Judge: Upinder S. Kalra, Case: 22STCV35523, Date: 2023-08-28 Tentative Ruling
Case Number: 22STCV35523 Hearing Date: August 28, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
28, 2023
CASE NAME: Carlos Balbona vs. Jamie Biver
CASE NO.: 22STCV35523
DEMURRER
MOVING PARTY: Defendant Jamie Biver
RESPONDING PARTY(S): Plaintiff Carlos Balbona
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to all five causes of action.
TENTATIVE RULING:
1. Demurrer
as to the 1st, 2nd, 3rd, 4th and 5th
Causes of Action is SUSTAINED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On November 9, 2022, Plaintiff Carlos Balbona (“Plaintiff”)
filed a complaint against Defendant Jamie Biver (“Defendant.”) The complaint
alleged five causes of action: (1) Quiet Title, (2) Trespass, (3) Nuisance, (4)
Declaratory Relief, and (5) Nuisance in Violation of Civil Code § 841.4. The
complaint alleges that Plaintiff owns a parcel of land on Calvert Street in
North Hollywood, California, which has a common boundary with the parcel of
land owned by Jamie Biver. Plaintiff asserts that Defendant has encroached into
the boundaries of Plaintiff’s property.
On January 23, 2023, Defendant filed a Motion to Set
Aside/Vacate Default, which was GRANTED.
On June 14, 2023, Defendant filed a Demurrer. Plaintiff’s
Opposition was filed on August 7, 2023. Defendant’s Reply was filed on August
21, 2023.
LEGAL STANDARD
Demurrer
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.)
Meet and Confer:
Prior to filing a demurrer, the
demurring party is required to satisfy their meet and confer obligations
pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied
their meet and confer obligation by submitting a declaration pursuant to Code
of Civ. Proc. §430.41(a)(2) & (3). On June 14, 2023,
Defendant’s counsel filed a Declaration of Demurrig party regarding meet and
confer. It indicates that at least five days before the responsive pleading was
to be filed, the parties met and confer via telephone, but were unable to
resolve the issues.
ANALYSIS:
1.
First
Cause of Action: Quiet Title
Defendant argues that this cause
of action fails. Specifically, Defendant argues that the Complaint does not
sufficiently describe the real property that is disputed. The complaint
discusses the “area of encroachment.” However, the complaint also states that
Plaintiff seeks quiet title to both the boundaries of the Dominant Tenement as
well as the Servient Tenement.
Plaintiff argues that the first
cause of action is sufficiently pleaded as the Complaint contains the address
for both properties and therefore provides Defendant notice that “the case
deals with his property and Plaintiff’s property.” (Opposition 4: 8-10.)
To establish a quiet title action under CCP § 761.020, the
complaint must include:
“(a) a description of the property
that is the subject of the action, (b) the title of the plaintiff as to which a
determination under this chapter is sought and the basis of the title, (c) the
adverse claims to the title of the plaintiff against which a determination is
sought, (d) the date as of which the determination is sought, and (e) a prayer
for the determination of the title of the plaintiff against the adverse
claims.”
Further,
In an
action to quiet title, the complaint should allege,¿inter alia,¿the interest of the plaintiff in the property at the
time the action is commenced. [Citation] If plaintiff owns the property in fee,
a general allegation of ownership of the described property is sufficient.
[Citation] However, a general allegation of ownership is treated as a
conclusion if the detailed facts upon which the claim of ownership is
predicated are also alleged, and in such case, the specific facts will control
rather than the general allegation in determining whether the complaint states
sufficient facts to constitute a cause of action. [Citations] Actually, in such
circumstances only one cause of action is stated. [Citation] Accordingly, if
the specifically pleaded facts affirmatively reveal the absence of an essential
element in a plaintiff's claim of title, no cause of action is stated.¿
(Stafford v.
Ballinger (1962) 199 Cal. App. 2d 289, 292.)
After a
review of the complaint, the Court finds that Plaintiff has not sufficiently
alleged a cause of action for quiet title. Specifically, the Complaint states
that Plaintiff, the Dominant Tenement, seeks quiet title to the encroached area
of the Servient Tenement, Defendant. However, the Complaint then states that
plaintiff seeks quiet title to the encroached area of the Dominant Tenement by Defendant.
Which is it? Also, what is the encroached area? There is no description of the
area. Is it a foot wide? Is it 4 feet wide? How long is the encroached area?
The complaint does not contain sufficient facts to provide Defendant notice as
to what portion of land Plaintiff is seeking quiet title.
Demurrer
as to the First Cause of Action is SUSTAINED.
2.
Second
Cause of Action: Trespass
Defendant argues that this cause
of action fails as well. The Complaint does not contain any facts that indicate
what acts Defendant did that would constitute a trespass.
““Trespass is an unlawful
interference with possession of property.” [citation omitted.] 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,
261–262.)
