Judge: Andrew E. Cooper, Case: 23CHCV01350, Date: 2024-01-10 Tentative Ruling

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Case Number: 23CHCV01350    Hearing Date: January 10, 2024    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer with Motion to Strike Filed: 10/26/23

MOVING PARTY: Defendants Jose Zamora and Brenda Valadez (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff Eric Beebe (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: Moving Defendants demur the second cause of action for public nuisance. Moving Defendants also move to strike attorney fees and punitive damages allegations in the Complaint.

TENTATIVE RULING: The demurrer is OVERRULED. The motion to strike is DENIED IN PART and GRANTED IN PART as follows. The request to strike Paragraphs 12, 18, 20, 26, and Plaintiff’s Prayer, ¶ 5, “For punitive damages,” is denied. The request to strike Plaintiff’s Prayer, ¶ 4, “For attorney’s fees,” is granted. Moving Defendants shall file and serve an answer to Plaintiff’s complaint within 30 days.

BACKGROUND 

This is a nuisance action. Plaintiff alleges that the defendants are his neighbors. (Compl., ¶¶ 7, 8.) Ever since the defendants moved into their property, they have generated loud noise that grossly interferes with Plaintiff’s use of his property and the quiet enjoyment of the entire neighborhood. (Compl., ¶¶ 9, 28.) As a result of the defendants’ noise, Plaintiff suffered a unique and special injury, specifically, the inability to use a portion of his own home, inability to sleep in his bedroom at night, and loss of income. (Compl., ¶ 29.)

On 10/26/23, Moving Defendants filed the instant demurrer and motion to strike. On 12/27/23, Plaintiff filed his oppositions to the demurrer and motion to strike. On 1/2/4, Moving Defendants filed their replies to the oppositions.

DEMURRER

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, Moving Defendants demur the second cause of action for public nuisance, arguing that it fails to state facts sufficient to constitute a cause of action.

A.    Meet-and-Confer 

Defense counsel testifies that on or about October 20, 2023, he called Plaintiff’s counsel to discuss the demurrer and motion to strike. (Declaration of Daniel Ip ¶ 2.) When Plaintiff’s counsel did not pick up the phone, defense counsel left a voicemail and sent a meet and confer email the same day. (Ibid.) Defense counsel did not receive any response from Plaintiff’s counsel. (Ibid.)

The Court finds that the Moving Defendants have satisfied the meet and confer requirement.

B.     Public Nuisance

Moving Defendants demur the second cause of action for public nuisance, arguing that Plaintiff has not alleged facts sufficient to show that the alleged noise caused him to suffer harm that is of a character different kind than that suffered by the rest of the neighborhood.

In opposition, Plaintiff argues (among other things) that he adequately alleged an injury that is different in kind by alleging that the defendants’ noise caused him the inability to use a portion of his own home and incur a loss of income. According to Plaintiff, “it is not a natural consequence for the general public to incur ‘loss of income’ due to noise intrusion.” (Opposition, p. 2:12-15.)

In reply, Moving Defendants agree that loss of income “is not a natural consequence for the general public … due to noise intrusion,” but confusingly argue that injury is not actionable as a public nuisance because of that reason. (Reply, pp. 1:27-2:1 [“Plaintiff’s loss of income would be insufficient as a special injury to warrant a public nuisance claim since it is generally not of the type of harm suffered while exercising the right common to the general public”].) They add that even if Plaintiff’s alleged inability to sleep and use a portion of his home was a type of harm suffered by the general public, that harm is not actionable because Plaintiff can only maintain a claim for public nuisance only if the injury differs in kind and not just in degree. (Reply, p. 2:22-23.)

Civil Code “[s]ection 3479 defines a ‘nuisance’ as ‘[a]nything which is injurious to health, ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’” (Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 324 (“Hacala”).)

“Section 3480 defines a ‘public nuisance’ as a nuisance ‘which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’” (Hacala, supra, 90 Cal.App.5th at p. 324.) “‘“The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life which the courts have vindicated by equitable remedies since the beginning of the 16th century.” [Citation.] “To qualify, and thus be enjoinable, the interference [with collective social interests] must be both substantial and unreasonable.... ‘“... It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together.”’”’ [Citations.]” (Ibid. [italics removed].)

 “Under [Civil Code] section 3493, ‘[a] private person may maintain an action for a public nuisance, if it is specially injurious to himself [or herself], but not otherwise.’” (Hacala, supra, 90 Cal.App.5th at p. 324.)

The special injury must be “of a character different in kind—not merely in degree—from that suffered by the general public.” (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 20; Civ. Code, § 3493; Department of Fish & Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352 [explaining that “[t]he elements of a public nuisance, under the circumstances of [a] case, [are] as follows: (1) the [alleged nuisance] obstructed the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) the [nuisance] affected a substantial number of people; (3) an ordinary person would be unreasonably annoyed or disturbed by the [nuisance]; (4) the seriousness of the harm occasioned by the [nuisance] outweighed its social utility; (5) plaintiffs did not consent to the [nuisance]; (6) plaintiffs suffered harm as a result of the [nuisance] that was different from the type of harm suffered by the general public; and (7) the [nuisance] was a substantial factor in causing plaintiffs’ harm” (emphasis added)].)

