Wildman v.
Coastal Com.
Filed 1/9/13
Wildman v. Cal. Coastal Com. CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
DONAHUE L.
WILDMAN,
Plaintiff and Appellant,
v.
CALIFORNIA
COASTAL COMMISSION et al.,
Defendants and Respondents.
B237763
(Los Angeles County
Super. Ct. No.
SC111748)
APPEAL from a
judgment of the Superior Court of
County.
Jacqueline A. Connor, Judge. Affirmed.
The Dodell Law
Corporation, Herbert Dodell; Law Office of Burton Mark Senkfor
and Burton Mark Senkfor for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, John A. Saurenman, Assistant Attorney General,
Christina Bull Arndt, and Jennifer W. Rosenfeld, Deputy Attorneys General, for
Defendants and Respondents.
__________________________
Plaintiff and
appellant Donahue L. Wildman appeals from a judgment entered following the
trial court’s order sustaining without leave to amend the demurrer filed by
defendants and respondents California Coastal Commission and State Coastal
Conservancy.
We affirm.
FACTUAL
Original
Complaint and Demurrer
On March 7, 2011, plaintiff filed his original
complaint in this action. Defendants
demurred on the grounds that the action was untimely, and the trial court
sustained the demurrer with leave to amend.
First
Amended Complaint (FAC)
On July 11, 2011, plaintiff filed his verified FAC.
According to the pleading, on July 6, 1984,
plaintiff purchased certain real property in Malibu. Previously, on December 11, 1981, the sellers of the property had executed an irrevocable offer to
dedicate an easement for public parking on the property. The offer provided, in relevant part, that it
“shall be irrevocable for a period of twenty-one (21) years, measured forward
from the date of recordation, and shall be binding upon the owners, their
heirs, assigns, or successors in interest to the subject property.†In December 2003,
offer. According to the FAC, defendants’
acceptance was untimely as the offer could not be accepted after January 6, 2003.
Based on the
foregoing, plaintiff asserted claims for quiet
title and declaratory relief. In an
effort to defeat defendants’ statute of limitations argument, plaintiff averred
that he was “seized and possessed of the [p]roperty, was seized and possessed
of the [p]roperty at all times for the five years before commencement of this
action, and was seized and possessed of the [p]roperty at all times since his
purchase of the [p]roperty on July 6, 1984.
[Plaintiff’s] possession and use of the [p]roperty during these time
periods has been exclusive and undisputed.
Neither [defendant] has been in possession of the [p]roperty, or used
the property, or paid any taxes on the [p]roperty, at any time. [Defendants] have a mere meritless claim of
title to a portion of the [p]roperty, based upon an invalid recording derived
from a purported acceptance of an expired offer, not constituting a bona fide
or valid dedication, and amounting only to a cloud upon title, but have never
taken possession of any portion of the [p]roperty or disputed [plaintiff’s]
ongoing exclusive possession or use thereof, or ever asserted any claim in any
proceeding or obtained any Court holding adverse to [plaintiff], prior to the
commencement of this action.â€
Demurrer;
Trial Court Order; Appeal
Defendants
again demurred. Citing Code of Civil
Procedure sections 318, 319, and 322, they argued that plaintiff’s lawsuit,
which was filed in March 2011, was time-barred because it was filed more than
five years after defendants accepted the offer to dedicate an easement. Moreover, no exception to the five-year
statute applied as plaintiff did not allege any facts to support his assertion
that he had exclusive and undisputed possession of the property since
1984. And, as for plaintiff’s allegation
that defendants’ acceptance was untimely, defendants pointed out that while the
offer to dedicate was irrevocable for 21 years, it did not automatically expire
after 21 years.
Plaintiff
opposed defendants’ demurrer, arguing that the
a plaintiff seeking to quiet title while he is in possession of the
property. Furthermore, plaintiff had
exclusive and undisputed possession of the property; defendants’ disputed title
does not equate with disputed possession.
Following
oral argument, the trial court sustained defendants’ demurrer without leave to
amend. Judgment was entered, and
plaintiff’s timely appeal ensued.
DISCUSSION
I. Standard
of review
“Our Supreme Court has set forth the
standard of review for ruling on a demurrer dismissal as follows: ‘On appeal from a judgment dismissing an
action after sustaining a demurrer without leave to amend, the standard of
review is well settled. The reviewing
court gives the complaint a reasonable interpretation, and treats the demurrer
as admitting all material facts properly pleaded. [Citations.]
