TENTATIVE RULING

Defendant Hillcrest Country Club’s Demurrer to First Amended Complaint is SUSTAINED without leave to amend as to the first cause of action and OVERRULED as to the third cause of action.

Defendant Hillcrest Country Club’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.

Defendant Hillcrest Country Club shall file and serve an answer to the First Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant Hillcrest Country Club to give notice. 

REASONING

Defendant Hillcrest Country Club (“Defendant”) demurs to the first and third causes of action in Plaintiffs Yaron Levy and Yael Levy, Trustees, Yaron and Yael Levy Revocable Trust (“Plaintiffs”) complaint and moves to strike Plaintiffs’ references to general damages and temporary restraining orders.

Legal Standard

“[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 (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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 Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

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.)

First Cause of Action: Wrongful Discharge of Surface Water

In the first cause of action, Plaintiffs take issue with Defendant’s alleged alteration of the natural discharge of surface water without providing for an adequate drainage system to accommodate said changes, such that voluminous surface water, mud, silt, and debris are now discharged onto Plaintiffs’ property, interfering with Plaintiffs’ use and enjoyment of the property and causing damage to Plaintiffs’ property. (First Am. Compl. ¶ 9.)

Put simply, there is no cause of action for wrongful discharge of surface water. While Plaintiffs may have a claim based on the wrongful discharge of surface water, this conduct is not in itself a cognizable claim, i.e., it is conduct informing a negligence claim, a trespass claim, or a nuisance claim. Plaintiffs assert the same conduct in their claim for negligence. (First Am. Compl. ¶ 20.) In Plaintiffs’ claim for trespass, they assert that Defendant trespassed onto Plaintiffs’ property by causing the migration of surface water, mud, silt, and debris onto their property. (First Am. Compl. ¶ 28.) In the claim for trespass, Plaintiffs assert that Defendant’s diversion of surface water and inadequate drainage interferes with Plaintiffs’ use and enjoyment of their property. (First Am. Compl. ¶¶ 35-36.) It follows that Plaintiffs’ first cause of action for wrongful discharge of surface water asserts the same conduct alleged in the other three causes of action, does not allege different damages, and does not seek different relief. Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED without leave to amend.

Third Cause of Action: Trespass

To set forth a cause of action for trespass, Plaintiffs must allege (1) Plaintiffs’ lawful possession or right to possession of real property; (2) Defendant’s wrongful, intentional, reckless, or negligent act of trespass on the property; (3) Plaintiffs did not give permission for the entry or scope of permission was exceeded; and (4) damage to Plaintiffs caused by the trespass. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

Defendant argues that Plaintiffs are required to allege an intentional entry onto their property. The Court finds that it is a question of fact for the trier of fact to determine whether Defendant’s alleged conduct rises to the level of trespass. Plaintiffs allege that Defendant failed to exercise due care in maintaining its property, thereby allowing water to flow to Plaintiffs’ land. Defendant’s conduct in allowing the water to flow naturally could be considered a trespass if Defendant had knowledge or reason to know that the water would flow to Plaintiffs’ property. Thus, Defendant’s demurrer to the third cause of action is OVERRULED.

Motion to Strike

Defendant seeks to strike Plaintiffs’ references to general damages, which are included in the prayer for each cause of action, because such damages are not available in property damage cases. Notably, Plaintiffs have alleged emotional distress and inconvenience due to Defendant’s conduct (see First Am. Compl. ¶¶ 25, 31, 37) such that damages are available beyond simple repair to property. (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 464 [“Damages recoverable in a successful nuisance action for injuries to real property include not only diminution in market value but also damages for annoyance, inconvenience, and discomfort”].)

Defendant also moves to strike Plaintiffs’ references to temporary restraining orders, included with the prayer for the third and fourth causes of action. Defendant argues that Plaintiffs are not entitled to a temporary restraining order where monetary damages are an adequate remedy. Plaintiffs have alleged harm in being denied their full use and enjoyment of their property and emotional distress, which may warrant the issuance of a temporary restraining order. (See Code of Civil Procedure § 527, subd. (c).)

Accordingly, Defendant Hillcrest Country Club’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint is DENIED.