Judge Gail Killefer, Case Number: 20STCV26276, Date: 2024-04-25 Tentative Ruling

TENTATIVE: Defendant Joshua’s demurrer to the entire FAC based on uncertainty is overruled but sustained with leave to amend as to the seventh cause of action for fraud and deceit, eighth cause of action for negligent misrepresentation, ninth cause of action for quiet title by adverse possession, and tenth cause of action for quite title by easement by prescription. Defendant Joshua’s motion to strike is denied as to Paragraphs 54, 63, 88, and Prayer of Punitive Damages, granted with leave to amend as Paragraph 101 and granted with leave to amend as to the FAC’s request for attorney’s fees.

Plaintiffs are granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for June 3, 2024, at 8:30 a.m. Defendant to give notice.

On July 14, 2020, Debby Han and Sun H. Ju (collectively “Plaintiffs”) filed a Complaint against Joshua Hess aka Jost Hess (“Joshua”); Rebecca Baxter Hess (“Rebecca”); and Does 1 to 50.

The Complaint alleged six causes of action: (1) Abate Private Nuisance and for Damages; (2) Abate Private Nuisance and For Damages (Change in Grade Adjoining Land Causing Soil and Debris Deposit on Plaintiff’s Property); (2) Injunctive Relief and Damages for Removal of Lateral Support; (4) Restrain Adjoining Owner From Activity that Affects Party Wall; (5) Willful Trespass to Private Property; and (6) Negligent Trespass to Private Property.

On September 10, 2020, Defendants/Cross-Complainants Joshua and Rebecca Hess filed a Cross-Complaint against Plaintiffs for (1) Quiet Title; (2) Civil Battery; and (3) Declaratory Relief.

On January 26, 2024, with leave of court, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges 10 causes of action: (1) Abatement of Private Nuisance and Damages; (2) Abatement of Private Nuisance and Damages (Change in Grade of Adjoining Land Causing Water, Rain, Soil and Debris Deposits on Plaintiffs’ Property); (3) Injunctive Relief and Damages for Removal of Lateral Support; (4) Restrain Adjoining Owner from Activity that Affects Party Wall; (5) Willful Trespass to Private Property; (6) Negligent Trespasses to Private Property; (7) Fraud and Deceit; (8) Negligent Misrepresentation; (9) Quiet Title by Adverse Possession; and (10) Quiet Title by Easement by Prescription.

On February 26, 2024, Defendant Joshua Hess filed a demurrer with a motion to strike the FAC. Plaintiffs filed opposing papers. The matter is now before the court.

discussion

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

The Plaintiffs are husband and wife who reside in 1828 Preston Ave., Los Angeles, CA (“1828” or the “Property”). (FAC ¶¶ 1, 2.) Defendants Joshua Hess (“Joshua”) and Rebecca Baxter (“Rebecca”) are the co-owners of 1822 Preston Avenue, Los Angeles, CA (“1822” or the “Adjacent Property”). (FAC ¶ 3.) This action stems from construction activities by Defendants that have resulted in noise complaints and wood debris coming over and depositing onto Plaintiffs’ Property, including taking down sections of the existing wooden fence between the properties. (FAC ¶ 8.) Plaintiffs allege that excavation by power drilling has damaged the Property’s concrete retaining wall resulting in the weakening of lateral support and causing the grade of the adjacent ground of 1822 to slant toward 1828, resulting in water, rain, soil, and other debris to be transferred and deposited onto the Property. (FAC ¶ 8.) Plaintiffs assert that the weakening of the lateral support increases the likelihood of catastrophic collapse of land and structures on the Property. (FAC ¶ 33.)

On January 29, 2020, Defendant Joshua discussed with Plaintiffs whether they could consent to him replacing the existing old wooden fence between the Property and the Adjacent Property with a new fence paid for by Defendant Joshua. (FAC ¶ 9.) Plaintiffs consented with the following conditions: (1) that the fence be placed in the same location as the existing fence and (2) that the fence would not affect the concrete foundation for the wooden fence and any other items located on the Property. (FAC ¶¶ 9, 96, 103.) Defendant Joshua represented that he agreed with the conditions and would install the fence accordingly. (FAC ¶ 9.)

On June 17, 2020, Plaintiff Debby Han saw Mr. Hess remove about six feet of the exiting wooden fence and demolish and remove a stabilizing vertical post on the Property to drill into the Property. (FAC ¶ 12.) Plaintiffs allege that the use of power tools, including a jackhammer and power grinder were used to dig a ditch on the Property to break down and damage the exposed base of the concrete foundation for the wooden fence, and remove the stabilizing vertical post on Plaintiff’s property. (FAC ¶ 12.) This weakened the lateral support for the Property. (FAC ¶ 12.) Defendant Joshua also caused there to be a change in the grade of the adjacent ground so that the Adjacent Property slanted towards the Property instead of away as was the previous condition. (FAC ¶ 13.) Despite the Plaintiffs’ request that the Defendants cease their activities and trespassing on Plaintiffs’ property, Defendant Joshua refused and continued with the destructive excavation activities. (FAC ¶¶ 14, 16.)

