Judge: Gail Killefer, Case: 22STCV27678, Date: 2023-01-10 Tentative Ruling

Case Number: 22STCV27678    Hearing Date: January 10, 2023    Dept: 37

HEARING DATE:                 January 10, 2023    

CASE NUMBER:                  22STCV27678

CASE NAME:                        Zachary Klein, et al. v. South Bay Developers, LLC., et al.

MOVING PARTIES:             Defendants, SBD Investment 7, LLC and South Bay Developers, LLC.

OPPOSING PARTIES:          Plaintiffs, Zachary Klein, Gabrielle Delva, Pouran Hajighassemi, Paul Her-Sturm and Shue Her-Sturm, individually and as trustees of The Her-Sturm Trust Agreement dated August 25, 2016 (“Plaintiffs”)

TRIAL DATE:                        None

PROOF OF SERVICE:          OK

MOTION:                               Defendants’ Demurrer to the Complaint

OPPOSITION:                       December 27, 2022

REPLY:                                  January 3, 2023

TENTATIVE:                         Moving Defendants’ demurrer to the second cause of action is sustained, without leave to amend. Moving Defendants are to give notice.

Background

This construction defect action arises in connection with four homeowners against the developers and builders of single-family homes in the Silverlake neighborhood of Los Angeles. Plaintiff Zachary Klein (“Klein”) is the resident and owner of 736 1/2 N. Parkman Ave, Los Angeles California 90026. Plaintiff Gabrielle Delva (“Delva”) is the resident and owner of 742 N. Parkman Ave, Los Angeles, California 90026. Pouran Hajighassemi (“Hajighassemi”) is the owner and resident of 738 N. Parkman Ave, Los Angeles, California 90026. Plaintiffs Paul Her-Sturm and Shue Her-Sturm, individually and as trustees of The Her-Sturm Trust Agreement dated August 25, 2016 (“Her-Sturm Plaintiffs”) are residents and owners of 740 ½ N. Parkman Ave, Los Angeles, California 90026 (collectively “Plaintiffs” and their residences, “The Properties”).

Plaintiffs allege that South Bay Developers, LLC, WJK Development Co., and SBD Investment 7 LLC (“Developer Defendants”) developed and built the Properties as single family dwellings and common area lots but violated Civil Code §§ 896 and 897 by selling homes that did not comply with stated functionality standards. Plaintiffs contend the Properties had water issues, structural issues, soil issues, fire protection issues, plumbing and sewer issues, electrical system issues, and other construction issues. Plaintiffs now seek recovery for property damage arising out of these deficiencies in construction and costs associated with bringing the Properties to compliance.

Plaintiffs’ operative Complaint alleges the following causes of action as follows: (1) violation of Civil Code §§ 896, et seq., (2) nuisance, (3) breach of contract, (4) breach of express warranty, (5) negligence against Engineer Doe Defendants, (6) nuisance against Engineer Doe Defendants, (7) negligence against Subcontractor Doe Defendants, and (8) nuisance against Subcontractor Doe Defendants.

South Bay Developers, LLC and SBD Investment 7 LLC (“Moving Defendants”) now demurrer to the second cause of action of the Complaint. Plaintiffs oppose the demurrer.

On January 3, 2023, Defendant WJK Development Co. filed joinder to Moving Defendants’ reply papers.

Discussion[1]

I.                   Legal Standard

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.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.)  “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.”  (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)  “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

II.                Analysis

A.     Second Cause of Action: Nuisance

A ““[P]rivate nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.”” (Mendez v. Rancho Valencia Resort Partners, LLC¿(2016) 3 Cal.App.5th 248, 262 [quoting¿Adams v. MHC Colony Park, L.P.¿(2014) 224 Cal.App.4th 601, 610.])¿Plaintiff is required to prove both of the following¿in order to¿recover for an allegation of private nuisance: (1) “the invasion of plaintiff’s interest in the use and enjoyment of land was¿substantial, and (2) “the interference with the protected interest must …be¿unreasonable.”¿(emphasis original)¿(San Diego Gas & Electric Co. v. Superior Court¿(1996) 13 Cal.4th 893,¿938.) Both elements of a private nuisance claim are to be judged by an objective standard, based on the effect that any alleged nuisance would have on the ordinary person. (Id.¿at 938-939.)¿Additionally, nuisance is defined at Civil Code § 3479 as follows: “anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.”  

