Daniel P. Casey, et al. v. Phillip Fanchon, et al

Case Number

23CV01527

Case Type

Hearing Date / Time

Wed, 07/17/2024 - 10:00

Nature of Proceedings

Motion Of Defendants and Cross-Complainants for Summary Adjudication and Summary Judgment

Tentative Ruling

For Plaintiffs and Cross-Defendants Daniel P. Casey and Kim Phuong Lucy Nguyen-Casey, as Trustees of the Dragon Q Trust, U/A dated August 13, 2021: Sean R. Burnett, Ashley Dorris Egerer, Snyder Burnett Egerer, LLP

For Defendants and Cross-Complainants Phillip Fanchon and Elaine Ellis: James M. Sweeney, Joseph R. Billings, Allen & Kimbell, LLP

RULING:

For all reasons discussed herein, the motion of Defendants and cross-complainants Phillip Fanchon and Elaine Ellis for summary adjudication and summary judgment is DENIED.

The MSC date of 8/2/24 and the Trial date of 8/28/24 are confirmed.

Background

On April 11, 2023, Plaintiffs Daniel P. Casey and Kim Phuong Lucy Nguyen-Casey, as Trustees of the Dragon Q Trust, U/A dated August 13, 2021 (collectively, the Caseys) filed a complaint in this matter against Defendants Phillip Fanchon (Fanchon) and Elaine Ellis (Ellis) (collectively, Fanchon/Ellis) alleging three causes of action for declaratory relief, quite title, and invasion of privacy. As alleged in the complaint:

The Caseys own real property commonly known as 5055 East Camino Cielo (the Casey Property ), which the Caseys acquired on June 21, 2019. (Compl., ¶¶ 6 & 14.) The Casey Property is also known as Parcel D of a parcel map recorded on October 17, 1980, when certain property was subdivided into four parcels. (Id. at ¶ 8.) The parcel map depicts four parcels (Parcels A, B, C, and D) and easements over portions of Parcels A, B, and C, which include an easement for private road purposes. (Ibid.) In addition, “CC&Rs” recorded on October 17, 1980 require its declarants to make provision for the completion of a water system to serve each of the four parcels. (Id. at ¶ 9.)

When the subdivided parcels began to be sold on January 13, 1982, Parcels A and B were transferred but the easement for private road purposes was reserved for the benefit of Parcels C and D. (Compl., ¶ 10.) A deed transferring Parcel D and recorded on July 12, 1984, also depicts an easement for private road purposes. (Ibid.)

Parcel C, located at 5201 East Camino Cielo (the Fanchon/Ellis Property), was transferred to Fanchon/Ellis on April 21, 1999. (Compl., ¶¶ 7 & 11.) Shortly thereafter, Fanchon/Ellis contacted the owners of Parcels A, B, and D, regarding the widening of a road in, and relocating a portion of, the easement at issue which leads up to a cistern on the Fanchon/Ellis Property that is part of a common water system shared by the four parcels. (Id. at ¶ 11.) The four parcel owners also met to address the location of a fence between the Casey Property and the Fanchon/Ellis Property but no agreement on any of these issues, including the relocation of a portion of the easement, was ever reached. (Id. at ¶ 12.)

In October 2021, Fanchon claimed that the easement had been abandoned by the previous owner. (Compl., ¶ 14.) Though the Caseys requested a meeting, Fanchon declined claiming that the easement could be used to access facilities associated with the common water system shared by the four parcels but could not be used to access the Casey Property. (Ibid.) In a letter dated October 27, 2021, the Caseys responded to Fanchon stating that the easement is for private road purposes and not just to access utilities. (Id. at ¶ 15.) When the Caseys raised their need to place a cistern in the area of the easement granted to the Caseys for utility and pipeline purposes, Fanchon threatened to shoot the cistern. (Id. at ¶ 16.) During the weekend of Thanksgiving 2021, Ellis yelled at the Caseys when they used the easement to walk to Parcel B. (Id. at ¶ 17.)

