Case Number: 13A01281 Hearing Date: May 15, 2014 Dept: 77

Defendant Michael Remenih and Sindee Seiber Remenih’s Demurrer Plaintiff Trevor Young’s Second Amended Complaint is SUSTAINED IN PART. CCP § 430.10(e).

As to the first cause of action for trespass, the demurrer is overruled. CCP § 430.10(e). Trespass involves unauthorized entry onto the land of another. (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16-17.) The elements are: (1) the plaintiff’s lawful possession or right of possession of the property; (2) the defendant’s wrongful act of trespass on the property; and (3) damage to the plaintiff proximately caused by the defendant. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 631, p. 65.) “[T]here is no liability for a trespass unless the trespass is intentional, the result of recklessness or negligence, or the result of engaging in an extrahazardous activity.” (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 648 (Gallin); Armitage v. Decker (1990) 218 Cal.App.3d 887, 906.) This Complaint contains irrelevant material and unusual phrasing, but it nevertheless alleges these elements. Defendants, in fact, do not claim that any element was not alleged and instead argue that the SAC “fails to properly identify” defendants. Defendants, however, are sufficiently identified. Sufficient facts are stated to support the claim.

As to the second cause of action for annoyance and discomfort under CC § 3333, the demurrer is sustained without leave to amend. CCP § 430.10(e). Insufficient facts are stated to support this claim and CC § 3333 is, in fact, not an independent cause of action. As such, the demurrer to this cause of action is sustained without leave to amend. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. The burden is on the complainant to show the Court that a pleading can be amended successfully. In this case, Plaintiff has not made a compelling argument that leave to amend should be granted. Accordingly, leave to amend is denied.

Michael Remenih and Sindee Seiber Remenih to answer within 20 days.

Defendant Michael Remenih and Sindee Seiber Remenih’s Demurrer to Plaintiff Nancy Young’s Second Amended Complaint and Motion to Strike related to that Complaint are OFF CALENDAR. Plaintiff Nancy Young has not filed a Second Amended Complaint.

Plaintiff Nancy Young’s Motion for Reconsideration is DENIED. Plaintiff Nancy Young seeks reconsideration of the Court’s October 24, 2013, ruling granting without leave to amend Defendants’ motion to strike the punitive damages and attorney’s fee allegations from the Complaint.

First, as to punitive damages, Plaintiff Trevor Young had filed an opposition to the motion to strike, and it was signed by Plaintiff Nancy Young as his counsel. Page 2 of that opposition stated: “Plaintiff hereby withdraw’s [sic] his request for punitive damages.” No separate opposition was filed on behalf of Plaintiff Nancy Young, who personally appeared at the hearing (representing Trevor Young) and also did not argue for punitive damages. Counsel for Plaintiff Nancy Young did not appear. Therefore, to be strictly accurate, instead of stating that plaintiffs have conceded that they are not entitled to punitive damages, the Court’s order should have stated: “Plaintiff Trevor Young has withdrawn his request for punitive damages, and Plaintiff Nancy Young has filed no opposition to Defendants’ motion to strike and has offered no argument that punitive damages should be permitted.” Either way, the Court was not incorrect in striking punitive damages without leave to amend, so it will not further revisit that ruling. Had Plaintiff Nancy Young wished to make an argument that punitive damages are warranted, she should have done so in an opposition to the motion to strike, and a CCP § 1008 motion for reconsideration is not a proper vehicle for make an argument that a party simply failed to make. It is of no moment that Plaintiff Nancy Young had filed a motion for leave to amend her First Amended Complaint; she must oppose the Plaintiff’s motion to strike.

Second, as to attorney’s fees, the Court considered Plaintiff Trevor Young’s opposition on the merits and determined that, in this tort action, there was no contract, statute, or law that authorized attorney’s fees. In the instant motion for reconsideration, Plaintiff Nancy Young provides no authority for attorney’s fees. Thus, there is no indication that the Court’s decision to strike attorney’s fees without leave to amend was incorrect, so the Court will not further revisit that ruling.

Moving parties to give notice.