Judge: Mark H. Epstein, Case: 22SMCV00539, Date: 2022-10-20 Tentative Ruling

Case Number: 22SMCV00539    Hearing Date: October 20, 2022    Dept: R

Plaintiff Roxanne Chan (“plaintiff”) filed this property dispute action against defendants Mara Lane and Jonathan Rhys Meyers.  According to the operative First Amended Complaint (“FAC”), since December 9, 2005, plaintiff has owned a parcel of property known as 350 Loma Metisse.  (FAC, ¶5.)  Lane bought a neighboring property, 300 Metisse Road, on January 4, 2017.  (Id. at ¶6.)  Plaintiff’s property is situated directly north and adjacent to defendant’s property.  (Id. at ¶7.)  Plaintiff states the properties share a common border at her southern boundary and defendant’s northern boundary.  (Ibid.)  Plaintiff asserts that from December 2005 to present she has maintained and improved a strip of land between the south edge of her driveway extending 25 feet beyond the border between the properties.  (Id. at ¶9.)  Plaintiff planted and watered trees and vegetation there and she cultivated these plants to firm up the soil along the steep hillside to avoid mudslides on her driveway during rainy season.  (Ibid.)  Plaintiff claims she had conversations with the prior owners of defendant’s property concerning brush clearance during the fire season and she was then informed that the portion of the property she was using was not her property.  (Id. at ¶10.)  Despite that, plaintiff states she continued to use the property and later built a chicken coop on part of it, planted various fruit trees, irrigated several Eucalyptus trees planted by her predecessor, created a gravel parking area, and did other work.  (Id. at ¶¶10-12.)  (In the original complaint, plaintiff contended that she in fact owned this property.  However, after some preliminary injunction proceedings, plaintiff seems to have done a survey and concluded that defendant actually does own the property.  The FAC takes account of that view.)

Plaintiff asserts that in late 2021, defendant informed plaintiff that she intended to build a fence on the property line.  (FAC, ¶17.)  Because the line went through plaintiff’s driveway, parking area, and chicken coop, defendant told plaintiff she had 30 days to take down the coop.  (Ibid.)  

On or around March 30, 2022, Lane allegedly began to install a black metal rail fence along a portion of her property.  (FAC, ¶20.)  Plaintiff asserts this violates various ordinances and renders the fence a public nuisance.  (Ibid.)  Lane allegedly fenced off a portion of the property.  (Id. at ¶21.)  However, the fence has not been completed and the Court gathers that no substantial work on it has been done.  Plaintiff asserts that “the fence is especially injurious to Plaintiff as Defendant plans to place the illegal fence along Plaintiff’s property line approaching to with 15 feet of her residence; the fence will block or hinder scenic view of the Pacific Ocean visible from her property; an[d] plaintiff must traverse the dangerous blind curve picture above for ingress and egress to her property.” (Id. at ¶28.)  

Plaintiff asserts the following claims against defendants: (1) abatement of public nuisance; (2) declaratory relief; (3) quiet title to prescriptive easement; (4) quiet title to easement by implication; and (5) equitable easement.  Currently before the Court are Lane’s demurrer to the first and second causes of action and motion to strike portions of the FAC.  

The demurrer to the public nuisance claim is SUSTAINED.  “A¿public¿nuisance¿is ‘one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’  (§ 3480.) ¿A private party can maintain an action based on a¿public¿nuisance¿‘if it is specially injurious to himself, but not otherwise.’ ¿(§ 3493.)  The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public.¿ (Institoris v. City of Los Angeles¿(1989) 210 Cal.App.3d 10, 21;¿Brown v. Petrolane, Inc.¿(1980) 102 Cal.App.3d 720, 725–726;¿Venuto v. Owens–Corning Fiberglas Corp.¿(1971) 22 Cal.App.3d 116, 124–125.)”  (Koll-Irvine Center Property Owners Assn. v. County of Orange¿(1994) 24 Cal.App.4th 1036, 1040.)  As Lane notes in her moving and reply papers, plaintiff is mixing two things in order to attempt to state a claim for nuisance.  Those two things are the fence on the south side of defendants’ property (which has been built, but does not abut plaintiff’s property) and the fence on the north side of defendants’ property (which abuts plaintiff’s property but has not been built).  The problem is that the Court cannot conflate the fact that the southern fence has been built to create an extant fence on the northern side.  And, because the northern fence has not been built, it cannot yet be a nuisance. 

