Monday, May 4, 2026
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Court of Appeal:
Judge Erred in Ordering Demolition of Portion of House
Opinion Says Comparative Hardships Were Not Weighed Where Home Intruded by 7.2 Inches on Neighbor’s Land
By a MetNews Staff Writer
The Court of Appeal for this district has spared a homeowner the obligation of removing a portion of her Van Nuys home, built in 1937, based on a 2021 survey showing that it encroached by 7.2 inches on property owned by her neighbor, finding that the trial judge did not weigh the equities.
Presiding Justice Lee Edmon authored the unpublished opinion, filed Thursday. It reverses, for the most part, a judgment by Los Angeles Superior Court Judge Shirley K. Watkins.
The judge ordered that defendants Sonia Martinez and Samy Tliche remove a wall they had constructed supposedly along the property line, where a wooden fence had previously stood, pay plaintiff Jose Duarte $150,000. for emotional distress, and, more significantly, demolish a portion of the house and create a five-foot setback. Watkins found that the two had acted in bad faith because they had the wall erected on the day Duarte had the survey conducted.
Previously, the parties had agreed to share the cost of a concrete wall but disagreed as to where it would be placed. Tliche died following the trial and his estate was a participant in the appeal.
Appellants’ Position
Glendale attorney R. David DiJulio, representing Martinez and the estate, argued on appeal:
“The record contains no findings that the court considered the comparative hardships or the feasibility of alternative relief. Appellants presented evidence and argument that the property line had been treated as fixed for many years, that any encroachment was minor and unintentional, and that removal would impose substantial hardship.”
He continued:
“The relative hardships doctrine requires a court to balance the equities before compelling demolition or removal of an encroachment, considering the various factors of the doctrine’s analysis….
“By ordering removal without conducting that analysis, the trial court applied an incorrect legal standard and abused its discretion.”
Urging an affirmance, Manhattan Beach attorney Craig B. Forey contended: “Appellants repeatedly argued the relative hardships doctrine in their trial briefs….
“However, the trial court’s findings of unclean hands and fraud by Appellants made the request for application of the relative hardships doctrine inapplicable, and under the evidence admitted during the trial, the denial of equitable relief was an appropriate and correct exercise of the trial court’s discretion.”
Edmon found DiJulio’s position to be the better reasoned one. She wrote:
“[T]he trial court abused its discretion by ordering Tliche and Martinez to remove the encroaching portion of their house because it indisputably was causing Duarte little or no harm and the cost of its removal was proportionately great. Further, because the location of the house makes it impossible for the parties to erect a new fence on the property line, we also reverse that aspect of the judgment. Finally, we conclude that the trial court erred by awarding Duarte emotional distress damages because that award was not supported by substantial evidence. We therefore reverse the judgment in part and remand for further proceedings.”
Edmon explained that the remand is “for the limited purpose of allowing the trial court to consider whether Duarte is entitled to damages to compensate him for the encroachment by Tliche and Martinez’s house.”
Emotional Distress Damages
Addressing the matter of damages for emotional distress, she said that assuming damages were awardable, substantial evidence did not support an award of $150,000.
DiJulio set forth:
“Plaintiff testified he moved out of the subject property in May 2021 due to an unrelated medical procedure and was no longer living there during the time of the alleged encroachment. He did not personally observe the wall’s construction, nor did he identify any specific interference with his use or enjoyment of the property after vacating. Because Plaintiff lacked possession during the relevant period, he was not legally entitled to emotional distress or annoyance damages. Any such award constitutes reversible legal error.”
Arguing to the contrary, Forey said in the respondent’s brief: “Duarte testified he experienced significant health problems in 2020, including open heart surgery that he was recovering from in early 2021. The trial court found that Tliche/Martinez intentionally built the cinder block wall on Duarte’s side of the property line, with knowledge of his recent heart surgery, and intentionally took advantage of the fact that Duarte was unwell and was not staying in his house while he recovered at his daughter’s house.”
Forey continued:
“Duarte testified that he experienced emotional stress caused by the conduct of Tliche/Martinez, including symptoms of depression, high blood pressure, and dizziness. Duarte was concerned about losing a portion of his property because of the location of the block wall constructed by Tliche/Martinez, and he saw different doctors regarding his emotional distress, about 10 to 15 times. Duarte was concerned about the safety of his tenants in the rental residence on his property due to the conduct of Tliche/Martinez.”
Award Not Supported
Edmon again agreed with DiJulio’s position, saying:
“As Tliche and Martinez note, there was no evidence that the wall interfered with Duarte’s use or enjoyment of his property by, for example, obstructing his access to his property or impairing any practical or aesthetic use. To the contrary. Duarte testified that he had no use for the strip of land on which Tliche and Martinez’s house and the block wall encroached. Further, although Duarte testified that the wall’s existence caused him physical symptoms of depression and high blood pressure, he did not testify to the length of time over which those symptoms allegedly persisted, nor did he submit any documentary evidence of his doctors’ visits from which that information could be gleaned. He also did not testify about what practitioners he saw or for what symptoms, and he made no effort to separate any symptoms that were caused by the building of the wall from those caused by his preexisting heart condition. There thus was no evidence from which the trial court could have put a value on the emotional distress Duarte claimed to have suffered.”
The case is Duarte v. Tliche, B343385.
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