Case Number: 21STCV16157    Hearing Date: April 27, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                          Thursday, April 27, 2023

Department B                                                                                                                            Calendar No. 11

PROCEEDINGS

Rancho Palos Verdes Estates LLC v. Robert R. Maxwell, et al.   

21STCV16157

1.      Robert R. Maxwell, et al.’s Motion to Dismiss Plaintiff’s Complaint

2.      Robert R. Maxwell, et al.’s Demurrer to First Amended Complaint         

3.      Robert R. Maxwell, et al.’s Motion to Strike Portions of First Amended Complaint

TENTATIVE RULING

            Robert R. Maxwell, et al.’s Motion to Dismiss Plaintiff’s Complaint is denied.

Robert R. Maxwell, et al.’s Demurrer to First Amended Complaint is sustained with 20 days leave to amend and without leave to amend, in part.

            Robert R. Maxwell, et al.’s Motion to Strike Portions of First Amended Complaint is moot.

Background

Plaintiff filed the Complaint on April 29, 2021, and the First Amended Complaint (“FAC”) on February 7, 2023.  Plaintiff alleges the following facts.  Plaintiff and Defendants own adjacent real property in Rancho Palos Verdes Estates.  Defendants’ real property is encroaching into the property line of Plaintiff’s property.  Plaintiff’s Complaint alleged the following causes of action: 1. Trespass; 2. Nuisance; 3. Negligence; 4. Indemnification; 5. Apportionment of Rental Income. Plaintiff’s FAC alleges the following causes of action: 1. Trespass; 2. Nuisance; 3. Negligence; 4. Tort of Another; 5. Apportionment of Rental Income.

Motion to Dismiss

Code Civ. Proc., § 581(f)(2) states: “The court may dismiss the complaint as to that defendant when: Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”  CCP § 597 applies to trials of defenses and is not applicable to this action.  “[P]laintiffs’ failure to file an amended complaint within the time specified subjected their entire action to dismissal in the court's discretion under section 581, subdivision (f)(2).” Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.

On November 3, 2022, Defendant’s Demurrer to the Complaint was sustained with 20 days leave to amend.  The First Amended Complaint was filed late on February 7, 2023, past the time allotted for leave to amend.  However, the Court has discretion to accept an untimely amendment.  Harlan v. Department of Transp. (2005) 132 Cal.App.4th 868, 874.  Plaintiff counsel has stated that the delay in amendment was due to his mistake, inadvertence, surprise, or neglect. The Court may exercise its discretion in denying a motion to dismiss under these circumstances. Contreras v. Blue Cross of Calif. (1988) 199 Cal.App.3d 945, 948.

Therefore, the motion to dismiss is denied.

Demurrer and Motion to Strike 

Meet and Confer

Defendants set forth meet and confer declarations in sufficient compliance with CCP § 430.41 and CCP § 435.5.  (Decls., Dustin Rabi.)

Request for Judicial Notice

Defendants’ request for judicial notice is granted pursuant to Evidence Code section 452(d) and (h).

Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur to the First Amended Complaint and first through fifth causes of action pursuant to Code of Civil Procedure section 430.10(e), on the ground that the causes of action fail to state facts sufficient to constitute a cause of action.

First Cause of Action for Trespass

Defendants’ demurrer to the first cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.

“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. Plaintiff fails to allege any facts to meet the element of “defendant’s intentional, reckless, or negligent entry onto the property.”  Plaintiff has merely pled conclusions without any supporting facts.

Plaintiff’s reliance on Joannou v. City of Rancho Palos Verdes (2013) 219 Cal.App.4th 746 is unavailing.  Joannou affirmed the trial court’s decision granting a motion for summary judgment and stated that the Cullen Earthquake Act did not apply to gradual earth movements.  Id. at 762.  Joannou did not alter the pleading elements for a cause of action for Trespass, nor did it alter the requirement that one must plead facts to state a cause of action rather than conclusions. The Court notes that the cause of action asserted in Joannou was to quiet title, and not for trespass.

