Judge Elaine W. Mandel, Case 20SMCV01557 2023-03-15 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20SMCV01557, Date: 2023-03-15 Tentative Ruling

Case Number: 20SMCV01557 Hearing Date: March 15, 2023 Dept: P

Tentative Ruling

Mardirossian v. Howarth, Case No. 20SMCV01557

Hearing Date March 15, 2023

Cross-Defendant Mardirossian’s Motion for Summary Adjudication

Cross-Complainant Howarth’s Motion for Leave to Amend

Howarth’s FAC alleges Mardirossian built a shed that encroaches on Howarth’s property and constructed a tennis court in violation of a Coastal Development Permit issued in 2003. Mardirossian moves for summary judgment and/or adjudication.

Evidentiary Objections

Objections 1-3 OVERRULED (lack of authentication/improper expert testimony); objections 4-6 OVERRULED; objection 7 OVERRULED (lack of personal knowledge, legal conclusion); objections 8-9 OVERRULED (relevance).

Shed Claims

Mardirossian argues all claims arising out of the shed, including private nuisance, trespass, negligence and ejectment, are moot because the shed has been removed. Howarth admitted in response to written discovery that Mardirossian removed the shed. Cross-defendant’s separate statement of material facts (SSMF) 24.

Howarth concedes claims based solely on shed encroachment are subject to summary adjudication. He argues only the first and second causes of action are based entirely on the shed, and the other causes of action include other allegations. This correctly characterizes the claims. Summary adjudication is appropriate as to the shed-only claims: trespass and private nuisance. GRANTED as to these causes of action.

Coastal Act Claims

A civil claim for penalties under the California Coastal Development Act is subject to a three-year statute of limitations. Cal. Pub. Res. Code §30805.5. Mardirossian’s evidence shows construction was completed by 2008; he argues Howarth’s Coastal Act claims are untimely by 13 years. SSMF 15-20. Mardirossian argues delayed discovery does not apply, as construction was open and obvious, and it was unreasonable for Howarth to fail to discover until 2020. Mardirossian provides no evidence, only conclusory statements regarding the open and obvious nature of the construction. Further, he contradicts those conclusions by admitting the construction was “on a steep hill far away from Howarth’s home,” and “Howarth does not access the area where the shed was located, and was genuinely ignorant of its existence[.]” Motion at pg. 8. This indicates Howarth’s delayed discovery may not have been unreasonable. Mardirossian fails to carry his initial burden to show there is no triable issue of fact as to delayed discovery, so summary adjudication cannot be granted on statute of limitations grounds.

City Approval

Mardirossian provides evidence the tennis court, retaining wall and building addition were deemed “finaled” by the City of Los Angeles in 2008, reflecting an inspector’s approval and determination that the construction was performed in compliance with the Coastal Act.

City permits are admissible under Cal. Evidence Code §1280 (public records hearsay exception). Mardirossian provides testimony from City engineer Tarik Saoud that when a permit is “finaled,” it means construction has been inspected and deemed in compliance with the initial permit (here, a Coastal Development permit). SSMF 14-20. As the evidence indicates the construction complied with the initial coastal development permit, the burden shifts to Howarth.

Howarth argues the City’s determination that the construction complied with Mardirossian’s coastal permit does not bar later enforcement if the City’s determination is discovered to be incorrect. Attard v. Bd. of Supervisors of Contra Costa County (2017) 14 Cal.App.5^th 1066.

Howarth must provide evidence the City’s approval of the construction was incorrect. Howarth points out that the initial permit included as a condition of approval a requirement that Mardirossian build a six-foot wall to mitigate tennis court noise, but no such wall was constructed. Howarth separate statement of additional material facts 131-136. This is sufficient to create a triable issue of fact as to whether the construction of the tennis court and associated improvements complied with the 2003 permit. DENIED.

Howarth Motion for Leave to File Second Amended Cross-Complaint

Howarth requests leave to file a proposed second amended cross-complaint to clarify the bases for the nuisance and Coastal Act claims and add a cause of action for trespass based on the construction of a chain link fence.

Courts are required to liberally exercise discretion to allow amendments to pleadings. E.g., Edwards v. Superior Court (2001) 93 Cal.App. 4th 172, 180. Generally, it is abuse of discretion to prohibit an amendment when doing so would not prejudice the other party. E.g., S. Bay Building Enters., Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124.

Howarth argues as trial is not scheduled, Mardirossian will not be prejudiced as a result of this amendment. Mardirossian argues leave should be denied because the proposed claims are untimely and frivolous. These arguments as to the merits of the amendment are more properly made on demurrer, rather than on the motion for leave to amend. GRANTED.