Kendall v. Walker, A105981.

• Court: California Court of Appeals
• Writing for the Court: Kline
• Citation: 104 Cal.Rptr.3d 262,181 Cal.App.4th 584
• Parties: JOHN T. KENDALL, as Trustee in Bankruptcy, etc., et al., Plaintiffs and Respondents, v. PAULL C. WALKER et al., Defendants and Appellants.
• Docket Number: No. A105981.,A105981.
• Decision Date: 30 December 2009

181 Cal.App.4th 584

104 Cal.Rptr.3d 262

JOHN T. KENDALL, as Trustee in Bankruptcy, etc., et al., Plaintiffs and Respondents, v. PAULL C. WALKER et al., Defendants and Appellants.

No. A105981.

Court of Appeals of California, First District, Division Two.

December 30, 2009.

As modified January 27, 2010.

Certified for Partial Publication^*

[181 Cal.App.4th 587]

Miller, Starr & Regalia, Scott A. Sommer and Lewis J. Soffer for Defendants and Appellants.

Law Office of David R. Fischer and David Randall Fischer for Plaintiffs and Respondents.

OPINION

KLINE, P.J.

Paull C. Walker and Margery F. Walker (collectively defendants) appeal after the trial court granted Alvin H. Luckenbach and Maria E. Luckenbach's (collectively plaintiffs)¹ motion for summary judgment. On appeal, defendants challenge the trial court's (1) denial of their motions for leave to amend and supplement their answer and cross-complaint, and (2) grant of plaintiffs' motions for summary adjudication of issues and summary judgment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs own a residential subdivision lot (lot 102) in the town of Bethel Island, California. Defendants own the residential subdivision parcel (comprised of lot 103 and a small portion of lot 104), adjacent to plaintiffs' lot. Both lots have frontage on Taylor Slough, a navigable waterway. This matter involves the question of the proper boundary line between the parties' areas of littoral rights² for use of the water adjacent to their upland property.

On September 29, 1998, plaintiffs filed a complaint for damages for trespass to real property and for a temporary restraining order, preliminary injunction, and permanent injunction. The complaint alleged that a houseboat moored to defendants' dock extended onto plaintiffs' property.

On August 26, 1999, plaintiffs filed a first amended complaint, in which they added Victor and Alicia Levchenko, plaintiffs' neighbors to the south and owners of lot 101, as defendants, so that in the event correction of an alleged survey error altered the dividing line between the properties of plaintiffs and the Walker defendants, the dividing line between plaintiffs and the Levchenkos would also be changed.³ In addition to the cause of action for trespass, the first amended complaint also added causes of action for declaratory relief regarding the location of the dividing lines between the parties' littoral rights; declaratory relief acknowledging plaintiffs' paramount rights conferred by the United States Army Corps of Engineers, authorization to relocate their dock; declaratory relief stating that defendants' mooring of their houseboat partially in front of plaintiffs' parcel violated covenants, so-called "CC&Rs" (covenants, conditions, and restrictions), that encumbered their parcel; relief from nuisance due to defendants' mooring of their houseboat partially in the area of littoral rights belonging to plaintiffs; and relief from nuisance due to defendants' violation of the CC&R's.

On December 27, 2000, defendants filed a motion for summary judgment or, in the alternative, summary adjudication of issues, claiming, inter alia, that the area in question was within the area of navigable water owned by the State of California and that the parties' rights were governed under leases and permits issued by the state.

Also on December 27, 2000, plaintiffs filed a motion for summary judgment or, in the alternative, summary adjudication of issues (summary adjudication motion).⁴

On January 29, 2001, the trial court issued its tentative ruling denying defendants' motion for summary judgment and granting plaintiffs' request for summary adjudication on all but one cause of action.

Also on January 29, 2001, defendants filed a cross-complaint to quiet title to the disputed portion of Taylor Slough, pursuant to a lease they had obtained from the State Lands Commission (Commission) on August 12, 1991. Then, on January 30, 2001, defendants requested and the trial court granted a continuance for discovery, which the court ordered reopened "only with regard to the State Lands Comm[ission]."

