What is the Primary Right Theory in California?

The primary right theory was the subject of the recent case of Duncan v. Kihagi that arose out of an unlawful detainer action.

This was the second time that appellants Anne Kihagi, Christina Mwangi, and Zoriall LLC (the landlords) challenged a $2.7 million judgment against them. A jury concluded they harassed and unlawfully evicted their tenants, respondents Dale Duncan and Marta Munoz Mendoza. 

 

After the appellate court affirmed the judgment, the landlords moved to vacate the judgment, claiming it was “void.” 

 

They argued the tenants were barred from obtaining relief in this action because they had failed to pursue their legal remedies in unlawful detainer proceedings after giving up possession of their unit. 

 

Because this argument misapprehended the statute that governs surrendering possession of property in unlawful detainer proceedings, the appellate court affirmed the trial court’s order denying the landlords’ motion. 

 

Duncan in 1994 moved into a rent- controlled unit in a five-unit building on Hill Street in San Francisco. He was living there with Mendoza and their daughter when, in June 2014, the building was purchased by Zoriall, an LLC owned by Kihagi and Mwangi.

 

Starting in August 2014 and for a little over a year until Duncan and his family were forced to move, the new landlords took away various property- related benefits, ignored or delayed responding to maintenance and upkeep issues, were uncommunicative and uncooperative, and became increasingly hostile. 

 

While they were still living in their unit, the tenants initiated the proceedings when they sued the landlords in May 2015. 

 

In their first amended complaint filed that same month, they alleged causes of action for (1) nuisance, (2) breach of contract, (3) negligence, (4) harassment in violation of San Francisco’s Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance, S.F. Admin Code ch. 37), and (5) unfair business practices (Bus. & Prof. Code, § 17200 et seq.). 

 

The following month, on June 25, 2015, two unlawful detainer actions were filed against the tenants. Zoriall filed one (“the Zoriall unlawful detainer action”), and Mwangi filed a separate one (“the Mwangi unlawful detainer action”). 

 

The tenants filed an answer in the Mwangi unlawful detainer action in which they asserted affirmative defenses of retaliation and violation of the Rent Ordinance. 

 

Then they filed a “Notice of Surrender of Possession” in the action. The notice stated that the tenants vacated the premises. The notice further stated that the matter thus became an “ordinary civil action” under Civil Code section 1952.3. 

 

That statute provides that if a landlord brings an unlawful detainer action and the tenant surrenders possession before trial (making possession no longer at issue), the case becomes an ordinary civil action in which the landlord may obtain any relief to which he or she is entitled.  

 

In such an ordinary civil action the tenant, too, may “by appropriate pleadings or amendments to pleadings, seek any affirmative relief.” 

 

In general, if a defendant named in a complaint fails to allege any related cause of action by way of a cross-complaint in the action, the defendant “may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” 

 

But this provision does not apply in an unlawful detainer action unless after delivering the property to the landlord, the tenant files a cross-complaint or an amended answer. 

 

The landlords claimed that because the tenants did not file a cross-complaint in the unlawful detainer actions, they were barred from pursuing their claims against the landlords in their already pending separate action. 

 

In 2016, the tenants filed an additional complaint against the landlords (“Duncan 2”) alleging that Mwangi had initiated an unlawful owner move-in eviction. 

 

This complaint alleged only two causes of action: (1) wrongful owner move-in eviction in violation of the Rent Ordinance and (2) negligence. 

 

Around the time trial started, the tenants on September 1, 2017, filed a second amended complaint that consolidated Duncan 1 and Duncan 2, with no substantive changes.

 

The amended complaint included all causes of action previously alleged: (1) nuisance, (2) breach of contract, (3) negligence, (4) violation of the Rent Ordinance (harassment), (5) unfair business practices, (5) violation of the Rent Ordinance (wrongful owner move-in eviction), and (6) another negligence cause of action. 

 

Following a jury trial, jurors found the landlords liable for two separate violations of the Rent Ordinance: wrongful eviction and tenant harassment. 

 

The appellate court affirmed the judgment in Duncan I. The landlords nonetheless filed six “motions to vacate judgment after trial” on various grounds. 

 

The single motion that is the subject of this appeal argued that the judgment was void based on the “primary rights theory.” 

 

In the motion, the landlords claimed that the trial court had lacked subject matter jurisdiction over the tenants’ claims after they surrendered possession of their rental unit. According to the landlords, such a relinquishment of possession waives a tenant’s right to a wrongful-eviction claim, and the judgment was thus “void" on its face. 

