Seraji v. Demirjian
Filed 7/17/14 Seraji v.
Demirjian CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
ARJANG SERAJI, as Trustee etc.,
Plaintiff and Appellant,
v.
SHANE DEMIRJIAN,
Defendant and
Appellant.
G048611
(Super. Ct.
No. 30-2011-00489412)
O P I N I O
N
Appeal from a judgment
of the Superior Court of Orange County,
Jamoa A. Moberly, Judge. Reversed in
part and affirmed in part and remanded with directions.
Mollis & Mollis and
Charles A. Mollis for Plaintiff and Appellant.
Niebow Law, Steven N.
Niebow and R. Timothy O’Connor for Defendant and Appellant.
*
* *
It
is often said that good fences make good neighbors. One might wonder whether there actually is such
a correlation between good fences and good neighbors and, if so, whether causality
runs in the opposite direction (i.e., maybe good neighbors build good fences). But it cannot be denied that a good fence
accurately demarcating the boundary between the parties’ real properties in
this case could have avoided substantial expense and grief. Defendant Shane Demirjian built a wall and
patio encroaching on the undeveloped property of his future neighbor. Plaintiff Arjang Seraji
subsequently purchased the undeveloped property, discovered the encroachment,
and sued Demirjian. The lawsuit
concluded with a judgment in favor of Seraji, ordering the removal of the
encroachment and awarding damages under several
ejectment).
Demirjian
appeals, claiming (1) Seraji’s claims are time-barred by a three-year statute
of limitations (Code Civ. Proc., § 338, subd. (b)), and (2) the judgment
provides a double recovery to Seraji, who should have been forced to elect between
his remedies prior to trial. Seraji,
dissatisfied with the extent of his victory, cross-appeals, asserting (1) the
jury’s special verdict was inconsistent with regard to his percentage of
causes of action, (2) the court erred in excluding certain proposed trial
exhibits, and (3) Seraji should have been allowed to recover attorney fees
pursuant to Civil Code section
3334. We agree with Demirjian’s
contentions regarding the statute of limitations as applied to Seraji’s
trespass and nuisance causes of action.
We therefore reverse the judgment to eliminate the recovery of damages
on those causes of action, and direct the trial court to enter a modified
judgment reflecting the elimination of damages on Seraji’s
FACTS
Evidence
at Trial
2085
Temple Hills Drive (the Demirjian Property) and 2095
Temple Hills Drive (the Seraji Property) are next
to each other in Laguna Beach, California.
Demirjian purchased the Demirjian
Property in May 2004.
The
encroachment at issue consists of a two-and-one-half foot high wall and a
portion of a concrete patio. Demirjian
describes the wall as a “stub wall to sit on.†The wall is 60 to 70 feet long. The encroachment is a wedge-shaped section of
the Seraji Property (almost a right triangle, except with a curved hypotenuse)
that is 15.1 feet wide at its widest point and 3.7 feet at the ends of the
wedge.
total encroached upon area is 405 square feet. Demirjian claimed he constructed the rear
patio and stub wall for safety reasons, such as a “cliff†just beyond the wall
and wildlife in the undeveloped area bordering the Demirjian Property. Demirjian did not research his property line
when constructing these improvements, but “basically squared off [his] backyard
from the neighbor’s back wall to the side of [his] house.†Demirjian did not attempt to notify the owner
of the Seraji Property. “I thought it
was the county[’s] property†next to mine and “in my mind I wasn’t encroaching
on anybody’s land.†“It was a big
mistake.†According to
between $4,689 and $10,000 to remove the encroachment from the Seraji Property.
Demirjian
testified it was about August 2007 when he constructed his rear patio and wall.
According to Demirjian, it took two to
three weeks to complete this project. In
his testimony, Seraji indicated he “believe[d] it was maybe 2007†when the
encroachment onto the Seraji Property was built. As described below in more detail, this is
consistent with Seraji’s pleadings, which allege 2007 as the estimated date of
construction. There were no permits or
other documentation to confirm the date of construction.
