Filed 9/26/16 Hanson v. Piecuch 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

NORMAN HANSON, Individually and as
Trustee, etc.,                                                                             F071945

         Plaintiff and Appellant,                                        (Super. Ct. No. S-1500-CV-283143
                                                                                        SPC)
         v.

MESONIKA PIECUCH et al.,                                                                 OPINION
         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Kern County. Sidney P.
Chapin, Judge.
         LeBeau-Thelen and Andrew K. Sheffield for Plaintiff and Appellant.
         Dessy & Dessy, Ronald D. Dessy and Fawn Kennedy Dessy for Defendants and
Respondents.
                                                        -ooOoo-
         The plaintiff in this trespass action has appealed an order granting a special motion
to strike brought under California’s anti-SLAPP statute.1 The defendants have shown
that the trespass action was filed against them in retaliation for their successful pursuit of

1      Code of Civil Procedure section 425.16. Unlabeled statutory references are to the
Code of Civil Procedure. The acronym “SLAPP” stands for strategic lawsuit against
public participation.
a code enforcement complaint relating to the plaintiff’s operation of a firing range on his
property in violation of a county zoning ordinance. Thus, the trespass action appears to
have a sufficient causal connection to activity protected by the anti-SLAPP statute. As a
result, the outcome of this appeal turns on the second step of the analysis of an anti-
SLAPP motion—that is, whether “the plaintiff has established that there is a probability
that [he] will prevail on the [trespass] claim.” (§ 425.16, subd. (b)(1).)
       We conclude that the plaintiff has carried this burden and shown the requisite
probability. His evidence, which must be credited when reviewing a special motion to
strike, is sufficient to make a prima facie showing of the elements of a civil trespass
claim. The defendants’ argument that they were authorized to be on the roadway
crossing the plaintiff’s property because they held a prescriptive easement presents
factual disputes that cannot be resolved against the plaintiff at this stage of the
proceedings.
       We therefore reverse the judgment of dismissal.
                                           FACTS
       Plaintiff Norman L. Hanson is the trustee of the Hanson Family Trust dated
November 14, 2006. Hanson, as an individual and as trustee, owns 19.68 acres of real
property described as Lot 19 of Parcel Map No. 7697 (Lot 19) and located in the Sand
Canyon area of Tehachapi. Pine Ridge Road crosses Lot 19 at a distance of more than
300 feet from the lot’s easterly boundary. Hanson states that the road was established as
a private easement for the benefit of the parcels comprising Parcel Map No. 7697.
       Defendant Mesonika Piecuch and defendant Gordon Lull are married and reside in
Sand Canyon in a home that is part of a development known as Quail Mountain Trails.
Defendants are the sole shareholders of JC Land & Cattle, Inc., a corporation that owns
315 acres of unimproved land in Sand Canyon. The land abuts the easterly boundary of
Hanson’s lot. Hanson asserts the corporation’s land is not part of Parcel Map No. 7697



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and is not benefited by the private easement that allows certain people to cross his
property by using Pine Ridge Road.
       In May 2013, defendants made a written complaint to the County of Kern’s code
compliance division based on their belief that an illegal gun range was being operated on
Lot 19. In July 2013, defendants were (1) advised by code compliance personnel that
Hanson was denying that a gun range was being operated on his property and (2) invited
to provide evidence to substantiate the complaint. Defendants’ declaration stated that
video was taken of gun classes held on Lot 19 in June 2014 and photographs and video
footage was taken in August 2014.
       In December 2014, the code compliance division held a hearing on the complaint
about the gun range. Defendants and others objecting the gun range attended.
Defendants stated that Hanson admitted violating the zoning ordinance and agreed to file
an application for a conditional use permit. When Piecuch signed her declaration in
support of the motion to strike in January 2015, the permit application was pending.
                                     PROCEEDINGS
       In September 2014, Hanson filed a complaint against Piecuch and Lull, alleging
causes of action for trespass, invasion of privacy and a violation of his civil rights under
Civil Code section 52.1. Hanson alleged that he owns Lot 19 and that, in May and June
2013, defendants entered the property without his consent and removed signs, placed
signs, drove their vehicle, and took photographs. Hanson also alleged that he incurred
costs in replacing the signs removed by defendants, changing the locks on and securing
the gate to his property, and purchasing security devices to guard against defendants’
continued intrusions.
       Hanson’s invasion of privacy cause of action alleges that defendants entered his
property for the purpose of videotaping, photographing and recording himself and others
engaged in the personal activity of firing guns. Hanson alleged these entries occurred in
2014 on June 22nd, July 26th, and August 9th.

