Date: 06-10-2019

Case Style:

Case Number: F075173

Judge: Franson, J.

Court: California Court of Appeals Fifth Appellate District on appeal from the Superior Court, County of Kern

Plaintiff's Attorney: Reza Veiseh, in pro. per and Christian Kernkamp

Defendant's Attorney: Patrick S. Schoenburg and Christina H. Vo

Description: This appeal addresses standing to bring a cause of action for trespass to realty.
Generally, the tort of trespass protects possessory interests and, therefore, a person in
actual possession of the land may sue for trespass. Ownership or recorded title to land is
not required. Some California decisions state the plaintiff’s possession must be “lawful.”
2.
This opinion addresses an issue of first impression about what constitutes “lawful
possession.”
Plaintiff Reza Veiseh transferred the real property in question to a custodian for
the benefit of his minor daughter pursuant to the California Uniform Transfers to Minors
Act (Prob. Code, §§ 3900–3925). The act requires the property to be held for the use and
benefit of the minor. Veiseh did not comply with this requirement. Instead, he
maintained possession and control of the real property for his own use and benefit, rather
than the use and benefit of his daughter. The defendants argued Veiseh’s failure to
comply with the California Uniform Transfers to Minors Act meant his possession was
unlawful. The trial court agreed. After a bench trial on the bifurcated issue of standing,
the court found Veiseh’s actions were not consistent with the statute and he had no right
of lawful possession in the real property. The court entered judgment for the defendants.
California case law establishes that “lawful possession” simply means actual,
peaceful possession and a person with actual possession can sue for trespass even if he or
she does not have any legal rights in the land. We conclude Veiseh’s failure to comply
with the California Uniform Transfers to Minors Act did not render his possession of the
real property unlawful for purposes of California trespass law. The general definition of
lawful possession applies in this case because, among other things, nothing in the text of
the statute or the record supports the inference that the legislation was enacted to protect
trespassers or otherwise define who could pursue a cause of action for trespass. The trial
court’s explicit findings about Veiseh’s possession and control are sufficient to establish
the lawful possession element of his trespass claim.
We therefore reverse the judgment and remand for further proceedings.
FACTS
Plaintiff Reza Veiseh is a resident of Los Angeles County. In 2004, Veiseh
acquired ownership of 20 acres of land assigned Kern County Assessor’s Parcel Number
179-293-15 (the Parcel). His acquisition is reflected in a grant deed from members of the
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Goldsworth family that was recorded in March 2004 and described him as a single man.
Veiseh contends that since he purchased the Parcel, he has been in unbroken possession
of it and utilized it for agricultural purposes. Evidence supporting this contention
includes his testimony at trial that he had been the sole occupier of the Parcel from 2004
until the day of his testimony.
On October 6, 2008, Veiseh recorded a grant deed transferring the Parcel from
himself to “Zohreh Afshar, as custodian for Hedyeh Veiseh, under the California
Uniform Transfers to minors act.” Zohreh Afshar is Veiseh’s former wife and Hedyeh
Veiseh is his daughter, who was a minor when the deed was recorded. At trial, Veiseh
testified he and his former wife maintained good relations and were living in the same
house where he had a separate room. He also testified he transferred the Parcel to the
custodian and his minor daughter for estate planning reasons because, at the time, he was
not feeling well and a couple of his friends had passed away.
Veiseh alleged that on October 19, 2008, cattle from adjoining land entered the
Parcel and damaged the trees, vegetables and flowers he had planted and maintained on
the Parcel. The defendants owned either the cattle or owned or leased the land from
which the cattle entered the Parcel.
Sometime in 2015, when his daughter was 19 or 20 years old, there was an attempt
using a quitclaim deed to transfer the property from her back to Veiseh. Veiseh testified
he prepared the quitclaim deed and caused it to be recorded.
PROCEEDINGS
Veiseh’s lawsuit against the defendants was commenced in October 2011. The
operative pleading in this case is the second amended complaint. Defendant Donald
Stapp and defendants William and Irma Becherer are the respondents in this appeal.
Veiseh alleged that Stapp grazed cattle on land adjacent to the Parcel, which land was
owned or leased by the Becherers. The three causes of action in the second amended
complaint were labeled (1) injury to farmland, (2) trespass, and (3) negligence.
4.
The trial court bifurcated the issue of Veiseh’s standing to assert the causes of
action. In September 2016, the court held a three-day bench trial on that issue. Four
witnesses testified at the trial—the sheriff’s deputy who responded to Veiseh’s call about
the alleged trespass, Veiseh’s former wife, William Becherer, and Veiseh. At the close of
the evidence on the bifurcated issue of standing, the trial court orally stated its decision
from the bench. The court found Veiseh “was maintaining possession and control of the
premises solely for his benefit and interest. Absolutely no interest in the custodian,
absolutely no interest [or] benefit for the minor. Solely in his possession and control, his
benefit.”1
The court ultimately concluded Veiseh “did not have an enforceable right of
possession” and lacked standing to bring the claims.
In December 2016, the court issued a statement of decision. The decision relied
heavily on the California Uniform Transfers to Minors Act and concluded Veiseh “did
not have lawful possession and control where the property was to be held, maintained,
and used solely for the benefit of the minor. [Veiseh] was an interloper on the property.”
Based on this determination, the decision concluded Veiseh lacked standing to assert the
causes of action set forth in the second amended complaint. A judgment and timely
appeal followed.
DISCUSSION
I. LEGAL PRINCIPLES
A. Standard of Review
“In reviewing a judgment based upon a statement of decision following a bench
trial, we review questions of law de novo. [Citation.] We apply a substantial evidence
standard of review to the trial court’s findings of fact. [Citation.]” (Thompson v. Asimos
(2016) 6 Cal.App.5th 970, 981.) We conclude identifying the legal principles that define

