Filed 2/23/21 Reggio v. Sibner CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
LISA REGGIO,
F080699
Plaintiff and Appellant,
(Super. Ct. No. BCV-17-102068)
v.
WILLIAM SIBNER, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Lamberto Law Office and Peter Nicholas Lamberto for Plaintiff and Appellant.
William Sibner, in pro. per., for Defendant and Respondent.
-ooOoo-
Plaintiff Lisa Reggio sued the owner of an adjacent lot, alleging causes of action
for trespass, nuisance, and intentional infliction of emotional distress. The owner of the
adjacent lot moved for summary judgment based on the statute of limitations, contending
Reggio had known about the encroaching propane tank and enclosure, concrete driveway
* Before Levy, Acting P.J., Franson, J. and Meehan, J.
with curbs, and pump enclosure since 2006. Reggio admitted all the facts listed in
adjacent lot owner’s separate statement were undisputed. She argued the statute of
limitations had not run because the trespasses and nuisances were continuing rather than
permanent and argued summary judgment was not appropriate because the moving
papers failed to include facts establishing the encroaching items qualified as permanent
trespasses and nuisances under California law. The trial court rejected this argument and
granted summary judgment. Reggio appealed.
The issues presented are narrow because none of the facts asserted in the adjacent
lot owner’s separate statement are disputed. As a result, we accept those facts as true
without analyzing the supporting evidence. Our examination focuses on whether the
stated undisputed facts are sufficient to carry the moving party’s initial burden of
showing the causes of action had no merit because “there is a complete defense to the
cause[s] of action.” (Code Civ. Proc., § 437c. subd. (p)(2).)1 Because Reggio has known
of the encroachments since 2006 and her lawsuit was not filed until 2017, the three-year
statute of limitations will constitute a complete defense if the adjacent lot owner has
established the trespasses and nuisances qualify as “permanent.”
To identifying the facts “material” to the statute of limitations defense, we turn to
Starrh and Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583
(Starrh), where we described the distinction between permanent and continuing
trespasses and set forth the applicable tests. The primary question is “whether the
trespass or nuisance can be discontinued or abated.” (Id. at p. 594.) The applicable tests
address, among other things, whether the trespass or nuisance can be abated “in a
reasonable manner and for reasonable cost” and whether the abatement “is feasible.” (Id.
at p. 594.) We conclude reasonableness and feasibility present questions of fact and,
therefore, the underlying facts about the manner and cost of abatement are “material” to
1 All unlabeled statutory references are to the Code of Civil Procedure.
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deciding whether the encroaching items are permanent or continuing trespasses and
nuisances.
Here, the adjacent lot owner’s separate statement of undisputed material facts
included no facts addressing the manner and cost of abatement or the feasibility of
abatement. Consequently, the separate statement did not carry the moving party’s initial
burden because it did not set forth “plainly and concisely all material facts” needed to
show the encroaching items constituted permanent trespasses or nuisances. (§ 437c,
subd. (b)(1).) Furthermore, the omission of these material facts from the separate
statement cannot be regarded as cured by the supporting evidence presented with the
summary judgment motion because that evidence did not address, much less establish,
the existence of the omitted material facts. Accordingly, the motion for summary
judgment should have been denied.
We therefore reverse the judgment.
FACTS
In 2002, defendant William Sibner (Neighbor) acquired a lot in Kern County with
an address on Zurich Way in Pine Mountain Club (Lot 76). When Neighbor acquired Lot
76, it included a propane tank, an enclosure for the propane tank, and a concrete
driveway. In 2006, Neighbor installed a pump enclosure and added curbs to the concrete
driveway.
In 2003, Reggio acquired an undeveloped lot on Zurich Way in Pine Mountain
Club (Reggio Lot). The Reggio Lot is adjacent to and north of Lot 76.
Since 2006, Reggio has been aware of the propane tank, its enclosure, the
driveway with curbs, and the pump enclosure. For purposes of this opinion, we refer to
the propane tank, its enclosure, the concrete driveway, the curbs, and the pump enclosure
as the “encroaching items.” In 2006, Reggio called the Pine Mountain Club Property
Owners’ Association to complain about the encroaching items and to ask the owners’
association to take action. In July 2006, the owners’ association responded with a letter
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asking Reggio “to discuss your future building concerns with your neighbor when the
time comes for you to build” and stating Reggio could “probably come to an agreement
both you and your neighbor can live with.” Subsequent discussions with the owners’
association did not resolve the matter.
