9:01
LINE: 10 & 11
CIV531711???? DOUGLAS LEE, ET AL. VS. CHRISTOPHER HARTMAN
DOUGLAS LEE??????????????????????????? EDWARD EGAN SMITH
CHRISTOPHER HARTMAN??????????????????? JOSEPH C. MCGOWAN, JR.
- MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OF ISSUES
TENTATIVE RULING:
The Motion of Defendant Christopher Hartman (?Defendant?) for Summary Judgment, or in the alternative, Summary Adjudication, to the Second Amended Complaint (?SAC?) of Plaintiffs Douglas Lee and Helen Tang (?Plaintiffs?), is ruled on as follows:
(1) Defendant?s motion for summary judgment is DENIED, for the reasons explained below.
(2) Defendant?s motion for summary adjudication to the Second Cause of Action for Declaratory Relief – Express Easement is DENIED.? A triable issue of material fact exists as to whether a portion of the parking area is covered by the express easement.? (See Plaintiffs? Response to Defendant?s Undisputed Material Facts nos. 7-9; Plaintiffs? Additional Facts no. 5; MacLeod Decl., ? 4.)? Also, the express easement allows ?ingress and egress and driveway purposes.??(See Defendant?s Undisputed Material Fact no. 5.)? Therefore, a triable issue of fact also exists as to whether parking and other uses, such as storage of trash cans, are permitted under the express easement as ?driveway purposes? and whether such permission includes the parking area. (See Plaintiffs? Response to Defendant?s Material Fact no. 9.)? Plaintiff also raises triable issues of fact as to whether there is sufficient room to allow for both parking as well as ingress and egress of vehicles within the express easement.? (See Plaintiffs? Response to Defendant?s Undisputed Material Fact nos. 10, 11; Plaintiffs? Additional Facts nos. 2-4.)?Additionally, a triable issue of fact exists as to whether Defendant has unreasonably interfered with Plaintiffs?? use of the express easement by failing to re-pave the parking area.? (See Plaintiffs? Response to Defendant?s Undisputed Material Fact nos. 14-18, except as to portion of Plaintiff Tang?s declaration to which Defendant?s evidentiary objection has been sustained.)
(3) Defendant?s motion for summary adjudication to the Third Cause of Action for Declaratory Relief ? Prescriptive Easement, is DENIED.? A party claiming a prescriptive easement must prove that his use of the land was (1) open and notorious; (2) hostile to the true owner; (3) under a claim of right; and (4) continuous and uninterrupted for five years.? (Civil Code ? 1007; Code Civ. Proc. ? 321; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090.)? Triable issues of material fact exist as to whether Plaintiffs? use of the parking area allegedly not encompassed by the express easement, was open and notorious, hostile and under a claim of right.? (See Plaintiffs? Response to Defendant?s Undisputed Material Fact nos. 19, 24.)
(4) Defendant?s motion for summary adjudication to the Fourth Cause of Action for Declaratory Relief ? Equitable Easement, is DENIED.? The elements of a claim for equitable easement are: (1) plaintiffs innocently used and improved the property; (2) the property owner will not suffer irreparable injury by the creation of the easement; and (3) the hardship to the plaintiffs will be greatly disproportionate to the hardship the landowner will face if the use of the easement continues.? (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1009.)? Plaintiffs? evidence creates a triable issue of fact as to whether Plaintiffs will suffer hardship greatly disproportionate to Defendant?s hardship if use of the easement were to continue.? (See Plaintiffs? Response to Defendant?s Undisputed Material Facts nos. 25-29, except as to portion of Plaintiff Tang?s declaration to which Defendant?s evidentiary objection has been sustained; see also Plaintiffs? Additional Facts nos. 13-18, 20, 21.)
(5) Defendant?s motion for summary adjudication to the Fifth Cause of Action for Nuisance, is DENIED.? A private nuisance is the unreasonable, unwarrantable or unlawful use by an individual of his own property so as to interfere with the rights of others. (Hutcherson v. Alexander(1968) 264 Cal.App.2d 126, 130.). For the same reasons discussed above as to Plaintiffs? second, third and fourth causes of action, triable issues of fact exist as to whether there is an express, prescriptive or equitable easement over the parking area such that Defendant?s failure to re-pave the parking area and blocking of Plaintiffs? access to the parking area, constituted a nuisance.? (See Plaintiff?s Response to Defendant?s Undisputed Material Facts no. 30, except as to portion of Plaintiff Tang?s declaration to which Defendant?s evidentiary objection has been sustained.)
