Judge: Mark H. Epstein, Case: 24SMCV06067, Date: 2025-03-17 Tentative Ruling

Case Number: 24SMCV06067    Hearing Date: March 17, 2025    Dept: I

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND IN PART AND OVERRULED IN PART.  The gist of the case is a claim by plaintiff that defendant undertook careless plumbing work that led to a flood.  Plaintiff alleges that defendant demanded that plaintiff be present to authorize the work, but plaintiff refused.  Defendant then contacted the parents, who plaintiff says have no interest in the property and therefore ought not have been called.  The parents apparently allowed the repair person in the unit.  (Compl. pars. 1-2.)  The work was allegedly done improperly and not properly sealed, which caused a flood.  (Id. at par. 3.)  That led to the instant suit.  Plaintiff sues for negligence, gross negligence, trespass, and nuisance.  Defendant demurs to the second, third, and fourth causes of action.  Plaintiff opposes as to the third and fourth causes of action only and concedes that the demurrer is proper as to the gross negligence cause of action.  Therefore, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the second cause of action.

Turning to trespass, the argument is that the defendant has no permission to enter the unit.  Defendant’s response is that plaintiff does not allege a possessory interest in the unit.  But the complaint alleges that plaintiff owns the unit and resides there.  (Compl. at par. 6.)  That is enough.  The complaint therefore alleges enough of a possessory interest to pass muster for pleading purposes, and given that, defendant’s entry onto the property without permission is, at least allegedly, a trespass.  The demurrer is OVERRULED as to this cause of action.

The last cause of action is nuisance.  The only allegation is that the complaint is too conclusory.  The court does not believe that such is in fact the case.  Frankly, the court has some doubt as to whether this is a nuisance.  It might well be that the allegedly sloppy work caused a flood, but the court is not sure that poor plumbing constitutes a nuisance.  But the demurrer is not really based on that.  Accordingly, the demurrer is OVERRULED.  This issue can still be tested on summary judgment, and perhaps that is the better way to do so.

Because there is no need to amend, defendant has 30 days to answer.