Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gerald Toste et al v. County of El Dorado

January 31, 2013

GERALD TOSTE ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF EL DORADO, DEFENDANT AND RESPONDENT.



(Super. Ct. No. PC20070291)

The opinion of the court was delivered by: Robie , J.

Toste v. County of El Dorado

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal is the sixth installment in baseless litigation filed by attorney Charles Kinney arising out of easements on land owned by Kinney's clients, plaintiffs Gerald and Robin Toste (the Tostes), for the benefit of their neighbors, the Smedbergs.*fn1

Kinney is no stranger to the courts. He has been declared a vexatious litigant in Los Angeles Superior Court in 2008 and in the Court of Appeal, Second Appellate District, Division Two, in 2011. (In re Kinney (2011) 201 Cal.App.4th 951, 960.) In those instances, Kinney "pursued a persistent and obsessive campaign of litigation terror against his neighbors and the City of Los Angeles . . . ." (Id. at p. 953.) Those cases, as does the litigation here, arose out of a property dispute against neighbors involving easements. (Id. at p. 954.) "As one trial judge aptly wrote in a statement of decision, Kinney is 'a relentless bully' who displays 'terrifying arrogance' by filing 'baseless litigation against the City [of Los Angeles] and its citizens.' " (Id. at p. 953.)

This appeal fares no better. On behalf of the Tostes, Kinney contends the El Dorado County Superior Court (the trial court) erred in sustaining a demurrer to the Tostes' third amended complaint without leave to amend in favor of defendant the County of El Dorado (the county). He argues the Tostes alleged viable causes of action for: (1) dangerous condition on public property; (2) inverse condemnation; and (3) declaratory relief. We find these arguments meritless and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves a lawsuit the Tostes filed against the county for its acts or omissions with respect to the Smedbergs building a road on one of the easements.

To put this case in context, we begin with some background. In 1977, the Smedbergs bought a large piece of property that was divided into five parcels. The property is bisected by a creek that makes it difficult to access the east portion of the property from the west portion of the property. The Smedbergs' home and driveway are on the west side of the creek. To provide access to the parcels on the east side of the creek, two contiguous easements were created near the southeast portion of the Smedbergs' property. They were in existence when the Smedbergs bought the property in 1977. These easements are sometimes referred to as the north easement and the south easement. The south easement runs the length of the northeast boundary of the Toste property. The north easement runs the length of the southwest boundary of two parcels contiguous to the Tostes. One of the two parcels is owned by Hugo Giusti and his son Ronald Giusti. (Smedberg v. Toste, supra, C056578, at pp. 3-4.)

The Smedberg family sought to build a driveway over the easements to a house they planned to construct on the property. Gerald Toste built a fence between the boundary of the two easements, and began piling obstructions along the easements and engaging in harassing and obstructionist behavior on the property and toward members of the Smedberg family. (Toste v. Superior Court, supra, C058938, at p. 2.)

In July 2006, the Smedbergs filed a complaint against the Tostes to quiet title to the easements, to obtain declaratory relief, and to obtain an injunction and damages for negligence. They also sought a preliminary injunction to stop the Tostes from blocking their use of the easements and to compel them to remove a fence and other obstructions from the easements. The trial court granted the preliminary injunction. (Toste v. Superior Court, supra, C058938, at p. 3.)

The Tostes filed a cross-complaint against members of the Smedberg and Guisti families, alleging the Tostes adversely possessed the disputed easements. (Toste v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.