1 On appeal, these findings of fact about possession and control of the Parcel are not
disputed by the parties. Therefore, a detailed description of the supporting testimony is
not provided.
5.
who may bring an action for trespass to realty presents questions of law. We resolve
those questions of law independently without deference to the trial court’s conclusion.
B. Standing and Trespass
1. Role of Title to the Real Estate
The question of who may sue for trespass to realty was addressed by our Supreme
Court over a century ago. “It is a well-settled proposition that the proper party plaintiff in
an action for trespass to real property is the person in actual possession. No averment of
title in plaintiff is necessary. [Citations.]” (Lightner Mining Co. v. Lane (1911) 161 Cal.
689, 694 (Lightner Mining).) The court further explained the role of title in a trespass
action:
“A defendant who is a mere stranger to the title will not be allowed to
question the title of a plaintiff in possession of the land. It is only where
the trespasser claims title himself, or claims under the real owner, that he is
allowed to attack the title of the plaintiff whose peaceable possession he has
disturbed.” (Id. at p. 695.)
These statements from Lightner Mining remain an accurate description of
California’s approach to the tort of trespass to realty. The Third District quoted portions
of Lightner Mining to support its conclusion that “prior peaceful possession is sufficient
to maintain the action of ejectment against one who enters as a trespasser.” (Smpardos v.
Piombo Const. Co. (1952) 111 Cal.App.2d 415, 423.) The Third District mentioned the
role of title by citing a legal encyclopedia for the principle that “‘generally prior
possession alone is sufficient as against a defendant who has no better right or title.’”
(Ibid.) Based on Lightner Mining and Smpardos, we conclude title to the land is
significant to the outcome of a trespass action only when the alleged trespasser claims
title himself or claims rights under the true owner.
Here, defendants do not claim title to the Parcel and they do not claim the true
owner of the property granted them to right to enter the Parcel. Therefore, the fact that
6.
Veiseh did not hold recorded title to the Parcel at the time of the alleged trespass does not
bar his trespass claim.
2. Actual, Lawful Possession
Under Lightner Mining, the proper person to bring “an action for trespass to real
property is the person in actual possession.” (Lightner Mining, supra, 161 Cal. at p. 694.)
In the context of a trespass action, “possession” is synonymous with “occupation” and
connotes a subjection of property to one’s will and control. (Williams v. Goodwin (1974)
41 Cal.App.3d 496, 508 (Williams).) We adopt this definition and note it is compatible
with the Restatement (Second) of Torts, which states a person in possession of land
includes one who “is in occupancy of land with intent to control it.” (Rest.2d Torts,
§ 157.)2

