Case Number: BC589863 Hearing Date: July 20, 2016 Dept: 34

SUBJECT: Demurrer to complaint; motion to strike

Moving Party: Defendants Michael Ross and Phyllis Ross

Resp. Party: Plaintiff Furhan Shah

Defendants’ demurrer is OVERRULED. Defendants’ motion to strike is DENIED.

Defendants Request for Judicial Notice is DENIED. Pleadings filed in other trial courts, or decisions of other trial courts, are not relevant to this action.

PRELIMINARY COMMENTS:

Plaintiff spends three pages of his opposition citing to various trial court pleadings and decisions of other judges of the Los Angeles Superior Court. (See Opposition, p. 3:19 – p. 5:28.) Plaintiff’s counsel should know that this is improper. “A written trial court ruling in another case has no precedential value.” (Budrow v. Dave & Buster’s of California (2009) 171 Cal.App.4th 875, 885; Santa Ana Medical Hospital Center v. Belshé (1997) 56 Cal.App.4th 819, 831.)

The court also notes that, as to issues of standing, Statute of Limitations, lack of injury and laches, the court is denying the demurrer either because defendant has cited no authority for his position, or because the issues cannot be determined on demurrer. This, of course, does not mean that these issues cannot be litigated at trial.

Lastly, the Court notes that the demurrer has purportedly been filed by both defendants, Michael Ross and Phyllis Ross. However, both the caption page and the signature page of the demurrer states that it is filed by Michael Ross, in pro per. The Court is aware that Michael Ross is an attorney, although he is representing himself in pro per. It is not clear that Michael Ross, acting as a non-attorney, can represent Phyllis Ross. However, this issue of standing to file the demurrer was not raised by plaintiff, so the Court will address the demurrer as if it was filed on behalf of both defendants.

BACKGROUND:

Plaintiff commenced this action on 7/30/15. Plaintiff filed a second amended complaint on 5/11/16 against defendants for: (1) breach of declaration of restrictions; (2) private nuisance; (3) public nuisance; and (4) declaratory relief. Plaintiff alleges that defendant owns real property known as 2146 Mount Olympus Drive in Los Angeles, California, that is subject to the Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) binding a residential community known as Mt. Olympus. (SAC ¶¶ 1-2, 7.) The CC&Rs prohibit “obstructions or trees having a height greater than ten (10) feet above the finished grade surface of the ground upon which it is located which would deprive any owner within a five hundred (500) foot radius of such obstruction or trees of a view shall be erected or maintained without the written approval of Declarant.” (Id., ¶ 9.) Plaintiff alleges that defendant has violated and is violating this provision by maintaining trees of a height greater than ten feet which deprive plaintiff of his view. (Id., ¶ 24.)

ANALYSIS:

Demurrer

Defendants demur to plaintiff’s second amended complaint on the grounds of failure to allege sufficient facts. Defendants also demur on the ground that there is a defect or misjoinder of indispensable parties.

Standing

Defendants argue that plaintiff lacks standing to sue because the view impairment existed in 1981 and plaintiff did not purchase his property until 2015. Defendants provide no authority to support their apparent assertion that a property owner cannot have standing to assert a claim based on a previously existing obstruction. Therefore, this argument is not well taken. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [where discussion is “conclusory and fails to cite any authority to support the claim,” it “amounts to an abandonment of the issue”].)

Statute of limitations

“Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. (It is not ground for special demurrer.) [Citations.] [¶] The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not enough that the complaint might be barred. [Citations.]” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2015) ¶ 7:50.) “It is hornbook law that the statute of limitation begins to run in any case upon the accrual of a cause of action, which means a present right to sue thereon.” (Lubin v. Lubin (1956) 144 Cal.App.2d 781, 789.)

The statute of limitations is five years for “[a]n action for violation of a restriction, as defined in Section 784 of the Civil Code. The period prescribed in this subdivision runs from the time the person seeking to enforce the restriction discovered or, through the exercise of reasonable diligence, should have discovered the violation.” (Code Civ. Proc., § 336(b).) “ ‘Restriction,’ when used in a statute that incorporates this section by reference, means a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction.” (Civ. Code, § 784.)

Defendants argue that the action involves injury to the property, and is therefore an injury to the property itself and thus the running of the statute of limitations bars subsequent owners.