The court does not, however, assume the truth of contentions, deductions
or conclusions of law. [Citation.] The judgment must be affirmed “if any one of
the several grounds of demurrer is well taken.
[Citations.]†[Citation.] However, it is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action under any
possible legal theory. [Citation.] And it is an abuse of discretion to sustain a
demurrer without leave to amend if the plaintiff shows there is a reasonable
possibility any defect identified by the defendant can be cured by
amendment. [Citation.]’ [Citations.]â€
(Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th
1037, 1043–1044.)
Although courts
generally assume the truth of factual allegations of a complaint, the contents
of documents submitted in support of a pleading take precedence over
inconsistent allegations in the pleading itself. (Building
Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409;
Cal.App.4th 561, 567–568.)
II. The
trial court did not err
The parties do
not dispute that the five-year statute of limitations applies to plaintiff’s
claims against defendants. Rather, they
dispute when the statute began to run, if ever.
According to plaintiff, the statute has yet to begin running; according
to defendants, the statute expired five years after they accepted the offer to
dedicate. We agree with defendants.
Code of Civil
Procedure section 318 provides, in relevant part, “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 . . . was seized
or possessed of the property in question, within five years before the
commencement of the action.†(See also
Code Civ. Proc., §§ 319 [“No cause of action . . . arising out
of the title to real property . . . can be effectual, unless it
appear that the person prosecuting the action . . . was seized
or possessed of the premises in question within five years before the
commencement of the act in respect to which such action is prosecutedâ€],
322.) According to the plain language of
the FAC, plaintiff is seeking to quiet title as of January 7, 2003. Because his lawsuit was filed more than five
years later, his action is time-barred.
Citing
(Muktarian), plaintiff claims that
the statute of limitations cannot run against a plaintiff seeking to quiet
title while he is in possession of the property.
his statement is incomplete. “The
‘possession’ required to toll the statute of limitations must be ‘exclusive and
undisputed.’†(Ankoanda v. Walker-Smith (1996) 44 Cal.App.4th 610, 616.) Thus, the statute of limitations begins to
run when an adverse claim is pressed against the person holding the
property. (Muktarian, supra, 63
Cal.2d at pp. 560–561; Crestmar
Owners Assn. v. Stapakis (2007) 157 Cal.App.4th 1223, 1228.)
Applying the
foregoing legal principles, we
readily conclude that plaintiff’s action is time-barred. Once the acceptance of the offer to dedicate
was recorded, plaintiff no longer had exclusive and undisputed possession of
the property.
name="_ftnref4" title="">[4] From that point, he had five
years to file his action to quiet title against defendants. Because he delayed more than five years in
bringing this lawsuit, his claims are untimely.
Plaintiff
further contends that defendants’ claim to title via their acceptance of the
offer to dedicate does not equate with possession; thus, plaintiff’s possession
was at all times undisputed. We are not
convinced. Plaintiff offers no legal
authority to support his contention that defendants had to use the property in
order to effect the dedication. In fact,
legal authority holds otherwise: When a
dedication is complete, the property becomes public property and the owner
loses control over it. (
43, 51.)
Next, plaintiff
claims that defendants’ acceptance of the offer to dedicate was untimely. Because the offer expired 21 years after it
was made, defendants’ purported acceptance failed, rendering any title claim by
defendants invalid. The plain language
of the offer negates this argument. The
offer to dedicate was irrevocable for 21 years.
But nothing in the offer indicates that it expired in 21 years.
Finally,
plaintiff argues that his claim actually is to clear a cloud on title. As pointed out by defendants, plaintiff did
not plead a cause of action to remove a cloud from title. Leave to amend should not have been granted
to add this cause of action as it would have been based upon the same facts
that render the quiet title and declaratory relief causes of action
untimely. And, plaintiff offers no legal
authority to support his implicit assertion that a claim to remove a cloud from
title would be timely.
DISPOSITION
The judgment is affirmed. Defendants are entitled to
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
DOI TODD
facts from plaintiff’s complaint, the allegations of which are deemed true for
the limited purpose of determining whether plaintiff has stated a viable cause
of action. [Citation.]†(Stevenson v. Superior Court (1997) 16
Cal.4th 880, 885.)
December 23, 2003. The certificate of
acceptance attached to the FAC indicates that defendants accepted the offer on
December 16, 2003.