On May 18, 2001, the Commission submitted a letter brief to the trial court, in which it stated that it had used the "Colonial Method" to determine the sideline property projections on the curved shoreline. Using that method, the Commission concluded "it is apparent that the Walkers' houseboat does extend over the sideline so determined. And drawing the Luckenbach-Walker sideline in this manner demonstrates that the Walkers will have more than sufficient shoreline to support the houseboat and pier if the structures are relocated upstream." In light of this determination, the Commission indicated that it would not be renewing defendants' lease, which would be up for renewal in August 2001, as to the area beyond their sideline.

On October 5, 2001, defendants served notice that they were dropping their summary judgment motion on the grounds that (1) their lease had expired, (2) they had learned that the state may not own the submerged land, and (3) discovery that certain facts in the parties' joint stipulation of facts were not true.

On February 5, 2002, over one year after the first hearing on plaintiffs' summary adjudication motion, the trial court held another hearing on plaintiffs' motion and took the matter under submission.

On February 8, 2002, defendants filed a motion seeking leave to amend their answer and cross-complaint. In their motion, defendants stated: "The amended pleadings are designed to take into account facts uncovered in October 2001 as to the ownership of the subject portion of Taylor Slough." In particular, the motion asserted that "it has become apparent that the area of the current configuration of Taylor Slough at issue in this action is not a part of the original portion of Taylor Slough that existed, circa 1850, when California received title to submerged lands upon achieving statehood." Based on these facts, defendants' proposed amendments would add defenses and causes of action for adverse possession and a prescriptive easement.⁵

On March 26, 2002, the trial court denied defendants' motion to amend.

On May 4, 2002, the trial court filed an informal ruling—followed by an order on February 3, 2003—granting in part plaintiffs' summary adjudication motion. In its order, the trial court granted summary adjudication as to all causes of action except for the third cause of action for declaratory relief regarding defendants' violation of the CC&R's.

On March 4, 2003, plaintiffs filed a final motion for summary adjudication of issues or, in the alternative, summary judgment. In that motion, plaintiffs requested summary judgment as to defendants' cross-complaint, asserting that no issues raised in the cross-complaint remained unresolved. Plaintiffs also offered to have the trial court dismiss the third cause of action in their first amended complaint, in order to completely resolve the case.

On May 5, 2003, defendants filed a motion seeking leave to file a supplemental answer and cross-complaint to allege that the submerged land was not owned by the state and to assert causes of action for a prescriptive easement and adverse possession.

On July 14, 2003, the trial court entered an order denying defendants' motion to supplement their answer and cross-complaint.

On September 19, 2003, the trial court granted plaintiffs' motion for summary judgment and entered judgment thereon. On February 17, 2004, plaintiffs filed a notice of entry of judgment.

On March 11, 2004, defendants filed a notice of appeal.

On November 8, 2005, this court ordered that all proceedings in this appeal be stayed, in light of bankruptcy proceedings initiated by Alvin H. Luckenbach on October 12, 2005. On March 10, 2008, plaintiffs advised the court that the United States Bankruptcy Court, Northern District of California, had filed an order lifting the stay as to this appeal. On June 19, 2009, we therefore ordered that the stay previously imposed be lifted, and this appeal was restored to active status. We also granted plaintiffs' motion to substitute John T. Kendall, United States Bankruptcy Trustee, etc., as respondent, in place of Alvin H. Luckenbach.⁶

DISCUSSION

I., II.^*

III. Trial Court's Grant of Plaintiffs' Motions for Summary Adjudication and Summary Judgment

Defendants contend the trial court improperly granted plaintiffs' summary adjudication and summary judgment motions because there were several triable issues of material fact that precluded the granting of these motions.

A motion for summary adjudication or 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 a judgment as a matter of law." (Code Civ. Proc. § 437c, subd. (c).) "In moving for summary judgment, a `plaintiff . . . has met' his `burden of showing that there is no defense to a cause of action if he `has proved each element of the cause of action entitling' him `to judgment on that cause of action. Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials' of his `pleadings to show that a triable issue of material fact exists but, instead,' must `set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (Code Civ. Proc. § 437c, subd. (o)(1).)" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [107 Cal.Rptr.2d 841, 24 P.3d 493].)

We review rulings on motions for summary adjudication and summary judgment de novo. (Marie Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th 928, 949 .)

A. Grant of Summary Adjudication of Issues

On February 3, 2003, the trial court filed an...