 

The tenants opposed the motions and argued they were without merit, frivolous, and designed to waste resources and time and as a procedural tactic to cause delays and to create unnecessary fees and costs. 

 

Following a hearing, the trial court denied all of appellants’ motions, including the one arguing that the judgment against them was void under the primary right theory.  

 

On appeal, the landlords renewed their argument that the judgment the tenants obtained following a jury trial must be set aside as void based on the primary right theory. The appellate court held the argument failed. 

 

The argument turns on the effect of the tenants surrendering possession of their unit before trial in either of the unlawful detainer actions. 

 

In general, unlawful detainer actions are summary in character, ordinarily, only claims bearing directly upon the right of immediate possession are cognizable, and cross-complaints and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, preclude removal of the tenant from the premises. 

 

If the tenant surrenders the property such that possession is no longer at issue, though, the landlord may expand the relief sought by way of an amended complaint. 

 

The tenant, too, may, by appropriate pleadings or amendments to pleadings, seek any affirmative relief, and assert all defenses, to which he or she is entitled, whether or not the lessor has amended the complaint.

In other words, once a tenant sued for unlawful detainer surrenders possession as set forth in section 1952.3, the tenant may seek affirmative relief that would not have otherwise been available in an unlawful detainer proceeding. 

 

Relying on the primary right theory, the landlords attempted to turn this principle on its head, contending that unless the tenant seeks affirmative relief in the unlawful detainer proceeding the tenant is barred from seeking it at all. 

 

According to them, as soon as Duncan and Mendoza relinquished possession of their unit, any causes of action or damages related to the issue of Respondents’ primary right of possession was completely resolved in favor of Appellants. 

 

The appellate court was not persuaded. 

 

The primary right theory is a theory of code pleading that has long been followed in California. It provides that a cause of action is composed of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and wrongful act by the defendant constituting a breach of that duty. 

 

The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. 

 

A pleading that states the violation of one primary right in two causes of action contravenes the rule against splitting a cause of action. 

 

The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. 

 

The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata. 

 

The latter application of the primary right theory appears to be most common: numerous cases hold that when there is only one primary right an adverse judgment in the first suit is a bar even though the second suit is based on a different theory or seeks a different remedy. 

 

Neither scenario occurred here. 

 

More fundamentally, the theory was simply inapplicable in the circumstances presented here. 

 

Again, only the right to possession is in issue in a summary unlawful detainer action. 

 

To preserve the summary nature of the proceedings, the rule developed that ordinarily affirmative defenses may not be asserted. 

 

Only defenses which are directly relevant to possession may be considered. 

 

Section 1952.3 codifies the rule that if the tenant gives up possession of the property after the initiation of unlawful detainer proceedings but before trial, the action becomes an ordinary one for damages. 

 

In other words, when the tenants gave up possession, they surrendered only the very narrow issue of current possession of their unit. 

 

Section 1952.3, subdivision (a)(2) then permitted them to seek any affirmative relief they were otherwise entitled to that was not otherwise available in an unlawful detainer action. 

 

The tenants proceeded with their own complaints and did not seek relief by filing a cross-complaint in the unlawful detainer actions. 

 

But, contrary to the landlords’ insistence, they were not required to do so. 

 

In general, where a defendant to a lawsuit fails to allege any related causes of action by way of a cross-complaint, that defendant may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded. 

 

This requirement to allege all related claims does not apply in unlawful detainer actions, however, unless one of two things happens: the tenant (1) files a cross-complaint or(2) files an answer to any amended complaint the landlord files after the case becomes a regular civil action. 

 

In other words, if a tenant chooses to file a cross-complaint in an unlawful detainer action after surrendering possession, all possible causes of action must be alleged. 

 

Here, the tenants had no reason to file such a cross-complaint after surrendering possession of their unit since they already had filed a separate complaint. And they apparently had no reason to file an amended answer, since there is no indication that after the tenants surrendered possession the landlords sought any further relief in the unlawful detainer actions. 

 

It was simply not true that the tenants improperly split a cause of action into successive suits, as the landlords claim. 

 

Here, the only legal claim the tenants abandoned when they moved out of their unit was the narrow issue of current possession, the sole focus of the unlawful detainer proceedings. The landlords apparently do not dispute for purposes of this appeal that the tenants had other valid legal claims against them. 

 

But they insist that those claims were either waived when the tenants surrendered current possession of their unit, or the claims should have been litigated in the unlawful detainer actions. 

 

As there is no legal support for these arguments, the appellate court rejected them. 

 

LESSONS:

 

1.         Civil Code section 1952.3 provides that if a landlord brings an unlawful detainer action and the tenant surrenders possession before trial (making possession no longer at issue), the case becomes an ordinary civil action in which the landlord may obtain any relief to which he or she is entitled.  