In October 2012, Reggio’s father, with her authorization, hired a surveyor to
survey her lot. After the survey was completed, Reggio’s father contacted Bob Clark of
the owners’ association to provide him a copy of the survey and discuss how the
encroaching items violated the association’s covenants, conditions and restrictions
(CCR’s). Bob Clark asked Reggio to address the dispute directly with Neighbor. The
communications between Reggio and Neighbor did not resolve the matter.
PROCEEDINGS
In September 2017, Reggio initiated this lawsuit. In October 2017, Reggio filed a
second amended complaint against Neighbor and defendant Pine Mountain Club Property
Owners’ Association. In that pleading, Reggio admitted she knew of the encroaching
items and had complained about them to Neighbor from 2008 through 2017.
In November 2018, Pine Mountain Club Property Owners’ Association filed a
motion for summary judgment asserting Reggio could not prevail on her causes of action
for breach of written contract and breach of fiduciary duty because the claims were
barred by the statute of limitations. Reggio opposed the motion, asserting the continuing
accrual doctrine prevented the respective statutes of limitations from operating as a
complete bar to recovery. In March 2019, the trial court granted the motion and entered a
judgment in favor of Pine Mountain Club Property Owners’ Association.
In August 2019, Neighbor filed a motion for summary judgment, separate
statement of undisputed facts, and a compendium of supporting evidence. Neighbor’s
compendium of evidence contained one exhibit—the compendium of declarations and
exhibits submitted by Pine Mountain Club Property Owners’ Association in support of its
motion for summary judgment.
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In October 2019, Reggio filed a memorandum of points and authorities in
opposition to the motion, a separate statement in opposition to the summary judgment
motion, and a declaration by her attorney. Reggio’s separate statement responded
“Undisputed” to each of the 16 enumerated facts in Neighbor’s separate statement. In
addition, her separate statement did not set forth any additional facts she contended were
material. (See Cal. Rules of Court, rule 3.1350(f)(3) [content of separate statement in
opposition to motion].) Reggio argued the motion was defective because it incorrectly
characterized the trespasses and nuisances at issue as permanent rather than continuing.
Reggio cited Starrh, supra, 153 Cal.App.4th 583 as support for the principles used to
distinguish between permanent and continuing trespasses and asserted the trespasses and
nuisances could be abated. For instance, Reggio argued the cost of moving the hot water
circulating pump enclosure would be negligible because it was only about three feet by
three feet. The declaration of Reggio’s attorney stated he had spoken to two local
propane suppliers and they both told him that the subject propane tank could be relocated
for $80.
Neighbor filed a reply, asserting the continual accrual doctrine raised in Reggio’s
opposition was inapplicable. Neighbor described the encroaching items as “a large
propane tank and fixed tank enclosure, a concrete driveway, and 6-inch concrete curbs
along side the driveway” and asserted they would require considerable effort to move and
reinstall. Neighbor also filed evidentiary objections to the declaration of Reggio’s
attorney. For example, he objected to the attorney’s statements about the cost of
relocating the propane tank on the grounds the statement included hearsay, lacked
foundation, and was irrelevant.
In November 2019, the trial court held a hearing on the summary judgment
motion. The court announced its tentative ruling to grant the motion, heard argument
from the parties, and took the matter under submission. Within a week, the trial court
issued a written ruling stating:
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“The court grants … [Neighbor’s] motion for summary judgment, finding
[Reggio’s] claims against [him] are time-barred pursuant to … §§ 335.1
and 338(b) as a matter of law. As this Court has previously ruled, the harm
in this case is not continuous in nature and, as such, [Reggio’s] contention
that the nuisance of which she complains is [continuous] in nature is
unsupported by the facts and the law. Where the alleged nuisance is
[permanent] in nature, such as construction of solid structures encroaching
on the plaintiff’s land, ‘plaintiffs ordinarily are required to bring one action
for all past, present and future damages within three years after the
permanent nuisance is erected.’ [Citation.] Accordingly, each of
[Reggio’s] claims are barred.”
