Judge: Mark A. Young, Case: 22SMCV01612, Date: 2023-04-19 Tentative Ruling

Case Number: 22SMCV01612    Hearing Date: April 19, 2023    Dept: M

CASE NAME:           Campagna, et al., v. Leff, et al.

CASE NO.:                22SMCV01612

MOTION:                  Demurrer to the Complaint

HEARING DATE:   4/19/2023

 

BACKGROUND

 

This case arises from a neighbor-dispute over a newly installed fence. Plaintiffs’ properties (Campagna and Raleigh Parcels) abut Defendants’ parcels. For more than 50 years previously, there was a low slatted chain-link fence between Defendants’ Parcels and the Campagna and Raleigh Parcels. Defendants have installed a new wood-slat fence, which exceeds the height of the previous fence, moved closer to the Plaintiffs properties, and which now obstructs the views from multiple locations of Plaintiffs’ homes and on their properties. In addition, Defendants have planted new trees which will further block Plaintiffs’ views in violation of the conditions, covenants and restrictions (CC&Rs). Plaintiffs also claim an easement for the space between the newly installed wood fence and the previous chain-link fence.

 

The complaint states five causes of action for breach of CC&Rs (1st & 5th), Equitable/Prescriptive Easements (2nd & 3rd), and Nuisance (4th).

 

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.)

 

Analysis

 

Defendants demur to the second and third causes of action for equitable/prescriptive easement, and the fourth cause of action for nuisance. 

 

Second and Third Causes – Equitable/Prescriptive Easements

 

Defendants argue that Plaintiffs impermissibly seek the easements based on allegations of information and belief, and that they seek an exclusive easement.

 

An equitable easement requires that: (1) the use of the property was innocent; (2) the property owner is not irreparably injured by the use; and (3) the hardship to the claimant from having to cease usage is greatly disproportionate to the hardship caused to the owner by the continued usage. (Shoen v. Zacharias, (2016) 237 Cal.App.4th 16, 19, 30 [generally, equitable easements are granted only in cases involving permanent physical encroachments].) Factors a court considers in determining whether to grant an equitable easement include whether the trespass was innocent rather than willful or negligent and whether the servient property owner will suffer irreparable injury by the easement. (Hinrichs v. Melton (2017) 11 Cal.App.5th 516, 522.)

 

The creation of a prescriptive easement requires (1) open and notorious use of another’s land, (2) the use is continuous and uninterrupted for five years, and (3) the use is hostile and adverse to the land’s owner. (Warsaw v. Chicago Metallic Ceilings, (1984) 35 Cal.3d 564, 570; see Grant v. Ratliff, (2008) 164 Cal.App.4th 1304, 1310 [party seeking to establish a prescriptive easement has the burden of proof by clear and convincing evidence].) “Whether the elements of prescription are established is a question of fact . . ..” (Id.) The use of the land must be open and notorious such that the owner of the property has actual or constructive notice of the use. (Connolly v. McDermott, (1984) 162 Cal. App. 3d 973, 977.) The use of the land must be hostile and adverse, meaning it is without the permission of the owner and used with hostile and adverse intent. (Clarke v. Clarke, (1901) 133 Cal. 667, 669.) A nonexclusive easement may be proper, but "an exclusive prescriptive easement, 'which as a practical matter completely prohibits the true owner from using his land'..., will not be granted in a case ... involving a garden-variety residential boundary encroachment." (Harrison v. Welch (2004) 116 Cal. App. 4th 1084, 1093.)

 

In the second cause of action, Plaintiffs Campagna seeks to adjudicate their right to an easement to the “Campagna Disputed Area.” This area is located between the legal boundary of the Campagna Parcel and the original fence on Defendants’ parcel. (Compl., ¶¶ 17, 25.) Campagna alleges that it has been used “exclusively” by Campagna and their predecessor owners for ingress/egress, support and landscaping purposes for more than the past 5 years. (Id.) They further allege that the Campagnas’ and their predecessor’s use of the Campagna Disputed Area has been continuous, open, notorious, non-permissive, and more than 5-years, such that Campagna is entitled to relief in the form of an equitable or prescriptive easement. (¶ 26.) Campagna contends that it continues to have the easement rights to use the area, whereas Defendants contend that Campagna has no such right (¶ 27.) Plaintiff Raleigh makes similar allegations as to the “Raleigh Disputed Area,” which is located between the legal boundary of the Raleigh Parcel and the location of the original fence located on Defendants’ Parcel 2. (¶¶ 32-35.)

