Judge Salvatore Sirna, Case 22PSCV02105 2023-03-08 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV02105, Date: 2023-03-08 Tentative Ruling

Case Number: 22PSCV02105 Hearing Date: March 8, 2023 Dept: G

Defendant Mary Marshall’s Demurrer to Plaintiff’s Complaint

Respondent: Plaintiff Jace King

TENTATIVE RULING

Defendant Mary Marshall’s Demurrer to Plaintiff’s Complaint is OVERRULED.

On the court’s own motion pursuant to Code of Civil Procedure section 436, the court GRANTS a motion to strike Plaintiff’s First Amended Complaint filed February 21, 2023 as improperly filed and allows thirty (30) days leave to amend.

BACKGROUND

This is an action for trespass arising from a dispute over a walkway. On February 12, 2008, Plaintiff Jace King, formerly known as Ali Tavana, purchased a residential property in Pomona (hereafter, the Pomona property). There is a concrete walkway on the Pomona property adjacent to the public street. Plaintiff alleges the walkway is not a public sidewalk and part of Plaintiff’s private property. In September 2019, Plaintiff erected a fence around the walkway to prevent members of the public from utilizing it. Subsequently, employees or agents of the City of Pomona removed the fence from Plaintiff’s property. In mid-2021, another employee or agent of the City of Pomona allegedly entered Plaintiff’s property. Mary Marshall (Defendant), who resides nearby the Pomona property, also regularly and intentionally utilized the walkway on the Pomona property.

On November 30, 2022, Plaintiff filed a complaint for trespass against Defendant, City of Pomona, and Does 1-100. On December 28, Plaintiff dismissed City of Pomona from this action.

On December 30, 2022, Defendant filed the present demurrer. On February 2, 2023, the court continued the hearing on Defendant’s motion and directed Defendant to meet and confer. On February 23, Defendant spoke with Plaintiff’s counsel and was unable to come to an agreement. (Marshall Decl.)

On February 21, 2023, Plaintiff first a First Amended Complaint (FAC).

A hearing on the demurrer and case management conference are set for March 8, 2023.

ANALYSIS

Defendant demurs to Plaintiff’s sole cause of action for trespass, arguing Plaintiff fails to allege sufficient facts to state a claim. For the following reasons, the court OVERRULES Defendant’s demurrer.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Discussion

In this case, Defendant focuses on paragraph 13 and argues Plaintiff’s Complaint fails to state a claim because (1) Plaintiff has no legal basis for claiming trespass; (2) Plaintiff failed to list dates, times, statements, or police reports to support Plaintiff’s claim; (3) Plaintiff’s claim is based on false claims and hearsay; and (4) Plaintiff’s lawsuit is retaliation for statements Defendant made in a deposition.

“The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

Here, Plaintiff first alleges that Plaintiff is the owner of and holds title to the Pomona property. (Complaint, ¶ 1, 8.) Second, Plaintiff alleges that Defendant “has regularly and intentionally entered onto” Plaintiff’s property without permission within the last three years. (Complaint, ¶ 13.) Third, Plaintiff alleges all trespassers, including Defendant, caused actual harm to Plaintiff by limiting Plaintiff’s use of the Pomona property, decreasing its market value, and causing Plaintiff to suffer mental distress due to their presence on the Pomona property. (Complaint, ¶ 18.) The court finds these allegations sufficient to state a cause of action for trespass.

While Defendant suggests these claims lack evidentiary support and are based on ulterior motives, those are not proper grounds for a demurrer. As Defendant’s own motion notes, all material facts properly pled are accepted as true for the purposes of a demurrer. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Accordingly, Defendant’s demurrer is OVERRULED.

CONCLUSION

Based on the analysis above, Defendant’s demurrer is OVERRULED.

On the court’s own motion, pursuant to Code of Civil Procedure section 436, the court GRANTS a motion to strike Plaintiff’s First Amended Complaint filed February 21, 2023 as improperly filed and allows thirty (30) days leave to amend. Pursuant to Code of Civil Procedure section 472, subdivision (a), Plaintiff may only amend a pleading once without leave of the court “after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” If party seeks to amend the pleading after the deadline to file an opposition has passed, parties must stipulate to the filing. (Code Civ. Proc., § 472, subd. (a).)

Here, the deadline to file an opposition to Defendant’s demurrer was nine court days before the hearing on February 2, 2023. While the court continued the hearing, the deadline to file an opposition and reply were not continued and Plaintiff’s First Amended Complaint was not filed pursuant to a stipulation between the parties. Thus, Plaintiff’s First Amended Complaint was not properly filed.