In
May 2010, Seraji purchased the Seraji Property. At the time, the Seraji Property was a large, empty
lot with brush and canyons. “It was just
an open field with brushes, grasses, a bunch of chaparral. You could barely walk the hill.†Seraji “probably†saw Demirjian’s patio at the
time he inspected the Seraji Property prior to purchasing it, but it appeared
to Seraji that it was appropriately placed and did not encroach on the Seraji
Property.
Seraji
planned to construct a residence at the Seraji Property. He relied on his brother-in-law, Nick
Shahrestany, to manage and oversee construction details. In April 2011, a survey conducted at Seraji’s
instruction indicated there was an encroachment on the Seraji Property. Prior to this time, Seraji was unaware there
was an encroachment.
After
discovery of the encroachment, Shahrestany struggled to contact Demirjian, who
had apparently leased the Demirjian Property to a tenant. Once a phone call finally connected the two
men, Demirjian first claimed it was his land, then claimed the encroachment was
present when he bought the Property, then offered to buy the portion of the
Seraji Property that had been encroached upon.
Demirjian refused to remove the encroachment, which Shahrestany insisted
was necessary for reasons peculiar to local regulatory requirements and the
architectural plans for the Seraji Property. Demirjian responded that he thought he had
“tenure†and would contest the matter in court. On June
24, 2011, an attorney for Seraji wrote a letter to Demirjian
demanding the removal of the “patio area which encroaches on my client’s
property.†This was just the beginning
of a long legal fight culminating in this appeal.
While
the lawsuit was pending, construction continued on the Seraji Property. At the time of trial, approximately $7
million had been spent and the project was nearly completed. According to Seraji’s percipient and expert witnesses,
plans had to be changed because Demirjian refused to remove the encroachment,
resulting in significantly higher costs and diminished features at the Seraji
Property. None of the issues raised on
appeal, however, pertain to the amount of damages allegedly caused by the
encroachment, so we need not describe the lengthy portions of the record
contesting this question (e.g., construction witnesses, appraisers).
On
July 7, 2011, Seraji filed
his initial complaint “in ejectment and for damages†against Demirjian. This complaint alleged that “[i]n or around
2007, and within five years next immediately preceding the commencement of this
action,†Demirjian “appropriated and took possession†of approximately 405
square feet of Seraji’s land to build a patio area. Demirjian refused Seraji’s request to
surrender the land and remove the patio area.
Seraji specifically sought “restitution of the premises†and costs. Demirjian’s answer to the initial complaint included
a statute of limitations affirmative defense.
In
February 2012, Seraji successfully moved for leave to file an amended
complaint; the amended complaint was actually filed on March 2, 2012. The first amended complaint featured four
causes of action (although the last was actually just a remedy): (1) ejectment and damages; (2) continuing
trespass; (3) continuing private nuisance; and (4) permanent injunction. All of the causes of action pertained to the
same encroachment by Demirjian onto the Seraji Property. This pleading (which proved to be the
operative complaint at trial) slightly changed the wording with regard to
Demirjian’s alleged encroachment, claiming that the encroachment occurred
“[i]n, around or after 2007†or “[o]n or after July 9, 2007†(as compared to the initial complaint’s
verbiage of “[i]n or around 2007â€). Demirjian’s answer to the operative complaint
included a statute of limitations affirmative defense.
Before
trial began in April 2013, the court denied Demirjian’s motion for judgment on
the pleadings based on the running of the statute of limitations. Demirjian pointed out that the complaint
identified July 2007 as the date of encroachment and claimed that the
applicable statute of limitations for all causes of action was three years. Seraji argued that the encroachment
constituted a continuing trespass and nuisance, whose damages only manifested
in 2011 when Seraji tried to develop the Seraji Property.
Midway
through the jury trial, Demirjian moved for “directed verdict,â€
the three-year statute of limitations precluded Seraji’s claims. “[P]laintiff’s case shows that the
construction was in 2007. The complaint
was filed in 2011. Therefore, it is
outside the three-year statute of limitations.†Seraji argued “that whether a trespass is
continuing or permanent, is a question of fact.
In doubtful cases a trespass can be deemed to be a continuing trespass.â€
Seraji’s counsel identified two factors in
support of his right to bring his claim as a continuing trespass/nuisance: (1) damages were not suffered by Seraji until
“the construction actually got started on this project in 2011†and (2) the
trespass/nuisance could be abated “in one day or two days for less thanâ€
$10,000. The court denied the motion,
concluding the statute of limitations issue was a question of fact.
