Judge Virginia Keeny, Case Number: 24VECV04471, Date: 2025-03-18 Tentative Ruling

Judge: Virginia Keeny, Case: 24VECV04471, Date: 2025-03-18 Tentative Ruling

Case Number: 24VECV04471 Hearing Date: March 18, 2025 Dept: 45

ivar brogger, et al. v. the city of los angeles, et al.

(1) Demurrer to petition and complaint

(2) deMURRER to complaint

Date of Hearing: 3/18/25 Trial Date: None

Department: 45 Case No.: 24VECV04471

Moving Parties: (1) Defendant City of Los Angeles, which includes the Los Angeles Department of Building and Safety

(2) Defendant Eliran Levi

Responding Party: (1) None

(2) Plaintiffs Ivar Brogger, James Cruce, and Richard Guy

BACKGROUND

This action arises from alleged violations of a city ordinance. The plaintiffs allege the following. They are property owners of homes located in Tract 13564, known as “Valleyheart Glen,” a post-WWII neighborhood with mature trees, one-story homes, and a unique character of a historical nature. In 2008, the Los Angeles City Council adopted a zoning ordinance (called the Baseline Mansionization Ordinance (“BMO”)) to prevent the conversion of certain homes into mansion-like properties. According to the plaintiffs, the City of Los Angeles (the “City”) and the Los Angeles City Department of Building & Safety (“LADBS”) have exceeded their authority and approved the development of properties that violate the BMO’s limitations for the height of residential building, minimum side yard setbacks, massing of side yard walls, and maximum floor areas.

On September 16, 2024, Plaintiffs Ivar Brogger, James Cruce (as Trustee of the James Taylor and Nance Naish Cruce Family Trust dated February 4, 2020), and Richard Guy (collectively, “Plaintiffs”) filed this action against Defendants the City, LADBS, Eliran Levi, Michael Shabtai, Tsophit Zusman Shabtai, and Does 1 through 25, inclusive, asserting causes of action for:

(1) Writ of mandate (against the City, LADBS, and Does 1 to 10);

(2) Public nuisance (against the “private defendants” [undefined in the Complaint] and Does 11-25);

(3) Private nuisance (against the private defendants); and

(4) Declaratory relief (against all defendants).

On January 9, 2025, the Court found this case (24VECV04471) related to another case (21VECV00960, titled Rocheron, et al. v. Gabay, et al.).

On January 3, 2025, the City filed its demurrer to the Complaint.

On January 17, 2025, Eliran Levi (“Defendant”) filed his demurrer.

On March 7, 2025, Plaintiffs filed their opposition to Defendant’s demurrer, but dismissed the City and LADBS without prejudice.

On March 11, 2025, Defendant filed his reply.

[Tentative] RulingS

Defendant City of Los Angeles, which includes the Los Angeles Department of Building and Safety’s Demurrer to Petition and Complaint is MOOT in light of the defendant’s dismissal from this action.

Defendant Eliran Levi’s Demurrer to Complaint is SUSTAINED IN PART and OVERRULED IN PART as follows. The demurrer to the second cause of action for public nuisance and the third cause of action for private nuisance is SUSTAINED with leave to amend. The demurrer to the third cause of action for declaratory relief is OVERRULED.

Plaintiffs Ivar Brogger, James Cruce (as Trustee of the James Taylor and Nance Naish Cruce Family Trust dated February 4, 2020), and Richard Guy are ordered to file and serve their Second Amended Complaint within 30 days of this ruling.

THE CITY’S DEMURRER

The City, which includes Defendant LADBS, demur the FAC, arguing that (1) the Court has no jurisdiction over the first cause of action for petition of writ of mandate and complaint, and (2) the declaratory relief claim fails to state facts sufficient to constitute a cause of action.

However, on March 7, 2025, Plaintiffs dismissed the City and LADBS from this lawsuit.

Therefore, that demurrer is moot.

DEFENDANT LEVI’S DEMURRER

Defendant demurs the second cause of action for public nuisance, the third cause of action for private nuisance, and the fourth cause of action for declaratory relief, arguing that they fail to state facts sufficient to constitute a cause of action against the defendant. Plaintiffs dispute that argument in their opposition.

