CHRIS B. BARGER v. ANDREW W. LANDIES, ET AL

The motion for summary adjudication of Issue Nos. 1-3 is granted.

Allegations in the Complaint and Cross-Complaint

Complaint

In his Complaint, Plaintiff/Cross-Defendant Chris Barger (“Barger”) alleges that he owns 682 Wilson Avenue in Novato (“the Barger Property”), where he lives with his wife, Cross- Defendant Myrna Barger (collectively, Chris and Myrna are the “Bargers”). (Complaint, ¶ 1.) Cross-Complainants Andrew W. Landies and Kristina J. Landies (the “Landies”) own and reside at 688 Wilson Avenue (“the Landies Property”). (Id. at ¶ 4.) Prior to 1972, the Barger Property and the Landies Property were each part of the same parcel owned by Dora Cash Young (“Young”). (Id. at ¶ 11.)

In 1972, Young subdivided the parcel into smaller parcels comprising the Pine Knoll Estates subdivision. (Id. at ¶ 12.) The subdivision’s Lot 3 became the Landies Property, and a portion of Lot 4 became the Barger Property. (Id. at ¶ 13.) There is a well on the Barger Property. (Id., ¶ 15.) Barger alleges that he has the right to use the water from the well and that the Landies have no recorded easement or license pertaining to the well. (Id. at ¶¶ 17- 19.) Still, the Landies believe that they have a right to use the water from the well and to encroach upon the Barger Property to do it. (Id. at ¶¶ 21-22.)

In October 2023, the Landies ran a pipe from the Landies Property through the Barger Property to the well. (Id. at ¶ 22.) Barger asserts causes of action to quiet title and for declaratory relief and trespass.

Cross-Complaint

The Landies filed a Cross-Complaint against the Bargers alleging that until 1972, the Barger Property and the Landies Property were part of a larger undivided parcel (the “Original Property”). The Original Property was originally owned by Joseph Cash (“Joseph”) and Dora

Cash (“Dora”). (Third Amended Cross-Complaint (“TAXC”), ¶ 6.)1 Joseph and Dora’s son Lester Cash (“Lester”) married Lillian, who became Lillian Cash (“Lillian”). Joseph died and Dora later married Robert Young and became known as Dora Cash Young. Dora owned the property with Lester, who died in 2016. After Lester’s death, the property now known as the Landies Property was owned by Lillian and her son Jeffrey Cash. Dora/Lester dug the well that is in dispute. Prior to any subdivision of the Original Property, the well was located on the Original Property and was used to provide water to the Cash residence on the Original Property. (Ibid.)

In 1982, Lester submitted an application to the California State Water Resources Control Board (“SWRCB”) for a permit to formalize exclusive rights to utilize water from Pine Knoll Creek and related underflow through the well. (Id.) In support of his application, Lester submitted a map showing the location of the well on the Original Property on what is now known as Parcel 4/the Barger Property, the location of a clearly visible pump on what is now known as Lot 3/the Landies Property to draw water from the well, and piping to deliver the water from the well to what is now known as the Landies Property. (Id. and Exh. A to the TAXC.)

In August 1982, the SWRCB issued a Report of Inspection confirming the application, that the primary use of the water from the water source was for the Cash single family residence that then existed on the Original Property, the well’s exact location, and that there was a single connection for delivery of the water from the well located on what is now known as the Barger Property to the residence on what is now known as the Landies Property. The report also confirmed that there were separate and preexisting riparian water rights owned and utilized by Cash related to the Original Property. (Id. and Exh. B to the TAXC.)

Based on the application, map and SWRCB report, Dora/Lester obtained a license for diversion and use of water from the SWCRB, allowing them the right to appropriate water from the water source utilizing the well on what is now known as the Barger Property to do so. Lester and his family continued to maintain the license from that date forward until the Original Property was subdivided and Lot 3 was sold to the Landies. The license has been continued in effect by all predecessors to Landies (including Lester’s grandson Jeffrey) and by the Landies, for the benefit of what is now known as Lot 3/the Landies Property.

On March 13, 1989, evidence of the license was recorded in the official records of the County of Marin. The Landies Property owners have paid all required fees and costs to maintain the license, to report on water usage, to allow inspections and to otherwise comply with SWRCB requirements to maintain the license. (Id., ¶7 and Exh. C to the TAXC.)

In 1972, Dora/Lester subdivided the Original Property into smaller parcels and the subdivision created what is known as Pine Knolls Estates. (Id., ¶8 and Exh. B to the TAXC.) However, the subdivision map fails to properly show the well and the rights to the well that are for the benefit of what is now known as Lot 3/the Landies Property. Before and after the subdivision of the Original Property, when Dora/Lester sold the lots subject to the subdivision

1 The TAXC was filed after the Bargers filed their motion for summary adjudication but before the Landies filed their Opposition. The filing of the TAXC was allowed by a July 23, 2026 Order following an ex parte application filed by the Landies. According to the Landies, the TAXC makes only minor corrections to the Second Amended Cross-Complaint. Many of the allegations in the TAXC are made on information and belief.

(including Lot 3 and Lot 4), they intended to and did convey the rights to access the Barger Property and to use the well to access the water from the water source, i.e., a well easement, to the owner of Lot 3 only, which is now known as the Landies Property and that all any owners of Lot 4 would be subject to such rights. (Id., ¶8.)

The home and improvements on what is now known as Lot 4/the Barger Property were constructed in 1979. The Bargers became the owner of the Barger Property in 2012. All of the Bargers’ predecessor owners did not use the well to obtain water. The Landies became the owner of Lot 3/the Landies Property in 2020. The Landies’ predecessors continuously used the well in an open and notorious way and understood that the well located on the Barger Property would continue to be used exclusively for the benefit of Lot 3/the Landies Property, and did not oppose or contest the well easement. (Id., ¶10.)

The Bargers knew at all times the well was intended to be used solely for the Landies Property. The well was prominent and visible, the water license was recorded at the time the Bargers purchased their property, the well delivered water only through a system to the Landies Property at the time the Bargers purchased their property, and Andrew Landies told Chris Barger that the Bargers had no right to use the well. (Id., ¶11.) The tenant who lived on the Landies Property from 2006-2019, Dave Maahs, agreed to help the Bargers access water from the well and they both used water from the well through 2019.

These actions were taken on Mr. Maahs’ own accord and without the consent of Jeffrey, the Landies’ predecessor. (Id., ¶12.)

Recently, the flow from the well through the piping to the Landies Property has been reduced to almost nothing. The Landies believe the Bargers have taken action to reduce the flow. (Id., ¶13.)

An agreement recorded in the Marin County’s Recorder’s Office in April 1973 references the well located in Parcel C of the map of Pine Knoll Estates. The Landies believe this provides evidence of an easement for the benefit of the Landies’ Property to access the well on the Barger Property. (Id., ¶14.)

The Landies’ First Cause of Action seeks to quiet title to easement by prescription, the Second Cause of Action seeks to quiet title to easement by implication, the Third Cause of Action asserts easement by necessity, the Fourth Cause of Action alleges continuing trespass, the Fifth Cause of Action alleges fraud, the Sixth Cause of Action seeks declaratory relief, and the Seventh Cause of Action seeks injunctive relief.

The Bargers move for summary adjudication of the Third, Fourth and Fifth Causes of Action in the Landies’ Cross-Complaint.

Timeliness

The Landies argue that the Bargers’ motion is improper because it is set to be heard only six days before trial. However, the Court recently continued the trial date to September 28, 2026 upon conferring with the parties. While the motion will be heard just shy of 30 days, in light of the parties agreed upon scheduling and difficulties with scheduling the trial in October, the Court finds good cause to hear the motion 26 days before trial. The Court will therefore rule on the motion. (See Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765 n. 4; Edmon &

Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group June 2026 Update) § 10:74.)

Procedural Deficiencies

The Bargers submit a “Reply Separate Statement” with their Reply brief. This is not a recognized pleading and is an improper attempt to bypass the page limit requirements for the brief. The Court does not consider the “Reply Separate Statement” when ruling on this motion.

The Landies violate California Rule of Court 3.1350(f)(3) by including their chart of additional facts in the middle of their Opposition brief rather than at the end of their responsive Separate Statement.

Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ.

Proc. § 437c(p)(2).) “Once the defendant . . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc. § 437c(p)(2).) “A triable issue of material fact exists if the evidence reasonably permits a trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof.” (Bakos v. Roach (2025) 108 Cal.App.5th 390, 395.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc. §437c(c).) The moving party’s evidence must be strictly construed, while the opposing party’s evidence must be liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838.) Any evidentiary doubts are resolved in favor of the opposing party. (City of Santa Cruz v. Pacific Gas & Elec. Co. (2000) 82 Cal.App.4th 1167, 1176.)

Request for Judicial Notice

The Bargers’ request for judicial notice of the Individual Joint Tenancy Deed recorded on April 20, 1973 (Exhibit 13), the Decree filed in Marin County Superior Court and recorded on October 31, 1975 (Exhibit 14), the map of Pine Knoll Estates recorded on August 25, 1972 (Exhibit 15), and the parcel map recorded on February 7, 1977 (Exhibit 16), is granted. The Landies’ request for judicial notice of the Pine Knolls subdivision map recorded on February 7, 1977 (Exhibit A), the Declaration of David Maahs filed on July 16, 2025 in this action (Exhibit B), the notice of lodging certified deposition transcript of Chris Barger previously lodged in this Court on May 18, 2026 (Exhibit C), the notice of lodging certified deposition transcript of Bill Curry previously lodged in this Court on May 18, 2026 (Exhibit D), and the notice of lodging certified deposition transcript of Andrew W.

Landies (Exhibit E), is also granted. (Evid. Code §§ 452, 453.)

Evidentiary Objections

The Bargers’ Objection Nos. 7 (personal knowledge as to Mr. Barger’s intent or mental state), 10 (hearsay), 11 (hearsay as to Ms. Barrett’s statements), 12 (hearsay as to Ms. Barrett’s statements), 20 (hearsay as to Mr. Anderson’s statements), 21 (hearsay as to Mr. Maahs’ statements to Mr. Barger), 24 (hearsay as to Mr. Maahs’ statements), 25 (hearsay as to Mr. Maahs’ statements), 27 (hearsay as to Mr. Maahs’ statements), 36 (hearsay as to Mr. Maahs’ statements), 38 (legal conclusion as to whether Mr.

Landies purchased the water rights), 40 (Evid. Code § 1523), 41 (hearsay as to Mr. Cash’s statements), 43 (legal conclusion as to “my water rights”), 45 (personal knowledge/foundation as to what Mr. Barger and Mr. Maahs did), 46 (personal knowledge/foundation as to what Mr. Barger and Mr. Maahs did, what prior owners did, how the well previously operated, and who was previously allowed to use the well; legal conclusion as to “Unlawful Scheme”), 47 (personal knowledge/foundation), 48 (Evid. Code § 1523; legal conclusion as to “unlawful scheme”), 50 (personal knowledge as to what the Bargers have paid to SWRCB), and 51 (foundation), are sustained.

Objection Nos. 1-6, 8, 9, 13-19, 22, 23, 26, 28-35, 39, 42, 44, 49, and 52 are overruled.

To the extent the Bargers’ objections are not sustained for the specific reasons noted above, the objections are overruled.

Issue No. 1/Fifth Cause of Action - Fraud

The Fifth Cause of Action alleges that when the Bargers purchased their property, they knew there was a well on the property, that the well was for the benefit of the Landies Property, that the owners of the Landies Property had the right to access and use the well, and that the Bargers did not have the right to use the well. With this knowledge, the Bargers acted in concert with Mr. Maahs to secretly and unlawfully divert the water from the well to their own use and install the infrastructure to do so.

After the Landies purchased their property, Chris Barger falsely stated that he was ignorant of any rights of any owners of the Landies Property to use the well and instead asserted that the Landies had no such rights. He did so to induce the Landies to relinquish their rights to use and access the well. As a result, the Landies have suffered a reduction in flow from the well and cannot develop their property as they intended.

The Bargers move for summary adjudication of the fraud cause of action on the ground that the Landies do not even plead reliance in their TAXC and have admitted they did not rely on the alleged fraudulent statements of Chris Barger. Actual and justifiable reliance is an essential element of a fraud cause of action. “A plaintiff asserting fraud by misrepresentation is obliged to . . . establish a complete causal relationship between the alleged misrepresentations and the harm claimed to have resulted therefrom.

The causation aspect of actions for damage for fraud and deceit involves three distinct elements: (1) actual reliance, (2) damage resulting from such reliance, and (3) right to rely or justifiable reliance. Thus, there are two causation elements in a fraud cause of action. First, the plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” (Beckwith v.

Dahl (2012) 205 Cal.App.4th 1039, 1062 [citation and internal quotations omitted].)

The TAXC does not plead justifiable reliance. (See TAXC, ¶¶32-38; Bargers Undisputed Material Facts (“UMF”) 9, 10.) The Bargers also submit evidence that the Landies did not rely on Chris Barger’s July 22, 2022 statement because they never believed it to be true. Rather, the Landies believed that they were entitled to exclusive use of the well. Andrew Landies testified in his deposition that he did not believe Chris Barger’s statement “Yeah, that’s my well” at the time it was made. (UMF 4 [“Q. So when he disagreed, did you believe him? A. No.”].) He also testified that as of the date of this conversation with Chris Barger, he had already concluded that he was entitled to exclusively use the well based on other sources of information. (UMF 7 [“Q. So as you understood it, you had the exclusive rights to use the well and to access it? A. Yes.”].)

The Landies argue that their mind was not totally made up at the time; rather, they were in the process of investigating the parties’ rights when this conversation occurred. They cite to pages 63-65 and 91-92 of Andrew Landies’ deposition in which he testified that he did not know whose property the well was on at the time he had the conversation with Chris Barger, and the conversation was the first crack at digging into the background of the well. He also testified that by the following month, he was beginning to investigate what his rights were with respect to the well.

The Landies also submit the declaration of Andrew Landies in connection with their Opposition, in which Mr. Landies states he began his investigation in earnest after his conversation with Mr. Barger and that the Bargers continued to maintain that the Landies had no right to the well up through the time this case was filed. Because of the Barger’s threats and claims, Mr. Landies states, the Landies have taken no action to enforce their rights such as drilling a new well. (Declaration of Andrew Landies, ¶¶6-8.)

The Landies thus argue that their “reliance” on Chris Barger’s July 22, 2022 statement was expanding their investigation into who owned or had rights to the well, because the investigation was just beginning at the time of the parties’ conversation. The Landies contend that the Bargers “caused the Landies to have to investigate in earnest to establish the true facts and to determine if Barger was lying to them. Landies exercised forbearance from enforcing their easement rights to use, access or repair the Well, or apportion the Barger use of water from the Well, while they investigated the facts and claims.” (Opposition, p. 2.)

The Court grants the motion as to Issue No.

1. The TAXC does not actually allege reliance. While the Landies allege in the TAXC that the Bargers intended to induce the Landies

to relinquish their rights to use and access the well, they never allege that they did so. To the contrary, the Landies (and the Bargers) assert that they refuse to relinquish any rights, resulting in the current lawsuit. The Landies’ argument that they continued or expanded their investigation based on Mr. Barger’s statement fares no better, as the evidence submitted by the Landies on this issue is insufficient to create a disputed issue of material fact. Andrew Landies testified he did not believe Mr.

Barger’s statement at the time it was made based on information Mr. Landies had already learned. Mr. Landies’ investigation into his rights was already happening and Mr. Barger’s statement did nothing to change that. Further, the damage claimed in the Fifth Cause of Action – reduction in flow from the well, inability to access the well, inability to use and develop the Landies Property, diminution of value of the Landies Property, and legal fees to regain access to the well – are not damages from any reliance on Mr.

Barger’s allegedly fraudulent statement. (See TAXC, ¶37.) If anything, they would be damages stemming from the Bargers’ physical use and control over the well only.

The Landies argue that the Court should also consider their allegation that Mr. Barger concealed the fact that he and Mr. Maahs modified the well without permission. However, this allegation is included as factual support for their contention that Mr. Barger’s July 22nd statement was false and that he knew it was false. (TAXC, ¶34.) The allegation is not alleged as a separate basis for a fraud claim. Even if one were to read the fraud claim as including a fraudulent concealment element, however, the Landies still fail to prove reliance.

Finally, the Landies argue that the Court should also consider conduct that occurred after Mr. Barger’s statement, including the Bargers’ continued assertions of their claims and their assertion that the Landies would be trespassing if they accessed the well. These allegations are not included in the TAXC and thus outside the scope of this motion. “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, the Landies cannot defeat summary adjudication on the basis of events not actually alleged in the Fifth Cause of Action. In any event, as noted above, the Landies fail to present any evidence of reliance on this conduct.

Issue No. 2/Fourth Cause of Action – Continuing Trespass

In their Fourth Cause of Action, the Landies allege that the Bargers’ installation of piping on the Barger Property to divert water from the well, from the Landies Property to the Barger Property, has been ongoing since 2014. Further the Bargers have installed additional infrastructure onto or adjacent to the well to further divert and utilize the water for their own use. As of May 2025, the water flow from the well to the Landies Property has been reduced to almost zero.

The Bargers move for summary adjudication of this cause of action on the ground that the Landies do not allege that the Bargers entered onto, or interfered with, the Landies Property. They allege only that the Bargers performed work on piping located on the Barger Property.

“Trespass is an invasion of the plaintiff's interest in the exclusive possession of land. The essence of the cause of action for trespass is an unauthorized entry onto the land of another. Thus, in order to state a cause of action for trespass a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173-1174 [citations and internal quotations omitted].) In McBride, the court found that the plaintiff could not state an action for trespass because she could not establish that she had an exclusive possessory right in the property comprising the easement or that the defendant’s entry onto the easement property was unauthorized.

The court held: “An easement represents a limited privilege to use the land of another, . . . but does not create an interest in the land itself. An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another’s property. An easement gives a nonpossessory and restricted right to a specific use or activity upon another's property, which right must be less than the right of ownership. Thus, [t]he owner of an easement is not the owner of the property, but merely the possessor of a right to use someone’s land for a specified purpose . . .

Thus, as a matter of law, [the plaintiff] cannot state a cause of action against the [defendants] for trespassing on the Secondary Access Easement because they own that land and her easement does not give her a possessory right, not to mention an exclusive possessory right in that property.” (Id. at p. 1174 [citations and internal quotations omitted].)

Therefore, even though the Landies allege they have easement rights to access the well, the existence of this easement even if proven would not support a trespass cause of action. The Landies’ other argument focuses on a cause of action they do not actually allege, i.e., unreasonable interference with the use and enjoyment of an easement. This argument is irrelevant to the motion for summary adjudication of Issue No. 2, which challenges the Landies’ trespass cause of action.

The Landies argue in response to the Bargers’ UMF 14 that they also “allege that Barger and David Maahs wrongfully installed piping Landies to on both Landies and Barger property to unlawfully divert water from the Well and deprive the Landies Property owners from such rights.” This is not the case, however, as there is no allegation in the TAXC that that the Bargers’ modifications to the piping were on the Landies Property. The Landies also do not present any evidence of wrongfully installed piping on their property.

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

Issue No. 3/Third Cause of Action – Easement by Necessity

The Landies concede in their Opposition that they cannot show easement by necessity. (Opposition, pp. 3 and 16.) The Court therefore grants the motion as to Issue No. 3. .

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 September, 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