Judge: Gary I. Micon, Case: 23CHCV01701, Date: 2024-04-11 Tentative Ruling
Case Number: 23CHCV01701 Hearing Date: April 11, 2024 Dept: F43
Dept. F43
Date: 4-11-24
Case #23CHCV01701, Gary Vincent Nevieux vs. Douglas
Hews
Trial Date: N/A
DEMURRER TO CROSS-COMPLAINT
MOVING PARTY: Plaintiff and Cross-Defendant Gary Vincent
Nevieux
RESPONDING PARTIES: Defendants and Cross-Complainants
Edward Arthur Hews and Douglas Hews
RELIEF REQUESTED
Demurrer
·
Entire Cross-Complaint
·
First Cause of Action for Trespass
·
Second Cause of Action for Private Nuisance
·
Third Cause of Action for Declaratory Relief
RULING: Demurrer is sustained to the entire
cross-complaint on the basis that the cross-complaint was untimely filed.
Alternatively, demurrer is sustained to each cause of action individually.
SUMMARY OF ACTION
Plaintiff and Cross-Defendant Gary Vincent Nevieux
(Nevieux) filed a complaint against Defendants and Cross-Complainants Edward
Arthur Hews and Douglas Hews (the Hews) to return the property of Nevieux that
was stored on the Hews’ home property by a tenant, Arren Kroul, of the previous
property owners. Kroul was also a tenant of the Hews. The Hews denied Nevieux
access to the home property to retrieve his personal property.
The Hews have filed a cross-complaint alleging that the
personal property, consisting of vehicles, a trailer, and some tools and other
miscellaneous items, were stored at the subject property without their
permission. They allege that they contacted Nevieux in an attempt to get him to
remove the items, but he refused to do so. The Hews claim that the placed a
lien on the items stored at the property. Their cross-complaint alleges three
causes of action for trespass, private nuisance, and declaratory relief.
Nevieux filed a demurrer to their cross-complaint on
November 21, 2023. The Hews oppose the demurrer.
Nevieux’s Request for Judicial Notice: Nevieux has
requested that the Court take judicial notice of various court filings related
to the case, including the cross-complaint, the small claims actions, and a
court order. The Court takes judicial notice of these filings.
The Hews’ Request for Judicial Notice: The Hews have
requested that the Court take judicial of the orders for dismissal in the three
small claims cases. The Court takes judicial notice of these orders.
ANALYSIS
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.) “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.) 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 applying these standards, the court liberally
construes the complaint to determine whether a cause of action has been stated.
(Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733.)
Entire Cross-Complaint
Nevieux demurs to the entire cross-complaint on the basis
that it was filed late and would be barred by the doctrine of laches.
A responsive pleading to Nevieux’s complaint was due on
September 21, 2023. (See CCP § 428.50(a).) The Hews did not file their
cross-complaint until October 4, 2023. Nevieux also argues that the Hews failed
to file proofs of service pursuant to Cal. Rules of Court rule 3.110 and CCP §
428.60(1).
In their opposition, the Hews claim that the late filing was
due to some error on the Court docket. They do not explain what they mean by
this. It is worth noting that the Hews’ counsel was able to successfully file
opposition to the preliminary injunction request on September 21, so that makes
their claim that there were unable to file the cross-complaint around that time
even more suspect. They also never filed any motion for relief from failure to
timely file the cross-complaint. Nevieux also argues in his reply that the Hews
filed their opposition a day late, but the Court will consider the opposition
in spite of this.
Filing the cross-complaint late without a good explanation and
failing to request relief from the failure to timely file is grounds to sustain
the demurrer to the cross-complaint.
Nevieux also demurs on the basis that the Hews’
cross-complaint would be barred due to the defense of laches. Previously three
small claims court cases were filed by the Hews. However, those cases, per the
Hews request for judicial notice, were dismissed without prejudice. Because
they were dismissed without prejudice, those small claims actions would not bar
the current cross-complaint by the Hews.
Therefore, the demurrer to the entire complaint is sustained
only on the untimely filing grounds.
First Cause of Action
Nevieux demurs to the First Cause of Action for trespass on
the basis that it fails to state facts sufficient to constitute a cause of
action and is uncertain.
