HOSSEIN SHAHBAZIAN VS DARREL A. HESSER

Tentative Rulings

Case Number: YC070413    Hearing Date: December 13, 2019    Dept: SWB

Hearing Date: December 13, 2019

Moving Parties: Defendants Darrel A. Hesser and Brenda Hesser

Responding Party: Plaintiff Hossein Shahbazian

Motion to Strike Portions of Third Amended Complaint

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED.

BACKGROUND

On September 14, 2015, plaintiffs Hossein Shahbazian and Vicky A. Shahbazian filed a First Amended Complaint against Darrel A. Hesser, Brenda Hesser, and City of Rancho Palos Verdes.

Plaintiffs filed a Second Amended Complaint for (1) negligence, (2) trespass, and (3) nuisance. Plaintiffs allege that they are next door neighbors to defendants. Plaintiffs allege that defendants destroyed the existing fence at the boundary line between the two properties and installed a new fence.

On September 18, 2019, plaintiffs filed a Third Amended Complaint, after the court granted leave.

LEGAL AUTHORITY

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

DISCUSSION

Defendants request that the court strike the TAC at para. 12 “(b) declaratory relief under Code of Civil Procedure §1060 as to the parties’ respective rights, if any, in the Boundary so that disputes like this do not arise again in the future” and the prayer at page 13, line 14 “D. As to the Hessers and Does 1 to 9 only, declaratory relief under CCP §1060 as to the plaintiffs’ and Hessers’ rights, if any, in the Boundary, so that disputes like this do not rise again in the future.”

In the TAC, plaintiffs allege that this dispute concerns the boundary between two abutting residential properties in Rancho Palos Verdes. Plaintiffs have been the owners of their property since 1990. Defendants have been the owners of their property since 2006. Currently, a fence sitting on top of a wall/foundation separates the properties. The fence was constructed by the Hessers without prior notice to or consent of plaintiffs’. Defendants shaved and thinned the fence without prior notice or consent. The fence replaced a prior fence that had sat atop the unshaved wall/foundation. These fences and the wall/foundation are referred to as the Boundary.

Plaintiffs allege that they have ownership and other rights to the Boundary based on the legal doctrine called “practical location” as set forth in French v. Brinkman (1963) 60 Cal. 2d 547. Further, the wall/foundation portion of the Boundary provides later and subjacent support to the higher plaintiffs’ property and holds it in place.

The court had previously allowed plaintiffs to amend to add a claim for declaratory relief. The court does not find that the language is irrelevant, false, or improper. CCP §1060 states that declaratory relief may be requested “either alone or with other relief.” Plaintiffs have alleged that they are persons interested in a declaration of their rights or duties with respect to property, which in this case, is the “Boundary” between the properties.

The motion is DENIED.

Plaintiffs are ordered to give notice of the ruling.