TIMOTHY W. BAUGHMAN, ET AL vs. RICHARD H. HESS, ET AL

Request for Judicial Notice

Baughman/McMillan’s request for judicial notice of their Complaint (Exh. 1), Hess/Azcona’s Answer (Exh. 2), Hess/Azcona’s Verified Cross-Complaint (Exh. 3), the Baughman/Azcona grant deed (Exh. 4), and the Hess grant deed (Exh. 5), is granted. (Evid. Code §§ 452, 453.) However, the court does not take judicial notice of the truth of matters stated therein. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Hess/Azcona’s request for judicial notice of a letter from the State of California Fair Political Practices Commission is denied as this is not a proper subject for judicial notice. This document would not impact the Court’s analysis in any event.

Evidentiary Objections

Hess/Azcona’s Objections No. 1 (personal knowledge, foundation, speculation, improper opinion) and No. 2 (hearsay, foundation, improper opinion) are sustained. Objection No. 3 is overruled. The evidence objected to in Objection No. 3 would not impact the Court’s ruling in any event.

Baughman/McMillan’s Objection Nos. 1 and 2 (legal conclusion, foundation) and No. 4 (hearsay and personal knowledge, as to the alleged homophobic epithet incident) are sustained. Objection No. 3 is overruled to the extent Hess states he has incurred expenses.

Issue No. 1/Second Cause of Action

Hess/Azcona’s Second Cause of Action for equitable easement alleges that Hess has been openly using the alleged encroaching area (the “Disputed Area”) since at least 1996, that his use was innocent, unknowing and inadvertent, and that Hess believed at all times that the disputed area was owned by him. Hess/Azcona further allege that there is no hardship to Baughman/McMillan if there is an equitable easement because Hess has been using this area for at least 28 years, and the hardship to Hess/Azcona would be significant and greatly disproportionate to any hardship to Baughman/Miller because Hess/Azcona have made substantial improvements to the area.

“California courts have [] the discretionary authority to deny a landowner’s request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an easement over the trespassed-upon property in the trespasser’s favor, provided that the trespasser shows that (1) her trespass was innocent rather than willful or negligent, (2) the public or the property owner will not be irreparabl[y] injur[ed] by the easement, and (3) the hardship to the trespasser from having to cease the trespass is greatly disproportionate to the hardship caused [the owner] by the continuance of the encroachment.

Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement.” (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19 [citations and internal quotations omitted].) “Overarching the analysis is the principle that since the defendant is the trespasser, he or she is the wrongdoer; therefore, doubtful cases should be decided in favor of the plaintiff. Moreover, courts approach the issuance of equitable easements with [a]n abundance of caution. When courts compare the hardships or conveniences, the scales begin tipped in favor of the property owner due to the owner’s substantial interest in exclusive use of her property arising solely from her ownership of her land.” (Nellie Gail Ranch Owners Assn. v.

McMullin (2016) 4 Cal.App.5th 982, 1004 [citations and internal quotations omitted].)

The parties here focus on the hardship element. Baughman/McMillan’s Issue No. 1 states: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ equitable easement claim because Defendants’ hardship is not greatly disproportionate to the hardship caused to Plaintiffs by the continuance of Defendants’ encroachments.”

The evidentiary record establishes the following. Baughman/McMillan hold record title to 35 Crest Road, although Hess/Azcona dispute both the ownership of the Disputed Area and the Muir survey obtained by Baughman/McMillan. (Baughman/McMillan (“B/M”) Fact No. 1.) The Disputed Area is approximately 853 square feet and has two parts: (a) a 199 square foot area outside Hess/Azcona’s gate consisting of a dirt wall and another area with a retaining wall, fencing, driveway, and planted vegetation and trees, and (b) a 654 square foot area inside Hess/Azcona’s gate that includes a fence and a portion of their parking area. (B/M Fact No. 5.)

While Hess/Azcona challenge ownership of the Disputed Area, they do not present evidence from a survey or otherwise showing that they have title to that area. (Hess/Azcona (“H/A”) Response to B/M Fact No. 1.)1 Hess/Azcona have parked their cars in the Disputed Area and use the space to turn vehicles around. They have also improved and maintained the area, with a retaining wall outside the gate, their own fencing, an asphalt driveway, irrigation lines, plantings and ivy, and a tree. (H/A Response to B/M Fact No. 5.)

