Judge Michael P. Linfield, Case 21STCV37378 2023-05-05 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV37378, Date: 2023-05-05 Tentative Ruling

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Case Number: 21STCV37378 Hearing Date: May 5, 2023 Dept: 34

SUBJECT: Demurrer and Motion to Strike

Moving Party: Defendant Betty Sharafi Shalom

Resp. Party: Plaintiff Nichols Canyon Neighborhood Association

SUBJECT: Demurrer and Motion to Strike

Moving Party: Defendant Daniel Shalom

Resp. Party: Plaintiff Nichols Canyon Neighborhood Association

SUBJECT: Demurrer and Motion to Strike

Moving Party: Defendant Jordan Shalom

Resp. Party: Plaintiff Nichols Canyon Neighborhood Association

The Court SUSTAINS in part the three demurrers.

The Court SUSTAINS the Demurrer of Betty Sharafi Shalom to the third and fourth causes of action in the FAC, without leave to amend. The Court OVERRULES the Demurer of Betty Sharafi Shalom to the fifth and sixth causes of action in the FAC.

The Court SUSTAINS the Demurrer of Betty Daniel Shalom to the third and fourth causes of action in the FAC, without leave to amend. The Court OVERRULES the Demurer of Daniel Shalom to the fifth, sixth, and seventh causes of action in the FAC.

The Court SUSTAINS the Demurrer of Jordan Shalom to the fourth cause of action in the FAC, without leave to amend. The Court OVERRULES the Demurer of Jordan Shalom to the fifth and sixth cause of action in the FAC.

Defendant Betty Sharafi Shalom’s Motion to Strike is DENIED.

Defendant Daniel Shalom’s Motion to Strike is DENIED.

Defendant Jordan Shalom’s Motion to Strike is DENIED.

BACKGROUND:

On October 12, 2021, Plaintiff Nichols Canyon Neighborhood Association filed its Complaint against Defendants Betty Sharafi Shalom and Daniel Shalom on causes of action of breach of contract, specific performance of contract, injunctive relief, and fraud in the inducement.

On April 4, 2022, Plaintiff filed its Lis Pendens on the Subject Property, located at 2251 Nichols Canyon Road, Los Angeles, CA 90046.

On February 14, 2023, Plaintiff filed its First Amended Complaint (FAC) against Defendants Betty Sharafi Shalom, Daniel Shalom, and Jordan Shalom.

On April 7, 2023, each Defendant filed a Demurrer and a Motion to Strike.

On April 24, 2023, Plaintiff filed Oppositions to each of the Demurrers and Motions to Strike. Plaintiff concurrently filed: (1) Declaration of Jamie T. Hall; and (2) Request for Judicial Notice.

On April 28, 2023, each Defendant filed a Reply to their respective Demurrer and Motion to Strike.

ANALYSIS:

I. Demurrers

A. Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of the following items:

(1) City of Los Angeles Protected Tree Ordinance No. 177404;

(2) Los Angeles City Council Motion dated July 8, 2003; and

(3) Los Angeles City Council Motion dated September 13, 2003.

The Court GRANTS judicial notice of the first item.

The Court DENIES judicial notice as irrelevant to the last two items. “Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed” (Am. Cemwood Corp. v. Am. Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)

B. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)¿¿

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A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).¿¿

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A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)¿¿

C. Discussion

Defendant Betty Sharafi Shalom demurs to the third, fourth, fifth, and sixth causes of action.

Defendant Daniel Shalom demurs to the third, fourth, fifth, sixth, and seventh causes of action.

Defendant Jordan Shalom demurs to the fourth, fifth, and sixth causes of action.

For clarity, the Court simply writes “Defendants” wherever an argument is made and cites to one of the Demurrers when an argument is repeated across multiple Demurrers. The exception is when a specific argument is made by only one Defendant, in which case they will be specifically cited.

1. Specific Performance of Contract

Defendants argue that the third cause of action for specific performance fails because it is a remedy, not a cause of action. (Demurrer of Betty Sharafi Shalom, p. 8:5–6.)

Plaintiff disagrees, arguing: (1) that the cases Defendant cites are inapposite; and (2) that it is appropriate for a plaintiff to ask in one count for damages for breach of contract and in another count for specific performance. (Opposition to Demurrer of Betty Sharafi Shalom, p. 5:5–10.)

Defendants reiterates their arguments in their Replies.

“There are no separate causes of action for specific performance or injunctive relief, which are instead remedies.” (Green Valley Landowners Ass’n v. City of Vallejo (2015) 241 Cal.App.4th 425, fn. 8, citing Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360, fn. 2 [specific performance and injunctive relief are equitable remedies and not causes of action for injuries].)