On January 29, 2022, the Caseys discovered a lock had been placed on a gate bordering the Casey Property and the Fanchon/Ellis Property which blocked the Casey’s access to the easement and prevented the Caseys, who are the “defacto” water master for the common water system shared by the four parcels, from accessing the water system to perform maintenance. (Compl., ¶ 18.) On February 25, 2022, the Caseys observed cameras installed in the trees and pointed directly at the Caseys’ house and yard. (Id. at ¶ 19.)

On June 16, 2023, Fanchon/Ellis filed a verified answer responding to the allegations of the complaint and asserting seventeen affirmative defenses.

Also on June 16, 2023, Fanchon/Ellis filed a cross-complaint (the cross-complaint) against the Caseys, cross-Defendants Danielle Lachapelle and Jacques Terblanche, Trustees of the Danielle LaChapelle and Jacques Terblanche Family Trust, dated September 27, 2013 (Lachapelle/Terblanche), and cross-Defendants Ronald J. Boehm and Marlys Boehm, Trustees of the Ronald and Marlys Boehm Living Trust, dated October 18, 1989 (the Boehms), alleging three causes of action: (1) quiet title (against the Caseys, Lachappelle/Terblanche, and the Boehms), (2) declaratory relief (against the Caseys); and (3) ejectment (against the Caseys). As alleged in the cross-complaint:

On April 21, 1999, Fanchon/Ellis acquired title to the Fanchon/Ellis Property which is designated as Parcel C on the parcel map recorded on October 17, 1980. (Cross-Compl., ¶¶ 1-2 & Exhs. A & B.) Lachapelle/Terblanche and the Boehms are the owners of, respectively, Parcels A and B. (Id. at ¶¶ 8-12 & Exhs. D-E.)

The parcel map shows an easement for private road purposes that burdens a 30 foot wide strip of Parcel C. (Cross-Compl., ¶ 16.) Though the Caseys contend that they may use this easement for general ingress and egress and residential access, a “Declaration Of Covenants, Conditions And Restrictions Concerning Private Water System” (the Water System CC&Rs) recorded on October 17, 1980, defines the use of this easement to support a private water system only. (Id. at ¶¶ 16-17, 27 & Exh. F.)

Because the early owners of Parcels A, B, and C understood that the easement included only those use rights detailed in the Water System CC&Rs, they entered into a “Declaration Of Covenants, Conditions And Restrictions Concerning Private Road” recorded on February 21, 1986 (the 1986 CC&Rs), which established rights among the owners of Parcels A, B, and C that would allow improvements to the easement area for residential access. (Cross-Compl., ¶¶ 28-29.) The owner of Parcel D was not a party to the 1986 CC&Rs. (Id. at ¶ 29.) The scope of Parcel D’s rights in the easement were never expanded to include general ingress, egress, or residential access. (Ibid.)

The parcel map also shows a Well Site C that burdens a portion of Parcel C, and within which is located a cistern that is part of the private water system established by the parcel map and the Water System CC&Rs. (Cross-Compl., ¶ 18.) The easement allows access to Well Site C and similar well sites on Parcels A and B for the operation, maintenance, and repair of the water supply and distribution system. (Ibid.)

After purchasing Parcel C, Fanchon/Ellis installed a building pad over a portion of the easement and its area which renders that portion unusable for access to Well Site C, and constructed an alternate access roadway to Well Site C. (Cross-Compl., ¶ 19.) In addition, prior to 2015, Fanchon/Ellis installed a fence around a portion of the building pad further restricting the ability to use that portion of the easement to access Well Site C. (Id. at ¶ 20.) As a result of these actions, a portion of the easement has been extinguished. (Id. at ¶¶ 20-23.) In 2022, the Caseys built a pad for a personal water cistern that impermissibly encroaches onto Parcel C and a portion of the easement area burdening Parcel C. (Id. at ¶ 34.)

On July 25, 2023, the Caseys filed an answer responding to the allegations of the cross-complaint and asserting seventeen affirmative defenses.

On November 9, 2023, Fanchon/Ellis filed a request for dismissal of the cross-complaint, with prejudice, as against Lachapelle/Terblanche and the Boehms only.

