Judge: Peter A. Hernandez, Case: 20PSCV00429, Date: 2022-08-18 Tentative Ruling

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Case Number: 20PSCV00429    Hearing Date: August 18, 2022    Dept: O

Defendants Zhan Li’s and Xin Zhao’s Motion for Summary Adjudication is DENIED in full.

Background   

Plaintiffs Thai Nguyen (“Thai”), Minh Nguyen, Thuy Nguyen (“Thuy”), Hang Nguyen (“Hang”), Nga Nguyen (“Nga”) and Hung Nguyen (collectively, the “Nguyens”) allege as follows:

The Nguyens reside at the property located at 2535 Whitehead Lane, Hacienda Heights, CA, 91745 (“subject property”). The subject property is also owned by Thai, Thuy, Hang and Nga. Israel Guerrero (“I. Guerrero”) and Hugo Hernandez (“Hernandez”) are tenants of the neighboring property located at 2545 Whitehead Lane, Hacienda Heights, CA 91745 (“neighboring property”). Xin Zhao (“Zhao”) and Zhan Li (“Li”) are landlords and owners of the neighboring property. Beginning sometime in 2018 and continuing through the present, I. Guerrero and H. Hernandez have been holding parties or gatherings at which loud music was played around midday until around 3-4 a.m. multiple times per month. These parties/gatherings have not ceased, despite the Nguyen’s complaints.

On August 5, 2020, I. Guerrero filed a cross-complaint, asserting a cause of action against the Nguyens and Does 1-25 for:

1.                  Private Nuisance

On November 6, 2020, the Nguyens filed an “Amendment to Complaint,” wherein H. Hernandez was substituted in lieu of Doe 1.

On April 22, 2021, the Nguyens filed a First Amended Complaint, asserting causes of action against I. Guerrero, Zhao, Li, H. Hernandez and Does 2-20 for:

1.                  Nuisance [Civ. Code § 3501 and CCP § 526 (a)

2.                  Intentional Infliction of Emotional Distress

On May 3, 2021, the Nguyens filed 12 “Amendment[s] to Complaint,” wherein Mia Guerrero (“M. Guerrero”) was substituted in lieu of Doe 2, Jacqueline Guerrero (“J. Guerrero”) was substituted in lieu of Doe 3, Jairo Martinez (“J. Martinez”) was substituted in lieu of Doe 4, Liana Hernandez (“L. Hernandez”) was substituted in lieu of Doe 5, Adrian Pacheco (“Pacheco”) was substituted in lieu of Doe 6, Christian Rios (“Rios”) was substituted in lieu of Doe 7, Magdalena Orantes (“M. Orantes”) was substituted in lieu of Doe 8, Steven Orantes (“S. Orantes”) was substituted in lieu of Doe 9, Iris Orantes (“I. Orantes”) was substituted in lieu of Doe 10, Jerusalem Orantes (“J. Orantes”) was substituted in lieu of Doe 11, Nancy Romero (“Romero”) was substituted in lieu of Doe 12 and Hanna Martinez (“H. Martinez”) was substituted in lieu of Doe 13.

On August 26, 2021, the Nguyens dismissed their request for punitive damages against Does 2-12 only, without prejudice.

On September 9, 2021, Does 2-12’s defaults were entered.

On February 15, 2022, the court granted Plaintiffs’ ex parte application for a temporary restraining order.

A Default Prove Up Hearing, Hearing on Motion for Preliminary Injunction, Hearing on Motion for an Order to Show Cause Re: Contempt and an Order to Show Cause Re: Default Judgment as to All Non-Answering Defendants are set for October 6, 2022.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4^th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

Li and Zhao move the court for summary adjudication on Plaintiffs’ first cause of action for Private Nuisance on the following grounds:

1.                  As a matter of law, Plaintiffs may not recover stigma damages or the diminution in value of their residence, for a continuing, rather than permanent, nuisance that may be abated; and,

2.                  As a matter of law, Thai may not recover lost profits from his dental business for a continuing, rather than permanent, nuisance that may be abated.

Request for Judicial Notice

The court declines to rule on Li’s and Zhao’s Request for Judicial Notice as unnecessary to its ruling.

Analysis

Li’s and Zhao’s aforementioned grounds for summary adjudication are improper. Code of Civil Procedure § 437c, subdivision (f)(1) provides that:

A party may move for summary adjudication as to one or more causes of

action within an action, one or more affirmative defenses, one or more claims

for damages, or one or more issues of duty, if the party contends that the cause

of action has no merit, that there is no affirmative defense to the cause of action,

that there is no merit to an affirmative defense as to any cause of action, that

there is no merit to a claim for damages, as specified in Section 3294 of the

Civil Code, or that one or more defendants either owed or did not owe a duty to

the plaintiff or plaintiffs. A motion for summary adjudication shall be granted

only if it completely disposes of a cause of action, an affirmative defense, a

claim for damages, or an issue of duty.

Subsection (t)[1] provides that:

             Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue of a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims

or defenses are put at issue by the motion shall submit to the court both of the

following:

(i)               A joint stipulation stating the issue or issues to be adjudicated.

(ii)              A declaration from each stipulating party that the motion will further

the interest of judicial economy by decreasing trial time or significantly increasing

the likelihood of settlement.

(B) The joint stipulation shall be served on any party to the civil action who is not

also a party to the motion.

(2) Within 15 days of receipt of the stipulation and declarations, unless the court

has good cause for extending the time, the court shall notify the stipulating parties

if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.

(3) If the court elects not to allow the filing of the motion, the stipulating patties

may request, and upon request the court shall conduct, an informal conference with

the stipulating parties to permit further evaluation of the proposed stipulation. The stipulating parties shall not file additional papers in support of the motion.

(4)(A) A motion for summary adjudication made pursuant to this subdivision shall contain a statement in the notice of motion that reads substantially similar to the following: ‘This motion is made pursuant to subdivision (t) of Section 437c of the

Code of Civil Procedure. The parties to this motion stipulate that the court shall hear

this motion and that the resolution of this motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of

settlement.’

            (B) The notice of motion shall be signed by counsel for all parties, and by those

parties in propria persona, to the motion.

(5) A motion filed pursuant to this subdivision may be made by itself or as an

alternative to a motion for summary judgment and shall proceed in all procedural

respects as a motion for summary judgment.

Here, Plaintiffs seek permanent injunctive relief as well as “injuries in the past . . ., including: diminished use and enjoyment of the property at which Plaintiffs reside; severe emotional distress; and reduced property value . . .” (FAC, ¶¶ 50 and 51.) Plaintiffs have also alleged an “adverse[ ] impact” on Thai’s performance and profits at his dental practice. (Id., ¶ 38.) Li and Zhao, however, seek adjudication of damages pertaining to lost profits and/or diminution in value without addressing the remainder of Plaintiffs’ damages allegations, which they are precluded from doing absent compliance with Code of Civil Procedure § 437c, subdivision (t). Li and Zhao have not provided the court with any information suggesting that such compliance was made.

Further, Li and Zhao seek summary adjudication of the first cause of action on the basis that it is time-barred. This issue was not set forth in the notice of motion. “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Cal Rules Court, rule 3.110, subd. (a); see also rule 3.1350, subd. (b) [i.e., “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts”].) The statute of limitations issue, moreover, is not set forth in the separate statement whatsoever. The court, then, declines to consider Li’s and Zhao’s statute of limitations argument on this basis.

The motion is denied in full.