Judge: Mark C. Kim, Case: 19TRCV00698, Date: 2022-12-06 Tentative Ruling
Case Number: 19TRCV00698 Hearing Date: December 6, 2022 Dept: S27
1. Background
Facts
Plaintiff, Chih and Yin Change and
Else and Scott Haley, individually and as trustees of their family trusts,
filed this action against Defendants, John and Dina Gample and their family
trust, as well as Juge Company, Inc., Joseph Harold Juge, Jr., Juge Design and
Construction, John Juge, and Juge & Juge for damages arising out of construction
work done on Defendants’ property.
Plaintiffs’ previous First Amended
Complaint includes causes of action for Breach of Statutory Building Codes and Ordinances,
Trespass on Real Property, Trespass on Real Property, Negligence, Invasion of
Privacy, and Quiet Title.
On 4/19/22, the Court heard and
granted Plaintiffs’ motion for leave to amend.
Plaintiffs were permitted leave to file a Second Amended Complaint,
wherein they added the City of Torrance as a defendant in the action. Plaintiffs added the City because the Gample Defendants,
in their cross-complaint, seek to use an alleged City easement as a drain line
over Plaintiffs’ property. Plaintiffs,
by way of their amended complaint, seek a declaration that there is no such easement.
On 10/25/22, the Court granted the
Gamples’ motion for leave to amend their cross-complaint. In their amended cross-complaint, they added
a claim for quiet title against the City, seeking a declaration that they have the
right to use the City easement for draining purposes.
2. Motion
to Strike
a.
Parties’ Positions
Plaintiffs’ SAC includes a prayer
for attorneys’ fees pursuant to the “tort of another” doctrine. Defendants move to strike that prayer and the
related language, contending the “tort of another” doctrine does not
apply. Plaintiffs oppose, contending
Defendants’ conduct caused them to be required to sue the City, and therefore the
doctrine applies and they are entitled to recover their attorneys’ fees
incurred in prosecuting their claims against the City.
b. Tort
of Another Doctrine
The parties discuss the case of Prentice v. North Am. Title Guaranty
Corp. (1963) 2 Cal.2d 618, which explains the “tort of another” doctrine. It explained the doctrine as follows:
A person who through the tort of another has been required to act in
the protection of his interests by bringing or defending an action against a
third person is entitled to recover compensation for the reasonably necessary
loss of time, attorney's fees, and other expenditures thereby suffered or
incurred.
In Prentice, the plaintiffs sold their land to the Hortons. The defendant acted as escrow holder and
closed the transaction. The defendant
erred in connection with the transaction, and the error necessitated the filing
of a complaint by the plaintiffs against the Hortons for quiet title. The plaintiffs were successful in their
action against the Hortons. They then
filed suit against the escrow holder for negligence, and the primary damages they
sought were the attorneys’ fees they incurred in prosecuting the prior action
against the Hortons. The trial court
found in the plaintiffs’ favor and awarded the attorneys’ fees as damages. The defendant appealed, and the Supreme Court
ultimately affirmed the trial court’s decision, finding the attorneys’ fees
were an element of damages sustained as a result of the escrow holder defendant’s
mistake in connection with the parties’ transaction.
c.
Analysis
The parties in this action disagree
concerning whether the “tort of another” doctrine applies to this case. The Court finds it does not.
Plaintiffs’ main complaint against
Defendants sounds in tort. The crux of
that complaint is that Defendants engaged in unpermitted and improper construction
during the rainy season, and the construction caused substantial damage to
Plaintiffs’ property.
The parties, through the course of
the action, have commenced another dispute – the Gamples contend they have an
easement over the portion of Plaintiffs’ property where the City maintains an
easement. The plaintiffs, meanwhile,
contend not only that the Gamples do not have such an easement, but that the City
also does not have such an easement. The
plaintiffs’ claims against the City are premised on the contention that Plaintiffs
have learned, during the course of this litigation, that the City has abandoned
any claim that it has an easement over the subject property.
There is no scenario the Court can
determine from the parties’ pleadings that would lead to the conclusion that Defendants’
tortious conduct caused Plaintiffs to sue the City. Instead, it appears that there are two
separate disputes. The first dispute
concerns the negligent construction, and this dispute sounds in tort. The second dispute, however, is a pure
property dispute over whether any person or entity has an easement over the
portion of Plaintiffs’ property that is used as drainage.
It appears Plaintiffs’ real
complaint is that the Gamples, by way of their amended cross-complaint, asserted
a claim against Plaintiffs pursuant to which they sought an easement over a
portion of Plaintiffs’ property, but they did not include the City in their
cross-complaint. See opposition, page 1,
lines 13-15. Plaintiffs then state, “To
vindicate and establish their rights, because of Gamples’ claims, Plaintiffs
were required to sue the City.” This may
be true. However, failing to name a
necessary party in litigation is not a tort.
Plaintiffs could have demurred to the cross-complaint on the ground that
it failed to name a necessary party, could have maintained the litigation based
on their defense that the cross-complaint failed to name a necessary party, or could
have chosen any other litigation strategy that suited them. They chose to sue the City, which was also an
option. They fail, however, that any
tort committed by Defendants made a suit against the City necessary.
The motion to strike is
granted. Because this is a purely legal issue,
leave to amend is denied.
Moving Defendants are ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative. If any party does not submit on the tentative,
the party should make arrangements to appear remotely at the hearing on this
matter.