Elizabeth Guho-Johnson, et al. v. John George, et al.

against the Georges (1) for declaratory relief to impose an equitable easement, (2) to quiet title to prescriptive easement, (3) for adverse possession, (4) for interference with business advantage, (5) for invasion of privacy, and (6) for restraining order.

The Georges filed a Second Amended Cross-Complaint (SACC) on October 21, 2019. The SACC alleges causes of action against the Johnsons for (1) quiet title, (2) trespass on cultivated lands (Code Civ. Proc., § 1021.9), (3) public nuisance, (4) private nuisance, and (5) nuisance per se.

Now before the court are two motions. • The Johnson’ motion for summary adjudication pursuant to Code of Civil Procedure section 437c, subdivision (f)(1) with respect to the Georges’ second cause of action for trespass to cultivated lands in their SACC. The motion is denied. • The Georges’ motion for leave to file Third Amended Cross-Complaint (TACC). The motion is denied.

This action was bifurcated into two phases. The equitable phase of the trial regarding Plaintiffs’ claim to confirm an “equitable easement” resulted in the Court’s issuing its findings in a statement of decision. (7/22/25 Statement of Decision (SOD).) A jury retrial for the legal issues is scheduled for August 11, 2026.

I. MOTION FOR SUMMARY ADJUDICATION

The Johnsons move for summary adjudication “on the grounds that a cause of action for trespass to land requires the plaintiff or cross-complainant to prove possession of the land at the time the alleged trespass occurred.” They contend that no triable issue of material fact exists regarding the Georges’ lack of possession of the property on which they claim the trespass occurred.” (Ntc. Mot., p. 1, ll. 13-16.) The Georges oppose the motion.

A.

Legal Standard

A party may move for summary adjudication as to one or more causes of action within an action. (Code Civ. Proc., § 437c, subd. (f)(1).) The Johnsons, as the moving parties, have the initial burden to make a prima facie showing that there are no triable issues of material fact and that they are entitled to adjudication as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In particular, the Johnsons bear “the burden of persuasion that ‘one or more elements’ of the ‘cause of action’ in question ‘cannot be established’, or that ‘there is a complete defense’ thereto.” (Id., quoting current Code Civ. Proc., § 437c, subd. (p)(2).)

The Johnsons may present evidence that conclusively negates an element of the Georges’ causes of action, or the burden can be satisfied by a showing through evidence that the Georges do not possess, and cannot reasonably obtain, needed evidence. (Aguilar v. Atlantic Richfield Co. supra, 25 Cal.4th 826, 855.)

If the Johnsons make a prima facie showing, then the burden shifts to the Georges to produce admissible evidence showing that a triable issue of material fact exists. (Code Civ. Proc. § 437c, subd. (p)(2).) The Georges may rely on reasonable inferences arising from declarations or other evidence. (See Code Civ. Proc., § 437c, subd. (c).)

“The court’s sole function on a motion for summary adjudication is issue-finding, not issue-determination; the judge must simply determine from the evidence submitted whether there is a ‘triable issue as to any material fact.’ ” [italics in original] (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 10:270, citing Code Civ. Proc., § 437c, subd. (c).)

B. Discussion

“The simple elements of a cause of action for trespass or injury are (1) the plaintiff’s actual possession or right to possession, as the owner or otherwise, of described property (see infra, § 634); (2) the defendants’ wrongful act of trespass on the property; and (3) damage to the plaintiff proximately caused by the trespass.” [emphasis added] (5 Witkin, Cal. Procedure (6th ed. 2026) § 633.) “The usual action is by an owner, but neither ownership nor actual possession is essential. The plaintiff, though not in actual possession, may allege a present or future right to possession.” (Id., § 634, see Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774 [“An action for trespass may technically be maintained only by one whose right to possession has been violated ....”].)

Accordingly, the Johnsons’ contention that the Georges cannot maintain a trespass claim because they lacked actual possession does not warrant summary adjudication where the Georges’ right to possession remains to be determined in the next phase of trial on the legal issues. Because there is a triable issue of material fact as to whether the Johnsons have a right to possession, the Johnsons’ motion for summary adjudication of the trespass cause of action cannot be granted.