On May 1, 2024, Fanchon/Ellis filed a motion for an order granting summary judgment in their favor as to all causes of action alleged in the complaint of the Caseys. Alternatively, Fanchon/Ellis move for an order for summary adjudication as to each of the three causes of action alleged in the complaint and the second and third causes of action alleged in the cross-complaint.

The Caseys oppose the motion.

Analysis

“If a party moving for summary judgment in any action … would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar); see also Code Civ. Proc. § 437c, subd. (c) [a motion for summary judgment “shall be granted if all the papers submitted 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”].)

“From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at pp. 845, 850.) A Defendant moving for summary judgment bears the burden of persuasion that “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 235 Cal.4th at p. 850, 853 [also noting that a Defendant is not required to conclusively negate the element that Defendant contends the Plaintiff cannot establish].) A moving Defendant also bears an initial burden of production to make a sufficient prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 845, 850-851.)

If the moving Defendant carries its burden of production, this “causes a shift, and the [Plaintiff] is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) The Plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (o).) If the Plaintiff fails to meet its burden of proof, the Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.) However, there is no obligation by the Plaintiff to establish anything unless and until the Defendant has by affidavit stated facts establishing every element necessary to sustain a judgment in its favor. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

Once a Plaintiff or cross-complainant moving for summary judgment meets its burden to prove each element of the cause of action, “the burden shifts to the Defendant or cross-Defendant 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, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p. 853.)

Motions for summary adjudication “proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2); Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399.) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty….A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

First and second causes of action alleged in the complaint and second cause of action alleged in the cross-complaint:

As grounds for summary adjudication of the first and second causes of action alleged in the complaint, Fanchon/Ellis contend that the permissible scope of use of the easement at issue is for water system purposes only. (Notice at p. 2, ll. 17-19 & p. 3, ll. 4-6.)

The pleadings frame the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) In the first cause of action for declaratory relief alleged in the complaint, the Caseys contend that they have a right to use the entirety of an easement over the Fanchon/Ellis Property for private roadway purposes, which includes rights of ingress and egress as well as to improve the easement. (Compl., ¶¶ 22 & 24.) The Caseys also contend that they have a right to install a cistern to provide drinking and bathing water within the easement area. (Id. at ¶ 23.) In the second cause of action to quiet title, the Caseys seek a determination of their rights to use the easement over Parcels A, B, and C. (Id. at ¶¶ 29-30 & 32.)

There is no information or evidence to show that the Caseys have in some manner limited the theories alleged in the first and second causes of action for, respectively, declaratory relief and to quiet title. Accordingly, Fanchon/Ellis must meet their initial burden to demonstrate that the Caseys cannot establish one or more elements of these claims. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.)

“ ‘An easement is an incorporeal interest in the land of another that gives its owner the right to use the land of another or to prevent the property owner from using his land.’ [Citation.] The land upon which the easement is imposed is called the servient tenement. [Citation.] There are two types of easements: appurtenant easements and easements in gross. An appurtenant easement is one which is impressed upon the servient tenement for the use and benefit of other property called the dominant tenement. [Citation.] An easement in gross is the personal right to use the land of another. As such, there is no dominant tenement. [Citations.]” (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1278-1279.) The extent of an easement “is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired” and presents “a question of interpretation.” (Civ. Code, § 806; City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 542.)

Fanchon/Ellis offer evidence to show that the Fanchon/Ellis Property is designated as “Parcel C” on “Parcel Map 12,900”, which Fanchon/Ellis contend was recorded in Santa Barbara County on October 17, 1980. (Sep. Stmt., Undisputed Material Fact [UMF] No. 1 & evidence cited therein.) Fanchon/Ellis further contend that Parcel Map 12,900 shows a “ ‘30’ EASE[MENT] FOR PRIVATE ROAD PURPOSES’ ” (the Easement). (Sep. Stmt. UMF No. 3 & evidence cited therein [not reasonably disputed on this point].)