Some decisions and secondary authorities use the term “lawful possession” when
describing the elements of a trespass cause of action. “The simple elements of a cause of
action for trespass or injury are (1) the plaintiff’s lawful possession or right to possession,
as the owner or otherwise, of described property .…” (5 Witkin, Cal. Procedure (5th ed.
2008) Pleading, § 631, p. 65, italics added.) Defendants contend Veiseh cannot establish
his trespass claim because there was no evidence his possession of the Parcel was lawful.
The meaning of the term “lawful possession” was addressed by the Third District
in the context of “a statutory provision conferring a right of recovery for trespass upon
‘the owner of or person who is in lawful possession of land’ trespassed upon by
defendant’s animal.”3
(Williams, supra, 41 Cal.App.3d at p. 508.) The court referred to
the case of Fisch v. Nice (1909) 12 Cal.App. 60, and stated:

2 California Civil Jury Instruction (CACI) No. 2000, “Trespass—Essential Factual
Elements,” states the plaintiff must prove “1. That [name of plaintiff]
[owned/leased/occupied/controlled] the property.”
3 The statutory provision in question apparently is no longer in effect. It is not cited
by defendants. Despite its repeal, the statutory term “lawful possession” is still used in
case law and secondary authorities.
7.
“The court held that the words ‘lawful possession’ as contained in the
statute meant only ‘“peaceable or quiet possession, contra-distinguished
from possession which is not merely constructively tortious, but actually
so.” [Citation.]’ [Citation.] The court declared that plaintiff’s burden
under the statute was satisfied by a showing of actual possession.”
(Williams, supra, 41 Cal.App.3d at p. 508.)
More recent decisions have addressed the nature of the possession needed to
pursue a trespass action by stating:
“‘The cause of action for trespass affords protection for a possessory, not
necessarily an ownership interest.’ [Citation.] For that reason, the plaintiff
need not have legal rights in the land. [Citation.] Even ‘one in peaceable
though wrongful possession of real property may sue in tort for forcible
interference with that possession even in the absence of injury to his person
or goods ....’” (Spinks v. Equity Residential Briarwood Apartments (2009)
171 Cal.App.4th 1004, 1042 (Spinks), quoting Allen v. McMillion (1978) 82
Cal.App.3d 211, 214, 218; see 59 Cal.Jur.3d (2012) Trespass to Realty, § 8
[necessity of possession].)
We conclude the principles set forth in Williams and Spinks accurately describe
the type of possession necessary to maintain an action for trespass to realty. Accordingly,
the term “lawful possession” includes peaceable possession, which can be established by
proving actual possession—that is, subjecting the land to one’s will and control.
(Williams, supra, 41 Cal.App.3d at p. 508.) It follows that “the plaintiff need not have
legal rights in the land.” (Spinks, supra, 171 Cal.App.4th at p. 1042.)
3. Uniform Transfers to Minors Act
During the trial, defendants argued that Veiseh’s possession of the Parcel was not
lawful because he was in violation of the California Uniform Transfers to Minors Act.
Under the act, property transferred to a custodian for the benefit of a minor is held and
managed by the custodian for the use and benefit of the minor. (Prob. Code, §§ 3904,