Moving Defendants contend the second cause of action is insufficiently pled as Plaintiffs base their nuisance claim on the alleged construction defects of their Properties. (Demurrer, 2; Complaint ¶ 22.) Moving Defendants also contend the alleged damages “are necessarily identical to those asserted” in the first cause of action. (Dem., 2-3.) Moving Defendants contend any claim for alleged property damage arising from construction defects has as its sole remedy a claim under Civil Code §§ 895, et seq. (Dem., 4-5.) Moving Defendants correctly point to section 943 of the Civil Code, which states in part “no other cause of action for a claim covered by this title or for damages recoverable under Section 944 is allowed.” (Dem., 4; C.C. § 943.) Moving Defendants also correctly point out that the section makes specific exceptions for claims of breach of contract, fraud, and personal injury only. (Dem., 5.) Moving Defendants therefore contend the second cause of action is precluded:

“Plaintiffs’ Complaint includes a cause of action for violation of the Act, but also includes a common law cause of action for nuisance derived entirely from the same set of allegations regarding construction defects causing property damage.” (Id.; citing McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, 250.)

More broadly, Moving Defendants also contend the second cause of action is barred as precedent precludes recovery in California under a nuisance claim for a defective product. (Dem., 5-6; citing City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 586.)

“Here, the defendants build and sold products (the subject properties) to Plaintiffs... it is a product that was built and sold by a builder. A review of Plaintiffs’ Complaint makes clear it is based wholly on allegations that Plaintiffs’ homes were defectively built.” (Dem., 6.)

Moving Defendants correctly point out paragraph 22 of the Complaint specifically refers to defects in the construction of the Properties as the basis for their nuisance claim. (Dem., 6-7.) Therefore, Moving Defendants contend the second cause of action is a rewording for their claim “based on an allegedly defective product, their homes.” (Id.) Moving Defendants further contend Plaintiffs’ pleading of damages for emotional distress is not recoverable, as claims for construction defects do not allow for emotional distress damages. (Dem., 7-8; citing Erlich v. Menezes (1999) 21 Cal.4th 543.)  Moving Defendants correctly show the Erlich court determined tort damages can be permitted in contract cases where “the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.” (Dem., 8; Erlich, supra, 21 Cal.4th at 551-2 [citing Christensen v. Superior Court (1991) 54 Cal. 3d 868, 885-886].) Here, Moving Defendants contend the nuisance cause of action does not include “any allegations of personal injury, or an independent tort sufficient to warrant tort damages,” but still seeks damages for emotional distress. (Dem., 10; Complaint ¶25.)

Moving Defendants further contend the nuisance claim is merely a reworking of Plaintiffs’ negligence cause of action, citing El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337 for this contention. (Dem., 8-9.) However, as El Escorial dealt with two causes of action pled against the same defendants, and as Plaintiffs do not allege a negligence claim against Developer Defendants currently, the court disregards this argument.

Lastly, Moving Defendants contend that if not barred, Plaintiffs’ nuisance claim is insufficiently pled as it fails to plead sufficient allegations to show any substantial interference by Moving Defendants. (Dem., 11-12.)

Moving Defendants argue “[a]llowing Plaintiffs to proceed with their nuisance cause of action” would violate public policy as it “would turn every product defect/construction defect case into a nuisance case and would change the entire landscape of construction defect law in California, eviscerating the intent of the Act.” (Dem., 12-13.)

In opposition, Plaintiffs contend that the nuisance cause of action is sufficiently pled because the Complaint alleges “continuing damages” to their homes and “components” within the Properties. (Opposition, 4-5.) Plaintiffs also contend they have the right to plead alternative claims for damages, including a common law claim for nuisance which they contend the Right to Repair Act has not supplanted. (Id.) Plaintiffs also point to paragraph 22 of the Complaint to assert they have pled an interference with the “free use and comfortable enjoyment” of their Properties. (Opp., 5.)

