Judge: Andrew E. Cooper, Case: 23CHCV01170, Date: 2023-12-15 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F51, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2251.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV01170    Hearing Date: December 15, 2023    Dept: F51

DEMURRER

Demurrer Filed: 9/13/23

MOVING PARTY: Defendants Janet Gomez; Ezequiel Vazquez, aka Ezequiel Gomez Vazquez; and GV Trucking Services, Inc. (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff County of Los Angeles and the People of the State of California (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendants demur against Plaintiff’s entire complaint.

TENTATIVE RULING: The demurrer is overruled. Defendants to file their answer to Plaintiff’s complaint within 30 days.

BACKGROUND 

This is a nuisance action brought by Plaintiff, the County of Los Angeles, on behalf of itself and the public, against Defendants, who own and operate certain real property located at 13025 Sierra Highway, Santa Clarita, CA 91390 and 13036 Chrisco Street, Santa Clarita, CA 91390. Plaintiff alleges that it has received numerous neighbor complaints, corroborated through its own investigations, that Defendants have continuously maintained public nuisance conditions at the subject property in violation of County ordinances, including unpermitted building alterations, unpermitted grading, unpermitted diesel tank, and zoning code violations of conducting an unpermitted trucking business at the subject property.

On 4/21/23, Plaintiff filed its complaint against Defendants, seeking declaratory, injunctive, and equitable relief based on the following causes of action: (1) Los Angeles County Code Violations; (2) Public Nuisance; and (3) Unlawful Business Practices.

On 9/13/23, Defendants filed the instant demurrer. On 12/4/23, Plaintiff filed its opposition. On 12/8/23, Defendants filed their reply.

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ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendants demur to Plaintiff’s entire complaint on the bases that “each cause of action is patently defective and uncertain, as plaintiffs base each flawed cause of action on misstatements of fact, applicable law, statutes, codes, and regulations that are supported with inadmissible hearsay conclusions and accusations by plaintiffs that lack the legal capacity and standing to jointly sue defendants.” (Dem. 4:11–16.)

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) “If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Id. at subd. (a)(2).)

Here, Defendants’ counsel declares that on 8/8/23, he sent Plaintiff’s counsel a letter in an attempt to meet and confer regarding the issues raised in the instant demurrer, and additionally tried to telephone Plaintiff’s counsel, but received no response. (8/14/23 Decl. of Gerald N. Silver ¶ 2.) Counsel subsequently filed his declaration in support of an automatic extension. Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Standing

As a preliminary matter, Defendants argue that there is a “misjoinder of parties” necessitating the instant demurrer. (Code Civ. Proc. § 430.10, subd. (d).) Specifically, Defendants assert that “plaintiffs contend that the County of Los Angeles and the State of California are empowered to have the Los Angeles County Counsel to prosecute the entire action, however they cannot be lawfully joined plaintiffs.” (Dem. 4:23–26.)

 “A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists.” (Code Civ. Proc. § 731.) Business and Professions Code section 17204 authorizes “county counsel of any county within which a city has a population in excess of 750,000” to bring an action for violation of Business and Professions Code section 17200 et seq. (the “UCL”).

Here, Plaintiff, represented by County counsel, alleges in its complaint that “Office of the Los Angeles County Counsel hereby prosecutes this action on behalf of the People of the State of California pursuant to Code of Civil Procedure section 731 and Business & Profession Code §§17204, 17206 and 17207.” (Compl. ¶ 3.) The Court notes that Defendants cite to no legal authority challenging the lawfulness of the cited statutes permitting Plaintiff to bring the instant action on behalf of the public. Accordingly, the demurrer is overruled to the extent that Defendants argue a misjoinder of parties.

C.    Los Angeles County Code Violations

Plaintiff’s first cause of action alleges that Defendants violated Los Angeles County Code sections 1.23.010 et seq. The relevant code sections prohibit persons from causing or maintaining public nuisances, which include, inter alia, unlawful construction and operating tank vehicles without an operational permit. (Compl. ¶¶ 44–53.) Plaintiff alleges that “the conditions at the Subject Property, as described herein, constitute an active and continuing public nuisance, and that each day the violations exist constitutes a new and separate violation. Defendants, and each of them, have maintained and are maintaining the Subject Property in violation of the Los Angeles County Building, Zoning and Fire Codes including but not limited to the violations described herein above.” (Id. at ¶ 54.)

Here, Defendants argue that “Plaintiffs have not come close to pleading the requisite element of irreparable injury and damage to the County and its residents.” (Dem. 6:18–20.) However, the Court observes that Plaintiff alleges this element in paragraph 59 of the complaint. (Compl. ¶ 59 “The County has no other adequate remedy other than the equitable relief sought herein. Absent the relief requested herein, the County and its residents will be irreparably injured and damaged in that the maintenance of the public nuisance by Defendants threatens the public health, safety, and general welfare.”)

Based on the foregoing, the Court agrees with Plaintiff that “the Complaint explains that the County has declared that ‘any condition on a property that is maintained in violation of any provision of Title 7 through 32 of this code shall be deemed unlawful and a public nuisance and may be abated as such.’ (Complaint ¶44; LACC §1.23.040.) The Complaint further identifies no less than 11 violations of the LACC at the Subject property. (Complaint ¶ 20, 25, 36.)” (Pl.’s Opp. 10:7–11.) Accordingly, the Court finds that Plaintiff has sufficiently alleged facts to support a cause of action for Los Angeles County Code Violations, and the demurrer is overruled as to Plaintiff’s first cause of action.

