TENTATIVE RULING

Defendant Daniel Borenstein and German Quality Builders, LLC’s Demurrer to Plaintiffs’ Complaint is OVERRULED as to the third and fourth causes of action and SUSTAINED with Leave to Amend as to the second cause of action for the limited purpose of alleging the doctrine of Negligence Per Se within their first cause of action for negligence.

Defendants Daniel Borenstein and German Quality Builders, LLC to give notice.

REASONING

Meet and Confer

As an initial matter, the Court notes that Defendants Daniel Borenstein and German Quality Builders, LLC meet-and-confer efforts were sufficient, as Code of Civil Procedure section 430.41, subdivision (a), requires meeting and conferring “in person or by telephone.” 

Here, Defendants Daniel Borenstein and German Quality Builders, LLC advance the declaration of their counsel of record Karen E. Aldeman, Esq. Counsel Aldeman avers she emailed Plaintiffs’ counsel, Bart Ring on November 9, 2023, setting forth the bases for Defendants Daniel Borenstein and German Quality Builders, LLC demurrer. (Aldeman Decl., ¶ 3, Ex. A.) On November 15, 2023, Aldeman avers she proposed dates and time to speak with Mr. Ring on the telephone regarding this instant demurrer. (Id. at ¶ 7, Ex. E.) Aldeman avers Mr. Ring responded to her prior meet-and-confer email by indicating his disagreement with the grounds for the demurrer. (Id. at ¶ 8, Ex. F.) Aldeman states she responded to Mr. Ring’s email proposing meet-and-confer over the telephone with additional dates and times for such a call. (Id. at ¶ 9, Ex. G.) On November 22, 2023, Aldeman declares she called Mr. Ring and left a voicemail message for him asking for a return call to further discuss the bases of the demurrer. (Id. at ¶ 10.) On November 27, 2023, Aldeman avers she spoke with Mr. Ring on the telephone and the parties were still unable to reach an agreement regarding the demurrer. (Id. at ¶¶ 11-12.)

Demurrer

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Defendants Daniel Borenstein and German Quality Builders, LLC demurs to the second, third, and fourth causes of action of Plaintiffs’ Complaint. The demurrer is made on the grounds that the above-referenced causes of action alleged in the Complaint (1) fail to state facts sufficient to constitute the second, third, and fourth causes of action against Defendants Daniel Borenstein and German Quality Builders, LLC; and (2) are uncertain.  

Second Cause of Action: Negligence Per Se

The doctrine of negligence per se creates a presumption of negligence, if plaintiff proves: “(1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218.)

In the Complaint, Plaintiffs’ allege Defendants have a non-delegable duty to properly secure and maintain their property in compliance with all relevant provisions of applicable orders, decisions, directions, rules, regulations, code sections, and statutes. (Compl., ¶ 57.) Furthermore, Plaintiffs’ allege violations of legislative and/or administrative regulations which define a minimum standard of conduct constitutes negligence per se. (Compl., ¶ 58.) Moreover, Plaintiffs’ allege Defendants violated each of the above-identified code sections by failing to comply with the express requirements of each provision. (Compl., ¶ 59.) As such, Plaintiffs’ allege Defendants' violations of the foregoing code sections amount to unreasonable and negligent conduct per se. (Id.) Plaintiffs’ also allege as the adjoining property owners, Plaintiffs were and are within the class of persons for whose protection these code sections were adopted. (Compl., ¶ 60.) Additionally, Plaintiffs’ allege Defendants are liable to Plaintiffs for all loss, damages, and injury caused by and resulting from the Defendants' violations as alleged herein according to proof. (Compl., ¶ 61.) Finally, Plaintiffs’ allege Defendants' conduct as set forth herein constitutes negligence as a matter of law and was the proximate cause of the damage and injury to Plaintiffs as pleaded herein. (Compl., ¶ 62.)

Defendants Daniel Borenstein and German Quality Builders, LLC argue negligence per se does not constitute a cause of action, so it is legal impermissible and unnecessarily duplicative of their first cause of action for negligence. 

In Opposition, Plaintiffs argue the allegations set forth in their second cause of action properly set forth the necessary elements creating a presumption affecting the standard of care for negligence. Specifically, Plaintiffs contend their second cause of action alleges applicable Fire Code sections and further alleges that Defendants violated the code sections. Plaintiffs further contend they allege each of them were within the class of persons for whose protection the code sections were adopted and that Defendants are liable for all damages caused by said violations. Moreover, Plaintiffs argue their second cause of action is simply a cause of action premised upon negligence, so the title of the cause of action is not dispositive of the viability of a claim. In addition, Plaintiffs assert the facts as pleaded constitute a sufficiently pleaded cause of action for negligence and is different from the facts constituting negligence, governed by distinct duty of care, set forth in the first cause of action. Finally, Plaintiffs argue the reference to the code violations simply establishes the standard of care for a properly pleaded negligence cause of action. 