If Hess/Azcona are required to stop using the Disputed Area, they would still have a parking area in front of their garage sufficient to park vehicles. (B/M Fact No. 7.) However, Hess/Azcona would lose the parking area beside the garage and a portion of the driveway, they could no longer turn a vehicle around on the property, and they would need to back their vehicles down their steep driveway onto Crest Road to exit the

1 The declaration of Hess/Azcona’s surveyor states only that maps that depict boundary lines “are not dispositive of, nor final determination of, the rights of occupation of the parties whose properties lie on either side of the boundary, or the fence lines depicted on the same maps. The survey process must take into account additional physical features of property, including fences and other improvements.” (Declaration of Philip A. Danskin, ¶¶6, 7.) Even if this statement were admissible, it proves little. Mr. Danskin does not actually state that the Muir survey is incorrect or that the property line is somewhere other than what is shown on the Muir survey. Hess/Azcona have not provided any other evidence to dispute the accuracy of the Muir survey. There are no “conflicting surveys”, as Hess/Azcona suggest. (See Opp. p. 5:9-10.)

property. (B/M Fact No. 8; H/A Response to B/M Fact Nos. 7 and 8.) In August 2018, the Town issued a permit to remove a 19 foot Bay Tree and a 15 foot Bay Tree which an arborist stated posed a moderate risk. (B/M Fact No. 9; H/A Response to Fact No. 9.) Baughman/McMillan have not removed the trees for fear of exposing themselves to an allegation of impermissible self-help. (B/M Fact No. 10.) Baughman/McMillan have been unable to use the Disputed Area to install a fence along what they contend is the property line, to expand their garden as a result of Hess/Azcona’s use of the Disputed Area, or to use and possess their property. (B/M Fact Nos. 11 and 12.)

Baughman/McMillan argue there are no triable issues of fact as to the Second Cause of Action because the balance of hardships clearly favors them. They argue that without the equitable easement, Hess/Azcona would still have a sufficient parking area in front of their garage and their only “hardship” would be having to back out their vehicles to exit rather than turning around on-site, and to remove improvements they put in the Disputed Area. In contrast, with the requested easement, Baughman/McMillan would not be able to remove two trees due to Hess/Azcona’s occupation of that area, their enjoyment of an adjacent garden would be negatively impacted, and they would lose 853 square feet of their own property.

The Court agrees that Hess/Azcona have not raised a triable issue of fact that any hardship they would suffer from not having an equitable easement is “greatly disproportionate” to the hardship Baughman/McMillan would suffer in losing use and possession of their property and the ability to remove trees they believe pose some risk to their property. The scales are already tipped in favor of Baughman/McMillan as the property owner, and the hardship to Hess/Azcona is not significant. Hess/Azcona would still be able to park cars outside their garage and exit the property via their driveway, albeit now in a manner that is more inconvenient to them.

McMillan states in paragraph 15 of her declaration that before Hess/Azcona’s depositions in May 2025, she never saw them turn around in their driveway and instead backed down the driveway. Hess/Azcona do not dispute this in their opposing declarations. Further, while Hess/Azcona would no longer have possession or control over any improvements in the Disputed Area such as vegetation or irrigation, this hardship, if any, is minimal as there is no evidence that these serve any particular purpose for the safety or functionality of the Hess/Azcona property.

Hess/Azcona do not identify any such purpose in their response to Baughman/McMillan’s separate statement, focusing instead on the driveway issue. The hardship to Hess/Azcona is similar to that in Shoen, supra, in which the hardship the trespassing party suffered was having to remove patio furniture, having to use a stairway that led to her neighbor’s property, and not being able to use the property. The court held the trespasser’s hardship was not enough to outweigh the property owner’s hardship with respect to the loss of her property.

In contrast, courts have found greatly disproportionate hardship where, for example, a party’s property would be landlocked without an equitable easement. (See e.g., Hinrichs v. Melton (2017) 11 Cal.App.5th 516; Linthicum v. Butterfield (2009) 175 Cal.App.4th 259.) That kind of significant hardship does not exist here.

The motion for summary adjudication of Issue No. 1 is granted.

Issue No. 2/Third Cause of Action

Hess/Azcona’s Third Cause of Action for prescriptive easement alleges that Hess has utilized the Disputed Area as part of his property for over five years, in an open and obvious way such that Baughman/McMillan have had actual or constructive notice of the use. Hess’ use has been continuous, uninterrupted, open and easily observable, and not subject to Baughman/McMillan’s permission.

