Filed 2/27/20 Parks v. Feiner CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JOHN D. PARKS,

Plaintiff and Appellant,

v.

MICHAEL FEINER,

Defendant and Respondent.

A158351

(Alameda County Super.

Ct. No. RG16824876)

John D. Parks appeals after the trial court sustained without leave to amend the demurrer of respondent Michael Feiner to appellant’s fourth amended complaint, which alleged numerous causes of action against respondent and other defendants for harm allegedly caused to appellant and his property by the defendants’ failure to maintain three invasive trees on a lot adjacent to his property. On appeal, appellant contends the court erred when it found that his causes of action against respondent were barred by the applicable statutes of limitations, given his allegations of a continuing nuisance and a continuing trespass, as well as facts demonstrating respondent’s participation in a civil conspiracy. He also contends that, should additional factual allegations be required, the court should have permitted him to amend the complaint. We shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant’s fourth amended complaint, which added respondent as a defendant, alleged the following relevant facts. In 1992, respondent developed a vacant lot, containing only a small shed and two willow trees. The lot was located next door to appellant’s home in Emeryville. Respondent and his partner applied for and received a zoning variance to develop the oddly configured lot to include multiple units. The zoning variance included certain conditions, including a provision that “prior to issuance of building permits, the applicant shall submit a landscaping and irrigation plan for review and approval” and that “all landscaping that dies shall be replaced by the same exact species, or substitutes approved by the Planning Director.” A report supporting the resolution granting the zoning variance stated, “ ‘This open space area has been designed to maintain two existing mature trees which are now growing at the site.’ ” The willow trees were also shown on the site’s landscaping plan. The conditions for approval further required the applicant to ensure that any successor in interest to the property “is informed of the terms and conditions of the zoning approval.”

As part of the approval process for the development, respondent and his partner spoke about the proposed project with neighboring landowners, including appellant, whose signature they obtained on a petition stating, “ ‘I have reviewed the plan for Temescal Lofts [the name of the project] and approve of its construction.’ ” In August 1992, the petition was presented to the Emeryville city planner.

In 1993, construction of Temescal Lofts began and the two willow trees and the shed were removed. A structure was built consisting of four live/work lofts and a 1364 square foot common area courtyard, where the three trees at issue in this action are located. Respondent was the project manager for the development. The trees, which were planted in the courtyard about 10 feet from appellant’s property line, are Tipuana tipu, an invasive species from South America that grows quickly and can reach a height of 100 feet, with a massive canopy and root system. The trees in the courtyard grew from a height of 8 feet to a height of 57 feet over 20 years.

The Tipuana tipu trees were not listed on the landscaping plan developed for Temescal Lofts and approved by the Emeryville planning director. Respondent advised defendant Stuart Pettigrew, the first person to purchase a unit in Temescal Lofts, “about the requirement of adherence to the landscaping plan filed with the City of Emeryville, but also advised Pettigrew that there was no need to adhere to that landscaping plan.” After looking at the landscaping plan, Pettigrew “selected and planted the Tipuana tipu trees in the Temescal Lofts courtyard, with the knowledge and consent of [respondent]. . . . [Respondent] and Pettigrew did not believe that this willful disregard of the Temescal Lofts conditional use permit would ever be discovered.”

Appellant’s “[p]roblems with the inhabitants of Temescal Lofts began sometime in 1998” when “[v]egetation from Temescal Lofts was growing over the property line and onto [his] property, dropping leaves and debris onto [his] boat,” which damaged the boat. Appellant complained to defendant Pettigrew, who did not offer to cut back the vegetation to the property line. Between 1998 and 2002, the overhanging vegetation from the three trees continued to be a nuisance to appellant, dropping leaves, sticks, and other debris onto his property.

In 2004, appellant began to have leaks in his home, which he had a roofer inspect and repair. Then, in 2008, the leaks returned and the roofer told him that the problem was due to leaves, seed pods, and sticks from the overhanging tree clogging his drain pipes. In 2009, the offending tree and vegetation were cut back to the property line but, over the next few years, although defendants—particularly Pettigrew—said they would trim the trees back to the property line, “they never intended to do so.”

