Judge: H. Jay Ford, III, Case: 24SMCV03567, Date: 2025-03-11 Tentative Ruling

Case Number: 24SMCV03567    Hearing Date: March 11, 2025    Dept: O

 Case Name:  Wilker v. Aliabadi, et al.

SUBJECT:                 DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant Kambiz Tehranchi

RESP. PARTY:         Plaintiff Moshe Wilker

TENTATIVE RULING

            Defendant Kambiz Tehranchi’s Demurrer without Motion to Strike as to all the causes of action within Plaintiff Moshe Wilker’s First Amended Complaint is OVERRULED. Plaintiff has properly alleged the necessary facts to satisfy all the cause of action elements within the FAC.  

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 all causes of action due to lack of factual specificity for the basis of the belief –OVERRULED

Defendant Kambiz Tehranchi’s (“Defendant”) demurs to all causes of action in Plaintiff Moshe Wilker’s (“Plaintiff”) First Amended Complaint (“FAC”) arguing all the causes of action based on information and belief are insufficiently plead without detailed facts to support the basis for that said relief.

The Court does not find this argument persuasive. First, there is no fraud cause of action within the FAC which necessitates heightened factual pleadings. (See Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109 [“[T]he facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made”].)

Additionally, Defendant cites to Gomes v. Countrywide Home Loans, Inc. which expressly states “A [p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true, [citation] and thus a pleading made on information and belief is insufficient if it “merely assert[s] the facts so alleged without alleging such information that ‘lead[s] [the plaintiff] to believe that the allegations are true.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158.) “The Court of Appeal acknowledged the principle that allegations on information and belief are proper where the allegations involve matters peculiarly within the knowledge of the defendants.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 542.) Thus, pleading on information and belief is allowed as long as the allegations show a proper basis for the relief. Defendant does not provide any authority that the proper basis for the information or belief must be plead with heightened specificity, nor can the Court find such authority.

Plaintiff has met their burden by pleading the information leading Plaintiff to believe that Defendants trespassed on the property, caused damage to the property, claimed a prescriptive easement on the property, thus entitling Plaintiff to injunctive and declaratory relief. (See FAC, ¶¶ 11–13.) Thus, Plaintiff pleads the information leading Plaintiff to believe the allegations are true.

Defendant’s Demurrer to all causes of action for lack of pleading the information leading Plaintiff to believe the allegations are true is OVERRULED.

II.             Demurrer to the 1st cause of action for Damage to Property and 2^nd cause of action for Trespass as Duplicative and Insufficiently Plead—OVERRULED

Defendant Demurs to the 1^st and 2^nd causes of action within the FAC arguing that they are duplicative and insufficiently plead. The Court does not agree. Damage to Property and Trespass are two separate causes of action with different elements that may be plead in two separate claims within a complaint.

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 essence of the cause of action for trespass is an “unauthorized entry” onto the land of another.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174.)

A cause of action for Trespass does not necessarily need to include damage to the property, as the Trespass cause of action is based upon unauthorized entry and may include only nominal harm, and thus a separate cause of action can be claimed for actual damage to property through continuous trespass, as is the case here. (See Polin v. Chung Cho (1970) 8 Cal.App.3d 673, 676, citing to Hicks v. Drew (1897) 117 Cal. 305, 49 P. 189 [“There can be an actionable injury to real property with no trespass thereon. [citation] Conversely, there can be an actionable trespass upon real property for which the owner may recover nominal damages even though his property is not injured.”].)

Plaintiff’s cause of action for damage to property is based on Civ. Code 3346 for Injuries to Timber, thus the cause of action is based upon a separate cause of action for Trespass to Timber, which is a separate cause of action to Trespass.

To state a cause of action for Trespass to Timber based on Civ. Code 3346 a Plaintiff must allege the following:

1. That [name of plaintiff] [owned/leased/occupied/controlled] the property;

2. That [name of defendant] intentionally entered [name of plaintiff]'s property and [cut down or damaged trees/took timber] located on the property;

[or]

That [name of defendant], although not intending to do so, [recklessly/ [or] negligently] entered [name of plaintiff]'s property and damaged trees located on the property;

3. That [name of plaintiff] did not give permission to [cut down or damage the trees/take timber] [or that [name of defendant] exceeded [name of plaintiff]'s permission];

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

[In considering whether [name of plaintiff] was harmed, you may take into account the lost aesthetics and functionality of an injured tree.]

(See CACI, 2002.)

            Plaintiff alleges all the necessary facts to meet the Trespass to Timber cause of action elements. (See FAC, ¶¶ 17–23.) Plaintiff alleges all the necessary factual elements of a Trespass cause of action (See FAC, ¶¶ 24–33.) Thus, Defendants argument that these causes of action are duplicative is not persuasive. Defendants Demurrer to the 1^st and 2^nd causes of action are OVERRULED.

