Judge: Colin Leis, Case: 21AHCV00030, Date: 2022-08-18 Tentative Ruling

Case Number: 21AHCV00030    Hearing Date: August 18, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendants Edmund Louie and Deborah Kotani

RESPONDING PARTY:       Plaintiff James Cheung

Demurrer of Edmund Louie and Deborah Kotani to Plaintiff’s Second Amended Verified Complaint;

Motion of Edmund Louie and Deborah Kotani to Strike Second Amended Complaint

The court considered the moving papers, opposition, and reply filed in connection with these motions.

BACKGROUND

            This lawsuit concerns a boundary dispute between neighbors. Plaintiff James Cheung filed this action in October 2021 against Defendants Edmund Louie (“Louie”), Deborah Kotani (“Kotani”), and Old Republic Title Company. The operative Second Amended Complaint (“SAC”) was filed on June 9, 2022, and asserts causes of action for (1) declaratory and injunctive relief and (2) quiet title based on adverse possession.

Defendants demur to each cause of action on the basis that each fails to state facts sufficient to constitute a cause of action. Defendants also move to strike the SAC and certain allegations contained therein.

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

DISCUSSION

            On May 11, 2022, the court issued an order sustaining Defendants’ demurrer to Plaintiff’s First Amended Complaint. In the First Amended Complaint, Plaintiff asserted causes of action to (1) establish boundary and (2) quiet title, and for (3) injunctive relief and (4) damages to personal property. The court sustained the demurrer to the first, second, and third causes of action without leave to amend and sustained the demurrer to the fourth cause of action with leave to amend.

            “Following an order sustaining a demurrer … with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) The court did not authorize Plaintiff to amend his injunctive relief or quiet title causes of action, nor did the court authorize Plaintiff to add a cause of action for declaratory relief.

            Plaintiff contends that he has preserved his cause of action for property damages “in the

Cause of Action labeled 1(d).” (Opp’n, p. 2:26-28.) The cause of action labeled “1(d)” in the caption of the SAC provides: “Declaratory and Injunctive Relief Seeking Orders That: (D.) Declare that Defendants willfully and maliciously engaged in ‘Property Line Vigilante Rough Justice’ and destroyed portions of the permanent property boundary (that they admit is owned by Plaintiff as fixture) and thus Defendants should be liable for damages arising from their tortious acts of aggression.” In sustaining the demurrer to the cause of action for damage to personal property in the First Amended Complaint, the court found that Plaintiff could not claim the fence as his property because the FAC established that the fence was built on Defendants’ property. (See May 11, 2022 Order at p. 4 citing FAC ¶¶ 14, 19 & Exh C [2006 survey].)  During the hearing on the demurrer, Plaintiff asserted that he could amend to allege facts showing that he had an ownership interest in the hedge, and therefore, that Defendants were liable for damages for cutting the hedge. (See May 11, 2022 Order.) In the SAC, Plaintiff alleges (in what arguably amounts to a sham allegation) that “substantial and significant portions of [the] permanent boundary structure existed on Plaintiff’s property and should be considered a fixture owned by the Plaintiff.” (SAC, ¶ 21.) But as noted by Defendants, the “permanent boundary structure” (the fence and intertwined hedge) is on Defendants’ property, which is a judicial admission that Plaintiff cannot plead around. (See First Am. Compl., Ex. C.) Moreover, “[w]hen a person affixes his property to the land of another, without an agreement permitting him to remove it, the thing affixed, except as otherwise provided in this chapter, belongs to the owner of the land, unless he chooses to require the former to remove it or the former elects to exercise the right of removal provided for in Section 1013.5 of this chapter.” (Civ. Code, § 1013.) Therefore, the court finds that Plaintiff has failed to plead facts sufficient to constitute a claim for damage to the hedge.

CONCLUSION

Based on the foregoing, the court sustains Defendants’ demurrer to all causes of action of the SAC, without leave to amend. Defendants’ motion to strike is denied as moot.

The court orders Defendants to file and serve a proposed judgment of dismissal within 10 days of the date of this order.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 18, 2022

_____________________________

Colin Leis

Judge of the Superior Court