408 LAVERNE AVE PARTNERS LLC v. LAUREN HIGGINS HANCOCK

City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer, the facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) A complaint must be liberally construed and all reasonable inferences must be drawn in favor of its allegations. (Teva Pharmaceuticals USA, Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 102; see also Code Civ.

Proc., § 452.) The court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Calif. (1990) 51 Cal.3d 120, 125.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The face of the complaint includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v.

Blackwell (1987) 189 Cal.App.3d 91, 94.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 317.) DISCUSSION Procedural Matters Cross-Defendant’s Request for Judicial Notice Exhibits 1-3 and 6: Granted. (Evid.

Code, § 452, subd. (d) [court records].) Exhibits 4 and 7: Granted. (Evid. Code, § 452, subds. (b) [legislative enactments issued by any public entity in the United States]; (c) [official acts]; see also Citizens’ Committee to Complete

the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, 465, fn. 2 [judicially noticing official act of a municipality under these two subdivisions].) Exhibit 5: Denied. A photograph is neither a “fact[]” nor a “proposition[.]” (Evid. Code, § 452, subd. (h).) The Court does not judicially notice the truth or proper interpretation of any of these documents or any statements within them. (See AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313.) Cross-Defendant also requests judicial notice of six facts under Evidence Code, section 452, subdivision (h) (providing for judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”].)

This request is granted as to Facts 1-5, because these amount to requests that the Court acknowledge that other exhibits for which it has already granted judicial notice contain certain language. The Court is not judicially noticing any interpretation of that language. (AL Holding Co., supra, 75 Cal.App.4th 1310, 1313.) The request is denied as to Fact 6 (“Hancock has deeded access to a driveway on her parcel with access to a public street.”). Cross-Defendant’s Counsel’s Misrepresentations of Legal Authority Throughout his briefing, Cross-Defendant’s counsel inaccurately represents the law to the Court.

Here are some examples. Where the Court quotes Cross-Defendant’s moving papers, it is reproducing the text of the papers verbatim.

• Cross-Defendant purports to quote Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384 as follows: “ ‘[A] party cannot avoid the effect of . . . a prior [verified] pleading by simply omitting or contradicting allegations without explanation.’ ” (Memorandum, p. 3.) This language does not appear anywhere in Owens. • Purporting to quote Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1420, Cross- Defendant says the following: “An implied easement requires that ‘at the time of conveyance of the property, the parties intended that an easement exist.’ ” (Memorandum, p. 4.)

The quoted language does not appear anywhere in Thorstrom. • Cross-Defendant purports to quote Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 141 when stating that “[i]ntent is measured ‘at the time of severance’[.]” (Memorandum, p. 4.) The quoted language does not appear anywhere in Tusher. • Cross-Defendant purports to quote either Civil Code, section 801 or Moylan v. Dykes (1986) 181 Cal.App.3d 561, 568 when it says the following: “An easement appurtenant ‘is incapable of existence separate from the particular land to which it is annexed.’ ” (Memorandum, p. 3.)

The quoted language does not appear anywhere in either authority. • Cross-Defendant cites Tschirsky v. Superior Court (1981) 124 Cal.App.3d 534, 538-539 as authority for the proposition that “[q]uasi-legislative acts and findings of local administrative agencies are proper subjects of judicial notice.” (RJN, p. 2.) Throughout the entirety of its pages 538 and 539, and in all footnotes contained within that excerpt, Tschirky is discussing whether the complaint at issue in the case stated a cause of action 3

for libel, including whether the fair comment privilege applied on the face of the complaint, whether the plaintiff pleaded malice, and whether the statement at issue was sufficiently factual to be actionable. Neither the phrase “judicial notice” nor the single word “notice” appears anywhere in Tschirsky. While it is unclear whether the above quotes are hallucinated citations stemming from AI use, when a litigant quotes case law, the litigant is representing to the court that the case contains the quoted language verbatim, without any alterations except as expressly noted by the litigant.

