Judge: Deirdre Hill, Case: 23TRCV00083, Date: 2023-03-28 Tentative Ruling

Case Number: 23TRCV00083    Hearing Date: March 28, 2023    Dept: M

Hearing Date:                         March 28, 2023

Moving Parties:                      Defendants Avana Rancho Palos Verdes and GSIC II Palos Verdes Owner, LP

Responding Party:                  None

Demurrer to Complaint

            The court considered the moving papers.

RULING

The demurrer to the complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

BACKGROUND

On January 13, 2023, plaintiff Elissa Riley (self-represented) filed a complaint against Avana Rancho Palos Verdes and GSIC II Palos Verdes Owner, LP for breach of contract and nuisance.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context.  Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

            Defendant GSIC II Palos Verdes Owner LP (erroneously sued as Avana Rancho Palos Verdes Apartments) demur to the complaint and each of the purported causes of action on the grounds that they fail to allege sufficient facts to constitute a cause of action and are uncertain.

            The court notes that the complaint is procedurally defective.  It does not comply with Cal. Rules of Court, 2.112, which states that “[e]ach separately stated cause of action . . . must specifically state:  (1) Its number (e.g., ‘first cause of action’); (2) Its nature (e.g., ‘for fraud’); . . . (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).  The purported causes of action are not numbered or state as to whom they are directed.  It is uncertain as to what causes of action plaintiff is asserting.  The caption states breach of contract and nuisance, but nuisance is not alleged in the body of the complaint as a separate cause of action.  Further, the complaint also refers to failure to disclose, emotional distress, and constructive eviction.

            Defendant demurs to the purported 1^st cause of action for breach of contract and purported 2^nd cause of action for nuisance, although as noted above, the causes of action are not numbered.  The court also notes that none of the paragraphs are numbered.

            The complaint alleges that she moved into the apartment on August 24, 2022, based on a lease agreement signed on August 22, 2022.  The noise nuisance was immediate.  Plaintiff shares a common wall with a mother and child who are making the noise.  The continuous noise started to interfere with plaintiff’s sleep and ability to operate plaintiff’s two businesses.  On October 5, 2022, plaintiff contacted the apartment manager to make known the nuisance problem.  On October 10, 2022, plaintiff emailed defendant regarding noise problems.  Defendant failed to disclose the noise nuisance, which it had prior knowledge of for many years.  At some point, defendant made known to the neighbor, producing the noise, about plaintiff’s concerns.  The neighbor confronted plaintiff.  At first, communication was cordial.  The neighbor explained that she raised her son in the apartment for ten years and that since he was nonverbal, he just made loud noise when he communicated.  The noise nuisance includes playing music, yelling, jumping on a trampoline on the second floor, and banging on walls and stumping on the floors.  In addition, there is a smoking problem that affects plaintiff’s health.  As the problem got worse, things became confrontational between plaintiff and the neighbor.  The apartment manager offered little or no resolution.  Plaintiff has suffered emotional distress and loss of income.  She withheld rent according to tenant rights but defendant’s letter campaign notices, demanding plaintiff to pay or quit is constructive eviction.

Cause of action for breach of contract

“To state a cause of action for breach of contract, [plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage.  (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290).   Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct.  If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.  (Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 59.)”  Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal. App. 3d 452, 458-59.  “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.”  Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239, 252.

Defendant argues that plaintiff fails to either attach a written copy of the lease agreement or allege the verbatim terms.  Defendant also notes that the complaint fails to plead specific allegations against each defendant.

The court finds that the allegations are insufficient to meet the elements for breach of contract and is uncertain as to what cause of action she is actually alleging, whether it is for breach of contract, breach of quiet enjoyment (which she refers to), or some other cause of action.

            Cause of action for nuisance

The elements of a claim for private nuisance are as follows:  “First, the plaintiff must prove an interference with his use and enjoyment of his property.  Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage.  Third, [t]he interference with the protected interest must not only be substantial, but 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.”  Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262-263 (citations omitted).  See also CACI 2021, which includes that plaintiff did not consent to defendant’s conduct.

            Defendant argues that plaintiff merely makes conclusory allegations as to all defendants without any factual specificity as to which defendant the cause of action is directed.  Defendant also asserts that the allegations are a series of vague and conclusory statements that do not provide defendants with a reasonable opportunity to respond, such as describing the “nuisance” or a duty of defendants.

            Although plaintiff appears to be alleging a noise nuisance, plaintiff alleges that it is caused by a neighbor.

            The court finds that the allegations are insufficient to meet the elements for nuisance as directed toward defendants.

            Moving defendant is ordered to give notice of ruling.