case before us, Plaintiff, as a private property owner who claims a deeded easement for personal use, cannot properly rely on Civil Code section 1007 to protect him. "Since the purpose of the doctrine is to protect a public entity from loss of publicly owned rights through suffering an encroachment, it has no application to the loss of rights of an underlying private owner." (Friends of the Trails v. Blasius (2000) 78 Cal.App.4th 810, 827.)
Assuming the pleaded allegations of his travel along the same roadway from 2000 through 2007 are true, Plaintiff must have been able to become aware of his potential claims against the District at that time, whether it was acting pursuant to a deeded easement or a prescriptive one. (See Lyles, supra, 153 Cal.App.4th at p. 286.) A plaintiff ignores direct visual evidence on which a later claim rests, at his peril. (Id. at p. 289.) On an objective basis, all of the pleaded circumstances placed Plaintiff on notice of facts sufficient to make him aware of an injury to his property interests, charging him with knowledge of the information that would have been revealed by an investigation. (Id. at p. 287.) The trial court did not err when concluding the inverse condemnation claim is barred by the applicable limitations periods.
B. Slander of Title and Quiet Title Causes of Action
Under section 338, subdivision (g), a three-year limitations period applies to an action for slander of title to real property. For the same reasons that the inverse condemnation claim fails, Plaintiff did not adequately plead around the requirement for taking timely action to protect his asserted rights, such as investigating whether there was any factual basis for a claim against the District. (Fox, supra, 35 Cal.4th at p. 803.)
The ruling did not expressly address the quiet title cause of action, which was mainly duplicative of Plaintiff's other claims in seeking a remedy. Neither party has clearly addressed the quiet title theory on appeal. It is well established that the running of a limitations period can be tolled where an owner, who has exclusive and undisputed possession, is seeking to quiet title. (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 490, pp. 630-631.) The statute of limitations should not begin to run against an owner in such possession, who will be unlikely to have knowledge of adverse claims of a person who is out of possession. (See, e.g., Ankoanda v. Walker-Smith (1996) 44 Cal.App.4th 610, 616 [possession required to toll statute must be exclusive and without dispute].) But here, Plaintiff does not try to allege any such exclusive possession, since the District as well as other neighbors all used the same road at various times. He cannot show any basis to toll any of the applicable limitations periods.
IV
AMENDMENT REQUESTS ON OTHER THEORIES
The ruling sustaining the District's demurrer without leave to amend was based solely on the application of limitations principles. However, Plaintiff seeks to raise arguments on appeal going beyond those issues, by referencing rulings that postdated the judgment of dismissal disposing of Plaintiff's case against the District. Plaintiff also pled quiet title and related claims against other defendants on an alternative claimed right of ingress and egress (e.g., exhibit C to the amended complaint, documenting the "Avaron Easement"). The appellate record designated by Plaintiff includes moving papers by separate defendants Avaron Community Association and Black Mountain Ranch, LLC, opposition papers and rulings, all of which postdate the judgment of dismissal obtained by this District.
On appeal, Plaintiff states that at the time of the hearing on the District's demurrers, his attorney alerted the trial court to the documents filed for the upcoming hearings about those motions. His opposition to them included a separate request to take judicial notice of recorded documents to show there was another long existing public road nearby that had been accepted by the County in an official resolution. Plaintiff seems to be claiming the City or County's acceptance of dedication of roads in the vicinity was valid, even if implied, and cannot now be altered. (See Sacramento County v. Lauszus (1945) 70 Cal.App.2d 639, 645, 651 [land held for public purposes is not subject to the operation of the statute of limitations].) He does not show how his arguments properly promote public, not private, benefit in this respect.
The record designated for appeal does not include a reporter's transcript of the April 29, 2016 hearing on the District's demurrer. The only reporter's transcript provided pertains to proceedings on July 1, 2016, about other defendants' dismissal orders and expungement of lis pendens.
