Russell v. Barry

Tentative Rulings for Department 6, July 17, 2026

1. CL0002789 Masters Team Mortgage v. Pitts Cross-Complainants Motion to Compel Responses to Form Interrogatories is GRANTED. Responses, without objections, to be served not later than August 28, 2026. Sanctions in the amount of $1,000.00 are awarded to the Moving Parties.

2. CL0003278 LVNV Funding v. Mason Plaintiff’s Motion for Judgment on the Pleadings is GRANTED. Court will sign the Proposed Judgement submitted with the motion.

3. CL0003743 CitiBank v. Keros Defendant’s Motion to Compel Arbitration and Stay Court Proceedings is Granted. For control purposes, The Court sets a Case Management Conference re: Status of Arbitration for November 23, 2026 at 9:00 AM in Department 6. Defendant to prepare an Order After Hearing.

4. CU0001217 Russell v. Barry Motion for Summary Adjudication Cross-Complainants seek summary adjudication of the first cause of action in their Cross complaint for a prescriptive easement over what they call the “Travelled Way” across Cross- Defendants’ property located on Buck Mountain Road in Grass Valley in Nevada County.

Cross- Complainants ask the Court to adjudicate the following issue: Whether Cross-Complainants are entitled to adjudication on their prescriptive easement cause of action because there are no triable issues of fact and Cross-Complainants are entitled to adjudication as a matter of law. Because the Court finds that there are triable issues of a material fact, it answers: No.

For the purposes of a motion for summary judgment or summary adjudication by a Defendant, CCP § 437C(p)(2), provides as follows: A Defendant or Cross-Defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established or that there is a complete defense to the cause of action.

Once the Defendant or Cross-Defendant has met that burden, the burden shifts to the Plaintiff or Cross-Complainant to show that a triable issue of one or more material facts exist as to the cause of action or defense thereto. The Plaintiff or Cross-Complainant shall not rely upon allegations or denials of its pleadings to show that a triable issue affect exists but, instead, shall set forth the specific facts showing that a tribal issue of material fact exists as to the cause of action or a defense thereto. (CCP § 437c (p)(2).)

In order to establish a prescriptive easement, the burden of proof is on the party asserting prescriptive rights. (Connelly v. McDermitt (1994) 162 Cal.App.3d 973, 976.) Summary Adjudication cannot be granted if there are issues of fact in dispute as to an essential element of a claim. (Federal Deposit Inc. Corp. v. Superior Court (1997) 54 Cal.App.4th 337, 344.) For a prescriptive easement to arise in the presence of an express easement, the claimants use must expand beyond the terms of the original grant, giving rise to actionable claim by the land owner for trespass or wrongful use. (McBride v Smith (2018) Cal.App.5th 1181.)

In order to acquire Summary Adjudication on a claim for a prescriptive easement, the Cross- Complainants must show that (1) there is no factual dispute that their use of the Travelled Way was continuous for a period of more than five (5) years; (2) their use was open and -notorious; and (3) hostile and adverse to Plaintiffs. Permissive or neighborly use defeats a claim for a prescriptive easement.

Plaintiffs allege that Cross-Complainants use of the Travelled Way over and across Plaintiffs' property has always been permissive. First, beginning in 1978 parcels 1 and 2 were owned by the sub divider's sister and her husband until 2018, and Cross-Complainant's have not submitted any evidence that E. Neuharth was hostile of adverse to his own sister or her husband. Since Plaintiffs bought parcel one in 2018, the Cross-Complainants and Plaintiffs had been friendly and neighborly with Plaintiffs allowing Cross-Complainants to cross over parcel 1 to access parcels 3 and 4 and the Mudd property. Apparently, the parties all worked together to install an electric gate on parcel one at the starting point for the parcel 1 easement.

Because there is a significant factual dispute as to a critical element for the creation of a prescriptive easement, namely: adverse, hostile and non-permissive use, the Motion for Summary Adjudication is denied. All objections made are overruled. Request for Judicial Notice by Cross-Complainants as to Exhibits A-J is Granted. Counsel for Plaintiffs is directed to prepare an Order After Hearing.

5. CU0001664 Jefferson v. Heating-Cooling Motion to Compel Third Party Group to Comply with Deposition Subpoena for Production of Business Records and for sanctions is GRANTED. The Court will sign the Proposed Order submitted with the motion.

6. CU0002023 Robinson v. Shellpoint Shellpoint’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with leave to amend. Plaintiff’s untimely opposition was considered only in the respect that Plaintiff alleges she is in possession of facts to survive a demurrer and the Court will give her one last opportunity to amend and allow the filing of a Second Amended Complaint. Plaintiff is ordered to file the Second Amended Complaint not later than August 6, 2026. Counsel for Shellpoint to prepare an Order After Hearing.

7. PR0001087 Petition of AG The Order Approving Compromise of a Minor’s Claim Is approved and the Court will sign the Order filed with the Petition.