On June 17, 2020, at 4:15 Defendant Joshua provided evidence from a land survey showing that that the fences between the properties and “some exiting cement work” that provided a foundation for the wooded fence encroached on the Adjacent Property by six inches. (FAC ¶¶ 15, 17.) Plaintiff asserts that while the survey shows a block of concrete but no fence and most of the concrete block wall are on the Property, including the area Defendant Joshua was trespassing and excavating on. (FAC ¶ 18.) Plaintiffs maintain that because the survey fails to note the existence of a wooden fence, it fails to show any fence or cement work encroaching on the Adjacent Property. (FAC ¶ 19.) On June 30, 2020, Defendant Joshua continued to remove portions of the wooden fence between the properties. (FAC ¶ 23.) On July 6, 2020, Defendant Joshua resumed power drilling and jackhammering into the cement and concrete on the Adjacent Property, such that the loud noise interfered with the Plaintiffs’ health and comfortable enjoyment of their Property. (FAC ¶¶ 25, 26.) Plaintiffs further maintain that Defendants failed to provide the required legal notices for their activities per Civil Code §§ 832 (excavation) and 841 (fences). (FAC ¶ 38.)

On August 7, 2020, the court granted Plaintiffs a preliminary injunction preventing Defendants from (1) trespassing onto the Property for any reason; (2)causing concrete or cement dust or particulate matter to blow or transfer onto the Property; (3)failing to maintain the Adjacent Property in a manner as to permit any soil, dirt, debris, liquids or construction material to transfer onto the Property; and (4) failing to comply with any City of Los Angeles requirements regarding construction activities. (FAC ¶ 29.) Plaintiffs assert that on September 2020, Defendants violated the injunction by creating an illegal ad hoc retaining wall by putting backfill behind the wooden fences and failing to reinstall the stabilizing vertical wood post and concrete foundation that was previously demolished. (FAC ¶ 31.) Defendants also altered the drainage in the Adjoining Property so that debris would cut into the Property and failed to restore and repair the planks of the wooden fence. (FAC ¶ 31.)

The FAC further alleges that from October 2020 to November 2021, Defendants violated the injunction and failed to obtain permits that resulted in the removal of soil that changed the soil grading on the properties and weakened the lateral support for the Property. (FAC ¶ 34.) From September 2022 to February 2023, construction and excavation activities continued in violation of the injunction. (FAC ¶ 36.)

On August 30, 2023, Defendant Joshua continued to engage in unlawful construction and excavation that resulted in clouds of harmful and offensive particulate matter, dust, and debris to transfer from the Adjacent Property to the Property. (FAC¶ 37.) The FAC asserts that Defendants have violated the injunction. (FAC ¶ 39.)

B. Seventh and Eighth Causes of Action – Fraud and Deceit and Negligent Misrepresentation

To plead a cause of action for fraud, Plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Charnay v. Cobert (2006) 145 Cal. App.4th 170, 184.) “The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, the California Supreme Court addressed the requirement that “fraud must be pled specifically; general and conclusory allegations do not suffice.”

Defendant Joshua demurs to the seventh and eighth causes of action on the basis that they are not pled with the request specificity.

The seventh and eighth causes of action are premised on the same operative facts. The FAC alleges that the misrepresentation was that Defendant Joshua orally told the Plaintiffs that the wooden fence between the properties would be replaced by a new fence on the same location as the existing fence and that the replacement would not affect the concrete foundation and any other items located on the Property. (FAC ¶¶ 9, 97, 103.) However, the representation was false and a pretext to move the fence closer to Plaintiffs’ Property. (FAC ¶¶ 97, 104.) Defendant Joshua knew the representation he made was false, and it was done with the intent to deceive and defraud Plaintiff and induce Plaintiff to act in reliance to “these representations.” (FAC ¶¶ 98, 99, 105.)

The court finds that the intent to defraud and justifiable reliance elements are conclusory as they are pled without any supporting facts. There are no facts to show that Defendant Joshua defrauded the Plaintiffs or that the Plaintiffs relied on the representations about replacing the fence. “It is settled law that a pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) The FAC fails to allege that Defendant Joshua obtained Plaintiffs’ consent with the intent to defraud them as their consent was needed to carry out the construction or that Plaintiffs would not have given their consent if they knew that Defendant planned to alter the fence and concrete foundation.

Moreover, a negligent representation claim, like a negligence cause of action, requires that Defendants owe a duty to Plaintiffs to disclose truthful facts. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 867.) Here, the FAC is devoid of facts as to what duty to disclose Defendants owed Plaintiffs. Therefore, the demurrer to the seventh and eighth causes of action is sustained with leave to amend.