On May 1, 2013, the jury completed
special verdict forms as to the trespass and nuisance causes of action. The jury made findings resulting in liability
on both counts. In the only questions
pertaining to the statute of limitations defense, the jury answered “yes†to
the following question on both verdict forms:
“Did the harm or damage to Plaintiff . . . caused by Defendant . . .
occur within three (3) years of the commencement of the Lawsuit on July 7,
2011?†The jury was not asked to decide
when construction of the encroachment was completed, whether the encroachment
was intended to be permanent, whether the costs to abate the encroachment were
reasonable, or whether the encroachment was “permanent†or “continuing,â€
The
special verdict forms separately asked the jury to establish Seraji’s damages
and assess Seraji’s comparative negligence.
This practice resulted in two different awards of damages. As to the trespass cause of action, the jury
found: (1) $1,594.44 in past damages
(“including Expenses and Out-of-Pocket Costsâ€); (2) $227,583 in present damages
(“including Expenses and Out-of-Pocket Costs and Diminution in Value of the
Propertyâ€). Conversely, as to the
nuisance cause of action, the jury awarded $279.65 and $5,835.36 for the same
two categories of damages, respectively. Confounding the issues further, the jury found
Seraji to be 75 percent at fault for the trespass damages but only 10 percent
at fault for the nuisance damages.
The
court entered judgment in May 2013, based upon the special verdict forms and
its own findings as to the ejectment cause of action. The court, taking into account the jury’s
comparative negligence findings, awarded $57,294.36 on the trespass cause of
action and $5,503.01 on the nuisance cause of action. Pursuant to the ejectment cause of action,
the court ordered Demirjian to “remove that portion of the Wall and Patio Deck
that encroaches upon†the Seraji Property within 30 days. Pursuant to Civil Code section 3334, the
court awarded reasonable use damages of $2,733 and ordered the recovery of
reasonable costs, but excluded an award of attorney fees. The judgment does not actually reduce the
damages awarded to a single amount, but it appears the court intended the
judgment to allow Seraji to recover $57,294.36 plus $5,503.01 plus $2,733 (for
a total of $65,530.37).
DISCUSSION
Demirjian
contends all of Seraji’s causes of action (trespass, nuisance, and ejectment)
are foreclosed by a three-year statute of limitations. He also asserts that, if the statute of
limitations does not bar Seraji’s claims, Seraji improperly received a double
recovery (i.e., both an injunction to remove the encroachment and prospective
damages consisting of the diminution in value of the Seraji Property).
regard to the statute of limitations as to the trespass and nuisance causes of
action, we need not sort out the mooted election of remedies issue. We reject each of the contentions raised in
Seraji’s cross-appeal.
Seraji
recovered damages for both nuisance and trespass. “‘Nuisance is distinguishable from trespass
in that the mere intentional entry on land may violate the right of exclusive
possession and create a right of action for trespass, while conduct or activity
cannot amount to a nuisance unless it substantially interferes with the use and
enjoyment of the land.’†(
1243, italics omitted.) “An encroachment
is usually both a trespass and a nuisance.â€
(Ibid.)
“An
action for trespass upon or injury to real property†must be brought within
three years. (Code Civ. Proc.,
§ 338, subd. (b).) An action for private
nuisance damaging real property is governed by the same three-year statute of
limitations. (Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 925.) “The time of the wrongful act and the time of
accrual are the same (statute runs from date of act) if the defendant’s act
causes immediate and permanent injury, e.g., by dispossession or erection of a
structure.†(3 Witkin,
Cal. Procedure (5th ed. 2008) Actions,
§ 597, p. 773.) “[F]or limitation
purposes the harm implicit in a tortious injury to property is harm to the
property itself, and thus to any
owner of the property once the property has been injured and not necessarily to
a particular owner. Thus once the [encroachment
has occurred] [citation], . . . [citation], . . . [citation],
the tort is complete and the statute of limitations (unless forestalled by the
‘discovery rule’ or some other special doctrine) begins to run: An owner must bring its claim to court within
the statutory period or the claim will be barred for that and all subsequent owners. Normally a subsequent owner will not be
personally harmed by the tort until he or she becomes the owner, but no case
has held that each new owner thus becomes entitled to a new statute of
limitations against the tortfeasor. Such
a rule would wholly disregard the repose function of statutes of limitations.†(CAMSI
IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1534-1535 (
It
is undisputed that Code of Civil Procedure section 338, subdivision (b)’s
three-year statute of limitations applies to Seraji’s trespass and nuisance
causes of action, by which Seraji sought and obtained damage awards in a jury
trial. It is also clear from the
pleadings and the evidence at trial that Seraji did not bring suit until more
than three years had passed from the 2007 construction of the encroaching wall
and patio. The delayed discovery rule
was not argued in this case, presumably because the encroachment was an
above-ground structure in plain view. (
apply to “cases which involve nonobvious (or latent) injuries to real
propertyâ€].)
