Marian Jean v. James Michael McCoy, et al.

After a dispute arose pertaining to upkeep of the fence and pest control activities, Plaintiff retained a professional in 2025 to conduct a property survey (Survey). (Compl., P.P. 11-12.) Plaintiff discovered that the wooden fence was entirely on Plaintiff's property. (Compl., P. 13.) Defendants recently erected chicken wire fencing that extends the wooden fence line and further excludes Plaintiff from portions of her property. (Compl., P.P. 14, 22.)

There has never been any agreement that the wooden fence is actually the property boundary. (Compl., P. 16.) Before the current dispute, the parties never discussed this issue. (Ibid.) Plaintiff wants the fencing removed from the current location on Plaintiff's property and notified Defendants that Plaintiff intended to relocate the fence so that it does not improperly encroach on Plaintiff's property. (Compl., P. 17.) Defendants were not asked to pay for or contribute to this work. (Ibid.) Defendants dispute the Survey results and have suggested that the portion of Plaintiff's property where the fence is currently located belongs to Defendants under the doctrine of adverse possession or estoppel. (Compl., P. 18.)

Defendants filed a demurrer as to all causes of action arguing that the complaint fails to allege sufficient facts to state a cause of action, that this action is barred by the statute of limitations, and that Plaintiff consented to the fencing as the property boundary. Plaintiff opposes the demurrer and argues that the elements of each cause of action have been alleged. Analysis (1) Standard on Demurrer "Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we ... assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.]

It is error for the trial Court to sustain a demurrer if the Plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the Court to sustain a demurrer without leave to amend if the Plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247 (California Logistics)). "The reviewing Court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v.

National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.) "[I]n ruling on a demurrer the trial Court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.) (2) Quiet Title and Declaratory Relief (First and Fourth Causes of Action) "The complaint [for quiet title] shall be verified and shall include all of the following: "(a) A description of the property that is the subject of the action.

In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. "(b) The title of the Plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. "(c) The adverse claims to the title of the Plaintiff against which a determination is sought. "(d) The date as of which the determination is sought.

If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. "(e) A prayer for the determination of the title of the Plaintiff against the adverse claims." (Code Civ. Proc., Sec. 761.020.) Here, the complaint describes the property at issue (Compl., P.P. 1, 26-28, & Ex. A), states Plaintiff's title to the property at issue (ibid.), alleges Defendants' adverse claim against which a determination is sought (id., P.P. 2, 16-18, 29 & Ex.

B), clarifies that the claim is being made as of the date Plaintiff filed the complaint (id., P.P. 29-30), and a provides a prayer for determination of title (ibid.). Plaintiff's property is also sufficiently described in the complaint. While the meets and bounds of the disputed wooden fence and chicken wire fence are not set forth in the complaint and the disputed Survey is not attached, Plaintiff's property and Defendant's property are described with sufficient particularity by way of the recorded legal descriptions. (Compl., P.P. 1-2, Exs.

A-B.) "In pleadings to quiet title it is sufficient if from the description given a competent surveyor can locate the land on the ground with or without the aid of extrinsic evidence." (Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 36 (Warren).) In the context of adverse possession, one Court determined it was sufficient to describe the boundaries of the property to which title is at

issue even if the disputed portion of that property is not described with particularity in the complaint or judgment. (See Anderson Cottonwood Irr. Dist. v. Zinzer (1942) 51 Cal.App.2d 587, 591-592.) The Court finds the description of Plaintiff's property in the complaint sufficient at the pleading stage because it appears on the face of the complaint and attachments that the real property at issue and the disputed fencing can be identified by a surveyor with or without the aid of extrinsic evidence. (Warren, 19 Cal.App.3d at p. 36.)

The complaint does not, as argued by Defendants, allege as a matter of law that Plaintiff consented to the wooden fence as the property boundary. Rather, the complaint alleges that "[t]he parties have never discussed, and Plaintiff has never acknowledged or agreed, either orally or in writing, that the location of the existing wood fence constitutes the legal property line between 1420 Pacific Avenue and 1419 Santa Rosa Avenue." (Id., P. 16.) "Plaintiff did not consent to Defendants' entry, occupation, or placement of structures upon her Property." (Id., P. 39.)

Defendants may argue that Plaintiff consented to the fence boundary based on the Plaintiff's conduct in splitting the cost of replacing the wooden fence in 2013 (id., P. 9), but consent is not established by these allegations as a matter of law. Under a reasonable reading of the complaint, Plaintiff agreed to split the cost of the existing fence in 2013 but did not agree to change the property boundary from the recorded legal description. (Id., P.P. 7-23.) For all these reasons, the elements of quiet title have been alleged. (Code Civ.

