MARK MILLER vs EYAL ALKOBY

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

I. Legal Standard

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ.

Proc., § 437c, subd. (c).) “A cause of action has no merit if either of the following exists: [¶] (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. [¶] (2) A defendant establishes an affirmative defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o).)

“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 exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

The court applies a 3-step analysis in ruling on a motion for summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) First, the court identifies the issues framed by the pleadings because the court's sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a ‘triable issue as to any material fact.’ (Id. at p. 926.) Second, the court determines whether the moving party has met its statutory burden of proof. (Ibid.) Finally, if the moving party has met its statutory burden of proof and the summary judgment motion prima facie justifies a judgment, the court then determines whether the opposing party has met its burden of demonstrating the existence of a triable issue of one or more material facts as to that cause of action or a defense thereto. (Ibid.)

In making this determination, the court strictly construes the evidence of the moving party and liberally construes that of the opponent, and any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) “’In determining whether any triable issue of material fact exists, the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party.’ [Citation].” (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860).

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

opposing the motion in accordance with the applicable standard of proof . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

II.

Analysis

A. Evidentiary Matters

1. Request for Judicial Notice

Defendants request that the Court take judicial notice of (i) certified copy of Grant Deed, recorded on 05/26/2023 as Document 2023000036425 from the Ventura County Recorder Office, attached to the moving papers at Exhibit 1 authenticated in Declaration of David Myers (“Myers. Dec.”) at par. 3 thereof; (ii) certified copy of Grant Deed, recorded 07/13/2023 as Document 2023000047232, from the Ventura County Recorder Office, attached to the moving papers at Exhibit 2 authenticated in Myers. Dec. at par. 4 thereof; (iii) certified copy of Grant Deed, recorded 10/10/2005 as Document 20051010 0251480, from the Ventura County Recorder Office, attached to the moving papers at Exhibit 14 authenticated in Myers.

Dec. at par. 14 thereof; (iv) certified copy of Affidavit – Death of Trustee, recorded on 09/29/2016 as Document 20160929-00142291-0 1/2, from the Ventura County Recorder Office, attached to the moving papers at Exhibit 15 authenticated in Myers. Dec. at par. 15 thereof; (v) certified copy of Trust Transfer Deed, recorded 09/29/2026 as Document 20160929-00142292-0 1/2, from the Ventura County Recorder Office, attached to the moving papers at Exhibit 16 authenticated in Myers. Dec. at par. 16 thereof; (vi) certified copy of tract map of Tract No. 1846, recorded on December 23, 1965, from the Ventura County Recorder Office, attached to the moving papers at Exhibit 18 and authenticated in the Myers.

Dec. at par. 17 thereof; (vii) certified copy of Ventura County Assessor’s Map, date created March 4, 1963, attached to the moving papers at Exhibit 19 and authenticated in Myers. Dec. at par. 18 thereof, all of which comprise the Grant Deeds for the 868 Valley High Property (the “Deeds”).

The Court may take judicial notice of “(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States . . . (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute . . . (h) Facts 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.” (Evid.

Code, § 452, subds. (c), (g), (h).) “A court may take judicial notice of a recorded deed.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803.) “In addition, ‘[a] court may take judicial notice of something that cannot reasonably be controverted [such as a recorded deed], even if it negates an express allegation of the pleading.’ [Citation].” (Alfaro v. Community Housing Improvement System & Planning Assoc, Inc. (2009) 171 Cal.App.4th 1356, 1382.)

Consequently, the Court grants Defendants’ request for judicial notice of the Deeds.

2. Plaintiff’s Evidentiary Objections Filed with the Opposition

Overruled: 1-2.

3. Defendant’s Evidentiary Objections Filed with the Reply

Overruled: 1-30.

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

4. Undisputed Facts (“UMF”), Disputed Facts (“DMF”) and Additional UMF and DMF (“AUMF” and “ADMF”)

For purposes of this motion only, the following are the UMF, DMF and AUMF:

UMF: 1-9 DMF: 10-17 AUMF (since Defendant did not respond to Plaintiff’s additional facts): 1-28.

