Judge: H. Jay Ford, III, Case: 24SMCV00868, Date: 2025-02-25 Tentative Ruling

Case Number: 24SMCV00868    Hearing Date: February 25, 2025    Dept: O

 Case Name:  Mackillop, et al. v. Tree Lane LLC, et al.

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant LC Engineering Group, Inc.

RESP. PARTY:         Plaintiff Murdoch Mackillop and Leslie Mackillop, individually and as trustees.

TENTATIVE RULING

            Defendant LC Engineering Group, Inc.’s Demurrer to the 1^st, 4^th and 5^th causes of action in Plaintiff Murdoch Mackillop and Leslie Mackillop, individually and as trustees’ Second Amendment Complaint is OVERRULED. Plaintiffs plead the requisite facts to satisfy the elements of all cause of action, namely that LCE owed a duty of care to Plaintiffs under the Biakanja factors.

            Defendants do not provide any arguments as to their Motion to Strike and thus the Court need not rule on the Motion to Strike.

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

I.                Demurrer to the 1^st cause of action for 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.)  “[T]he existence of a duty is a question of law for the court. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

            Defendant LC Engineering Group, Inc. (“LCE”) demurs to the negligence cause of action arguing that Plaintiffs Murdoch Mackillop and Leslie Mackillop (“Plaintiffs”) do not, and cannot, allege that LCE owed a duty of care to Plaintiffs. The SAC alleges that LCE was retained by Defendant Tree Lane, LLC “to provide engineering and geotechnical services in connection with improvements made to the Tree Lane Property.” (SAC, ¶ 5.) LCE argues that the SAC does not allege privity between LCE and Plaintiffs, but only privity between LCE and Tree Lane. Furthermore, the alleged duty is established by foreseeability which Defendant’s argues has been rejected by the Courts, namely in Weseloh Family Ltd. vs. K.L. Wessel Construction Co., and thus no duty of care can be alleged as to LCE, a provider of professional engineering services. (Demurrer, pp. 4–5; see Weseloh Family Ltd. vs. K.L. Wessel Construction Co. (2004) 125 Cal.App.4th 152 [holding on summary judgment that engineers who designed retaining walls did not owe a duty of care to property owners or general contractors in the absence of contractual privity, noting that the engineers' design was not primarily intended to affect the owners or contractor, and the connection between the engineers' conduct and the failure was not close enough to justify imposing a duty].)

            However, more recent case law than Weseloh has further defined the issue at hand, and the Court notes that reliance on Weseloh is not persuasive in a demurrer setting since Weseloh decided a summary judgment motion where the Court analyzed the facts the case, and not a demurrer where all well plead facts must be accepted as true. In the case Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568 the court held that an architect could owe a duty of care to future homeowners even if the architect did not have ultimate control over construction decisions, emphasizing the closeness of the connection between the architect's conduct and the plaintiff's injury, the limited class of persons affected, and the absence of private ordering options to protect homeowners from design defects. (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 581.)

            Additionally, in Lynch v. Peter & Associates etc. the court stated,  “[i]n the end, we were very clear that Weseloh should not be interpreted to create a rule that a subcontractor who provides only professional services can never be liable for general negligence to a property owner ... with whom no contractual privity exists. We found it altogether conceivable that “a set of circumstances that would support such a duty” could exist.” (Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181, 1193, review denied (Nov. 26, 2024).) Additionally, unlike Wesoloh, which dealt with commercial construction, Lynch, like the issue here, deals with residential construction. The Lynch court further reasoned that under Beacon “the high court is far more likely to sanction a professional duty of care in residential construction.” (Id., at p. 1194.)

            Additionally in Beacon the court also analyzed the Biakanja factors which are used to determine “whether in a specific case the defendant will be held liable to a third person not in privity.” (Beacon, supra, 59 Cal.4th at p. 574.) The factors include “the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.” (Ibid.) The Beacon court held that the allegations in the complaint were sufficient enough to meet the Biakanja factors, thus reversing the trial court’s judgement of sustaining the demurrer. (Id., at p. 587.) Thus, the relevant authority on the matter has determined that whether a duty exists where there is not privity is a factual analysis and not appropriate for demurrer if the necessary allegations are plead to reach the Biakanja factors.

            Plaintiffs plead the following in the SAC:

1.     Plaintiffs held title to the real property located at 9718 West Hensal Rd., Beverly Hills, CA 90210 (“MacKillop Property”) (SAC, ¶1.)

2.     Defendant Tree Lane LLC held title to the real property located at 2451 Summitridge Drive, Beverly Hills, CA 90210 (“Tree Lane Property”). (SAC, ¶ 4.)

3.     The Treelane and Mackillop properties are contiguous, with the MacKillop property situated to the west and at the base of the slopes of the Tree Lane Property with a difference in elevation between the two properties of approximately two hundred fee. (SAC. ¶ 28.)

4.     The Treelane Property and adjacent properties have been prone to erosion and slope failure such that Treelane retained LCE to provide geotechnical engineering, engineering geology and related services in connection with the design and construction of improvements to the Tree Lane Property. (SAC, ¶¶ 29, 43(b), 45.)