Proc., Sec. 761.020.) Declaratory relief as to title has also been alleged for the same reasons. (See Code Civ. Proc., Sec. 1060.) (3) Statute of Limitations Re Quiet Title and Declaratory Relief "No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the Plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action." (Code Civ.

Proc., Sec. 318.) "The requirement of seisin or possession is met when it is established that the Plaintiff was possessed of legal title, and this seisin can be destroyed only by establishing the fact that a title by adverse possession was acquired by the Defendant." (Tobin v. Stevens (1988) 204 Cal.App.3d 945, 949.) Here, Plaintiff alleges title to the property within the five years prior to the filing of the complaint. (Compl., P.P. 1, 26-28, & Ex. A.) Adverse possession is not established on the face of the complaint because, among other reasons, there are no allegations that Defendants paid the taxes on the disputed property. (See Main Street Plaza v.

Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054; Compl., P. 20.) For all these reasons, the quiet title cause of action and the claim for declaratory relief on the basis of title are not barred by the statute of limitations. (Code Civ. Proc., Sec. 318.) (4) Trespass (Second Cause of Action) "The elements of trespass are: (1) the Plaintiff's ownership or control of the property; (2) the Defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the Defendant's conduct was a substantial factor in causing the harm." (Ralphs Grocery Co. v.

Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 (Ralphs).) "The cause of action for trespass is designed to protect possessory --not necessarily ownership--interests in land from unlawful interference. [Citations.] The proper Plaintiff in an action for trespass to real property is the person in actual possession; no averment or showing of title is necessary. [Citations.] 'In an action of trespass upon real property Plaintiff must prove the fact of his possession of the premises, ...[.]' [P.] [However, while a]n action for trespass may technically be maintained only by one whose right to possession has been violated [citations] ... an out-of-possession property owner may recover for an injury to the land by a trespasser which damages the ownership interest. [Citations.]

In our view, the inquiry in a case involving unlawful intrusion on property rights should focus upon the nature of the injury and the damages sought: If the right to possession has been abridged and possessory rights damaged, the possessor may complain by way of an action for trespass; if, on the other hand, an intruder harms real property in a manner which damages the ownership interest, the property owner may seek recovery whether the cause of action be technically labeled trespass or some other form of action, such as waste." (Smith v.

Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774-775.) Here, the complaint alleges that Plaintiff owns the disputed property at issue (Compl., P.P. 1, 26-28, & Ex. A), Defendants refused to permit Plaintiff to remove the fencing on Plaintiff's property (id. at 18), the fence exceeds Plaintiff's permission (id. at P.P. 16, 17, 39), Plaintiff's property was devalued (id. at P. 41), and causation (ibid.). The elements of trespass have been alleged. (See Ralphs, supra., 17 Cal.App.5th at p. 262.) Moreover,

whether the entire cause of action is one of trespass, one of waste, some combination thereof, or some other label, "[i]t is error for the trial Court to sustain a demurrer if the Plaintiff has stated a cause of action under any possible legal theory ...." (California Logistics, supra, 161 Cal.App.4th at p. 247). The Court will overrule the demurrer. (5) Private Nuisance (Third Cause of Action) "Plaintiff[] attempt[s] to state a cause of action for private nuisance, i.e., a nontrespassory interference with the private use and enjoyment of land. (See Civ.

Code, Sec.Sec. 3479-3481.) In distinction to trespass, liability for nuisance does not require proof of damage to the Plaintiff's property; proof of interference with the Plaintiff's use and enjoyment of that property is sufficient. [Citation.] In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements." (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) "[T]he Supreme Court outlined the elements of an action for private nuisance.

First, the Plaintiff must prove an interference with his use and enjoyment of his property. [Citation.] Second, the invasion of the Plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the Plaintiff to suffer 'substantial actual damage.' [Citation.] Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable' [citation], i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. "The requirements of substantial damage and unreasonableness are not inconsequential.

These requirements stem from the law's recognition that: Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together.

The very existence of organized society depends upon the principle of 'give and take, live and let live,' and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. Liability ... is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation. "Both elements are to be judged by an objective standard.

Thus, with respect to the substantial damage element, the degree of harm is to be measured by the 'effect ... the invasion [would] have on persons of normal health and sensibilities living in the same community.' [Citation.] If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular Plaintiff may make it unendurable to him. [Citation.] With respect to the unreasonableness element, [t]he primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the Defendant's conduct, taking a number of factors into account. [Citation.]

Again the standard is objective: the question is not whether the particular Plaintiff found the invasion unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. [Citation.] ... Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case." (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263 (Mendez), internal quotation marks omitted.)

