Judge Upinder S. Kalra, Case Number: 22STCV10576, Date: 2023-08-21 Tentative Ruling

1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.

If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.

2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.

3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.

MOVING PARTY: Plaintiffs and Cross-Defendants Reed Harman and Nan Harman, individually, and as Trustees of the Visalia Trust

RESPONDING PARTY(S): Defendants and Cross-Complainants Stanley Francis Chao and Steven Francis Chao[1] and Cross-Complainant Herair Garboushian.

1. Demurrer to the fourth cause of action in the First Amended Cross-Complaint for Declaratory Relief for failure to state a claim. (Cal. Code Civ. Proc. (CCP) § 430.10(e).)

On March 28, 2022, Plaintiffs Reed L. Harman and Nan M. Harman, individually and as Trustees of the Visalia Trust (Plaintiffs) filed a Complaint against Defendants Stanley Francis Chao and Steve Francis Chao (Defendants). The Complaint had four causes of action for: (1) declaratory relief; (2) injunctive relief; (3) nuisance; and (4) negligence.

According to the Complaint, this case involves real property located at 1820 Via Visalia, Palos Verdes Estates, California 90274 (Plaintiff’s Property) and real property located at 1113 Via Mirabel, Palos Verdes Estates, California 90274 (Defendant’s Property). Both properties are located within the Palos Verdes Homes Association (PVHA). Plaintiffs allege that each property is bound by the protective Restrictions in the PVHA and that Plaintiffs have the right to enforce the Restrictions against Defendants. Plaintiffs claim that Defendants have failed to properly maintain their trees and vegetation which resulted in obstructing Plaintiffs’ views from the main living areas of their property and in violation of the condition of approval Defendants received before planting.[2] PVHA adopted new rules regarding protecting scenic views on April 6, 2021. Defendants still have not maintained their trees and vegetation such that they do not obstruct Plaintiffs’ scenic views.

On December 15, 2022, Plaintiffs filed a Request for Dismissal as to Defendant Steve Francis Chao only.

On March 6, 2023, Plaintiffs filed a Complaint against Defendant Steve Francis Chao only, bearing Case No. 23STCV04882 for (1) declaratory relief, (2) injunctive relief, (3) nuisance, and (4) negligence.

On April 5, 2023, the subsequent case was transferred to Dept. 51 and the first case was deemed the lead case.

On April 18, 2023, Cross-Complainants Stanley Francis Chao, Steven Francis Chao, and Herair Garboushian filed a Cross-Complaint against Cross-Defendants Reed L. Harman and Nan M. Harman, individually, and as Trustees of the Visalia Trust.

On May 4, 2023, Defendant Steven Francis Chao filed an Answer to the Complaint in the second action.

On July 26, 2023, Cross-Complainants sought leave to file a First Amended Cross-Complaint, which the court granted.

On August 23, 2023, Cross-Complainants filed a First Amended Cross-Complaint (FACC) with four causes of action for: (1) Trespass; (2) Invasion of Privacy; (3) Nuisance; (4) Declaratory Relief; and (4) Injunctive Relief.

According to the FACC, Cross-Defendants have engaged in an unrelenting campaign to force the Chaos to cut down trees at their property. Cross-Complainant Garboushian is a tenant at the Chao’s property. Cross-Complainants allege that Cross-Defendants flew a drone over their property to take photographs and video without prior notice at least twice. Cross-Complainants also challenge the validity of Resolution No. 191 that PVHA adopted in 2021.

Cross-Defendants filed a Demurrer to the FACC on September 28, 2023. Cross-Complainants timely filed an opposition on October 17, 2023. Cross-Defendants timely filed a reply on October 23, 2023.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) 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. …. 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¿147 Cal.App.4th at 747.)

Cross-Complainants contend that the demurrer is untimely because it was due on or before September 26, 2023 pursuant to CCP § 430.40 and that Cross-Complainants did not initiate meet and confer efforts until September 27, 2023. (Riskin Decl. ¶¶ 4-5.) Cross-Complainants asks the court to overrule the demurrer because the lack of meaningful opportunity to meet and confer prejudiced them. (Opp. 6:10-12.) Cross-Defendants claim the late filing was caused by a calendaring mistake. (Peterson Decl. ISO Reply ¶¶ 3, 4.)

A defendant can demur within the same period of time it has to answer the complaint – i.e., 30 days after service, unless extended by stipulation or court order. (Cal. Code Civ. Proc. (CCP) § 430.40(a).) If the parties cannot meet and confer by the deadline, the demurring party is granted an automatic 30-day extension of time to file a responsive pleading, by filing and serving a declaration, on or before the date the responsive pleading is due, stating that a good faith attempt to meet and confer was made and explaining why the parties could not meet and confer. (CCP § 430.41(a)(2).) Because the statutory language setting the time limit after service of the complaint states “may” and not “must” the court can still consider a general demurrer. (CCP § 473(a)(1); McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280; Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [concluding that the late-filed demurrer did not affect plaintiff’s “substantial rights” because plaintiff did not take steps to obtain a default judgment or otherwise demonstrate prejudice from the delay.])