Moreover, "when reviewing the correctness of atrial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered." (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 (Reserve Insurance); In re Zeth S. (2003) 31 Cal.4th 396, 405.) Taking judicial notice can, in limited circumstances, appropriately supply a court with information about proceedings in the case that postdate the order on appeal. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 (Vons).) This rule may be flexibly applied, and for example, it was used to take into consideration facts presented about the postjudgment insolvency of an insurer, for purposes of interpreting the subject insurance policy. (Reserve Insurance, supra, at p. 813.)
Even though appropriate judicial notice of court records does not reflect an acceptance of all the factual matters contained therein, we could take judicial notice to show the existence of official acts, such as the occurrence of court hearings and filings. (Mangini v. R.J. Reynolds, Inc. (1994) 7 Cal.4th 1057, 1063-1064.) It is not disputed here that extensive litigation concerning Plaintiff's various easement claims took place over many months, and against many different defendants. In the respondent's appendix, the District has supplied copies of Plaintiff's requests for dismissal as to numerous codefendants and notice of entry of judgment as to Black Mountain Ranch, LLC. However, trial court rulings on distinct claims against other defendants should not properly function to supplement the record with materials not before the court when it was making the subject orders on appeal.
Unlike in Reserve Insurance, supra, 30 Cal.3d 800, 813, there are no exceptional circumstances that justify a deviation from the usual rule in the appeal before us. Review of the demurrer order and dismissal judgment should not include consideration of later rulings, for the purpose of drawing any conclusions about the merits of the subject order as of the time it was made. (Vons, supra, 14 Cal.4th at p. 444, fn. 3.)
At oral argument on appeal, Salatino suggested that he might wish to pursue a new theory against the District, public nuisance. (Civ. Code, § 3480 [public nuisance affects considerable number of persons]; Civ. Code, § 3481 [private nuisance]; Civ. Code, § 3490 "[n]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right"; see 13 Witkin, Summary of Cal. Law (11th ed. 2017) Equity § 154, p. 487.) Salatino admits that this public nuisance theory was not pursued at the trial level nor briefed on appeal. "Generally, a party is not permitted 'to change [her] position and adopt a new and different theory on appeal' because doing so would be unfair both to the court and to the opposing litigant. [Citation.] However, the appeal of a judgment of dismissal after sustaining of a demurrer without leave to amend requires the consideration of whether the allegations state a cause of action under any legal theory. [Citation.] Under these circumstances, new theories may be advanced for the first time on appeal." (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 85.) The burden is placed upon the plaintiff-appellant "to demonstrate the manner in which the complaint might be amended." (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Satten v. Webb (2002) 99 Cal.App.4th 365, 374-375.)
In this demurrer review, we independently determine whether the plaintiff-appellant could have stated a cause of action for any relief, "under a consideration of all of the facts pled, considered as true." (Satten v. Webb, supra, 99 Cal.App.4th at pp. 374-375.) Even so, the plaintiff-appellant maintains the burden of showing reversible error (i.e., some reasonable possibility that any defects identified by the defendant could be cured by amendment that would change the legal effect of the pleading). (§ 472c; Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 655-656.) Because Salatino's inaction thus far on bringing any public nuisance claim has effectively waived the issue for our purposes, "we need only discuss whether a cause of action was stated under the theories raised on appeal." (Ibid.; In re Marriage of Stanton (2010) 190 Cal.App.4th 547, 561 [waiver of appellate review].)
Finally, under the applicable legal standards, it was not an abuse of discretion for the trial court to decline to allow amendment, in light of all the circumstances and the sequential manner in which Plaintiff has pursued his numerous theories on access rights. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) On appeal, the judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The trial court properly resolved the legal and discretionary issues presented to it.
DISPOSITION
The judgment is affirmed. Costs are awarded to Respondent.
HUFFMAN, Acting P. J. WE CONCUR:
HALLER, J.
O'ROURKE, J.