Judge: Helen Zukin, Case: 22SMCV01860, Date: 2023-02-02 Tentative Ruling
Case Number: 22SMCV01860 Hearing Date: February 2, 2023 Dept: 207
Background
Plaintiff Noshin Khobian, as Trustee of JNK Family Trust
(“Plaintiff”) brings this action against Defendants Morteza Farzadmehr,
individually and as Trustee of Progressive Trust, and Shahla Farzadmehr
(collectively “Defendants”) arising from a dispute over trees on Defendants’
property. Plaintiff and Defendants own parcels of real property which share a
boundary. Plaintiff alleges the roots of trees on Defendants’ property are
encroaching on Plaintiff’s property and damaging structures on Plaintiff’s
property. Plaintiff’s Complaint asserts three causes of action against
Defendants for negligence, nuisance, and trespass. Defendants bring this
demurrer to each of Plaintiff’s causes of action under Code Civ. Proc. §
430.10(e), arguing Plaintiff’s claims are barred by the statute of limitations.
Plaintiff opposes Defendants’ demurrer.
Demurrer Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) 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 on the evidence or facts alleged.” (E-Fab, 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.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
Analysis
1. Meet and
Confer Requirement
The Court finds Defendants have
satisfied the meet and confer obligations imposed by Code Civ. Proc. § 430.41.
(Steckbauer Decl. at ¶3.)
2. Statute
of Limitation
Defendant argues all of
Plaintiff’s claims are barred by the three-year statute of limitations imposed
by Code Civ. Proc. § 338(b), citing the allegation in the Complaint claiming, “Plaintiff
first noticed damage to the retaining wall and the tree roots raising the
driveway blocks sometime in or around March 2010.” (Complaint at ¶17.)
Defendant argues Plaintiff was thus put on inquiry notice in 2010, and thus the
statute of limitations on Plaintiff’s claims expired in 2013.
Plaintiff does not dispute its
claims are generally subject to a three-year statute of limitations, rather
Plaintiff argues the Complaint alleges a continuing, not permanent, trespass
and nuisance, which is not barred by the statute of limitations simple because
the first damage was noticed in 2010.
Plaintiff’s causes of action all
stem from allegations of encroachment of the roots of Defendants’ trees onto Plaintiff’s
property. “Whether a trespass or nuisance claim for an encroachment is barred by
the statute of limitations turns on whether the encroachment is continuing or permanent.
For permanent encroachments, the three-year statute of limitations begins to run
on the date the encroachment began, and bars all claims brought after its passage.
For continuing encroachments, a plaintiff may assert a claim even if the encroachment
began outside the limitations period, but is limited to recovering damages incurred
in the preceding three-year period.” (Madani v. Rabinowitz (2020) 45 Cal.App.5th
602, 605.) Courts consider several factors in determining whether an
encroachment is continuing or permanent:
[W]hen deciding
whether a trespass or nuisance is permanent or continuing, previously considered
whether the circumstances of a structure’s construction “indicate an intention that
the trespass shall be permanent” (Kafka v. Bozio (1923) 191 Cal. 746, 750)
and whether a trespass or nuisance's “impact may vary over time.” (Field-Escandon
v. DeMann (1988) 204 Cal.App.3d 228, 234.) More recently, however, our Supreme
Court acknowledged the “‘crucial test of the permanency of a trespass or nuisance
is whether the trespass or nuisance can be discontinued or abated.’ [Citation].”
(Mangini, supra, 12 Cal.4th at p. 1097.) Under this test, sometimes referred
to as the “abatability test” (see, e.g., Beck, supra, 44 Cal.App.4th at p.
1220), a trespass or nuisance is continuing if it “can be remedied at a reasonable
cost by reasonable means.” (Mangini, supra, 12 Cal.4th at p. 1103.)
(Id. at 608-609.) Whether
an encroachment is continuing or permanent is a question of fact, not law. (Id.
at 607.)
Defendants argue the Complaint
demonstrates the alleged encroachment is permanent, not continuing. Defendants’
argument is premised on language from Phillips v. Pasadena (1945) 27 Cal.2d
104, 107, stating “Where a nuisance is of such character that it will presumably
continue indefinitely it is considered permanent, and the limitations period runs
from the time the nuisance is created.” (Reply at 3.) However, Defendants omit
the next sentence of the Phillips opinion, which provides “On the other hand,
if the nuisance may be discontinued at any time it is considered continuing in character.”
(Phillips, 27 Cal.2d at 107.) Applying this test, the Phillips
Court concluded “We cannot say, as a matter of
law, that the locked gate constituted a permanent nuisance, since it appears
from the allegations in the complaint that it could have been removed at any time.”
(Id. at 108.) Accordingly, the Phillips
Court reversed the trial court’s sustaining of defendant’s demurrer on statute
of limitations grounds.
Plaintiff’s Complaint alleges
continuing and worsening damage from the encroachment of Defendants trees which
can be abated at any time through the removal or maintenance of Defendants’
trees. (See Complaint at ¶17 [alleging roots “caused extensive damage to
plaintiff’s property and caused a raised crack in the foundation of plaintiff’s
house leading to multiple raised and uneven cracks with the interior walls and
floor of Plaintiff’s house”]; ¶¶26-27 [alleging Plaintiff’s property has and
will continue to be damaged by the encroachment]; ¶31 [alleging “ongoing
damages”]; ¶32 [alleging “damages to the main structure will continue to worsen
and increase”]; ¶40 [alleging the roots will “grow and expand and further
damage Plaintiff’[sic] Property”; ¶¶30, 44 [alleging encroachment could be
abated with removal and maintenance of the trees].)
On such facts, which the Court
must take as true in ruling on Defendants’ demurrer, the Court cannot find the
encroachment alleged in the Complaint is permanent rather than continuing as a
matter of law such as to be subject to dismissal based on the three-year
statute of limitations. The Court thus OVERRULES Defendants’ demurrer to
Plaintiff’s Complaint.
Defendants argue that even if the
Court were to find the Complaint alleges a continuing, rather than permanent,
encroachment, their demurrer must be sustained because Plaintiff’s Complaint
improperly seeks damages for harms which occurred in 2010 whereas Plaintiff
would only be entitled to relief for damages suffered in the last three years.
The Court disagrees. Plaintiff’s prayer for relief does not seek damages from
harms which are alleged to have occurred in 2010. Rather, the Complaint seeks
“damages to Plaintiff’s house and structure in an amount to be proven at trial”
and “compensatory damages according to proof.” (Complaint at p. 11.)
Plaintiff’s prayer for relief thus speaks of “damages” generally without
specifying that Plaintiff is impermissibly seeking damages to which Plaintiff
is not entitled. It is also settled that a demurrer will only lie as to an
entire cause of action. “A
demurrer must dispose of an entire cause of action to be sustained.” (Poizner
v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; see also Daniels
v. Select Portfolio Servicing. Inc. (2016) 246 Cal.App.4th 1150, 1167 [a
demurrer cannot lie as to only part of a cause of action but can only be
sustained as to an entire cause of action].) Thus, even if Plaintiff’s prayer
for relief sought excessive damages, this would not dispose of an entire cause
of action and thus would not be proper grounds to sustain Defendant’s demurrer.
Conclusion
Defendants’ demurrer to all causes of action in Plaintiff’s
Complaint is OVERRULED.