Filed 2/24/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION FOUR

ALI MADANI,                           B292395

     Plaintiff and Appellant,         Los Angeles County
                                      Super. Ct. No. LC103975
     v.

MICHAEL RABINOWITZ,

     Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, John J. Kralik, Judge. Affirmed.
      Richard Darington Pfeiffer for Defendant, Appellant, and
Cross-Respondent.
      Douglas S. Draper, for Plaintiff, Respondent, and Cross-
Appellant.
                       INTRODUCTION

       Ali Madani sued his next-door neighbor, Michael
Rabinowitz. Madani brought trespass and nuisance claims,
seeking to remove a portion of Rabinowitz’s fence, which
encroached on Madani’s property. Madani also sought to enjoin
Rabinowitz from continuing to park old, inoperable cars on a
driveway Madani owned, and to collect damages from Rabinowitz
for the latter’s past use of the driveway for that purpose.
       Rabinowitz raised a statute of limitations defense. Whether
a trespass or nuisance claim for an encroachment is barred by the
statute of limitations turns on whether the encroachment is
continuing or permanent. For permanent encroachments, the
three-year statute of limitations begins to run on the date the
encroachment began, and bars all claims brought after its
passage. For continuing encroachments, a plaintiff may assert a
claim even if the encroachment began outside the limitations
period, but is limited to recovering damages incurred in the
preceding three-year period.
       In a lengthy and well-reasoned statement of decision, the
trial court concluded the fence and parked cars were continuing
encroachments and ordered their removal. It also concluded
Madani failed to prove his damages claim. We affirm.
       Because boundary fences and walls often are constructed
without reference to boundary line surveys, disputes between
neighbors about resulting encroachments are not uncommon. We
found no published California case resolving statute of
limitations issues involving this problem, however. We publish
with the hope of heading off further litigation on the topic. (Cal.
Rules of Court, Rules 8.1105 (c)(2), (6).)




                                2
     FACTUAL AND PROCEDURAL BACKGROUND

      Madani and Rabinowitz own adjoining residential parcels.
Rabinowitz has lived on his property since June 1979. Madani
purchased his property in 2000 and rented it out until February
2015, when he began living there.
      The property layout is shown in Appendix I. Rabinowitz’s
property abuts San Feliciano Drive. Madani’s parcel is mostly
located behind Rabinowitz’s except for a 10-foot wide “flagpole” of
land that extends out to the street. That 10-foot wide strip of
land, along with a 20-foot wide strip owned by a non-party
neighbor named Roper, makes up a common driveway. The
common driveway was used by Madani, Rabinowitz, Roper and
the owner of a nearby fourth parcel. It is undisputed that
Rabinowitz has a right to use the driveway for ingress and
egress.
      Since Rabinowitz moved onto his property, a fence has run
alongside the driveway, as shown in Appendix I. The fence
originally was made out of chain link and grape stake. In 2015,
Rabinowitz replaced the original fence with a wooden one, in the
same location.
      At the time of trial, Rabinowitz owned more than 15
vehicles. Since Rabinowitz began residing on his property, he
stored several of his vehicles on the portion of the driveway
owned by Madani. On appeal, Rabinowitz asserts no reason why
he should be allowed to park the vehicles on the driveway, other
than that he has been doing so for years without complaint, and
his contention that the statute of limitations has elapsed.
      In April or May 2015, Madani asked Rabinowitz to move
the cars because Madani wanted to repair the driveway. In June
2015, Madani sent Rabinowitz a letter, reiterating his request to