By 2015, the trees had grown 10 feet past appellant’s property line and, although defendant’s gardener trimmed the trees back that summer, they were not trimmed all the way to the property line. At a meeting on October 23, 2015, four owners of Temescal Lofts—defendants Pettigrew, Gael Janofsky, Farooq Khan, and Dominique Lambert-Blum—met to discuss the issue of cutting the trees back to the property line. These four defendants decided that, although it would cost them only $1,200 to do so, they would not cut the trees back and “urged” appellant to cut them back at his own expense, if he wanted them cut.

Because of the defendants’ conduct with respect to the trees, appellant suffered a loss in value to his property and has been unable to fully enjoy his home or his boat. Other neighbors and the public at large were also affected by defendants’ failure to trim the trees, due to the hazard caused by their debris and trunk defects that could cause limbs to fall, as well as the roots causing sidewalks to lift.

On July 25, 2016, appellant filed his original complaint against defendants Pettigrew and Janofsky, alleging a cause of action for nuisance, based on problems arising from allegedly improper maintenance of the trees, beginning in 1998. After the court sustained the defendant’s demurrer in part with leave to amend, appellant filed a first amended complaint. The court subsequently granted appellant’s motion to file a second amended complaint and then a third amended complaint against Pettigrew and Janofsky as well as additional defendants, including Khan, Lambert-Blum, and Carlon Tanner, all doing business as Temescal Lofts Home Owners Association.

On March 8, 2019, after the court again granted his motion to amend, appellant filed a fourth amended complaint (the complaint), adding respondent as a defendant. The complaint included the following causes of action against respondent: nuisance, public nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass, and intentional misrepresentation.

On May 28, 2019, respondent filed a demurrer to the complaint. On August 29, 2019, following a hearing, the trial court entered an order sustaining the unopposed demurrer without leave to amend and dismissing respondent as a defendant in the action, after finding that appellant’s claims against respondent were time barred and that no amendment could cure the statute of limitations issue.

On September 4, 2019, a notice of entry of order was filed.

On September 12, 2019, appellant filed a notice of appeal.

DISCUSSION

When it sustained respondent’s demurrer without leave to amend, the trial court stated: “[Respondent] argues that the claims against him are all time-barred as the alleged conduct took place in 1992 and 1993, approximately 26 years ago. Indeed, the conduct of obtaining [appellant’s] signature, purportedly consenting to the planting of the Tipuana trees, and telling Pettigrew that they did not need to adhere to the landscaping plan all took place during that time period. The applicable statute[s] of limitations for the causes of action at issue are two to three years. [Citations.] [Appellant] did not oppose this Demurrer so there is no basis for tolling or otherwise overcoming the statute of limitations against the stated causes of action. As there is no amendment that can cure the statute of limitations issue, [respondent’s] Demurrer to the Fourth Amended Complaint as to the claims against him [is] sustained without leave to amend.”

Appellant contends the court erred when it found that the causes of action against respondent in the complaint were barred by the applicable statutes of limitations, given the allegations of a continuing nuisance and a continuing trespass, as well as facts demonstrating respondent’s participation in a civil conspiracy.

In determining whether appellant “properly stated a claim for relief, our standard of review is clear: ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).)

The allegations in the complaint regarding respondent’s wrongdoing, upon which the causes of action against him for nuisance, public nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass, and intentional misrepresentation are based, include the following.

First, appellant alleged that, as part of the approval process, respondent showed neighboring landowners, including appellant, the Temescal Lofts project plan and obtained appellant’s signature on a petition regarding the plan, which the Emeryville City Council approved in August 1992. Respondent, however, knew his (unspecified) representations to appellant about the plan were false and appellant was harmed when the defendants “did not adhere to the Temescal Lofts plan” and “planted non-conforming plants in the Temescal Lofts courtyard.”

