Judge Lisa K. Sepe-Wiesenfeld, Case Number: 20SMCV01621, Date: 2023-10-27 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 20SMCV01621, Date: 2023-10-27 Tentative Ruling

Case Number: 20SMCV01621 Hearing Date: October 27, 2023 Dept: N

TENTATIVE RULING

Defendant Timothy Haldeman’s Motion for Judgment on the Pleadings as to Plaintiff’s Ninth Cause of Action for Elder Financial Abuse is DENIED.

Plaintiffs Martha Kaplan, Steve Algert, and Cameron Brown’s Motion to Strike Cross-Complaint is GRANTED. Defendant Timothy Haldeman’s Cross-Complaint is hereby STRICKEN from the case docket.

Defendant Timothy Haldeman’s Motion for Summary Judgement [sic] or in the Alternative Summary Adjudication of Plaintiffs’ First through Tenth Causes of Action is DENIED.

Defendant Timothy Haldeman to give notice.

REASONING

Defendant Timothy Haldeman’s Motion for Judgment on the Pleadings as to Plaintiff’s Ninth Cause of Action for Elder Financial Abuse

Defendant Timothy Haldeman (“Defendant”) moves for judgment on the pleadings as to the ninth cause of action in Plaintiffs Martha Kaplan, Steve Algert, and Cameron Brown (“Plaintiffs”)’s Second Amended Complaint (“SAC”) on the ground that Plaintiff Martha Kaplan’s allegations regarding deprivation of view rights do not constitute a violation of Welfare and Institutions Code section 15610.30.

“[F]inancial abuse of an elder . . . occurs when a person or entity does the following:”

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.

(Welf. & Inst. Code, § 15610.30, subd. (a).)

In the ninth cause of action, Plaintiff Martha Kaplan alleges that she is 65 years old or older, and Defendant has deprived her of her property rights by maintaining the hedge wall on his property. (SAC ¶¶ 85-86.) Welfare and Institutions Code section 15610.30, subdivision (b), provides that “[a] person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult,” and Welfare and Institutions Code section 15610.30, subdivision (c) (emphasis added), provides that “[a] person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” The Court reads the statute as allowing a deprivation of enjoyment of real property to be within the purview of Welfare and Institutions Code section 15610.30, and it is for the trier of fact to determine whether the alleged conduct constitutes a violation of the code. Accordingly, Defendant Timothy Haldeman’s Motion for Judgment on the Pleadings as to Plaintiff’s Ninth Cause of Action for Elder Financial Abuse is DENIED.

Plaintiffs Martha Kaplan, Steve Algert, and Cameron Brown’s Motion to Strike Cross-Complaint

Plaintiffs move the Court for an order striking Defendant’s cross-complaint on the ground that Defendant did not seek leave to file a cross-complaint, and if he had, no grounds exist to grant such leave. Defendant argues that Plaintiffs “reopened the pleadings” by filing their SAC.

Code of Civil Procedure section 428.50, subdivision (a), provides that “[a] party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint,” or the party shall otherwise “obtain leave of court to file any cross-complaint” after the answer is filed. Plaintiffs’ filed their initial complaint on January 27, 2020, followed by their First Amended Complaint on December 18, 2020, and Defendant filed his answer to the First Amended Complaint on December 13, 2021, after the Court overruled his demurrer on November 4, 2021. Plaintiffs then filed their SAC on May 2, 2023, after the Court granted Plaintiffs leave to do so pursuant to a stipulation between the parties. Defendant then filed his cross-complaint on June 16, 2023, the same date he filed his answer to the SAC.

Defendant provides no legal authority supporting his position that Code of Civil Procedure section 428.50 allows a party to file a cross-complaint without leave any time an answer rather than at the time the first answer is filed. If the Court were to adopt Defendant’s reasoning, Defendant would be able to file a new cross-complaint without leave of court each time an amended pleading is filed, resulting in any number of amended cross-complaints without leave of court. There simply is no basis to conclude that the legislature intended this, as a party seeking to amend a complaint must obtain leave after the first amended pleading, and if “the door was opened at the whim of the parties to a new round of pleadings, discovery, and motions” on a regular basis, “trials would be delayed and court calendars further congested in an already overburdened system.” (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.) Thus, Plaintiffs Martha Kaplan, Steve Algert, and Cameron Brown’s Motion to Strike Cross-Complaint is GRANTED. Defendant Timothy Haldeman’s Cross-Complaint is hereby STRICKEN from the case docket.