 

Generally, in ruling on a demurrer, the court must assume the allegations to be true, and the ability to prove the allegations is not at issue. (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036.) That said, allegations based on information and belief must set forth facts upon which the belief is founded. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1159.) As explained by Plaintiffs’ cited authorities, allegations on information and belief are appropriate where the facts are not necessarily within the plaintiff's personal knowledge. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; citing Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792 [overruling order sustaining a demurrer where plaintiff alleged on information and belief that he lost employment due to defamatory statements].) Thus, a plaintiff may not allege facts “upon information and belief” when he has reason to know them directly. Here, Plaintiffs allege facts upon information and belief that are not necessarily within their personal knowledge. (See, e.g., Compl., ¶¶ 25, 27.)  For example, the allegation that Plaintiffs’ and their predecessor’s use of the Campagna Disputed Area was continuous, open, notorious, non-permissive, and in excess of the statutory 5-years would, in part, not be in their exclusive knowledge. (¶¶ 26, 33-34.) Thus, the Court is not inclined to sustain the demurrer due to Plaintiffs’ “information and belief” allegations.

 

Defendants also note that Plaintiffs seek an exclusive easement. Plaintiffs argue that they are not seeking an exclusive easement, and that Defendants focus on mere averments of fact. However, based upon the language of the complaint, Plaintiffs plainly seek an exclusive easement. As to the second and third causes of action, Plaintiffs seek a “declaration that Plaintiffs have exclusive rights to a prescriptive and/or equitable easement over the Disputed Area for ingress/egress, landscaping and support, and related uses.” (Compl., p. 12.) As noted, an exclusive easement cannot be granted in a garden-variety residential boundary dispute such as this matter. 

 

To the extent that the causes seek an equitable easement, the complaint does not establish that the balance of hardships favor Plaintiffs. Plaintiffs only rely on the fact that they have used the areas for ingress/egress, support and landscaping purposes for more than the past five years.  This does not state that any facts suggesting that if Plaintiffs cease usage of the disputed areas, that they would suffer a greatly disproportionate hardship. Moreover, the allegations do not establish that Defendants would not be irreparably injured.

 

Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend.

 

Fourt Cause of Action for Nuisance – Spite Fence

 

Defendants assert that the fourth cause of action fails to state sufficient facts supporting a nuisance based on a “spite fence.”  A nuisance includes anything “injurious to health,¿including, but not limited to . . . [anything that] 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. . .” (Civ. Code, § 3479.) “Nuisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1373; Moylan v. Dykes (1986) 181 Cal.App.3d 561, 574 [Notably, an interference with a plaintiff’s use of an easement gives rise to a cause of action for private nuisance].)

 

The elements of a private nuisance are: (1) a interference with the use and enjoyment of the property; (2) a substantial “invasion of the plaintiff’s interest in the use and enjoyment of the land” which causes the plaintiff to suffer “substantial actual damage;” and (3) the interference is 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.’ ” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63 [internal citations omitted].) The test for whether the conduct is unreasonable, is “whether reasonable persons generally, looking at the whole situation impartially and objectively would consider [the interference] to be unreasonable.” (San Diego Gas & Elec. Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.)

           

Plaintiff claims that the fence is a nuisance based on Civil Code section 841.4. To establish a cause of action for nuisance by spite fence under that section, a plaintiff must show that the “fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height” was “maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property.”

 

The complaint does not allege that Defendants’ fence is greater than 10 feet.  Plaintiffs note that it is not strictly necessary that the spite fence be more than 10 feet high. (Griffin v. Northridge (1944) 67 Cal. App. 2d 69.) In Griffin, the Court noted that “[e]ven though the fence had not been ten feet in height, still it was a nuisance if it was constructed with malicious intent, interfered with plaintiffs' full enjoyment of their home and if its usefulness to defendants was ‘subordinate and incidental.’” (Id., at 75.) However, Plaintiffs do not allege facts that Defendants erected the fence with malicious intent or that the fence’s usefulness was subordinate or incidental to that intent. Instead, Plaintiffs allege that Defendants’ failure to adjust or remove the height of the fence was intentional and malicious. (Compl., ¶ 45.) This averment is conclusory and does not even state the requisite intent or malice under the statute (or Griffin). Plaintiffs must allege facts that show Defendants erected or maintained the fence with the intent to annoy Plaintiffs, and that the usefulness of the fence was subordinate/incidental, such that the fence would be an objectively unreasonable interference with Plaintiffs’ use of their property.

 

Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend.

 

Plaintiffs have 10 days leave to file an amended complaint consistent with this order.