Parcel Map 12,900 may be used to define the Easement. (Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5th 155, 175; Wilson v. Abrams (1969) 1 Cal.App.3d 1030, 1034-1035.) Fanchon/Ellis request that the Court take judicial notice of Parcel Map 12,900 pursuant to the provisions of Evidence Code section 452, subdivisions (c) or (h). (Fanchon/Ellis RFJN at p. 1, ll. 25-26 & ¶ 1.) In support of their request, Fanchon/Ellis submit the declaration of their counsel, James M. Sweeney (Sweeney), who declares that a “true and correct copy” of Parcel Map 12,900 is attached to the evidence submitted in support of the motion (the Supporting Evidence) as exhibit A. (Sweeney Decl., ¶ 2.)

Sweeney asserts that Parcel Map 12,900 was recorded on October 17, 1980, in “Book 25 Pages 78 through 82 of Parcel Maps, Santa Barbara County, California”. (Sweeney Decl., ¶ 2.) Additional information regarding Parcel Map 12,900 appears in the separate declarations of Ellis and Fanchon, in which each party states that the Fanchon/Ellis Property is designated therein as “Parcel C”, and in which Fanchon states that, upon its recordation, Parcel Map 12,900 created Parcels A, B, C, and D. (Fanchon Decl., ¶¶ 2-3; Ellis Decl., ¶ 2.)

Fanchon/Ellis also request that the Court take judicial notice of a grant deed  “recorded on April 21, 1999 as Instrument # 99-031963 in the Official Records of Santa Barbara County” (the Fanchon/Ellis Deed), also pursuant to Evidence Code section 452, subdivisions (c) or (h). (Fanchon/Ellis RFJN at p. 1, ll. 25-26 & ¶ 2.) Sweeney declares that a “true copy” of the Fanchon/Ellis Deed is attached to the Supporting Evidence as exhibit B. (Sweeney Decl., ¶ 3.) Neither Fanchon nor Ellis reference or provide any further information regarding the Fanchon/Ellis Deed.

Under Evidence Code section 452, the Court may take judicial notice of the “[o]fficial acts of the legislative, executive, and judicial departments … of any state of the United States.” (Evid. Code § 452, subd. (c).) Therefore, the official acts of recording Parcel Map 12,900 and the Fanchon/Ellis Deed are subject to judicial notice. (Evid. Code, § 452, subd. (c); B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 960 [judicial notice taken of fact that Plaintiff recorded a final subdivision map]; Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [Court may take judicial notice of official act of recording grant deed].)

The fact that the Court may take judicial notice of Parcel Map 12,900 and the Fanchon/Ellis Deed as further discussed above “does not mean it may take judicial notice of factual matters stated therein.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [noting that facts stated within recorded document constitute hearsay]; see also Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [the truthfulness and proper interpretation of judicially noticed public records are disputable].) Therefore, though the Court will grant judicial notice of the fact of recordation of Parcel Map 12,900 and the Fanchon/Ellis Deed, taking judicial notice of these documents “is not the same as accepting the truth of [their] contents or accepting a particular interpretation of [their] meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Fanchon/Ellis assert that, although Parcel Map 12,900 states that the Easement is for “private road purposes,” it does not “otherwise define what those purposes are.” (Memorandum at p. 7, ll. 14-16.) Fanchon/Ellis further assert that “there is little extrinsic evidence available bearing on the scope of use rights in the Easement.” (Id. at p. 7, ll. 17-19.) Fanchon/Ellis state that, concurrently with recording Parcel Map 12,900, the “subdivider” also recorded the Water System CC&Rs. (Sep. Stmt., UMF No. 2 & evidence cited therein.) Fanchon/Ellis contend that the Water System CC&Rs describe the purposes and define the uses of the Easement as supporting a private water system. (Memorandum at p. 2, l. 20 – p. 3, ll. 10 & 19-24.)