 

2.         In general, unlawful detainer actions are summary in character, ordinarily, only claims bearing directly upon the right of immediate possession are cognizable, and cross-complaints and affirmative defenses, legal or equitable, are permissible only insofar as they would, if successful, preclude removal of the tenant from the premises. 

 

3.         In other words, once a tenant sued for unlawful detainer surrenders possession as set forth in section 1952.3, the tenant may seek affirmative relief that would not have otherwise been available in an unlawful detainer proceeding. 

 

4.         The primary right theory is a theory of code pleading that has long been followed in California. It provides that a cause of action is composed of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and wrongful act by the defendant constituting a breach of that duty. 

 

5.         The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. 

 

6.         In general, where a defendant to a lawsuit fails to allege any related causes of action by way of a cross-complaint, that defendant may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded. 

How is an Easement Abandoned in California?

The recent decision in Visitacion Investment, LLC v. 424 Jessie Historic Properties, LLC, involved Appellant Visitacion Investment, LLC (Visitacion) that owned a large plot of land in San Francisco. California. 

A portion of the land was subject to an easement reserved when a railroad sold that portion to Visitacion’s predecessor-in-interest. 

 

The dominant tenement of the easement, a plot of land adjacent to Visitacion’s property, was owned by respondent 424 Jessie Historic Properties, LLC (JHP). 

 

In preparing to develop its property, Visitacion brought the action to quiet title to the easement on grounds of abandonment. 

 

Visitacion and JHP filed cross-motions for summary judgment. The trial court found no material triable issues of fact and rendered judgment in favor of JHP, holding there had been no abandonment as a matter of law. 

 

Concluding that disputed issues of fact preclude any definitive finding on the issue of abandonment, the appellate court reversed the grant of summary judgment to JHP.

 

A portion of the Visitacion property (servient parcel) was formerly owned by the Southern Pacific Transportation Company (Southern Pacific). The servient parcel was bounded on the east by the right-of-way for a series of mainline railroad tracks that are still in active use. 

 

When Southern Pacific conveyed the servient parcel to Visitacion’s predecessor-in-interest in 1990, Southern Pacific was conducting railroad-related business operations on a parcel across the northern border of the servient parcel. 

 

In support of these operations, the deed of conveyance reserved an easement with respect to several separately described portions of the servient parcel (the easement). 

 

As relevant here, the easement encumbered a strip of land curving diagonally across the servient parcel from its northeast corner, which was bordered to the north by the Southern Pacific parcel and to the east by the railroad right-of-way. Southern Pacific’s parcel became the dominant tenement of the easement.

 

An easement is an incorporeal interest in the land of another that gives its owner the right to use another’s property. 

 

The land to which the easement attaches is called the dominant tenement; the land on which the burden is imposed is called the servient tenement. 

 

Southern Pacific merged with the Union Pacific Railroad (Union Pacific) in 1997.  At some point, railroad activities on the dominant tenement ceased, although the date of cessation is unclear from the appellate record. 

 

In 2015, Union Pacific sold the dominant tenement and an adjacent parcel (together, JHP property) to the predecessor-in-interest of JHP. As part of the sale, Union Pacific expressly conveyed to JHP its rights under the easement in the diagonal strip described above, although the deed contained no warranty regarding the continued existence of such rights. 

 

Visitacion planned a large, mixed-use residential development on the Visitacion property. As part of that development, Visitacion hoped to use the portion of its land that was encumbered by the easement. 

 

To that end, Visitacion brought its quiet title action against JHP, alleging that the easement has been extinguished under the doctrine of abandonment. 

 

JHP responded with a cross-complaint, denying abandonment and seeking to establish its full and complete legal and equitable ownership of the easements. 

 

Visitacion’s claim of abandonment was premised on the cessation of railroad activities on the JHP property and its sale to JHP, a real estate development company, JHP argued that the easement had not been abandoned because it continues to allow vehicular and pedestrian access to the JHP property and can be used for the installation of communications equipment or for activities associated with the active mainline rail service on its eastern boundary. 

 

Without denying its exploration of the construction of buildings on the JHP property, JHP provided evidence that the JHP property is zoned to allow a variety of activities authorized under the easement, including activities associated with the mainline tracks or other “freight storage or transfer, loading and unloading of rail cars, and railroad maintenance, construction or repair” and a data center or other telecommunication facilities. 

 

Since JHP acquired the property, it had licensed its temporary use to a railroad maintenance and construction contractor working on a railroad electrification project for CalTrain. 