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       Hanson also alleged the trespasses were committed with malice because “no
trespassing” signs were posted on the property. Also, he alleged that, at least twice,
Piecuch was told that she was on private property and asked to leave, but refused both
requests. Hanson’s third cause of action alleged that on the two occasions when he
confronted Piecuch, she made him aware of the fact that she had a firearm available to
her in order to intimidate him. He also alleged that defendants’ activities were an effort
to coerce him not to exercise his rights in a manner that defendants did not like.
       In January 2015, defendants responded to Hanson’s complaint by filing a special
motion to strike under California’s anti-SLAPP statute, section 425.16. Defendants
asserted that Hanson filed his lawsuit against them in retaliation for their filing the code
compliance complaint in May 2013 relating to his illegal operation of a firing range on
his property. Defendants asserted that they obtained photographs of the illegal firing
range at the request of the code compliance division because Hanson had denied the
existence of the firing range. Defendants also asserted that, after the photographs were
obtained, Hanson admitted a violation of the zoning laws.
       Defendants’ motion to strike was supported by their declarations stating they
never trespassed onto Hanson’s property during the video and audio recording of the
activities. Also, defendants stated that they had been using Pine Ridge Road for over
seven and a half years to access their corporation’s unimproved land.
       The trial court granted the motion to strike based on its determinations that all
causes of action come within the meaning of subdivisions (b)(1) and (e)(4) of section
425.16 and Hanson had not established a probability of prevailing on his claims. The
minute order stated that (1) Hanson did not establish that the activities of defendants were
criminal violations; (2) admissible evidence established defendants had a right to use the
roadway; and (3) defendants were more likely than not on their own property.
       Hanson filed a motion to reconsider that asserted new evidence in the form of a
February 2015 lawsuit by defendants against him and the County of Kern to force the

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county to hold a hearing and conduct an environmental study in connection with his
application for a conditional use permit. This motion and its denial by the trial court is
not relevant to the issues decided in this appeal.
       In June 2015, the trial court entered a judgment of dismissal in favor of the
defendants. Hanson appealed from the judgment and the underlying orders granting the
special motion to strike and denying his motion for reconsideration.
                                       DISCUSSION
I.     ANTI-SLAPP MOTIONS
       A.     Summary of the Law
       In its last three published anti-SLAPP decisions, this court has provided an
overview of California’s anti-SLAPP statute and discussed the two-step inquiry with
shifting burdens applied to anti-SLAPP motions. (Grenier v. Taylor (2015) 234
Cal.App.4th 471, 479-480; La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 469-
471; Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 49-52 (Smith).)
Accordingly, that overview and general discussion is not repeated here. As the
dispositive analysis for this appeal involves the second step of the two-step inquiry, only
the principles relevant to our review of that step are set forth here.
              1.      Plaintiff’s Burden
       In general terms, that second step requires the plaintiff to demonstrate that his
pleading stated a legally sufficient claim and he has enough evidence to prove the claim.
(Smith, supra, 190 Cal.App.4th at p. 52.) As to the evidentiary showing, a plaintiff must
make a sufficient prima facie showing of facts to sustain a favorable judgment, which
showing assumes the evidence submitted by the plaintiff is credited. (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.) Consequently, the second step of the anti-SLAPP
analysis is a summary-judgment-like procedure applied to the merits of the lawsuit at an




