Judge: Colin Leis, Case: 21STCV41658, Date: 2022-10-17 Tentative Ruling

Case Number: 21STCV41658    Hearing Date: October 17, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT 

DEPARTMENT 3 

MOVING PARTY:                Defendants Essie Guyton and Jason Guyton 

RESPONDING PARTY:       Plaintiff Osbee Sangster

 Demurrer to First Amended Complaint; Motion to Strike 

The court considered the moving and opposition papers filed in connection with this motion.   

BACKGROUND

Defendants demur to Plaintiff’s first amended complaint (“FAC”). Defendants also move to strike certain portions of the FAC.

DISCUSSION

Motion to Strike 

The court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(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(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Id., § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) 

The court grants Defendants’ motion to strike the following parts of the FAC:

¿ Paragraph 4, page 2, line 9: “See Exhibits 1 to ---” with leave to amend based on uncertainty and Plaintiff’s failure to attach the exhibits to the FAC.

¿ Paragraph 16, page 3, line 24: “in the amount of $200,000” and paragraph 2 of the prayer on page 4, line 9, “for $200,000” , both with leave to amend, based on California Code of Civil Procedure § 425.10(b).

 ¿ Paragraph 18 in its entirety and paragraph 4 of the prayer in its entirety, both with leave to amend, because Plaintiff fails to allege punitive damages with sufficient factual specificity of malice, oppression, or fraud.

¿ Paragraph 8 of the prayer in its entirety, with leave to amend, because Plaintiff has failed to allege a basis for attorneys’ fees.

Demurrer

Defendants contend the FAC fails to allege facts sufficient to state a cause of action because Plaintiff alleges a prescriptive easement in an area fenced in by Plaintiff – thus making it an exclusive prescriptive easement tantamount to adverse possession – but Plaintiff does not allege the necessary elements for adverse possession.

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.) The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, a plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 28, 77 Cal.Rptr.2d 709, 715; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359, 108 Cal.Rptr.2d 788, 792.) A general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 C4th 992, 998, 89 CR3d 594, 599.)

Here, the FAC alleges, at a minimum, a cause of action for trespass (if not others as well.) The elements of trespass are: “(1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 as modified (Nov. 6, 2017).) The FAC alleges Defendants entered Plaintiff’s property without her consent, removed fencing, dug a trench, destroyed flowers, hauled away a substantial amount of dirt, poured concrete, and built a concrete block wall. (Compl. ¶ 4.) The FAC alleges facts sufficient to state a cause of action.

CONCLUSION

The court grants the motion to strike paragraph 4, page 2, line 9: “See Exhibits 1 to ---” with leave to amend; paragraph 16, page 3, line 24: “in the amount of $200,000” and paragraph 2 of the prayer on page 4, line 9, “for $200,000”, both with leave to amend; paragraph 18 in its entirety with leave to amend; paragraph 4 of the prayer in its entirety with leave to amend; and paragraph 8 of the prayer in its entirety with leave to amend.

The court overrules the demurrer to First Amended Complaint.

The court orders Defendants to file and serve their answer to the First Amended Complaint within 10 days of this order.  

Defendants are ordered to give notice of this ruling. 

IT IS SO ORDERED.   

DATED:  October 17, 2022 

_____________________________ 

Colin Leis 

Judge of the Superior Court