Plaintiff pleads a cause of action that does not exist in California. While specific performance as a remedy may be available later, it is not available as a cause of action based on the allegations made.

The Court SUSTAINS without leave to amend the Demurrers to the third cause of action for specific performance.

2. Injunctive Relief

Defendants argue that the fourth cause of action for specific performance fails because: (1) it is a remedy, not a cause of action; and (2) it is unavailable as there is no conservation easement and Plaintiff is neither the grantor or the owner of the easement. (Demurrer of Betty Sharafi Shalom, pp. 10:22–23, 11:10–11.)

Plaintiff disagrees, reiterating the arguments from the third cause of action and arguing that the fourth cause of action states a proper claim. (Opposition to Demurrer of Betty Sharafi Shalom, p. 7:1–2, 7:7.)

Defendants reiterates their arguments in their Replies.

Plaintiff pleads a cause of action that does not exist in California. While injunctive relief as a remedy may be available later, it is not available as a cause of action based on the allegations made.

The Court SUSTAINS without leave to amend the Demurrers to the fourth cause of action for injunctive relief.

The Court does not reach the issues of whether there is a conservation easement or whether Plaintiff is the owner or grantor of such an easement.

3. Negligent Destruction of Protected Trees and Easement

a. Legal Standard

“A conservation easement is an interest in real property voluntarily created and freely transferable in whole or in part for the purposes stated in Section 815.1 by any lawful method for the transfer of interests in real property in this state.” (Civ. Code, § 815.2, subd. (a).)

“For the purposes of this chapter, ‘conservation easement’ means any limitation in a deed, will, or other instrument in the form of an easement, restriction, covenant, or condition, which is or has been executed by or on behalf of the owner of the land subject to such easement and is binding upon successive owners of such land, and the purpose of which is to retain land predominantly in its natural, scenic, historical, agricultural, forested, or open-space condition.” (Civ. Code, § 815.1.)

“Actual or threatened injury to or impairment of a conservation easement or actual or threatened violation of its terms may be prohibited or restrained, or the interest intended for protection by such easement may be enforced, by injunctive relief granted by any court of competent jurisdiction in a proceeding initiated by the grantor or by the owner of the easement.” (Civ. Code, § 815.7, subd. (b).)

“In addition to the remedy of injunctive relief, the holder of a conservation easement shall be entitled to recover money damages for any injury to such easement or to the interest being protected thereby or for the violation of the terms of such easement. In assessing such damages there may be taken into account, in addition to the cost of restoration and other usual rules of the law of damages, the loss of scenic, aesthetic, or environmental value to the real property subject to the easement.” (Civ. Code, § 815.7, subd. (c).)

“The court may award to the prevailing party in any action authorized by this section the costs of litigation, including reasonable attorney’s fees.” (Civ. Code, § 815.7, subd. (d).)

b. Discussion

Defendants argue that the fifth cause of action fails because no private right of action exists to enforce Los Angeles Municipal Code (LAMC) Chapter IV, Article 6, Sections 46.00 through 46.06. (Demurrer of Betty Sharafi Shalom, pp. 12:15–16, 13:15–21.) Defendant Jordan Shalom specifically argues that this cause of action fails because he did not owe a duty to Plaintiff. (Demurrer of Jordan Shalom, p. 9:23–24.)

Plaintiff disagrees, arguing: (1) that the statutes create a duty or standard of conduct that can give rise to liability in tort, including through negligence; (2) that they can be liable under the negligence per se doctrine. (Opposition to Demurrer of Betty Sharafi Shalom, pp. 8–10.) Plaintiff argues that Defendant Jordan Shalom did owe a duty, discussing negligent violations of duties to third parties. (Opposition to Demurrer of Jordan Shalom, pp. 7:28, 8:1–11.)

Defendants reiterates their arguments in their Replies.

The FAC is not particularly well written in its allegations regarding the fifth and sixth causes of action. There are citations to Civil Code section 815, et seq., LAMC sections 46.00, et seq., and common law negligence. (FAC, ¶¶ 3, 34–35.) Plaintiff compounds this confusion by mostly ignoring Defendants’ argument that LAMC sections 46.00, et seq. do not provide a private cause of action.

Defendants correctly note that there is no private cause of action listed in LAMC sections 46.00 through 46.06. Notably, the current version of LAMC section 46.03, subdivision (b) states: “It shall be a misdemeanor for any person to fail or refuse to comply with, or to wilfully violate, any condition or requirement imposed in a permit issued pursuant to this article.” That subdivision was effective April 12, 1980 and does not appear to have been amended since. However, a misdemeanor is not a civil remedy, and there is no authority cited for how Plaintiff could have standing to pursue this remedy.