None of these citations are proper and counsel is admonished to provide accurate citations. Lack of a Dominant Tenement Paragraph 9 of Cross-Defendant’s FAC reads as follows: “Defendants owns [sic] an interest in adjacent real property specifically described in Exhibit 2 [APN: 047-112-80]. Defendant’s title rights arise only from a Grant Deed recorded in the Official Records of the County of Marin on 5/2/2022 as Document No.: 2022-0018144 (herein as ‘PARCEL 80’). This property is commonly referred to as 412 Laverne Avenue in Mill Valley, California.” (FAC, ¶ 9.)

In Cross-Complainant’s Verified Answer to the FAC, she denied “the allegations contained in Paragraph 9 of the FAC.” (RJN, Ex. 3 [answer], ¶ 9.) Thus, she has denied that she owns 412 Laverne Avenue. Cross-Defendant contends that this denial defeats Cross-Complainant’s two surviving claims to quiet title, which are based on theories of implied easement and equitable easement. To claim an implied easement, the claimant must be the owner of the property benefiting from the easement. (See Thorstrom, supra, 196 Cal.App.4th 1406, 1420; Romero v.

Shih (2024) 15 Cal.5th 680, 694.) Property ownership is not an element of an equitable easement claim. (See Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 [elements]; Wang v. Peletta (2025) 112 Cal.App.5th 478, 491 [same].) The Court proceeds to assess Cross-Defendant’s argument regarding Cross-Complainant’s answer as to her implied easement claim only. Cross-Defendant provides two theories for why Cross-Complainant’s denial that she owns an interest in 412 Laverne Avenue defeats her implied easement claim: the sham pleading doctrine and judicial estoppel.

The sham pleading doctrine applies where a party attempts to circumvent a pleading defect by amending the pleading and “ ‘omitting relevant facts which made his previous [pleading] defective.’ ” (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 [quoting Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 713].) In that situation, the doctrine requires the plaintiff to explain any “inconsistencies” between their amended pleading and their prior pleading. (Id. at p. 946.)

If they do not, the court can disregard the “inconsistent allegations” in the amended pleading. (Ibid.) The effect is that in considering a demurrer to the amended pleading, “a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ ” (Id. at p. 946 [quoting Potter v. Arizona So. Coach Lines, Inc. (1988) 202 Cal.App.3d 126, 133, fn. 2].) In her cross-complaint, Cross-Complainant alleges that she owns 412 Laverne Ave. (Cross-Complaint, ¶ 1.)

Cross-Defendant argues that in light of the contrary allegation in Cross- Complainant’s answer, the sham pleading doctrine permits the Court to disregard this allegation, in which case Cross-Complainant’s implied easement claim would fail for want of an allegation 4

that she owns the property benefiting from the easement. But the sham pleading doctrine does not permit any contradictions in a party’s pleadings to be resolved against that party. It specifically addresses the situation where a party amends a pleading in a contradictory fashion to circumvent a pleading defect and thereby evade a demurrer. (See Owens, supra, 198 Cal.App.3d 379, 383-384 [cited by Cross-Defendant].) The doctrine does not apply in this case because the cross-complaint is not an amended version of Cross-Complainant’s answer, or vice versa.

The doctrine of judicial estoppel bars a litigant from asserting a position in a legal proceeding that contradicts one they previously took in an earlier proceeding. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) It applies where “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Id. at p. 183.)

The party invoking judicial estoppel has the burden of establishing all of these elements. (See In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1149, fn. 8.) Judicial estoppel does not apply here because Cross-Defendant has not established the third element. Other Attacks on the Implied Easement Claim An implied easement is created “ ‘when, at the time of conveyance of property, the following conditions exist: 1) the owner of property conveys or transfers a portion of that property to another; 2) the owner’s prior existing use of the property was of a nature that the parties intended or believed that the use would continue[,] meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and 3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.’ ” (Thorstrom, supra, 196 Cal.App.4th 1406, 1420 [quoting Tusher, supra, 68 Cal.App.4th 131, 141-142; Romero, supra, 15 Cal.5th 680, 694.)

