Pritchard v. Avarell, E043967 (Cal. App. 12/8/2008), E043967

Page 1

WILLIAM MICHAEL PRITCHARD et al., Plaintiffs and Appellants, v. VERNA AVARELL et al., Defendants and Respondents.

E043967

Court of Appeals of California, Fourth Appellate District, Division Two

December 8, 2008

Not to be Published

Appeal from the Superior Court of San Bernardino County, No. CIVSS700166. W. Robert Fawke, Judge. Affirmed.

Marc J. Bourget for Plaintiffs and Appellants.

Law Offices of John G. Wurm and John G. Wurm for Defendants and Respondents.

OPINION

RICHLI, J.

In 1989, plaintiffs William and Susan Pritchard built a house on property that they owned in the rural mountain community of Cedarpines Park. Local law required that the house be set back 15 feet from the lot line between the Pritchards and their neighbors. A surveyor, however, made a mistake in determining the location of the lot line. As a result, while the Pritchards' house was entirely on their own property, it had less than the required 15-foot setback from the true lot line.

Here matters rested for about 15 years, until defendant Verna Avarell bought the property on the other side of the lot line and, together with her husband Kory Avarell, began building a house that assertedly penetrated 18 inches into the 15-foot setback. The Pritchards then filed this action, seeking to quiet title to the entire setback based on adverse possession. The trial court sustained a demurrer without leave to amend, on several grounds, including that the Pritchards had failed to allege facts showing that they had enclosed, cultivated, or improved the disputed area. We agree with the trial court. Hence, we will affirm.

I FACTUAL BACKGROUND

The following facts are taken from the operative complaint. Consistent with the applicable standard of review (see part III.A, post), we accept the well-pleaded allegations of the complaint as true. "We do not concern ourselves with whether [the plaintiff] will be able to prove the facts which it alleges in the complaint. [Citation.]" (California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053, 1064.)

The Pritchards own certain real property in Cedarpines Park. Verna Avarell owns the real property next door; her husband Kory Avarell may also have an interest in it.

In 1989, in connection with the construction of a house on their property, the Pritchards had the property surveyed. Due to a mistake by the surveyor, the survey misidentified a triangular part of what is now the Avarells' property as part of the Pritchards' property.

The county required a 15-foot "set-back" — in other words, that the Pritchards' house be constructed at least 15 feet away from their lot line. Due to the surveyor's mistake, their house was built with the required 15-foot set back from the incorrect, rather than the correct, lot line. Thus, while the Pritchards' house was entirely within the correct lot line, it had less than the required 15-foot setback from the correct lot line.

The complaint alleged that, since March 1992, the Pritchards "ha[d] openly and notoriously occupied and made use of" the disputed area. It further alleged that, during this occupancy, the Pritchards had "improved, maintained and harvested" the disputed area.

II PROCEDURAL BACKGROUND

In April 2007, the Pritchards filed this action against the Avarells.¹ In the complaint, as subsequently amended, they asserted two causes of action: to quiet title and for trespass.

The Avarells filed a demurrer to the first cause of action, arguing, among other things, that the complaint failed to allege — other than by way of legal conclusions — that (1) the Pritchards had enclosed, improved, or cultivated the disputed area, or (2) the Pritchards had paid taxes on the disputed area.

The trial court sustained the demurrer to the first cause of action, without leave to amend, essentially on all of the grounds that had been stated in the demurrer. Thereafter, the Pritchards voluntarily dismissed the second cause of action. Accordingly, the trial court entered judgment against the Pritchards and in favor of the Avarells.

III DISCUSSION

A. Standard of Review.

"When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) "[O]ur review is de novo. [Citation.]" (Tracfone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1363.)

"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., § 452.) "[W]e treat the demurrer as admitting the complaint's well-pleaded allegations of material fact, but not its contentions, deductions or conclusions of law. [Citations.]" (Ross v. Ragingwire Telecommunications, Inc. (2008) 42 Cal.4th 920, 924.) "We also accept as true all facts that may be implied or reasonably inferred from those expressly alleged. [Citation.]" (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.)