5. Facts

The FAC pleads a cause of action for quiet title. (FAC, ¶¶1-19.) The FAC asks the court to determine the true and correct location of the boundary line between the properties of Plaintiff and the LLC. (FAC, Prayer, ¶2.) The FAC requests that the court determine that Plaintiff’s title be quieted so that the boundary line is that agreed upon by Plaintiff and LLC’s predecessor. (FAC, Prayer, ¶3.)

LLC is the registered owner in fee of the real property located at 868 Valley High Avenue in Ventura, CA, in the Ventura County Recorder’s office. (UMF 1.) The only member of the LLC is Alkoby. (UMF 2.) In 2023, Alkoby purchased 868 Valley High Avenue for approximately $960,000 from Janine D. Garrison, Successor Trustee of the Nancy Pratt Trust dated September 21, 2016, and following the purchase of the Property, a Grant Deed was recorded on May 26, 2023 as document 2023000036425. Then Alkoby transferred the property to the LLC as shown in Grant Deed recorded on July 13, 2023 as document 2023000047232. (UMF 2.)

Jack and Nancy Pratt (“Pratts”) were the owners of the 868 Valley High Avenue from 1975 to 1995. (UMF 3.) The Pratts transferred title to the property to the Jack and Nancy Pratt, Trustees of the Jack and Nancy Pratt Family Trust Dated May 22, 2003 by Grant Deed recorded on October 10, 2005 as document 20051010-0251480. (UMF 4.) An Affidavit of Death of Trustee Jack Pratt signed by Nancy Pratt was recorded on September 21, 2016. (UMF 5.) Nancy Pratt transferred title to the property to Nancy Pratt, Trustee of The Nancy Pratt Trust dated September 21, 2016. (UMF 6.) After Nancy Pratt passed away, Janine D. Garrison became the Successor Trustee of the Nancy Pratt Trust dated September 21, 2016. (UMF 7.)

The 868 Valley High Avenue property has the following legal description in the recorded documents: Lot 1 of Tract 1846, in the City of Thousand Oaks, County of Ventura, State of California, as per map recorded in Book 46, pages 71 and 72 of Miscellaneous Records in the office of the County Recorder of said County. (UMF 8.)

Mark and Pam Miller purchased 866A Valley High Avenue in October 1975 and have lived there continuously since then. (AUMF 1.) The Pratt property adjoined the Miller property. (AUMF 2.) In the latter half of 1995, Jack Pratt sought additional off-street parking and proposed expanding the Pratt driveway toward the landscaped greenbelt between the two driveways. (AUMF 3.)

Jack Pratt and the Millers did not know where the common boundary was physically located within the greenbelt. (AUMF 5.) Jack Pratt proposed that the edge of the expanded concrete driveway mark the common boundary, and Mark and Pam agreed to resolve the parties' uncertainty. (AUMF 6.) Mark and Ryan Miller assisted Jack Pratt in constructing the driveway expansion in accordance with the selected line. (AUMF 7.) Shortly after construction, Mark and Ryan Miller installed decorative

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

red brick directly along the southern edge of the expanded Pratt driveway. (AUMF 8.) The selected line was physically identifiable from the fence-post area, along the southern edge and curve of the expanded driveway and red-brick edging, to the street. (AUMF 10.)

After the agreement, the Millers installed and maintained irrigation, underground electrical wiring, exterior lighting, turf, a decorative lighted brick flower bed, and a large shared brick mailbox structure on their side of the line. (AUMF 11.) The improvements were installed openly, remained visible, and were continuously used and maintained for more than twenty-five years. (AUMF 12.) The Pratts never objected to the agreed line. (AUMF 13.) Moving or removing the improvements would cause substantial expense and loss and materially alter the Millers' front yard. (AUMF 16.)

B. Uncertainty

“The agreed-boundary doctrine constitutes a firmly established exception to the general rule that accords determinative legal effect to the description of land contained in a deed. One early case thus explains the basis for the agreed-boundary doctrine: ‘[T]he rule has been established that when such [coterminous] owners, being uncertain of the true position of the [common boundary described in their respective deeds], agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.... [¶] ... [¶] The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable....