Second, appellant alleged that respondent advised defendant Pettigrew, the first person to purchase a unit at Temescal Lofts, “about the requirement of adherence to the landscaping plan filed with the City of Emeryville, but also advised Pettigrew that there was no need to adhere to that landscaping plan.”

Third, appellant alleged that Pettigrew asked respondent “for the landscaping plan to see what was on it,” and that “Pettigrew then selected and planted the Tipuana tipu trees in the Temescal Lofts courtyard, with the knowledge and consent of [respondent]. . . . [Respondent] and Pettigrew did not believe that this willful disregard of the Temescal Lofts conditional use permit would ever be discovered.”

As the trial court noted, all of the alleged wrongdoing on the part of respondent took place at least 20 years before appellant filed his original complaint in this matter, in July 2016. The statute of limitations for nuisance and trespass is three years (Code Civ. Proc., § 338, subd. (b) [an action for trespass upon or injury to real property must be brought within three years].) The statute of limitations for intentional misrepresentation is also three years. (§ 338, subd. (d) [an action for relief on the ground of fraud or mistake must be brought within three years].) The statute of limitations for intentional and negligent infliction of emotional distress claims is two years. (§ 335.1 [an action for, inter alia, injury to an individual caused by wrongful act or neglect of another must be brought within two years].) Thus, the statutes of limitations for all of the causes of action appellant alleged against respondent had long passed before appellant filed his original complaint.

Appellant nonetheless argues that the complaint contains facts demonstrating a continuing nuisance, a continuing trespass, and a civil conspiracy, which are ongoing and therefore not subject to the two- or three-year statutes of limitations. In support of this theory, appellant notes that in October 2016, the trial court overruled Pettigrew’s demurrer to the original complaint against him and Janofsky on the ground that “[t]he face of the pleadings do not show that [appellant’s] claim is time-barred by the three-year limitation period for nuisance. ([§ 338, subd. (b)].) The facts alleged show a continuing nuisance because the nuisance can be discontinued at any time. [Citation.] If a nuisance is continuing, every repetition of the continuing nuisance is a separate wrong, subject to a new and separate limitation period, for which the person injured may bring successive actions for damages until the nuisance is abated. [Citation.]” The court also observed that appellant had alleged that defendants “made annual promises to trim the tree during the period from 2009 to 2015,” which resulted in defendants being estopped from invoking “the statute of limitations because [appellant] delayed filing a lawsuit in reliance on their promise to remediate the nuisance. [Citation.]”

The court’s October 2016 order, however, involved only the two original defendants and events that took place long after respondent’s alleged wrongdoing occurred. Hence, that order is inapplicable to respondent.

Appellant attempts to avoid this problem by arguing in his opening brief that he specifically pleaded facts showing that respondent “permitted Stuart Pettigrew to plant the Tipuana tipu trees, thereby creating a condition that obstructed [appellant’s] use and enjoyment of his property.” However, the allegations of nuisance and trespass in the original complaint, as in the present complaint, are based on the ongoing encroachment of the Tipuana tipu trees onto appellant’s property, starting in 1998 and worsening over the years, due to the failure of the Temescal Lofts owners to keep these large trees cut back to their property line, despite repeated promises to do so. (See, e.g., Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674 [defining a trespass as “ ‘ “an invasion of the interest in the exclusive possession of land, as by entry upon it” ’ ” and a nuisance as “ ‘ “an interference with the interest in the private use and enjoyment of the land” ’ ”].) As respondent points out, whatever his “role in the planting of the [t]rees, he cannot be said to have proximately caused a failure to engage in future tree trimming that would, necessarily, have begun to be a nuisance [or trespass] only after the [t]rees had matured and allegedly grown over the property line.” The complaint simply does not allege facts showing a continuing trespass or a continuing nuisance on the part of respondent. (See ibid.)

