Judge: Curtis A. Kin, Case: 22STCV21561, Date: 2023-04-27 Tentative Ruling
Case Number: 22STCV21561 Hearing Date: April 27, 2023 Dept: 72
DEMURRER AND MOTION TO STRIKE
Date: 4/27/23
(9:30 AM)
Case: Steve Hoffman v. Charter
Communications, Inc. (22STCV21561)
TENTATIVE
RULING:
Defendant Spectrum Pacific West, LLC’s Demurrer to Complaint
is OVERRULED.
Defendant Spectrum Pacific West, LLC’s Motion to Strike
Portions of Complaint is GRANTED.
I.
DEMURRER TO COMPLAINT
A.
First Cause of Action: Trespass
With respect to the first cause of action for trespass, “[t]he
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.)
Defendant Spectrum Pacific West, LLC contends that plaintiff
cannot allege lack of permission because plaintiff Steve Hoffman, Trustee of the
Karl and Pearl Hoffman Family Trust, admitted during the meet and confer
process that defendant had permission to enter the subject property. (See
Joffe Decl. ¶ 4 & Ex. B [“Nothing in a service agreement, repair easement
or otherwise gives Spectrum the right to wrap its ugly wiring all around our
buildings”]. In a demurrer, the Court considers only the
four corners of the complaint, as well as matters that may be judicially
noticed, and assumes the truth of the allegations in the pleading. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff’s contentions during the meet
and confer process go beyond the four corners of the Complaint and are not
considered on demurrer. Defendant’s request for judicial notice of plaintiff’s purported
admission during the meet and confer process was improperly filed with the
reply. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446,
1453 [“Points raised for the first time in a reply brief will ordinarily not be
considered, because such consideration would deprive the respondent of an
opportunity to counter the argument”].)
Even if the Court were to consider plaintiff’s statement
during the meet and confer process, the Court recognizes plaintiff arguably
implied there was a service agreement. (See Joffe Decl. ¶ 4 & Ex. B
[“Nothing in a service agreement, repair easement or otherwise gives Spectrum
the right to wrap its ugly wiring all around our buildings”]. However, there is
no allegation or judicially noticeable fact concerning the scope of permission
allowed by the service agreement. Plaintiff sufficiently alleges that defendant
did not have permission to install Internet wiring and boxes outside the
subject apartment buildings. (Compl. ¶¶ 5, 9.) The scope of permission granted
by any service agreement is a factual question that is not resolved on
demurrer.
Defendant also argues that plaintiff does not allege
defendant substantially caused plaintiff’s injuries. However, plaintiff alleges
that defendant’s unpermitted installation of wiring and boxes outside the
apartment buildings has caused water intrusion damages. (Compl. ¶¶ 6, 10.)
Further, plaintiff alleges that the wiring and boxes prevent plaintiff from
painting the outside of the buildings and that the price of painting has
doubled in the past year. (Compl. ¶¶ 6, 10.) Plaintiff also alleges that the
wiring and boxes have reduced tenant curb appeal, from which it can be inferred
that plaintiff is not receiving rent income that plaintiff would have received
without the wiring and boxes. (Compl. ¶¶ 6, 10.) Plaintiff sufficiently alleges
that defendant’s installation of wiring and boxes was a substantial factor in
causing harm to plaintiff.
Contrary to defendant’s contention, even if plaintiff’s
allegations regarding damage to the façade and water intrusion pertain to a
habitability claim, this would not render the trespass claim uncertain. “Pleading
of alternative theories of relief on the same set of facts is, of course, quite
proper….” (Gebert v. Yank (1985) 172 Cal.App.3d 544, 554.)
The demurrer to the first cause of action is OVERRULED.
B.
Second Cause of Action: Nuisance
Plaintiff maintains that he has alleged a private nuisance.
(See Opp. at 8:16-21 [citing to elements of private nuisance from San
Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893].) “The
elements of a private nuisance cause of action are as follows: “First, the
plaintiff must prove an interference with his use and enjoyment of its
property. Second, the invasion of the plaintiff's interest in the use and
enjoyment of the land must be substantial, i.e., it caused the plaintiff to
suffer substantial actual damage. Third, the interference with the protected
interest must not only be substantial, it must also be unreasonable, i.e., it
must be of such a nature, duration, or amount as to constitute unreasonable interference
with the use and enjoyment of the land.” (Today's IV, Inc. v. Los Angeles
County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137,
1176, citing San Diego Gas, 13 Cal.4th at 938.)
