Judge Gary Y. Tanaka, Case 22TRCV00399 2023-03-06 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, March 6, 2023

Department B Calendar No. 6

Plaintiff’s Complaint was filed on May 23, 2022. Plaintiff alleges the following facts. Plaintiff and Defendant own neighboring properties in the Palos Verdes Estates. Defendant refuses to abide by homeowners’ association’s covenants, conditions, and restrictions. Defendant fails to properly maintain the tress on his property and the trees exceed 35 feet in height. The trees obstruct Plaintiff’s views. Plaintiff alleges the following causes of action: 1. Declaratory Relief; 2. Continuing Nuisance.

CCP § 473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

Here, Defendant has adequately established that he did not have notice of the hearing date of the demurrer and motion to strike which was previously heard on February 15, 2023. (Decl., Jeffrey Lewis, ¶¶ 8-9.) Therefore, the ruling of February 15, 2023 is hereby vacated, and the Court will hear the Demurrer and Motion to Strike on this date, March 6, 2023.

Defendant filed meet and confer declarations in sufficient compliance with both CCP § 430.41 and CCP § 435.5. (Decls., Jeffrey Lewis.)

Plaintiff’s request for judicial notice is granted pursuant to Evidence Code § 452(d).

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.)

Defendant demurs to Plaintiff’s Complaint and each cause of action pursuant to CCP § 430.10(e) on the grounds that the causes of action fail to state facts sufficient to constitute a cause of action. Defendant also demurs to pursuant to CCP § 430.10(f) on the grounds that the causes of action are uncertain. Defendant also demurs pursuant to CCP § 430.10(d) on the ground that there is a misjoinder of parties.

Defendant argues that the Complaint is subject to demurrer because Plaintiff “fails to allege a required element of a claim (that the local homeowners association has consented to tree trimming), that a necessary party is missing (the local homeowners association) and that the injunctive relief prayed for is beyond the Court’s power as presently framed. Finally, [Defendant argues] the complaint is uncertain because it fails to plead an essential fact: the location of the protected view.” (Demurrer, page 5, lines 7-12.)

Defendant’s demurrer to the first and second causes of action is overruled. Plaintiff states facts sufficient to constitute the causes of action. The first and second causes of action are not unduly uncertain. Defendant fails to establish that there is a misjoinder of parties.

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, [. . .]may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

“To qualify for declaratory relief, [Plaintiff] would have to demonstrate its action presented two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Plaintiff’s] rights or obligations.... But even assuming that [Plaintiff’s] action satisfies the first requirement, it must still present an ‘actual controversy.’ The ‘actual controversy’ language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. It does not embrace controversies that are conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court. Thus, while a party may seek declaratory judgment before an actual invasion of rights has occurred, it must still demonstrate that the controversy is justiciable. And to be justiciable, the controversy must be ripe.” Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582 (internal citations and quotations omitted; emphasis in original). “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” Code Civ. Proc., § 1061.

“Civil Code section 3479 defines a nuisance as ‘[a]nything which is injurious to health, 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.’” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.

“The elements of an action for private nuisance are: First, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer ‘substantial actual damage. Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63 (internal citations and quotations omitted).

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land. Pursuant to Civil Code section 3501, a plaintiff seeking to remedy a private nuisance is limited to a civil action or abatement.Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land.... [T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262 (internal citations and quotations omitted).

As to the first cause of action, Plaintiff has alleged facts demonstrating his interest in a written instrument, the existence of an actual, existing, and justiciable controversy regarding the parties’ rights or obligations under the written instrument, and his desire to seek a judicial declaration regarding the rights and obligations. (Complaint, ¶¶ 24-31.) Similarly, as to the second cause of action, Plaintiff has stated facts alleging Defendant’s substantial interference in Plaintiff’s use and enjoyment of his property which has caused Plaintiff to suffer substantial actual damage. (Complaint, ¶¶ 32-38.)

Defendant argues that the Complaint is subject to demurrer because Plaintiff “fails to allege a required element of a claim (that the local homeowners association has consented to tree trimming)[.]” (Demurrer, page 5, lines 8-9.) However, no applicable authority has been presented to establish that this allegation of consent is a “required element” of pleading causes of action for declaratory relief or nuisance. Issues of whether the governing homeowner’s association documents requires consent by the HOA and whether or not such consent was requested and/or obtained are factual issues not appropriate for adjudication with a demurrer. Certainly, this is not a “pleading” requirement to state causes of action for Declaratory Relief or Nuisance.

Second, nothing on the face of the pleadings shows that the HOA is a necessary and indispensable party to this action. The allegations clearly show that the HOA may be necessary to be involved in the discovery process, but there is nothing to show that the HOA must be added as a Plaintiff or Defendant in this action. There are no specific allegations which implicate liability against the HOA. Further, even assuming arguendo, as Defendant appears to believe, that the HOA’s consent is a central factual and evidentiary issue in this action, even this does not definitively establish that this requires the HOA to immediately become a party in this case.

Third, Defendant argues that injunctive relief is beyond the power of the Court. Here, however, Plaintiff has identified the specific written instrument, pursuant to the declaratory relief cause of action, which provides the basis for injunctive relief. In addition, injunctive relief is a proper remedy for a continuing nuisance. Spaulding v. Cameron (1952) 38 Cal.2d 265, 267. Finally, the Complaint, on page 9, lines 12-23, adequately outlines the type of injunctive relief sought by Plaintiff.

Finally, Defendant argues that the Complaint is uncertain because Plaintiff did not state the specific location of the protected view. 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.) “Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) (sic) are disfavored. 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. A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant's knowledge.” Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 (internal citations and quotations omitted).

The alleged failure to state the specific location of the protected view does not render the Complaint so uncertain such that it deprives Defendant the ability to respond to the allegations. In fact, rather than a demurrer for uncertainty grounds, Defendant appears to be attempting to impose a specific pleading standard to the first and second causes of action which does not exist.

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.

Defendant moves to strike the following allegations as false, irrelevant, and/or improper:

As to Item 1, the request for attorneys’ fees, the motion is denied. Plaintiff has identified a potential contractual basis for attorney’s fees. The Court recognizes that the language of the attorney’s fees provision is unusual. The provision states: “When litigation is pursued, as a guide to the court, it is the Board's preference that attorneys' fees be awarded to the prevailing party.” (Complaint, Ex. B, p. 93). However, the Court cannot state, as a matter of law, at the pleading stage, that this provision is definitely not an enforceable attorneys’ fees clause.

As to Item 2, the allegation making a reference to a video to the alleged obstruction, the motion is denied. The Court cannot state, as a matter of law, that the allegation is false, irrelevant, or improper. Defendant argues that the location looks different now. This is a factual issue and not appropriate for determination with a motion to strike. If the purported video is, in fact, irrelevant, then, Defendant can utilize means to attempt to ensure that it is not presented into evidence, at the appropriate time.

As to Items 3 and 4, the motion is denied. Essentially, the arguments with the motion to strike mirror the grounds for demurrer stated above with respect to the allegations and prayer for injunctive relief. The motion to strike is denied for the same reasons noted above.