Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a dispute between neighbors.  Plaintiffs Michael and Ileane Brones own a property located at 10624 Chalon Road, Los Angeles, California (“Plaintiffs’ Property”).  Defendants Christopher and Margaret Forman (“Moving Defendants”) own the property located at 656 Siena Way, Los Angeles, California (“Forman Property”).  Defendant Brinell R. Gottlieb Trust¿owns the property located at 642 Siena Way, Los Angeles, California (the “Gottlieb Property”).   

The Forman Property and the Gottlieb Property are located on top of a hillside.  Plaintiffs’ Property is located down the hillside.  On February 4, 2024, after severe rains, the sloping hillside collapsed and damaged Plaintiffs’ Property.   

Plaintiffs claim the resulting damage to their property was due to the negligent maintenance of an outlet pipe system.  Rain and water on the Forman/Gottlieb Properties drain to an outlet pipe at the top of the slope directly above Plaintiffs’ Property.  Plaintiffs claim the water is then deposited down the slope creating erosion and making the hill unstable.  After years of this occurring, the hill was so eroded that when the rain fell on February 4, 2024, the hill failed and collapsed.   

Plaintiffs also claim that along the slope are various railroad ties belonging to the Gottlieb Property.  The railroad ties were not properly secured to the slope.  When the rainfall occurred, the ties broke free causing damage to Plaintiffs’ Property. 

Plaintiffs claim “Defendants maintained their properties in a dangerous and defective condition, including failing to maintain adequate or sufficient drainage systems, failing to dispose of water in such a way as to prevent the erosion of the slope and mudslide, and failing to install or maintain drainage control and protection such that Defendants’ properties could withstand the known and foreseeable rain events and the subsequent impact of such onto Plaintiffs’ property.”       

The operative complaint alleges five claims for (1) negligence, (2) dangerous condition of property, (3) private nuisance, (4) trespass and (5) negligent infliction of emotional distress (“NIED”). 

This hearing is on Moving Defendants’ demurrer.  Moving Defendants argue that Plaintiffs’ claim for dangerous condition of property fails as a matter of law because the claim is reserved for cases involving public property, and the claim is also duplicative of Plaintiffs’ other claims and does not add anything by way of fact or theory of recovery.  Moving Defendants also argue that Plaintiffs’ NIED claim fails because California does not allow an individual to recover damages for NIED when only property damage is involved as in the case here.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Moving Defendants submit the Declaration of Leah Beverly, which shows the parties met and conferred by telephone on June 11, 2024, more than five days before the demurrer was filed on July 1, 2024, thereby complying with the meet and confer requirements of §430.41.    

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

DISCUSSION 

 

The¿notice¿of¿demurrer¿does not set forth the grounds for the demurrer in separate¿paragraphs, nor does it explicitly identify the scope of the demurrer, as¿required¿by¿Rule 3.1320(a).¿ The purpose of this rule is to¿require¿a party to clearly¿itemize¿which¿grounds for¿demurrer¿are being raised¿as to¿which specific¿causes of action.  (See¿Weil & Brown,¿Cal. Prac. Guide: Civ. Proc. Before Trial¿(2020) ¶¶ 7:102-7:109.)  Notwithstanding, the omission of a specifically itemized demurrer does not appear to have hindered the Plaintiffs’ ability to draft a meaningful opposition.  Therefore, this Court exercises its discretion and overlooks this deficiency to reach the merits. 

Turning to the merits of the demurrer, Defendants argue that a claim for dangerous condition is limited to cases involving public property.  The Court agrees. 

A review of California cases related to dangerous condition of property indicates that the claim is limited to public property.  (See Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242; Avedon v. State of California (2010) 186 Cal.App.4th 1336.)  Here, there is no allegation that any public property is involved.  This case involves a dispute between neighbors, involving private property.   

Defendants also argue that Plaintiffs’ dangerous condition claim is duplicative of Plaintiffs’ other causes of actions.  The Court agrees.   

Plaintiffs’ dangerous condition claim is based on the same allegations as its negligence, nuisance and trespass claims.  The claim “adds nothing to the complaint by way of fact or theory of recovery.”  (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.)  Courts must sustain demurrers “as to duplicative causes of action.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 29; see also Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)  Accordingly, the Court sustains the demurrer to Plaintiffs’ dangerous condition claim.   

Defendants next argue that Plaintiff cannot sue for NIED in a case involving only property damage.  The Court agrees.   

The case of¿Cooper¿v.¿Superior Court¿(1984) 153 Cal.App.3d 1008¿states the law in California.  In that case, defendant’s tractor ran amuck and rolled into plaintiff’s house, causing serious damage to a part of the house where the children’s playroom was located.  Although neither plaintiff nor her children were at home at the time of the accident, she claimed emotional distress resulting from the discovery of the damage and the necessary relocation of her family to a hotel until repairs were completed.  The court specifically addressed the prospect of extending present law to allow for damages for emotional distress resulting solely from negligent injury to property.  It concluded: “No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort.  This case involves no preexisting relationship between the parties. Thus, we do not feel it appropriate to extend recovery for emotional distress here.” (Id. at 1012.) 

A review of the cases where recovery for emotional distress has been allowed in conjunction with injuries to property reveals that the types of preexisting relationships which give rise to a duty of care involve an aspect of trust and confidence.  (Sher v. Leiderman (1986) 181 Cal.App.3d 867, 883-884 (discussing cases).) 

Here, the parties have no contractual or trust¿relationship.  Plaintiffs argue that their long history as¿neighbors¿constitutes a¿preexisting relationship¿sufficient to except them from the law as stated in¿Cooper.¿ But the relationship between owners of adjoining lots is not the type of “preexisting relationship” contemplated in Cooper.   

Sher v. Leiderman is controlling.  There, plaintiff landowners sued defendant landowners for NIED.  Like Plaintiffs here, the plaintiff in Sher argued there was a pre-existing relationship because the parties were neighbors.  The Court of Appeals rejected that argument, concluding that “mere ownership of adjoining lots … does not give rise to the heightened duty of care such as was contemplated in Cooper[.]”  (Id.) 

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Moving Defendants’ demurrer to the claims for dangerous condition and NIED without leave to amend.   

 

DATED:  August 7, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court