Judge: Armen Tamzarian, Case: 21STCV43425, Date: 2023-03-30 Tentative Ruling

Case Number: 21STCV43425    Hearing Date: March 30, 2023    Dept: 52

Cross-Defendant LA Solar Group, Inc.’s Demurrer and Motion to Strike Portions of Second Amended Cross-Complaint

Requests for Judicial Notice

            Cross-defendant LA Solar Group, Inc. requests judicial notice of three exhibits.  All three exhibits are court records subject to judicial notice under Evidence Code § 452(d)(1).  The requests for judicial notice are granted.

Demurrer

            Cross-defendant LA Solar Group, Inc. demurs to cross-complainant Rumina Balasanyan’s second amended cross-complaint based on the doctrine of res judicata.  The court sustained LA Solar Group’s demurrer to the initial cross-complaint and the first amended cross-complaint under that doctrine. 

The amendments in the second amended cross-complaint cure the defect.  Balasanyan now alleges cross-defendant refused to remove solar panels from Balasanyan’s home before and after the prior small claims action (SACC, ¶¶ 12, 13) and that failing to remove the solar panels is a “continuing trespass” (¶¶ 14-16).

Balasanyan alleges sufficient facts to constitute a continuing trespass permitting a successive action for new damages arising after her small claims action.  “Where continuing or recurring injury results from a wrongful act or from a condition wrongfully created and maintained, such as a continuing nuisance or trespass, there is not only a cause of action for the original wrong arising when the wrong is committed, but separate and successive causes of actions, for the consequential damages arise as and when such damages are from time to time sustained.”  (Kafka v. Bozio (1923) 191 Cal. 746, 751.) 

“Depending upon its nature, a nuisance is either permanent or continuing.  ‘A permanent nuisance is generally of a type where a single occurrence causes permanent injury, and damages are assessed once and for all.  But where the nuisance involves a use which may be discontinued at any time, it is characterized as a continuing nuisance.  The crucial test of a continuing nuisance is whether the offensive condition can be discontinued or abated at any time. “In case of doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing.” ’ ” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979.)  Under the “‘abatability test’ … a trespass or nuisance is continuing if it ‘can be remedied at a reasonable cost by reasonable means.’ ”  (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 609.)  

Balasanyan alleges an abatable—and therefore continuing—trespass.  Cross-complainant LA Solar Group installed a solar panel system on her roof.  Such a trespass could be remedied at reasonable cost by reasonable means.  Balasanyan alleges she ultimately “was able to find a contractor willing to remove the solar panels from the roof.”  (SACC, ¶ 13.)  The trespass thus was abatable and was abated.  

Balasanyan further alleges new damages arising from the trespass, which continued to accrue regularly until the trespass was abated.  She alleges she “has suffered and will continue to suffer damages, including but not limited to, the cost of the removal and storage of the solar panel system incurred after the small claims judgment, increased cost of repair of the roof and inside of the home resulting from the failure of cross-defendants to remove the solar panels when the demand was first made, the increased costs for substitute housing during the repair of the interior of the home, $5000.00 for the repair of the inside of the home not covered by insurance (the deductible) and storage costs for furniture while the inside of the home is being repaired.”  (SACC, ¶ 15.)  While the trespass persisted, she continued to incur greater costs for storing the panels, storing her furniture, paying for substitute housing, and repairing increasing damage to her home’s interior.  Res judicata therefore does not bar this cause of action for continuing trespass.

Motion to Strike

Cross-defendant LA Solar Group, Inc. moves to strike two portions of the second amended cross-complaint related to punitive damages.  Courts may strike allegations about punitive damages when punitive damages are unavailable as a matter of law or where the facts alleged fail to constitute oppression, fraud, or malice.  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164; see Civ. Code, § 3294(a).)  “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294(c)(1).)

The second amended cross-complaint alleges sufficient facts to constitute malice.  “[T]he words ‘wrongfully and intentionally’ … describe a knowing and deliberate state of mind from which a conscious, disregard of petitioner’s rights might be inferred—a state of mind which would sustain an award of punitive damages.”  (Perkins v. Superior Court (1981) 117 Cal.App.3d 1.)    

Balasanyan alleges more than mere conclusory allegations.  She alleges she “demanded on numerous occasions that cross-defendants remove the solar panel system from the roof so that roof repairs and repairs inside the Home could be made.”  (SACC, ¶ 12.)  She alleges that, “knowing the interior of interior of cross-complainant’s Home could not be repaired if the roof was not first repaired and further knowing the roof could not first be repaired without the removal of the solar panel system,” LA Solar Group “refused to remove the solar panel system in an attempt to coerce [her] to proceed forward with the Contract.”  (¶ 16.)  She thus alleges facts showing that LA Solar Group consciously disregarded her rights and intended to injure her as a tactic to pressure her to continue paying for the solar panels.

Disposition

            Cross-defendant LA Solar Group, Inc.’s demurrer to cross-complainant Rumina Balasanyan’s second amended cross-complaint is overruled.  Cross-defendant LA Solar Group, Inc.’s motion to strike portions of the second amended cross-complaint is denied.  Cross-defendant LA Solar Group, Inc. is ordered to answer within 20 days.