Accordingly, to prevail on her claim to quiet title in the disputed area of the driveway under an implied easement theory, Cross-Complainant will have to establish that when she purchased 412 Laverne Avenue from Harris, she and Harris intended that she would use this portion of the driveway to access the public road from 412 Laverne. Cross-Defendant contends that material the Court has judicially noticed establishes that when he sold 412 Laverne Avenue to Cross-Complainant, Harris did not intend that she use the portion of driveway on 408 Laverne to access 412 Laverne.

Cross-Defendant relies on Marin County Deputy Zoning Administrator Resolution No. 20-113, adopted March 12, 2020. (RJN, Ex. 4 (“Resolution No. 20-113”).) The resolution constitutes Marin County’s approval of the subdivision of Harris’ property along Laverne Avenue. It contains language suggesting that at the time of the subdivision, Harris planned to dedicate the existing driveway to “Parcel 2” (now Cross-Defendant’s 408 Laverne Avenue) and build a new driveway serving “Parcel 1” (now Cross-Complainant’s 412 Laverne Avenue). (See RJN, Ex. 4, pp. 4-5, ¶¶ 7(A)(1), 7(A)(4).)

For purposes of an implied easement, the grantor’s intent is assessed as of the time he conveyed a portion of his property to the party claiming the implied easement. (Thorstrom, supra, 196 Cal.App.4th 1406, 1420 [implied easement requires that three conditions existed “at the time of conveyance of property”] [quoting Tusher, supra, 68 Cal.App.4th 131, 141-142]; see also Kytasty v. Godwin (1980) 102 Cal.App.3d 762, 769 [implied easements can only exist “ ‘in connection with a conveyance’ ”; whether one exists “ ‘depends on the intent of the parties’ ” to 5

that conveyance, and intent is determined by reference to “ ‘the circumstances attending the transaction’ ”] [quoting Orr v. Kirk (1950) 100 Cal.App.2d 678, 681].) Cross-Defendant contends that “[i]ntent is measured ‘at the time of severance’ ” and argues that the relevant “severance” is the subdivision – Harris’ severance of his single parcel along Laverne Avenue into two smaller parcels. (Memorandum, p. 4.) While some cases do use the word “severance” when describing the time at which intent is assessed for purposes of an implied easement claim, these cases are referring to the severance of ownership that occurs when the grantor sells a portion of his property to the grantee that later claims the implied easement. (See, e.g., Orr, supra, 100 Cal.App.2d 678, 681 [“The elements necessary to create a ‘quasi easement’ or grant by implication, upon severance of unity of ownership in an estate, are . . .”] [emphasis added].)

These cases are referring to the time of the conveyance even if they use the word “severance.” Resolution No. 20-113 was adopted in March 2020. Harris’ sale of 412 Laverne Avenue to Cross-Complainant allegedly took place over two years later. (Cross-Complaint, ¶ 10.) Even if judicially noticing Cross-Defendant’s Exhibit 4 permitted the Court to accept its statements regarding Harris’ plans as true (it does not [AL Holding Co., supra, 75 Cal.App.4th 1310, 1313]), this document is not capable of establishing that at the time of Harris’ sale to Cross-Complainant, he did not intend that she use the driveway over 408 Laverne to access Laverne Avenue from her new home.

Harris’ intent at the time he subdivided his parcel along Laverne Avenue into 408 and 412 Laverne has no legal significance to the existence of an implied easement. When he sold 412 Laverne Avenue to Cross-Complainant, Harris granted her two easements over Parcel 2/408 Laverne Avenue, one for sanitary sewer purposes and one for utility purposes. (See Cross-Complaint, Ex. 1 [deed].) Cross-Defendant argues that the omission of an easement permitting use of the portion of driveway over 408 Laverne Ave. conclusively establishes that at the time of the sale, Harris did not intend Cross-Complainant to have a right to use the driveway.