(6) Defendant?s motion for summary adjudication to the Sixth Cause of Action for Slander ofTitle, is GRANTED.? The elements of a slander of title claim are: (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss.? (Sumner Hill Homeowners? Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.)? Plaintiffs allege that Defendant has published false statements disparaging Plaintiffs? title to their property by representing or implying that Plaintiffs hold no easement over the parking area.?(See Plaintiffs? SAC, ? 32.)? Plaintiffs claim that Defendant made such representations to third party paving contractor, Chris Quinn (?Quinn?).? (Id.)
In this motion, Defendant presents evidence to meet his burden of establishing that no triable issue of fact exists as to this claim because Defendant made no publication that was false regarding Plaintiffs? title to their property. Defendant only told Quinn not to re-pave the parking area, and Quinn did not know why the parking area was not being repaved.? (See Defendant?s Undisputed Material Fact no. 33.)
In opposition, Plaintiffs contend that Defendant erected and maintained barriers to Plaintiffs? entry to the parking area, which constituted a slander of title that caused Plaintiffs damage, similar to Sumner Hill Homeowners? Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th999.? The facts in Sumner Hill Homeowners’ Assn., Inc., supra, are distinguishable.? The defendant developer in Sumner Hill Homeowners’ Assn., Inc., recorded a Notice of Permission that asserted that defendant had control over the use of the road, restricted access to daytime hours and did not allow vehicles, which allegedly interfered with the plaintiffs? rights to the road under an easement.? (Id. at 1027-1030.)? Here, Plaintiffs have not presented evidence to support a similar publication that was false by Defendant.? Plaintiffs? have not produced any evidence to raise a triable issue as to Quinn?s testimony that he was simply told not to re-pave the parking area and did not know why the parking area was not being repaved.? (See Plaintiffs? Response to Defendant?s Undisputed Material Fact no. 33.)? Further, what makes conduct actionable for slander of title is not whether a defendant succeeds in casting a legal cloud on plaintiff’s title, but whether the defendant could reasonably foresee that the false publication might determine the conduct of a third person buyer or lessee.? (Truck Ins. Exch. v. Bennett(1997) 53 Cal.App.4th 75, 84.)? Plaintiffs fail to raise a triable issue of material fact as to this claim.?
(7) Defendant?s motion for summary adjudication to the Seventh Cause of Action for Breach ofContract, is DENIED.? Triable issues of fact exist as to whether the contract included that the parties share the cost of repaving the parking area, and therefore as to whether Defendant breached the contract by instructing Bay Area Paving not to repave the parking area.? (See Plaintiffs? Response to Defendant?s Undisputed Material Facts nos. 37-40, except as to portion of Plaintiff Lee?s Declaration to which Defendant?s objection has been sustained.)?
?
(8) Defendant?s motion for summary adjudication to the Eighth Cause of Action for NegligentMisrepresentation, is DENIED.? The elements of a claim for negligent misrepresentation are: (1) a false statement of material fact that the defendant believes to be true, but made without reasonable grounds for such belief; (2) made with the intent to induce reliance; (3) reasonable reliance on the statement; and (4) damages.? (Century Surety Co. v. Crosby Ins., Inc. (2004) 124 Cal.App.4th 116, 129.)? Defendant claims that there was no discussion between Defendant and Plaintiff Lee regarding repaving the parking area, which is disputed by Plaintiffs.? (See Plaintiffs? Response to Defendant?s Undisputed Material Fact no. 43, except as to portion of Plaintiff Lee?s Declaration to which Defendant?s objection has been sustained.)? Thus, a triable issue exists to this claim.?
?
Defendant further contends that this claim fails because it is identical to Plaintiffs? breach of contract claim, and Plaintiffs have not alleged any independent duty to support this tort claim.? However, the same act may be both a breach of contract and a tort.? (Perry v. Robertson(1988) 201 Cal.App.3d 333, 340.)? ?Even where there is a contractual relationship between parties, a cause of action in tort may sometimes arise out of the negligent manner in which thecontractual duty is performed….?? (Id.)? When such a hybrid cause of action arises, the plaintiff may pursue both legal theories of recovery until an occasion for an election of remedies arises.? (Id.)?
?
