Judge: Mark A. Young, Case: 20SMCV01737, Date: 2022-08-09 Tentative Ruling
Case Number: 20SMCV01737 Hearing Date: August 9, 2022 Dept: M
CASE NAME: Malibu Kanan LLC, v. Yao, et al.
CASE NO.: 20SMCV01737
MOTION: Demurrer & MTS to the Second Amended Complaint
HEARING DATE: 8/9/2022
BACKGROUND
Following a successful motion for leave to amend, Plaintiff filed the operative Second Amended Complaint (SAC) on March 9, 2022. The SAC alleges five causes of action for: 1) trespass to land; 2) breach of secondary easement; 3) negligence; 4) nuisance; and 5) declaratory relief. On April 27, 2022, Defendants filed a demurrer and motion to strike against the SAC. On June 17, 2022, Plaintiff filed a proposed Third Amended Complaint without leave of Court. Plaintiff has otherwise not filed an opposition.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)
MEET AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Yao Decls. ¶¶ 2-3.)
Analysis
Third Amended Complaint
On its own motion, the Court strikes the Third Amended Complaint filed by Plaintiff on June 17, 2022. (CCP § 436.) The Court, however, will consider the TAC as an offer of proof that the claims may be amended.
COA 1 – Trespass to Land
Trespass is the physical intrusion upon property of another without the permission of the person lawfully entitled to possession. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1131 – 1132; Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 511-512.) Trespass only requires intent to enter the property or to cause an object to enter the property. Therefore, even an action in good faith or by negligence is still subject to liability for trespass. (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 778.) The elements of trespass are “(1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry on the property; (3) lack of permission to enter the property, or acts in excess of the permission; (4) actual harm; and (5) the defendant’s conduct as a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-62.)
A defendant does not need to enter plaintiff's property personally, as casting substances or objects onto the property qualifies as entry. (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1306-1307 [examples of trespassory invasion may take the form of “ginning lint”, “cement dust”. and “even invisible particles of fluoride compounds”].) Further, “[a]n entry may also be accomplished by setting in motion an agency which, when put in operation, extends its energy to the plaintiff's premises to its material injury. Thus, intangible intrusions such as noise or vibrations may constitute a trespass if they cause actual physical damage as opposed to merely a diminution in market value. Even damaging electronic signals sent by a computer “hacker” can constitute a trespass to personally.” (Id. at 1307, citations and quotations omitted.)
The SAC alleges ownership of the relevant property. Plaintiff is a California limited liability company that owns undeveloped real property located at 5610 Villa Mar Place, Malibu, CA 90625. (SAC ¶ 7.) Defendants own an adjacent property. (SAC ¶ 9.) At some point prior to Plaintiff’s purchase of the Property, the Property, Defendants’ Property, and one additional adjacent parcel of land were owned as a single parcel by a common owner. (SAC ¶¶ 10-11.)
The SAC alleges Defendants’ intentional entry onto the property that caused damages to Plaintiff’s property. In August 2020, Defendants performed landscaping on the boundary of the properties, including planting trees and running irrigation lines. (SAC ¶¶20-21.) Following a survey of the land, Plaintiff determined that Defendants were planting trees on its Property, and that irrigation lines also reached onto its Property. (SAC ¶¶ 23-24.) Plaintiff requested that Defendants remove the trees, tools and irrigation lines. (SAC ¶¶ 25-26.) Defendants did nothing in response to Plaintiff’s requests and Plaintiff ultimately paid to remove the trees itself. (SAC ¶ 27.) Moreover, Plaintiff did not give permission to Defendants or Defendants’ agents to trespass on its Property. (SAC ¶ 35.) Therefore, the SAC provides an adequate factual basis for the claim.
Accordingly, Defendants’ demurrer is OVERRULED.
COA 2 – Breach of Easement
An easement creates a nonpossessory right to enter and use land in another's possession and obligates the possessor not to interfere with the uses authorized by the easement. (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1053.) “An easement may be created by (1) an express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, or (11) a court decision....” (Id. at 1053-54.)
“[W]here it is sought to have it decreed that real property of a person is subject to a use or easement in favor of another, the property affected must be described in the pleadings with such certainty as to enable the party against whom the claim is made to definitely know exactly what portion of his property is so claimed . . . .” (Ames v. Prodon (1967) 252 Cal.App.2d 94, 10.) “[A]n allegation that plaintiff is the owner of specific real property, has always, in this state, been regarded as an averment of an ultimate fact, not of a conclusion of law… we see no reason why an allegation that the plaintiff is the owner of a described right of way or other easement over defendant's land, and that such easement is appurtenant to plaintiff's land, should not be regarded as a sufficient statement of the ultimate facts to be established.” (Corea v. Higuera (1908) 153 Cal. 451, 455.) Thus, a complaint sufficiently pleads the easement or right of way where the complaint definitely describes the land, and asserts a definite purpose of the easement or right of way. (City of Santa Ana v. Brunner (1901) 132 Cal. 234; see Harrison v. Bouris (1956) 139 Cal.App.2d 170, 177 [to plead an easement by prescription, the use of the easement must be plead].)
The SAC alleges Plaintiff’s Property is one of the parcels that possesses an easement to use the main access driveway that is located on Defendants’ Property. (SAC ¶ 14.) The SAC alleges in the alternate that “an express easement was granted to the owners of two of the parcels, to use the main entry driveway located on the third parcel, as a means to access their parcels” (SAC ¶ 12), and “an implied easement was created when the aforementioned subdivisions took place” (SAC ¶ 13).
