STATE OF CALIFORNIA, BY AND THROUGH THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION VS. BORGNA

CASE NUMBER: 25CV-0208978 Tentative Ruling on Demurrer to First Amended Cross-Complaint: Plaintiff/Cross-Defendant State of California, by and through the California Department of Forestry and Fire Protection (“Cross-Defendant”) generally demurs to Defendant/Cross-Complainant Guiliano Borgna’s (“Cross-Complainant) First Amended Cross-Complaint (“FACC”). Cross-Defendant alleges that the FACC fails to state sufficient facts to establish the causes of action for a prescriptive and implied easement. CCP § 430.10(e).

FACC Allegations: The FACC alleges that Cross-Complainant is the owner of real property (subject property) that is adjacent to the Pit River. Cross-Defendant is alleged to own an adjacent piece of real property (the Cal Fire property) which is also adjacent to the Pit River. Cross-Complainant claims a prescriptive easement to maintain a tributary on the Cal Fire property for the purpose of obtaining water from the Pit River that then flows to a pond on the subject property. The FACC alleges the two properties were once owned as single plot by the Hayes family. Finally, Cross-Complainant alleges he and his predecessors used the Cal Fire property in an actual, open, notorious, continuous and hostile manner for years possibly going back over 100 years.

Merits. A demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal. App. 4th 435, 438. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.

First Cause of Action (Prescriptive Easement): While the FACC’s first cause of action is titled “Easement Based on Adverse Possession” it is in fact a cause of action to quiet title to a prescriptive easement. The party claiming a prescriptive easement must prove use of the property, which was open, notorious, continuous, and adverse for an uninterrupted period of five years. Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570.

The FACC contains only conclusory allegations of open, notorious, continuous and adverse use. It does not 8

contain specific facts of when the two properties were severed from joint ownership. It fails to identify specific facts as to how the property use was open, notorious, continuous, and adverse for an uninterrupted period of five years after the unknown severance date. Conclusory allegations are insufficient. Hood, supra 65 Cal.App.4th at 438. Cross-Complainant must provide specific facts to establish a right to a prescriptive easement including how it was obtained, who were the owners of the property and specific facts to show an open, notorious, continuous and adverse use for an uninterrupted period of five years.

At best, Cross- Complainant potentially alleges he obtained the prescriptive easement against PG&E, the prior owner of the Cal Fire property, but such a prescriptive easement would appear to be barred by Civil Code 1007. The Court finds that Cross-Complainant has failed to allege sufficient facts to constitute a cause of action for a prescriptive easement. CCP § 430.10(e)

Second Cause of action (Implied Easement): An easement by implication requires: 1) a common ownership of a parcel and transfer or conveyance of one parcel or portion; 2) prior to the division of title, there must have been an existing obvious and apparently permanent, use of the quasi-easement by the common owner; 3) the easement must be reasonably necessary to the use and benefit of the quasi-dominant tenement. Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049. The FACC fails to allege each of the elements above.

While the FACC makes conclusory statements about the history of the subject property and the property of Cal Fire, the chain of title has not been provided to show exactly when and how the property was subdivided. There are no allegations about the existence of the alleged easement, that it was obvious and apparently permanent or that it was reasonably necessary to the use and benefit of the quasi-dominant tenement. The Court finds that Cross- Complainant has failed to allege sufficient facts to constitute a cause of action for an implied easement.

CCP § 430.10(e)

Civil Code Section 1007: Cross-Defendant argues that the entire FACC is barred by Civil Code § 1007 which prohibits obtain prescriptive rights over property dedicated to a public use by a public utility or dedicated or owed by the state. As the FACC does not sufficiently allege when the easement rights arose and who the owner of the properties would have been at that time, the Court cannot determine whether Civil Code section 1007 applies. The Court reserves the right to issue a substantive ruling on this issue based on clearer factual allegations.

Water Rights: While the FACC contains allegations about access to the tributary for maintenance it also contains various allegations about the right to the water of the Pit River. The FACC fails to allege facts establishing riparian rights on the Cal Fire property (as opposed to riparian rights on his own property) and fails to provide facts to establish an appropriative right on the Cal Fire property. The FACC only contains unsupported conclusions about the nature of the water rights. Given that the water rights are interrelated to the access and maintenance rights they will need to be sufficiently alleged with supporting facts to survive a demurrer.

The demurrer is SUSTAINED. The Court will grant Cross-Complainant leave to amend to address the issues raised above. The Court recognizes that this will be the second time that a demurrer has been sustained with leave to amend granted. At some point, should cross-complainant not be able to allege sufficient facts to survive a demurrer, further leave to amend may be denied.

Cross-Complainant is granted 30 days from service of the notice of entry of order to file a Second Amended Cross-Complaint. No proposed order was lodged with the Court. Cross-Defendant shall prepare the order.

TOMLINSON VS. DENTZ CUSTOMS & COLLISION, ET AL.