“ʽTo establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.’” (Hansen v. Sandridge Partners, LP (2018) 22 Cal.App.5th 1020, 1032 [citation omitted].) “An easement gives a nonpossessory and restricted right to use a specific use or property upon another’s property, which right must be less than the right of ownership.” (Mehdizadeh v.

Mincer (1996) 46 Cal.App.4th 1296, 1306 [emphasis in original].) “ʽAn exclusive prescriptive easement is . . . a very unusual interest in land. The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute. . . An easement, after all, is merely the right to use the land of another for a specific purpose - most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period.

An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate.’” (Id. at p. 1302 [citation omitted].)

Where a neighbor’s use is not in the nature of an easement but instead is an exclusive use, the neighbor cannot claim a prescriptive easement. (See Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1186.) A formal fence or walls is not required. For example, in Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1094, the neighbor installed trees, planter boxes, and an irrigation system which prevented the property owner from putting in a driveway, running utility lines, installing a fence along the boundary line, or using it for any other practical purpose. The Harrison court concluded that because of the exclusive nature of the neighbor’s use, the neighbor was not entitled to a prescriptive easement. (Ibid.)

The parties here focus on the issue of exclusive use by Hess/Azcona. Baughman/McMillan’s Issue No. 2 states: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ prescriptive easement claim because Defendants enclose and possess the encroachment areas.”

Baughman/McMillan’s Fact No. 5 states: “Defendants have fully enclosed and possessed both the 199-Square -Foot Encroachment Area and the 654-Square-Foot Encroachment Area to the exclusion of Plaintiffs’ use and enjoyment.” Baughman/McMillan cite to Hess’s and Azcona’s deposition testimony in which they discuss the improvements they made in the Disputed Area, and McMillan’s statement in paragraph 5 of her declaration in which she states: “Defendants have fully possessed both the 199-Square-Foot Encroachment Area and the 654- Square-Foot Encroachment Area, to the complete exclusion of my husband’s and my use and enjoyment of those portions of our property.”

Notably, Hess/Azcona do not dispute that their use of the Disputed Area has been exclusive and that they seek to continue this use by way of prescriptive easement. Both Hess and Azcona confirm their use has been exclusive in their declarations. Azcona states in his declaration that they have “used and possessed the area behind

our electric gate and fence as our own” and Hess states that he has “continuously and exclusively used and possessed that area as part of my own property . . . No one else has shared that use.”

While Hess/Azcona argue that the Disputed Area was enclosed even before Baughman/McMillan purchased their property, they do not explain how this changes the prescriptive easement analysis. The analysis focuses on exclusive use, and there is no dispute that Hess/Azcona’s use has been exclusive such that Baughman/McMillan have been unable to use the property themselves for any practical purpose. Hess/Azcona’s exclusive use is inconsistent with the concept of a prescriptive easement.

The motion for summary adjudication of Issue No. 2 is therefore granted.

Issue No. 3/Third Cause of Action

Baughman/McMillan’s Issue No. 3 also pertains to the requested prescriptive easement, and provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ prescriptive easement claim because Defendants’ possession and use of the encroachment areas is not adverse.”

Baughman/McMillan argue that Hess/Azcona cannot prevail on their prescriptive easement claim because they cannot show their use was adverse or hostile to Baughman/McMillan. “The term ‘adverse’ in this context is essentially synonymous with ‘hostile’ and ‘under claim of right.”’ [Citations.] A claimant need not believe that his or her use is legally justified or expressly claim a right of use for the use to be adverse. [Citations.] Instead, a claimant’s use is adverse to the owner if the use is made without any express or implied recognition of the owner’s property rights. [Citations.] In other words, a claimant’s use is adverse to the owner if it is wrongful and in defiance of the owner’s property rights. [Citation.]” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1181 [citation omitted].) “ʽUse with the owner’s permission . . . is not adverse to the owner.ʾ” (Ibid. [citation omitted].)

Baughman/McMillan contend that Hess/Azcona’s use was not adverse or hostile because Baughman/McMillan gave them permission to use it. Specifically, they argue that they (Baughman/McMillan) knowingly constructed the existing fence on their own property, which constituted implied permission for Hess/Azcona to use the Disputed Area outside the fence, and the parties enjoyed friendly relations for 22 years after Hess purchased his property. They further contend that the only statements Hess/Azcona made resembling a claim of right to the property were in 2018 when they demanded evidence that the tree was on Baughman/McMillan’s property before it was removed, and even then they acknowledged uncertainty about the boundary. Hess/Azcona argue that their use was adverse because both sides agree that they treated the Disputed Area as if it was theirs.