Here, the complaint alleges that the fencing at issue is depriving Plaintiff of the use and enjoyment of a portion of Plaintiff's property. Plaintiff cannot maintain, access, or improve part of her property because of the fencing and Defendants' position that the entire area on Defendants' side of the fence is Defendants' property. (Compl., P.P. 46-48.) These allegations meet the objective elements of interference with use and enjoyment, substantial damage, and unreasonableness at the pleading stage. (See Mendez, supra, 3 Cal.App.5th at pp. 262-263.)

The elements of private nuisance have been alleged. (6) Statute of Limitations Re Trespass and Private Nuisance "[I]t is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate Courts treat the demurrer as admitting all material facts properly pleaded and (2) resolution of the statute of limitations

issue can involve questions of fact. Furthermore, when the relevant facts are not clear such that the cause of action might be, but is not necessarily, time-barred, the demurrer will be overruled. [Citation.] Thus, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed." (Schmier v. City of Berkeley (2022) 76 Cal.App.5th 549, 554 (Schmier).) "To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the 'gravamen' of the cause of action. [Citations.]

Where negligent conduct has caused injury to real property, the gravamen of the cause of action is the injury to the real property. [Citation.] In such circumstances, the three-year statute of limitations [in Code of Civil Procedure section 338, subdivision (b),] applies. [Citation.] [I]t is the underlying injury and not the legal theories of recovery superimposed on the injury that dictates the applicable statute of limitations. [Citations.]" (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 650, internal quotation marks omitted.)

Here, the injuries are for damage to property value, loss of real property, and related damages pertaining to loss of use and enjoyment of real property. Thus, the three-year statute for "[a]n action for trespass upon or injury to real property" applies. (Code Civ. Proc., Sec. 338, subd. (b).) As to accrual, "[w]here a nuisance is of such character that it will presumably continue indefinitely it is considered permanent, and the limitations period runs from the time the nuisance is created. [Citations.]

On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character. [Citations.]" (Kahn v. Price (2021) 69 Cal.App.5th 223, 238.) " 'In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the Plaintiff must bring successive actions.['] [Citations.] 'With respect to a permanent nuisance, the statute of limitations begins to run on the creation of the nuisance and bars all claims after its passage ... .' [Citation.]

By contrast, 'each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based upon the new injury.['] [Citations.] Thus, if a trespass or nuisance is continuing, 'an action may be brought at any time to recover the damages which have accrued within the statutory period, although the original trespass occurred before that period.' [Citation.] The same principles apply whether the wrongdoing is characterized as a nuisance or trespass." (Madani v.

Rabinowitz (2020) 45 Cal.App.5th 602, 608, internal quotation marks omitted (Madani).) "[T]he 'crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated.' [Citations]. Under this test, sometimes referred to as the 'abatability test' [citation], a trespass or nuisance is continuing if it 'can be remedied at a reasonable cost by reasonable means.' " (Madani, supra, 45 Cal.App.5th at pp. 608-609.) Here, the alleged nuisance and trespass is the fencing.

It is not clear on the face of the complaint that the fencing cannot be discontinued or abated, or cannot be remedied at a reasonable cost by reasonable means. The complaint alleges that Plaintiff agreed to pay for the cost of moving the fence. (Compl., P. 17.) As alleged, the nuisance and trespass claims are within the three-year statute based on a continuing nuisance theory. It is not clear from the face of the complaint and matters subject to judicial notice that these claims are time barred. (See Schmier, supra, 76 Cal.App.5th at p. 554.) (7) Elder Abuse (Sixth Cause of Action) "The Elder Abuse and Dependent Adult Civil Protection Act [Act] ... was enacted to protect elders, defined as 'any person residing in this state, 65 years of age or older' ... and dependent adults from abuse and neglect. [Citation.]

The Act protects against both '[p]hysical abuse' and '[f]inancial abuse.' " (Ring v. Harmon (2021) 72 Cal.App.5th 844, 852.) Financial elder abuse is defined by statute. (Welf. & Inst. Code, Sec.Sec. 15610.30, 15657.5.) "Where it is proven by a preponderance of the evidence that a Defendant is liable for financial abuse ... in addition to compensatory damages ... the Court shall award to the Plaintiff reasonable attorney's fees and costs." (Welf. & Inst. Code, Sec. 15657.5, subd. (a).) Financial abuse occurs when a person "[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both." (Welf. & Inst.

Code, Sec. 15610.30, subd. (a)(1).) "A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the

person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult." (Id., Sec. 15610.30, subd. (b).) "The substantive law of elder abuse provides that financial abuse of an elder occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both. A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith.

Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174.) Here, the complaint alleges that Plaintiff is an elder as defined by the Act and that Defendants unlawfully retained possession of Plaintiff's real property when Defendants knew or should have known that Defendants' retention of Plaintiff's property was wrongful and would likely be harmful to Plaintiff. (Compl., P.P. 7-23, 71-77.)

The complaint alleges that on April 24, 2025, Plaintiff gave a copy of the Survey to Defendants but Defendants refused to permit Plaintiff to move the fencing to a location that is consistent with the actual property boundary. (Compl., P.P. 17-18.) Defendants allegedly erected additional chicken wire fencing that prevents Plaintiff from accessing Plaintiff's property. (Compl., P. 22.) Defendants continue to possess or use Plaintiff's property despite the Survey indicating that Defendants are not the rightful owner of the disputed area. (Compl., P.P. 17-18.)

Defendants have paid no taxes on the disputed area. (Compl., P. 20.) The elements of elder abuse have been alleged. As to the statute of limitations, "[a]n action for ... for financial abuse of an elder ... shall be commenced within four years after the Plaintiff discovers or, through the exercise of reasonable diligence, should have discovered, the facts constituting the financial abuse." (Welf. & Inst. Code, Sec. 15657.7.) The complaint alleges that Defendants retained Plaintiff's property without her consent within the four-year period prior to the filing of the complaint. (Compl., P.P. 7-23, 71-77.)

This cause of action is not clearly barred by the four-year statute of limitations on the face of the complaint, attachments, and matters subject to judicial notice. (See Schmier, supra, 76 Cal.App.5th at p. 554.) (8) Injunctive Relief (Fourth Cause of Action) The complaint sets forth a cause of action for injunctive relief. As both parties agree, "[i]njunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a Court may grant a request for injunctive relief." (Allen v.

City of Sacramento (2015) 234 Cal.App.4th 41, 65.) A reasonable reading of the complaint is that Plaintiff is seeking injunctive relief based on the underlying substantive causes of action such as quiet title, nuisance, and trespass. Plaintiff incorporates the allegations in these causes of action into the injunctive relief cause of action. (Compl., P. 62.) On this basis the Court will overrule the demurrer but note that the Court agrees with the parties that injunctive relief is not a separate cause of action.

If an amended complaint is filed by Plaintiff, Plaintiff should make this clarification. (9) Motion to Strike "Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof ...." (Code Civ. Proc., Sec. 435, subd. (b)(1).) "The Court may, upon a motion made pursuant to [s]ection 435, or at any time in its discretion, and upon terms it deems proper: [P.] ... [s]trike out any irrelevant, false, or improper matter inserted in any pleading." (Code Civ.

Proc., Sec. 436, subd. (a).) "In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth." (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) Here, Defendants argue that punitive damages and attorney fees are not properly alleged, among other issues. "In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice, the Plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the Defendant." (Civ.

Code, Sec. 3294, subd. (a).) "Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim." (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) " 'Malice' means conduct which is intended by the Defendant to cause injury to the Plaintiff ...." (Civ. Code,

Sec. 3294, subd. (c)(1).) "In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a Plaintiff." (Clauson, supra, 67 Cal.App.4th at p. 1255.) The complaint alleges a boundary dispute between the parties. The complaint alleges that Defendants have taken the position that doctrine of estoppel or adverse possession may support Defendants' position that the existing fencing should demarcate the boundary between the parties' property.

The complaint alleges the parties historically agreed on repairs to the fencing and that the legal boundary became disputed more recently in 2025. The complaint alleges that the parties dispute the results of the Survey. The complaint does not, without more, allege intentional acts by Defendants designed to cause harm to Plaintiff (i.e., malice). Plaintiff must allege facts, assuming their truth, "that Defendants intentionally, as opposed to negligently or mistakenly, disregarded Plaintiff's right to possession ...." (Cyrus v.

Haveson (1976) 65 Cal.App.3d 306, 317.) The Court will grant the motion to strike with leave to amend as to allegations of punitive damages. The Court will deny the motion to strike as to the prayer for attorney fees based on the statutory rights under the Act. (Welf. & Inst. Code, Sec. 15657.5, subd. (a).) The Court will otherwise deny the motion to strike for the reasons set forth above pertaining to the ruling on Defendants' demurrer.

Tentative Ruling: Las Posas Valley Water Rights Coalition, et al., v. Fox Canyon Groundwater Management Agency, et al. Tentative Ruling: Las Posas Valley Water Rights Coalition, et al., v. Fox Canyon Groundwater Management Agency, et al.