title="">[5] On this basis, Demirjian moved at the trial
level for judgment as a matter of law.
The
court denied Demirjian’s motions, essentially agreeing with Seraji that he was
entitled to characterize the encroachment as a “continuing†trespass/nuisance
rather than a “permanent†trespass/nuisance.
the remedies available to injured parties and the applicable statute of
limitations.†(Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39
Cal.3d 862, 868 (Baker).)
If
a trespass/nuisance “may be discontinued at any time, it is considered
continuing in character and persons harmed by it may bring successive actions
for damages until the nuisance [or trespass] is abated. [Citation.]
Recovery is limited, however, to actual injury suffered prior to
commencement of each action. Prospective
damages are unavailable.†(
“The salient feature of a continuing trespass or nuisance is that its
impact may vary over time.†(
Cal.App.3d 228, 234.) “The classic
example of a continuing nuisance is an ongoing or repeated disturbance . . .
caused by noise, vibration or foul odor.†(Baker,
supra, 39 Cal.3d at p. 869.)
Conversely,
“[w]here the injury or trespass is of a permanent nature, all damages, past and
prospective, are recoverable in one action, and the entire cause of action
accrues when the injury is suffered or the trespass committed.†(Rankin
v. DeBare (1928) 205 Cal. 639, 641.)
Courts must consider the circumstances of the encroachment to determine
whether the trespass/nuisance should be categorized as permanent. (See Kafka
v. Bozio (1923) 191 Cal. 746, 750.)
For instance, a permanent classification was appropriate when the
encroaching “buildings were constructed . . . with no thought of moving them
elsewhere,†with materials and workmanship suggesting permanency. (Castelletto
v. Bendon (1961) 193 Cal.App.2d 64, 67.)
The
encroachment of a building on a neighboring property is the archetypal case of
a permanent trespass/nuisance as a matter of law; a plaintiff cannot
characterize such an encroachment as a continuing trespass/nuisance to survive
the application of the three-year statute of limitations. (Rankin
v. DeBare, supra, 205 Cal. at pp.
640-641[claim that building encroached on plaintiff’s lot by inches barred by
three-year statute of limitations]; Castelletto
v. Bendon, supra, 193
Cal.App.2d at pp. 65-67 [three buildings standing in part on plaintiffs’
property was permanent trespass and nuisance]; Tracy v. Ferrara (1956) 144 Cal.App.2d 827, 828 [demurrer
properly sustained when trespass cause of action filed more than three years later;
trespass consisted of “walls, foundations, pipes and ventsâ€]; see also
Cal.App.2d 506, 509 [“the encroachment of a building obviously intended to
be permanent upon the soil of another is a permanent trespass†subject to a
three year statute of limitations].)
Demirjian
contends that a wall and patio are not different in kind from a building, as
the same intention of permanency was manifested in the manner in which the
patio and wall were constructed. Demirjian’s
position is aided by cases holding that the encroachment of other types of
physical structures amounted to permanent trespasses/nuisances that were
subject to a three-year limitations period running from the time of
construction or installation. (See
(1907) 150 Cal. 624, 625-628 [railroad tracks]; Bookout v. State of California ex rel. Dept. of Transportation
(2010) 186 Cal.App.4th 1478, 1489-1490 (Bookout) [raised railbed and culvert pipe]; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1482, 1486-1488
[underground telephone lines]; Field-Escandon
v. DeMann, supra, 204
Cal.App.3d at pp. 233-234 [sewer pipe].)