On November 21, 2019, the trial court signed and filed a written order granting the
motion for summary judgment. The order also stated Neighbor was the prevailing party
in the action and entitled to recover his costs under section 1032. Reggio submitted
objections to the form of order prepared by Neighbor and executed by the court. On
December 3, 2019, the court issued a minute order directing drafting errors in its
November 7, 2019 ruling to be corrected nunc pro tunc and stating “[i]n light of the
correction, the clerk’s minutes of this order shall constitute the order of the court granting
summary judgment.” In January 2020, Reggio filed a notice of appeal.
In November 2020, this court granted its own motion to augment the clerk’s
transcript to include (1) the compendium of evidence in support of Neighbor’s motion for
summary judgment, (2) an August 1, 2019 declaration of Neighbor, (3) Neighbor’s
objections to the evidence offered by Reggio in opposition to the motion for summary
judgment, and (4) Reggio’s response to Pine Mountain Club Property Owners’
Association separate statement of undisputed material facts, which Reggio filed on
January 22, 2019. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
In December 2020, after the clerk’s transcript had been augmented, Reggio filed a
request for leave to file a supplemental brief. Reggio asserted that if this court intended
to affirm the summary judgment on a ground not relied upon by the trial court, we must
afford the parties an opportunity to present their views on the issue. (See Gov. Code, §
68081.) On December 21, 2020, the court sent the parties a letter directing them to file
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sequential supplemental briefs addressing (1) the adequacy of Neighbor’s separate
statement of undisputed material facts, and (2) whether any omission of material facts
from Neighbor’s separate statement had been cured by the evidence presented by
Neighbor or by the application of collateral estoppel (i.e., issue preclusion).
On January 19, 2021, Reggio filed her supplemental letter brief, arguing the
omission of material facts addressing whether the nuisance was continuing or permanent
had not been cured by the evidence presented and collateral estoppel was not applicable.
On February 2, 2021, Neighbor filed his supplemental letter brief. Neighbor asserted the
rule of law defining whether a trespass or nuisance is continuing or permanent is well
settled. He cited Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480 for the principle that a
nuisance is permanent if it involves a “solid structure” upon the land or is “of such a
character as it will be reasonably certain, or will be presumed, to continue indefinitely, or
affect the value of the property permanently.” (Id. at pp. 1484–1485.) Neighbor argues
the encroaching items, by their very nature, are such structures and indicate an intention
that the trespass will be permanent. Neighbor contends further details about the
encroaching items were not needed to carry his burden and Reggio did not present any
additional material facts in her separate statement.
DISCUSSION
I. STANDARD OF REVIEW
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 a judgment as a matter of law.” (§ 437c, subd. (c).) When reviewing the grant
of a motion for summary judgment, appellate courts “independently review the record
and apply the same rules and standards as the trial court.” (Powell v. Kleinman (2007)
151 Cal.App.4th 112, 121.) Thus, both trial courts and appellate courts apply the three-
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step analysis this court set forth in Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602
(Brantley).
II. MERITS OF THE SUMMARY JUDGMENT MOTION
A. Step One: Framing the Issues
The first step in analyzing a motion for summary judgment is to “identify the
issues framed by the pleadings,” because the motion must show “there is no factual basis
for relief on any theory reasonably contemplated by the opponent’s pleading.” (AARTS
Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064; see
Brantley, supra, 42 Cal.App.4th at p. 1602.) Stated otherwise, the materiality of a fact is
measured by the complaint and answer, which define the scope of the issues to be
resolved at summary judgment. (Conroy v. Regents of University of California (2009) 45
Cal.4th 1244, 1250.)
Here, Reggio does not contend Neighbor’s moving papers are defective because
Neighbor failed to identify a cause of action framed in her complaint. Thus, we conclude
the three issues identified in Neighbor’s separate statement of undisputed material facts
accurately completed the first step of the summary judgment analysis. Neighbor defined
the first issue by asserting: “Plaintiff’s First Cause of Action for Trespass Fails as a
Matter of Law Because Any Recovery is Barred By the Statue of Limitations (Code Civ.
Proc. § 338(b)).” (Boldface omitted.) Similarly, Neighbor defined the second and third
issues by stating Reggio’s causes of action for nuisance and intentional infliction of
emotional distress were barred by the statute of limitations. Based on the issues framed
by Neighbor’s moving papers, we complete the first step of the summary judgment
analysis by concluding Neighbor will be entitled to summary judgment as a matter of law
if the undisputed material facts set forth in his moving papers establish the causes of
action for trespass, nuisance and intentional infliction of emotional distress are barred by
the statute of limitations.
