Judge: Mark H. Epstein, Case: 21SMCV01749, Date: 2022-12-19 Tentative Ruling

Case Number: 21SMCV01749    Hearing Date: December 19, 2022    Dept: R

The motion for judgment on the pleadings is DENIED. 

As to the assault cause of action, the moving defendants state that they did not actually engage in the conduct alleged to constitute assault, but rather the conduct was done by other members of the defendants’ group.  That will not suffice for the defense.  Plaintiffs have alleged a civil conspiracy.  Such a conspiracy is not a separate cause of action; rather it is a doctrine by which each co-conspirator is liable for the actions of every other co-conspirator.  The facts alleged here are sufficient.  Further, to the extent that the moving parties controlled the property at which the wrongful conduct occurred, they had a duty not to allow those invited to the property to assault others.  Here, defendants allegedly directed the wrongful act.  That is enough.

As to intentional infliction of emotional distress, defendants’ main argument is that this was just a home fireworks display and not egregious enough to satisfy the tort.  That sort of decision is generally left to the jury, and that will be the case here.  And it was not just a harmless (but illegal) home fireworks display, at least allegedly.  Fireworks were expressly aimed at plaintiffs’ property after defendants were made aware of plaintiffs’ fear and condition.  That is enough.

As to nuisance, plaintiffs have alleged a public nuisance.  They have alleged that defendants were engaged in illegal and dangerous activity (the danger is why it is illegal) and they suffered more than others because the activity (or some of it) was directed at their property in particular.  That is enough.  And, because the activity was (at least in part) directed to plaintiffs’ property, plaintiffs have properly alleged a private nuisance.

Plaintiffs have also alleged elder abuse.  Given the facts alleged, including the fact that plaintiffs made defendants aware of the medical issues and their fear, the court cannot say as a matter of law that this falls outside the statute.

Further, the cause of action for aiding and abetting is well pled.  Defendants did allegedly give substantial assistance to others in engaging in the wrongful conduct—it is not like the fireworks were going on without defendants’ knowledge, and defendants owned the property.

Trespass also survives the motion.  The allegation is that the fireworks were aimed at plaintiffs’ property and debris fell on that property.  That is enough.

The bottom line is that there is easily enough here to survive a pleading motion.  That does not mean that a jury will find in plaintiffs’ favor, but it does mean that defendants will have to move on to the merits.