In Reply, Defendants Daniel Borenstein and German Quality Builders, LLC argue Plaintiffs admit their second cause of action for negligence per se cannot stand alone. Furthermore, Defendants Daniel Borenstein and German Quality Builders, LLC argue Plaintiffs’ argument that the title they gave their second cause of action should be ignored is improper as a matter of law because it would result in duplicative pleading. 

As argued by Defendants Daniel Borenstein and German Quality Builders, LLC, Plaintiffs cannot plead Negligence per se as a separate cause of action. In Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210-11, the court held “Negligence per se is an evidentiary doctrine, rather than an independent cause of action. It can be applied generally to establish a breach of due care under any negligence-related cause of action. Therefore, the doctrine of negligence per se is within the scope of pleadings that allege general negligence, as proof of a breach of duty is not limited to common law standards of care.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210-11.)

Therefore, Defendants Daniel Borenstein and German Quality Builders, LLC demur as to the second cause of action for negligence per se is SUSTAINED with Leave to Amend for the limited purpose of alleging the doctrine of negligence per se within their first cause of action for negligence. 

Third Cause of Action: Trespass

“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.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

In the Complaint, Plaintiffs’ allege they were the owners of property damaged by the fire. (Compl., ¶ 64.) Plaintiffs’ further allege Defendants' negligent acts and omissions allowed the fire to ignite and/or spread out of control and specifically allowed it to spread onto the Plaintiffs' property, where it proximately caused Plaintiffs' significant damage. (Compl., ¶ 65.) Plaintiffs’ also allege they did not grant permission to Defendants to ignite, cause, spread or exacerbate the fire so as to permit it to enter their property. (Compl., ¶ 66.) Moreover, Plaintiffs’ allege as a direct, proximate and substantial cause of such trespass, Plaintiffs have suffered, and will continue to suffer, damages including, but not limited to, damage to real and personal property, discomfort, annoyance, inconvenience, mental anguish, nuisance, loss of quiet enjoyment, and emotional distress in an amount to be proven at trial. (Compl., ¶ 67.) Additionally, Plaintiffs’ allege the spread of fire from defendants' land onto plaintiff's land that causes damage constitutes a trespass. (Compl., ¶ 68.) Lastly, Plaintiffs’ allege a negligently escaping fire constitutes a trespass regardless of whether the fire is set or escapes as a result of negligence. (Id.)

Defendants Daniel Borenstein and German Quality Builders, LLC argue Plaintiffs’ allegation that “a negligently escaping fire constitutes a trespass regardless of whether the fire is set or escapes as a result of negligence” is legally incorrect and contrary to the holding of cited case Elton v. Anhesuer-Busch Beverage Group (1996) 50 Cal.App.4th 1301. Defendants Daniel Borenstein and German Quality Builders, LLC contend Plaintiffs do not allege and cannot allege that Defendants Daniel Borenstein and German Quality Builders, LLC intentionally started the fire. Defendants Daniel Borenstein and German Quality Builders, LLC further contend Plaintiffs repeatedly allege that unknown homeless people started the fire. 

In Opposition, Plaintiffs argue their third cause of action for trespass is properly plead. Further, Plaintiffs argue it is not the law that trespass can only be actionable if the fire was intentionally set, so the negligent setting of a fire that causes damage to another’s property is actionable as trespass. 

In Reply, Defendants Daniel Borenstein and German Quality Builders, LLC argue Plaintiffs misconstrue the holding in Elton v. Anhesuer-Busch Beverage Group, which does not support their third cause of action for trespass as a matter of law. Defendants Daniel Borenstein and German Quality Builders, LLC contend Plaintiffs cannot avoid the allegations in their Complaint which repeatedly allege that unknown homeless people started the fire. 

In Elton v. Anhesuer-Busch Beverage Group (1996) 50 Cal.App.4th 1301, 1307, the court stated, “the plaintiffs in Martin v. Union Pacific Railroad Company (1970) 256 Or. 563 [474 P.2d 739] claimed that the defendant railroad negligently caused a fire to occur on its right of way and negligently permitted the fire to escape and spread onto the plaintiffs' land. The Oregon Supreme Court held that “[t]he spread of the fire from defendants' land onto plaintiffs' land was an intrusion of a character sufficient to constitute a trespass.” (Elton v. Anhesuer-Busch Beverage Group (1996) 50 Cal.App.4th 1301). As such, the Elton court concluded “We agree.” (Id.)

Although the Elton case pertained to an intentional fire set by a defendant that negligently made its way onto the property of an adjoining landowner, the court relied on cases from other states that held fires negligently caused by a defendant that escaped and spread onto an adjoining landowner’s property constituted a trespass. Further, the court in Elton stated that they agreed with the rulings in these cases on that point. While it is correct the Plaintiffs here do not allege Defendants Daniel Borenstein and German Quality Builders, LLC intentionally caused the fire like in Elton, the Plaintiffs do allege Defendants Daniel Borenstein and German Quality Builders, LLC negligently caused and permitted a fire to spread onto their adjoining property. Plaintiffs also allege damage to their property actually occurred as a result of Defendants Daniel Borenstein and German Quality Builders, LLC negligence, thus constituting a trespass. 

