Judge: Gail Killefer, Case: 23STCV11134, Date: 2023-10-31 Tentative Ruling

Case Number: 23STCV11134    Hearing Date: October 31, 2023    Dept: 37

HEARING DATE:                 Tuesday, October 31, 2023

CASE NUMBER:                   23STCV11134

CASE NAME:                        Lucy Broadbent, et al. v. 3585 Multiview, LLC, et al.

MOVING PARTY:                 Defendant 3585 Multiview LLC

OPPOSING PARTY:             Plaintiff Lucy Broadbent, et al.

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to Plaintiffs’ Complaint

OPPOSITION:                        16 October 2023

REPLY:                                  23 October 2023

TENTATIVE:                         Defendant’s demurrer to Plaintiffs’ Complaint is overruled in its entirety.

Background

On May 17, 2023, Lucy Broadbent; David Norland; Steven, Shirley, and Eriq Quat; Julia Ganis; Scott Leslie; Denise and Jeff Turzo; Pouri Fox and Brandon Fox, and Anthony Ivanich (collectively “Plaintiffs”) filed a Complaint against 3585 Multiview, LLC (“Defendant”) and Does 1 to 50.

Plaintiffs allege that Defendant’s construction efforts on an upslope property caused mudslides and damages to Plaintiffs’ respective properties. The Complaint alleges three causes of action: (1) Negligence; (2) Nuisance; and (3) Trespass.

On July 20, 2023, Defendant filed a demurrer to Plaintiffs’ Complaint. On October 16, 2023, Plaintiffs filed opposing papers. Defendant filed a reply on October 25, 2023. The matter is now before the court.

Demurrer[1]

I.         Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

II.        Discussion

Defendant alleges that the Complaint fails to state sufficient facts to constitute a cause of action against Defendant and that the mudslide was not caused by Defendant’s actions.

A.        First Cause of Action – Negligence

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].) “A duty may arise through statute, contract, or the relationship of the parties.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920 [internal quotations and citations omitted].) The existence of a legal duty is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.) “However, the elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.)

The Complaint alleges that Plaintiffs’ various respective properties were located downslope of Defendant’s property on Fredonia Drive. (Complaint, ¶¶ 1-11.) Defendant had a duty to maintain its property with due regard for the safety and integrity of Plaintiffs’ properties and personal items. (Complaint, ¶ 22.) Defendant’s construction and piles of dirt were maintained in such a manner as to create mudslides on or about December 23, 2022, and January 10, 2023, which damaged the Plaintiffs’ respective properties and the physical structures, including loss of use and value of Plaintiffs’ properties, damage or destruction to the safety and marketability of Plaintiffs’ properties, and damage or destruction to Plaintiffs’ personal items. (Complaint, ¶¶ 21, 24, 26.) Specifically, Defendant’s construction resulted in “multiple unsupported cuts into the hillside” and “left large quantities of untended excavated earth with no place to go but downhill” with the only barrier being “a makeshift thin plywood fence” that was “wholly inadequate” to prevent a mudslide. (Complaint, ¶¶ 10-12.)

Defendant asserts its property was not the cause of the mudslide or landslide.  Moreover, if there was irreparable damage to Plaintiffs’ respective properties, the building and safety department would have informed Defendant, and that the “City remedied the dirty and muddy streets by cleaning said streets.” (Dela Cruz Decl. ¶¶ 9, 20, 23.) “[I]n ruling on a demurrer the trial court is bound by the facts as alleged in the pleading against which the demurrer is directed, and it may not consider evidentiary facts presented to it through the medium of an affidavit.” (O’Keefe v. Atascadero County Sanitation Dist. (1971) 21 Cal.App.3d 719, 730.)

Here, Defendant demurs to the first cause of action on the basis that Defendant’s property did not create mudslides/landslide and refers to extrinsic evidence which is improper on a demurrer because there is no pleading defect that appears on the face of the Complaint or is subject to judicial notice. (See CCP §§ 430.30, 430.70.) Whether Defendant’s conduct caused the mudslides remains a disputed fact not subject to resolution on a demurrer. "On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. [Citation.] ‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.)

Furthermore, on a demurrer, the Plaintiffs’ properly pled allegations are taken as true, and Plaintiffs are not required to prove the allegations at the pleading stage. (See Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610 [“For purposes of a general demurrer to a complaint, all material fact allegations must be taken as true. Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.”].)

As Defendant fails to show how Plaintiffs’ first cause of action is improperly pled, the demurrer to the first cause of action is overruled.

B.        Second Cause of Action – Nuisance

CCP § 3479 defines nuisance as “[a]nything which is injurious to health, including . . . , 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[.]” “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code § 3480.)

“The interference must be both substantial and unreasonable.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.) “Public nuisance liability ‘does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’” (Id. at p. 542 citing City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38; see also County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306 [accord].)

The Complaint alleges that Defendant’s property and the drainage above it constitute a nuisance and proximately caused damage to Plaintiffs’ properties due to Defendant’s “maintenance of the unstable slope and pails of sail, their failure to maintain proper drainage, and their failure to properly support the Defendant’s Multiview Property.” (Complaint, ¶ 29.) Defendant’s failure to act posed an unreasonable hazard to Plaintiffs’ properties and obstructed the free use and enjoyment of said Properties. (Complaint, ¶ 31.)

Defendant again asserts that “Defendant Multiview did not create the weather condition that caused the mudslide or landslide” and that on February 1, 2023, after the first two mudslides occurred, Defendant adhered to the City’s advice to build a wall. (Demurrer at p. 10:7-17.) Whether Defendant is liable for the mudslide remains a disputed issue of fact. Whether the City cleaned the streets after the mudslide does not make the nuisance claim moot, as the Complaint properly alleges that the Plaintiffs’ properties were damaged and Defendant’s contractors did not adequately clean up the mess (Complaint, ¶¶ 17, 19.)

As Defendant failed to show that Plaintiffs’ second cause of action is inadequately pled, the demurrer to the second cause of action is overruled.

C.        Third Cause of Action – Trespass

“The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)  

Defendant argues that the third cause of action fails because Defendant did not trespass onto the property or create or engage in conduct that damaged the Plaintiffs’ respective properties. Plaintiffs argue that the trespass focuses on unlawful interference with possession of property and that the mudslides onto their properties satisfy the element of unlawful entry. (See Ralphs Grocery, supra, 17 Cal.App.5th at pp. 261-262 [“Trespass is the unlawful interference with possession of property.”] [internal citations and quotations omitted].) Plaintiffs correctly point out that in Armitage v. Decker (1990) 218 Cal.App.3d 887, the plaintiff was able to assert a claim for trespass due to the defendant’s disposing of dirt and gravel onto the plaintiff’s property. (Id. at p. 906; see also Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [“The emission of sound waves which cause actual physical damage to property constitutes a trespass.”].) Thus, the fact that the Complaint alleges that mud from Defendant’s property wrongfully entered the Plaintiffs’ respective properties is sufficient to meet the element of wrongful entry.

As to Defendant’s contention that it is not liable for the damage to the Plaintiffs’ properties, this remains a disputed fact and is not a proper basis for a demurrer. Therefore, the demurrer to the third cause of action is overruled.

Conclusion

Defendant’s demurrer to Plaintiffs’ Complaint is overruled in its entirety.