Case Number: BC500790 Hearing Date: July 03, 2014 Dept: 46

Posted 7-02-2014 8:40 a.m./ Updated 10:45 a.m.

Case Number: BC500790
LTL COMMERCIAL LLC VS LITTLE TOKYO LOFTS COMMUNITY ASSOCIATI
Filing Date: 02/08/2013
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)

07/03/2014
Demurrer to Second Amended Complaint

TENTATIVE RULING: The demurrer to the Trespass (4th) cause of action is overruled; the demurrer to the Nuisance (5th) cause of action is overruled. Moving party has 10 days to answer.

Trespass (4th cause of action)

Plaintiff alleges it is the owner of the property, having taken over Steve Lee’s interest in the property about March 2007. SAC, Paragraph 10. It is unclear from the SAC who possesses or occupies the portion(s) of the premises that is/are affected by the water leakage. Ordinarily the right to sue in trespass is held by the person or entities in or with right to possession of the premises. Shusett, Inc. vs. Home Savings & Loan Assn. (1964) 231 Cal.App.2d 146, 150. The pleading is not entirely clear, but it appears that Plaintiff is not in possession of the commercial space subject to the damage from water leakage. However, an out-of-possession owner may still recover for an injury to the premises which is shown to damage its ownership interest. As held in Smith v. Cap Concrete (1982) 133 Cal.App.3d 769, 774-775:

“In our view, the inquiry in a case involving unlawful intrusion on property rights should focus upon the nature of the injury and the damages sought: If the right to possession has been abridged and possessory rights damaged, the possessor may complain by way of an action for trespass; if, on the other hand, an intruder harms real property in a manner which damages the ownership interest, the property owner may seek recovery whether the cause of action be technically labeled trespass or some other form of action, such as waste.” (italics added)

In the court’s view the allegations of paragraph 24 (incorporated into the 4th cause of action) are sufficient to allege damage to the ownership interest as the allegations indicate that ceilings and other fixtures have been damaged and the overall damage to the premises has resulted in a “diminishment of the value of the commercial space.”

Furthermore, the allegation that the ongoing conduct of defendant in permitting or causing the ongoing water leakage, and failing or refusing to repair the cause of the ongoing leakage, that caused the claimed damages is sufficient to constitute the basis for a trespass claim. See Martin Marietta v. Ins. Co. No. America (1995) 40 Cal.App.4th 1113, 1132.

As such the demurrer to the 4th cause of action is OVERRULED.

Nuisance (5th cause of action)

CC §3479 states that:

“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.”

“An action for private nuisance is designed to redress a substantial and unreasonable invasion of one’s interest in the free use and enjoyment of one’s property. [Citation omitted]. ‘”The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable…” Hellman v. La Cumbre Golf & Country Club (1992) 6 C.A.4th 1224, 1230-1231.

This tort is much broader than the trespass cause of action; however, the plaintiff has adequately pled facts regarding the water leakage problem that the court concludes constitutes an adequate pleading of “a substantial and unreasonable invasion” of Plaintiff’s property interest. As such the demurrer to the 5th cause of action is overruled.

Therefore the demurrer is overruled. Moving party is ordered to file and serve an answer to the complaint within 10 days.

IT IS SO ORDERED:

_______________________________
Frederick C. Shaller, Judge