These cases support the notion that a physical trespass need not be as
large or expensive as a building to be considered permanent.
It
oversimplifies the law to suggest that every “physical†encroachment is
necessarily permanent. A plaintiff may
bring a continuing nuisance claim with regard to trees that fell upon his land
more than three years prior. (
Cal.App.2d 41, 42-43.) Moreover, a
steadily increasing invasion of one neighbor’s air space by a tilting building
on the neighboring property is a continuing nuisance. (Kafka
v. Bozio, supra, 191 Cal. at pp.
746-748, 751-752.) It is a question of
fact as to whether a locked gate preventing safe entry to a neighbor’s land is
a permanent or continuing nuisance, “since it appears from the allegations in
the complaint that [the gate] could have been removed at any time.†(Phillips
v. City of Pasadena (1945) 27 Cal.2d 104, 108, id. at pp. 105-106.)
Nonetheless,
we conclude the encroachment at issue here was a permanent trespass/nuisance as
a matter of law. The patio and fence are
“not a continuing or recurring trespass or nuisance, which repeatedly disturbs
the property, as in the case of [a] nuisance caused by the operation of an
airport . . . [citation], or by the operation of a cotton gin [citation] or the
operation of a slant oil drill . . . [citation]. Nor does its impact on [Seraji’s] property
gradually increase over time, such as in the case of encroachment by a building
progressively leaning over the property line of the adjacent property.†(Field-Escandon
v. DeMann, supra, 204
Cal.App.3d at p. 234.) This is not
a case involving the “contamination of land through the dumping of toxic
wastes†or similar cases of substances flowing or leaking onto a neighboring
property. (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1090
[such cases focus on the cost to abate nuisance to determine whether it is
permanent or temporary].) This case does
not involve an off-property barrier to entry onto one’s property (such as a
fence on neighboring property). Nor does
it involve a nonstructural trespass such as trees falling over a property line.
Instead,
the circumstances of the construction of the encroachment and its continuation
suggest permanency. Nothing about the
wall and patio indicates it was intended to serve a temporary purpose or that
the extent of its encroachment would vary depending on the circumstances. To the contrary, the use of concrete suggests
Demirjian’s intent to make the structure permanent. While true that the projected demolition cost
for the encroachment is only approximately $5,000 to $10,000, one can fairly
infer from the record that its construction costs were higher. No evidence suggests changes to the amount of
land encroached upon over time or to other variations in the harm caused to the
Seraji Property over time. The nature of
Seraji’s complaint must also be considered:
he wants the entire encroachment permanently removed because its
location affects his use of the Seraji Property. He is not concerned about a sporadic or
variable use of or imposition on the Seraji Property by Demirjian.
Seraji protests this
result on two grounds particular to the record in this case. First, Seraji claims his damages arose only
in April 2011, when he commenced construction.
But this cannot be the relevant question, or else an action could be
revived at any time by simply selling property to a new owner.
Second,
Seraji emphasizes the relatively low (but certainly not nominal) cost of
abating the trespass/nuisance (i.e., no more than $10,000). But cases focusing on the cost of abatement
typically involve productive activities that incidentally result in trespasses
and/or nuisances on neighboring land.
(See, e.g., Mangini v.
Aerojet-General Corp., supra, 12
Cal.4th at p. 1090 [plaintiff must present substantial evidence that
contaminated condition is “both subject to remediation (or cleanup) and that
the cost of cleanup is ‘reasonable’â€]; McCoy
v. Gustafson (2009) 180 Cal.App.4th 56, 62-63, 84-86 [costs of abating
seeping black oil relevant to question of continuing versus permanent
trespass/nuisance]; Starrh & Starrh Cotton
Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 588, 593-598
[migration of wastewater from oil production activities was continuing
trespass; costs of abatement relevant to damages].) Seraji does not cite any encroaching physical
structure cases holding that it is a question of fact for the jury as to
permanence based simply on an abatement cost that is not exorbitant. (See Bookout,
supra, 186 Cal.App.4th at p.