The Court lacks a sufficient basis to determine at this juncture whether it is proper to allow Defendant to file a cross-complaint, as Defendant has not made a noticed motion to file the pleading, nor has he provided the information required for such a motion. (See Cal. Rules of Court, rule 3.1324.) Thus, the Court makes no findings herein as to whether it is proper to allow Defendant leave to file a cross-complaint.

Defendant Timothy Haldeman’s Motion for Summary Judgement [sic] or in the Alternative Summary Adjudication of Plaintiffs’ First through Tenth Causes of Action

Defendant moves for summary judgment or adjudication as to each of the twelve causes of action alleged in Plaintiffs’ SAC.

Request for Judicial Notice

Plaintiffs request judicial notice of the Court’s November 4, 2021, minute order ruling on Defendant’s demurrer to Plaintiffs’ First Amended Complaint in this action and the Notice of Pendency of Action filed in this action and recorded with the Los Angeles County Recorder’s Office on November 4, 2020. Plaintiffs’ request is GRANTED, pursuant to Evidence Code section 452, subdivisions (c), (d), and (h).

Reply Separate Statement

The Court has not considered Defendant’s “Response to Plaintiffs’ Separate Statement in Opposition to Motion and Motion for Summary Judgement [sic] or in the Alternative Summary Adjudication,” as such a document is a reply separate statement not authorized by statute, and Defendants failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].)

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection) . . . in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

First and Second Causes of Action: Violation of CC&Rs

In the first and second causes of action, Plaintiffs allege that Defendant has violated the covenants, conditions, and restrictions (“CC&R’s”) applicable to the parties’ properties by installing and maintaining hedge walls on Defendant’s property which exceed six feet in height and unreasonably obstruct and diminish the views enjoyed from Plaintiffs’ properties. (SAC ¶¶ 23, 32.) Defendant argues that summary adjudication should be granted in his favor as to the first and second causes of action because Plaintiffs have failed to establish that the CC&R’s have been violated, which is a condition precedent to filing the instant action, and because Defendant is not maintaining a hedge along either property line.

Plaintiffs assert a violation of Article III, section 9, of the CC&R’s, which provides as follows:

No fence, wall, hedge, or planting (with exception of trees), if exceeding 3 1/2 feet in height above finished surface (not counting any part used as retaining wall), shall be permitted or maintained on any land in this tract in the area between the established front line and the front set-back line; nor if exceeding six feet above finished surface (not counting any part used as retaining wall) anywhere to the rear of the front set-back line, unless a height variance is granted by the Tract Committee.

However, fences, etc., and trees shall not be placed, permitted or maintained on any land of this tract in such a location that they unreasonably obstruct or unreasonably diminish the quality and nature of the view from any other land in this or an adjoining tract. . . .

Upon a finding made by the Tract Committee that the nature or quality of the view is unreasonably diminished or unreasonably obstructed by fences, etc. or by trees on any land in this tract, or that outside lights are objectionable under the preceding paragraph, the owner thereof, upon written notice sent by the Tract Committee, within thirty (30) days shall remove, cut down or cut back any such obstructions or remedy the objectionable effect of such lights to the extent specified by the Tract Committee.

(Def.’s UMF No. 5.)

Defendant argues that Plaintiffs cannot maintain these claims for violation of the CC&R’s because the Tract Committee has not determined the CC&R’s were violated, and it has not recorded a notice of violation. The Court already rejected this argument when it overruled Defendant’s demurrer to Plaintiffs’ First Amended Complaint. Specifically, the Court found that “[n]o provision in the CC&R’s grants the Tract Committee the exclusive authority to determine whether a violation has occurred,” and Article V, section 4 of the CC&R’s provides for any violation to be enjoined, abated, or remedied by any land owner of the tract. (Minute Order dated Nov. 4, 2021, at pp. 2-3.) Further, the requirement that a notice of violation be recorded applies to the Tract Committee, not individual landowners (Minute Order dated Nov. 4, 2021, at p. 3), and in any event, Plaintiffs have filed and recorded a lis pendens on Defendant’s property. (See Req. for Judicial Notice, Ex. 2.) While Defendant argues the Court must “revisit” issues previously ruled upon by a prior judge in this department, the Court comes to the same conclusion here as that stated in the demurrer, as Defendant has presented no new bases for the Court to find differently, i.e., the CC&R’s still include the same language, and the Court interprets the CC&R’s in the same manner as the prior judge.