If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds.’ [Citations].” (Bryan v. Blevins (1994) 9 Cal.4th 47, 54-55.)

“Although the agreed-boundary doctrine is well established in California, our case law has recognized that the doctrine properly may be invoked only under carefully specified circumstances . . . ‘The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. [Citations.] The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.’ [Citation].” (Bryan v. Blevins, supra, 9 Cal.4th 47, 55.)

“Once an agreement between parties over an uncertain boundary line is established according to law, the agreement is conclusive as to the correctness of the boundary. [Citation]. The agreement establishes the true boundary line which the parties are estopped to deny.” (Joaqui v. Shiloh Orchards (1978) 84 Cal.App.3d 192, 198.) The statute of frauds does not apply to cases involving the agreed boundary doctrine since the doctrine is not based on conveyance of land, but what as agreed as the boundary between the parties. (See Martin v.

Lopes (1946) 28 Cal.2d 618.) “If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds. It is stated by the authorities that the line so agreed on becomes in legal effect the true line; that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy; that the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title; that the parties hold up to the

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

agreed line by virtue of their original deeds, and not by virtue of the parol agreement; that ‘the division line, when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed’; and that, if more is thus given to one than the calls of his deed actually requires, he ‘holds the excess by the same tenure that he holds the main body of his lands.” (Ibid. at pp. 623-624.)

Whether the agreed boundary doctrine applies is a question of fact. (See Appel v. Burman (1984) 159 Cal.App.3d 1209, 1213.) “’[T]he question presented to the court in a boundary dispute is not that of making a resurvey but one of determining as a question of fact from the preponderance of expert and nonexpert evidence (as in all other civil cases) the actual location of the monuments, corners or lines as actually laid out on the ground by the official surveyor.’ [Citation]. ‘The questions where the line run by a survey lies on the ground, and whether any particular tract is on one side or the other of that line, are questions of fact.’ [Citation].” (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 737.)

The LLC argues that Plaintiff is unable to establish the first element of the claim for agreed boundary since the boundary in question is not uncertain.

“The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. It is necessary to show that there was an uncertainty as to the true boundary line, an agreement, express or implied, between the conterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position [citations]. ‘It is not required that the true location be absolutely unascertainable [citation]; that an accurate survey from the calls in the deed is possible [sic] [citation], or that the uncertainty should appear from the deeds [citation].

The line may be founded on a mistake. [Citation.]’” (Kraus v. Griswold (1965) 232 Cal.App.2d 698, 704-705.) “To invoke the doctrine of agreed boundary, it need only be shown that the uncertainty present at the time of the agreement is a lack of knowledge by both parties of where the true line is or should be drawn.” (Ibid. at p. 706.)

“[T]he question is whether uncertainty as to the true line as well as an implied agreement to fix a boundary can be inferred from circumstantial evidence of many years of acquiescence.” (Vella v. Ratto (1971) 17 Cal.App.3d 737, 740-741.) Thus, “[t]he court may infer that there was an agreement between the coterminous owners ensuing from uncertainty or a dispute, from the long-standing acceptance of a fence as a boundary between their lands.” (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 708.) “‘A presumption that an agreement formerly was made as to the location of a boundary line may arise from the fact that one or both of the adjoining owners have definitely defined such line by erecting a fence or other monument on it, and that both have treated the same as fixing the boundary between them for such length of time that neither ought to be allowed to deny the correctness of its location.’ [Citation].” (Board of Trustee of Leland Stanford, Jr., University v.

Miller (1921) 54 Cal.App. 102, 105.)

The LLC met its initial burden in showing that there was no uncertainty as to boundary line. The LLC points to the legal description provided in the recorded deeds (UMF 11), the Declaration of Rick Jones, surveyor as to the location of the boundary lines between the properties (Jones Dec., ¶ 3), and Plaintiff’s response to form interrogatory no. 50.1, which asked Plaintiff to identify each document that is part of the agreement at issue. Plaintiff had responded: “Plaintiff is, at present, unaware of any document responsive to this interrogatory.” (Myers Dec., Ex, 12, p. 8:23-24; DMF 14-15.)