(9) Defendant?s motion for summary adjudication to the Ninth Cause of Action for Declaratory Relief ? Maintenance of Improvements, is DENIED.? There are triable issues of fact as to the scope of Plaintiffs? easement rights and the cost sharing for the repaving between Plaintiffs and Defendant.? (See Plaintiffs? Response to Defendant?s Undisputed Material Facts no. 44, except as to portion of Plaintiff Lee?s Declaration to which Defendant?s objection has been sustained.)
?
(10) Defendant?s motion for summary adjudication to the First Cause of Action to Quiet Title, is DENIED.? Plaintiffs seek to quiet title to their easement.? Thus, for the same reasons discussed above as to Plaintiffs? second, third and fourth causes of action, triable issues of material fact exists regarding the easement. (See Plaintiffs? Response to Defendant?s Undisputed Material Facts nos. 5, 7, 9, 10, 11, 14-18, 19, 24-29, except as to evidence to which Defendant?s objections have been sustained; see also Plaintiff?s Additional Facts nos. 13-18, 20, 21.)
(11) Plaintiffs? Evidentiary Objections to Defendant?s Supporting Evidence, are ruled on as follows:
Objection nos. 1, 3, 4, 5, 7, 9, 13-16 and 18, are OVERRULED.
Objection no. 2 is SUSTAINED in part as to ?which I am informed and believe is the grant deed of 141 Glen Aulin to my parents? based on lack of personal knowledge.? The remainder is OVERRULED.
Objection nos. 6 is SUSTAINED as an inappropriate legal conclusion.
?
Objection no. 8 is SUSTAINED in its entirety.
?
Objection nos. 10 and 11 are SUSTAINED, pursuant to Evidence Code section 1523(a), on the ground that oral testimony is not admissible to prove the content of a writing.
?
Objection no. 12 is SUSTAINED as an inappropriate legal conclusion to the extent that Defendant testifies to what the easement allows.? The remainder is OVERRULED.
Objection no. 17 is SUSTAINED on the ground of lack of personal knowledge.
(12) Defendant?s Evidentiary Objections to Plaintiffs? Opposition Evidence, are ruled on as follows:
Objection nos. 1, 4, 5, 6, 7 and 8, are OVERRULED.
Objection nos. 2? and 3 are SUSTAINED.
Objection no. 9 is SUSTAINED as to ?I do not believe that the Parking Area is visible from the residence on the Hartman Property? on the ground of speculation.? The remainder of the objection is OVERRULED.
?
Plaintiff is directed to prepare a written order consistent with the Court?s ruling for the Court?s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.? The order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.?
?
- MOTION FOR SUMMARY ADJUDICATION OF ISSUES
TENTATIVE RULING:
?
The Motion of Cross-Defendants Douglas Lee and Helen Tang (“Cross-Defendants”) for Summary Adjudication to the Cross-Complaint of Defendant/Cross-Complainant Christopher Hartman (“Cross-Complainant”) is ruled on as follows:
?
Cross-Defendants’ motion for summary adjudication to the Third Cause of Action for Slander of Title, is GRANTED. The elements of a slander of title claim are: (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss.? (Sumner Hill Homeowners? Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.)? Cross-Defendants have met their burden of establishing that no triable issue of fact exists to this claim because the filing of this action and the related lis pendens are privileged. (See La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 472; Civil Code 47(b); Cross-Defendants? Undisputed Material Facts nos. 7-9.) Cross-Complainant does not oppose the motion to this claim, and therefore fails to raise a triable issue.
?
Cross-Defendants’ motion for summary adjudication to the Fourth Cause of Action for Equitable Subrogation, is DENIED.? The elements of a claim for equitable subrogation are:? (1) payment must have been made by the subrogee to protect his own interest; (2) the subrogee must not have acted as a volunteer; (3) the debt paid must be one for which the subrogee was not primarily liable; (4) the entire debt must have been paid; and (5) subrogation must not work any injustice to the rights of others.? (Grant v. de Otte (1954) 122 Cal. App. 2d 724, 728.)? There is a triable issue of fact as to whether the amount paid on the contract was a debt for which Cross-Complainant, the subrogee, was primarily liable. (See Cross-Complainant’s Response to Cross-Defendants’ Undisputed Material Facts no. 13; see also Cross-Complainant’s Additional Facts nos. 1-7.)
?
Cross-Defendant is directed to prepare a written order consistent with the Court?s ruling for the Court?s signature, pursuant to California Rules of Court, Rule 3.1312, and provide notice thereof to the opposing party/counsel as required by law and the California Rules of Court.? The order is to be submitted directly to Judge Jonathan E. Karesh, Department 20.?