A. Request for Judicial Notice

On January 17, 2025, Levi filed a request for judicial notice of (A) an annotated map of the area at issue in this case, and (B) online records from LADBS relating to Defendant’s real property that is at issue in this case.

Defendant’s request for judicial notice is DENIED.

B. Legal Standard

Generally, a party may demur a pleading on several enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).)

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.) The court “‘assume[s] the truth of the complaint’s properly pleaded or implied factual allegations.’ [Citation.]” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)

“‘Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, “leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” [Citations.] A pleading may be stricken only upon terms the court deems proper [citation], that is, terms that are just. [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action.’ [Citation.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174–1175.)

C. Meet and Confer

Before filing a demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).)

Here, defense counsel testifies he attempted to meet and confer with Plaintiffs’ counsel but never received a response. Plaintiffs do not dispute that fact in their opposition.

Therefore, the Court finds the meet and confer requirement has been satisfied.

D. Second Cause of Action for Public Nuisance

Plaintiffs make the following allegations against Levi relevant to their public nuisance claim. The defendant owns the real property known as 4507 Varna Avenue, Sherman Oaks, CA 91423 (the “Levi Property”). (Compl., ¶ 8.) The Levi Property has violated the BMO by, among other things, exceeding the maximum floor area permitted by the ordinance. (Compl., ¶¶ 22, 29.) Those violations “have occurred on private property and annoy a considerable number of people in the Valleyheart Glen neighborhood, including through destruction of the character of the neighborhood; and, the destruction of the character of the neighborhood has a specific injurious impact on Plaintiffs as the homes owned by Plaintiffs are located within the Valleyheart Glen neighborhood, in close proximity to the Subject Properties.” (Compl., ¶ 42.) “In as much as the Private Defendants’ violations of the Ordinance are violations of law, they constitute a ‘nuisance per se’ (see, e.g., City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382); and, moreover, may be abated as a public nuisance (see, e.g., City of Claremont v. Kruse (2009) 177 Cal. 4th 1153).” (Compl., ¶ 42.)

Defendant now demurs to the public nuisance claim, arguing that Plaintiffs have not alleged what special injury, if any, they have suffered as a result of the Levi Property that is separate and apart from the alleged injury the community as a whole has suffered. (Demurrer, p. 6:11-14.) “The attempt to do so by the allegation that Plaintiffs’ properties ‘are located with the Valleyheart Glen neighborhood, in close proximity to the Subject Properties’ (Complaint, ¶ 42) is insufficient to meet this requirement.” (Demurrer, p. 6:14-17.)

In opposition, Plaintiffs argue that Defendant’s violation of the BMO is “negligence per se” and, therefore, a public nuisance. (Opposition, p. 3:1-4.)

In his reply, Defendant contends, among other things, that Plaintiffs have not alleged negligence per se because (1) a nuisance per se arises when a legislative body expressly declares a particular object, substance, activity, or circumstance to be a nuisance, and (2) here, Plaintiffs have not cited any city, county, or State ordinance that expressly declares noncompliance with a setback is a nuisance.

“‘“‘[T]he legislature has the power to declare certain uses of property a nuisance and such use thereupon becomes a nuisance per se.” [Citation.] ... Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.”’ [Citation.]” (City of Dana Point v. New Method Wellness, Inc. (2019) 39 Cal.App.5th 985, 989.) “‘By ordinance the city legislative body may declare what constitutes a nuisance.’ (Gov. Code, § 38771.)” (Ibid.)

Here, Plaintiffs allege that the Levi Property has violated the BMO, but have not alleged that the BMO expressly declares those alleged violations a “public nuisance.” (Cf. Ibid. [“Dana Point has declared any nonpermitted use in a residential zone a nuisance. Municipal Code section 9.09.020, subdivision (b), which enumerates permitted uses in a residential zone, declares, ‘Any use not expressly allowed is prohibited.’ Nowhere does the residential zoning ordinance permit the operation of a drug treatment facility in a residential zone. Thus, such use was prohibited. Municipal Code section 1.01.240 declares that any condition that violates a provision of the Municipal Code ‘shall be deemed a public nuisance’ subject to abatement. Thus, the operation of a drug treatment facility in a residential zone is a nuisance per se”].)

