Judge: Shirley K. Watkins, Case: 22VECV00456, Date: 2022-08-15 Tentative Ruling

Case Number: 22VECV00456    Hearing Date: August 15, 2022    Dept: T

YOUSEF MONADJEMI et al.,

 

                        Plaintiffs,

 

            vs.

 

KARIM CHAMIE et al.,

 

                        Defendants.

 

CASE NO: 22VECV00456

 

[TENTATIVE] ORDER RE:

DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

 

Dept. T

8:30 a.m.

August 15, 2022

 

NOTICE OF CONTINUANCE OF CMC TO 11/8/2022

 

 

 

 

            [TENTATIVE] ORDER:  Defendants Karim Chamie and Cynthia Chamie's Demurrer to the Second and Fourth Causes of Action of the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants Karim Chamie and Cynthia Chamie's Motion to Strike Portions of the First Amended Complaint is DENIED.

Defendants to answer within 20 days.

Defendants Karim Chamie and Cynthia Chamie's Request for Judicial Notice is GRANTED but not as to any hearsay or facts in dispute. 

 

            OTHER ORDERS:

           

            CMC is continued to 11/8/2022 at 8:30 a.m. in Dept. T.  Meet and confer per CRC 3.724 and 3.727 is REQUIRED prior to the CMC.

            Counsel are ordered to conform to civility guidelines in all communications between them as required by State Bar and Local rules.

            Discovery disputes may be brought before the court by way of an online request for IDC.  Good faith efforts must be made before discovery motion practice.  The court requires strict compliance with statutory language for the response to all discovery, in particular, response to production requests.

            The court intends to send this case to an early MSC.

 

Introduction

Defendants Karim and Cynthia Chamie (Defendants) demur to Plaintiff Yousef Monadjemi and Pearl Zadeh’s (Plaintiffs) First Amended Complaint (FAC.)  Defendants’ Notice to the Demurrer places into issue the second cause of action (COA) for injunctive relief and the fourth COA for prescriptive easement.  Defendants’ demurrer does not place into issue the first COA for declaratory relief and the third COA for private nuisance.

Defendants further move to strike allegations that Defendants are in violation of the Covenants, Conditions and Restrictions (CCR) due to the construction of a “giant wall” or façade and allegations that Defendants are in violation of the CCR due to the construction of an “iron structure.” 

Procedure

Plaintiffs disputes that Defendants met and conferred “by telephone” as alleged on the declaration of Attorney Sean Bryn.  However, Plaintiffs submit that letters outlining the arguments were exchanged.  Despite the issue of whether the meet and confer process was conducted by telephone as required by statute, the Court notes that an insufficient meet and confer process cannot be grounds to sustain or overrule a demurrer or grant or deny a motion to strike.  However, without making any determinations as to whether the meet and confer was sufficient, the Court admonishes the parties to in the future comply with all requirements of the Code of Civil Procedure. 

            Discussion 

            Defendants argue that the second COA for injunctive relief is a remedy and not a COA.  (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.)  The Court is in agreement with the case law cited.  The Court further notes that the Prayer of the FAC seeks the remedy of injunctive relief.  Plaintiffs do not dispute this issue.  On this pleading defect, the Demurrer to the second COA is SUSTAINED.

            As for the fourth COA for prescriptive easement, the pleading elements are: (1) That plaintiff has been using defendant’s property for the purpose of [e.g., reaching the access road]; (2) That plaintiff’s use of the property was continuous and uninterrupted; (3) That plaintiff’s use of defendant’s property was open and easily observable, or was under circumstances that would give reasonable notice to defendant; and (4) That plaintiff did not have defendant’s permission to use the land.  (CACI no. 4901.)  Plaintiffs’ FAC alleges an improper obstruction of their view by Defendants due to improvements made by Defendants on Defendants’ own property.  (See FAC pars. 26 and 68.)  There are no facts alleged to show that Plaintiffs “ha[ve] been using defendant’s property” at all.  Without any facts to show that Plaintiffs have made use of Defendant’s property, Plaintiffs fail to allege the very first pleading element for prescriptive easement.  Plaintiffs do not present any argument or legal authority to dispute this contention.  On this pleading defect alone, the demurrer to the fourth COA for prescriptive easement is SUSTAINED.

