Judge: Mark A. Young, Case: 21SMCV01032, Date: 2023-01-20 Tentative Ruling

Case Number: 21SMCV01032    Hearing Date: January 20, 2023    Dept: M

CASE NAME:           Haim, et al., v. Laaly, et al.

CASE NO.:                21SMCV01032

MOTION:                  Demurrer and Motion to Strike the First Amended Cross-Complaint

HEARING DATE:   1/17/2023

BACKGROUND

This action arises from a neighbor dispute over an express easement. Plaintiffs/Cross Defendants Jason Heim and Amy Goldsmith own real property at 165 Little Park Lane, Los Angeles, CA (identified and referenced in grant deeds as Parcel 1, Lot 5 of Tract No. 29831). Defendants/Cross-Complainants Noushin Abrishami Laaly and Koroush Cyrus Laaly own real property at 166 Little Park Lane, Los Angeles, CA (identified and referenced in grant deeds as Parcel 1, Lot 6 of Tract No. 29831). The easement grants Plaintiffs “an exclusive easement for yard and landscaping purposes” over a portion of the Laaly’s property.

Haim and Goldsmith filed suit against the Laalys on June 9, 2021.  The Laalys then filed a Cross-Complaint on March 14, 2022, Their operative First Amended Cross-Complain (“FACC”) alleges eleven causes of action for 1) Quiet title - extinguishment of easement; 2) Unreasonable use of easement; 3) Breach of easement; 4) Willful and malicious cutting of timber; 5) Trespass – real property; 6) Private nuisance; 7) Trespass to chattel; 8) Conversation of chattel; 9) Negligence; 10) Injunctive relief; and 11) Declaratory relief.  Cross-Defendants demur to each Cause of action and move to strike punitive damages.

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 submits a declaration that complies with these requirements.

Analysis

Express Easement

Cross-Defendants argue that the plain language of the exclusive easement, which is “an exclusive easement for yard and landscaping purposes,” provided Haim and Goldsmith with the right to do what they allegedly did wrong: take down and erect a fence; remove a tree; and remove planters and a brick wall.  “An easement is a restricted right to specific, limited, definable use or activity upon another's property, which right must be less than the right of ownership.” (Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1261, italics omitted). “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 . . ..” (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1053-54.)

“The extent of a servitude is determined by the terms of the grant.” (Civil Code § 806.) “It is fundamental that the language of a grant of an easement determines the scope of the easement.” (Schmidt v. Bank of America, N.A. (2014) 223 Cal. App.4th 1489, 1499 [internal citations and punctuation omitted].) “An easement agreement is subject to the rules of interpretation that apply to contracts. As with all contracts, the paramount goal of interpreting the writing creating an easement is to determine the intent of the parties[.]” (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 777) [internal citations and punctuation omitted].) It is “essentially a judicial function to be exercised according to the generally accepted cannons of interpretation so that the purposes of the instrument may be given effect[.]” (Parsons v. Bristol Development Co. (1965) 62 Cal.2nd 861, 865.) 

Where a contract term is ambiguous, the plaintiff’s interpretation of the contract must be accepted as correct in testing the sufficiency of the complaint. (See Aragon-Haas v. Family Security Ins. Services Inc. (1991) 231 Cal.App.3d 232, 239 [“[A] general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.”].) “On a demurrer, the court must consider the sufficiency of the allegations, including any parol evidence allegations, to determine whether the contract is reasonably susceptible to plaintiff’s alleged interpretation.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1128.) Where the allegations are insufficient to support an interpretation to which the contract is reasonably susceptible, a demurrer is properly sustained. (Id. at 1127-28.)  A contract would be considered ambiguous where the contractual language is “‘“capable of two or more constructions both of which are reasonable.” ’ [Citation.] ‘Courts “will not adopt a strained or absurd interpretation in order to create an ambiguity where none exists[.]”’” (Baldwin v. AAA Northern California, Nevada & Utah Ins. Exchange (2016) 1 Cal.App.5th 545, 553.) 

Here, the issue is whether the alleged pled conduct was for “landscaping purposes.” Cross-Complainant pleads that Cross-Defendants a) destroyed a wood fence in the easement, erected a new fence, and painted the new fence gray, which matches the color of Haim's and Goldsmith's house (¶17); b) cut down and uprooted a palm tree in the easement (¶19); c) destroyed planters located in the easement (¶20); and d) destroyed a brick wall surrounding the easement. (¶ 21.) The FACC alleges that Cross-Defendants’ conduct exceeded the proper and authorized scope of the Easement, which was for “landscaping purposes only,” and “inconsistent with its purpose and character” of the Easement. (¶¶ 31, 41.) Read liberally, Cross-Complainants plead, as a matter of fact, that the conduct was not for yard/landscaping purposes. While the term landscaping could naturally include the destruction of fencing/walling, felling of trees, or destruction of planters, these activities are not objectively for “landscaping purposes.” This would depend on the pled purpose for the projects. As pled, the conduct exceeded the scope of the yard/landscaping purpose and character of the Easement. 

Accordingly, Cross-Defendants’ demurrer is OVERRULED.

Motion to Strike – Punitive Damages

Cross-Complainants have not pled sufficient facts to support a claim of punitive damages under Civil Code section 3294. 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.” “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct. (1994) 8 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.)

Plaintiffs’ allegations concerning Defendants’ actions do not rise to the level of despicable conduct for malice. Cross-Complainants only plead conclusions of malice.   Here, the only conduct pled is that Cross-Defendants intentionally a) destroyed a wood fence in the easement, erected a new fence, and painted the new fence gray in color, which matches the color of Haim's and Goldsmith's house (¶17); b) cut down and uprooted a palm tree in the easement (¶19); c) destroyed planters located in the easement (¶20) and d) destroyed a brick wall surrounding the easement. (¶ 21.)  Such actions, however, do not amount to egregious behavior that courts have held to be “despicable” for purposes of punitive damages. Accordingly, Cross-Defendants’ motion is GRANTED with leave to amend.

Cross-Complainants have 10 days to file an amended complaint.