5.     In November 2018 LCE accepted responsibility as engineering consultant of record for all the work to be constructed on the Tree Lane Property. (SAC, ¶ 45(b).)

6.     “Over the course of several years, the architects, engineers and contractors that Tree Lane hired designed and constructed improvements at Tree Lane's direction that substantially altered the Tree Lane Property in myriad respects. Among other improvements, the development of the Tree Lane Property included substantial grading and altering of the surface of the property, the construction of building pads, the construction of retaining walls, the installation of piles and other structural supports, the building of roads, and other site preparation activities and landform alteration. Those improvements were performed in a negligent manner that directly caused the failure of the slopes on the Tree Lane Property.” (SAC, ¶ 31.)

7.     “LC[E] was negligent in investigating the geotechnical conditions of the Tree Lane Property, in designing improvements to be constructed on and to the Tree Lane Property, in supervising the construction of improvements on the Tree Lane Property, and in designing and implementing erosion control plans for the Tree Lane Property. For example, LC[E] failed to note that the site conditions it observed during excavation of piles on the Tree Lane Property varied significantly from the conditions in the geological reports on which LC[E] had relied in designing and approving construction ofimprovements on and to the Tree Lane Property. LC[E] observed groundwater in pile excavations, as well as caving in those excavations — neither of which conditions were present in the geological reports that had been prepared prior to the start of construction.” (SAC ¶ 43(b).)

8.     “LC[E] should have halted construction and conducted further investigation and analysis of the stability of the slopes on the Tree Lane Property. LC[E] failed and refused to halt construction of improvements on the Tree Lane Property, or conduct any additional geological investigations. Had LC[E] conducted such investigations, LC[E] would have discovered that slopes on the Tree Lane Property would not support the proposed development. Additionally, LC[E] negligently prepared erosion control plans for the Tree Lane Property contributed to the slope failures that damaged the MacKillop Property. As a direct result of LC[E] 's negligence, improvements constructed on and to the Tree Lane Property contributed to the slope failures that damaged the MacKillop Property.” (SAC ¶ 43(b).)

9.     “In or about February 2023, the slopes on the Tree Lane Property began to fail and trespass onto the MacKillop Property. The slope failure caused significant damage to the MacKillop Property. Among other damage, the slope failures on the Tree Lane Property caused the retaining wall on the MacKillop Property to buckle and fail. The slope failure on the Tree Lane Property caused damage to the pool on the MacKillop Property, and much of the hardscape and landscaping located on the property. The failure of the slopes on both the Tree Lane Property and the Xiang Property also forced MacKillop to demolish a portion of their residence to prevent the entire residence from being destroyed by the encroaching landslides.” (SAC, ¶ 32.)

10.  “MacKillop was forced to move from their home in February 2023.” (SAC, ¶ 33.)

11.  As a direct result of LCE’s negligent acts and omissions, MacKillop has been significantly damaged.” (SAC, ¶¶ 46, 47.)

12.  LCE was “under a duty to exercise ordinary care in designing and constructing improvements on and to the Tree Lane Property. All Defendants knew or should have known that the prior history of slope failures on or around the Tree Lane Property made it more likely that improvements designed and/or constructed in a negligent manner on the Tree Lane Property would pose a significant and foreseeable risk of slope failure on the Tree Lane Property and harm to adjacent property owners — including MacKillop. All Defendants knew or should have known that the MacKillop Property — located at the base ofthe slopes on the Tree Lane Property — would be damaged if defendants failed to perform their duties in a good, proper, and workmanlike manner.” (SAC, ¶ 44.)

            In the demurrer stage all well plead allegations must be accepted as true, and Plaintiffs have plead enough facts to meet the requirements of the Biakanja factors extending a duty of care to LCE, a party not in privity with the Plaintiff. Additionally, although Defendants raise the argument for the first time in their reply that there is no causal connection alleged between the Plaintiff’s damage and LCE’s retention, the Court also finds this argument without merit. As can be seen by the allegations provided above, Plaintiffs provide numerous facts to show a causal connection between LCE’s retention and Plaintiff’s damages. Additionally, the Court need not address arguments raised for the first time in a reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 [“[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”].)

            Thus, Defendants Demurrer to the Negligence cause of action for a lack of duty plead is OVERRULED.

II.             Demurrer to the 4^th cause of action for Nuisance and 5^th cause of action for Trespass

Trespass is the “unlawful interference with possession of property.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.4th 245, 261.) 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. (See id. at p. 262, citing CACI No. 2000.)

The elements of a private nuisance claim are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, 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.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176. reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).)

A nuisance includes: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs 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, is a nuisance.” (Civ. Code, § 3479.)

LCE argues that the 4^th and 5^th causes of action fail for the same reason as the negligence cause of action, the lack of a plead duty owed to Plaintiffs by LCE. However, as analyzed above, the Plaintiffs have properly alleged LCE’s duty to Plaintiffs via foreseeability under the Biakanja factors. Furthermore, duty of care is not an element of either the Trespass or the Nuisance causes of action.

Thus, LCE’s demurrer to the 4^th and 5^th causes of action are OVERRULED.