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B. Step Two: The Moving Party’s Showing
1. Defining the Moving Party’s Burden
Step two of the summary judgment analysis requires the reviewing court to
determine whether the moving party’s papers satisfied his initial burden and justified a
judgment in its favor. (Brantley, supra, 42 Cal.App.4th at p. 1602.) To satisfy this
burden, the moving party must “make a prima facie showing of the nonexistence of any
triable issue of material fact .…” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 850.) Restated in the language of the summary judgment statute, a defendant has
met his “burden of showing that a cause of action has no merit if [he] has shown … that
there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) As relevant to
this case, the bar created by the expiration of the statute of limitations is an affirmative
defense that qualifies as “a complete defense to the cause of action” for purposes of the
statute. (§ 437c, subd. (p)(2).)
The examination of the moving party’s showing to determine whether he carried
his initial burden involves two separate inquiries. First, the court examines whether the
facts listed in the moving party’s separate statement, “standing alone and if true, legally
require a favorable ruling on the legal issue presented.” (Zebrowski, The Summary
Adjudication Pyramid (Nov. 1989) 12 L.A. Law. 28, 29.)2 Second, the court examines
the evidence referenced in the moving party’s separate statement to determine whether
that evidence legally requires a finding of this fact. (Id. at p. 30.)
The examination of the separate statement’s facts seeks to determine whether the
moving party provide a sufficiently developed factual picture to allow resolution of the
legal issue presented. The required presentation of facts is derived from section 437c,
subdivision (b)(1), which states the moving party’s “supporting papers shall include a
separate statement setting forth plainly and concisely all material facts which the moving
2 Former Justice John Zebrowski wrote this article while serving as a judge for the
Los Angeles County Superior Court.
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party contends are undisputed.” (Italics added.) In Haney v. Aramark Uniform Services,
Inc. (2004) 121 Cal.App.4th 623, this court emphasized the mandatory nature of the
statute’s use of “shall” and the breadth of its use of “all material facts”. (Id. at p. 632.) In
addition, California Rules of Court, rule 3.1350(d) provides that the “Separate Statement
of Undisputed Material Facts in support of a motion must separately identify … [e]ach
supporting material fact claimed to be without dispute with respect to the cause of
action .…”
Moving parties are required to set forth all material facts in their separate
statement of undisputed facts for a variety of reasons, including putting the opposing
party on notice of scope of the summary judgment motion and the facts to be addressed.
Thus, a disregard of the statutory requirement that all material facts be set forth in the
moving party’s separate statement raises a question of adequate notice and implicates
procedural due process concerns. (Brantley, supra, 42 Cal.App.4th at p. 1607.) The
procedural due process concerns and other considerations are why “section 437c is
unforgiving; a failure to comply with any of its myriad requirements is likely to be fatal
to the offending party.” (Ibid.)
In Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608,
this court summarized certain aspects of the moving party’s initial burden by stating “[a]
motion for summary judgment … will be defective if the moving party fails to (1)
accurately identify the facts that are material to the legal theory upon which the motion is
based; (2) actually include those material facts in the separate statement; and (3)
reference evidence establishing, either directly or by inference, each material fact the
moving party claims is undisputed.” (Pierson, supra, 4 Cal.App.5th at p. 617.) In the
present appeal, Reggio admitted the facts Neighbor set forth in his separate statement.
Thus, we are not concerned with whether the referenced evidence established those facts.
Instead, our examination focuses on whether the stated undisputed facts include all the
facts “material” to determining whether Reggio’s claims are barred by the statute of
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limitations defense. If material facts are omitted, Neighbor will not have carried his
initial burden as moving party. (See Pierson, supra, 4 Cal.App.5th at p. 617.)
2. Statute of Limitations: General Principles
As background for addressing Neighbor’s statute of limitations defense, we set
forth some of the general principles governing the application of a statute of limitations
and some specific principles tailored to causes of action for trespass and nuisance.
Statutes of limitation prescribe the length of time a plaintiff is given to bring suit
or be barred. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191
(Aryeh).) Generally, the limitations period “runs from the moment a claim accrues.”