Here, the Court agrees with Moving Defendants that the inability to use a portion of one’s home or sleep at night due to noise is not an injury that is of a character different in kind from that suffered by the general public. It is reasonable to expect that loud noise would prevent the public from sleeping at night and deter them from using a portion of their homes.

However, loss of income is a special injury that is of a character different in kind, not merely in degree, from that suffered by the general public. Indeed, it is not expected that loud noise would lead the general public to lose income. In their reply, Moving Defendants concede this by agreeing that Plaintiff’s loss of income is generally not of the type of harm suffered by the general public.

Accordingly, the demurrer to the second cause of action for public nuisance is overruled.

MOTION TO STRIKE

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

A.    Punitive Damages and Attorney’s Fees Allegations

Moving Defendants move to strike the following portions of the Complaint.

1.      Paragraph 12, Furthermore, when Defendants generate the same type of noise in the morning and upon being openly requested by Plaintiff to stop being so loud, Defendants will routinely respond with gesture of foul language and then generate even louder noise intentionally to spite Plaintiff.

2.      Paragraph 18, However, instead of abating the problem, Defendants simply gestured Plaintiff with a sign of foul language, yelled out they would continue to be loud and then intensified the noise level.

3.      Paragraph 20, By and through their action and threats, Defendants have indicated to Plaintiff that they will not abate the nuisance but instead will continue to maintain the nuisance to spite or harm Plaintiff unless the court specifically restrains them from doing the same.

4.      Paragraph 26, In maintaining the nuisance, Defendants are acting with full knowledge of the consequences and damage being causaed [sic] to plaintiff, and their conduct is willful, oppressive and damge [sic] being caused to plaintiff, and their conduct is willful, opporessive [sic] and malicious; accordingly, plaintiff is entitled to punitive damages against Defendant.

5.      Plaintiff’s Prayer, ¶ 4, “For attorney’s fees.”

6.      Plaintiff’s Prayer, ¶ 5, “For punitive damages.”

(Notice of Motion to Strike, p. 2:1-18.)

            The Court does not find anything improper with Paragraphs 12, 18, and 20 above. Plaintiff is merely describing the Moving Defendants’ alleged conduct in those paragraphs.

Accordingly, the request to strike Paragraphs 12, 18, and 20 in the Complaint is denied.

Plaintiff states in his opposition that he withdraws his request for attorney’s fees for now. (Opposition to Motion to Strike, p. 1:19-23; Hom v. Petrou (2021) 67 Cal.App.5th 459, 464 [“‘A party may not recover attorney fees unless expressly authorized by statute or contract. [Citations.] In the absence of a statute authorizing the recovery of attorney fees, the parties may agree on whether and how to allocate attorney fees. [Citations.]…. The parties may agree to award attorney fees on claims sounding in both contract and tort.’ [Citation]”]; Motion, pp. 1:26 -2:3 [arguing (among other things) that Plaintiff’s prayer for attorney’s fees is improper because (1) the Complaint does not allege any contractual or statutory basis for the fees and (2) although  Civil Code section 3496 would allow recovery of such fees, the statute is inapplicable here because the action is not brought by a governmental agency].)

The request to strike Plaintiff’s Prayer, ¶ 4, “For attorney’s fees,” is granted.

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 (“Turman”).)

The Complaint alleges the following. The defendants “have routinely, continuously, and unreasonably generated an extreme level of loud noise and music that grossly interfer [sic] with Plaintiff’s use of his home and in fact force him to abandon a good part thereof.” (Compl., ¶ 14.) “Such extreme loud noise include but is not limited to the playing of extremely loud music well beyond the midnight hours.” (Compl., ¶ 15.) “Plaintiff requested Defendants to stop generating such unreasonable level of noise. Plaintiff also informed Defendants that their actions had caused Plaintiff damages that included his not being able to use a good portion of his own home as well as his inability to sleep in his own bedroom.” (Compl., ¶ 17.) “However, instead of abating the problem, Defendants simply gestured Plaintiff with a sign of foul language, yelled out they would continue to be loud and then intensified the noise.” (Compl., ¶ 18.)

The Court finds the above allegations support Plaintiff’s request for punitive damages by showing an intentionally maintained nuisance.

 Accordingly, the request to strike Paragraph 26 and the prayer for punitive damages in the Complaint is denied. 

CONCLUSION 

The demurrer is OVERRULED.

The motion to strike is DENIED IN PART and GRANTED IN PART as follows. The request to strike Paragraphs 12, 18, 20, 26, and Plaintiff’s Prayer, ¶ 5, “For punitive damages,” is DENIED. The request to strike Plaintiff’s Prayer, ¶ 4, “For attorney’s fees,” is GRANTED.