Insofar as Defendant claims he is not maintaining hedges in violation of the CC&R’s, Defendant provides only his own declaration and photographs of the subject locations. (Def.’s UMF Nos. 19, 20, 38, 41.) Put simply, the Court is not inclined to take Defendant’s word for it. The existence of hedges in violation of the CC&R’s is something that must be proven or disproven by more than conjecture from a party, a non-expert on the issue at hand. It is axiomatic that “an expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial in accordance with Evidence Code section 720,” and “[a]n expert may testify to an opinion on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779, brackets and quotation marks omitted.) Put simply, Defendant lacks the knowledge necessary to establish that he has not installed and maintained hedges on his property which violate the CC&R’s. Thus, Defendant has failed to meet his burden on these two causes of action, as he has not shown that he is not maintaining a hedge along either property line or that the CC&R’s have not been violated.

Even if the burden did shift to Plaintiffs, though, Plaintiffs have provided a declaration from Lisa Smith, a Registered Consulting Arborist, who opines that Defendant has maintained hedges which create a visual and physical screen and barrier (Pls.’ UMF Nos. 60, 61), such that it would be a question of fact for the jury to determine whether Defendant has violated the CC&R’s. Accordingly, Defendant’s motion for summary adjudication is DENIED as to the first and second causes of action. In so ruling, the Court makes no finding as to whether Plaintiffs are the prevailing party in this action, as Plaintiffs argue in their opposition (Opp’n, pp. 12-13), as Plaintiffs have not filed their own motion for summary judgment or adjudication.

Third and Fourth Causes of Action: Nuisance

In the third and fourth causes of action, Plaintiffs allege that Defendant has violated the CC&R’s by installing and maintaining hedge walls on his property exceeding six feet in height and obstructing Plaintiffs’ views from their property. (SAC ¶¶ 41, 47.) Defendant moves for summary adjudication of the third and fourth causes of action alleging a nuisance on the ground that Plaintiffs cannot establish that the CC&R’s have been violated, and a mere obstruction of view cannot constitute a nuisance as a matter of law.

First, as stated above, the Court finds there remains a triable issue as to whether Defendant has violated the CC&R’s. Insofar as Defendant argues that obstruction of Plaintiffs’ view cannot constitute a nuisance, the CC&R’s themselves provide in Article V, Section 4 that “[e]very act or omission whereby any restriction is violated, in whole or in part, is declared to be and shall constitute a nuisance, and may be enjoined, abated or remedied by . . . any land owner of said tract, and such remedy shall be deemed cumulative and not exclusive.” (SAC ¶ 7, Ex. D.) Further, while “a landowner [generally] has no right to an unobstructed view over adjoining property,” “[s]uch a right may be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions” (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1250), as occurred here.

It follows that Defendant has failed to establish that there is no triable issue as to whether he has violated the CC&R’s or that Plaintiffs may not bring nuisance claims based solely on obstruction of views, as the CC&R’s make such obstructions a nuisance. Thus, Defendant’s motion for summary adjudication is DENIED as to the third and fourth causes of action.

Fifth and Sixth Causes of Action: Violation of Los Angeles Municipal Code §12.22.C.20

In the fifth and sixth causes of action, Plaintiffs allege a violation of Los Angeles Municipal Code section 12.22.C.20 by maintaining hedge walls in excess of six feet in height. (SAC ¶¶ 54, 63.) Defendant argues that the fifth and sixth causes of action should be adjudicated in his favor because he is not maintaining a fence, wall, or hedge.

As stated above, the Court finds that Defendant has not established that he is not maintaining hedges in excess of six feet. Further, Government Code section 36900, subdivision (a), “expressly permits violations of city ordinances to be ‘redressed by civil action.” (Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607.) Accordingly, Defendant’s motion for summary adjudication is DENIED as to the fifth and sixth causes of action.

Seventh Cause of Action: Spite Fence Abatement (Civil Code §841.4) and Eighth Cause of Action: Spite Fence Abatement (Los Angeles Municipal Code §41.31)

Civil Code section 841.4 provides that “[a]ny fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” Civil Code section 841.4 further provides that “[a]ny owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance” by seeking injunctive relief. Los Angeles Municipal Code section 41.30 provides that “[n]o person shall maliciously construct, erect, build, plant, cultivate or maintain any fence or wall or any hedge or similar growth unnecessarily exceeding six (6) feet in height, for the purpose of annoying the owners or occupants of adjoining property.” Again, Government Code section 36900, subdivision (a), “expressly permits violations of city ordinances to be ‘redressed by civil action.” (Riley v. Hilton Hotels Corp., supra, 100 Cal.App.4th at p. 607.)