Therefore, Defendants Daniel Borenstein and German Quality Builders, LLC’s demur as to the third cause of action for trespass is OVERRULED. 

Fourth Cause of Action: Private Nuisance

To establish a private nuisance claim, “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, 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.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

In the Complaint, Plaintiffs’ allege around 10 p.m. on October 2, 2022, they were at home preparing for bed. (Compl., ¶ 30.) Plaintiffs’ also allege around 10:45 p.m. a neighbor across the street called 9-1-1 when he noticed flames on Defendants’ property. (Compl., ¶ 31.) Additionally, Plaintiffs’ allege they were nearly sleep when they noticed flashing lights outside their bedroom window. (Compl., ¶ 32.) Plaintiff Kasindorf went to investigate after Plaintiff Hawkins woke him up and discovered the windows in the living room were hot they began to pop. (Id.) Plaintiffs fled their property with their dog but could not find their cat. (Id.) The fire took more than 100 firefighters over an hour and half to extinguish. (Id.) Plaintiffs suffered a total loss of their dwelling, personal property, safety, and peace of mind. (Compl., ¶ 36.) Plaintiffs lack adequate insurance to rebuild and replace what they have lost. (Id.) Plaintiffs then allege they suffered harm because Defendants created a nuisance. (Compl., ¶ 71.) Plaintiffs’ further allege Defendants' actions, conduct, omissions, negligence, trespass, and failure to act resulted in a fire hazard, fire, spreading of the fire and a foreseeable obstruction to the free use of Plaintiffs' property, invasion of Plaintiffs' right to their property, interference with Plaintiffs' property use, and causation of substantial actual damages constituting a nuisance pursuant to California Civil Code § 3479. (Compl., ¶ 72.) Specifically, Plaintiffs’ allege the fire, smoke, soot, and ash created a nuisance that has harmed plaintiffs. (Compl., ¶ 74.) The fact that a third party may have contributed to initially igniting the fire does not absolve Defendants from their negligent maintenance and fire suppression acts and omissions that created a nuisance. (Id.) Defendants' conduct in acting or failing to act was intentional and patently unreasonable, and/or reckless, and/or negligent. (Id.) The conditions they allowed to survive on their private property created a nuisance that substantially interfered with Plaintiffs' use or enjoyment of their land, and an ordinary person would reasonably be annoyed or disturbed by Defendants' conduct. (Id.) Plaintiffs did not consent to Defendants' conduct. (Id.) Moreover, Plaintiffs’ allege Defendants' conduct was a substantial factor in causing Plaintiffs' harm. (Compl., ¶ 75.) Lastly, Plaintiffs’ allege as a direct and proximate result of the acts and omissions of Defendants, Plaintiffs sustained losses and damages including but not limited to damage to property, discomfort, annoyance, inconvenience, loss of quiet enjoyment, mental anguish, personal injury and emotional distress, all in an amount to be proven at trial. (Id.)

Defendants Daniel Borenstein and German Quality Builders, LLC argue Plaintiffs allege no additional facts in support of their nuisance cause of action than they do in their first cause of action for negligence. 

In Opposition, Plaintiffs argue negligence and nuisance are distinct causes of action properly pleaded by Plaintiffs. Furthermore, Plaintiffs contend in Melton v. Boustred (2010) 183 Cal.App.4th 521, 542, cited by Defendants Daniel Borenstein and German Quality Builders, LLC, the court determined neither a viable negligence nor viable nuisance claim existed against defendants who held a party at their home. Moreover, Plaintiffs argue the allegations in Melton are wholly distinct from Plaintiffs’ allegations. 

In Reply, Defendants Daniel Borenstein and German Quality Builders, LLC argue Plaintiffs largely ignore the dispositive case law which makes it clear that their fourth cause of action for private nuisance fails as a matter of law. Defendants Daniel Borenstein and German Quality Builders, LLC further argue Plaintiffs choose to ignore that their nuisance and negligence causes of action rely on identical facts with respect to the acts Plaintiffs contend form the basis of liability such that their nuisance cause of action must fail as a matter of law. 

In El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348, the court held “because of the broad definition of nuisance, whether a cause of action is viable depends on the facts of each case.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348.) Thus, “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Assn., supra, 154 Cal.App.4th at 1349.) 

Although Plaintiffs’ cause of action for nuisance appears to allege facts that are identical of their cause of action for negligence, for purposes of a demurrer, the Complaint is read in whole. The background and factual allegations pleaded by Plaintiffs in the Complaint are sufficient to support their fourth cause of action for private nuisance. Plaintiffs’ allege the fire that was ignited on Defendants Daniel Borenstein and German Quality Builders, LLC property interfered with their use and enjoyment of their home, their home was completely destroyed by the fire, it took several firefighters over an hour to put out the fire, and they lack the adequate insurance to rebuild or replace their home. 

Therefore, Defendants Daniel Borenstein and German Quality Builders, LLC demur as to the fourth cause of action is OVERRULED.