Fanchon/Ellis request that the Court take judicial notice of the Water System CC&Rs. (Fanchon/Ellis RFJN, ¶ 3 & Exh. C.) Sweeney declares that the Water System CC&Rs were recorded on October l7, 1980 in the Official Records of Santa Barbara County as Instrument # 80-42364, and that a “true and correct copy” is included with the Supporting Evidence as Exhibit C. (Sweeney Decl., ¶ 4.) For all reasons discussed above, the Court will grant judicial notice of the fact of recordation of the Water System CC&Rs. However, judicial notice of the recordation of this document does not extend to the truth of its contents or the acceptance of any particular interpretation of its meaning for the same reasons discussed above.

The provisions of the Water System CC&Rs on which Fanchon/Ellis rely to support their contention that the Easement supports only private water system related uses include statements that the “declarants” to the Water System CC&Rs “desire to hereby set forth the rights and obligations with respect to the ownership, operation and maintenance of such water supply system”, that the Water System CC&Rs were recorded “with respect to the ownership, operation and maintenance of the water supply system”, and that “[e]ach respective parcel owner(s) shall have such nonexclusive easements of use and access as are necessary for their respective use, conduct, operation, maintenance and repair of said water supply and distribution system, the boundaries of which easements are shown and delineated on [Parcel Map 12,900].” (Sep. Stmt., UMF Nos. 4-6 & evidence cited therein [not reasonably disputed on these points].)

Whether or not Fanchon/Ellis could presently meet their initial burden to show that the Caseys cannot establish one or more elements of the first and second causes of action alleged in the complaint, there exist competing inferences reasonably deducible from the evidence presented in the moving papers which require the Court to deny the motion. (See Code Civ. Proc., § 437c, subd. (c).)

For example, Fanchon/Ellis do not present evidence which demonstrates that the Easement at issue was created or granted in any document apart from Parcel Map 12,900. (See, e.g., Sep. Stmt., UMF Nos. 3 & 6 [referencing easements shown on Parcel Map 12,900].) Moreover, nothing in the provisions of the Water System CC&Rs cited by Fanchon/Ellis show that this document created the Easement, nor do Fanchon/Ellis appear to contend that the Water System CC&Rs created or granted the Easement. Therefore, the evidence offered by Fanchon/Ellis in support of the motion indicates that Parcel Map 12,900 created the Easement.

“In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply. If the language is clear and explicit in the conveyance, there is no occasion for the use of parol evidence to show the nature and extent of the rights acquired.” (Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702 (Scruby).) Because the express language creating the Easement which appears in Parcel Map 12,900 and which is cited in the moving separate statement describes an easement for “private road purposes”, a reasonable trier of fact could conclude that this language is not ambiguous and expresses an intention that the Easement could be used for private road purposes as alleged by the Caseys in the complaint.

In addition, though the provisions of the Water System CC&Rs cited in the separate statement and relied on by Fanchon/Ellis as further described above generally refer to “easements,” these provisions do not expressly change, limit, or restrict the use of the Easement to water supply system purposes only as Fanchon/Ellis contend. Therefore, a reasonable factfinder could conclude that while the provisions of the Water System CC&Rs cited by Fanchon/Ellis may indicate an intent to permit the Easement to be used for water supply system, these provisions do not necessarily restrict the use of the Easement by expressly excluding any uses relating to the private road purposes referenced in Parcel Map 12,900. By way of further example, the facts offered by Fanchon/Ellis to demonstrate that a cistern is located within Well Site C as depicted on Parcel Map 12,900 and further described above also give rise to a reasonable inference that the Water System CC&Rs established an additional but not necessarily exclusive use of the Easement.

The same reasoning and analysis apply with respect to the 1986 CC&Rs of which Fanchon/Ellis request judicial notice. (Fanchon/Ellis RFJN, ¶ 4.) Fanchon/Ellis contend, and the Caseys dispute, that the 1986 CC&Rs established rights and obligations among the owners of Parcels A, B, and C regarding improvements to the Easement area for residential access. (Opp. Sep. Stmt., UMF No. 12 & evidence cited therein].) Notwithstanding whether Fanchon/Ellis may ultimately prove that the 1986 CC&Rs established rights to use the Easement for residential access, a fact which is disputed by the Caseys, nothing in the language of the 1986 CC&Rs offered by Fanchon/Ellis necessarily demonstrates for present purposes that this document expressly changed, limited, or restricted the express language Parcel Map 12,900. In addition, a further noted above, in support of their opposition to the motion, the Caseys offer the declaration of Ronald J. Boehm, who was a party to the 1986 CC&Rs, which gives rise to competing inferences regarding the interpretation and intent of the 1986 CC&Rs.