III.           Demurrer to the 3^rd cause of action for Quiet Title as insufficiently plead on information and belief—OVERRULED

Under that CCP §761.020, the elements of a quiet title claim are (a) A description of the property that is the subject of the action; (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title; (c) The adverse claims to the title of the plaintiff against which a determination is sought; (d) The date as of which the determination is sought; (e) A prayer for the determination of the title of the plaintiff against the adverse claims.  (See Code Civ. Proc., § 761.020.)

“The date [as to which the determination of title is sought] is to be the date of filing the complaint or, if the plaintiff so chooses, an earlier date.” (Deutsche Bank National Trust Co. v. McGurk (2012) 206 Cal.App.4th 201, 213.)

Plaintiff pleads a description of the property subject to the action by stating “the real property that is the subject of this action is located at 11531 Orum Road in the City of Los Angeles, County of Los Angeles, in the State of California.” (FAC, ¶ 5.)

Plaintiff pleads that Plaintiff is the “the owner of Plaintiff’s Property,” “Plaintiff maintained title, ownership and possession of Plaintiff’s Property since Plaintiff purchased it in 2017,” “Plaintiff has paid all taxes assessed with respect to Plaintiff’s Property, “ and “Plaintiff seeks to quiet title and recover that portion of Plaintiff’s Property encroached and used by Defendant without any right or entitlement and against all adverse claims of Defendant to any, all or a portion of Plaintiff’s Property,” thus plaintiff alleges all necessary facts for the second element. (FAC, ¶¶ 35, 39.)

The third element is plead as the filing date of the Complaint, 7-25-24.

Plaintiff meets the fourth element by pleading, “Plaintiff seeks to quiet title and recover that portion of Plaintiff’s Property encroached and used by Defendant without any right or entitlement and against all adverse claims of Defendant to any, all or a portion of Plaintiff’s Property. Such adverse claims are without any right whatsoever. Defendant has no right, title, estate, lien, interest or easement in any portion of Plaintiff’s Property.” (FAC, ¶ 39, Prayer ¶ 5  [“For judgment that Plaintiff is the fee title owner to all of Plaintiff’s Property, including without limitation the portion adjacent to the southern boundary to which Defendant continues wrongfully to claim an interest adverse to Plaintiff”].)

Thus, Plaintiff pleads all the necessary elements of a quiet title cause of action. Defendant’s Demurrer to the 3^rd cause of action is OVERRULED.

IV.           Demurrer to the 4^th cause of action for Injunction as insufficiently plead on information and belief—OVERRULED

“To properly plead facts for injunctive relief, the complaint must plead (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) “[t]he grounds for equitable relief of this kind, i.e., a showing of inadequacy of the remedy at law.” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 647.)

Plaintiff pleads all the necessary elements of a Trespass cause of action, the cause of action Plaintiff is seeking to enjoin. (FAC, ¶¶ 24–33, 40–44.) Plaintiff pleads that that unless Defendant’s wrongful trespassory conduct is “enjoined and restrained by order of this Court, [the behavior] will be ongoing, causing great and irreparable injury to Plaintiff by depriving Plaintiff of the full use and enjoyment of, and diminishing the value of, Plaintiff’s Property,” satisfying the second element. (FAC, ¶ 45.)

Thus, Plaintiff pleads all the necessary elements for Injunction. Defendant’s Demurrer to the 4^th cause of action is OVERRULED.

V.              Demurrer to the 5^th cause of action for Declaratory Relief as insufficiently plead on information and belief—OVERRULED

“To allege facts sufficient to state a cause of action for declaratory relief, the plaintiff must allege two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” Childhelp, Inc. v. City of Los Angeles (2023) 91 Cal.App.5th 224, 235, as modified (May 5, 2023), [internal citations omitted].)

“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.” (Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885, as modified (Jan. 9, 2008).)

“An action for declaratory relief is authorized by Code of Civil Procedure section 1060, which provides in pertinent part: “Any person interested under a written instrument, ... 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.” (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th 1082, 1094–1095.)

Defendant demurs to the 5^th cause of action for declaratory relief arguing that cause of action is insufficiently plead, however, this argument is without merit.  Plaintiff plead Defendants claim a prescriptive easement on Plaintiff’s Property, Plaintiff denies that Defendants are entitled to any rights in Plaintiff’s Property and seeks to exclude them from it, and thus Plaintiff is entitled to declaratory relief. (See FAC, ¶¶ 48–50.)

Defendants’ Demurrer to the 5^th cause of action is OVERRULED.