                                 3
remove the cars. He did not receive a response. Madani mailed a
second letter to Rabinowitz in July 2015, again asking him to
remove his cars from the driveway. Rabinowitz wrote back in
August 2015, stating he was “unwilling to forfeit [his] right to
park” on the driveway.
       In light of Rabinowitz’s response, Madani commissioned a
survey of his property. The survey confirmed the portion of the
driveway on which Rabinowitz had been parking his cars was
located on Madani’s property. The survey also revealed that
although Rabinowitz’s fence was properly located at the boundary
between his and Madani’s property on one end, the other end of
the fence encroached onto Madani’s property by approximately
two feet.
       On March 16, 2016, Madani filed a complaint seeking
damages and injunctive relief based on theories of trespass and
nuisance. Rabinowitz timely filed an answer and, after receiving
the trial court’s permission, filed a cross-complaint on April 10,
2017. In his cross-complaint, Rabinowitz sought to quiet title
based on theories of adverse possession and prescriptive
easement; alternatively, he sought equitable relief under Civil
Code section 871.1 et. seq., California’s good faith improver
statute. He later abandoned his adverse possession claim.
       Following a bench trial, the trial court issued a
comprehensive statement of decision ruling in Madani’s favor. Of
relevance to this appeal, the court found: (1) Madani’s trespass
and nuisance claims were not barred by the statute of
limitations, as Rabinowitz’s fence and vehicles were continuing
rather than permanent encroachments; and (2) Rabinowitz did
not prove he was entitled to judgment based on his prescriptive
easement and good faith improver claims.




                                4
       The trial court issued an injunction requiring Rabinowitz to
remove his fence and vehicles from Madani’s property. The court
declined to award Madani damages, however, based on failure of
proof. Rabinowitz appealed and Madani cross-appealed the
court’s judgment.

                          DISCUSSION

I.    The trial court correctly found Madani’s trespass and
      nuisance claims were not time-barred.
       “Normally, the determination of when a plaintiff’s cause of
action accrues is a question of fact we review on appeal for
substantial supporting evidence. [Citations.]” (Pacific Shores
Property Owners Assn. v. Dept. of Fish & Wildlife (2016) 244
Cal.App.4th 12, 34 (Pacific Shores).) Thus, whether an
encroachment is continuing or permanent is a fact question
typically reviewed by appellate courts for substantial evidence.
(See Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087,
1103.) Where, as here, however, “the underlying facts are not in
dispute or susceptible of more than one legitimate inference, the
question of when a cause of action accrues is a question of law,
subject to independent review. [Citations.]” (Pacific Shores,
supra, 244 Cal.App.4th at p. 34.) Under either standard, we
conclude for the reasons discussed below that Rabinowitz’s fence
is a continuing encroachment. Therefore, Mandani’s claims are
not time-barred.
       In California, the statute of limitations for bringing a
trespass claim is three years. (Code Civ. Proc., § 338, subd. (b).)
The same three-year statute of limitations applies to private
nuisance claims. (See Holdgrafer v. Unocal Corp. (2008) 160
Cal.App.4th 907, 925.) As noted above, whether a trespass or




                                 5
nuisance claim is barred by the statute of limitations turns on
whether the wrongdoing is permanent or continuing in nature.
(See Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007)
153 Cal.App.4th 583, 592.)1
       “In general, a permanent nuisance is considered to be a
permanent injury to property for which damages are assessed
once and for all, while a continuing nuisance is considered to be a
series of successive injuries for which the plaintiff must bring
successive actions. [Citation.]” (Beck Development Co. v. Southern
Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216
(Beck).) “With respect to a permanent nuisance, the statute of
limitations begins to run on the creation of the nuisance and bars
all claims after its passage[.]” (Id. at pp. 1216-1217.) By contrast,
“each repetition of a continuing nuisance is considered a separate
wrong which commences a new period in which to bring an action
for recovery based upon the new injury. [Citation.]” (Id. at p.
1217.) Thus, if a trespass or nuisance is continuing, “‘an action
may be brought at any time to recover the damages which have

1     Miller and Starr have interpreted a decision by the Third
Appellate District to mean an action seeking a mandatory
injunction to remove an encroachment is governed by the five-
year limitations period set forth in section 318 of the Code of Civil
Procedure, which does not expire “unless the encroacher’s use of
the property ripens into either title by adverse possession or a
valid prescriptive easement[.]” (Miller & Starr, Cal. Real Estate
(4th ed. 2019) § 17:7, pp. 17-24 [discussing Harrison v. Welch
(2004) 116 Cal.App.4th 1084, 1096].) Because we conclude
Rabinowitz’s fence is a continuing encroachment, and because
Rabinowitz abandoned his claims of adverse possession and is not
pursuing his prescriptive easement claim, we do not need to
resolve whether Madani’s claims fall within the purview of
section 318.