 

Further, JHP argued use of the easement for an access roadway and the installation of communications lines will be necessary for any future development on the JHP property. Because, JHP contended, such uses are authorized under the easement, it cannot be found to have been abandoned. 

 

The trial court denied Visitacion’s motion for summary judgment and granted JHP’s motion. 

In granting judgment, the trial court was persuaded that the scope of the easement extended beyond railroad-related activities, citing the broad language relating to communications equipment and the testimony of a former Southern Pacific employee that the company’s business at one time included the installation of commercial fiber optic cables in some of its railroad rights-of-way. 

 

The court rejected Visitacion’s claim that Union Pacific’s conduct evidenced an intent to abandon the easement, relying on evidence that (1) the railroad actively marketed the property, (2) JHP had entered into agreements with Visitacion in 2016 and the construction company in 2019 granting access to the property, and (3) the property would be “effectively landlocked” without access over the easement. 

 

The appellate court concluded that the trial court erred in granting summary judgment to JHP for three independent reasons. 

 

First, resolution of this matter would likely turn on the interpretation of the easement deed. Although that interpretation is ultimately an issue of law for the court, the trial court erred in construing the easement in the context of the summary judgment motions, given the ambiguity in the language of the deed and the conflicting evidence regarding the context and use of the easement. 

 

Second, the evidence submitted by Visitacion could, if accepted by the trier of fact, support a finding of abandonment, notwithstanding the contrary evidence submitted by JHP. It therefore created triable issues of fact that preclude summary judgment. 

 

Third, the trial court’s finding that, as a matter of law, Union Pacific did not intend to abandon the easement was based on a misunderstanding of the law governing such intent.

 

Abandonment of an easement created by grant, as here, requires proof of (1) the cessation of use of the easement by the owner of the dominant tenement and (2) unequivocal and decisive acts on the part of the [dominant tenant], clearly showing an intention to abandon.

 

An easement that is found to be abandoned does not ‘revert’ to the grantor it is simply extinguished.

 

Abandonment, and in particular the intent to abandon, are issues of fact. 

 

With respect to this inquiry, California has adopted the view of the original Restatement of Property that the intention required in the abandonment of an easement is the intention not to make in the future the uses authorized by it. The benefit of an easement lies in the privilege of use of the land subject to it. There is no abandonment unless there is a giving up of that use. 

Abandonment hinges upon the intent of the owner to forego all future conforming uses of the property, and the trier of fact must “determine whether there was a bona fide intent to preserve the right of way for actual railroad use.

 

Although mere nonuse is insufficient to demonstrate an intent to abandon, a long period of nonuse may be considered as evidence of the necessary intent. 

 

In determining the “conforming” or “authorized” uses of an easement, the touchstone is the language of the document creating the easement.

 

The extent of a servitude is determined by the terms of the grant. Deeds are interpreted in the same manner as contracts. In interpreting a deed, our primary objective is to determine and carry out the intent of the parties by looking at the deed’s plain language, as construed in light of any extrinsic evidence which may prove a meaning of which the language of the instrument is reasonably susceptible.

 

In determining the uses permitted by an easement, the court must also consider the “purpose and character” of the easement.

 

 The terms of the easement constrain the uses permitted to those interests expressed in the grant and those necessarily incident thereto pass from the owner of the fee. 

 

It is well settled that both parties have the right to insist that so long as the easement is enjoyed it shall remain substantially the same as it was at the time the right accrued, entirely regardless of the question as to the relative benefit and damage that would ensue to the parties by reason of a change in the mode and manner of its enjoyment.

 

There was little question that the terms of the deed containing the easement were ambiguous. The easement is referred to as a “railroad easement,” but its authorized uses include the installation of communications equipment as well as railroad equipment. Further, the deed’s descriptions of the various tracts subject to the easement refer specifically to the creation of a “drill & spur track” and an “access roadway.” 

 

Based on this language, Visitacion and JHP posit reasonable but conflicting interpretations, with Visitacion contending the easement permits only railroad-related uses (including railroad-related communications and access) and JHP arguing that any use for the purposes of communications and access is authorized. 

 

The trial court’s interpretation was based largely on the language of the easement deed, with little consideration of the circumstances of its creation or the original parties’ use of the easement. Although the trial court was correct that the deed’s language authorizing the installation of communications equipment is broad, that language is potentially subject to limitation by other provisions of the easement deed and the history of its use. 

 

The deed is entitled “Railroad Easement,” arguably suggesting that the parties intended the easement to be used solely for railroad purposes. Further, one of the easement parcels transferred to JHP was described as a “signal cabinet area” in the quitclaim deed, suggesting it had been used for communications related to the railroad’s operations.