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

Plaintiff, however, has also carried his burden of showing a triable issue of material fact as to the issue of uncertainty. (DMF 11-17.) Plaintiff has presented the Declaration of Mark Miller and the Declaration of Pam Miller, both of whom describe the 1995 agreement between the Pratts and their family as to the property line. (M. Miller Dec., ¶¶ 5-8; P. Miller Dec., ¶¶ 5-8.) As evidence of the agreement, the parties marked the location with red brick. (M. Miller Dec., ¶ 9; P. Miller Dec., ¶ 9.) The boundary line has been improved and used since 1995 and improvements were made by Mark Miller and the Millers’ son. (M. Miller Dec., ¶ 8-12; P. Miller Dec., ¶¶ 10-12.) No objections were made by the Pratts as to the property line. (M. Miller Dec., ¶¶ 13-14; P. Miller Dec., ¶¶ 13-14.)

The long-established nature of the boundary raises an inference from the many years of acquiescence as to the true line between the properties. Moreover, under Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d 702, 708, the court may reasonably infer that there was an agreement between the Pratts and the Millers based on the longstanding use of the boundary. The fact that Plaintiff has stated in response to form interrogatory no. 50.1 that he has no document in support of the agreement at issue does not support the finding that Plaintiff lacks evidence to support the claimed uncertainty since the marking of the alleged boundary line may be presumed from the brick boundary build in this case as stated in Board of Trustee of Leland Stanford, Jr., University v. Miller (1921) 54 Cal.App. 102, 105.)

Accordingly, the Court finds that there is a triable issue of fact regarding the element of uncertainty and denies the motion that is argued on this ground.

C. Bona Fide Purchaser

“Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action.” (Civil Code, § 1214.) Whether a buyer is a bona fide purchaser is generally a question of fact. (Melendrez v.

D&W Investment, Inc. (2005) 127 Cal.App.4th 1238, 1254.) “‘The elements of bona fide purchase are payment of value, in good faith, and without actual or constructive notice of another’s rights. [Citation.]’ [Citation]. ‘The absence of notice is an essential requirement in order that one may be regarded as a bona fide purchaser.’ [Citation].” (Gates Rubber Co. v. Ullman (1989) 214 Cal.App.3d 356, 364, emphasis in the original.)

Here, the LLC has not carried its burden of showing that it is a bona fide purchaser. Although the LLC asserts that it paid $960,000 for the 868 property, no evidence supports this claim. (Motion, p. 8:8-10.) The evidence presented shows that the 868 property was purchased by Alkoby for $960,000 from Janine D. Garrison, successor trustee of the Nancy Pratt Trust on May 26, 2023. (UMF 2, Alkoby Dec., ¶ 2.) Thereafter, the property was transferred to the LLC in July 2023. (Alkoby Dec., ¶ 2.) Although Alkoby claims that he is the managing member of the LLC (Alkoby Dec., ¶ 1), there is no showing that he purchased the property on behalf of the LLC.

Accordingly, there is no evidence of payment of value. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538. [“Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations”].)

Furthermore, the LLC has not met its burden of showing that it had no notice of the agreed upon boundary. (DMF 17.) Alkoby states: “At no time prior to 2024 had anyone ever informed me or 868 that the boundary line had been changed from the legal description indicated in the above-referenced Grant Deeds or any recorded documents concerning the property. At no time prior to 2024 had

2024CUOR024432: MARK MILLER vs EYAL ALKOBY

anyone told me or otherwise informed me about any ‘agreement’ between the defendants, or any of them, and the prior owners of the property changing the property boundaries.” (Alkoby Dec., ¶ 3.) This statement only relates to actual notice and does not address the possibility of constructive notice based on the boundary line as it appeared at the time of purchase.

Consequently, the Court finds that the LLC failed to establish that it is a bona fide purchaser.

III.

Conclusion

Defendant 868 Valley High LLC’s Motion for Summary Judgment is DENIED.

Plaintiff has met its burden of showing that there are triable issues of fact on whether there was an uncertainty as to the true boundary line between the properties in question.

Further, Defendant has failed to meet its burden of showing that it is a bona fide purchaser.

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