We note that Penal Code section 602 describes the crime of trespass and makes
references to “the person in lawful possession.” (Pen. Code, § 602, subds. (j), (k), (l).)
Penal Code section 602.8, which describes a public offense involving entry onto land
under cultivation or enclosed by fence, uses the phrase “the person in lawful possession
of the land.” (Pen. Code, § 602.8, subds. (a), (b)(2), (b)(3).)
8.
3912, 3914.) The trial court addressed defendants’ argument by finding that, following
the transfer of the Parcel pursuant to the grant deed, Veiseh “continued to maintain
possession and control of the [Parcel] solely for his own benefit and interest, with
absolutely no intent to benefit the minor, through her custodian.” The court determined
Veiseh’s handling of the Parcel and the benefits derived from it was not consistent with
the terms of the conveyance or the California Uniform Transfers to Minors Act. Based
on the failure to comply with the legislation, the court concluded Veiseh had no right of
lawful possession in the Parcel during the times relevant to the alleged trespass.
Defendants’ argument and the trial court’s reliance on the California Uniform
Transfers to Minors Act to conclude Veiseh did not have lawful possession of the
property presents a narrow issue of first impression. Defendants have not cited, and we
have not located, any authority for the principle that possession of real property is
rendered unlawful for purposes of the tort of trespass when, contrary to the California
Uniform Transfers to Minors Act, the property is not held for the use and benefit of the
minor. As explained below, we conclude that Veiseh’s failure to prove the Parcel was
held for the benefit and use of his minor daughter did not render his possession unlawful.
First, defendants’ reliance on Veiseh’s failure to comply with the California
Uniform Transfers to Minors Act is contrary to the general principle that a person with
peaceable, actual possession of real property has standing to pursue a trespass action.
(Lightner Mining, supra, 161 Cal. at p. 694; Williams, supra, 41 Cal.App.3d at p. 508.)
Standing is not defeated by the fact the possessor has no legal rights to the property.
(Spinks, supra, 171 Cal.App.4th at p. 1042.) Second, defendants have not referred to any
statutory provision or legislative history supporting the inference that the Legislature
adopted the California Uniform Transfers to Minors Act for the purpose of protecting
trespassers such as defendants or, more specifically, modifying the legal standards for
standing to bring an action for trespass to realty. Third, the policy considerations
underlying the lawful possession element of a trespass claim do not weigh in favor of
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holding that a failure to comply with the California Uniform Transfers to Minors Act
should bar a person in possession from seeking redress for a trespass. For instance, it
does not appear the failure to hold the Parcel for the use and benefit of the minor would
subject the alleged trespassers to dual lawsuits—one by the possessor and one by the
custodian for the benefit of the minor. Also, defendants do not have the status of, or
similar to, third-party beneficiaries of the transfer from Veiseh to the custodian. They
have no identifiable interest in how the benefits or proceeds from the Parcel are allocated
among Veiseh, the custodian and the minor.
Based on the foregoing, we conclude a failure to comply with one or more
provisions of the California Uniform Transfers to Minors Act does not render the
grantor’s continued possession and control of the real property unlawful for purposes of
the tort of trespass to realty. In other words, we reject defendants’ invitation to create
new law. We will not modify the established principles defining lawful possession by
requiring a plaintiff in possession of land to also have handled the proceeds or benefits
generated by that possession in accordance with the provisions of the California Uniform
Transfers to Minors Act.
II. APPLICATION OF LAW TO THE FINDINGS OF FACT
The parties’ main points of contention are resolved by our legal conclusions about
the appropriate definition of lawful possession. All that remains is the relatively simple
process of applying that definition of lawful possession to the trial court’s findings of
fact.
In its statement of decision, the trial court found “that following the transfer
pursuant to the grant deed, [Veiseh] continued to maintain possession and control of the
subject property solely for his own benefit and interest, with absolutely no intent to
benefit the minor, through her custodian.” Under the principles that define lawful
possession, “[e]ven ‘one in peaceable though wrongful possession of real property may
10.
sue in tort for forcible interference with that possession ....’” (Spinks, supra, 171
Cal.App.4th at p. 1042.) This principle and the explicit findings about possession and
control establish that Veiseh had the lawful possession of the Parcel required to prove the
tort of trespass to realty. (See Williams, supra, 41 Cal.App.3d at p. 508.) Stated from
another perspective, the statement of decision erred in relying on the way record title to
the Parcel was held, and the way Veiseh handled the benefits derived from his actual
possession of the Parcel.
Having established the element of lawful possession, Veiseh has shown “it is
reasonably probable that the trial court would have reached a result more favorable to the
appellant absent the error.” (Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th
986, 999.) Consequently, the second phase of the bifurcated trial should be undertaken.

Outcome: The judgment is reversed, and the matter remanded to the trial court for further
proceedings not inconsistent with this opinion. Appellant shall recover his costs on
appeal.

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