Here, Cross-Complainants did not demonstrate prejudice by Cross-Defendants’ late-filing of the demurrer. Notably, Cross-Complainants’ only claimed prejudice is failure to engage in meaningful meet and confer discussions in advance of Cross-Defendants’ filing the demurrer. Additionally, Cross-Complainants did not request entry of default and had the opportunity to fully oppose the instant demurrer. Finally, the delayed filing, by the parties’ declarations, occurred two days after the responsive pleading deadline.

Accordingly, the court exercises its discretion to consider the merits of the instant demurrer.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿Upon reviewing the declarations submitted in support and in opposition to the demurrer, the parties did not meet and confer prior to Cross-Defendants’ filing the instant motion. (Peterson Decl., ¶¶ 6,7; Riskin Decl. ¶¶ 4-5.) Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

Cross-Defendants claim that there is no actual controversy between Cross-Complainants and Cross-Defendants as to Resolution No. 191 because PVHA adopted it, not the Cross-Defendants. Additionally, Cross-Defendants assert that since PHVA adopted Resolution No. 191 in 2021, Cross-Complainants impermissibly seek to redress a past wrong. Alternatively, Cross-Defendants claim that the fourth cause of action fails because Cross-Complainants did not plead facts to avoid the consequences of judicial deference and the business judgment rule.[3] Cross-Complainants argue that they did allege a current and prospective harm because Cross-Defendants are suing them over their trees despite not being adjoining property owners under the purported authority of Resolution 191.[4] Cross-Defendants reply that Cross-Complainants have not alleged facts to support applying Civ. Code § 4000 et seq to this action because there are no common areas.[5]

A plaintiff’s declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79; Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746 (Connerly).) A sufficient complaint: (1) sets forth facts showing the existence of an actual controversy relating to the parties’ legal rights and duties, and (2) requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606; Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 751; see also Travers v. Louden (1967) 254.Cal.App.2d 926, 931-32 (Travers) [commenting that declaratory relief may be appropriate for parties with a continuing relationship].) A declaratory relief claim should not be used to determine issues that are already engaged by other causes of action. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.)

After reviewing the FACC, there are sufficient factual allegations to support a claim for declaratory relief. As a threshold matter, this dispute is about cutting trees, which happens to include whether Resolution 191 is valid to allow Cross-Defendants to seek a court order to force Cross-Complainants to cut their trees. The trees have not been cut therefore there is a continuing controversy. Second, the FACC alleges that Resolution No. 191 was not adopted in accordance with the Restriction requirements. (FACC ¶¶ 48, 49.) Third, the FACC alleges that after Cross-Defendants dismissed their 2020 Complaint (after Cross-Complainant Steven Chao filed a demurrer arguing that Cross-Defendants lacked authority because they were not adjoining homeowners) PHVA passed Resolution 191. (FACC ¶¶ 17, 18.) Fourth, the controversy is between Cross-Complainants and Cross-Defendants because Cross-Defendants are the parties seeking to enforce Resolution 191 – not PHVA. In fact, Cross-Defendants’ underlying Complaint relies on Resolution 191 to allow them as non-adjoining homeowners to sue Cross-Complainants to get them to cut their trees. Cross-Complainants have requested the court to adjudge their rights and duties. (FACC ¶ 51(a) – (f).)

[1] There’s a discrepancy between the FACC named parties and the captioned parties in the demurrer papers: they omit Herair Garboushian.The Declaration of Ellis F. Raskin submitted in support includes Herair Garboushian as a Cross-Complainant.

[2] There was a lawsuit in 2020 that Plaintiffs dismissed without prejudice pertaining to the same issue.

[3] The court will not address this final argument because Cross-Complainants did allege that Resolution No. 191 is arbitrary, it violates fundamental public policies, and imposes a burden on the use of affected land (FACC ¶ 48, 49 [alleging that Resolution 191 was not adopted in accordance with the procedures set forth in Section 9 of Declaration No. 23 of the Protective Restrictions]. Reading the FACC allegations as true, as the court must on demurrer, Cross-Complainants also allege suspicious timing in the adoption of Resolution 191 because it shortly followed Plaintiff/Cross-Defendants’ dismissal of their 2020 Complaint after the Defendants demurred on the grounds that the Restrictions only allowed adjoining property owners to enforce the tree-trimming provision. (FAC ¶ 17, 18.) The business judgment rule argument similarly fails here because Cross-Complainants allege that Resolution 191 was not adopted in accordance with PVHA’s own procedures on modifying the Restrictions.

[4] Cross-Complainants proffer two additional arguments. First, they argue that Cross-Defendants’ own complaint seeks declaratory relief that the Cross-Complainants are violating Resolution 191 and so they waived any contrary argument. Second, they argue that Cross-Defendants only attack part of the fourth cause of action – the part addressing the facial validity of Resolution No. 191.

[5] The court is not persuaded by Cross-Defendants’ argument because it ignores that the subject properties are part of a common interest development, subject to a homeowners’ association, and subject to restrictions, conditions, covenants, reservations, liens, and charges. (FACC ¶ 1, 5, 6, 7, Exhibit 1 to FACC “Declaration of Establishment.”)