Appellant also argues that respondent and Pettigrew participated in a civil conspiracy when respondent advised Pettigrew about the conditional use permit, but nonetheless allowed him to plant the three invasive trees not listed on the Temescal Lofts landscaping plan. Appellant asserts that he has pleaded or, if granted leave to amend, can plead facts showing that respondent and Pettigrew “engaged in a civil conspiracy to violate the Temescal Lofts conditional use permit” in that they “agreed to create the conditions leading to the nuisance and trespass” of which appellant complains. (See, e.g., Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511 [“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration”].)

Appellant further asserts that “[s]ubsequent owners at Temescal Lofts became co-conspirators in [respondent] and Pettigrew’s scheme” when they “joined the common design instituted by” respondent and Pettigrew, and that the statute of limitations did not begin to run until the “last overt act in furtherance of the conspiracy occurred on October 23, 2015, when the current owners met as the [Homeowners Association] and voted against abating the nuisance and trespass caused by their Tipuana tipu trees.” (See, e.g., Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 786 [“when a civil conspiracy is properly alleged and proved, the statute of limitations does not begin to run on any part of a plaintiff’s claims until the ‘last overt act’ pursuant to the conspiracy has been completed”].)

Appellant’s theory of civil conspiracy against respondent is thus based on the purported agreement between respondent and Pettigrew to create the condition—the planting of the trees—that subsequently caused the ongoing nuisance and trespass on appellant’s property. He cites Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137 for the proposition that “ ‘[n]ot only is the party who maintains the nuisance liable, but also the party or parties who create or assist in its creation are responsible for the ensuing damages.’ ” In this case, however, respondent did not create or assist in the creation of the alleged nuisance or trespass. As already discussed, the nuisance and trespass allegations are based on the Temescal Lofts owners’ failing to maintain the mature Tipuana tipu trees and allowing them to encroach continuously on appellant’s property.

Respondent, who allegedly approved the planting of the trees years before they grew to such a degree that their maintenance became an issue, cannot be said to have created the nuisance or trespass, given that it was the subsequent alleged wrongdoing of the owners, premised on their response years later, as the trees began to encroach on appellant’s property, that supposedly caused the continuing nuisance and continuing trespass. (Compare Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at pp. 1131–1132, 1137 [appellate court found viable a nuisance claim based on allegations that defendants had disposed of hazardous substances on property during their lease, even though at time of action they did not have a possessory interest in property].) As respondent observes, the only conspiracy that could even possibly have existed between respondent and Pettigrew “would have been to plant the [t]rees in a manner inconsistent with the ‘landscaping plan,’ not to execute a master plan to plant the [t]rees and, then, wait for years until the [t]rees were mature and, then, not trim them adequately.” The allegations simply do not support a claim against respondent for an ongoing conspiracy to commit a continuing nuisance and a continuing trespass. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at pp. 510–511; Capogeannis v. Superior Court, supra, 12 Cal.App.4th at p. 674.)

We conclude the court correctly found that the complaint failed to state facts sufficient to constitute any cause of action against respondent because all of appellant’s allegations against respondent—i.e., his misrepresentations to appellant, his violation of the Temescal Lofts conditional use permit, and his approval of Pettigrew’s planting of the Tipuana tipu trees—took place at least 20 years before appellant filed his original complaint and are therefore time barred. (Zelig, supra, 27 Cal.4th at p. 1126; §§ 335.1, 338, subds. (b) & (d).) We also conclude appellant has not shown there is a reasonable possibility that the statute of limitations problem can be cured by amendment, considering our finding that the factual allegations showing a continuing nuisance, a continuing trespass, and civil conspiracy are not applicable to the wrongdoing allegedly committed by respondent. Hence, the trial court did not abuse its discretion when it found that there was “no amendment that could cure the statute of limitations issue.” (See ibid.)

For the reasons discussed, the trial court properly sustained defendant’s demurrer to the complaint without leave to amend. (Zelig, supra, 27 Cal.4th at p. 1126.)

DISPOSITION

The order sustaining the demurrer to the fourth amended complaint is affirmed. Costs on appeal are awarded to respondent Michael Feiner.

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Stewart, J.

Parks v. Feiner (A158351)