To state a cause of action for trespass, a party must allege
that plaintiff had an ownership or possessory interest in the property; that
the defendant intentionally, recklessly, or negligently caused another
person/thing to enter the plaintiff’s property; the plaintiff did not give
permission for the entry; that the plaintiff was actually harmed; and that
defendant’s entry was a substantial factor in causing the plaintiff’s harm.
(See CACI No. 2000.)
While the Hews have alleged that Nevieux’s personal property
was on the Hews’ property and that they did not give permission for the entry,
they have failed to allege how they were harmed or how the “entry” of the
personal property was a significant factor in any harm. Their cross-complaint
alleges that there have been “physical damages” to the property, but they did
not state what those physical damages are, or how they have been a factor in
their harm. (CC, ¶¶ 21, 22.) Nevieux alleges that the cross-complaint is
uncertain for the same reason.
Nevieux’s demurrer to the First Cause of Action is sustained.
If the Court were not sustaining the demurrer on the
untimely filing grounds, leave to amend would have been granted.
Second Cause of Action
Nevieux demurs to the Second Cause of Action for Private
Nuisance on the basis that it fails to state facts sufficient to constitute a
cause of action and is uncertain.
To state a cause of action for private nuisance, a party
must allege that the plaintiff had an ownership or possessory interest in the
property; that the defendant, by acting or failing to act, created a condition
or permitted a condition to exist that was harmful to health, indecent or
offensive, or was an obstruction to the free use of property; that the
defendant’s conduct in acting or failing to act was intentional and
unreasonable/unintentional, but negligent or reckless, or the condition that
the defendant created or permitted to exist was the result of an abnormally
dangerous activity; that the condition substantially interfered with the
plaintiff’s use and enjoyment of the plaintiff’s land; that an ordinary person
would reasonably be annoyed or disturbed by the defendant’s conduct; that the
defendant was harmed; that the defendant’s conduct was a substantial factor in
causing the plaintiff’s harm; and that the seriousness of the harm outweighs
the public benefit of the defendant’s conduct. (CACI No. 2021.)
Once again, the Hews have failed to allege how they were
harmed and damaged by the items being on their property. They only allege that
they were damaged without more information. (CC, ¶¶ 29, 30.) Without these
facts, they cannot maintain a cause of action for private nuisance. They have
also failed to alleged how the items being there interfered with their use and
enjoyment of the property. Their cross-complaint is uncertain for similar
reasons.
Nevieux’s demurrer to the Second Cause of Action is sustained.
If the Court were not sustaining the demurrer on the untimely filing grounds,
leave to amend would have been granted.
Third Cause of Action
Nevieux demurs to the Third Cause of Action for Declaratory
Relief on the basis that it fails to state facts sufficient to constitute a
cause of action and is uncertain.
Declaratory relief is not considered to be a viable cause of
action in California. (Batt v. City and County of San Francisco (2007)
155 Cal.App.4th 65, 82 (declaratory relief is not an independent cause of
action, but a form of equitable relief).) Further, A claim for declaratory
relief is not “proper” where it solely seeks redress for past wrongs in a
relationship between the parties that has long concluded, and the dispute has
crystallized into a cause of action under other theories asserted in the complaint.
(Cardellini v. Casey (1986) 181 Cal.App.3d 389, 397-398.)
In this case, the Hews seek declaratory relief regarding
their rights as to the three vehicles. Nevieux argues in his demurrer that
their rights were already determined via the Court’s October 4, 2023, Order on
Plaintiff’s Motion for Preliminary Injunction because that Order found that the
property belongs to Nevieux. Therefore, Nevieux argues, the only issue remaining
is whether the Hews are entitled to storage costs for the items. Based on this,
the Hews have not stated facts sufficient assert a cause of action for
declaratory relief. The cause of action is also uncertain because the Hews
failed to allege facts that would entitle them to affirmative relief.
Therefore, Nevieux’s demurrer to the Third Cause of Action
is sustained. If the Court were not sustaining the demurrer on the untimely
filing grounds, leave to amend would have been granted.
Conclusion
Nevieux’s demurrer to the Hews entire cross-complaint is
sustained based on the untimely filing of the cross-complaint. Alternatively,
the demurrer is sustained to each cause of action individually.
Moving party to give notice.