1490 [noting determinative distinction between “solid structure†cases and
“abatable pollution†cases].) Seraji’s
argument proves too much: mere
demolition costs are likely to be reasonable in many instances of physical
structure encroachments, but California
cases have repeatedly held that such fact patterns cannot amount to a
continuing trespass/nuisance.
Finally,
Seraji claims he should be allowed to treat the encroachment as a continuing
trespass/nuisance because this is a “doubtful case.†Faced with a fact pattern in which mud had
flowed onto a neighboring property as a result of leveling operations, our
Supreme Court recognized practical difficulties for plaintiffs arising out of
the doctrinal distinction between permanent and continuing trespasses/nuisances,
particularly with regard to statute of limitations and res judicata defenses. (Spaulding
v. Cameron (1952) 38 Cal.2d 265, 266- 268.) “Because of these difficulties it has been
recognized that in doubtful cases the plaintiff should have an election to
treat the nuisance as either permanent or not.
[Citations.] If the defendant is
not privileged to continue the nuisance and is able to abate it, he cannot
complain if the plaintiff elects to bring successive actions as damages accrue
until abatement takes place.
[Citations.] On the other hand,
if it appears improbable as a practical matter that the nuisance can or will be
abated, the plaintiff should not be left to the troublesome remedy of
successive actions.†(
But
“[w]hile a plaintiff’s election of remedies is entitled to deference in
doubtful cases, that choice must nevertheless be supported by evidence that
makes it reasonable under the circumstances.
[Citations.] A plaintiff cannot
simply allege that a nuisance is continuing in order to avoid the bar of the
statute of limitations, but must present evidence that under the circumstances
the nuisance may properly be considered continuing rather than permanent. [Citation.]
It is only where the evidence would reasonably support either
classification that the plaintiff may choose which course to pursue.†(Beck Development
Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160,
1217.) The facts of this case are not
within the gray area ceded to the discretion of plaintiffs. Instead, this is a clear case of Seraji
trying to evade the statute of limitations by his classification of an encroachment
as continuing rather than permanent.
In
sum, Seraji is foreclosed as a matter of law by the applicable statute of
limitations from pursuing Demirjian for damages under either a trespass or
nuisance theory. The wall and patio
encroaching on the Seraji Property is a permanent trespass/nuisance.
Demirjian’s
Appeal — Statute of Limitations as to Ejectment Cause of Action
Exercising
its equitable powers, the court ordered Demirjian to remove the encroachment within
30 days and awarded rental value damages pursuant to Civil Code section 3334. Demirjian contends that Code of Civil
Procedure section 338, subdivision (b), precludes this relief, just as it
precludes Seraji’s trespass and nuisance causes of action. We disagree.
“No
action for the recovery of real property, or for the recovery of the possession
thereof, can be maintained, unless it appear that the plaintiff, his ancestor,
predecessor, or grantor, was seized or possessed of the property in question,
within five years before the commencement of the action.†(Code Civ. Proc., § 318.) This five-year statute of limitations
conforms with the adverse possession doctrine:
“In every action for the recovery of real property, or the possession
thereof, the person establishing a legal title to the property is presumed to
have been possessed thereof within the time required by law, and the occupation
of the property by any other person is deemed to have been under and in
subordination to the legal title, unless it appear that the property has been
held and possessed adversely to such legal title, for five years before the
commencement of the action.†(Code Civ.
Proc., § 321.)
Construed
together, these statutes mean that “unless and until the encroacher’s use of
the property ripens into title by adverse possession or a valid prescriptive
easement, the legal title holder’s right to bring an action to recover his or
her property from the encroacher never
expires. This must be so, ‘otherwise,
the record owner would be unable to recover possession, and a possessor would
be unable to establish title’ or a prescriptive easement.†(Harrison v.
Welch (2004) 116 Cal.App.4th 1084, 1096 (
point. In 1994, defendant Welch “built a
woodshed and placed some landscaping on her property that partially encroached
on the vacant lot next door. When
plaintiffs Clark and Dana Harrison purchased the vacant lot in 2001, they had
the property line surveyed and discovered the encroachment. The Harrisons brought
[an] action to quiet their title to the lot and to enjoin Welch’s
encroachment.†(Harrison, supra, 116
Cal.App.4th at p. 1086.) The trial
court rejected Welch’s claims that she had obtained title by adverse possession
or a prescriptive easement, and ordered Welch to remove much of the landscaping
and the woodshed. (Id. at pp. 1086-1087.)
