Judge: Mark H. Epstein, Case: 23SMCV02809, Date: 2023-10-04 Tentative Ruling

Case Number: 23SMCV02809    Hearing Date: October 4, 2023    Dept: I

Plaintiff alleges that his neighbor, defendant, has taken actions that are designed to force plaintiff from his home.  They include blaring very loud music at inappropriate times and displaying guns in such a way that they are visible from plaintiff’s window.  Plaintiff contends that this was designed to intimidate him and harass him and force him to move.  Worse, plaintiff claims no one will rent the property with defendant as a neighbor.  In support, plaintiff claims that the speakers play until the early morning and are sometimes as loud as 100 decibels.  Further, defendant allegedly has bright lights on throughout the night.  The guns were allegedly hung on the wall so as to be visible to plaintiff, and were placed there after plaintiff confronted defendant about the noise.  Finally, plaintiff has a child and this is scaring not only plaintiff but the whole family.  Plaintiff sues for nuisance, assault, interference with prospective economic advantage, intentional infliction of emotional distress, and injunction.  Defendant demurs to all but the nuisance cause of action, and plaintiff opposes.

The court must agree with defendant as to the second cause of action—assault.  While plaintiff alleges undue noise and light, and the guns are (according to plaintiff) an implied threat, the requirements for assault are an immediate fear of unwanted physical contact.  (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604 [assault requires threat that defendant will “inflict immediate injury on the person].)  And there must be a threat of actual contact.  (So v. Shin (2013) 212 Cal.app.4th 652.)  Contact with sound waves and light is not sufficient, and the gun display is not a threat of immediate harm.  Plaintiff must allege more to bring an assault cause of action.  The demurrer is SUSTAINED WITH LEAVE TO AMEND as to this cause of action.

The court must also agree with defendant as to the third cause of action—interference.  That requires that plaintiff have a prospective economic relationship of which defendant is aware and that defendant takes some wrongful action that defendant knows will interfere with that relationship.  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134.)  The interference must be with an existing relationship.  (Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505.)  Here, plaintiff says that he cannot rent out the house given defendant’s behavior.  But that is not a concrete existing economic relationship sufficient for the tort.  If, for example, plaintiff had a specific lessee who was going to lease the home but then backed out due to defendant’s behavior, and if defendant was aware of it, that might do.  But nothing like that is alleged here.  The demurrer is SUSTAINED WITH LEAVE TO AMEND as to this cause of action.

The court agrees with plaintiff, however, as to the fourth cause of action.  The court cannot say as a matter of pleading that the allegations are insufficiently outrageous to constitute the tort, and plaintiff has alleged severe emotional distress as a result.  If the allegations are true, the court (and a jury) could certainly find that the conduct is outrageous enough to justify the tort.  After all, where reasonable persons could differ on whether the conduct is outrageous enough, the question is for the jury, not the court.  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493.)  The demurrer is OVERRULED as to this cause of action.

Plaintiff agrees that “injunction” is a remedy, not a cause of action.  The demurrer is therefore SUSTAINED WITHOUT LEAVE TO AMEND as to that cause of action but, to be clear, this is without prejudice to seeking injunctive relief in the prayer.

Plaintiff has 30 days’ leave to amend.  If plaintiff elects to stand on the pleading, the court will construe the fifth cause of action as seeking a remedy for the first and fourth causes of action and not as a standalone cause of action.  If plaintiff elects not to amend, defendant has 30 days to answer the complaint from the date that plaintiff gives defendant notice of plaintiff’s decision or from the date that the time to amend expires.  Otherwise, defendant will have the time allowed by law to answer or otherwise respond to the amended complaint.