Judge: James L. Crandall, Case: 22-1259354, Date: 2022-10-13 Tentative Ruling

1.    Demurrer to Complaint

2.    Motion to Strike Portions of Complaint

MOTION NO. 1:

The demurrer of defendants James Howard and Maggie Howard to the unverified Complaint filed by plaintiffs David Jackson and Pamela Jackson is SUSTAINED in part and OVERRULED in part.

The demurrer is made pursuant to Code of Civil Procedure Section 430.10, subdivisions (e) and (f).

First Cause of Action for Quiet Title:

Code of Civil Procedure Section 761.020 states:

“The complaint shall be verified and shall include all of the following: [¶] (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. [¶] (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. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.”

Plaintiff’s Complaint is not verified.

The Complaint also fails to set forth the legal description of the subject and the date as of which the determination is sought as required by Section 761.020, subdivisions (a) and (d).

Accordingly, the demurrer to the Quiet Title cause of action is SUSTAINED with 20-days leave to amend.

Second Cause of Action for Trespass:

Defendants argue that Plaintiffs’ trespass claim which is based on encroachment of a deck and fence is barred by the statute of limitations.

The statute of limitations for bringing a trespass claim is three years. (Code Civ. Proc., § 338(b).)

“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 brough 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 (Madani).)

Plaintiffs rely on Madani to argue that the trespass, here, is continuing and therefore not barred by the statute of limitations.

Madani states: “the courts, when 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’ [citation] and whether a trespass or nuisance’s ‘impact may vary over time.’ [Citation.] 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].’ [Citation.] Under this test, sometimes referred to as the ‘abatability test’ [citation], a trespass or nuisance is continuing if it ‘can be remedied at a reasonable cost by reasonable means.’ [Citation.]” (Madani, supra, 45 Cal.App.5th at 608-09.)

Madani involved encroachment of a fence. The Madani court applied the abatability test to find that the encroachment was continuing. The court’s finding was based on defendant’s estimate that “it would cost approximately $5,000 to $6,000 to move the fence.” (Madani, supra, 45 Cal.App.5th at 609.) The court held that “the expense [defendant] would incur in moving is fence ‘is not sufficient . . . to regard the fence as a permanent installation.’ ” (Ibid.) In finding that trespass was continuing, the court further stated that “property values have risen ‘to the point where even modest properties represent small fortunes.’ The cost of relocating a boundary fence or wall pales in comparison to the property value. Thus, it is difficult to conceive of a case where relocation of a boundary fence or wall would be so costly as to render it a permanent encroachment.” (Ibid.)

Here, the Complaint alleges that “Defendants intentionally, or if not intending to do so, recklessly, or negligently caused their deck and fence to enter Plaintiffs residential, real property by constructing the deck seven inches all along the southern lot line of the Subject Property.” (Complaint, ¶ 19.)

The Complaint further alleges that: “The physical structure of the deck constitutes a continuing trespass on the Subject Property by encroachment for statute of limitations purposes under the ‘abatability test’ because it can be remedied at a reasonable cost by reasonable means . . . The physical structure in this case is abatable because the cost of relocating the edge of the deck by seven inches is reasonable when compared to the value of the Subject Property.” (Complaint, ¶ 25.)

The Complaint alleges sufficient facts in support of a continuing trespass to withstand demurrer.

Accordingly, the demurrer to the trespass cause of action is OVERRULED.

Third Cause of Action for Injunctive Relief:

“Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.)

In their opposition, Plaintiffs concede that “[t]he Complaint mistakenly pleads injunctive relief as a separate cause of action rather than including in the prayer as a remedy in connection with the first two cause of action for quiet title and trespass.” (Opp., p. 9, lns. 23-25.)

Accordingly, the demurrer to the Injunctive Relief cause of action is SUSTAINED with 20-days leave to amend.

Defendants to give notice.

MOTION NO. 2:

Defendants James Howard and Maggie Howard move to strike portions of the Complaint by plaintiffs David Jackson and Pamela Jackson.

Code of Civil Procedure Section 436 states: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out 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.”

Code of Civil Procedure Section 437 states: “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

Attorneys’ fees:

Defendants move to strike the Prayer for attorneys’ fees on (1) page 5, line 18, paragraph 3; and (2) page 5, line 24, paragraph 7.

Defendants move to strike the Prayer for attorneys’ fees on the grounds that attorneys’ fees are not available in an action for quiet title or trespass. (Woodward v. Bruner (1951) 104 Cal. App. 2d 83, 86; Pederson v. Kennedy (1982) 128 Cal. App. 3d 976, 978-979.)

Plaintiffs do not oppose striking the Prayer for attorneys’ fees.

Accordingly, the request to strike the prayer for attorneys’ fees is GRANTED.

Punitive damages:

Defendants move to strike paragraph 27 of the Complaint for Prayer for punitive/exemplary damages on page 5, lines 22-23.

Civil Code § 3294(a) provides for punitive damages “[i]n an action for breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. . .” Section 3294(c) defines malice, oppression and fraud as follows:

“(1) “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.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

A claim for punitive damages must be pled with factual specificity. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieve v. Superior Court (Grieves) (1984) 157 Cal.App.3d 159, 166.)

Here, the Complaint alleges that Defendants have “constructed a fence on common property,” (Complaint, ¶ 7), destroyed the patio of their next-door neighbors which was located on their neighbors’ property (Complaint, ¶¶ 9-10), intentionally destroyed landscaping on Plaintiffs’ property (Complaint, ¶ 11), and constructed a deck that encroaches on Plaintiffs’ property by no less than seven inches. (Complaint, ¶ 19.)

The Complaint also alleges that Defendants constructed their deck on the Jacksons’ property without first obtaining a survey map or making any effort to ascertain the boundary line. (Complaint, ¶ 11.)

These allegations are insufficient to warrant punitive damages.

Accordingly, the request to strike the request for punitive damages is GRANTED.

Allegations concerning neighbors:

Defendants move to strike paragraphs 9 and 10 of the Complaint on the grounds that the allegations are irrelevant.

9. Defendants have a pattern of interfering with the property rights of others. In 2014, Defendants’ neighbors, Robert and Kathy Gascon, located at 207 Camino San Clemente, notified Defendants that they had destroyed their patio which was located on their own property.

10. The Gascons presented Defendants with a survey map showing the boundary lines of their respective properties, at which point Defendants accused the Gascons of fabricating a false survey map and insisted on obtaining their own survey map.

Defendants argue that Paragraphs 9 and 10 of the Complaint should be stricken because they have nothing to do with the current dispute and that these allegations concern another neighbor and an alleged incident from approximately eight years ago.

Plaintiffs contend that Paragraphs 9 and 10 of the Complaint demonstrate that Defendants’ conduct was not innocent but willful, which entitles Plaintiffs to injunctive relief. These allegations may be relevant to a claim for injunctive relief, however, here, Plaintiffs have not sufficiently alleged injunctive relief.

Accordingly, the request to strike paragraphs 9 and 10 from the Complaint is GRANTED.

Defendant to give notice.

Future hearing dates

11/1/22 – CMC