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 (“Brones Property”).  Defendants Christopher and Margaret Forman 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.  The Brones Property is located down the hillside.  On February 4, 2024, after severe rains, the sloping hillside collapsed and damaged the Brones Property.   

The Broneses 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 the Brones’ Property.  Broneses 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.   

The Broneses claim “[the Formans and Gottliebs] 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 [the Formans and Gottliebs’] properties could withstand the known and foreseeable rain events and the subsequent impact of such onto [the Brones] property.”       

The Broneses’ 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”). 

The Formans countersued, alleging the landslide was caused by the Broneses and the Gottliebs.  The Formans claim that the Broneses “created or maintained, or both, an oversteepened, unshored and unstable slope.  This unstable and oversteepened slope on the Brones Property failed in a rainstorm which undermined the upslope Gottlieb and Forman properties and brought dirt from those properties to slide down onto the Brones Property.”  The Formans also claim the “Gottlieb Property permitted (and is still permitting) uncontrolled drainage which undermined the slope on which the Forman Property sits.”   

The cross-complaint alleges five claims for (1) deprivation of lateral and subjacent support, (2) nuisance, (3) negligence, (4) implied indemnity and (5) comparative equitable indemnity.   

This hearing is on the Broneses’ demurrer to the Formans’ cross-complaint.  The Broneses argue (1) the Formans’ claim for deprivation of lateral and adjacent support does not sufficiently allege any conduct which could have caused withdrawal of support and/or that resulted in deprivation of lateral support; (2) the claim for nuisance fails because it is devoid of details or allegations as to how, when, where and by what means the Brones have taken actions which pose an unreasonable hazard to the Forman Property, have obstructed the Formans’ free use of their property, and have interfered with their enjoyment of their property; (3) the claim for negligence fails because it is based on the same facts (or lack of facts) as the claim for deprivation of lateral and adjacent support; and (4) the claims for indemnity fail because the Formans have not suffered any loss through payment of an adverse judgment or settlement.   

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 Ashtyne Cofer, which shows the Brones’ counsel provided available dates to meet and confer and called to follow up but counsel for the Formans never returned the call.  This satisfies the meet and confer requirements of §430.41.  The Formans are admonished to comply with requests to meet and confer.     

 

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 

 

Deprivation of Support 

The Broneses argue that the claim for deprivation of lateral and subjacent support fails because there are no specific facts alleged as to how they caused the slope failure or resulting mudslide.  The Court agrees but for a different reason. 

Here, the Formans have alleged that the Broneses “engaged in excavations, cuts, or other modifications to the Brones Property which created an overly steepened slope and lessened the stability of the slope above, leaving the hillside unsupported.”  (Comp. ¶11.)  Accordingly, the Formans have alleged specific facts as to how the Broneses caused the slope failure and resulting mudslide.  

However, at common law, every owner of land was entitled to lateral and subjacent support of that land from every other coterminous owner.¿ (Wharam v. Investment Underwriters, Inc. (1943) 58 Cal.App.2d 346, 349; Marin Municipal Water District v Northwestern Pacific Railroad Co. (1967) 253 Cal.App.2d 83, 92.)  “Coterminous” is defined as “having the same or coincident boundaries.” (Id.)  “The word in its etymological sense means touching or contiguous, as distinguished from lying near to or adjacent.” (Id.)  Here, the Foreman Property is not coterminous with the Brones Property.  (Compl. ¶6.)  According to the Complaint, the Foreman Property and the Brones Property are separated by the Gottlieb Property.  (Id.) 

Accordingly, the Court sustains the demurrer to the claim for the deprivation of lateral and subjacent support. 

Nuisance 

The Broneses argue that the claim for nuisance is deficient because it fails to set forth any factual detail that would support an inference that they were engaged in any wrongful or improper conduct amounting to nuisance.  The Court disagrees. 

To allege a cause of action for private nuisance, a plaintiff must allege the following: (1) plaintiff’s use and enjoyment of the property was interfered with, (2) the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, and (3) the interference with the protected interest was not only substantial, but also unreasonable.  (Wilson v. Southern Central Edison Co. (2018) 21 Cal.App.5th 786, 802.)  This involves evaluating whether the interference is of such a nature, duration, or amount as to constitute an 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.)  The primary test for determining unreasonableness is whether the gravity of the harm outweighs the social utility of the defendant’s conduct.  (Id.)   

Here, the Cross-Complaint alleges that the Broneses “engaged in excavations, cuts, or other modifications to the Brones Property which created an overly steepened slope and lessened the stability of the slope above, leaving the hillside unsupported.”  The excavations resulted in a landslide, interfering with the Formans’ use of their property.  This is sufficient to overcome a demurrer to the nuisance claim.   

Negligence 

Relying on Marin, the Broneses argue that the negligence claim is based on the deprivation of lateral or subjacent support claim and is therefore equally defective.  The Court disagrees.   

Marin did not involve a negligence cause of action.  (253 Cal.App.3d 83, 86 (“For reasons which we mention after deciding the appeal on its merits, the negligence count is not involved on this appeal and the complaint before us does not allege the railroad’s negligence in any respect.”)   

The Broneses’ real problem with the cross-complaint is their contention that it “does not identify any specific acts of excavation ... because it simply did not occur.”  This is a factual dispute that the Court cannot resolve on a demurrer.   

Indemnity Claims 

The Broneses argue that the Formans have incurred no damages yet through an adverse judgment or settlement, and accordingly they have no cause of action for implied or equitable indemnity.  The Court disagrees.  

While the Formans’ indemnity claim does not accrue until they have suffered an adverse judgment or settlement, that does not mean they cannot file an indemnity claim now.  (See Valley Circle Estates v. VTN Consolidated, Ltd. (1983) 33 Cal.3d 604, 612-613 (“Finally, ‘the fact that a defendant is permitted under a third party procedure to bring a declaratory cross-complaint in the original tort action does not alter the general rule that, for statute of limitations purposes, the defendant's indemnity action does not accrue until he has suffered actual loss through payment.’. . . ‘The only attack on the cross-complaint which is plausible – though erroneous – would be that it is premature, not that the cause of action it pleads is outlawed’”); GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 428 (“As part of the comparative equitable indemnity doctrine, a defendant who is sued has a right to bring in other tortfeasors who are allegedly responsible for plaintiff’s action through a cross-complaint or by a separate complaint for equitable indemnification.”).) 

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Cross-Defendants’ demurrer to the Cross-Complaint.  The claim for deprivation of lateral and subjacent support is dismissed without leave to amend as the Formans cannot allege their property is coterminous with the Brones Property. 

 

DATED:  November 7, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court