Judge Elaine W. Mandel, Case Number: 23SMCV04829, Date: 2024-12-19 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV04829, Date: 2024-12-19 Tentative Ruling

Case Number: 23SMCV04829 Hearing Date: December 19, 2024 Dept: P

Tentative Ruling

Tabibiazar v. Fadia, Case no. 23SMCV04829

Hearing date December 19, 2024

Plaintiff/Cross-Defendants Tabibiazar and Yahsar’s Demurrer with MTS to the FACC

Defendants Seven Gables and Pantoja’s Demurrer to the FAC

Plaintiffs Tabibiazar and Yashar sue defendants Fadia, Nikamal, Arbabha, Pantoja and House of Seven Gables Real Estate for private nuisance, trespass and negligence arising from damage to plaintiffs’ retaining wall and the alleged growth of roots from defendants’ tree into plaintiffs’ property.

Fadia cross-complains against plaintiffs for negligence, breach of covenants and slander. Plaintiffs previously demurred to Fadia’s cross-complaint as noncompliant with Cal. Rules of Court. The court sustained the demurrer, and Fadia filed the current FACC. Min. Order 7/1/24. Plaintiffs now demur to the second, third and fourth COAs in the FACC. Plaintiffs move to strike Fadia’s requests for punitive damages, attorney’s fees and injunctive relief. Fadia has not filed an opposition.

The court previously sustained Fadia’s demurrer to plaintiffs’ complaint regarding the second and third COAs. Id. Plaintiffs subsequently filed the FAC. Seven Gables and Pantoja now demur to the twelfth and fourteenth COAs in plaintiffs’ FAC. Plaintiffs oppose.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts,” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Plaintiff/Cross-Defendants Tabibiazar and Yahsar’s Demurrer with MTS to the FACC

Plaintiffs demur to the second, third and fourth COAs in Fadia’s FACC. Plaintiffs argue Fadia is the former owner of the contested property, so cannot enforce CC&Rs against plaintiffs as pled in the second COA. Fadia alleges he is the former owner of the property at issue. FACC para. 9. This is insufficient to allow Fadia to state a claim.

Plaintiffs argue Fadia fails to plead necessary specifics per the third COA for slander of title. Fadia alleges plaintiffs made false statements to third parties. FACC para. 38. This lacks sufficient specificity. See Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051; CACI No. 1730.

Plaintiffs argue Fadia’s fourth COA for permanent trespass is barred by the 3-year SOL set forth in Cal. Code Civ. Proc. §338(b). Fadia alleges the wall at issue was built between 2009 and 2010. FACC paras. 10, 19. Fadia’s fourth COA falls outside the SOL.

Plaintiffs move to strike the entire FACC as untimely and not in compliance with the court’s orders. In the alternative plaintiffs move to strike the FACC’s requests for punitive damages, attorney’s fees and injunctive relief on the grounds such prayers lack legal support.

Plaintiffs argue the court granted Fadia leave to amend by 7/31/24, 30 days after the court’s sustaining of plaintiffs’ original demurrer. Min. Order 7/1/24.

The FACC is untimely, as it was not filed prior to 7/31/24. Fadia fails to oppose the demurrer and motion to strike. Plaintiffs’ demurrer is SUSTAINED. The motion to strike is GRANTED.

Defendants Seven Gables and Pantoja’s Demurrer to the FAC

Defendants Seven Gables and Pantoja demur to plaintiffs’ twelfth and fourteenth COAs for conspiracy to commit fraud and declaratory relief as insufficient and unintelligible.

“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511. Plaintiffs allege the demurring parties were aware of construction defects in Fadia home that was being sold and misrepresented the condition of this property. FAC paras. 106-107. This is sufficient; plaintiffs have alleged defendants knew of material defects and shared in a common plan to conceal them.

A pleading “for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy, not one that is abstract, relating to the legal rights and duties of the respective parties . . . and requests that these rights and duties be adjudged by the court.” Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 728. Defendants argue they owed no duties to plaintiffs.

Plaintiffs allege defendant real estate developers who developed the property at issue with the intention of selling said property. FAC para. 106. Plaintiffs allege as future buyers of the property, they were foreseeable victims of harm caused by defendants’ alleged misconduct. Id. The general rule of tort law is that a duty of care exists where the harm to another party was reasonably foreseeable. Plaintiffs alleged defendants knew or should have known of their wrongdoing, and the risk of harm to future buyers of the property was reasonably foreseeable. Fac paras. 106-107. This is sufficient on demurrer. OVERRRULED. Moving party to answer within 10 court days.