Judge: Elaine W. Mandel, Case: 23SMCV04829, Date: 2024-05-07 Tentative Ruling

Case Number: 23SMCV04829    Hearing Date: May 7, 2024    Dept: P

Tentative Ruling

Tabibiazar et al. v. Fadia et al., Case No. 23SMCV04829

Hearing date May 7, 2024

Defendant Fadia’s Demurrer and Motion to Strike

Plaintiffs Tabibiazar and Yashar sue neighbor defendant Fadia for nuisance; intentional and negligent trespass/encroachment; injunctive and declaratory relief. Plaintiffs allege defendant built an unpermitted wooden fence and concrete wall and planted ficus trees, all of which are alleged to have damaged plaintiffs’ retaining wall. Complaint ¶13-17.

Defendant Fadia cross-complained alleging negligence; breach of CC&Rs; slander of title; and permanent trespass. Defendant alleges the retaining wall was not build in compliance with the CC&Rs, and plaintiffs failed to maintain the wall. Cross-Compl. ¶14-17. Fadia demurs and moves to strike.

Demurrrer

Nuisance

Fadia argues the claim is barred by the statute of limitations, as the alleged nuisance was in existence as of July 2020, when he purchased the adjacent property, so the statue expired July 2023, per Civ. Code §§3490, 338. The complaint alleges the wall was built in 2022 or 2023. See Compl. ¶28. Even if the wall was built and ficus trees were planted in 2020, the complaint alleges continuing nuisance, so the statute is extended. Compl. ¶14; Beck Dev. Co. v. Southern Pacific Transp. Co. (1996) 44 Cal.App 4th 1160, 1216-1217. OVERRULED.

Intentional and Negligent Trespass and Encroachment

Fadia argues these causes of action are uncertain. Per Code of Civil Procedure §430.10(f) such demurrers are disfavored and will only be sustained where the pleading is so bad that one cannot reasonably respond. Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. This is not the case here. Fadia argues the claims have not been sufficient alleged, arguing there are no allegations he intruded on plaintiffs’ property. Plaintiffs allege the ficus roots intruded and the wall encroached. Compl. ¶ 14. As to intentional trespass, Fadia argues there are no allegations he intended to encroach or trespass. Plaintiffs alleged intent. Compl. ¶ 29. As to negligent trespass, the elements have been alleged. Compl. ¶¶ 39-40. OVERRULED.

Injunctive Relief and Declaratory Relief

Fadia correctly argues injunctive and declaratory relief are remedies, not independent causes of action. Wong v. Jing¿(2010) 189 Cal.App.4th 1354, 1360 fn. 2. Nevertheless, the designation of the requested relief as a cause of action or remedy does not precludes the claim. McDowell v. Watson¿(1997) 59 Cal.App.4th 1155, 1160. Artus v. Gamercy Towers Condominium Ass’n. (2018) 19 Cal.App.5th 923, 930. OVERRULED.

Motion to Strike

Fadia moves to strike: (1) financial damages as to the first cause of action; (2) punitive damages as to the second and fourth causes of action; and (3) damages according to proof as to the third cause of action.

Fadia argues the financial damages on the first cause of action are vague because the complaint fails to plead the requisite jurisdictional amount for unlimited civil. If Fadia asserts this action has been misclassified, the proper motion is one to reclassify. DENIED.

Fadia argues punitive damages are not pled with the requisite specificity. Punitive damages require more specific allegations than mere commission of a tort. Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95. Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392. Plaintiffs allege defendant “knew” the fill and wall would encroach. Complaint, para. 35. This allegation is insufficient to establish malice, fraud or oppression or willful or conscious disregard.

Fadia argues punitive damages in connection with the injunctive relief claim should be stricken because money damages are excluded from equitable relief. Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 594-595. GRANTED.

Fadia argues the claim of damages according to proof is vague and uncertain. DENIED.