MICHELLE MADRIGAL VS PAUL ANDRIKIAN, ET AL.

Tentative Rulings

Case Number: 19STLC08675    Hearing Date: January 13, 2020    Dept: 94

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

DEFENDANTS PAUL ANDRIKIAN, KARINEH ANDRIKIAN, AND GREEN APPLE TREE INVESTMENTS LLC’S DEMURRER TO THE FIRST CAUSE OF ACTION FOR NEGLIGENCE IN THE COMPLAINT IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE RECLASSIFIED AS AN UNLIMITED CIVIL ACTION IS SET FOR MARCH 23, 2020 AT 10:30 AM IN DEPARTMENT 94.

ANALYSIS:

On September 20, 2019, Plaintiff Michelle Madrigal (“Plaintiff”) filed the instant action for nuisance, negligence and trespass against Defendants Paul Andrikian, Karineh Andrikian, and Green Apple Tree Investments LLC (“Defendants”). On November 22, 2019, Defendants filed the instant Demurrer to the Complaint. To date, no opposition has been filed.

Discussion

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Saldana Decl., ¶¶3-4 and Exh. B.) In demurring to the Complaint, Defendant contends that the first cause of action for nuisance fails to allege facts to support a cause of action because it is merely duplicative of the second cause of action for negligence. (Citing Code Civ. Proc., § 430.10, subds. (e) and (g).)

A demurrer may be sustained as to a cause of action that is duplicative of another. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) A duplicative cause of action is one that adds nothing to the Complaint by way of fact or theory or recovery. (Ibid.) Here, the Complaint alleges that Defendants are the owners of real property located at 1015 S. Bruce Lane, Burbank, California (“the subject property”) upon which there is a palm tree whose roots are encroaching on and causing significant damage to Plaintiff’s property, including her garage. (Compl., ¶10.) Plaintiff further alleges that Defendants have improperly buried a pool that has caused water and soil intrusion on Plaintiff’s property. (Id. at ¶11.) As a result of these intrusions from the roots and water from Defendants’ property, Plaintiff has suffered significant damage and expense relating to the repair of her property. (Id. at ¶¶10-19.)

The first cause of action for nuisance reiterates these allegations and seeks an order requiring Defendants to (1) remove the trees, stumps and roots that are damaging Plaintiff’s property; (2) incur the costs of removal; and (3) pay for necessary repairs to Plaintiff’s property, for storage of Plaintiff’s personal property in the garage, and for Plaintiff’s discomfort and annoyance. (Id. at ¶¶20-24.) The same conduct by Defendants is raised in the second cause of action for negligence. (Id. at ¶¶26-28.) The distinction in the causes of action lies in the remedies sought because the first cause of action seeks injunctive relief, while the second only seeks damages. (Id. at ¶¶23, 28.)

A claim for nuisance almost always is premised on a lack of due care, or negligence, especially with respect to buildings or premises. (El Escorial Owners' Assn. v. DLC Plastering (2007) 154 Cal.App.4th 1337, 1349.) Where nuisance is premised on negligence, there can only be a cause of action asserted for negligence. (Ibid.) Nor does it make a difference that the nuisance cause of action seeks injunctive relief, as that may be asserted in connection with the negligence cause of action.

Based on the foregoing, the demurrer to the first cause of action for nuisance is sustained with leave to amend. Specifically, Plaintiff is given leave to amend the negligence cause of action so as to encompass the facts and remedies raised in the nuisance cause of action, as appropriate. The Court also notes that to the extent Plaintiff retains the request for injunctive relief, the action should be reclassified as an unlimited jurisdiction case. (See Code Civ. Proc., §§ 85, 86, subds. (a)(7), (b).)

Conclusion

Defendants Paul Andrikian, Karineh Andrikian, and Green Apple Tree Investments LLC’s Demurrer is sustained with 20 days’ leave to amend as to the Complaint’s first cause of action for negligence.

Order to Show Cause Why this Case Should Not Be Reclassified as an Unlimited Civil Action is set for March 23, 2020 at 10:30 am in Department 94.

Moving party to give notice.