In August 2020, Plaintiff prepared to develop the Property, but observed that Defendants had built a gate to restrict access to the main entry driveway. (SAC ¶¶ 15-16.) Despite being informed of Plaintiffs’ right to access the main entry driveway for ingress and egress, Defendants refused to allow Plaintiff to use the driveway and impeded the development of the Property. (SAC ¶¶ 17-19.) With these allegations, Plaintiff states the ultimate fact of the existence of an easement. Plaintiff describes the relevant land, the easement, and that the easement is appurtenant to Plaintiff’s land. This is sufficient for pleading purposes. Defendants offer no authority that Plaintiff must plead anything additional.
COA 3 – Negligence
To plead a cause of action for negligence, a party must allege: (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn, supra, 147 Cal.App.4th at 747.)¿ Moreover, breach of duty and causation are ordinarily questions of fact and can only be decided as a matter of law where reasonable minds cannot differ. (See Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 [discussing re: MSJ]; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052 [negligence is the cause in fact of plaintiff's injury if it is a substantial factor in bringing about the harm].)
As discussed above, Plaintiff has stated a duty regarding the easement. (SAC ¶ 49.) By building a gate to block the main driveway and by not allowing Plaintiff to use the driveway, Defendants breached their duties to Plaintiff. (SAC ¶50.) As a result, Plaintiff has been damaged. (SAC ¶¶51-52.) Thus, a negligence claim is stated.
Accordingly, the demurrer is OVERRULED.
COA 4 – Nuisance
“Anything 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 . . . is a nuisance.” (Civ. Code, § 3479.)¿To state a cause of action for private nuisance, a plaintiff must allege a non-trespassory interference with the private use and enjoyment of property. (Civ. Code, §§ 3479 – 3481; San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.) Liability for private nuisance also requires two additional elements: (i) substantial actual damage, which is (ii) unreasonable as to its nature, duration, frequency or amount. (Id. at 937-938.)
Virtually any disturbance of the enjoyment of property may amount to a nuisance, so long as the interference is substantial and unreasonable. (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) “As stated by Prosser: ‘There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word “nuisance.” It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.’ ” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.) Whether the interference is substantial and unreasonable is a question of fact requiring determination of all the circumstances of the case. (Mendez v. Rancho Valencia Partners, LLC (2016) 3 Cal.App.5th 248, 263-64.)¿¿
Here, Defendants built a gate to restrict access to the driveway, and refuse to open the gate to allow Plaintiff to access the driveway, which substantially obstructs Plaintiff from using its Property and the easement. (SAC ¶¶ 55, 58-59.) Defendants unreasonably refuse to allow Plaintiff to enter their property through the gate, despite the easement. (SAC ¶57.) Therefore, Plaintiff has pled that Defendants maintain a non-trespassory condition which unreasonably interferes with Plaintiffs’ use of their property. As a result, Plaintiff suffered actual damages. (SAC ¶62.)
Accordingly, Defendants’ demurrer is OVERRULED.
COA 5 – Decl. Relief
To state a cause of action for declaratory relief, the plaintiff must plead the following elements: (1) person interested under a written instrument or a contract; or (2) a declaration of his or her rights or duties (a) with respect to another or (b) in respect to, in, over or upon property; and (3) an actual controversy. (CCP §1060; Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592, 605-06; Bennett v. Hibernia Bank (1956) 47 Cal. 2d 540, 549.)
Here, an actual controversy has arisen between Plaintiff and Defendants regarding the right for Plaintiff to use the driveway located on Defendant’s Property to access Plaintiff’s Property pursuant to an easement. (SAC ¶ 67.) Thus, the SAC states a judiciable controversy with respect to the parties’ real property rights.
Accordingly, Defendants’ demurrer is OVERRULED.
Motion to Strike - Punitive Damages
Civil Code section 3294 defines malice as conduct “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.” Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct. (1994) 9 Cal.4th 704, 726.) The statute “plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of “despicable conduct” must be found.” (Id.)
Plaintiff pleads that Defendants willfully and maliciously trespass onto Plaintiff’s property in violation of the easement and continued to restrict access to the driveway even after they were provided with documentation verifying the easement. (SAC ¶¶ 28, 38, 64.) However, Defendants’ alleged conduct does not rise to the level of “despicable” conduct required by malice and as described by caselaw. (See, e.g., Angie M. (1995) 37 Cal.App.4th at 1221—1222 [finding vile, base, or contemptible conduct in unlawful seduction and sexual abuse when a 48-year-old doctor engaged in sexual intercourse with a minor, plying the minor with drugs and alcohol, and paying the minor to procure illegal substances for him]; Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1280 [finding despicable conduct when a manufacturer “fully understood that asbestos dust endangered workers, but did not issue warnings to customers” until much later and using the products in ways that generated considerable asbestos dust].)
As the factual allegations of the complaint are not sufficient to rise to the level of despicable conduct, Plaintiff’s claim for punitive damages is not properly supported. Plaintiff has also failed to demonstrate a reasonable possibility of successful amendment to state a claim for punitive damages. Inspecting the proffered TAC, the Court finds no attempt to plead any “base,” “vile,” or “contemptible” conduct. Therefore, Defendants’ motion to strike is GRANTED without leave to amend.
Motion to Strike – Factual Allegations
Defendants target specified factual allegations, contending that they are false. Defendants rely on factual contentions outside of the scope of the pleadings. As such, Defendants’ motion to strike the factual allegations of the complaint is DENIED.