Nonetheless, there is a private right of action provided for by statute for injury to the holder of a conversation easement. (Civ. Code, § 815.7, subd. (c).) Moreover, Plaintiff is correct that common law negligence is an available private cause of action for these allegations.

“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings and proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475; Cal. Const., Art. VI, § 13.)

Despite not being particularly well written, Plaintiff has clearly alleged an actionable injury. This is sufficient for Plaintiff’s fifth cause of action to withstand demur on the grounds given.

Furthermore, the FAC alleges, among other things, that Defendant Jordan Shalom acted on the instructions or requests of the other Defendants in negligently and intentionally felling, injuring, and destroying the trees protected by an agreement and an easement. (FAC, ¶ 15.) This is a sufficiently-pleaded allegation for the proposition that any duty the other Defendants had covered Defendant Jordan Shalom, who allegedly acted on their behalf in negligent and intentional acts.

The Court OVERRULES the Demurrers to the fifth cause of action for negligent destruction of protected trees and easement.

4. Intentional Destruction of Protected Trees and Easement

a. Legal Standard

The Court repeats the legal standard for negligent destruction of protected trees and easements.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).)

b. Discussion

The same arguments and analysis for the fifth cause of action are made regarding the sixth cause of action for intentional destruction of protected trees and easement.

Again, Plaintiff has clearly alleged an actionable injury. This is sufficient for Plaintiff’s sixth cause of action to withstand demur on the grounds given.

The Court OVERRULES the Demurrers to the sixth cause of action for intentional destruction of protected trees and easement.

5. Fraud in the Inducement

a. Legal Standard

“The elements of fraud,” including a cause of action for fraudulent inducement, “are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645.)

b. Discussion

Defendant Daniel Shalom argues that the seventh cause of action for fraud in the inducement is insufficiently pleaded because the allegations are not specific. (Demurrer of Daniel Shalom, p. 15:7, 15:21–28.)

Plaintiff argues that the promises made by Defendant Daniel Shalom are the promises that were reduced to writing in the settlement agreement that Defendants Daniel Shalom and Betty Sharafi Shalom executed. (Opposition to Demurrer of Daniel Shalom, pp. 10:24–27, 11:1–4.)

Defendant reiterates his arguments in his Reply.

The FAC alleges that Defendant Daniel Shalom made promises to Plaintiff to abide by and perform the obligations of the agreement at the time that he was negotiating the agreement, and that these promises were made to induce Plaintiff to withdraw its public objections to Defendants’ project. (FAC, ¶ 42.)

This allegation is sufficient for Plaintiff’s seventh cause of action to withstand demur on the grounds given.

The Court OVERRULES the Demurrer of Daniel Shalom to the seventh cause of action for fraud in the inducement.

D. Conclusion

The Court SUSTAINS in part the three demurrers.

II. Motions to Strike

A. Legal Standard

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)¿¿¿¿¿¿

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The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Mun. Ct. (1979) 99 Cal.App.3d 568, 575.)¿¿¿¿¿¿

B. Discussion

Defendants move the Court to strike allegations and prayers for relief that would allow for punitive damages. (Motion to Strike for Daniel Shalom, p. 2:11–18.) Defendants argue: (1) that Plaintiff cannot recover punitive damages against Defendants on the facts alleged in the FAC because the claims arise from breach of contract and they are insufficient to support a punitive damages claim; and (2) that the punitive damages claims and prayers impermissibly state an amount. (Id. at pp. 6:15–16, 6:25, 7:8, 9:15–16.)

Plaintiff disagrees, arguing: (1) that the sixth cause of action is not based in contract; and (2) that the allegations clearly and convincingly establish malice. (Opposition to Motion to Strike for Daniel Shalom, pp. 3:13, 6:5–6.)

Defendants reiterates their arguments in their Replies.

The Court disagrees with Defendants’ arguments.

First, causes of action besides breach of contract survive, and certain of these causes of action might allow for punitive damages.

Second, Plaintiff is entitled to allege that Defendants acted with oppression, fraud, or malice, and for the purposes of a demurrer, the Court must assume that it is true. It will ultimately be Plaintiff’s burden to prove that it is entitled to the relief it seeks.¿

Finally, “[t]he court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings and proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475; Cal. Const., Art. VI, § 13.) To the extent listing a punitive damages claim is impermissible, it falls in this category.

The Court DENIES the Motions to Strike.

C. Conclusion

Defendant Betty Sharafi Shalom’s Motion to Strike is DENIED.

Defendant Daniel Shalom’s Motion to Strike is DENIED.

Defendant Jordan Shalom’s Motion to Strike is DENIED.