Notwithstanding whether Fanchon/Ellis may ultimately prove that the Easement may not be used for private road purposes, the facts and evidence cited in the moving separate statement are insufficient for present purposes to demonstrate as a matter of law that the scope of the Easement does not include the “private road purposes” expressly stated in Parcel Map 12,900 as alleged by the Caseys. As further discussed above, a reasonable trier of fact could conclude based on the evidence presented in support of the motion that the scope of the Easement as alleged in the first and second causes of action of the Caseys’ complaint is supported by the express language of Parcel Map 12,900. (See Scruby, supra, 37 Cal.App.4th at p. 704.) As there exist equally conflicting inferences that may be drawn from the facts and evidence presented in the motion, and as the Court may not presently weigh this conflicting evidence (see Spangle v. Farmers Ins. Exchange (2008) 166 Cal.App.4th 560, 576,) the Court will deny the motion for summary adjudication of the first and second causes of action alleged in the complaint. Therefore, the Court will also deny the motion for summary judgment.

Fanchon/Ellis assert the same grounds for summary adjudication of the second cause of action alleged in their cross-complaint as further discussed above. (Notice at p. 2, ll. 22-24.) The Court will apply the same reasoning and analysis to deny the motion as to the second cause of action alleged in the cross-complaint of Fanchon/Ellis.

First cause of action alleged in the complaint and third cause of action alleged in the cross-complaint:

As an additional ground for summary adjudication of the first cause of action alleged in the complaint, and as grounds for summary adjudication of the third cause of action for ejectment alleged in the cross-complaint, Fanchon/Ellis contend that, regardless of its permissible scope of use, the Easement is non-exclusive and the Caseys are prohibited from constructing a permanent cistern pad within its area. (Notice at p. 2, ll. 17-18 & 20-21; p. 3, ll. 7-10.) Fanchon/Ellis contend that a cistern pad constructed by the Caseys encroaches onto a portion of the Easement and the Fanchon/Ellis Property. (Memorandum at p. 9, ll. 8-13; Sep. Stmt., UMF No. 23 & evidence cited therein.)

To support their contentions, Fanchon/Ellis present facts purporting to establish the location of a boundary between Parcels C and D in relation to the cistern pad. (Sep. Stmt., UMF Nos. 21-24 & evidence cited therein.) To support these purported material facts, Fanchon declares that he took a photograph which depicts “stakes” that “mark the boundary between Parcel C and Parcel D, as surveyed by Gromatici Land Surveying, Inc.” and that “[t]he railroad tie construction in the approximate middle of the photo is the Cistern Pad.” (Fanchon Decl., ¶ 7.) The photo which purportedly depicts the stakes marking the boundary between Parcels C and D is submitted with the Supporting Evidence as exhibit M. The Supporting Evidence also includes exhibit N which Fanchon describes as a photograph depicting a boundary marker lying within the cistern pad, which Fanchon also contends appears as an “x” on Parcel Map 12,900, directly east from “RESERVOIR & WELL SITE C”. (Id. at ¶ 8.)

A party moving for summary adjudication must present evidence “that would require a reasonable trier of fact to find any underlying material fact” more likely than not or “not to find any underlying material fact more likely than not” depending on which party bears what burden of proof at trial. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1304, original italics; see also Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1176 [a moving Defendant must present evidence and not simply challenge a Plaintiff to prove the case by opposition].) To determine whether there exist triable issues of material fact, the Court may disregard “self-serving affidavits of the party.” (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.)