[I]t is apparent as an abstract proposition, and has been assumed in a number of cases, that for limitations purposes the harm implicit in a tortious injury to property is harm to the property itself, and thus to any owner of the property once the property has been injured and not necessarily to a particular owner. Thus once the sewer line has been improperly located on the property [citation], or the lot preparation and foundation construction have been improperly done [citation], or the encroaching buildings are constructed [citation], the tort is complete and the statute of limitations (unless forestalled by the “discovery rule” or some other special doctrine) begins to run: An owner must bring its claim to court within the statutory period or the claim will be barred for that and all subsequent owners. Normally a subsequent owner will not be personally harmed by the tort until he or she becomes the owner, but no case has held that each new owner thus becomes entitled to a new statute of limitations against the tortfeasor. Such a rule would wholly disregard the repose function of statutes of limitations. [Citations.]

(Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1534-1535.) “In other words, the statute of limitations does not commence to run anew every time the ownership of the property changes hands.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216.)

Defendants’ argument assumes that plaintiff’s claims based on defendants’ obstruction of plaintiff’s view constitute an injury to the property. Defendants provide no authority to support this assumption. (See Dem., pp. 4-8.) Therefore, their argument is not well taken.

Plaintiff argues that the statute of limitations did not commence until a demand for performance was made. (See Cutujian v. Benedict Hills Estates Assoc. (1996) 41 Cal.App.4th 1379, 1387.) In Cutujian, the CC&Rs required the maintenance of natural and manmade slopes and corresponding drainage ditches. (Id. at p. 1382.) Between 1976 and 1978, a surface slump occurred on the first slope of the lot later purchased by the plaintiff (Cutujian). (Ibid.) Cutujian purchased the lot in 1988 and made a demand to repair the damage to the slope. (Ibid.) Cutujian filed an action in August 1989, and the trial court found that the action was barred by the statute of limitations. (Id. at pp. 1382-1383.) On appeal, Cutujian argued that the slump was a continuing nuisance and thus the claim was not time-barred. (Id. at p. 1384.)

The issue in this case is not what statute of limitations applies to Cutujian’s action, but when the statute of limitations commenced to run. No California statute or judicial decision directly addresses either the question of when the statute commences for an action to enforce CC&R’s, or the more general question of when the statute commences for enforcement of a covenant running with the land which requires the performance of an affirmative act. As we have observed above, CC&R’s are enforceable as covenants running with the land. [Citations.] Courts in other jurisdictions have addressed the question of when the statute of limitations commences for enforcement of such covenants. These courts have generally concluded that the statute does not commence until there is a demand for performance. [Citations.] Some courts have required that the demand be made within a reasonable time. [Citations.] Some courts have enforced affirmative covenants without discussion of demand on the theory that there was a continuous breach so that a new cause of action arose from day to day as long as the covenant was not performed.

(Id. at p. 1385.) The appellate court found that the subject CC&Rs imposed an affirmative duty to maintain the slope areas. (Id. at p. 1387.) The court held that the “statute of limitations to enforce affirmative covenants running with the land, and, in particular, duties included in a declaration of CC&R’s, commences when the demand for performance is made.” (Ibid.) The court also held that the violation of the CC&Rs constituted a continuing nuisance. (Id. at p. 1389.)

There does not appear to be anything in the second amended complaint or a judicially noticed item as to when a demand was first made. Defendants argue that the statute of limitations does not commence from the demand because the subject covenant is a negative covenant. Defendant once again provides no authority to support this argument. (See Dem., p. 9.)

Therefore, defendants fail to show that the running of the statute of limitations appears clearly and affirmatively from the pleadings.

Nuisance claims

“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.” (Civ. Code, § 3479.) “A public nuisance is one which 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.) “Every nuisance not included in the definition of the last section is private.” (Civ. Code, § 3481.)

Where the nuisance alleged is not also a private nuisance as to a private individual he 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. [Citation.] 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. [Citation.] Where, on the other hand, 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 and he “does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree, …”

(Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124.) Here, plaintiff has alleged both a private and public nuisance.

Defendants argue that plaintiff has alleged a permanent and not a continuing nuisance. This argument appears to pertain to the types of remedies available, and is therefore not appropriate for a demurrer. Whether certain remedies are available would be better determined at trial after liability it determined.

Defendants also argue that view obstruction cannot constitute a nuisance. Defendants rely on Venuto, supra, 22 Cal.App.3d 116, which noted: “the courts have held that a building or structure cannot be complained of as a nuisance merely because it obstructs the view from neighboring property. [Citations.] Similarly, it has been held that a building or structure may not be complained of as a nuisance merely because it interferes with the passage of light and air to adjoining premises.” (Id. at p. 127.) The court in Venuto held that this rule also applies to obstructions or interference caused by the emissions of smoke or other waste matter. (Ibid.)