In other words, plaintiff has not alleged that any single fence has caused her to suffer damages that are different in kind from those suffered by others.  Indeed, her own FAC demonstrates that no fence has yet been built that has caused her harm.  “The fence is especially injurious to Plaintiff as Defendant plans to place the illegal fence along Plaintiff’s property line approaching to with 15 feet of her residence; the fence will block or hinder scenic view of the Pacific Ocean visible from her property; an[d] plaintiff must traverse the dangerous blind curve picture above for ingress and egress to her property.”  (FAC, ¶28,emphasis added.)  The allegation is written in future tense.  Plaintiff has not yet suffered this different in kind harm regarding the fence near her property line, the impediment to her view, or issues on the road.  As for the blind curve, that is an issue that anyone who uses the road will face. The fact that plaintiff uses the road more is simply a difference in severity of harm, not kind of harm 

Plaintiff argues in opposition that defendants have placed a notice saying the fence will be built.  She cites authority stating a public or private nuisance can be enjoined even when the harm has not yet occurred.  Acknowledging that this authority is within the context of injunctions, she goes on to argue that she requests such relief within the text of this claim.  But the request for relief does not determine whether the claim is adequately pled.  The facts pled determine that.  “To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged ‘facts sufficient to establish¿every element of that cause of action.’  (Cantu v. Resolution Trust Corp.,¿supra, 4 Cal.App.4th at p. 879.)  If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action,” then the demurrer is properly sustained.  (Williams v. Sacramento River Cats Baseball Club, LLC¿(2019) 40 Cal.App.5th 280, 286, emphasis by Cantu Court, parallel citations omitted.)  The Court also notes that it is unclear whether the planned fence will be built as defendants currently intend. Plaintiff notes that a permit is required and, critically, the Court has no reason to believe that a permit will issue if the fence will in fact create a nuisance.  (The Court is not suggesting that the fence would be a nuisance; only that the permitting authorities can consider those sorts of things when deciding whether to issue a permit.)  There is simply no indication that plaintiff is currently being harmed in a nuisance-like unique way. 

Plaintiff also cites portions of certain ordinances as establishing that the fence is a per se nuisance.  As Lane notes in reply, however, only the County or its authorized representative can pursue that type of action for violation of the ordinance.  There is no private right of action.  This makes sense, considering that public nuisance claims by private citizens require an allegation of a different kind of harm than the public.  But whether it makes good policy sense in the Court’s view is somewhat beside the point anyway.  It is the Legislature’s job to make policy, and it has made the policy choice.  Accordingly, the demurrer to the first cause of action is SUSTAINED.  Leave to amend will not be granted unless plaintiff can articulate some way in which she could amend her complaint to get around the foregoing problem.  The Court notes, however, that nothing in its ruling would bar plaintiff from bringing a nuisance action if and when the northern fence is actually built if she can adequately allege it. 

As for the declaratory relief claim, the demurrer is also SUSTAINED.  Plaintiff seeks a declaration regarding violation of the ordinances.  But that is not plaintiff’s claim to pursue.  Further, the Court believes that it is more efficient to allow the administrative authorities to take the first pass at whether the fence can be built and what, if any, restrictions will be placed on it than have the Court tramp about on the issue, potentially leading to inconsistent results.  “[T]he court's power to render¿declaratory¿relief¿is discretionary, and it may refuse to exercise the power ‘in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.’  ([Code Civ. Proc.],¿§ 1061.)” (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau¿(2011) 193 Cal.App.4th 49, 59–60, parallel citations omitted.)  The motion to strike the punitive damages request is MOOT in light of the Court sustaining the demurrer to the public nuisance claim.  With that said, the Court agrees that allegations in the FAC do not amount to malice, oppression, or fraud, and thus this aspect of the motion to strike would have been granted had it not been made moot.  The lack of a verification has been cured, so that aspect of the motion is also MOOT. 

The remainder of the motion to strike is DENIED.  Attorneys’ fees will not be granted absent a basis to do so.  While the Court does not see such a basis now, the prayer does no mischief.  As to the request to strike certain allegations as unnecessary, the Court does not believe any purpose would be served in doing so.

Unless the Court decides to give plaintiff leave to amend, defendant will answer within 30 days.  (The Court notes that there is a service issue as to one of the defendants.  The Court urges plaintiff to discuss the matter with counsel for the defense.  According to defendants, the remaining defendant does not own the property in question.  If that is true—and it ought to be easy enough to verify—then the Court has a hard time seeing the basis to name him.  However, that is not before the Court today; it will be before the Court at the later CMC.)