Therefore, the Court finds Plaintiffs’ nuisance per se argument unpersuasive.

Plaintiffs also argue in their opposition that they have “properly allege[d] that they have had a specific injurious impact through the ‘destruction of the character of the neighborhood’ due to their close proximity to Levi’s property.” (Opposition, p. 3:14-16, citing Compl., ¶ 42.)

California defines “nuisance in Civil Code section 3479 as anything that is ‘injurious to health, ... 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....’” (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 610 (“Adams”).)

“A nuisance qualifies as a public nuisance when it ‘affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’ (Civ. Code, § 3480.)” (Adams, supra, 224 Cal.App.4th at p. 610 [italics removed].)

“A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493.)

“[W]here the nuisance is a private as well as a public one, there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public.” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 342.)

Here, the Complaint has not alleged a nuisance that is both private and public. Based on the allegations in the Complaint, Plaintiffs have suffered the same harm as the rest of the community (i.e., destruction of the unique character of the neighborhood by the Levi Property). Plaintiffs’ argument that the Levi Property’s BMO violations have affected them “privately” because they live in close proximity to the property is unpersuasive. Living in close proximity without more only shows that Plaintiffs are part of the public (i.e., neighborhood) that has been impacted the same way.

“Where the nuisance alleged is not also a private nuisance as to a private individual[,] [a plaintiff] does not have a cause of action on account of a public nuisance unless he alleges facts showing special injury to himself in person or property of a character different in kind from that suffered by the general public. [Citations.]” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [italics in original] (“Venuto”).) “Under this rule the requirement is that the plaintiff’s damage be different in kind, rather than in degree, from that shared by the general public. [Citations.]” (Ibid.)

Here, Plaintiffs have not alleged injury that is different in kind from that suffered by the general public or neighborhood. They all allegedly suffered the destruction of the unique character of their neighborhood like the rest of their neighbors.

For those reasons, Defendant’s demurrer to the second cause of action for public nuisance is SUSTAINED, with leave to amend.

E. Third Cause of Action for Private Nuisance

Under their private nuisance claim, Plaintiffs allege that Defendant has “created conditions and permitted conditions to persist at the [Levi Property] that are violations of the [BMO] and diminish the unique character of the Valleyheart Glen neighborhood in which Plaintiffs’ homes are located, so as to interfere with Plaintiffs’ free use, and comfortable enjoyment of the properties where such homes are located.” (Compl., ¶ 46.)

Defendant argues that the Complaint fails to state facts sufficient to constitute a cause of action for private nuisance because Plaintiffs have not alleged facts showing that (1) he intentionally and unreasonably invaded the Plaintiffs’ private use and enjoyment of their properties, or (2) the alleged invasion was negligent. (Demurrer, pp. 7:16-8:24.) According to the Defendant, “Plaintiffs’ complaint and annoyance at a slightly smaller side yard on someone else’s property cannot reasonably give rise to a [private] nuisance claim.” (Demurrer, p. 8:15-17.)

In opposition, Plaintiffs argue that they have alleged private nuisance based on negligence by alleging negligence per se. (Demurrer, p. 4:14-17.)

However, as stated above, the Complaint has not alleged facts sufficient to constitute negligence per se.

Plaintiffs also argue that they have stated a claim for private nuisance because Defendant, “in violation of the BMO, built a property that by its existence has diminished the unique character of the Valleyheart Glen neighborhood, thus interfering with the Petitioners’ free use and comfortable enjoyment of their properties.” (Opposition, p. 4:7-10, citing Compl., ¶¶ 24-29, 46.)

The elements of an action for private nuisance are the following.

“First, the plaintiff must prove an interference with its use and enjoyment of its property.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176 (“Today’s IV”).)

“Second, the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage.” (Today's IV, supra, 83 Cal.App.5th at p. 1176 [italics in original].)

