Judge: Colin Leis, Case: 21AHCV00030, Date: 2022-09-26 Tentative Ruling

Case Number: 21AHCV00030    Hearing Date: September 26, 2022    Dept: 3

Superior Court of California

County of Los Angeles – NORTHEAST District

Department 3

BACKGROUND

            On August 18, 2022, the court issued an order sustaining the demurrer by Defendants Edmund Louie and Deborah Kotani to the Second Amended Complaint (“SAC”) by Plaintiff James Cheung, without leave to amend. Among other things, the court found that Plaintiff had failed to allege a cause of action for damage to personal property, and specifically, damage to the hedge that is affixed along the length of the wooden fence at the center of this dispute.

The court issued an order to show cause regarding whether the court should reconsider the portion of its ruling with respect to the personal property claim in light of the fact that, in Defendants’ cross-complaint, Defendants allege that a portion of the hedge is Plaintiff’s property (Cross-Compl., ¶¶ 21, 27) and the fact that Plaintiff alleges that a portion of the hedge lies on his side of the surveyed property line. The parties have filed responsive briefs setting forth their respective positions, and the court considers them as set forth below.

DISCUSSION

Defendants argue that Plaintiff has failed to allege a claim for property damage simply because it is not properly captioned as such. But a general demurrer should never be sustained if a pleading states a cause of action on any theory. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870–871.) If the facts pleaded will support any legal theory of recovery, it is immaterial that the plaintiff may have misconceived the theory of his cause of action. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103; see also Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 (“[T]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called.”).)

Next, Defendants contend that there can be no damage to personal property claim because Plaintiff admits that Defendants trimmed the portion of the hedge that was on Defendants’ side of the property line. But Defendants do not cite to the portion of the SAC, or any pleading, where this allegation is made. In the SAC, Plaintiff alleges that Defendants “destroyed portions of the permanent property boundary (that they admit is owned by Plaintiff) and thus Defendants should be liable for damages arising from their tortious acts of aggression.” (SAC, ¶ 20e.) Plaintiff also alleges that Defendants engaged in the “unilateral removal of the permanent boundary fence” and the “unpermitted trimming and cutting of Plaintiff’s border hedge….” (SAC, ¶ 24.) Reading these allegations liberally, as the court must, it can be inferred that some portion of the hedge that was on Plaintiff’s side of the property line was destroyed by Defendants.

Lastly, Defendants argue that the SAC should be stricken because it was untimely filed. Nevertheless, the court exercises its discretion to deny the motion to strike. (Code Civ. Proc., § 576.) The court does not find that Defendants were or have been prejudiced by the late filing.  

CONCLUSION

Based on the foregoing, the court vacates the August 18, 2022 order sustaining Defendants’ demurrer without leave to amend. The court orders that the demurrer to Plaintiff’s cause of action for damages to personal property is overruled. The demurrer to all remaining causes of action is sustained, without leave to amend.

The court orders Defendants to file and serve an answer within 10 days of the date of this order.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 26, 2022

_____________________________

Colin Leis

Judge of the Superior Court