After a review of the complaint,
the Court finds that Plaintiff has not sufficiently alleged a cause of action
for trespass. While Plaintiff may not need to specifically identify the metes
and bounds of the properties, some more detailed specificity than is currently
alleged is required particularly since
the Complaint contains conclusory allegations, without any factual statements.
The three paragraphs for the second cause of action contain the barebone
allegations of the causes of action.
Demurrer
as to the Second Cause of Action is SUSTAINED.
3.
Third
Cause of Action: Nuisance
Similar to the second cause of
action, Defendant argues that the cause of action for nuisance does not contain
any facts that indicate what act or omission Defendant did that would
constitute a nuisance.
Under Civil Code § 3479, a nuisance is considered:
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.
After a review of the complaint, the Court finds that
Plaintiff has failed to sufficiently allege a cause of action for nuisance.
While Plaintiff does not need to provide all factual allegations, Plaintiff is
required to provide some factual allegations. Here, the statements under the
third cause of action are conclusory allegations and do not provide any factual
allegations as to the type of nuisance.
Demurrer
as to the Third Cause of Action is SUSTAINED.
4.
Fourth
Cause of Action: Declaratory Relief
Defendant argues that this cause
of action fails because Complaint first states that a controversy has arisen as
to the encroached area on the dominant tenement as both parties have asserted a
right to the encroached area. However, a description of the encroached area has
not been provided. Plaintiff argues that the Complaint alleges that a
controversy has arisen and that as the dominant tenement, Plaintiff has the
sole absolute right for the use and enjoinment of the encroached area on the
Dominant Tenement.”
“To qualify for declaratory relief
under section 1060, plaintiffs were required to show their action (as refined
on appeal) presented two essential elements: “(1) a proper subject of
declaratory relief, and (2) an actual controversy involving justiciable
questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016) 6 Cal.App.5th
527, 546) ““Declaratory relief operates prospectively to declare future rights,
rather than to redress past wrongs.” (County
of San Diego v. State of California (2008) 164 Cal.App.4th 580, 607).
Similar
to above, the Court finds that Plaintiff has not sufficiently alleged a cause
of action for declaratory relief. While there may be a controversy between the
parties, the Complaint does not provide any facts as to what the encroached
area is. A complaint must provide notice to a Defendant. Here, the Complaint
provides minimal, if at all, notice about the alleged encroached area. While
Plaintiff may not have to provide the metes and bounds of the area, the Complaint
needs to provide sufficient information to allow Defendant to be on notice as
to the encroached area that is the subject of the dispute. However, the
Complaint provides no such information.
Demurrer
as to the Fourth Cause of Action is SUSTAINED.
5.
Fifth
Cause of Action: Nuisance in Violation of Civil Code § 841.4
Defendant argues that this cause
of action fails because Plaintiff does not describe where the trees have been
planted, and whether the planting of these trees is “the alleged act
constituting trespass and nuisance.” (Demurrer 3: 9-14.)
Plaintiff argues that the
Complaint does not have to provide the specific metes and bounds of the area or
the exact location of the trees.
Civil Code § 841.4 states:
Any fence or other structure in
the nature of a fence unnecessarily exceeding 10 feet in height maliciously
erected or maintained for the purpose of annoying the owner or occupant of
adjoining property is a private nuisance. Any owner or occupant of adjoining
property injured either in his comfort or the enjoyment of his estate by such
nuisance may enforce the remedies against its continuance prescribed in Title
3, Part 3, Division 4 of this code.
After a
review of the Complaint, the Court finds that the Fifth Cause of Action is insufficiently
pleaded. Civil Code states that any fence or structure exceeding 10 feet high
for the purpose of annoying the
adjoining property owner is a nuisance. Here, while the Complaint states facts supporting
the allegations that that Defendant planted a row of trees on the barrier of
the property that were over 10 feet high that obstructed (Comp. ¶ 25) there are
no facts alleged alleging how these trees injured Plaintiff’s comfort or
enjoyment of their estate or facts alleging that the acts were performed with the
purpose of annoying. Conclusory allegations are not facts.
Demurrer
as to the Fifth Cause of Action is SUSTAINED.
Leave to Amend:
Leave to amend should
be liberally granted if there is a reasonable possibility an amendment could
cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
The Plaintiff has the
burden of demonstrating that leave to amend should be granted, and that the
defects can be cured by amendment. (“Plaintiff must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.” Goodman v. Kennedy (1976)
18 Cal.3d 335, 349). It is likely that Plaintiff can provide further factual
details that would provide Defendant on notice of the particular area.
Leave to Amend is
GRANTED.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Demurrer as to the 1st, 2nd, 3rd,
4th and 5th Causes of Action is SUSTAINED with 20 days
leave to amend.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: August
28, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court