2018-00233439-CU-UD

Barber Auto Mall Prop. vs. Kiene’s American Fly Fishing Co.

Nature of Proceeding: Hearing on Demurrer to Cross-Complaint

Filed By: Solomon-Williams, Maria

Cross-defendant Barber Auto Mall Properties, LP’s (“Barber”) Demurrer to the Cross-complaint of Kiene’s American Fly Fishing Co., LLC and Gary Eblen is overruled/ sustained with leave to amend as follows:

Barber’s Request for Judicial Notice is granted.

The First Amended Complaint alleges defendants breached the commercial lease and guaranty. The Cross-complaint alleges that plaintiffs/cross-defendants failed to disclose that the prior tenant of the space leased by cross-complainant Kiene was a dry-cleaner that operated their business using PERC, a known environmental toxin. Cross-complainants had leased the space to operate a fly fishing business. Cross-complainants contend they relied on the concealment/misrepresentations that the space was of merchantable and safe condition before they spent money investing in tenant improvements and developing good will at the location. Cross-complainant Eblen, who worked as the manager of Kiene at the leased space formerly occupied by the dry-cleaners, alleges he sustained personal injuries as a result of the environmental hazards not disclosed by cross-defendants.

A demurrer tests the legal sufficiency of the pleadings, raising issues of law, not fact, regarding the form or content of the opposing party’s pleading. (Code of Civil Procedure sections 422.10 and 589.) A demurrer is used to challenge defects that appear on the face of the pleading under attack. (Blank v. Kirwan (1985) 39 Cal.3d 311,318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer can be utilized where a complaint itself is incomplete or

discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (Myers) (2001) 94 Cal.App.4th 963, 971-972.) In reviewing the sufficiency of a complaint against a general demurrer, courts treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. Matters which may be judicially noticed are also considered. The complaint is to be given a reasonable interpretation, reading it as a whole and its parts in their context. (Farmers v. Zerin (1997) 53 CaI.App.4th 445, 451)

1st cause of action Negligence

The demurrer is sustained with leave to amend for uncertainty. Cross-complainants have alleged duplicative negligence causes of action (see 6th and 8th causes of action) arising out of the same facts concerning failure to disclose the nature of the business of the prior tenant. Only one primary right is at stake. However the fact that cross-complainants appear to believe that multiple primary rights are at stake, resulting in splitting their negligence claim into three causes of action, renders the pleading vague and uncertain. Cross-complainants are given leave to amend to set forth the negligence causes of action and damages arising therefrom under one negligence

cause of action.

4th cause of action Nuisance

The demurrer is overruled.

Barber contends that no cause of action is stated because the cross-complainants have no current possessory interest in the subject property and therefore “lack standing” to bring this cause of action. The Cross-complaint alleges that cross-complainants have left the leasehold premises. (Cross-complaint page 2, lines 16-17)

Civil Code section 3479 provides: “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.”

The essence of a private nuisance is an interference with the use and enjoyment of the land. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App. 3d at 124.) For a private nuisance, the pleading must allege plaintiff’s property right and facts showing violations of Civil Code section 3479. (d. at 125-26.) Barber contends that since cross -complainants have left the premises, they have no standing to sue for damages occurring to them while they had possession of the premises.

Nothing cited in the points and authorities holds that no claim for nuisance damages may be brought if the person damaged no longer has possession of the premises. Cross-complainants contend that the fact they are no longer in possession for the premises does not extinguish the claim for nuisance damages arising therefrom while they had possession of the premises. The Court agrees, and finds that plaintiffs have standing to seek damages for the nuisance that occurred while they were in possession of the premises.

CCP 731 provides in pertinent part, that “An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor. Thus, although an abatement or injunctive relief action would require current possession, an action for damages does not.

6th cause of action Negligence

The demurrer is sustained with leave to amend for uncertainty. In the opposition, cross-complainants state this cause of action alleges intentional concealment of the toxic condition. Intentional or negligence misrepresentation are different causes of action from negligence. Cross-complainants are given leave to allege claim for fraud or negligent misrepresentation.

8th cause of action Personal Injuries (Eblen)

The demurrer is sustained with leave to amend for uncertainty. Cross-complainants have alleged duplicative negligence causes of action arising out of the same facts concerning failure to disclose the nature of the business of the prior tenant. Only one

primary right is at stake. However the fact that cross-complainants appear to believe that multiple primary rights are present renders the pleading vague and uncertain. Cross-complainants are is given leave to amend to set forth his negligence causes of action.

Cross-complainants may file and serve an Amended Cross-complaint on or before January 17, 2019. Response to be filed and served within 30 days of the service of the Amended Cross-Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.