Judge: Lee W. Tsao, Case: 23NWCV02896, Date: 2024-04-17 Tentative Ruling
Case Number: 23NWCV02896 Hearing Date: April 17, 2024 Dept: C
KENNY NGUYEN v. SR MUTUAL INVESTMENT CORP. DBA CALIFORNIA COUNTRY
CLUB
CASE NO.: 23NWCV02896
HEARING: 4/17/24 @ 10:30 A.M.
#7
TENTATIVE RULING
Defendant SR Mutual Investment Corp. DBA
California Country Club’s demurrer is SUSTAINED in part with 30 days leave to
amend and DENIED in part. The motion to strike is MOOT.
Moving Party to give NOTICE.
Plaintiff
Kenny Nguyen sues SR Mutual Investment Corporation dba California Country Club
because a golf ball entered his residence and injured him and his property. Plaintiff’s
residence is next to Defendant’s golf course. Plaintiff sues for the following
causes of action:
1)
Negligence
2)
Trespass
3)
Nuisance
4)
Declaratory
Relief and Injunctive Relief
5)
Violation
of Business and Professions Code section 17200, et seq.
Defendant
SR Mutual Investment Corporation dba California Country Club demurs to all five
causes of action because they fail to state a cause of action and are
uncertain.
Demurrer
A demurrer is an
objection to a pleading, the grounds for which are apparent from either the
face of the complaint or a matter of which the court may take judicial
notice. (Code Civ. Proc., § 430.30,
subd. (a); see also Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose
of a demurrer is to challenge the sufficiency of a pleading “by raising
questions of law.” (Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.) The court
“treat[s] the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . .” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the
construction of a pleading, for the purpose of determining its effect, its
allegations must be liberally construed, with a view to substantial justice
between the parties.” (Code Civ. Proc.,
§ 452; see also Stevens v. Super.
Ct. (1999) 75 Cal.App.4th 594, 601.)
“When a court evaluates a complaint, the plaintiff is entitled to
reasonable inferences from the facts pled.”
(Duval v. Board of Trustees
(2001) 93 Cal.App.4th 902, 906.)
Demurrers for
uncertainty are disfavored and are granted only if the pleading is so
incomprehensible that a defendant cannot reasonably respond. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn.
3.)
Meet and Confer
Defendant satisfied the
meet-and-confer requirements. (Decl. Leon, ¶ 3; Code. Civ. Proc., § 430.41,
subd. (a).)
First Cause of Action: Negligence
Defendant demurs on the grounds that the complaint does not state what
legal duty Defendant breached, that Plaintiff’s allegations in paragraph 24,
lines 1 to 2 are conclusory, and that Plaintiff does not specify what conduct
caused the alleged incident.
Plaintiff pleads that Defendant negligently breached the duty of care based
on the following:
·
Failing
to operate and maintain the real property (including, but not limited to, the
resort’s golf course) in a reasonably prudent manner in order to avoid exposing
neighboring adjacent properties and to the owners and to anyone visiting them
to the risk of harm / injury;
·
Failing
to operate and maintain their courses, including, but not limited to the design,
placement and/or boundaries / borders etc., in such a manner as to avoid
exposing neighboring adjacent properties and to the owners and to anyone
visiting them to the risk of harm / injury;
·
Failing
to conduct reasonably prompt, proper, and frequent inspections of its real
property as well as taking correct, protective actions;
·
Failing
to design, construct, monitor, and maintain its real property in a manner that
avoids causing adjacent properties and to the owners and to anyone visiting
them to suffer harm / injuries;
·
Failing
to enact and implement maintenance policies that safeguard against causing
and/or exposing adjacent properties and the owners and to anyone visiting them
to the risk of harm / injury;
·
Failing
to always keep the property / golf course in a safe condition as possible to
prevent harm / injury caused by mis-hit golf balls.
·
Failing
to take reasonable steps necessary to prevent play on the golf course from
presenting a threat of harm, as well as actual harm and injury;
·
Failing
to properly train and supervise Defendants’ employees and agents responsible
for operations and maintenance; and
·
Failing
to implement and follow regulations and reasonably prudent practices to avoid
causing harm and/or injury within the standard of reasonably duty of care owed.
(Compl., ¶ 24.)
