Defendants and appellants Kazmer Leonard Pezdek and Charlene Mary Pezdek, individually and as trustees of the Pezdek Family Trust, appeal from a judgment in favor of plaintiffs and respondents Robby G. Hoggatt and Olariny Chhim-Hoggatt following a bench trial on the plaintiffs' verified complaint arising out of dispute over the boundary between the parties' adjacent properties and certain claimed physical encroachments by defendants.The trial court awarded plaintiffs injunctive and declaratory relief, damages and costs, in part finding they were entitled to a judicial declaration quieting title to specified property, they had established defendants' encroachments constituted a nuisance and trespass, and they had established $115,801 in cost-of-repair, diminution in value and general damages. It rejected defendants'"agreed-boundary" defense.
On appeal, defendants contend (1) the trial court erred by quieting title in plaintiffs' favor because undisputed evidence established the elements of the agreed-boundary doctrine; (2) the plaintiffs' trespass and nuisance causes of action are barred at least in part by the applicable three-year statute of limitations; (3) the trespass cause of action does not support the court's award of $15,000 in general damages (4) the injunction ordering them to remove all improvements within their legal setback exceeds the relief available to the plaintiffs and (5) the injunctive relief and money damages constitute an improper double recovery. With respect to the injunctive relief portion of the judgment, we order the trial court to modify the judgment so as to narrow the scope of injunctive relief in specified respects. As so modified and in all other respects the judgment is affirmed.
We take the factual background from the facts and evidence in the record and the trial court's statement of decision. We view the facts most favorable to the judgment under the principle requiring us to presume the judgment is correct and draw all inferences and presumptions necessary to support it. ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 , 1133; Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475 , 494.) "`Where [the] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the [trial court's] decision.'" ( In re Marriage of Ruelas (2007) 154 Cal.App.4th 339 , 342.) If the statement of decision is ambiguous or omits material factual findings, we will infer any factual findings necessary to support the judgment. ( Ermoian v. Desert Hosp., at p. 494.)
Plaintiffs own residential property at 10317 San Vincente Boulevard in Spring Valley, California. Defendants own adjacent property at 10315 San Vincente Boulevard immediately to the north and east of the plaintiffs' property. Pezdek has constructed various improvements, including a masonry wall, wooden fence and portions of a patio cover and roof overhang, that encroach across the legal boundary line onto plaintiffs' property.
Pezdek began constructing the wall and fence sometime in 1986, after he and the original owner of plaintiffs' property, Daniel Hawthorne, talked about placing fencing between their properties. Hawthorne and his wife desired privacy and they had a dog that they wanted to keep on their property, which at the time had no barriers with Pezdek's property. Pezdek knew Hawthorne desired a fence out of concern about the security of his children and pet, and that the fence was not intended to modify their property boundaries. Pezdek also desired the fence for security. His and Hawthorne's first discussion about the matter concerned where to put the fence, whether they could afford one, and who would do the job. They decided to do the work themselves, but needed to locate the property boundary.
The next day, Hawthorne and Pezdek looked for, but could not find, the property markers between their respective properties. The men dug into the ground where they thought the markers should be. They enlisted the help of Richard Webber, a neighbor who was also the general manager of the contractor who built the homes, but he likewise could not find the markers. Pezdek asked Webber to point out where he thought the line was. Webber pointed to areas along a berm that he thought demarcated the property line, and the men put stakes down at those points. Hawthorne and Pezdek agreed they would locate the fence along a berm or ridge between their properties and would consider that the property line. They eventually placed the fence on that location. After they erected the fence, they did not create documents to adjust the boundary between their properties nor did they reach any written agreement to keep the fence where it was located, rewrite the deed to indicate the fence location, or grant any easement to Pezdek for the fence location.
About two years later, Hawthorne and Pezdek extended the fence, but Pezdek later removed a portion of the extension when successor owners to Hawthorne asked that he remove it and a trash area on their property. Pezdek had no discussions about the property boundaries with Hawthorne's successor owners.
Plaintiffs moved into 10317 San Vincente Boulevard in March 2004. At the time of their purchase, they did not receive a copy of the subdivision map or perform a survey; when they closed escrow, they did not know the property line and nobody raised issues concerning the property lines before the sale. Within a few months after moving in, Hoggatt told Pezdek he would be putting a retaining wall between an air conditioner on his property and the Pezdeks' property to prevent eroding dirt from defendants' bank from building up onto into the compressor. Pezdek suggested they remove more dirt and extend the fence and retaining wall. Hoggatt asked Pezdek whether he knew where the boundary was and was told it was on the existing fence. Pezdek told him the new extension would come straight out along the boundary line toward the front of the properties. Hoggatt took Pezdek's word that the existing wall and fence was on the property line.
After construction began, Hoggatt noticed the wall extension was being built so that it angled toward his property about two feet from the existing fence line. Hoggatt had agreed to help pay for the wall and fence extension, but he did not agree or intend that Pezdek could take a portion of his property to construct it. Hoggatt approached Pezdek about the offset. Pezdek changed his story, telling Hoggatt that the preexisting wall was actually on his (Pezdek's) property and he was "getting back" some of his property by changing the location of the extension.
