(March 29) The encroachment  lawsuit filed by a Chino Hills couple against the city will go to trial with all of its causes of action intact, Superior Court Judge Joseph Brisco ruled on March 11.
Michael and Kimberly Denton sued the city in 2011 after the city’s code enforcement division informed them in 2010 that the furthest extension of their backyard was encroaching on city-owned open space and that they had to remove their pool and spa along with landscaping that was already extant when they purchased the home in 1999 from Gloria Vitagliano.
The Dentons, who live on Hunters Gate Circle, offered the city $10,000 for the property, but the city rejected that offer, instead saying it would provide them with a 15-year easement for the continued use of the property.  The Dentons then retained the firm of Gresham, Savage, Nolan and Tilden to sue the city.
The Dentons claim the city allowed the Vitagliano/Denton encroachment, which was conspicuous and open, to stand, and did nothing to interfere with Ms. Vitagliano’s or their occupation of the approximately 1,574 square feet of land for more than 15 years. Nor did the city act in a timely manner to prevent them from removing a wrought-iron fence and replacing it with a glass wall and block fence, the Dentons assert.
On March 13, Brisco denied the city’s motion to strike portions of the complaint and he also overruled a demurrer filed by the city.
“Demurrer is overruled as to city of Chino Hills as to all causes of action,” Brisco stated.
A demurrer is a request by a defendant for a determination that the facts alleged are insufficient to establish that the litigation should move forward.
Brisco also ruled that certain exhibits the city wants to enter as evidence would be accepted by the court, while others would not. He also granted the Dentons’ request for the acceptance of certain exhibits.
The Dentons had no knowledge of the encroachment, which the city was obliged to redress in a timely manner, according to the Denton’s lawyer, Theodore Stream.
The city, however, maintains that a document recorded at the time of the sale contains a disclosure statement from Vitagliano to the Dentons stating there is a “possible discrepancy regarding lot size/fence line.” The city maintains that this demonstrates the Dentons were on notice as to the possible encroachment at the time of the sale.
The city had previously sought to have the case dismissed and its lawyer, Elizabeth Calciano, indicated it will again seek to have a new cause of action alleged by the Dentons tossed out. In October, the city  requested that Superior Court Judge Ben Kayashima, who was then hearing the case, grant summary judgment. Kayashima rejected that petition, and ordered both parties to be ready for trial, which he set to commence on November 13. There were further delays, and Kayashima, who is a retired judge who was sitting on assignment, had his position as a judge terminated as a result of budget cuts. Brisco called for the case to go to trial beginning on September 30. Calciano said she will bring a motion before Brisco next month to have him throw out a recent amendment to the Dentons’ complaint that cites issues with regard to the covenants, conditions and requirements attending the sale of the property.
The case is of some moment in upscale Chino Hills, since it will conceivably impact other property owners in the city who are alleged to have encroached on open space owned by the city.