The plaintiff need only plead such facts as are necessary “to acquaint a
defendant with the nature, source, and extent of his claims.” (Doe v. City
of L.A. (2007) 42 Cal.4th 531, 570.) Further, Plaintiffs may allege facts
in a personal injury case in a conclusory fashion if their knowledge of the
precise cause of injury is limited. (Bockrath v. Aldrich Chemical Co., Inc.
(1999) 21 Cal.4th 71, 80.)
Based on the above, the
Court finds that Plaintiff sufficiently stated the legal duties breached.
Further, the Court finds that based on the alleged circumstances of the case,
Plaintiff may allege causation in a conclusory fashion. The Court also finds
that Plaintiff’s
allegations in paragraph 24, lines 1 to 2 are not conclusory.
Further, the pleading
is not so incomprehensible that a defendant cannot reasonably respond.
The demurrer as to the
first cause of action for negligence is OVERRULED.
Second Cause of Action:
Trespass
To plead trespass, Defendants must allege the following: (1) Defendants’ lawful
possession or right to possession of real property; (2) Plaintiffs’ wrongful,
intentional, reckless, or negligent act of trespass on the property; (3) Defendants did not give permission for the entry
or scope of permission was exceeded; and (4) damage to Defendants caused by the
trespass. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017)
17 Cal.App.5th 245, 262.)
Defendant demurs on the grounds that Civil Code section 1708.8 requires
a person to enter the land. Defendant also demurs on the grounds that invasion
must occur in a manner that is offensive to a reasonable person, and a
reasonable person who bought real estate property bordering a golf course would
not be offended by golf balls landing on their property.
Plaintiff also pleads violation of Civil Code section 1708.8. To plead a
violation of Civil Code section 1708.8, “a person is liable for physical
invasion of privacy when the person knowingly enters onto the land or into the
airspace above the land of another person without permission or otherwise
commits a trespass in order to capture any type of visual image, sound
recording, or other physical impression of the plaintiff engaging in a private,
personal, or familial activity and the invasion occurs in a manner that is
offensive to a reasonable person.” (Civ. Code., § 1708.8, subd. (a).)
The Court finds that the
plaintiff improperly joined the trespass cause of action with Civil Code
section 1708.8. A cause of action is uncertain because of improper joinder of
multiple causes of action. (The Swahn Grp., Inc. v. Segal
(2010) 183 Cal.App.4th 831, 852.) Thus, the cause of
action is uncertain.
The demurrer as to the
second cause of action for trespass is SUSTAINED with 30 days leave to amend.
Third Cause of Action: Nuisance
A nuisance is defined as
follows: “[a]nything 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.)
To establish an action for private nuisance, the plaintiff must prove the following: (1) “an interference with his
use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest
in the use and enjoyment of the land must be substantial, that is, that it
causes the plaintiff to suffer substantial actual damage”; (3) “the
interference with the protected interest must not only be substantial, but 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.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016)
3 Cal.App.5th 248, 262-263.)
Defendant demurs on the grounds that Plaintiff
purchased the subject property with full knowledge that his home bordered a golf
course, and a reasonable person who purchased real estate property bordering a
golf course would not find golf balls landing on their property to be injurious
to his health or offensive. Defendant cites Hellman v. La Cumbre Golf &
Country Club (1992) 6 Cal.App.4th 1224, 1231 in support.
Defendant’s arguments are inapposite for the
pleading stage. As discussed above, the plaintiff need
only plead such facts as are necessary “to acquaint a defendant with the
nature, source, and extent of his claims.” (Doe v. City of L.A., supra,
42 Cal.4th 531 at pg. 570.) The complaint is adequate if it informs the
defendant of the factual basis of the claim. (Prue v. Brady Co./San Diego,
Inc. (2015) 242 Cal.App.4th 1367, 1376.) Further, Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224 is about a trial, not a pleading.
Further, the pleading
is not so incomprehensible that a defendant cannot reasonably respond.
Thus, the demurrer as to the third cause of
action for nuisance is OVERRULED.
Fourth Cause of Action:
Declaratory and Injunctive Relief
“To qualify for declaratory relief, a party would have to
demonstrate its action presented two essential elements: (1) a proper subject
of declaratory relief, and (2) an actual controversy involving justiciable
questions relating to the party’s rights or obligations.” (Jolley v. Chase
Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Any
person who desires a declaration of his or her rights or duties with respect to
another over property may bring an original action 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. (Code Civ.
Proc., § 1060.) “The ‘actual controversy’ language 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.)