"If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. [Citation.]" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 39.) "Whether to grant leave to amend a complaint is a matter within the discretion of the trial court. [Citation.]" (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.)

B. Analysis.

"`To establish title by adverse possession, the claimant must establish the following five requirements: 1) Possession under claim of right or color of title; 2) actual, open, and notorious occupation of the premises in such a manner as to constitute reasonable notice to the true owner; 3) possession which is adverse and hostile to the true owner; 4) possession which is uninterrupted and continuous for at least five years; and 5) payment of all taxes assessed against the property during the five-year period. [Citations.]' [Citation.]" (Marriage v. Keener (1994) 26 Cal.App.4th 186, 192, quoting Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604.)

"Adverse possession may be based on either color of title or a claim of right." (Safwenberg v. Marquez (1975) 50 Cal.App.3d 301, 309.) Adverse possession is based on color of title when it is "under some written instrument . . . that lacks the essentials of an effective monument of title; it appears to transfer good title, but it is defective and is not actually effective to transfer title." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) Adverse Possession, § 16.4, p. 10, fns. omitted.) "For example, a deed that describes the land and on its face purports to pass title to the land, but that is an ineffective conveyance because it is void or voidable, furnishes the requisite color of title . . . ." (Id. at p. 11.) All other adverse possession is based on a claim of right. (Id., § 16.3, p. 8.)

"The courts impose a greater burden of use when a possession is merely under a claim of right rather than under a color of title." (6 Miller & Starr, Cal. Real Estate, supra, Adverse Possession, § 16.7, p. 20, fn. omitted.) "[T]he requirements of possession under a claim of right . . . are strict. The `land is deemed to have been possessed and occupied in the following cases only:

"1. Where it has been protected by a substantial inclosure.

"2. Where it has been usually cultivated or improved.' [Citations.]" (Safwenberg v. Marquez, supra, 50 Cal.App.3d at p. 310, quoting Code Civ. Proc., § 325; see also 6 Miller & Starr, Cal. Real Estate, supra, Adverse Possession, § 16.7, p. 20.)

In addition, when adverse possession is based on a claim of right, only "the land . . . actually occupied, and no other, is deemed to have been held adversely." (Code Civ. Proc., § 324.)

Here, the Pritchards had only a claim of right. Hence, they had to allege that they had either enclosed, cultivated, or improved the disputed area. The only such allegation was that they had "improved, maintained and harvested" it.

The trial court found that this was a legal conclusion. We agree. (See Faulkner v. California Toll Bridge Authority (1953) 40 Cal.2d 317, 329 ["[a]llegations that the acts of a commission or board were `arbitrary, capricious, fraudulent, wrongful and unlawful,' like other adjectival descriptions of such proceedings, constitute mere conclusions of law which are not to be deemed admitted by a demurrer"]; Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 701 ["bare allegation that respondents' acts were `wilful, deliberate and malicious,' without a recitation of facts tending to show such malice, is merely conclusionary and thus is insufficient to support the complaint"].) "Without specific examples . . ., the[se allegations] are little more than a reiteration of the elements of the statute." (Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533, 549.) Moreover, as we will discuss below, "maintenance" is not improvement and does not meet the statutory requirement. Likewise, "harvesting" is not cultivation; wild produce may be harvested (and, as will be seen, that is all that the Pritchards actually claim to have done). This leaves a bare allegation, in the statutory language, of "improvement."

We recognize that "[t]he test for allegations of fact or conclusions of law is not absolute." (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 378, p. 514.) Nevertheless, if we were in any doubt, two considerations would convince us that the Pritchards' allegations here fall on the overly conclusory side of the line. First, an adverse possession claim is statutorily required to be specific. In a quiet title action, Code of Civil Procedure section 761.020, subdivision (b) provides that, "[i]f the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession." Second, even though the Avarells were arguing that the allegations were too conclusory, and even though ...