(Ibid.; § 312 [action must be “commenced within the periods prescribed in this title, after
the cause of action shall have accrued”].) California follows the “last element” accrual
rule, which provides the statute of limitations runs from the occurrence of the last
element essential to the cause of action. (Aryeh, supra, at p. 1191.) Our Supreme Court
has described the essential elements for statute of limitations purposes as “‘wrongdoing,
harm, and causation.’” (Ibid.)
The foregoing general rules are subject to a handful of modifications and equitable
exceptions that alter the initial accrual of a cause of action, the subsequent running of the
limitations period, or both. (Aryeh, supra, 55 Cal.4th at p. 1192.) These exceptions and
modifications include the discovery rule, equitable tolling, equitable estoppel, the
continuing violation doctrine, the theory of continuous accrual, and waiver. (Ibid.)
3. Applying the Statute of Limitations to Trespasses and Nuisances
California law classifies some trespasses to real property and some nuisances as
“permanent” and others as “continuing.” “A permanent trespass is an intrusion on
property under circumstances that indicate an intention that the trespass shall be
permanent. In these cases, the law considers the wrong to be completed at the time of
entry.” (Starrh, supra, 153 Cal.App.4th at p. 592); see 59 Cal.Jur.3d (2012) Trespass to
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Realty, § 15 p. 436.) The cause of action for a permanent trespass “accrues and the
[three-year] statute of limitations begins to run at the time of entry.” (Starrh, supra, at p.
592; § 338.)
“In contrast, a continuing trespass is an intrusion under circumstances that indicate
the trespass may be discontinued or abated. In these circumstances, damages are
assessed for present and past damages only; prospective damages are not awarded
because the trespass may be discontinued or abated at some time, ending the harm.
[Citation.] Pursuant to Civil Code section 3334, damages allowed for continuing trespass
include the value of the use of the property, reasonable cost of repair or restoration to the
property's original condition, and the costs of recovering possession. Continuing
trespasses are essentially a series of successive injuries, and the statute of limitations
begins anew with each injury. In order to recover for all harm inflicted by a continuing
trespass, the plaintiff is required to bring periodic successive actions.” (Starrh, supra,
153 Cal.App.4th at p. 592.)
As illustrated by the foregoing principles, the distinction between a continuing
trespass and a permanent trespass is relevant to determining the correct measure of
damages and whether the action is time-barred by the statute of limitations. (Starrh,
supra, 153 Cal.App.4th at p. 592.) Because a rule of law rigidly distinguishing between
permanent and continuing trespasses might constitute a trap for unwary plaintiffs, “ ‘it is
held that in doubtful cases the plaintiff has an election to treat a [trespass] as permanent
or continuing.’ ” (Id. at pp. 592–593.)
A number of tests have been used to determine whether a trespass should be
characterized as permanent or continuing. (Starrh, supra, 153 Cal.App.4th at p. 593.)
We resolve the parties’ dispute about how to distinguish the two types of trespass or
nuisance by relying on our decision in Starrh. Thus, “the key question is whether the
trespass or nuisance can be discontinued or abated and there are a number of tests used to
answer this question.” (Id. at pp. 593–594.) The tests ask if “ ‘(1) the offense activity is
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currently continuing, which indicates that the [trespass or] nuisance is continuing, (2) the
impact of the condition will vary over time, indicating a continuing [trespass or]
nuisance, or (3) the [trespass or] nuisance can be abated at any time, in a reasonable
manner and for reasonable cost, and is feasible by comparison of the benefits and
detriments to be gained by abatement.’ ” (Id. at p. 594.)
4. Appropriate Test for This Case
Based on the nature and characteristic of the encroaching items—a propane tank
and enclosure, a pump enclosure, and a concrete driveway with curbs—we conclude the
appropriate test for determining whether these multiple trespasses and nuisances are
continuing is whether, in a reasonable manner and for a reasonable cost, it is feasible to
move an encroaching item. This test involves a comparison of the benefits to be gained
to the cost and other detriments of moving the item. We further conclude the application
of this test to the circumstances of this case presents a question of fact. (See Starrh,
supra, 153 Cal.App.4th at p. 597 [generally, whether a trespass is continuing or
permanent is a question of fact].)