C. Ninth and Tenth Causes of Action – Quiet Title by Adverse Possession and Quiet Title by Easement by Prescription

In an action for quiet title, Plaintiff must plead 1) a description of the property that is the subject of the action,” specifically the location of tangible personal property and the legal description and street address or common designation of real property, 2) the title of the plaintiff as to which a determination under this chapter is sought and the basis of the title, 3) the adverse claims to the title of the plaintiff against which a determination is sought, 4) the date as of which the determination is sought, and 5) a prayer for the determination of the title of the plaintiff against the adverse claims. (CCP § 761.020.) To prevail in an action to quiet title, the plaintiff must prove title superior to that of defendant. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 918.)

Defendant Joshua demurs to the ninth and tenth causes of action on the basis that they are conclusory and fail to plead a claim for adverse possession. Plaintiffs’ ninth cause of action alleges they “own the fee simple title to the real property claimed and disputed in the Cross-Complaint” without specifically describing the disputed property and without alleging they hold superior title to said property. (See Twain Harte Homeowners Ass’n v. Patterson (1987)193 Cal.App.3d 184, 188.) First, a lis pendens must be filed in a quiet title action. (CCP § 761.010(b); Carr v. Rosien (2015) 238 Cal.App.4th 845, 851 [“[A] lis pendens must be filed in a quiet title action”] [italics original].) Secondly, because Plaintiff’s title to the disputed property is based on adverse possession, Plaintiffs must also plead facts to support a claim for adverse possession, including the fact that the Plaintiffs paid taxes on the disputed property continuously for five years. (CCP § 325(b); McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, 156.)

“The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570; see also Civ. Code, §§ 1007, 321.) “[A]n essential element necessary to the establishment of a prescriptive easement is visible, open and notorious use sufficient to impart actual or constructive notice of the use to the owner of the servient tenement.” (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 977.)

The tenth cause of action alleges that Plaintiffs own an easement by adverse possession to which Defendants hold adverse title. (FAC ¶¶ 116-118.) The easement burdens the Adjacent Property “to the extent claimed and disputed in the Cross-Complaint. (FAC ¶ 115.)

An easement “represents a limited privilege to use the land of another, ... but does not create an interest in the land itself.” (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 881, 103.) To claim adverse possession in an easement the claimant must use the easement in a manner that ‘is wrongful and in defiance of the owner's property rights.’ ” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1181.) The tenth cause of action fails to plead where the easement is located and what the use of the easement is. There are no facts to show that the easement was used by Plaintiff’s in a way that was wrongful and in defiance of Defendant’s property rights.

Based on the above, the demurrer to the ninth and tenth causes of action is sustained with leave to amend.

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may only be sustained when a defendant cannot reasonably determine to what he or she is required to respond. (Ibid.) For example, where it is not reasonably certain what issues must be admitted or denied, or what counts or claims are directed against the defendant, the complaint will be uncertain. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant Joshua asserts that Plaintiff’s entire FAC is uncertain because the FAC is unclear as to which actions were taken by which Defendant. Having reviewed the FAC in its entirety, the court is unpersuaded that the allegations in the FAC are so uncertain that Defendants are not appraised of what causes of action are alleged against them and what issues must be admitted or denied. consequently, the demurrer for uncertainty is overruled.

Defendant Joshua moves to strike attorney’s fees and punitive damages as alleged in the following paragraphs of the FAC:

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression, or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.) “Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.)

The court finds that Plaintiffs have properly alleged that Defendant Joshua acted with malice and oppression by engaging in nuisance and in failing to stop construction and excavation activities in violation of the August 7, 2020, injunction. (FAC ¶¶ 29, 30, 31, 34, 36, 37, 39.)

The motion to strike is denied as to Paragraphs 54, 63, 88, and the Prayer for Punitive Damages. The motion to strike punitive damages from the seventh cause of action is granted with leave to amend as the demurrer was sustained. Defendant Joshua also moves to strike Plaintiffs’ request for attorney’s fees on the basis that the FAC fails to allege a basis for attorney’s fees. A plaintiff cannot recover attorneys’ fees in the absence of either a contractual or statutory provision authorizing their recovery. (CCP § 1021.) Plaintiffs’ opposition fails to show that Plaintiffs are entitled to attorney’s fees. Therefore, Defendant Joshua’s motion to strike Plaintiffs’ request for attorney’s fees is granted with leave to amend.

Defendant Joshua’s demurrer to the entire FAC based on uncertainty is overruled but sustained with leave to amend as to the seventh cause of action for fraud and deceit, eighth cause of action for negligent misrepresentation, ninth cause of action for quiet title by adverse possession, and tenth cause of action for quite title by easement by prescription. Defendant Joshua’s motion to strike is denied as to Paragraphs 54, 63, 88, and Prayer of Punitive Damages, granted with leave to amend as Paragraph 101, and granted with leave to amend as the FAC’s request for attorney’s fees.

Plaintiffs are granted 30 days leave to amend. The court sets the OSC RE: Amended Complaint for June 3, 2024, at 8:30 a.m. Defendant to give notice.

[1] Pursuant to CCP §§ 430.41 and section 435.5(a), the meet and confer requirement has been met. (Carpenter Decl. ¶ 3, Ex. A.)

[2] The FAC refences various photos and exhibits that are attached to the FAC, but no such photos or exhibits are attached.