Judge: Ronald F. Frank, Case: 23TRCV01388, Date: 2023-10-24 Tentative Ruling
Case Number: 23TRCV01388 Hearing Date: October 24, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: October 24, 2022¿¿
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CASE NUMBER: 23TRCV01388
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CASE NAME: Aurea
Property Investment, LLC; Ace Sushi Franchise Corporation v. SBA Site
Management, LLC, et al.
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MOVING PARTY: Defendant,
T-Mobile USA Tower, LLC
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RESPONDING PARTY: Plaintiffs,
Aurea Property Investment, LLC and Ace Sushi Franchise Corporation
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TRIAL DATE: None
set.
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MOTION:¿ (1) Demurrer¿
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Tentative Rulings: (1) T-Mobile’s Demurrer is OVERRULED
in part and SUSTAINED as to the 3rd cause of action for private
nuisance.
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I. BACKGROUND¿¿
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A. Factual¿¿
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On
May 2, 2023, Plaintiffs, Aurea Property Investment, LLC and Ace Sushi Franchise
Corporation filed a Complaint against Defendants, SBA Site Management, LLC,
Betacom Incorporated, Mastec Network Solutions, LLC, Vantage Telecom Company,
T-Mobile USA Tower, and DOES 1 through 100. On August 4, 2023, Plaintiffs filed
a First Amended Complaint (“FAC”) alleging causes of action for: (1)
Negligence; (2) Trespass; and (3) Nuisance. Defendant, T-Mobile USA Tower, LLC
(“T-Mobile”). now files a demurrer to the FAC.
B. Procedural¿¿
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On September 8, 2023, T-Mobile
filed a Demurrer. On October 5, 2023, Plaintiffs filed an opposition. On
October 17, 2023, T-Mobile filed a reply brief.
¿II. MOVING PARTY’S GROUNDS
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T-Mobile demurs to each cause of
action on the grounds it argues each of them fail to state sufficient facts to
constitute a cause of action against T-Mobile and is vague and uncertain.
¿III. ANALYSIS¿
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A. Legal Standard
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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, 318.) “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer admits
the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
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A pleading is uncertain if it is ambiguous or
unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for
uncertainty may lie if the failure to label the parties and claims renders the
complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
B. Discussion
Negligence
Here,
T-Mobile contends that Plaintiff fails to properly plead a claim for negligence
against it. In order to state a claim for negligence, Plaintiff must allege the
elements of (1) “the existence of a legal duty of care,” (2) “breach of that
duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
All of T-Mobile’s arguments, further noted below, are based on the fact that it
argues that Plaintiffs’ entire FAC is based on the conduct of the contractors
who installed or maintained the T-Mobile cellular equipment on the roof of the
building. However, this is not specifically alleged in Plaintiffs’ FAC at all. Instead,
Plaintiffs assert that each of the Defendants were the agent, servant, and/or
employee of each and every other Defendant, and was, in doing the things herein
complained of, acting within the scope of such agency, representation, and/or
employment, in that all their several acts and deeds herein alleged were proved
and ratified by each and all of the other Defendants. (FAC, ¶ 10.)
As
to the first cause of action for negligence, Plaintiffs contend that in
performing the work on the systems, Defendants, including T-Mobile, owed a duty
of care to Plaintiff Aurea to perform the work in a reasonable, skillful, and
knowledgeable manner, in order to maintain the condition of the roof, and to
prevent damage to the roof and any related damage to the property arising from
the work on the systems. (FAC, ¶ 18.) Further, Plaintiffs assert that
Defendants, including T-Mobile owed Plaintiff Ace a duty of care to perform the
work in a reasonable, skillful, and knowledgeable manner, in order to prevent
unreasonable interference with Ace’s use and enjoyment of the property arising
from the work on the systems. (FAC, ¶ 18.) Subsequently, Plaintiffs allege
Defendants, including T-Mobile breached their duties and resulted in damages.
In
their opposition, Plaintiffs assert that they do not currently have personal
knowledge as to the specific work performed on the system by each individual
defendant, or which defendant or defendants may be ultimately liable for the
damage to the property. Defendant, T-Mobile maintains that Plaintiffs’ FAC must
state allegations related to T-Mobile’s specifically alleged negligence. The
Court disagrees here. At the pleading stage, where no employee or independent
contractor allegations are present in the FAC, nor are they judicially noticed,
T-Mobile may not attempt to base its demurrer on such an argument. Here, the
Court must accept the pleadings as true and test their sufficiency against
elements required by causes of action. Here, Plaintiffs’ FAC successfully alleges
all elements of negligence, and thus the demurrer will not be sustained on
these grounds.