In March 2007 Hoggatt commissioned a survey, which revealed that both the preexisting and extended wall and fence were on his property. Several weeks later, he approached Pezdek and asked him to remove the wall and place it on his property. Pezdek offered to move the new wall in line with the preexisting wall, but Hoggatt declined. Hoggatt listed all of the encroachments that he wanted removed and demanded that Pezdek correct raised hardscape conditions that allowed dog urine and other runoff to drain into the Hoggatts' yard. Pezdek did not agree, but they decided to meet again within a couple of weeks. The Hoggatts met with Pezdek three additional times without resolution. At the final meeting, Pezdek took the position that the fence was an established boundary. He accused Hoggatt of extortion and abuse of process, and remarked he would do "whatever it takes" to stop the Hoggatts from pursuing the boundary issue.
The Hoggatts next interacted with the Pezdeks in August 2007. Hoggatt was outside with his wife and son cleaning their garage and driveway following a garage sale. The Pezdeks arrived home and Mrs. Pezdek yelled out, "You should be ashamed of yourself. You should be ashamed. . . . Not letting [the Hoggatts' son] talk to us and that's just no class, no class at all." When Mrs. Hoggatt began to reply, Pezdek, referring to Mrs. Hoggatt's Cambodian descent, remarked, "I guess that's how they are in the Jungles of Cambodia."
In October 2007, the San Diego County Planning Department issued an administrative citation to defendants for the encroaching construction and improvements and also for approximately 1500 feet of unpermitted additions to their home. At about this time, the Pezdeks began waiting for the Hoggatts to arrive home in order to rush to the property line and make comments, stare or grimace at them. At one point, Pezdek, looking very angry, said to Hoggatt in a low voice, "Just wait. What goes around comes around." Hoggatt began videotaping the interactions with the Pezdeks as they had accused him of harassment and he feared additional incidents by the Pezdeks. Hoggatt became concerned for the safety of himself and his child as well as about the use and enjoyment of his property. Later incidents involved Pezdek's profane outbursts; on one occasion he leaned over the wall and used a racial epithet, including telling Hoggatt, "Fuck you and the fucking gook you're married to." On another occasion, a neighbor saw Pezdek come at Hoggatt with his fist cocked and became so concerned that Pezdek might physically attack Hoggatt that he pulled out his cell phone and considered calling police. Hoggatt became stressed, anxious and nervous for himself and his son, and sought medical care for sleeplessness and hives as a result of the Pezdeks' conduct. He was also concerned by the fact the Pezdeks had threatened to report him for child abuse. The Hoggatts later obtained a restraining order against the Pezdeks.
In November 2007, plaintiffs filed a verified complaint for quiet title, nuisance, injunctive and declaratory relief, and damages. Alleging defendants had no legitimate claim, right, title, estate, lien or interest in their property, they sought to quiet title against all of defendants' claims, require defendants to remove the encroaching wall and improvements, and obtain a judicial declaration as to their ownership of the disputed portions of the property. Plaintiffs alleged defendants used their property as to constitute a nuisance due to a French drain and other permanent structures and drainage that caused water runoff, drainage and flooding onto their property. Plaintiffs alleged they had no adequate remedy at law for the injuries caused by the encroachments; that their property was unique, it would be difficult to ascertain the monetary damages sustained as a result of defendants' wrongful acts, and multiple judicial proceedings would be necessary to protect their interests by defendants' ongoing encroachment and trespasses on their property. They alleged they had suffered emotional distress and diminution in the value of their property.
The matter proceeded to a bench trial in which the Hoggatts presented testimony from Robert Russell, a professional land surveyor and principal of Kappa Surveying, who they had retained to conduct the survey. His firm had created the original subdivision map for the properties and had also performed a survey of the property in 2001 including a corner record map, which made it easy for him to reestablish and replace the boundary markers based on those documents and his survey techniques. Russell testified that from a surveying standpoint, it would have been easy to locate a back corner marker of the property that had been destroyed by the wall construction; likewise, in 1986, it would have been fairly simple to replace the missing corner boundary marker with the existing monumentation.
Hawthorne testified he had received a copy of the subdivision map setting forth the boundary locations and he understood a survey would be the most accurate way to locate the property markers, but he could not afford one. He testified he paid the full cost of his property taxes while he owned the property. Hawthorne specifically declined to characterize the issue concerning the boundary with Pezdek as a dispute; he described it as a "question" about the location of the property line. Pezdek testified he and Hawthorne intended to locate the fence at or close to the property line; Pezdek did not intend to give Hawthorne any portion of his property and he did not intend to take any of Hawthorne's property by the fence location.
The court took the matter under submission and in July 2009 issued its ruling in plaintiffs' favor. On July 16, 2009, defendants requested a statement of decision and in September 2009, the court signed and filed its statement of decision as well as a judgment in plaintiffs' favor. In its statement of decision, the court rejected defendants' agreed-boundary defense. It found the record title clearly described the boundary lines and that those descriptions and a survey would allow for an easy determination of the parties' property lines. The court found Hawthorne's testimony "supports a finding that the fence constructed between Hawthorne and Pezdek was merely a barrier and not an agreed boundary line" and that "the true line was not uncertain or unknown and therefore the agreed boundary doctrine did not apply." It ordered defendants to remove all improvements, including the encroaching wall, within defendants' legal setback area and any improvements, rocks and other materials located on plaintiffs' property. It awarded plaintiffs $56,401 in "cost of repair" damages, $44,400 for the permanent diminution in value of their property, $15,000 in general damages, and costs of suit. This appeal followed.
Source:
No comments:
Post a Comment