The “survey” which Fanchon contends was performed by Gromatici Land Surveying, Inc. (Gromatici), to mark the boundary between Parcels C and D is not included with the evidence submitted in support of the motion. Further, Fanchon/Ellis offer insufficient information to establish the manner in which Fanchon determined that the stakes appearing in the photographs depict the boundary line or how or by whom the stakes depicted in the photographs were placed, among other things. The Court is not obligated to accept the self-serving and conclusory statements offered in the Fanchon declaration with respect to the location of the boundary between Parcels C and D and the respective location of the cistern pad.

With their reply papers, Fanchon/Ellis submit a declaration of their counsel Bradley E. Lundgren (Lundgren), which includes new information regarding the survey work and staking of the property boundary between the Casey Property and the Fanchon/Ellis Property performed by Gromatici and photos taken by Lundgren in May 2022; a second declaration of Sweeney attaching a copy of Daniel P. Casey’s December 22, 2023, responses to Fanchon/Ellis’ requests for admission which relate to Parcel Map 12,900, the Easement, and the boundary between Parcels C and D, among other things; and, a second declaration of Fanchon which includes new or additional information regarding a land use permit for the construction of a dwelling and driveway on the Casey Property, surveys of the boundary between Parcels C and D, and additional information regarding the cistern pad and the installation of security cameras by Fanchon, among other things. Fanchon/Ellis also submit new documentary evidence to support the information offered for the first time in reply. (See Reply Evidence, Exhs. Q-Z.)

Further, Fanchon/Ellis request that the Court take judicial notice of reply exhibits V and Z, which include a “September 23, 1996 Notice Of Final Approval / Intent To Issue A Land Use Permit” for Parcel D and permit histories for Parcels B and D. (Reply RFJN, ¶¶ 9-11.)

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) The new information and evidence offered by Fanchon/Ellis for the first time in reply addresses the substantive issues raised in the moving papers rather than filling in evidentiary gaps created by the opposition of the Caseys. For this reason, the Court declines to consider the new or additional information, documents, and arguments offered and submitted for the first time in reply, which includes the information and evidence offered and referenced in the Lundgren, Sweeney, and second Fanchon declarations. (Id. at p. 1538 [trial Court did not abuse its discretion to decline to admit reply declarations that addressed “substantive issues in the first instance”].)

For all reasons discussed above, notwithstanding whether Fanchon/Ellis may ultimately prove that the cistern pad encroaches onto the Easement or the Fanchon/Ellis Property, Fanchon/Ellis have for present purposes failed to meet their initial burden to present evidence demonstrating that they are entitled to judgment as a matter of law with respect to whether the cistern pad is not allowed within the Easement. Therefore, the Court will deny the motion for summary adjudication of the first cause of action of the complaint and the third cause of action of the cross-complaint on this ground.

Third cause of action alleged in the complaint:

As grounds for summary adjudication of the third cause of action alleged in the complaint, Fanchon/Ellis contend that the installation of security cameras by them is not offensive to a reasonable person and does not constitute an egregious breach of any social norms underlying privacy rights. (Notice at p. 2, ll. 25-28.) To support their contentions, Fanchon/Ellis submit their respective declarations to establish that the cameras were installed due to security concerns, and that the cameras installed by Fanchon/Ellis do not record audio, are seldom monitored, cannot see inside of the Casey’s residence, include a block that covers the Casey’s house, and have not recorded anyone entering or leaving the Casey’s residence. (Sep. Stmt., UMF Nos. 25-30 & evidence cited therein [undisputed on these points].) Fanchon also asserts that he has removed the only camera that could capture an image of the residence on the Casey Property. (Sep. Stmt., UMF No. 31 & evidence cited therein [undisputed on this point].)

In their opposition to the motion, the Caseys offer facts to show that Fanchon installed six or seven cameras in February 2022, that one camera points towards the Casey Property and looks at the building pad of the Caseys’ house, that Fanchon did not tell the Caseys that he blocked out a portion of the camera pointing towards the Caseys’ house, that another camera looks at a gate at the Casey Property, and that Fanchon has observed the Caseys on the Easement including seeing Mr. Casey “riding his tractor” and taking out weeds on the Easement. (Opp. Sep. Stmt., AMF Nos. 32, 34, 38, 41-43 & evidence cited therein.)