Defendant contends that plaintiff admitted he did not
consent to defendant’s actions. (CACI 2021(6).) For the same reasons discussed
with respect to the trespass cause of action, defendant’s contention is without
merit.
Defendant also contends that plaintiff fails to allege that
the interference was substantial and unreasonable. “With respect to the
substantial damage element, the degree of harm is to be measured by the effect
the invasion would have on persons of normal health and sensibilities living in
the same community.” (Today's IV, 83 Cal.App.5th at 1176.) Plaintiff
alleges that defendant’s installation of wiring and boxes has damaged the façade
of and caused water intrusion in the apartment buildings. The question of
whether such intrusion is substantial is a factual question that is not resolved
on demurrer.
“With respect to the unreasonableness element, the primary
test for determining whether the invasion is unreasonable is whether the
gravity of the harm outweighs the social utility of the defendant's conduct,
taking a number of factors into account.” (Today's IV, 83 Cal.App.5th at
1176.) As alleged, plaintiff alleges that the harm caused by the wiring and
boxes outside the apartment buildings outweighs the social utility that
defendant’s Internet services provides, especially since the same Internet
services can be provided if defendant installed the wiring and boxes
underground. (Compl. ¶ 20.)
Defendant also maintains that plaintiff cannot base the
nuisance cause of action on a trespass.
A private nuisance is an interference with the private use
and enjoyment of land. (San Diego Gas & Electric Co. v. Superior Court
(1996) 13 Cal.4th 893, 937.) However, defendant does not cite any authority
indicating that trespass and nuisance are necessarily mutually exclusive. That is, defendant cites no authority
indicating that physical invasions cannot be nuisances, if such invasions
interfere with plaintiff’s use and enjoyment of land. (See id. [“In
distinction to trespass, liability for nuisance does not require proof of
damage to the plaintiff's property; proof of interference with the plaintiff's
use and enjoyment of that property is sufficient”].) Here, plaintiff alleges
that the wiring and boxes are preventing him from painting the exterior of the
apartment buildings.
Because the second cause of action is based on the
interference with the use and enjoyment of land, as opposed to invasion of
exclusive possession that is involved in a trespass (see Wilson v. Interlake
Steel Co. (1982) 32 Cal.3d 229, 233), the second cause of action is not necessarily
duplicative of the first. (Gebert, 172 Cal.App.3d at 554 [pleading
alternative theories of relief is proper].)
The demurrer to the second cause of action is OVERRULED.
II.
MOTION TO STRIKE PORTIONS OF COMPLAINT
Defendant Spectrum Pacific West,
LLC moves to strike allegations supporting and the prayer for punitive damages.
Plaintiff sufficiently alleges that defendant ignored
plaintiff’s apartment manager’s repeated requests to remove the Internet wiring
and boxes, but defendants have ignored the requests. (Compl. ¶¶ 5, 9. 12.)
Plaintiff’s allegations rise to the level of malice or oppression. (Civ. Code § 3294(a);
3294(c)(1) [“malice” defined as “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”]; 3294(c)(2) [“oppression” defined as “despicable conduct that subjects
a person to cruel and unjust hardship in conscious disregard of that person’s
rights”].)
Defendant argues that plaintiff
does not allege the wrongful conduct of defendant’s managing agent. Where a corporate
defendant moves to strike a prayer for punitive damages, the motion must be
granted unless the plaintiff has pleaded “that acts of employees of defendant
corporation were done with the knowledge or under the express direction or
ratification of an officer, director or managing agent of the corporation so as
to justify exemplary damages against the corporation.” (Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614; see also
Civ. Code § 3294(b).)
Plaintiff is not necessarily required to identify an officer, director, or
managing agent or plead specific facts of that individual at the pleading
stage. However, plaintiff does not allege any involvement of an officer,
director, or managing agent in directing or ratifying the actions of the corporation,
even generally.
The motion to strike is GRANTED.
Ten (10) days to amend.