D.    Public Nuisance

Plaintiff’s second cause of action alleges against Defendants a public nuisance. Public nuisances are “substantial and unreasonable” “offenses against, or interferences with, the exercise of rights common to the public.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) “The concept of a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1206.) “For nuisances per se, no proof is required, beyond the actual fact of their existence, to establish the nuisance. No ill effects need be proved.” (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1166 [internal quotations omitted].)

Here, Defendants assert that “Plaintiffs have not sufficiently plead even one of the necessary elements for any public nuisance claim that must be pled with specificity and particularity.” (Dem. 7:12–15.) Defendants further argue that “Plaintiffs cannot overcome that the alleged public nuisance were not all made by defendants, and each of them, but by prior owners of the subject property.” (Id. at 7:3–5.)

Plaintiff argues in opposition that it has sufficiently alleged a nuisance per se because “the Complaint alleges the existence of a multitude of County code violations and substandard conditions, including unpermitted grading work, unpermitted construction, unpermitted electrical and mechanical work, unpermitted use or storage of flammable liquids, unpermitted use of the Subject Property (all conditions declared to be nuisance by the LACC).” (Pl.’s Opp. 11:14–17, citing Compl. ¶¶ 11–42.)

The Court agrees and finds that Plaintiff’s factual allegations are sufficient to support a cause of action for a public nuisance per se. Additionally, the Court notes that Defendants cite to no legal authority supporting a heightened pleading standard for a nuisance cause of action. Accordingly, the demurrer to Plaintiff’s second cause of action is overruled. The Court notes Defendants’ arguments as to the merits of the Plaintiff’s factual allegations but declines to reach them as they are not appropriate for resolution at the demurrer stage.

E.     Unlawful Business Practices

Plaintiff’s third cause of action alleges that Defendants engaged in Unlawful Business Practices in violation of the UCL. To set forth this cause of action, a plaintiff must establish that the defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.)

“In essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder.” (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) A plaintiff alleging an “unfair” business practice under the UCL must show that the defendant's conduct is “tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law or violates the policy or spirit of an antitrust law.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) “‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘are likely to be deceived.’” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.)

Here, Plaintiff alleges that Defendants engaged in unfair business practices under the UCL because “Defendants have violated and continue to violate the County Codes, referenced herein, … by establishing, maintaining, and/or operating an unpermitted and unlawful commercial trucking business or activity on the Subject Property. Further, Defendants violated and continue to violate the County Codes, referenced herein, … by renting, leasing, and/or permitting the use of the Subject Property for unpermitted and unlawful commercial business and/or activity.” (Compl. ¶ 75.)

Defendants argue on demurrer that “Plaintiffs have not alleged how defendants, and each of them, specifically acted with unfair business practices to harm plaintiffs.” (Dem. 7:24–25.) In opposition, Plaintiff argues that “Defendants as the responsible persons, as fully outlined in the Complaint, are liable for the maintenance of the unlawful conditions identified in the Complaint.” (Pl.’s Opp. 10:15–17, citing Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 622 [the duty to maintain the safety of a premises stems from a landowner’s possession and control of the land in question].)

Based on the foregoing, the Court finds that Plaintiff has sufficiently alleged a violation of the UCL under the “unlawful” prong thereof, by alleging that Defendants violated various County Codes. Accordingly, the demurrer to Plaintiff’s third cause of action is overruled.

F.     Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

Here, Defendants argue that “each of the plaintiffs’ attempted causes of action contain material allegations that are insufficient and uncertain, as to the alleged parties, capacity, standing, events, incidents, inspections, notice, liability, duties, obligations, rights, acts, conduct, violations, causation, applicable statutes, and damages.” (Dem. 2:5–8.) “It is particularly unclear and uncertain in regard to any lawful relationship, duty, and/or obligation, if any exists between plaintiffs and defendants, and each of them.” (Id. at 8:18–20.)

Plaintiff asserts in opposition that “the Complaint very specifically alleges (1) that the conditions and uses of the Subject Property have violated numerous requirements of the LACC, describing the conditions and specifying the Code Violations involved; (2) that both State and County law authorizes the County to declare illegal conditions and uses such as those identified as ‘public nuisances’ and take actions to abate them; (3) that Defendants either own or otherwise have an interest in the Subject Property, making them legally responsible for ensuring that the Subject Property complies with the applicable Code requirements; (4) that the Plaintiffs have given Defendants numerous opportunities to address the illegal conditions and bring the Subject Property into compliance; but (5) that Defendants have done nothing to comply or to abate the nuisance conditions at the Subject Property.” (Pl.’s Opp. 8:7–16.)

In applying the stringent standard for demurrers filed on this ground, the Court finds that Plaintiff’s complaint is not “so incomprehensible” that Defendants cannot respond to it. As Plaintiff contends, “here, the Complaint alleges that Defendants maintained and failed to abate the violations on the Subject Property with clear and detailed descriptions of the violations. Because these allegations are neither uncertain nor unclear, Defendants are hard-pressed to argue that the Complaint is so confusing that they are unable to adequately respond to it.” (Id. at 13:15–18.) Even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Accordingly, the demurrer is overruled on this basis.

CONCLUSION 

The demurrer is overruled. Defendants to file their answer to Plaintiff’s complaint within 30 days.