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.

B292395

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, Appellant, and 

Cross-Respondent. 

Douglas S. Draper, for Plaintiff, Respondent, and CrossAppellant.
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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).)
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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
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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.
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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 
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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 fiveyear 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.
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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. 
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“‘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 
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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.
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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).)
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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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