The Court is not allowed to weigh evidence and make a determination as to Harris’ intent at this stage of the litigation. Harris’ omission of a driveway easement from the deed is not so inconsistent with Cross-Complainant’s allegations that it compels dismissal of her implied easement claim at the demurrer stage. Cross-Defendant may introduce the deed as evidence and argue about the significance of this omission later. Finally, Cross-Defendant suggests that Cross-Complainant is legally barred from mounting a legal challenge to Resolution No. 20-113.

Cross-Defendant’s theory here is that because Resolution No. 20-113 allocated ownership of the driveway at issue to Parcel 2/408 Laverne Ave., Cross-Complainant’s claim that she has an easement over the driveway amounts to a challenge to Resolution No. 20-113. This argument is inconsistent with the nature of an easement. Cross-Complainant is not trying to wrest ownership of the driveway from Cross- Defendant. She is acknowledging that the disputed area belongs to Cross-Defendant and claiming a legal right to use it notwithstanding that someone else owns it. (Cross-Complaint, ¶¶ 13, 18-19; see Moylan, supra, 181 Cal.App.3d 561, 568 [definition of an easement].)

Even assuming the owner of 408 Laverne Avenue owns the driveway by virtue of Resolution No. 20- 113, Cross-Complainant’s easement claims are consistent with that ownership and so do not challenge the resolution. If what Cross-Defendant is actually contending here is that Resolution No. 20-113 permanently reserved even mere use of the driveway exclusively for the owner of 408 Laverne and forever prohibited anyone else from acquiring a legal right to use it, even with Harris’ consent as the then-owner of 408 Laverne, that is a dubious claim.

Relatedly, Cross-Defendant suggests that Cross-Complainant’s easement claims run afoul of certain “conditions” of Marin County’s approval of Harris’ subdivision of his property: that the existing driveway would be dedicated to Parcel 2/408 Laverne Ave. and a new one would be constructed to serve Parcel 1/412 Laverne Ave. On the materials presented, the Court is not convinced that the County conditioned approval of the subdivision on an eternal promise that no one other than the owner of 408 Laverne would ever use the driveway.

Assuming that a condition of the County’s approval was that the driveway would belong to the owner of 408 Laverne Avenue, Cross-Complainant’s easement claims do not run afoul of that condition. The implied easement claim survives demurrer. Second Cause of Action – Quiet Title: Equitable Easement An equitable easement is a property interest a court has discretion to create in favor of a trespasser in certain cases. Where a trespasser shows that the trespass was innocent, that the hardship to the trespasser from having to cease the trespass is greatly disproportionate to the hardship to the property owner if the trespass continues, and that neither the public nor the property owner will be irreparably injured by granting the trespasser an easement, the court has discretion to force the property owner “to accept damages as compensation for the judicial creation of an easement over the trespassed-upon property in the trespasser’s favor” instead of ordering the trespass to cease. (Shoen, supra, 237 Cal.App.4th 16, 19; Wang, supra, 112 Cal.App.5th 478, 491.)

Cross-Defendant argues that to obtain an equitable easement, the party seeking the easement must have encroached on the other party’s land specifically by placing a permanent physical structure on the land, not merely by using the land for access purposes. (Memorandum, p. 6.) Cross-Defendant cites Shoen, supra, 237 Cal.App.4th 16, 20 for the proposition that “equitable easements have only been granted ‘in cases involving permanent physical encroachments such as buildings . . . walls . . . reservoirs . . . and utility lines’ ” and that an encroachment amounting to mere “use” of someone else’s land is not enough. (Memorandum, p. 6.)