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early stage of the litigation. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th
180, 192.)
               2.     Standard of Review
        “Review of an order granting or denying a motion to strike under section 425.16 is
de novo.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3
(Soukup).) An appellate court must “consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd.
(b)(2).) Neither trial nor appellate courts weigh credibility or compare the weight of the
evidence. (Soukup, supra, at p. 269, fn. 3.) “Rather, the court’s responsibility is to
accept as true the evidence favorable to the plaintiff [citation] and evaluate the
defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as
a matter of law.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,
212.)
        B.     Trial Court’s Rationale
        The court stated that Hanson did not establish that defendants’ activities were
criminal law violations. Assuming that Hanson’s evidence did not establish a criminal
violation, that does not defeat Hanson’s tort cause of action for trespass as a matter of
law. (See generally, 87 C.J.S. (2016) Trespass, § 2 [comparing civil and criminal
trespass].) Proof of a criminal violation is not an element of a civil cause of action for
trespass. (See CACI No. 2000 [trespass, essential factual elements].)
        Second, the court stated that defendants were more likely than not on their own
property. This statement appears to be based on a weighing of the evidence, which is
outside the scope of the second step required by section 425.16. (Soukup, supra, 39
Cal.4th at p. 269, fn. 3.) A motion to strike must be denied if “the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.” (§
425.16, subd. (b)(1).) This “probability” has been referred to as a minimum level of



                                              6.
triability. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5; Mindys Cosmetics,
Inc. v. Dakar (2010) 611 F.3d 590, 598 [inquiry is often called the “minimal merit”
prong].) Here, the trial court’s reference to “more likely than not” (capitalization
omitted) is not consistent with the probability required by the statute. Also, the reference
is not consistent with the principle that a defendant’s evidence is evaluated only to
determine if it has defeated the plaintiff’s evidence as a matter of law. (HMS Capital,
Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212.) In other words, a
preponderance of the evidence as to defendants’ location does not, as a matter of law,
defeat a plaintiff’s claim.
         Accordingly, the foregoing grounds do not provide a basis for affirming the order
granting the special motion to strike. As a result, the dispositive question in this appeal is
whether Hanson’s evidence, accepted as true, is sufficient to allow a trier of fact to decide
the trespass cause of action in his favor.2 (Rusheen v. Cohen, supra, 37 Cal.4th at p.
1056.)
         C.    Hanson’s Prima Facie Showing of Trespass
               1.     Elements of a Trespass Claim
         The sufficiency of Hanson’s evidence must be analyzed with reference to elements
of a civil trespassing claim, which are (1) the plaintiff’s ownership or control of the
property; (2) the defendant’s intentional, reckless, or negligent entry onto the property;
(3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the
defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000.)
Proof of the last two elements is not essential because the law assumes harm in the case
of tangible intrusions and, thus, real property owners are entitled to nominal damages if
actual damages are not sought or proven. (Directions for Use, CACI No. 2000; see

2      Defendants have not argued that Hanson’s complaint is legally insufficient to state
a cause of action for trespass. Therefore, the allegations in that complaint need not be
quoted and analyzed.