The motion for summary adjudication of Issue No. 3 is denied. Hess/Azcona have raised a triable issue of fact as to whether their use was hostile or adverse. Among other things, a triable issue of fact exists as to whether Baughman/McMillan knew that the Disputed Area was part of their property and were merely allowing Hess/Azcona to use it. Ms. McMillan’s declaration appears to be drafted carefully so as to avoid actually making this statement. (See McMillan Decl., ¶¶10-13.)

Issue No. 4/Fourth Cause of Action

Baughman/McMillan’s Issue No. 4 provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ claim for quiet title by adverse possession because Defendants’ possession and use of the 654-square foot encroachment area and 199- square foot encroachment area is not adverse.”

The motion for summary adjudication of Issue No. 4 is denied for the reason discussed above in connection with Issue No. 3, as both issues are based on whether Hess/Azcona’s use was hostile or adverse. The Court does not address Baughman/McMillan’s arguments regarding taxes as these were raised for the first time in their Reply and Hess/Azcona have not had a meaningful opportunity to respond.

Issue No. 5/Fifth Cause of Action

Hess/Azcona’s Fifth Cause of Action alleges assault. In paragraph 23b of the Cross- Complaint, Hess alleges that Baughman “roughly brushed Hess with his car while Hess was walking his dog.” “The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Baughman/McMillan’s Issue No. 5 provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ assault claim because the claim is barred by the applicable statute of limitations.”

Baughman/McMillan argue that any claim based on the alleged car brushing incident (which they dispute happened) is untimely under the two year statute of limitations for assault under Code of Civil Procedure Section 335.1. Notably, Hess/Azcona do not dispute Baughman/McMillan’s Fact No. 5, which states: “The alleged car-brushing incident occurred more than two years prior to the filing date of Defendants’ cross-complaint.” To this, Hess/Azcona respond: “Undisputed but immaterial.”

Hess/Azcona attempt to avoid summary adjudication by relying on the continuing violation doctrine. “Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1198.) Hess/Azcona argue that Baughman/McMillan engaged in a continuing course of hostile and threatening conduct towards them, including a “persistent practice of glaring at Defendants in a hostile and threatening manner when encountering them on Crest Road”.

Hess/Azcona cite to paragraph 13 of Hess’ declaration, in which Hess discusses conduct involving Baughman/McMillan and their family. The interactions involving Baughman/McMillan’s son, the parties’ neighbors, the Ross

School District representative, and surveyors are not relevant to any alleged assault by Baughman or McMillan on Hess. With respect to Baughman and McMillan, Hess states that they “glare at us in a hostile and threatening manner” and train cameras and audio recording devices on their property.

Hess/Azcona’s argument fails. Even assuming an assault claim can be based on these additional allegations – for which Hess/Azcona cite no authority – the continuing tort doctrine would not apply here. For this doctrine to apply, the conduct must be sufficiently similar in kind. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059; Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 326.) The alleged car brushing incident and the alleged “persistent glaring” and other allegations are not sufficiently similar in kind to support application of this doctrine to Hess/Azcona’s assault claim here. Accordingly, the motion for summary adjudication of Issue No. 5 is granted.

Issue No. 6/Seventh Cause of Action

Hess/Azcona’s Seventh Cause of Action for trespass alleges that Braughman/McMillan wrongfully entered onto Hess/Azcona’s property. “Trespass is an unlawful interference with possession of property.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.)

Baughman/McMillan’s Issue No. 6 provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ trespass claim because Muir Consulting had permission to enter Defendants’ property under Civil Code § 846.5, and any such entry was lawful, necessary to locate monuments and mark property boundaries, and incidental to locating topical features shown on the recorded survey.”

Civil Code Section 846.5(a) provides: “The right of entry upon or to real property to investigate and utilize boundary evidence, and to perform surveys, is a right of persons legally authorized to practice land surveying and it shall be the responsibility of the owner or tenant who owns or controls property to provide reasonable access without undue delay. The right of entry is not contingent upon the provision of prior notice to the owner or tenant. However, the owner or tenant shall be notified of the proposed time of entry where practicable.”

Baughman/McMillan argue that there was no “unlawful” interference with Hess/Azcona’s property because the individuals who went on the property were from a licensed surveying firm (Muir) performing a boundary survey (B/M Fact No. 4), and thus their presence on their property was privileged and allowed under Section 846.5. Hess/Azcona argue that Section 846.5 only allows for entry and does not authorize damage to the property. They contend that the surveyors damaged a natural retaining wall, causing soil to fall on the driveway.