The portion of Shoen Cross-Defendant is citing here suggests that the case in favor of an equitable easement is strongest in cases of permanent physical encroachment and “intermittent trespasses necessary to access landlocked parcels of property[,]” because those are the cases in which ceasing the encroachment is most costly and least feasible for the trespasser. (237 Cal.App.4th 16, 20.) Not only does Shoen in no way state that equitable easements are “only” (Memorandum, p. 6) available in cases of fixed encroaching structures, it expressly supports the idea that an intrusion of the type Cross-Complainant alleges is a compelling case for an equitable easement. (See also Tashakori v.

Lakis (2011) 196 Cal.App.4th 1003, 1014 [affirming grant of an equitable easement permitting the grantee to use a shared driveway over a portion of the other party’s property].) The other case Cross-Defendant offers to support its claims about the nature of the encroachment required for an equitable easement (Hirschfield v. Schwartz (2001) 91 Cal.App.4th 749) likewise does not do so. Cross-Defendant contends that Cross-Complainant has not pleaded that her use of the driveway over 408 Laverne Ave. was innocent. (See Shoen, supra, 237 Cal.App.4th 16, 19.)

Cross-Complainant pleaded that she used this portion of the driveway under a belief that her purchase of 412 Laverne included a right to such use, and she also pleaded facts supporting the reasonableness of that belief. (Cross-Complaint, ¶¶ 8-11.) That Cross-Complainant is charged with constructive knowledge that the disputed portion of driveway does not belong to her 7

(Memorandum, p. 7), even if true, does not undercut her allegations of innocent use. She can understand that the driveway does not legally belong to her and still reasonably believe that she has a right to use it to access her house. Cross-Complainant’s allegations that she has no practical way of accessing her house other than by using the disputed portion of the driveway (Cross-Complaint, ¶¶ 6, 9) and that she and others have made such use for years without issue (id. at ¶¶ 8, 10-11) sufficiently plead that the hardship inherent in her ceasing use of the driveway is “ ‘greatly disproportionate’ ” to the hardship to Cross-Defendant of her continuing to use it. (Shoen, supra, 237 Cal.App.4th 16, 19 [quoting Tashakori, supra, 196 Cal.App.4th 1003, 1008].)

Cross-Complainant is not required to somehow divine Cross-Defendant’s plans for the property and plead that her own hardship is greater in light of those plans. Cross-Defendant’s argument that she has insufficiently pleaded hardship is based on material the Court has declined to judicially notice. Cross-Defendant argues that Cross-Complainant has not pled irreparable injury, but a party seeking an equitable easement is not required to show irreparable injury, as distinguished from disproportionate hardship. (See Shoen, supra, 237 Cal.App.4th 16, 19 [elements]; see also Hirshfield v.

Schwartz (2001) 91 Cal.App.4th 749, 761 [describing cases discussing the doctrines of “balancing of conveniences” and “relative hardships,” both of which are just alternate terms for the equitable easement doctrine, as using the term “irreparable injury” “only as shorthand for the substantial hardship the encroacher must endure when balanced against the lesser hardship to the plaintiff”].) Finally, Cross-Defendant suggests that the Court cannot grant Cross-Complainant an equitable easement to use the driveway because Marin County approved the subdivision of Harris’ land on the condition that the existing driveway would be dedicated to Parcel 2/408 Laverne Ave.

Assuming for purposes of argument that this was a condition of the County’s approval, the Court is not convinced that permitting Cross-Complainant an easement to use the driveway violates that condition, and Cross-Defendant has not provided any legal authority to support the idea that the conditions of the subdivision bar the Court from giving Cross- Complainant an equitable easement. Fifth Cause of Action – Declaratory Relief Cross-Defendant’s challenge to this cause of action is derivative of its attacks on the easement claims, which have failed.

Its challenge to this declaratory relief claim thus fails as well. All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for June 2026 is as follows: https://marin-courts-cagov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1 Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov

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