                                  6
accrued within the statutory period, although the original
trespass occurred before that period[.]’” (Polin v. Chung Cho
(1970) 8 Cal.App.3d 673, 678.) The same principles apply whether
the wrongdoing is characterized as a nuisance or trespass.
(Bookout v. State of California ex. rel. Dept. of Transportation
(2010) 186 Cal.App.4th 1478, 1489 (Bookout).)
       Rabinowitz argues that to the extent Madani’s trespass and
nuisance claims are based on his fence’s encroachment, the
claims are barred by the statute of limitations. The fence, he
asserts, constitutes a permanent encroachment and was erected
prior to 1979, well outside the three-year limitations period.2 In
support of his position, Rabinowitz contends the fence was
intended to be a permanent structure, as it has served as a
boundary marker for over thirty years and has been affixed to
posts or poles cemented into the ground. (Here, he disregards the
inconvenient fact of the old fence’s replacement in 2015 with the
existing fence.) He also emphasizes the fence did not have a
repeated or varying impact on Madani’s property. We disagree
with Rabinowitz’s conclusion.
       Rabinowitz correctly observes the courts, when deciding
whether a trespass or nuisance is permanent or continuing,
previously considered whether the circumstances of a structure’s
construction “indicate an intention that the trespass shall be
permanent” (Kafka v. Bozio (1923) 191 Cal. 746, 750) and
whether a trespass or nuisance’s “impact may vary over time.”
(Field-Escandon v. Demann (1988) 204 Cal.App.3d 228, 234.)
More recently, however, our Supreme Court acknowledged the

2     Rabinowitz does not challenge the trial court’s finding that
parking his cars on Madani’s property is a continuing
encroachment.




                                7
“‘crucial test of the permanency of a trespass or nuisance is
whether the trespass or nuisance can be discontinued or abated.’
[Citation].” (Mangini, supra, 12 Cal.4th at p. 1097.) Under this
test, sometimes referred to as the “abatability test” (see, e.g.,
Beck, supra, 44 Cal.App.4th at p. 1220), a trespass or nuisance is
continuing if it “can be remedied at a reasonable cost by
reasonable means.” (Mangini, supra, 12 Cal.4th at p. 1103.)
       Rabinowitz replaced the fence in 2015, and testified the
existing fence could be moved for a comparatively modest cost. To
move the fence by two feet to conform with the property
boundary, Rabinowitz would have to break the concrete where
the fence’s supporting posts are cemented into the ground and
“pour[] new concrete in the area where the posts ha[ve] to be
moved.” He testified that while the posts would need to be
replaced, “the fencing material itself, which [was] costly,” could
be reused in relocating the fence. Rabinowitz further testified he
would have to reconfigure the gate closest to his garage door to
accommodate the fence’s new location. He estimated it would cost
approximately $5,000 to $6,000 to move the fence. On these
undisputed facts, we agree with the trial court that the expense
Rabinowitz would incur in moving his fence “is not sufficient . . .
to regard the fence as a permanent installation.”
       Additionally, we reject Rabinowitz’s contention the
abatability test only applies in cases involving “toxic waste
flows,” and is inapplicable to “encroaching physical structure
cases.” While it is true the abatability test is “most often stated in
contamination cases” (Beck, supra, 44 Cal.App.4th at p. 1219),
the test has never been restricted to use in those circumstances.
For example, our Supreme Court applied a version of the
abatability test to determine whether a physical structure




                                  8
constituted a continuing or permanent nuisance in Phillips v.
Pasadena (1945) 27 Cal.2d 104, 107-108. There, the Supreme
Court held placement of a locked gate across a road was a
continuing nuisance, as the gate “could have been removed at any
time.” (Id. at p. 108.)
       As the trial court noted, property values have risen “to the
point where even modest properties represent small fortunes.”
The cost of relocating a boundary fence or wall pales in
comparison to the property value. Thus, it is difficult to conceive
of a case where relocation of a boundary fence or wall would be so
costly as to render it a permanent encroachment. Certainly, this
is not such a case.
       Accordingly, the trial court did not err in finding the fence
was a continuing encroachment, and correctly concluded
Madani’s claims for trespass and nuisance based on the fence’s
encroachment were not barred by the statute of limitations.3 As
the trial judge wisely noted, “[i]n general, the law does not
reward those who seize what is not theirs.”