Plaintiff counters that the rule stated in Venuto only applies where there is no express grant or covenant. (See Katcher v. Home Sav. And Loan Assoc. (1966) 245 Cal.App.2d 425, 429 [“It has long been established in this state that a landowner has no easement over adjoining land for light and air in the absence of an express grant or covenant”].) Plaintiff is correct that a right to an unobstructed view “may be created by private parties through the granting of an easement [citations] or through the adoption of conditions, covenants, and restrictions.” (See Pacifica Homeowners’ Assoc. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152.) Here, the CC&Rs provide for a right to an unobstructed view and provide that violations of the CC&Rs constitute nuisances. (See SAC Exh. 1, §§ 5.03, 12.04.) Therefore, plaintiff may bring an action for nuisance based on the obstruction of his views. (See Cutujian, supra, 41 Cal.App.4th at p. 1389.)

Lack of injury

Defendants provide a somewhat confusing argument that plaintiff’s claims fail because plaintiff inspected the property before purchase and therefore he consented to the available view. Whether plaintiff waived his right to a view depends on extrinsic facts not alleged in the complaint, and is therefore not well taken.

Laches

Defendants’ laches argument appears to be based on the same assumption as the standing and statute of limitations argument, i.e., that the claim accrued at the time the obstruction occurred when the property was owned by previous owners. Defendants once again fail to provide authority to support this assumption. (See Dem., pp. 14-15.)

Misjoinder

Code of Civil Procedure section 389 subdivision (a) defines persons who should be joined in a lawsuit if possible, sometimes referred to as “necessary” parties…. It provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.” (Code Civ. Proc., § 389, subd. (a).) A determination that a person is a necessary party is the predicate for the determination whether he or she is an indispensable party … and requires analysis of the three distinct clauses of the above-referenced statute….

(TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1365-1366.)

“Whether a party qualifies as indispensable is ordinarily treated as a matter where the trial court has a large measure of discretion in weighing factors of practical realities and other considerations.” (Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 568.) “Joinder is required only when the absentee’s nonjoinder precludes the court from rendering complete justice among those already joined…” and any effects upon future litigation or the absent party are immaterial. (Countrywide Home Loans v. Sup. Ct. (1999) 69 Cal.App.4th 785, 794.)

Defendants argue that Mansoor Shah is an indispensable party because the subject property was purchased by plaintiff and Mansoor Shah as joint tenants. (See RJN, Exh. G.) However, there is nothing which suggests that disposition of this action will impair or impede Mansoor’s ability to protect his interest in the property or that there is a substantial risk of double recovery. Moreover, even if the Court were to find that Mansoor is an indispensable party, the more appropriate course of action would be to order that Mansoor be joined in this litigation. (See Code Civ. Proc., § 389(a).)

Defendants also argue that other property owners at the development engaging in similar violations will also be affected by the judgment in this action. This is not well taken. There is no showing that other property owners have also violated the CC&Rs. Plaintiff does not appear to be seeking relief against any other property owner.

Accordingly, defendants’ demurrer is OVERRULED.

Motion to strike

Defendants seek to strike plaintiff’s exhibits 3-8 on the ground that these exhibits are irrelevant and improper. The Court declines to strike these exhibits at this time. At most, defendants are raising disputes as to the interpretation and effect of these documents, which is likely outside the scope of a motion to strike. To the extent that defendants have evidence suggesting that plaintiff’s reliance on these documents is misplaced, such evidence should be presented to the trier of fact.

Defendants seek to strike plaintiff’s causes of action. This is not well taken. “A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under CCP § 436: ‘(M)atter that is essential to a cause of action should not be struck and it is error to do so.’ [Citation.]” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2015) ¶ 7:188.5.)

Defendants also challenge plaintiff’s claim for punitive damages. A claim for punitive damages requires allegations of malice, fraud, or oppression. (Civ. Code, § 3294(a).) Under Civil Code 3294(c),

[¶] (1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal. App. 3d 503, 510.) The inquiry is generally fact specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’” (American Airlines v. Sheppard (2002) 96 Cal. App. 4th 1017, 1051.)

Plaintiff alleges that defendant is aware of and familiar with the obligations imposed by the CC&Rs, including the tree policy. (SAC ¶¶ 21-23.) Plaintiff alleges that, despite this, defendant has maintained trees in violation of the CC&Rs. (Id., ¶ 24.) Plaintiff alleges that he has requested that defendants comply with the obligations under the CC&Rs, but defendants refuse to do so. (Id., ¶ 25.) A reasonable trier of fact could find that defendants’ conduct constitutes despicable conduct carried on with willful and conscious disregard for plaintiff’s rights.

Accordingly, defendants’ motion to strike is DENIED.