TENTATIVE RULING

Calendar:    3

Date:          5/5/2023 

Case No: 22 GDCV00154 Trial Date: Nov. 6, 2023 

Case Name: Nayar, et al. v. Foldi, et al.

DEMURRER TO CROSS-COMPLAINT

 

Moving Party:            Cross-Defendants Vinod Nayar and Wendy K. Hammond      

Responding Party: Cross-Complainants Jozsef Ferencz Foldi and Ma Victoria Yess Foldi     

Meet and Confer?      Yes 

RELIEF REQUESTED:

Sustain demurrer to Cross-Complaint    

CAUSES OF ACTION: from Complaint  (from body of pleading, not caption) 

1) Trespass  

2) Private Nuisance

3) Negligence 

SUMMARY OF FACTS:

Plaintiffs Vinod Nayar and Wendy K. Hammond allege that they are the owners of property in Pasadena, and that defendants Jozsef Ferencz Foldi and Ma Victoria Yess Foldi own neighboring property which is on the property line of the plaintiffs’ property. 

The FAC alleges that the roots of defendants’ trees have been encroaching onto the subject property and causing damage, and that plaintiffs have notified defendants but defendants have failed to take proper action to cure the defect.  The FAC alleges that as a result of defendants’ trees plaintiffs have suffered loss of use of their backyard, damage to their garage, damage to the subject property and an increase in expenses of maintenance.  

The FAC alleges causes of action for trespass, private nuisance and negligence.  

Defendants have filed a cross-complaint against plaintiffs as cross-defendants alleging that the roots of cross-defendants’ trees have been encroaching on cross-plaintiffs’ property and that the encroaching tree was planted by the prior owners of cross-defendants’ property, and is encroaching onto both properties, but despite the possible joint ownership and responsibility for the tree, cross-defendants have sought to place the entire burden of the encroaching tree on cross-plaintiffs. 

The cross-complaint also alleges that cross-defendants have removed an existing fence and replaced it with a new fence further into cross-plaintiffs’ property, installed walls which interfere with cross-plaintiffs’ use and enjoyment of their land and access from the front and 

back yards, and which destroyed a hibiscus tree, and have caused damage to cross-plaintiffs’ property. 

ANALYSIS:

Procedural

Late Opposition

Cross-complainants have filed an untimely opposition to the demurrer.  

Under CCP §1005(b):

“All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days… before the hearing.” 

Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” 

Here, the opposition was served and filed on April 28, 2023, for a May 5, 2023 hearing date.  This was only five court days prior to the hearing, so was four court days late.  

The court is within its discretion to refuse to consider the untimely opposition, but the court elects not to do so.

Insufficient Notice

The opposition makes a single argument, that the demurrer was brought on insufficient notice.  

Under CCP section 1005(b):

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” 

CCP section 1010.6 (a)(4)(B) provides that if the notice is served by electronic means, the period of notice before the hearing shall be extended by two court days. 

The demurrer was filed and served by electronic mail on April 19, 2023.  Sixteen court days before the May 5, 2023 hearing would have been April 13, 2023.   Adding two court days for service by email would have required the demurrer to have been served no later than April 11, 2023.   The opposition attaches a calculation from the LASC court date calculator showing that the 16 court day calculation required the filing of the motion by 04/13/2023.  While the opposition confusingly states the due date as April 23, 2023, this is clearly a typographical error. 

The demurrer was not brought on sufficient notice.  It was filed six court days short and served eight court days short.  Cross-complainants have objected on this ground.  The opposition does not address the demurrer on its merits, so there has been no waiver of the enforcement of the notice requirement.  The court could overrule the demurrer as not brought on sufficient notice, but the court elects not to do so. 

Substantive 

Even if the court were to disregard the opposition as untimely and consider the demurrer on its merits, the demurrer would be overruled. 

First Cause of Action—Trespass

Cross-defendants seem to argue that the cross-complaint improperly turns the complaint around.  But this appears to be a proper use of a cross-complaint and does not make the pleading demurrable. 

Cross-defendants argue that the cause of action fails to allege any factual allegations regarding the encroachment of tree branches and does not state any damages regarding the wall constructed by cross-defendants.  

The cross-complaint alleges that branches from cross-defendants’ trees cause damage on the property, and that cross-defendants built a wall which encroaches on cross-plaintiffs’ property, and that as a result of the entry on the property with the tree and construction of a new wall, cross-plaintiffs were actually harmed, and “have suffered from loss of enjoyment of the Subject Property, property damage, and out of pocket expenses.”  [Cross-Complaint, paras, 16-19].  The demurrer does not cite to any legal authority under which a trespass cause of action is subject to a heightened pleading standard, and encroachments and damages are clearly alleged.  The demurrer is overruled. 

Second Cause of Action—Private Nuisance 

Cross-defendants argue that this cause of action fails to allege any actual instances of conduct that would constitute nuisance and fails to state any damages.  The argument is that pursuant to CACI 2020, a nuisance claim requires that “defendant, by acting or failing to act, created a condition or permitted a condition to exist that…was harmful to health; or was indecent or offensive to the senses.”  

Civil Code § 3479 defines “nuisance” as follows:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

(Emphasis added).

The cause of action incorporates previous allegations concerning the alleged trespasses by the tree and walls and alleges that cross-defendants were notified they were encroaching on property, that they created a condition that was an obstruction to the free use of the property, that an ordinary person would be reasonably annoyed or disturbed by such conduct, and that this damaged cross-plaintiffs.   [Cross-Complaint, paras. 22-27].   The cause of action is sufficiently stated, and the demurrer is overruled. 

Third Cause of Action—Negligence 

The demurrer argues that this cause of action is uncertain, and there are no factual allegations regarding the breach of a legal duty. 

Again, the cause of action incorporates all previous allegations, including those concerning the tree branches.  [Cross-Complaint, para. 29].  The cross-complaint then alleges as the duty breached the duty to exercise due care in the management of property, and that the duty was breached by failing to institute a regular maintenance process, which can be traced to the allegations concerning the tree branches.  [Cross-complaint, paras. 30-32].  The cross-complaint is sufficient to place cross-defendants on notice of what is being alleged against them, particularly when considered in relation to the complaint, and cross-defendants’ own allegations in this matter.  The demurrer accordingly is overruled. 

RULING:

The Court in its discretion has reluctantly considered the untimely opposition, filed four court days late, only five court days prior to the hearing.   Cross-complainants are cautioned, however, that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation. 

Plaintiffs/Cross-Defendants’ Demurrer to Cross-Complainants’ Complaint is OVERRULED as not brought on sufficient notice. 

Even if the Court were to disregard the untimely opposition, the demurrer would be OVERRULED on its merits. 

Ten days to answer. 

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES

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