The foregoing test is significant for purposes of Neighbor’s summary judgment
motion because it defines the facts that are material to his statute of limitations defense.
To apply the test, we must consider the benefit of removing the encroaching items from
the Reggio Lot and compare that to the cost and other detriments (if any) of removing the
items.
5. Neighbor’s Separate Statement
Having identified, in general terms, the material facts that Neighbor must establish
to demonstrate an encroaching item constituted a permanent trespass and nuisance and, as
a result, the three-year statute of limitations started running and expired, we return to
Neighbor’s separate statement of undisputed facts to determine whether it included those
material facts. Our review of the 16 enumerated facts in Neighbor’s separate statement
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revealed that none of the facts address (1) the cost of moving the encroaching items, (2)
other detriments to moving the encroaching items, or (3) the benefits to be realized from
moving the encroaching items. For instance, the separate statement provides no facts
describing the physical composition of the “enclosure for the propane tank.” Neighbor
assures us that it is a “structure,” but the record does not indicate whether the enclosure is
a fence, a shed with a roof, or something else. Similarly, the separate statement provides
no facts describing the physical components of the pump enclosure. Although the
undisputed facts establish the driveway was made of concrete, this fact does not establish
the extent of the encroachment or provide definitive information about the cost and other
detriments of removing the encroaching portion of the driveway. Also, the fact concrete
was used does not necessarily require a trier of fact to infer the encroaching item can be
removed only with significant effort and at a sizable cost. (§ 437c, subd. (c) [conflicting
inferences].)
Consequently, we conclude Neighbor’s separate statement omits facts material to
his statute of limitations defense and, therefore, does not make the required prima facie
showing. The undisputed facts stated, standing alone, do not require this or any court to
conclude Neighbor has demonstrated the alleged trespasses and nuisances are permanent
rather than continuing. Restating this conclusion in statutory language, Reggio has
affirmatively demonstrated, based on the record she designated, that Neighbor violated
the requirement that his “supporting papers shall include a separate statement setting
forth plainly and concisely all material facts .…” (§ 437c, subd. (b)(1); see Jameson v.
Desta (2018) 5 Cal.5th 594, 609 [“burden is on an appellant to demonstrate, on the basis
of the record presented to the appellate court, that the trial court committed an error that
justifies reversal of the judgment”].) The determination that Neighbor’s separate
statement did not make the requisite showing necessarily leads to the conclusion that he
failed to carry his initial burden and is not entitled to summary judgment.
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To summarize, Neighbor’s motion for summary judgment is defective because he
“fai[ed] to (1) accurately identify the facts that are material to the legal theory upon
which the motion [wa]s based; [and] (2) actually include those material facts in the
separate statement.” (Pierson, supra, 4 Cal.App.5th at p. 617.)
C. Additional Considerations
1. The Moving Party’s Evidence
Although Reggio has demonstrated reversal is warranted because the motion for
summary judgment omitted material facts, we directed the clerk of the superior court to
augment the appellate record with Neighbor’s compendium of evidence in support of his
summary judgment motion. We took this additional step to confirm that, despite the
separate statement’s omission of material facts, the missing material facts were not
plainly set forth in the moving party’s evidence. If they had been, the trial court might
have decided to overlook the defect in the separate statement because the evidence
clearly established the omitted material facts and Reggio had a full opportunity to address
those material facts.
In reviewing the augmented clerk’s transcript, we have identified little if any
evidence showing the cost of moving each of the encroaching items. Although
Neighbor’s appellate brief asserts that “they would require considerable effort and heavy
equipment to install and remove,” this factual assertion was not supported by a reference
to any evidence. Our letter requesting supplemental letter briefs gave Neighbor the
opportunity to address whether the omission of material facts from the separate statement
was cured by the evidence he presented to support his motion. His letter brief argued his
separate statement established the encroaching items were structures physically affixed to
the ground. Thus, in Neighbor’s view, there was no omission of material fact that needed
to be cured.
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Based on the foregoing, we conclude the evidence presented to support the motion
for summary judgment cannot be regarded as curing the deficiency in the material facts
set forth in the separate statement.
2. Collateral Estoppel and Res Judicata
Neighbor’s reply brief in support of his summary judgment motion included the
contention that the trial court had (1) granted Pine Mountain Club Property Owners’
Association’s motion for summary judgment on statute of limitations and (2) rejected
Reggio’s argument that the continuing accrual doctrine could save her claims for breach
of contract and breach of fiduciary duty. Neighbor argued this ruling “has res judicata
and collateral estoppel effect and should not be reconsidered at this time. (Mycogen
Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.)”