 

The original parties could have chosen to use broad language to describe the allowable communications equipment simply to accommodate changing technology for railroad communications, rather than to permit the installation of equipment serving other communications purposes. 

 

The trial court’s decision did not address the evidence submitted by Visitacion in support of its contention that Union Pacific had abandoned the easement. Because that evidence was sufficient, under long-established case law, to support a finding by a trier of fact that the easement was abandoned, Visitacion’s submission created triable issues of fact precluding a grant of summary judgment to JHP. 

 

Visitacion’s evidence, which was largely uncontradicted, demonstrated that all of Union Pacific’s easement-related activities on the servient parcel ceased several years prior to the sale to JHP. 

 

On this evidence, a trier of fact could conclude that Union Pacific, prior to the sale to JHP, had formed an intent not to make in the future the uses authorized by the easement. 

 

A reasonable inference of such intent could be made from the removal of all conforming equipment and the significant period of nonuse, which the internal review confirmed. Similar evidence has repeatedly been found sufficient to support a finding of abandonment of a railroad easement in California and other jurisdictions.

 

Even if the easement permitted non-railroad uses, Union Pacific could be found to have formed an intent not to take advantage of them. For this reason, Visitacion’s evidence necessarily created triable issues of fact that prevented a grant of summary judgment to JHP. 

 

Although Visitacion’s evidence is sufficient to support a finding of abandonment, it did not demonstrate an entitlement to summary judgment. As we have noted, abandonment, and in particular intent to abandon, are issues of fact. Issues of intent in this context as in others often turn on circumstantial evidence and inferences that, when conflicting, are not amenable to summary judgment.  

 

Further, although a trier of fact could find abandonment on Visitacion’s evidence, that finding is not compelled as a matter of law. A judge or jury could also conclude that Union Pacific’s conduct was neither unequivocal nor decisive in demonstrating an intent to forgo all further authorized uses of the easement. 

 

In addition, JHP provided evidence that could be found to refute an intent to abandon. Although JHP’s claim that it intends to make such use of the easement will depend on subsequent interpretation of the easement, JHP’s evidence is sufficient at this stage of the proceedings to create a triable issue of fact that precluded a grant of summary judgment for Visitacion. 

 

The trial court’s conclusion that, as a matter of law, Union Pacific lacked the intent to abandon appears to have been based on a misunderstanding of the law governing such intent. The court did not expressly identify the legal standard it applied in finding no intent to abandon, but it reasoned that Union Pacific could not be found to have intended to abandon the easement because it actively marketed the easement as part of the JHP property.

 

Although this suggests that Union Pacific did not intend to voluntarily relinquish the easement at the time of the sale to JHP, the intent to abandon an easement does not require or depend upon an intent to relinquish it. 

 

The intention required in the abandonment of an easement is the intention not to make in the future the uses authorized by it.

 

The trial court separately justified its finding of no intent to abandon on the ground that the JHP property would be “effectively” landlocked without access over the easement. Visitacion presented evidence refuting JHP’s claim that the property would be landlocked without access through the easement, including the admission by a JHP witness that the easement is merely “currently the most economically feasible access to the JHP property.” 

 

The issue whether the property was landlocked thus presented a triable issue of disputed fact, and the court erred in premising a grant of summary judgment on JHP’s claim. 

 

Further, although the landlocked nature of the parcel might justify a finding of an easement by necessity, an issue the court did not expressly consider, it does not bear on the issue of abandonment. JHP has presented no authority suggesting that the need for access, standing alone, makes roadway access an authorized use under the easement. 

 

Whether access to the JHP property was an authorized use of the easement or was permitted only to the extent such access was necessarily incident to the expressly authorized uses, must be resolved by interpretation of the easement. 

 

The trial court’s grant of summary judgment to JHP was reversed, and the trial court was directed to vacate the judgment and its order granting summary judgment. 

 

LESSONS:

 

1.         An easement is an incorporeal interest in the land of another that gives its owner the right to use another’s property. 

 

2.         The land to which the easement attaches is called the dominant tenement; the land on which the burden is imposed is called the servient tenement. 

 

3.         Abandonment of an easement created by grant, as here, requires proof of (1) the cessation of use of the easement by the owner of the dominant tenement and (2) unequivocal and decisive acts on the part of the [dominant tenant], clearly showing an intention to abandon.

 

4.         An easement that is found to be abandoned “does not ‘revert’ to the grantor it is simply extinguished.

 

5.         Abandonment, and in particular the intent to abandon, are issues of fact.