“Third, the interference with the protected interest must not only be substantial, 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.” (Today's IV, supra, 83 Cal.App.5th at p. 1176 [italics in original].)

“Substantial damage and unreasonableness are to be judged by an objective standard.” (Today's IV, supra, 83 Cal.App.5th at p. 1176.)

“With respect to the substantial damage element, the degree of harm is to be measured by the effect the invasion would have on persons of normal health and sensibilities living in the same community. [Citation.] ‘“If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the [idiosyncrasies] of the particular plaintiff may make it unendurable to him.”’ [Citation.]” (Today's IV, supra, 83 Cal.App.5th at p. 1176.)

“With respect to the unreasonableness element, the primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account.” (Today's IV, supra, 83 Cal.App.5th at p. 1176; Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th at p. 162 [“The factors to be considered in determining the social utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of property are found in section 828 of the Restatement Second of Torts: ‘(a) the social value that the law attaches to the primary purpose of the conduct; [¶] (b) the suitability of the conduct to the character of the locality; and [¶] (c) the impracticability of preventing or avoiding the invasion’”].)

According to the Court of Appeal in Today’s IV, where a pleading fails to allege facts comparing or weighing (1) the harm the plaintiffs have suffered with (2) the social utility of the challenged conduct, that pleading has failed to state a prima facie case of private nuisance. (See Today's IV, supra, 83 Cal.App.5th at p. 1179–1180 [“Even if the manner of construction was the challenged interference, appellant was still required to plead in the FAC that the seriousness of the harm it suffered outweighed the social utility of the Project. The FAC contains no such allegation. It is not as simple as what appellant made it out to be during oral argument; it is not a mere issue of the magic words “social utility” not being used in the FAC. Nowhere in the FAC does it allege that the loss of business to the Bonaventure and loss of a lucrative airline contract is a harm suffered by appellant that outweighed the social utility of the Project constructing light-rail lines. Nothing was provided as to whether the seriousness of the purported harm outweighs the social utility of the construction method utilized in building a major public transit project. The pleading is devoid of any allegation that compares or weighs the harm suffered versus social utility. As a result, appellant’s nuisance claim as pleaded in the FAC fails to state a prima facie case of private nuisance”].)

Here, the Complaint has not alleged the social utility of the Levi Property, let alone facts comparing or weighing that social utility with the harm that Plaintiffs have allegedly suffered.

Therefore, Defendant’s demurrer to the third cause of action for private nuisance is SUSTAINED, with leave to amend.

F. Fourth Cause of Action for Declaratory Relief

Defendant also demurs the fourth cause of action for declaratory relief, arguing that it fails to state facts sufficient to constitute a cause of action because Plaintiffs have failed to establish any claim against Defendant and that there is no actual controversy.

“A complaint for declaratory relief must demonstrate: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410 (“Brownfield”).)

“The ‘proper subjects’ of declaratory relief are set forth in Code of Civil Procedure section 1060 and other statutes. [Citation.]” (Brownfield, supra, 208 Cal.App.3d at p. 410.)

“The ‘actual controversy’ requirement concerns the existence of present controversy relating to the legal rights and duties of the respective parties pursuant to contract (Code Civ. Proc., § 1060), statute or order. [Citation.] Where the allegations of the complaint reveal the controversy to be conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court, the fundamental basis of declaratory relief is lacking.” (Brownfield, supra, 208 Cal.App.3d at p. 410.)

Here, the Court disagrees with Defendant that the Complaint fails to allege that the elements for declaratory relief. The Complaint alleges that “[m]any aspects of the construction of the new home are in violation of the [BMO] …” (Compl., ¶ 24), and that “[a]n actual controversy has arisen and now exists between Plaintiffs, on the one hand, and Defendants, and each of them, on the other, as to whether the development that has occurred on the Subject Properties is a violation of the [BMO]” (Compl., ¶ 48). The Court finds those allegations sufficient. (See Walker v. Los Angeles County (1961) 55 Cal.2d 626, 637 [“The interpretation of ordinances and statutes are proper matters for declaratory relief”].)

Therefore, Defendant’s demurrer to the fourth cause of action for declaratory relief is OVERRULED.

CONCLUSION