While Hess/Azcona’s argument may be valid if they had stated a negligence or similar claim for property damage, the cause of action at issue here is trespass. The Cross-Complaint alleges wrongful entry and nothing more. (See Cross-Complaint, ¶87.) “It is well settled that the pleadings set the boundaries of the issues to be resolved at summary judgment. Thus, a defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.] To create a triable issue of material fact, the opposition evidence must be directed to issues raised by

the pleadings.” (Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 255 [citations and internal quotations omitted].) Accordingly, Hess/Azcona cannot defeat summary adjudication on the basis of a property damage claim not actually alleged in the Seventh Cause of Action.

Hess/Azcona also argue that the surveyors entered four times, staking inconsistent lines, and conceded that only a slight entry was possible. Therefore, Hess/Azcona contend, there is a triable issue of fact as to whether the surveyors exceeded any right of entry. However, there are no limits on the number of entries set forth in Section 846.5. The statute authorizes entry to “investigate and utilize boundary evidence, and to perform surveys.” Hess/Azcona do not submit evidence that the surveyors entered for any other purpose, and therefore there is no evidence in the record that the surveyors exceeded the authority granted to them under the statute. The motion for summary adjudication of Issue No. 6 is granted.

Issue No. 7/Eighth Cause of Action

Hess/Azcona’s Eighth Cause of Action for slander of title alleges that Baughman/McMillan made statements to third parties, including but not limited to Town of Ross officials, and to neighbors, that cast doubt upon Hess’ ownership of the Disputed Area. They further allege that they suffered financial harm by incurring legal expenses necessary to remove the doubt cast by Baughman/McMillan and to clear title, and by suffering inconvenience and loss of time.

“To establish slander of title, a plaintiff must show: (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 612-613 [citation and internal quotations omitted].)

The parties here focus on the last element. Baughman/McMillan’s Issue No. 7 provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ slander of title claim because Defendants cannot establish that they suffered a direct and immediate pecuniary loss.”

Baughman/McMillan rely on their Fact No. 4, which states that Hess/Azcona have not sold their property or identified a pending property sale that has been disturbed by this litigation. In response to this fact, Hess/Azcona state: “Undisputed that 45 Crest Road has not been sold and that no pending sale has been disrupted; disputed that Defendants have suffered no pecuniary loss, and immaterial.”

Hess/Azcona argue that a lost sale is not the only type of damage that can support a slander of title cause of action. They cite to paragraph 14 of Hess’ declaration, in which he states: “As a result of Plaintiffs’ statements and their recorded survey casting doubt on my title, I have incurred, and continue to incur, expenses to remove that doubt and clear the title to my property, As the owner of 45 Crest Road, it is my opinion that Plaintiffs’ recorded survey and their statements have reduced the market value of my property.” Hess/Azcona also point to their verified Cross-Complaint in which they allege in paragraph 98 that they have incurred legal expenses, inconvenience, and loss of time.

“In an action for wrongful disparagement of title, [FN] a plaintiff may recover (1) the expense of legal proceedings necessary to remove the doubt cast by the disparagement, (2) financial loss resulting from the impairment of vendibility of the property, and (3) general damages for the time and inconvenience suffered by plaintiff in removing the doubt cast upon his property.” (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 865.) Here, while Hess/Azcona make a weak showing as to damages in that they fail to identify any damages with specificity, Hess’ statement that he has suffered some damage by way of legal expenses and general damages for time and inconvenience is sufficient to survive summary adjudication of this issue.

Baughman/McMillan have not shown that Hess/Azcona cannot prove damages, and therefore summary adjudication is inappropriate. The motion for summary adjudication as to Issue No. 7 is denied.

Issue No. 8/Ninth Cause of Action

Hess/Azcona’s Ninth Cause of Action for intentional infliction of emotional distress alleges that Baughman/McMillan’s conduct was outrageous and intended to cause Hess/Azcona severe emotional distress, and that they should have known Hess was particularly more susceptible to emotional distress given his mental health disorder.

“The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) suffering of severe or extreme emotional distress by the plaintiff; and (3) the plaintiff's emotional distress is actually and proximately the result of defendant's outrageous conduct. Extreme and outrageous conduct is conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community and must be of a nature which is especially calculated to cause, and does cause, mental distress.” (Chang v. Lederman (2009) 172 Cal.App.4th 67, 86-87 [citations and internal quotations omitted].)