Plaintiffs also contend the McMillin holding was more limited in scope—“expressly limited to whether homeowners were required to comply with the pre-litigation procedures under the Right to Repair Act even if their complaint contained only common law causes of actions.” (Opp., 6; citing McMillin, supra, 4 Cal.5th at 259.) Plaintiffs further contend Moving Defendants rely on inapposite authorities for their contention that nuisance causes of action are subsumed into negligence claims. (Opp., 7.) Further, Plaintiffs point to Hensley v. San Diego Gas & Electric Company (2017) 7 Cal.App.5th 1337, 1356 and County of Los Angeles v. Smith (1989) 214 Cal.App.3d 266, 298-88 to show entitlement to emotional distress for nuisance claims, and argue even if emotional distress damages are not recoverable, that “this is not proper ground for a demurrer.” (Opp., 8.) Lastly, Plaintiffs point to paragraph 21 and 22 of the Complaint to show they have sufficiently pled factual allegations to establish a nuisance claim, and that “no public policy would be served” in denying Plaintiffs from pleading their claims. (Opp., 8-9.)

In reply, Defendants point to McMillin’s discussion of the limiting language of sections 896 and 943 as expressions of “the legislature’s clear intent to limit Plaintiffs’ causes of action for property damage arising out of constructions defects to a claim under the Act.” (Reply, 3; McMillin, supra, 4 Cal.5th at 250.)

The McMillin court specifically notes:

“Section 896, which codifies a lengthy set of standards for the construction of individual dwellings, begins with a preamble describing the intended effect of those standards. As relevant here, the preamble says: "In any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction, design, specifications, surveying, planning, supervision, testing, or observation of construction, a builder ... shall, except as specifically set forth in this title, be liable for, and the claimant's claims or causes of action shall be limited to violation of, the following standards, except as specifically set forth in this title. This title applies to original construction intended to be sold as an individual dwelling unit. As to condominium conversions, this title does not apply to or does not supersede any other statutory or common law.

Three aspects of this text are instructive. First, the provision applies to ‘any action’ seeking damages for a construction defect, not just any action under the title. This suggests an intent to create not merely a remedy for construction defects but the remedy. Second, ‘the claimant's claims or causes of action shall be limited to violation of[ ] the following standards, except as specifically set forth in this title.’ This express language of limitation means that a party seeking damages for a construction defect may sue for violation of these standards, and only violation of these standards, unless the Act provides an exception. This clause evinces a clear intent to displace, in whole or in part, existing remedies for construction defects. Third, ‘[t]his title applies to original construction intended to be sold as an individual dwelling unit,’ but ‘[a]s to condominium conversions, this title does not apply to or does not supersede any other statutory or common law.’ The Act governs claims concerning stand-alone homes; for such disputes, the Act's provisions do ‘supersede any other statutory or common law’ except as elsewhere provided. (McMillin, supra, 4 Cal.5th at 250.)

Moving Defendants contend it “is irrefutable that the nuisance cause of action rests entirely on the same set of facts and allegations as Plaintiffs’ first cause of action for violation of Civil Code Sections 896, et seq., i.e., defective design and construction resulting in property damage.” (Reply, 5.) The court finds the McMillin ruling instructive.

Here, the Complaint’s first cause of action pleads a list of alleged construction defects as violations of Civil Code § 896. (Complaint ¶17-19.) The Complaint pleads costs to repair and loss in market value as damages for the first cause of action. (Id.) The second cause of action relists the earlier pled alleged construction defects, and pleads that “said nuisance continues to cause damage to Plaintiffs’ [Properties] and adjoining areas.” (Complaint ¶¶22-23.) Plaintiffs then plead that such defects “have been and continues [sic] to be deprived of the peaceful and quiet enjoyment of their [Properties]...” (Complaint ¶24.) However, Plaintiffs fail to plead further allegations to establish the different elements of a nuisance claim. A review of the Complaint thus shows Plaintiffs have repeated the same allegations, without any further factual pleadings, as the basis for a nuisance claim and request for emotional distress damages. (Complaint ¶26.)

The court finds that Plaintiffs’ second cause of action is insufficiently pled. As Moving Defendants correctly contend, the Complaint fails to allege how the elements of a nuisance claim are established, or how the nuisance claim is not precluded by Civil Code §§ 896, et seq. Additionally, the Complaint does not allege how Moving Defendants’ actions caused substantial or unreasonable disruption, as would also be required. Instead, the Complaint only realleges the defects which Plaintiffs contend are a violation of section 896 only. Thus, the Complaint fails to sufficiently plead a cause of action for private nuisance.

For these reasons, Moving Defendants’ demurrer to the second cause of action is sustained.

Conclusion

Moving Defendants’ demurrer to the second cause of action is sustained, without leave to amend. Moving Defendants are to give notice.