Case Number: KC066761    Hearing Date: August 28, 2014    Dept: O

Davis, et al. v. Pearl of the East RTC, LP, et al. (KC066761)
1-2. Defendant Rowland Ranch Properties, LLC (and Defendant Pearl of the East RTC, LP by joinder)’s DEMURRER TO PLAINTIFF’S COMPLAINT and MOTION TO STRIKE

3-4. Defendants Olisan, Inc. and Rowland Heights Mobile Estates, LP (and Defendant Pearl of the East RTC, LP by joinder)’s DEMURRER TO COMPLAINT and MOTION TO STRIKE

Respondent: Plaintiffs Davis and Lin filed a LATE, joint Opposition to all motions

TENTATIVE RULING

1-2. Rowland Ranch’s Demurrer and Motion to Strike

Defendant Rowland Ranch Properties, LLC (and Defendant Pearl of the East RTC, LP by joinder)’s demurrer to plaintiff’s complaint is SUSTAINED. Motion to strike is GRANTED. The court will hear from Plaintiffs regarding any grounds for leave to amend.

[The court critically notes that Plaintiffs have filed a LATE opposition.]

1st CAUSE OF ACTION: NUISANCE:
The elements are: 1) interference with plaintiff’s use and enjoyment of plaintiff’s property; 2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and 3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; CC 3479; CACI 2021.) “[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the FEAR OF A FUTURE INJURY.” (Lyles v. State of California (2007) 153 Cal. App. 4th 281, 292.)

The Complaint is uncertain because Par. 46 alleges that certain portions of the boundary wall is damaged, but does not specify whether the damaged portion abuts Plaintiff’s property. Further, Pars. 49 and 52 allege that Plaintiffs fear future noise, smog, and pest pollution, but does not allege that such pollution currently exists. Although Par. 55 alleges that “adjacent residents” have been afflicted by the lights, the Complaint does not specify whether Plaintiff was afflicted by such nuisance. As to the lights, Plaintiff has not alleged that Defendant Rowland Ranch caused the lights to be turned on, or that it unreasonably and substantially interfered with Plaintiff’s use and enjoyment of his property. Demurrer is SUSTAINED.

2nd CAUSE OF ACTION: FRAUD:
The elements are: 1) misrepresentation (false representation, concealment, or nondisclosure); 2) knowledge of falsity (scienter); 3) intent to defraud or induce reliance; 4) justifiable reliance; and 5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

The court finds the Fraud claim fails for lack of specificity. Demurrer is SUSTAINED.

4th CAUSE OF ACTION: NIED:
There is no independent tort of negligent infliction of emotional distress. The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship…. Unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. (Potter v. Firestone tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

Plaintiffs do not base their emotional distress claims on any underlying Negligence claim. Further, Plaintiff’s NIED claim is based on damage to property or financial interests, which is improper under Potter v. Firestone tire & Rubber Co. (1993) 6 Cal.4th 965, 985. Demurrer is SUSTAINED without leave to amend.

5th – 6th CAUSES OF ACTION: INJUNCTIVE RELIEF:
Pars. 97-98 allege that the construction violates Zoning Codes and Conditional Use Permits because the building is only 22 feet away from adjacent mobile homes, and violates fence requirements. However, like the other causes of action, the complaint does not specify whether Plaintiffs’ specific property is affected by the construction. Demurrer is SUSTAINED.

Motion to strike punitive damages is GRANTED. Plaintiffs have not alleged any conduct supporting malice, oppression or fraud.

3-4. Olisan and Rowland Heights Mobile Estates’ Demurrer and Motion to Strike

Defendants Olisan, Inc. and Rowland Heights Mobile Estates, LP’s demurrer to complaint is SUSTAINED. Motion to strike is GRANTED. The court will hear from Plaintiffs regarding any grounds for leave to amend. [Defendant Pearl of the East’s joinder to demurrer is OVERRULED. Pearl of the East is the developer, and does not share the same standing as demurring Defendants, who are the mobile-home park and property management firm.]

[The court critically notes that Plaintiffs have filed a LATE opposition. Also, Plaintiffs served Defendants with two different complaints, bearing the same case number. The allegations in the complaints are identical, but the formatting and paragraph numbers are different. The court has compared the two complaints to the Complaint on file, and Exhibit A to Defendants’ “Amended Notice” contains the version of the Complaint that is on file with the Court.]

1st CAUSE OF ACTION: NUISANCE:
The elements are: 1) interference with plaintiff’s use and enjoyment of plaintiff’s property; 2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and 3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; CC 3479; CACI 2021.) “[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the FEAR OF A FUTURE INJURY.” (Lyles v. State of California (2007) 153 Cal. App. 4th 281, 292.)

The Nuisance claim against Defendants Rowland Heights Mobile Estates, LP (“RHME”) and Olisan, Inc. is defective because demurring Defendants have no ownership interest in the adjacent commercial property. RHME owns the mobilehome community upon which Plaintiffs reside. Olisan is the property management firm employed by RHME. The Complaint fails to allege how these Defendants committed any nuisance. Demurrer is SUSTAINED.

2nd CAUSE OF ACTION: FRAUD:
The elements are: 1) misrepresentation (false representation, concealment, or nondisclosure); 2) knowledge of falsity (scienter); 3) intent to defraud or induce reliance; 4) justifiable reliance; and 5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

The court finds the Fraud claim fails for lack of specificity. Demurrer is SUSTAINED.

4th CAUSE OF ACTION: NIED:
There is no independent tort of negligent infliction of emotional distress. The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship…. Unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. (Potter v. Firestone tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

Plaintiffs do not base their emotional distress claims on any underlying Negligence claim. Further, Plaintiffs’ NIED claim is based on damage to property or financial interests, which is improper under Potter v. Firestone tire & Rubber Co. (1993) 6 Cal.4th 965, 985. Demurrer is SUSTAINED without leave to amend.

6th CAUSES OF ACTION: INJUNCTIVE RELIEF:
Pars. 97-98 allege that the construction violates Zoning Codes and Conditional Use Permits because the building is only 22 feet away from adjacent mobile homes, and violates fence requirements. However, like the other causes of action, the complaint does not specify whether Plaintiffs’ specific property is affected by the construction. Further, as to Rowland Heights and Olisan specifically, the complaint is uncertain because it does not seek to enjoin any acts by these demurring Defendants. Demurrer is SUSTAINED.

Motion to strike punitive damages is GRANTED. Plaintiffs have not alleged any conduct supporting malice, oppression or fraud