            Because Plaintiffs do not address the above pleading defects, Plaintiffs fail to present any facts or arguments to show that the pleading defects can be cured. 

            As to Defendants’ arguments regarding the alleged wall/façade and iron structure, the Court notes that these arguments only address a part of the allegations of the FAC.  Demurrers cannot be sustained only as to parts of claims.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  Plaintiffs’ FAC alleges violations of the CCR based upon the wall/façade, iron structure and trees.  (See FAC pars. 26, 46, 50, and 68.)  Because the arguments do not address the allegations based upon trees being planted in violation of the CCR, Defendants’ arguments regarding the wall/façade and iron structure as to the second and fourth COA are not persuasive. 

Even if the Court were to consider the arguments related to the wall/façade, the arguments place into issue, not the interpretation of the CCR but whether Defendants’ improvements are in violation of the CCR.  This issue necessarily requires a review of facts outside the four corners of the FAC and Defendants’ request for judicial notice.  Defendants argue that Plaintiffs place a “creative spin” on the allegation of a “giant wall.”  Defendants dispute that the improvement is in fact a “wall.”  Defendants assert that Plaintiff Monadjemi’s declaration evidences that there is no “wall.”  However, Defendants’ assertion of “creative spin” is not the grounds upon which the Court can sustain a demurrer.  The allegation of a “giant wall” is deemed to be true for demurrer purposes.  Further, Plaintiff Monadjemi’s declaration does not contradict the Plaintiffs’ allegation of a “wall” but actually supports the allegations in the FAC that a “wall” was constructed by Defendants in violation of the CCR.  The Court notes that the photos attached to Plaintiff Monadjemi’s declaration appear to show that the “wall” might be attached to the house and may not be a “wall” when using a common definition of the word.  However, the fact that the pictures are not conclusive shows that the Court cannot take judicial notice of the photos.  The Court declines to take judicial notice of Defendants’ assertion that the “wall” is part of the house or that the improvement is not a wall.  Further, it is uncertain if an improvement that is attached to a house cannot be considered a “wall” as the CCR may use the term.  Without additional facts, the issue cannot be determined as a matter of law at the pleading stage. 

As to the allegations of an “iron structure,” as reviewed above regarding the “wall,” whether an “iron structure” can be included in the CCRs use of the word “wall” in its prohibitive language requires a review of facts that go beyond the four corners of the pleading and request for judicial notice. 

In any event, the demurrer to the second and fourth COAs is SUSTAINED WITHOUT LEAVE TO AMEND. 

            Defendants’ motion to strike asserts the same arguments made in the demurrer regarding the “creative spin” on the allegations of a “wall.”  Defendants dispute that the improvements made upon their property can be considered a “wall,” let alone a violation of the CCR.  However, as reviewed above in the analysis to the demurrer, the allegations as to a “wall” and/or that the “wall” is in violation of the CCR, are necessary to Plaintiffs’ claims.  Plaintiff Monadjemi’s declaration in support of the temporary restraining order/preliminary injunction do not contradict the allegations of the FAC.  Defendants’ motion to strike the allegations of a “giant wall” and/or the wall violating the CCR is DENIED. 

            Specifically as to the allegations related to an “iron structure,” it remains to be seen whether the CCR’s use of the word “wall” in its prohibitive provisions include “iron structures.”  For pleading purposes, the allegations regarding an “iron structure” are seen to be necessary to support Plaintiffs’ claims of violations of the CCR.    The arguments related to the allegation of an “iron structure” is also DENIED. 

 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.