In comparison to his reply brief, Neighbor’s initial moving papers did not raise res
judicata or collateral estoppel as a basis for granting summary judgment.3 As a result,
Reggio was not placed on notice of those grounds and alerted of the need to address them
in her opposition papers. Despite this lack of notice, Reggio might have addressed the
subject of issue preclusion by identifying its elements and analyzing whether those
elements were satisfied in this case. To account for this possibility, we reviewed the
record, as augmented, to determine the extent the parties addressed issue preclusion in the
3 The Restatement Second of Judgments describes res judicata as “claim preclusion”
and collateral estoppel as “issue preclusion.” (Rest.2d Judgments, § 27; see Heiser,
California’s Confusing Collateral Estoppel (Issue Preclusion) Doctrine (1998) 35 San
Diego L.Rev. 509, fn. 1 [terms “collateral estoppel” and “issue preclusion” are
interchangeable].) For purposes of this opinion, we identify res judicata as “claim
preclusion,” a doctrine that “prevents relitigation of the same cause of action in a second
suit between the same parties or parties in privity with them.” (Mycogen Corp. v.
Monsanto Co., supra, 28 Cal.4th at p. 896.) We also treat collateral estoppel and issue
preclusion as synonyms for the doctrine that precludes the relitigation of issue argued and
decided in prior proceedings. (Ibid.) Because the causes of action Reggio is asserting
against Neighbor were not litigated in an earlier lawsuit, our discussion here is confined
to issue preclusion (i.e., collateral estoppel).
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summary judgment proceedings. That review showed that the parties had not identified
the elements of issue preclusion and addressed whether those elements were satisfied in
the circumstances of this case.
Our letter requesting supplemental letter briefs also gave Neighbor the opportunity
to address whether the omission of material facts from the separate statement was cured
by application of California’s doctrine of issue preclusion (i.e., collateral estoppel).
Neighbor’s letter brief stated the trial court did not rely on the doctrine of collateral
estoppel in granting his motion for summary judgment.
In light of Neighbor’s response and our own review of the record, it is apparent
that Neighbor did not cure or negate the omission of material facts from his separate
statement of undisputed facts by establishing that the omitted facts addressed issues that
can be resolved by applying California’s issue preclusion doctrine. (See Lucido v.
Superior Court (1990) 51 Cal.3d 335, 341 [requirements for application of the doctrine].)
Therefore, a specific analysis of each element of the collateral estoppel is not required in
this case.
D. Step Three: The Opposing Party’s Showing
Once the moving party defendant has met his initial burden, “the burden shifts to
the plaintiff … to show that a triable issue of one or more material facts exists as to that
cause of action .…” (§ 437c, subd. (p)(2).) Under this provision, the third step of the
summary judgment analysis examines whether a plaintiff demonstrated the existence of a
triable issue of material fact. (See Brantley, supra, 42 Cal.App.4th at p. 1602.) Based on
our conclusion that Neighbor did not carry his initial burden as the moving party, we do
not reach the third and last step of the summary judgment analysis. As a result,
Neighbor’s objections to the evidence presented in the declaration of Reggio’s attorney
are not relevant to the outcome of this appeal. Here, the summary judgment motion
17.
failed on its own and a consideration of the evidence submitted in opposition is
unnecessary.
E. Intentional Infliction of Emotional Distress
Neighbor’s statute of limitations challenge to the cause of action for intentional
infliction of emotional distress was based on the same facts asserted against the trespass
and nuisance claims. Because the intentional wrong alleged in the emotional distress
claim—namely, the trespasses and nuisances—might be of a continuing nature, the
moving papers also fail to demonstrate that cause of action is time barred. This
conclusion, however, should not be interpreted as identifying in any way the period of
time for which emotional distress damages might be recovered. Whether that issue is
reached in further proceedings on remand must be resolved in the trial court.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court. The trial
court is directed to vacate its order granting the motion for summary judgment and to
enter a new order denying that motion. Reggio shall recover her costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2), (c), (d).)
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Reggio v. Sibner CA5
Combined Opinion