Citing to Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526, 530–531, Plaintiff argues that intent to harm is not necessary to state a cause of action for Trespass.  Plaintiff is correct that intent to “harm” is not necessary, but certainly an intentional or reckless entry is still required. Roberts explained this principle in more detail as follows: “The doing of an act which will to a substantial certainty result in the entry of foreign matter upon another's land suffices for an intentional trespass to land upon which liability may be based.”  Id.   Here, however, Plaintiff has alleged no facts that Plaintiff did any such act and acknowledges that the boundary intrusion was caused by natural circumstances.

Defendants’ demurrer to the first cause of action is sustained with 20 days leave to amend.

Second Cause of Action for Nuisance

Third Cause of Action for Negligence

Defendants’ demurrer to the second and third causes of action are sustained with 20 days leave to amend.  Unless Plaintiff can allege facts that would articulate two separate causes of action, the scope of leave to amend is to allege a single cause of action either for Nuisance or Negligence.

“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”  El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.

            The following are the relevant allegations set forth in the FAC: “The Maxwell Defendants, by acting or failing to act, created a condition or permitted a condition to exist that is an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. This was accomplished by having their house move onto the Rancho Parcel. This was further accomplished by renting out the portions of the house that are on the Rancho Parcel to tenants, who are now trespassing on the Rancho Parcel based upon a claim by Defendants that they have the right to rent out the Rancho Parcel despite not having an ownership interest.”  (FAC, ¶50.)  It is true that paragraph 51 refers to intentional, as well as negligent conduct, but those factual allegations are only directed against “Tenant Defendants.”

The following allegations support the Negligence cause of action: “The Maxwell Defendants owed Plaintiff a duty to act reasonably in maintaining their house and preventing it from encroaching upon Plaintiff’s property. The Maxwell Defendants breached that duty of care. The Maxwell Defendants also breached that duty of care by trespassing and creating nuisances as detailed above. Plaintiff was harmed by the Maxwell Defendants’ actions.”  (FAC, ¶¶ 60-63.)  

The second and third causes of action are duplicative.  Thus, the demurrer is sustained with 20 days leave to amend.  Unless Plaintiff can allege facts that would articulate two separate causes of action, the scope of leave to amend is to allege a single cause of action either for Nuisance or Negligence.

Fourth Cause of Action for Tort of Another

Fifth Cause of Action for Apportionment of Rental Income

Defendants’ demurrer to the fourth and fifth causes of action are sustained without leave to amend.

Under the tort of another doctrine, “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620.  However, the tort of another doctrine is not a cause of action, but a theory of economic recovery.  Id.  The tort of another doctrine is simply an element of tort damages.  See, Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.  Similarly, apportionment and contribution are theories and/or claims for recovery.

In addition, as to the fourth cause of action, generally, upon the sustaining of the demurrer, the scope of leave to amend is to amend the existing causes of action and not to add new causes of action.  See, People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.  Addition of a new cause of action may be proper, however, when it “directly responds to the court's reason for sustaining the earlier demurrer.”  Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.  Here, this new “cause of action” was not in response to or necessary based on the Court’s ruling sustaining the demurrer to the Complaint.

The demurrer to the fourth and fifth causes of action are sustained without leave to amend.

Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  CCP § 436(a).  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  CCP § 436(b).  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP § 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP § 437.

Defendants move to strike the following:

“1. Page 11, paragraph 73, indicating: “Plaintiff is informed and believes, and thereon alleges, Defendants acted in a despicable manner, intending to vex, injury and annoy Plaintiff while enriching themselves and have been guilty of oppression, fraud, and malice, thus warranting an aware of punitive damages, in an amount according to proof at trial.”

2. Page 11, "Prayer for Relief’ number 4, indicating for “exemplary damages according to proof.”

The motion to strike is moot upon the sustaining of the demurrer to the entire First Amended Complaint.

            Defendants are ordered to give notice of this ruling.