Baughman/McMillan’s Issue No. 8 provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ claim for intentional infliction of emotional distress because Plaintiffs’ conduct in seeking to resolve the property dispute was legitimate and was not extreme or outrageous.” Baughman/McMillan cite to Hess’ deposition testimony in which he stated that the conduct underlying this cause of action was: (1) Baughman/McMillan sent Hess/Azcona emails concerning the tree and property line dispute, beginning in 2018; (2) Baughman/McMillan obtained a boundary survey in March 2022; (3) in January 2023, Baughman/McMillan notified Hess of their intent move the fence; and (4) Baughman/McMillan filed the underlying civil action on May 2024.

Hess/Azcona state that Hess testified as to additional conduct underlying this cause of action as well, namely, (1) Baughman/McMillan’s adult son Jack yelled “faggot, faggot, faggot” at Hess from the pool house, within Hess’s view; (2) Baughman/McMillan told neighbors that they were taking legal action against Hess “because of criminal behavior”; (3) McMillan, an elected Ross Town Council member, influenced the exclusion of 45 Crest Road from the Ross School District; and a school administrator told Hess to “Ask Julie McMillan”; (4) Baughman/McMillan made false complaints that Hess characterized as a means “to harass, to create fear, to intimidate”; and (5) there was a pattern of bullying and harassment by Baughman/McMillan and their two sons.

Hess/Azcona have raised a triable issue of fact as to whether Baughman/McMillan’s conduct was sufficiently extreme and outrageous so as to support a cause of action for intentional infliction of emotional distress. The motion for summary adjudication of Issue No. 8 is denied.

Issue No. 9/Ninth Cause of Action

Baughman/McMillan’s Issue No. 9 also challenges the Ninth Cause of Action, and provides: “The Court should grant summary adjudication in Plaintiffs’ favor on Defendants’ claim for intentional infliction of emotional distress because Plaintiffs’ alleged outrageous conduct predates the limitations period, except for Plaintiffs’ filing of the initial complaint on May 31, 2024.”

The statute of limitations for an intentional infliction of emotional distress cause of action is two years. (Code Civ. Proc. § 335.1.) Hess/Azcona filed their Cross-Complaint on October 17, 2024. (B/M Fact No. 6.) Therefore, Hess/Azcona’s cause of action must have accrued no earlier than October 17, 2022 to be timely.

The parties’ positions on the conduct in dispute is the same as their positions with respect to Issue No. 8; Baughman/McMillan contend it is the conduct they identify in their Separate Statement, while Hess/Azcona contend it is also the additional conduct they identify in respect to their Separate Statement. As Hess testified as to all of this conduct in his deposition, the Court considers the additional conduct identified by Hess/Azcona in determining whether this cause of action is timely.

Hess/Azcona do not dispute that the conduct identified by Baughman/McMillan in their separate statement (B/M Fact No. 1) does not, alone, support a cause of action. This is because the conduct either occurred before October 17, 2022 and because the filing of a complaint cannot support their claim. (See H/A Response to B/M Fact Nos. 1 and 11 [“Defendants’ claim does not rest on Plaintiffs’ filing of the civil action”].) Instead, Hess/Azcona on Hess’ testimony that there has been a “pattern” of harassment which they argue continued through the filing of the Cross-Complaint. Hess/Azcona contend that their claim is timely under the continuing tort or continuing violation doctrine.

Hess/Azcona do not raise a triable issue of fact as to whether there was a continuing violation. The only specific conduct they identify that occurred after October 17, 2022 is Baughman/McMillan advising them in January 2023 that they intended to move the fence, Baughman/McMillan glaring at them, and Baugman/McMillan placing cameras in their direction. Hess/Azcona appear to concede that the other conduct they rely on occurred before October 17, 2022. With respect to the January 2023 conduct, a neighbor telling another neighbor that they intend to move a fence to a property line identified in a survey does not support a cause of action for intentional infliction of emotional distress.

Further, it is undisputed that Baughman/McMillan have not even moved the fence. (B/M Fact No. 9.) Glaring and camera placement similarly do not support such a cause of action. This conduct is also not sufficiently similar to the primary conduct supporting Hess/Azcona’s claim (e.g., homophobic slurs, referencing criminal behavior), which falls outside the limitations period, to support the continuing violation doctrine.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for August, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov