Weidl v. Gil CA2/6

Filed 11/4/13 Weidl v. Gil CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

LORENZ WEIDL, 2d Civil No. B244284 (Super. Ct. No. 1373629) Plaintiff and Appellant, (Santa Barbara County)

v.

JOSE GIL et al.,

Defendants and Respondents.

Plaintiff Lorenz Weidl appeals a summary judgment in favor of defendants Jose Gil and Sanjuana Gil on the grounds that Weidl's action was barred by the running of the statute of limitations. In his first amended complaint, Weidl sought damages and injunctive relief for causes of action for trespass, nuisance, negligence and unjust enrichment. We conclude, among other things, that the trial court did not err because: 1) Weidl's causes of action were subject to a three-year statute of limitations, 2) his action was untimely, and 3) he did not meet his burden to produce evidence to show that he fell within the continuing nuisance doctrine. We affirm. FACTS Weidl owns real property on Sunset Ridge in Goleta. The Gils own an adjacent parcel of real estate. A 20-foot-wide easement runs across the Gils' property that Weidl "uses as his means of ingress and egress to his property." The Gils constructed "a concrete block wall," which runs "along the length of the easement."

In June 2005, Weidl wrote to Mr. Gil about the wall and "a fence" the Gils constructed between the "adjoining properties." Weidl said, "[Y]our wall is lying well within the easement and is going to cause me to do additional reinforcing on the downhill side of the road." On July 1, 2005, he wrote to Gil and said, "[M]ajor portions of the block wall are in my easement and at one place blocks off the easement entirely. Your wall also raises drainage issues." He added, "[Y]ou have a fence at the rear of your property that actually is on my property (at least in places)." In 2005, Weidl and the Gils retained lawyers. They were unable to "reach[] a resolution." In November 2005, Weidl "discovered damage to the easement as a result of water drainage" from the wall. In June 2006, Weidl discovered damage to his property "as a result of water drainage from the Gil property." On January 20, 2011, Weidl filed a lawsuit against the Gils. In his first amended complaint, he alleged the wall and fence interfered with his property interest in the easement. He claimed the Gils' "block wall and chain link fence . . . negatively impacted" his use and enjoyment of his property, and that they were "negligently designed, located and constructed" within "the last five years." He sought damages and injunctive relief for four causes of action: trespass, nuisance, negligence and unjust enrichment. The Gils filed a motion for summary judgment claiming that all causes of action were barred by the running of a three-year statute of limitations. In opposition, Weidl said, "Plaintiff continues to accrue damages to his easement every time it rains because Defendants' wall is improperly designed and constructed." He attached his declaration and an engineering report. In granting summary judgment, the trial court said Weidl "does not dispute the fact that this action is brought more than three years after he became aware of the alleged encroachments and issues regarding drainage from the hill on which the wall sits. . . . Plaintiff has failed to carry his burden of demonstrating a triable issue of fact supporting the continuing nuisance exception to the statute of limitations."