T-Mobile
also alleges that the cause of action for negligence is uncertain and vague. T-Mobile
notes that Plaintiffs’ FAC contains conflicting allegations by stating that all
Defendants acted “intentionally, negligently, recklessly or otherwise” (FAC, ¶
9) and that all Defendants are agents of each other (FAC, ¶ 10.) However, T-Mobile
argues that Plaintiffs later state al Defendants (except SBA) performed work
on the roof of the property (FAC, ¶ 13), and then stated all Defendants worked
under “the management, supervision, and monitoring of SBA.” (FAC, ¶ 13.) T-Mobile
contends that by collectively lumping all of the Defendants, except SBA, with
conclusory allegations about performing work and agency, it is impossible to
ascertain the basis of a negligence claim against T-Mobile. Lastly, T-Mobile
contends that Plaintiffs state SBA managed and controlled all work on the
property, which undermines any claim of negligence against other Defendants.
(FAC, ¶ 22.) Here, the Court does not find that the FAC is ambiguous or
unintelligible in such a way that the renders T-Mobile unable to understand
what they are to respond to. Further, as noted above,
“[a] demurrer for uncertainty is strictly construed, even where a complaint is
in some respects uncertain, because ambiguities can be clarified under modern
discovery procedures.” (Khoury, supra, 14 Cal.App.4th at 616.)¿¿
As
such, the Demurrer is OVERRULED as to the first cause of action for negligence.
Trespass
T-Mobile
also argues that Plaintiffs’ second cause of action for trespass fails. To set
forth a cause of action for trespass, a Plaintiff must allege (1) Plaintiff’s
lawful possession or right to possession of real property; (2) Defendant’s
wrongful, intentional, reckless, or negligent act of trespass on the property;
(3) Plaintiff did not give permission for the entry or scope of permission was
exceeded; and (4) damage to Plaintiff caused by the trespass. (Ralphs Grocery Co. v. Victory Consultants,
Inc. (2017) 17 Cal.App.5th 245, 262.) T-Mobile argues that Plaintiffs
provide no facts supporting their trespass cause of action because Plaintiff replead
their negligence cause of action into trespass in paragraph 21. The Court
disagrees.
Plaintiffs’
trespass cause of action alleges the property is owned by Aurea and lawfully
possessed by its tenant, Ace (FAC, ¶ 11); that T-Mobile recklessly, negligently,
and/or carelessly caused water intrusion into the property and was outside the
scope and boundaries of T-Mobile’s lawful access to the property related to its
work on the systems (FAC, ¶¶ 22-23, 24-25); and that T-Mobile’s conduct was a
substantial factor in causing Plaintiffs’ damages. (FAC, ¶¶23-24, 26.) Based on
this, the Court finds that Plaintiffs have sufficiently alleged their cause of
action for trespass. As such, the demurrer is not sustained on these grounds.
Again,
T-Mobile argues that this cause of action is uncertain because the pleading as
to damage is uncertain. T-Mobile argues that Plaintiffs fail to provide any
list of property damages, the value of such property, or the amount of damages
to the premises, even though such damages are readily capable of exact
statements. In opposition, Plaintiffs contend that Aurea does not allege that
the property was “destroyed,” but rather alleges “physical damage to the property,
costs to remediate and repair said damage to the property, and a reduction in
value of the property. (FAC, ¶ 26.) Further, Plaintiffs argue that Ace does not
allege any physical damage to the property as an item of its damages, but
alleged damages arising from T-Mobile’s trespass including unreasonable
interference with Ace’s use and enjoyment of the property, loss of use of the
property, lost profits, annoyance, and discomfort. The Court does not find
T-Mobile’s argument that Plaintiffs need provide a list of all damage at the
pleading stage to be particularly persuasive. As such, the Court finds that
Plaintiffs’ FAC is not uncertain as to its cause of action of trespass and
OVERRRULES demurrer as to this issue.
Nuisance
Lastly,
T-Mobile argues that Plaintiffs’ FAC fails to allege sufficient facts to state
a cause of action for nuisance. To
establish an action for private nuisance, (1) “the plaintiff must prove an
interference with his use and enjoyment of his property”; (2) “the invasion of
the plaintiff’s interest in the use and enjoyment of the land must be
substantial, that is, that it causes the plaintiff to suffer substantial actual
damage”; (3) “the interference with the protected interest must not only be
substantial, but it must also be unreasonable, i.e., it must be of such a
nature, duration, or amount as to constitute unreasonable interference with the
use and enjoyment of the land.” (Mendez
v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263,
citations, italics, brackets, and quotation marks omitted.) T-Mobile contends
that Plaintiffs’ nuisance claim is barred as it is duplicative of their
negligence claim. The Court does note that both Plaintiffs’ negligence claim
and nuisance claim allege that specifically, Ace suffers from damages from the
use and enjoyment of the property. (FAC, ¶¶ 20, 32.) The Court will allow oral
argument as to differences between each cause of action, however the Court’s
tentative ruling is to SUSTAIN the demurrer as to the third cause of action for
nuisance as they do appear to rely on the same facts.
IV. CONCLUSION¿¿
For the foregoing reasons,
Defendant’s Demurrer is OVERRULED as to the First and Second Causes of Action
and SUSTAINED as to the Third Cause of Action with 21 days leave to amend. Unless notice is waived, Plaintiffs are
ordered to give notice.¿¿¿¿