II. The trial court did not err in declining to award
    Madani damages on his trespass and nuisance claims.
    “Whether a plaintiff is ‘entitled to a particular measure of
damages is a question of law subject to de novo review.
[Citations.] The amount of damages, on the other hand, is a fact
question . . . [and] an award of damages will not be disturbed if it


3     Having concluded Madani’s claims are not barred by the
statute of limitations because the fence was a continuing
encroachment, we need not consider Madani’s alternative
arguments offered in support of his position that his claims were
timely.




                                 9
is supported by substantial evidence.’ [Citation.]” (Rony v. Costa
(2012) 210 Cal.App.4th 746, 753.)
       Civil Code section 3334 provides Madani is entitled, as one
measure of damages, to the dollar value of benefits Rabinowitz
received by parking his cars on Madani’s driveway.4 Madani
contends the trial court erred by refusing to recognize that
measure of damages. He is incorrect.
       Madani’s argument is premised on a fundamental
misunderstanding of the trial court’s rationale for declining to
award him damages. The court did not — as Madani contends —
reject Madani’s theory that he was entitled to damages as
measured by the benefits Rabinowitz received. Rather, the court
apparently agreed Madani was entitled to his requested measure
of damages. The court heard testimony by Rabinowitz and Rodd
Hitch, Madani’s real estate appraisal expert, on the amount
Rabinowitz would have had to pay to store his cars in a
commercial storage lot instead of on Madani’s driveway. The
court found this amount “was not an accurate measure of the
benefit received,” however. Specifically, the court found cars on
driveways “are subject to the elements and theft in a way that
they would not be on a commercial lot.” The trial court
reasonably could conclude that even an open storage lot, where
the vehicles might also be exposed to the elements, would be


4     Under Civil Code section 3334, subdivision (b), where a
trespass is not “the result of a mistake of fact of the wrongful
occupier,” damages may be recovered in the amount of “the
greater of the reasonable rental value of that property or the
benefits obtained by the person wrongfully occupying the
property by reason of that wrongful occupation.” (Civ. Code,
§ 3334, subd. (b).)




                                 10
more secure (and thus of greater benefit to Rabinowitz) than
parking in the driveway. Thus, the court rejected Hitch’s
testimony that the cost of car storage in a commercial lot was an
appropriate measure of the benefits Rabinowitz received.
       As the trier of fact, the trial court was “not required to
believe even uncontradicted testimony. [Citation.]” (Hauser v.
Ventura County Bd. of Supervisors (2018) 20 Cal.App.5th 572,
576.) And, as the reviewing court on appeal, we may not question
the trial court’s assessment of Hitch’s credibility on the
comparability issue or the weight the court attributed to his
testimony. (See Bookout, supra, 186 Cal.App.4th at p. 1486.)
Because Madani did not present any other evidence upon which
the trial court could value the benefits Rabinowitz received, the
court refused to award damages. In other words, Madani failed to
prove the amount of his damages.
       Also, having awarded injunctive relief to Madani, the court
properly invoked equitable considerations in denying an award of
damages. The court considered “the fact that the [injunction
requiring] relocation of the fence would impose some hardship on
Mr. Rabinowitz” and that “Mr. Rabinowitz also testified that he
cared for the roadway over the years.” (See Estate of Collins &
Flowers (2012) 205 Cal.App.4th 1238, 1246 [“A trial court sitting
in equity has broad discretion to fashion relief. [Citation.]”]; see
also Bechtel v. Wier (1907) 152 Cal.443, 446 [noting “[f]rom the
very nature of equity a wide play is left to the conscience of the
chancellor in formulating his decrees.”].) These equitable
considerations provided additional reasons not to award
damages.
       Accordingly, Madani has not shown the trial court erred in
declining to award him damages.




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                            DISPOSITION
      The judgment is affirmed. In the interests of justice, the
parties shall bear their own costs on appeal.



                                                   CURREY, J.
WE CONCUR:



      WILLHITE, Acting P. J.



      COLLINS, J.




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