Judge: H. Jay Ford, III, Case: 22SMCV00250, Date: 2022-09-08 Tentative Ruling

Case Number: 22SMCV00250    Hearing Date: September 8, 2022    Dept: O

Case Name:  Gritsevskaya v. Nguyen, et al.

SUBJECT:                (1)  DEMURRER TO COMPLAINT

                                    (2)  MOTION TO STRIKE PORTIONS OF COMPLAINT

MOVING PARTY:   (1) and (2) Defendant John Nguyen

JOINED BY:             Defendant Jack Sweener

RESP. PARTY:         (1) and (2) Plaintiff Viktoriya Gritsevskaya

TENTATIVE RULING

            Defendant John Nguyen’s Demurrer to the Complaint is OVERRULED and the Motion to Strike is DENIED.  Defendant Jack Sweener’s Joinder is GRANTED. 

            “Anything 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” is a nuisance.  See CC §3479; Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358–359. 

“A nuisance may be either a negligent or an intentional tort.”  Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.  The essential elements of private nuisance are:

            1. Plaintiff owned/leased/occupied/controlled the property;

            2. Defendant created a condition that (1) was harmful to health; (2) was indecent or offensive to the senses; (3) was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; or (4) unlawfully obstructed 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;

            3.  That this condition interfered with Plaintiff's use or enjoyment of his or her land;

            4.  Plaintiff did not consent to the condition;

            5.  That an ordinary person would be reasonably annoyed or disturbed by Defendant's conduct;

            6. That Plaintiff was harmed;

            7. That Defendant's conduct was a substantial factor in causing Plaintiff's harm; and

            8. That the seriousness of the harm outweighs the public benefit of [name of defendant]'s conduct.  See CACI No. 2021; see also CC §3479; see San Diego Gas & Electric Co. v. Supr. Ct. (1996) 13 Cal.4th 893.

            Nuisance is based on “[a]nything which is…an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…is a nuisance.”  CC §3479.  A private nuisance exists where the interference or obstruction is of the use of private land owned by the plaintiff.  See Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.  “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.  An interference need not directly damage the land or prevent its use to constitute a nuisance; private plaintiffs have successfully maintained nuisance actions against airports for interferences caused by noise, smoke and vibrations from flights over their homes and against a sewage treatment plant for interference caused by noxious odors.”  Id. (“[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury.”)

            Plaintiff alleges that Defendants “knowingly created, knowingly allowed and/or knowingly assisted in the creation of property damage and nuisance in and on Plaintiff’s aforesaid property by knowingly causing and/or allowing water flooding to occur.”  See Complaint, 1^st c/a, ¶6.  Plaintiff alleges Defendants “intentionally and recklessly engaged in conduct that produced a nuisance in Plaintiff’s property.”  Id. at ¶5.  Plaintiff alleges the flooding resulted in extensive damage to the property, including the flooring, cabinets, counters and walls, the electrical systems, appliances and doors.  Plaintiff alleges the flooding resulted in mold infestation throughout the property.  Id. at ¶6(A)-(E).  Plaintiff alleges Defendants also allowed pervasive dog feces and assorted red wine stains in multiple areas on the premises.  Id. at ¶6(F).  Plaintiff alleges Defendants created and allowed these conditions to exist from November 2020 through January 2022, a period of two years.  See Complaint, 1^st c/a, ¶5. 

            Plaintiff alleges that these conditions were substantial and interfered with Plaintiff’s use and enjoyment of her property.  Plaintiff alleges that the interference would substantially annoy or disturb persons of normal health and sensibilities in the community. Id. at ¶5. 

            Plaintiff also allege that Defendants “intentionally” and “knowingly” created and caused the nuisance.  As such, the 1^st cause of action for intentional nuisance is not duplicative of the 2^nd cause of action for general negligence.  The 1^st cause of action alleges intentional creation and maintenance of the nuisance, while the 2^nd cause of action alleges the nuisance was the result of negligent conduct.  In addition, a plaintiff who is unsure of the facts or his legal remedies may plead alternative theories of liability, as well as alternative facts in separate causes of action.  See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; see Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732-733; 5 Witkin, Cal. Proc. (5th ed. 2008), Plead §728; Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402.

            Defendants’ Demurrer is OVERRULED. 

            “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  Civ. Code, § 3294(c)(1).  Plaintiff alleges Defendants “intentionally caused the nuisance and property damage” and Defendants “created and maintained” the nuisance. These allegations are sufficient to allege conduct intended to injure the Plaintiff’s property. 

            Defendant’s Motion to Strike is DENIED.