The
appellate court affirmed the relief provided.
“[A]n action seeking to enjoin a permanent encroachment is properly
characterized as an action for the recovery of real property subject to the
five-year limitation period in sections 318 and 321, rather than as an action
for [trespass] subject to the three-year limitation period in section 338,
subdivision (b).†(Harrison, supra, 116
Cal.App.4th at p. 1096.) Prior
appellate court opinions holding or suggesting otherwise misunderstood
that actions for trespass were subject to Code of Civil Procedure, section 338,
subdivision (b). (Harrison, at pp. 1096-1098.)
We
follow Harrison
in concluding that the equitable relief provided to Seraji pursuant to his
action for ejectment was subject to a five-year statute of limitations that did
not run its course in this case.
Demirjian did not contend (nor could he have) that he had obtained
adverse possession of or a prescriptive easement over the relevant portion of
the Seraji Property. Nor does Demirjian
argue that the court erred in exercising its equitable powers to order the
removal of the encroachment under the circumstances of this case. Demirjian failed to brief
equitable relief provided by the court with regard to the ejectment cause of
action were inappropriate. Instead, Demirjian
argued that all of Seraji’s causes of action were barred (and alternatively
that Seraji was required to elect his remedies). We therefore affirm the injunction and the
$2,733 awarded by the court for reasonable use or rental value of the
encroached-upon Seraji Property pursuant to Civil Code section 3334.
Admissibility of Exhibits
The
conclusions reached above moot most of Seraji’s cross-appeal. The jury’s allegedly inconsistent findings (with
regard to Seraji’s comparative negligence in the trespass and nuisance special
verdict forms) matter not a whit because we reverse the award of damages by the
jury in their entirety. Similarly,
Seraji argues that two documents from city employees were erroneously excluded
from the trial. These proposed exhibits allegedly
demonstrated unauthorized construction activity by Demirjian in 2005. Seraji argues the exclusion of these
documents from evidence was prejudicial because they could have affected the
jury’s damages and comparative negligence findings. The jury’s findings no longer matter. And there is no argument by Seraji that the
court’s equitable findings and remedies were affected by its determination that
these exhibits were inadmissible. Thus,
these two arguments are moot.
Seraji’s
Cross-appeal: Recovery of Attorney Fees
Finally,
Seraji contends he was entitled to recover attorney fees pursuant to Civil Code
section 3334 (the same statute that provided the basis for the damages awarded
by the court as to the ejectment cause of action). “The detriment caused by the wrongful
occupation of real property . . . is deemed to include the value of the use of
the property for the time of that wrongful occupation . . . and the costs, if
any, of recovering the possession.â€
(Civ. Code, § 3334, subd. (a).)
Improperly citing unpublished authority (Cal. Rules of Court, rule 8.1115(a)),
Seraji contends that the word “costs†in this statute includes attorney fees
expended to recover possession of the real property. We reject this argument. “Statutory attorney fee awards must be
statute.†(That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419,
1428, fn. omitted [rejecting request to construe statute to include attorney fees
within authorized costs].)
DISPOSITION
The judgment for
plaintiff Seraji on the trespass and nuisance causes of action is
reversed. The judgment is otherwise
affirmed. The trial court is directed to
enter a modified judgment eliminating Seraji’s recovery on the trespass and
nuisance causes of action, but otherwise reinstating the original
judgment. Demirjian shall recover costs
incurred on appeal.
IKOLA,
J.
WE CONCUR:
RYLAARSDAM,
ACTING P. J.
ARONSON, J.
APPENDIX
Seraji acts as
trustee for the RER Children’s Trust, which is the true owner of the real
property at issue; we refer to Seraji as the owner for the sake of convenience.
An April 2011
encroachment survey, admitted as exhibit 2 at trial, illustrates the
encroachment. We have attached a copy of
the survey as an appendix to this opinion.
The copy included in the respondent’s appendix is not marked as an
exhibit, but there is no assertion in the appellant’s briefs that this is not
the document that was admitted as exhibit 2.