                                              7.
Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.) To summarize these elements, the
essence of the cause of action for trespass is an unauthorized entry onto the land of
another. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232
Cal.App.4th 1171, 1177-1178 [preliminary injunction against soliciting donations near
store entrances affirmed].)
              2.     Hanson’s Evidence of Ownership
       Hanson opposed the special motion to strike by submitting his declaration, which
included (1) sheets of Parcel Map No. 7697 showing Lot 19 and Pine Ridge Road; (2) a
copy of a declaration and grant of private easement dated June 4, 1987, and recorded by
the Kern County clerk at book 6013, page 525; and (3) photographs taken by trail
cameras Hanson installed on his property.3
       Hanson’s declaration states that he purchased Lot 19 from National Charter Life
Insurance Co. in April 2012 through a land sale contract that caused title to remain in the
seller’s name until the contract was paid in full. From the date of purchase, Hanson states
he has possessed, occupied and controlled Lot 19 as the owner. In April 2014, he paid
off the contract and obtained a deed to the property. A copy of the deed was part of
defendants’ request for judicial notice.
       Hanson’s declaration adequately makes a prima facie showing of his ownership of
the property at the time of the alleged trespasses in 2013 and 2014. The April 2014 deed
from National Charter Life Insurance Co. does not, as a matter of law, overcome the
statement in his declaration that he purchased the property pursuant to a land sale contract

3       The information provided in Piecuch’s declaration about her use of a global
positioning system (GPS) unit to confirm she was not on Hanson’s property does not
address the locations of her vehicle when the photographs were taken by the trail
cameras. Thus, even if her statements about confirming her location with a GPS unit
were accepted as conclusive, those statements would address all of the instances of
alleged trespass raised by Hanson and supported by the photographic evidence from his
trail cameras.



                                             8.
in 2012. Therefore, Hanson has carried the burden of presenting evidence that, if
believed, would establish his ownership of Lot 19 before the first alleged unauthorized
entry.
               3.     Hanson’s Evidence of Unauthorized Entry
         The parties dispute defendants’ right to use Pine Ridge Road and, thus, whether
defendants’ presence on that road constituted an unauthorized entry onto Hanson’s
property. Hanson’s evidence shows that (1) Pine Ridge Road crosses Lot 19, (2) a
private easement has been recorded for that road, (3) the recorded private easement is not
for the benefit of the land owned by defendants’ corporation, (4) Hanson did not grant
defendants permission to use the road or otherwise enter his property, and (5) defendants
drove their yellow vehicle on a part of Pine Ridge Road that crosses his property.
         Defendants respond to the elements of entry and the lack of authorization by
claiming a property right to use the road. First, they contend the road runs through a
corner of their corporation’s land before continuing to Lot 19. They assert the maps
Hanson provided reflect where the road was intended to be and not where the road
actually exists. Second, they contend that, assuming their evidence as to the road’s actual
location is inaccurate, they have a right to be present on the road because they have been
using the road for over seven and a half years to access their property. Furthermore,
defendants argue Hanson’s opposition to their motion was inadequate because he did not
address their claim of right to use the road, regardless of whether it is on Lot 19.
         We conclude that Hanson’s declaration and attached photographs, which must be
credited for purposes of the motion to strike, make a prima facie showing that (1)
defendants entered Lot 19 and (2) defendants’ entry onto Lot 19 was not authorized by
him personally or by the private easement that grants rights to use Pine Ridge Road.
Under the rule applicable to special motions to strike, the factual dispute about the
existence of a prescriptive easement in favor of defendants does not justify granting the



                                              9.
motion because it is our responsibility “to accept as true the evidence favorable to the
plaintiff” (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212) and
defeating a prescriptive easement is not part of a prima facie showing of the elements of a
trespass claim.
       Based on the foregoing, we conclude that Hanson has made a sufficient prima
facie showing of facts to sustain a judgment in his favor on the trespass. (Rusheen v.
Cohen, supra, 37 Cal.4th at p. 1056.) At this stage of the proceedings, whether that
prima facie showing will be defeated by sufficient evidence to establish all elements of a
prescriptive easement cannot be determined.
                                      DISPOSITION
       The judgment of dismissal is reversed and the trial court is directed to vacate its
order granting defendants’ special motion to strike and to enter a new order denying that
motion. Plaintiff shall recover his costs on appeal.

                                                                 _____________________
                                                                           FRANSON, J.
WE CONCUR:


 _____________________
HILL, P.J.


_____________________
MCCABE, J.*




*     Judge of the Superior Court of Merced County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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