Defendant demurs on the
grounds that Plaintiff bought the subject property knowing that it bordered a
golf course. A reasonable person would reasonably expect that golf balls would
land on their property. Thus, an actual controversy relating to the legal
rights and duties of the parties to this action does not exist.
However, that is not
the law. As discussed above, declaratory relief is about a probable future
controversy.
Further, the pleading
is not so incomprehensible that a defendant cannot reasonably respond.
Thus, the demurrer as
to the fourth cause of action for declaratory relief is OVERRULED.
“The elements of a cause of action for injunctive
relief are the following: (1) a tort or other wrongful act constituting a cause
of action; and (2) irreparable injury, i.e., a factual showing that the
wrongful act constitutes an actual or threatened injury to property or personal
rights which cannot be compensated by an ordinary damage award.” (Brownfield
v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) Notably,
“injunctive relief is a remedy and not, in itself, a cause of action, and a
cause of action must exist before injunctive relief can be granted.” (Camp v.
Bd. of Supervisors (1981) 123 Cal.App.3d 334, 356.)
Like the above, Defendant
demurs on the grounds that Plaintiff bought the subject property knowing that it
bordered a golf course. A reasonable person would reasonably expect that golf
balls would land on their property. Thus, an actual controversy relating to the
legal rights and duties of the parties to this action does not exist.
However, that is not
the law. As discussed above, there is no requirement to show actual
controversy.
Further, the pleading
is not so incomprehensible that a defendant cannot reasonably respond.
Thus, the demurrer as
to the fourth cause of action for injunctive relief is OVERRULED.
Fifth Cause of Action: Violation
of Business and Professions Code section 17200, et seq.
To set forth a claim for a violation of Business
and Professions Code section 17200, Plaintiff must establish Defendant was engaged in an “unlawful, unfair
or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.)
Defendant demurs on the
grounds that there is no business relationship between Plaintiff and Defendant;
further, Plaintiff has not acquired, bought, or leased any goods or services
from Defendant. Defendant also demurs on the grounds that actions pursuant to
Business and Professions Code 17200 may only be prosecuted by counsel
specifically identified in Business and Professions Code section 17204.
Since
the enactment of Proposition 64, private parties must also establish that they
have standing to sue for violation of Business and Professions Code section
17200. (Bus. & Prof. Code, § 17204.) Plaintiffs
can sue only if, because of unfair competition, they have suffered injury in
fact and lost money or property. (Kwikset Corp. v. Super. Ct. (Benson)
(2011) 51 Cal.4th 310, 322.) “Injury in fact” means an invasion of a legally
protected interest which is a concrete and particularized and actual or imminent,
not conjectural or hypothetical. (Ibid.)
Plaintiff alleges, “Defendants violated the UCL by engaging in
unlawful, unfair, and fraudulent business acts or practices, including but not
limited to both knowingly and intentionally as well as negligently allowing the
design of Defendants’ golf course to create, present and maintain a known
and/or reasonably foreseeable dangerous risk of harm to Plaintiff, which
ultimately did result in actual physical injury to Plaintiff requiring medical
care and treatment. Defendants have unlawfully, unfairly, and fraudulently
failed to act to address and minimize the risk harm in breach of the duty of
care owed to Plaintiff; and trespassing (California Civil Code § 1708.8;
California Penal Code § 496(c)) and nuisance (California Civil Code
§ 3479) statutes.” (Compl., ¶ 49.)
Based on the above, Plaintiff has adequately alleged standing. Plaintiff
and Defendant do not need to have a direct relationship, only that Plaintiff
suffered injury in fact because of Defendant’s acts of unfair competition.
Further, an unfair competition action for injunctive relief may
only be brought by California Attorney General, district attorneys or certain
city attorneys, county counsel, and public prosecutors. (Bus. & Prof. Code
§ 17204.) But Plaintiff does not seek injunctive relief.
Further,
the pleading is not so incomprehensible that a defendant cannot reasonably
respond.
Thus, the demurrer as to the fifth cause of action for violation
of Business and Professions Code section 17200, et seq. is OVERRULED.
Motion to Strike
Defendant moves to strike Plaintiff’s
complaint, page 16, Prayer for Relief Request paragraph 12, which states: “For
punitive damages arising from invasion of privacy – civil trespass.”
As discussed above, the Court sustained
demurrer as to the trespass and invasion of privacy cause of action.
Thus, the motion to strike is MOOT.