Filed 2/24/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ALI MADANI

,
Plaintiff and Appellant

,

v.

MICHAEL RABINOWITZ

,
Defendant and Appellant

. B 292395

Los Angeles County Super. Ct. No. LC103975

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Kralik , Judge. Affirmed

. Richard Darington Pfeiffer for Defendant, Ap pellant, and
Cross

- Respondent. Douglas S. Draper, for Plaintiff, Respondent, and Cross

Appellant

.2 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

enc roached 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

st atute of limitations turns on whether the encroachment is

con t inuing 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 t he

pre ceding three

- year period

. In a lengthy and well

- reasoned statement of decision, the
trial court conclude d the fen ce and parked cars we re continuing
encroachment s and ordered their removal

. It also concluded
Madani fa iled to prove his damages claim . We af firm. 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 issu es 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).)3 FACTUAL AND PROCEDURAL BACKGROUND

Madani and Rabinowitz own adjoining residential parcels

. Rabin owitz has lived on his property since June 1979. Madani purchased his property in 2000 and rented it out until February 2015, when he began l iving 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 ext ends 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 drive way . The common driveway was used by Madani, Rab inowitz, Roper and the owner of a nearby fourth parcel. It is undisputed that
Rabi n owitz has a right to use the driveway for ingress and

egress. Since Rabinowitz moved on to his property, a fence has run
alo ng side the driveway , as shown in Appendix I

. T he fence originally was made out of chain link and grape stake. In 2015,
Rabinowitz replaced the or iginal fence with a wooden one , in the

same location

. At the time of trial, Rabinowitz own ed more than 15
veh icles

. Since Rabinowitz began residing o n his property, he
stored s everal 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 Jun e 2015, Madani sent Rabin owitz a letter

, reiterating his request to4

remove the cars

. H e did not r eceive a response. Madani mailed a second letter to Rabinowitz in July 2015

, again asking him to

remo ve his ca rs 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

surv ey of his property. The survey confirmed the portion of the driveway on which Rabinowitz had been parking his cars was located on Ma dani’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 cro ss

- complaint, Rabinowit z sought to quiet title based on theories of adverse po ssession and prescriptive easement; alternatively, h e sought equitable relief under Civil
Code section 871.1 e t. seq. , California’s good faith i mprover
statute

. He later abandone d his adverse possession claim. Following a bench trial, the trial court issued a

c omprehensive statement of d ecision ruling in Madani’s favor. Of
relevance t o 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
rathe r than permanent encroachments; and (2) Rabinowitz did not prove he was e ntitled to judgment based on his prescriptive easement and good faith improver claims.5 T he trial cour t 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

. R abinowitz appealed and Mada ni cross

- appealed the court’s judgmen t.

DISCUS SION

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 cont inuing or permanent is a fact question typically review ed by appellate courts for substanti al 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 qu estion of law, subject to independent review. [Citation s .] ” ( Pacific Shores,

supra, 244 Cal.App.4th at p. 34.) Under either standard, we
conclude for the reasons di scussed below that Ra binowitz’s fence is a continuing encroachment . Th erefore

, Mandani’s cla ims 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 l imitations applies to private
nuisance claims

. ( See Holdgrafer v. Unocal Co rp

. (2008) 160 Cal.App.4th 907, 925.) As noted above, w hether a trespass or6

nuisanc e 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 LL C (2007) 153 Cal.App.4th 583, 592.) 1

“ I n 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 ) .) “W ith respect to a permanent nuisance, the statute of limitations begins to run on the cr eation of the nuisance and bars all claims after its passage [.]” ( Id. at pp. 1216

- 1217.) By contrast,

“ each repetition of a continuing nu isance 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 remov e an encroachment is g overned by the five

year limitations period set forth in section 318 of the Code of Civil Procedure, which d oes not expire “unless the encroacher’s use of the property ripens into either title by adverse possession or a

v alid prescrip tive easement[.]” ( Miller & Starr, Cal. Real Estate (4th ed. 2019) § 17:7 , pp. 17

- 24 [discussing Harrison v. Welch (2004) 116 Cal.App.4th 1084, 109 6 ].) Because we conclude Rabinowitz’ s fence is a continuing encroachment, and because Rabinowitz abandoned hi s 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 318.7

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 p rinciples apply whether the wrongdoing is characterized as a nuisance or trespass. ( Bookout v. State of California ex. rel. Dept. of Transportation (2 010) 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 stat ute of limitations . The fence , he
asserts, constitutes a permanent encroachment and was erected

p rior 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 cemente d 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 Rabino witz’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 sh all 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 S upreme Court acknowledged the

2 Ra binowitz does not challenge the trial court’ s finding that parking his cars on Madani’ s property is a continuing encroachment.8

“‘crucial te st of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated. ’ [Ci tation].” ( Mangini, supra, 12 Cal.4th at p. 1097 .) Under this
test, sometimes refer red to as the “ abatability test” ( s ee, e.g., Beck

, supr a , 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 replace d the fence in 2015, and testified the existing fence could be moved for a comparatively modest cost. T o

move the fence by two feet to conform with the property boundary, Rabinowitz would h ave to break the concrete where the fence’s supporting posts are cemented in to the ground and “pour[] new concrete in the area whe re 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 cl osest to his garage door to
accommodate the fence’s new location

. H e estimated it would cost approximately $ 5,000 to $ 6,000 to move the fence

. On these undisputed facts

, w e agree with the trial court that the expense Rabinowitz would incur in moving his fe nce “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 structur e 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 circum stances. For example

, our Supreme Court applied a version of th e abatability test to determine whether a physical structure9

constituted a continuing or permanent nuisance in Phi l lips v.
Pasadena (1945) 27 Cal.2d 104 , 107

- 108

. There, the Supreme Court held plac ement of a locked gate across a road was a continuing nuisa nce, as the gate “could have been removed at any
time.” ( I d. 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 fe nce or wall pales in

com parison to the property value . T hus

, it is difficult to concei ve 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 e rr i n 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 l aw does not reward those who seize what is not theirs.”

II. T he 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 sub ject 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
st atute 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.10

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 refus ing to recognize that

measure o f damages. He is incorrect

. Madani’s argument is premised on a fundamental misunderstanding of the trial court’s rationale for d eclining to
award him damages. T he court did not

— as Madani contends

— reject M adani ’s theory that he was entitled to damages a s measured by the benefits Rabinowitz received. Rathe r, the court apparently agreed Mad ani was entitled to his requested mea sure of damages. The court heard testimony by Rabinowitz and Rodd
Hitch , Madani’s real estate appraisal expert, on the amount
Rabino witz would have had to pay to store his cars in a
commercial storage lot instead of on Madani’s driveway

. T he
court found this amount “was not an accurate measure of the benefit received, ” however. Specifically, the court found cars on drive ways “are subje ct to the elements and theft in a way that they would not be on a commercial lot. ” The trial court
reasonabl y 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

occu pier,” damages may be recovered in the amount of “the greater of the reasonable renta l 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) .)11

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 C al.App.4th at p. 1486.) Because Madani did not present any other evidence upon which
the trial court could value t he benefits Rabinowitz received , the

c ourt refused to award damages . In other wor d s, 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

. T he court considered “th e 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 , 124 6 [“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 fo rmulatin g 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

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

.

CURREY , J.
WE CONCUR:

WILLHITE

, Acting P. J.

COLLINS , J.13