In light of the Court’s findings in the equitable phase of trial, which are binding on the jury, 3 none of the encroachments that have been determined to warrant protection through grant of an equitable easement can support a cause of action for trespass. 4 However, it cannot be determined at this time whether any conduct that the jury may be asked to find as a trespass is protected by any of the granted easements. In addition, to the extent that the jury in the forthcoming trial finds (as the first jury did) that the Johnsons had exclusive possession of any portion of the disputed area for a period of time sufficient to establish adverse possession, and can meet the other elements of that doctrine, or if it finds that the Johnsons have established prescriptive easement rights in

3 See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1244.) 4 The Georges have recently filed two briefs seeking to collaterally attack the Final Statement of Decision. Neither has merit. The request that the Court sua sponte opt to revisit the ruling due to what they characterize as an “intervening change of controlling law” is based on a misreading of the opinion in Wang v. Peletta (2025) 112 Cal.App.5th 478. The other attack made in a document titled “Supplemental Objections to the Final Statement of Decision” is both untimely (by nearly a year) and lacking in merit.

some or all of the disputed area, such findings will constrain any potential trespass claim. But in this respect also, it is premature to determine if such circumstances will preclude a finding of trespass.

The Johnsons’ motion for summary adjudication of the Georges’ second cause of action for trespass is denied.

II. THE GEORGES’ MOTION FOR LEAVE TO FILE THIRD AMENDED CROSS-COMPLAINT

The Georges move for leave to file a Third Amended Cross-Complaint. The Georges contend that leave should be granted in the interests of justice to (1) conform the pleading to controlling authority decided after the first trial was held (Wang v. Peletta (2025) 112 Cal.App.5th 478, (2) incorporate a judicial admission made by the Johnsons through counsel on June 17, 2026, and (3) plead with greater precision the parties’ rights and the damages already encompassed by the existing claims. (Ntc of Mot., p. 6, ll. 16-20.) The Johnsons oppose the motion.

As a preliminary matter, the Georges filed a supplemental memorandum in support of their motion on July 31, 2026. The Court, on its own motion, strikes the Georges’ supplemental brief, as improperly filed without leave of court. (Code Civ. Proc., § 436, subd. (b).)

A.

Legal Standard

The Court may allow the amendment of any pleading at any time in the furtherance of justice, and upon such terms as may be proper. (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) The Court’s discretion is to be exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If the motion is timely and does not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596 [same].)

B.

Discussion

The Johnsons strongly oppose permitting any further amendment on the eve of the August 11, 2026 jury trial. They note that the Georges seek to amend their cross complaint to add “(1) a new Declaratory Relief Cause of Action, (2) a new request for punitive damages, (3) a new request for treble damages, (4) new facts concerning [the Johnsons’] alleged malicious intent, and (5) new allegations more specifically detailing their alleged damages ....” (Opp., p. 1, l. 28; 2, ll. 1-3.)

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial..., this policy should be applied only ‘[w]here no prejudice is shown to the adverse party...’ A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the

adverse party...’ is shown.” [citations omitted.] (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Here, the Georges seek leave to amend effectively in the middle of trial- i.e. between the equitable and legal phases. The action was filed March 29, 2019, and has been pending for more than seven years. The Georges’ request is belated and reflects inexcusable delay. (See Eng v. Brown (2018) 21 Cal.App.5th 675, 706-708 [a trial court did not abuse its discretion in denying leave to amend when a party’s proposed amendment “was offered during trial, after several years of litigation, and based on facts known to [the party] since he filed his initial complaint”].)

The Johnsons have also made a sufficient showing of prejudice. The Johnsons’ counsel declares that if the amendment is permitted, the Johnsons would be required to divert from ongoing trial preparation to address new and improper claims asserted in the proposed TACC. (Ogdon Dec., ¶ 5.) Additionally, the Johnsons would need time to challenge the amended pleading and conduct discovery regarding the newly alleged facts, which would delay the trial. (Ibid.)

Further, the Georges proposed amendment appears to add or supplement issues already litigated and decided in the equitable phase of trial. For example, the Georges propose to allege that the Johnsons’ encroachment prevented development of a well in the disputed area. (Mot., pdf p. 66 [Proposed TACC ¶ 26.2].) Evidence on that issue was presented during the bench trial on the equitable easement claim, and the Court found the Georges’ showing unpersuasive. (See 7/22/25 SOD, at p. 17, ll. 3-5.) Their amendment also seeks in numerous respects to add allegations related to the Johnsons’ alleged “deliberate encroachment.” (Motion at p. 14.)

But this issue was also resolved against the Georges in the equitable phase. (7/22/25 SOD, at p. 8.) Because the Court’s factual findings from the equitable phase will be binding in the legal phase, the Court will not permit amendment that would effectively seek relitigate those issues before the jury. (See Nwosu v. Uba, supra, 122 Cal.App.4th 1229, 1244 [prior equitable disposition of related claims operates as a form of quasi-collateral estoppel, precluding a party “from relitigating the already determined issues in his claims at law”].)

Accordingly, the motion for leave to file the proposed TACC is denied.

ORDER (PROPOSED)

The Johnsons’ motion for summary adjudication is denied.

The Georges’ motion for leave to file a third amended cross-complaint is denied.

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