Judge: Peter A. Hernandez, Case: 22PSCV00253, Date: 2024-07-23 Tentative Ruling

Case Number: 22PSCV00253    Hearing Date: July 23, 2024    Dept: K

Defendant Paul Pui Wu’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Background   

Plaintiff City of El Monte (“Plaintiff”) alleges as follows:

Paul Pui Wu (“Wu”) and Le Hong Rong (“Rong”) (together, “Defendants”) own, inhabit and/or operate the property located at 12342 Ferris Road, El Monte, CA 91732 (“subject property”). On June 21, 2019, members of the El Monte Police Department (“Police”) executed a search warrant at the subject property. While executing the warrant, the Police observed that all rooms of the subject property had been converted for marijuana cultivation, with each room containing numerous marijuana plants in various stages of growth. The Police also observed several industrial lighting, electrical modifications, and air filtration systems commonly used in the large-scale indoor cultivation of marijuana throughout the subject property. The Police seized numerous items which had been used to cultivate, manufacture, store and/or sell marijuana at the subject property in violation of municipal and state law.

On March 16, 2022, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-100 for:

1.                  Narcotics Abatement (Health & Safety Code §§ 11570 et seq.)

2.                  Public Nuisance (Civil Code §§ 3479 et seq.)

3.                  Violation of El Monte Municipal Code (EMMC Chapters 5.18 and Ch. 1.19)

4.                  Violation of Unfair Competition Law (Business & Professions Code §§ 17200 et seq.)

5.                  Violation of MAUCRSA (Business & Professions Code §§ 26000 et seq.)

On December 18, 2023, the court ordered Rong dismissed without prejudice.

On April 9, 2024, a “Stipulation to Set Aside Default and Order” was entered as to Wu.

A Case Management Conference is set for July 23, 2024.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Discussion

Wu demurs to the first through fifth causes of action in Plaintiff’s complaint; in the alternative, Wu moves to strike “those portions of the COMPLAINT that the court finds unmeritorious of unsupported by allegations.” (Notice, 1:21-22).

At the outset, the court notes that Wu has improperly combined a demurrer and motion to strike into one responsive pleading. Further, Wu has failed to identify, in the notice of motion, what particular part of Plaintiff’s complaint constitutes “irrelevant, false, or improper matter” or matter “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). “It is improper for a court to strike a whole cause of action of a pleading under Code of Civil Procedure section 436. . . [w]here a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281). The court construes the instant filing as a demurrer only.

Additionally, the court notes that Wu has proffered facts which are extrinsic to the face of Plaintiff’s complaint and not the subject of judicial notice. The court declines to consider any such information as beyond the scope of demurrer and admonishes counsel for Wu for including same.

California Rules of Court rule 3.1110

Wu first asserts that the court should strike Plaintiff’s complaint on the basis that Plaintiff failed to serve same in compliance with California Rules of Court rule 3.110(b) (i.e., “[t]he complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint . . . “). (Demurrer, 2:21-26, 12:5-8 and 12:25-27). Wu, however, fails to provide the court with any legal authority providing that a plaintiff is barred from proceeding with his/her/its lawsuit in the event of noncompliance with California Rules of Court rule 3.110(b).

As Plaintiff points out, subdivision (f) provides that “[i]f a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.” The court, then, has authority to sanction a plaintiff if a proof of service of the complaint is not filed within 60 days after the complaint is filed.

Statute of Limitations

Next, Wu asserts that Plaintiff’s entire complaint is time-barred by the one-year statute of limitations set forth in Code of Civil Procedure § 340 (i.e., “[w]ithin one year: (a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation. (b) An action upon a statute for a forfeiture or penalty to the people of this state. . .”). (Demurrer, 3:26-4-12 and 13:6-8).

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4^th 316, 324 [citation omitted].) “The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred.” (Id. [citation omitted]; CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635 [“A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred].)

The court determines that Wu’s Code of Civil Procedure § 340 statute of limitations argument fails at this juncture, as he fails to provide the court with any analysis as to how each of Plaintiff’s five causes of action constitute “actions upon a statute for a penalty or forfeiture” such that section 340 applies.

Wu elsewhere asserts that Plaintiff’s “nuisance abatement” causes of action are barred by the three year-statute of limitations in Code of Civil Procedure § 338, subdivision (b) (i.e., “[w]ithin three years:. . . (b) An action for trespass upon or injury to real property. . .”). (Demurrer, 13:24-26). This is incorrect. Plaintiff’s first and second causes of action are for narcotics abatement pursuant to Health and Safety Code Sections 11570[1] et seq. and public nuisance, respectively. Code of Civil Procedure § 338 pertains to private nuisance causes of action. By way of contrast, Civil Code § 3490 provides that “[n]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.”[2] “[T]here is no statute of limitations in an action brought by a public entity to abate a public nuisance.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1142 [“Section 3490 has been construed to mean that the statute of limitations is no defense to an action brought by a public entity to abate a public nuisance”].) Wu’s demurrer is overruled on this basis.

Second Cause of Action (i.e., for Public Nuisance (Civil Code §§ 3479 et seq.)

Wu next asserts that the second cause of action “in fact is not a cause of action but rather merely provides a definition of a public nuisance and provides no remedy and is therefore not a valid cause of action.” (Demurrer, 3:12-14). Wu’s argument is not supported by any legal authority and ignores the prayer of Plaintiff’s complaint. Wu’s demurrer is overruled on this basis.

Administrative Exhaustion

Wu asserts that he “Plaintiff is barred from bringing forward its current action for recovery of penalties and costs because Plaintiff failed to exhaust its administrative remedies, and that failure is an absolute bar to the current litigation.” (Demurrer, 5:21-23).

Wu fails to provide the court with any legal authority in support of his position, aside from El Monte Municipal Code (“EMMC”) 1.19.031, entitled “Administrative procedure for recovering abatement costs.” This code section does not require that Plaintiff exhaust administrative proceedings before filing a civil lawsuit. Indeed, while not cited by either party, EMMC 1.18.010(D) provides that “[u]se of this chapter shall be at the sole discretion of the city and is one remedy that the city has to address violations of the El Monte Municipal Code or other applicable provisions of state law. By adopting this chapter, the city does not intend to limit its discretion or ability to utilize any administrative, civil, criminal, or other remedy available at law or equity, or any combination thereof, to address violations of the city's laws.” (Emphasis added). Wu’s demurrer is overruled on this basis.

Mootness

Wu asserts Plaintiff’s first, fourth and fifth causes of action are moot. The court declines to consider Wu’s proffered facts offered in support of his argument (i.e., including that he “moved back into the Subject Property in late 2019 to repair it, and has continuously resided there since then;” Demurrer, 3:3-4; see also, 7:2-5, 7:6-9, 8:14-16, 9:18-19, 10:9-10 and 15:2-4), however, inasmuch as they are extrinsic to the face of Plaintiff’s complaint and are not the subject of judicial notice.

Conclusion

Wu’s demurrer is overruled.