“The privacy tort seeks to vindicate multiple and different interests that range from freedom to act without observation in a home, hospital room, or other private place to the ability to control the commercial exploitation of a name or picture…. [¶] Each of the four categories of common law invasion of privacy identifies a distinct interest associated with an individual’s control of the process or products of his or her personal life. To the extent there is a common denominator among them, it appears to be improper interference (usually by means of observation or communication) with aspects of life consigned to the realm of the ‘personal and confidential’ by strong and widely shared social norms.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24-24 (Hill).)

Relevant here, the common law tort of invasion of privacy generally refers to “conduct that is ‘highly offensive to a reasonable person,’ thereby emphasizing the importance of the objective context of the alleged invasion, including: (1) the likelihood of serious harm, particularly to the emotional sensibilities of the victim; and (2) the presence or absence of countervailing interests based on competing social norms which may render Defendant’s conduct inoffensive….” (Hill, supra, 7 Cal.4th at p. 26, original italics, fn. omitted.) “In determining the ‘ “offensiveness” ’ of an invasion of a privacy interest, common law Courts consider, among other things: ‘the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.’ [Citation.]” (Ibid.)

Strictly construing the evidence offered by Fanchon/Ellis, and viewing the evidence in the light most favorable to the Caseys (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839; Shin v. Ahn (2007) 42 Cal.4th 482, 499), there exist competing inferences which prevent the Court from granting summary adjudication of the third cause of action alleged in the complaint. For example, a factfinder could reasonably conclude based on the evidence presented by the parties that the installation of cameras by Fanchon/Ellis and the resulting degree of intrusion onto the Casey Property is sufficiently offensive to constitute an invasion of the Caseys’ privacy interests. The evidence also gives rise to competing inferences regarding Fanchon’s motives for installing the cameras. As the Court may not weigh the conflicting inferences which may be drawn from the evidence presented, the Court will deny the motion for summary adjudication of the third cause of action alleged in the complaint.

Requests for judicial notice:

The Court has addressed the request of Fanchon/Ellis for judicial notice of Parcel Map 12,900, the Fanchon/Ellis Deed, and the Water System CC&Rs above.

Fanchon/Ellis also request judicial notice of: the 1986 CC&Rs; an “Individual Grant Deed, recorded February 21, 1986 as Instrument # 1986-009697 in the Official Records of Santa Barbara County” (the 1986 Grant Deed); a “Grant Deed recorded June 21, 2019 as Instrument # 2019-0025947 in the Official Records of Santa Barbara County” (the 2019 Grant Deed); a “Grant Deed To A Trust, recorded September 7, 2021 as Instrument # 2021-0063594 in the Official Records of Santa Barbara County” (the 2021 Grant Deed); and, a “Corporation Grant Deed, recorded January l3, 1981 as Instrument # 81-1404 in the Official Records of Santa Barbara County” (the Corporation Grant Deed). (Fanchon/Ellis RFJN, ¶¶ 5-8 & Exhs. E-H.)

For all reasons discussed above, the Court will grant judicial notice of the fact of recordation of the 1986 CC&Rs, the 1986 Grant Deed, the 2019 Grant Deed, the 2021 Grant Deed, and the Corporation Grant Deed. Judicial notice of these documents does not extend to the truth of their contents or the acceptance of any particular interpretation of their meaning.

As Fanchon/Ellis did not meet their initial burden on summary adjudication for all reasons further discussed above, the burden did not shift to the Caseys to show the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) Therefore, the Court need not consider the two separate requests for judicial notice submitted by the Caseys in support of their opposition to the motion.

In addition, and for all reasons discussed above, the Court denies the request of Fanchon/Ellis for judicial notice of exhibits V and Z submitted in reply.

Objections to evidence:

The Court declines to rule upon the evidentiary objections submitted in support of the Caseys’ opposition to the motion and the Caseys’ objection to new evidence submitted by Fanchon/Ellis in reply. These objections fail to comply with either of the two formats set forth in California Rules of Court, rule 3.1354(b).

Thomas P. Anderle, Judge