In the seventh and eighth causes of action, Plaintiff Martha Kaplan alleges that Defendant is maintaining spite fences by maintaining hedge walls on his property which exceed six feet and 10 feet in height. (SAC ¶¶ 71, 78.) Defendant contends that he is not maintaining a fence or hedge, and Plaintiff Martha Kaplan has no evidence that Defendant’s conduct was malicious.

As stated above, the Court finds that Defendant has not established that he is not maintaining hedges in excess of six feet. As to malice, Defendant provides his own declaration stating that he did not erect and is not maintaining trees maliciously for the purpose of annoying Plaintiff; rather, Defendant planted and has maintained the trees for privacy purposes, and he has no malice towards Plaintiff. (Def.’s UMF Nos. 89-91, 95-97.) This evidence allows Defendant to meet his burden of establishing he had no malicious intent, thus shifting the burden to Plaintiff to create a triable issue on the issue of malice. Notably, the intent to annoy Plaintiff need not be the only purpose for maintaining the hedges; rather, the trier of fact must determine whether the “dominant purpose” was to annoy Plaintiff or, as Defendant claims, for privacy. (Wilson v. Handley (2002) 97 Cal.App.4th 1301, 1312-1313.)

Plaintiff presents evidence that Defendant sent a series of text messages to Plaintiff Cameron Brown referencing Plaintiffs’ political affiliation, calling them “stupid,” and stating that Plaintiffs “won’t see anything south” in three years. (Pls.’ UMF No. 49.) Such language could support a finding by the trier of fact that Defendant erected the hedges for the purpose of annoying Plaintiff Martha Kaplan. Thus, there is a triable issue of material fact as to whether Plaintiff is entitled to spite fence abatement, and Defendant’s motion for summary adjudication is DENIED as to the seventh and eighth causes of action.

Ninth Cause of Action: Elder Financial Abuse

Again, in the ninth cause of action, Plaintiff Martha Kaplan alleges that she is 65 years old or older, and Defendant has deprived her of her property rights by maintaining the hedge wall on his property. (SAC ¶¶ 85-86.) Defendant argues that Plaintiff Martha Kaplan’s claim for financial elder abuse fails because Plaintiff cannot establish the property right she alleges has been taken from her, and Defendant is not maintaining a hedge along the subject property line.

Again, “financial abuse of an elder . . . occurs when a person or entity does the following:”

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(Welf. & Inst. Code, § 15610.30, subd. (a).)

Insofar as Defendant argues that the Tract Committee must make a finding of violation of the CC&R’s for Plaintiff to maintain this cause of action, the Court has rejected that argument above. Further, Welfare and Institutions Code section 15610.30, subdivision (b), provides that “[a] person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult,” and Welfare and Institutions Code section 15610.30, subdivision (c), provides that “[a] person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” Defendant presents no evidence that the hedges do not interfere with Plaintiff Martha Kaplan’s quiet enjoyment of her property, thus failing to establish there is no triable issue as to this claim. Accordingly, Defendant’s motion for summary adjudication is DENIED as to the ninth cause of action.

Tenth Cause of Action: Declaratory Judgment

Defendant contends that Plaintiffs’ tenth cause of action for declaratory judgment is premised on Plaintiffs’ first through ninth causes of action, which all fail, such that this cause of action should be adjudicated in his favor. As stated above, the Court has found there is a triable issue as to all of Plaintiffs’ claims alleged in the SAC.

“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, quotation marks and brackets omitted.) Here, Plaintiffs seek a judicial determination as to whether the Palisair Homeowners Association has the sole and exclusive right to hear and decide Plaintiffs’ view rights claims against Defendant, as well as whether Plaintiffs have established the claims set forth in the SAC. (SAC ¶¶ 91-93.) Such controversies are proper bases for seeking declaratory judgment in Plaintiffs’ favor. Thus, Defendant’s motion for summary adjudication is DENIED as to the tenth cause of action.

Evidentiary Objections

Plaintiffs object to certain statements within the declarations of Defendant Timothy Haldeman and defense counsel Matthew S. Urbach and certain exhibits thereto. Plaintiffs’ objections are SUSTAINED in their entirety.

Defendant objects to certain statements within the declarations of Plaintiffs’ counsel Justin Escano, Plaintiff Martha Kaplan, Plaintiff Cameron Brown, and Plaintiffs’ expert Lisa Smith. Defendant’s objections are OVERRULED in their entirety.