Judge: Craig Griffin, Case: "Jones vs. Lyon Management Group, Inc.", Date: 2022-11-21 Tentative Ruling
Demurrer
The Demurrer to Complaint by Defendants Lyon Management Group, Inc. and Monarch Coast I Owner, LLC is SUSTAINED in part without leave to amend.
Defendant demurs to the 3rd COA for nuisance on the ground that it is redundant of the 1st COA for negligence and, alternatively, that it is uncertain for want of allegations distinct from the alleged 1st COA for Negligence.
A demurrer should be sustained where the Complaint pleads two causes of action that are merely duplicative of one another and which adds nothing to the Complaint by way of fact or theory. (Awards Metals, Inc. v. Superior Court, 228 Cal.App 3d 1128, 1135.)
Here, Defendants argue that Plaintiffs’ allegations of nuisance mirror their allegations of negligence citing El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.
In Opposition, Plaintiffs argue that causes of action for negligence and nuisance are separate and distinct. However, Plaintiffs fail to address El Escorial Owners Association, which is on point.
The El Escorial Owners Association court held that because of the broad definition of nuisance, whether a cause of action is viable depends on the facts of each case. A cause of action alleging a continuing nuisance is usually accompanied by a request for an injunction. A nuisance cause of action pleaded in a complaint not requesting an injunction but seeking only damages renders a nuisance cause of action as a negligent cause of action. (El Escorial, supra, at 1349.)
Where negligent and nuisance causes of action rely on the same facts about lack of due care, a nuisance claim is a negligence claim. A complaint setting forth a nuisance cause of action which merely incorporates by reference the facts contained in a negligence cause of action is deemed ‘… merely a clone of the first cause of action using a different label’. In construction defect cases, a negligence claim presented in the garb of nuisance need not be considered apart from the negligence claim. (Id at 1349.)
Here, the claims are based on the same facts. No injunction is sought as to any future conduct. Thus, based on El Escorial, the Demurrer is SUSTAINED without leave to amend.
Defendants to file an Answer within 15 days.
Defendants to give notice.
Motion to Strike
The Motion to Strike Portions of Complaint by Defendants Lyon Management Group, Inc. and Monarch Coast I Owner, LLC is DENIED.
A court may strike out any irrelevant, false or improper matter inserted in any pleading or strike out 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. CCP § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. CCP § 431.10(b).
Further, PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 provides that motion to strike may challenge portions of causes of action or where a complaint fails to state particular facts, and its use “should be cautious and sparing” so as not to create a “procedural ‘line item veto’ for the civil defendant.”
Here, Defendants move to strike portions of Para. 33 of the Complaint. Defendants argue that the allegations for fraud/deceit have not been sufficiently stated.
In Opposition, Plaintiffs argue that they are not bringing any fraud/deceit causes of action. However, the language sought to be stricken goes towards each element of a cause of action for premises liability/negligence.
The motion to strike is DENIED as Plaintiffs have sufficiently shown that the language is used to support their first cause of action for negligence.
Defendants to file an Answer within 15 days.
Defendants to give notice.