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This case was last updated from Los Angeles County Superior Courts on 06/28/2019 at 10:51:03 (UTC).

ALLISON FELTUS VS. SVETLANA MOLCHANOV, ET AL

Case Summary

On 04/14/2017 ALLISON FELTUS filed a Property - Other Real Property lawsuit against SVETLANA MOLCHANOV. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is MICHAEL J. CONVEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5529

  • Filing Date:

    04/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL J. CONVEY

 

Party Details

Plaintiff

FELTUS ALLISON

Defendants

MOLCHANOV SVETLANA

J & J TREE SERVICE INC.

JULAJ CONSTRUCTION INC.

DOES 1-100

JULAL CONSTRUCTION INC.

Cross Plaintiff

SHVARTSMAN ALEXANDER

Attorney/Law Firm Details

Plaintiff Attorneys

HOROWITZ JEFFREY DAVID

LORMAN BRUCE MICHAEL

Defendant Attorneys

EUM DAVID INN

MILLER DAVID SCOTT

 

Court Documents

Legacy Document

5/23/2018: Legacy Document

Minute Order

5/24/2018: Minute Order

Substitution of Attorney

6/13/2018: Substitution of Attorney

Legacy Document

6/13/2018: Legacy Document

Memorandum of Points & Authorities

7/11/2018: Memorandum of Points & Authorities

Notice

7/13/2018: Notice

Request for Judicial Notice

7/17/2018: Request for Judicial Notice

Notice

7/17/2018: Notice

Informal Discovery Conference

7/23/2018: Informal Discovery Conference

Minute Order

7/24/2018: Minute Order

Objection

8/2/2018: Objection

Reply

8/9/2018: Reply

Minute Order

8/15/2018: Minute Order

Proof of Service of Summons and Complaint

8/29/2018: Proof of Service of Summons and Complaint

Complaint

8/30/2018: Complaint

Stipulation and Order

6/3/2019: Stipulation and Order

Declaration

6/17/2019: Declaration

Request for Judicial Notice

6/17/2019: Request for Judicial Notice

22 More Documents Available

 

Docket Entries

  • 06/21/2019
  • Motion for Summary Judgment; Filed by Julal Construction, Inc. (Defendant)

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  • 06/17/2019
  • Motion for Summary Judgment; Filed by Svetlana Molchanov (Defendant)

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  • 06/17/2019
  • Request for Judicial Notice; Filed by Svetlana Molchanov (Defendant)

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  • 06/17/2019
  • Separate Statement; Filed by Svetlana Molchanov (Defendant)

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  • 06/17/2019
  • Declaration (Declarations of David S. Miller Alexander Shvartsman, Lisa Smith and Nick Kazemi); Filed by Svetlana Molchanov (Defendant)

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  • 06/03/2019
  • Stipulation and Order (Stipulation to Continue Trial Final Status Conference and Discovery Completion Dates); Filed by Alexander Shvartsman (Cross-Complainant); Svetlana Molchanov (Defendant); Julal Construction, Inc. (Defendant)

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  • 01/03/2019
  • Notice (of Case Reassignment); Filed by Allison Feltus (Plaintiff)

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  • 12/26/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 11/15/2018
  • at 08:30 AM in Department U, Michael J. Convey, Presiding; Trial Setting Conference - Held

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  • 11/15/2018
  • Minute Order ((Trial Setting Conference)); Filed by Clerk

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83 More Docket Entries
  • 05/31/2017
  • Answer; Filed by J & J Tree Service, Inc. (Defendant)

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  • 05/18/2017
  • Declaration re: Due Diligence; Filed by Allison Feltus (Plaintiff)

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  • 05/18/2017
  • Declaration; Filed by Allison Feltus (Plaintiff)

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  • 05/18/2017
  • Proof of Service of Summons and Complaint; Filed by Allison Feltus (Plaintiff)

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  • 05/17/2017
  • at 00:00 AM in Department U; Unknown Event Type

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  • 05/17/2017
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 05/17/2017
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 04/14/2017
  • Complaint; Filed by Allison Feltus (Plaintiff)

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  • 04/14/2017
  • Summons; Filed by Allison Feltus (Plaintiff)

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  • 04/14/2017
  • Notice of Case Management Conference; Filed by Clerk

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Tentative Rulings

Case Number: LC105529    Hearing Date: February 01, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

ALLISON FELTUS,

Plaintiff,

vs.

SVETLANA MOLCHANOV, an individual; JULAL CONSTRUCTION, INC., a California corporation; J & J TREE SERVICE, INC., a California Corporation, and DOES 1-10, inclusive,

Defendants.

AND RELATED CROSS ACTION.

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CASE NO: LC105529

[TENTATIVE] ORDER RE: DEFENDANTS SVETLANA MOLCHANOV AND JULAL CONSTRUCTION, INC.’S MOTIONS FOR SUMMARY JUDGMENT

Dept. U

8:30 a.m.

February 1, 2021

I. BACKGROUND

This is a trespass action involving the removal of four walnut trees on residential property. The neighboring residents dispute on whose property the trees were located and whether the trees’ removal was lawfully done in accordance with valid permits issued by the City of Los Angeles.

On April 14, 2017, Plaintiff Allison Feltus (“Plaintiff”) filed her initial Complaint against Defendants Svetlana Molchanov (“Molchanov”), Julal Construction, Inc. (“Julal”), J & J Tree Service, Inc. (“J&J”), and Does 1 through 100 asserting four causes of action: (1) trespass to real property; (2) wrongful injuries to trees; (3) negligence; and (4) injunctive relief.

On August 8, 2017, Molchanov, Julal, and Alexander Shvartsman (“Shvartsman”) filed a Cross-Complaint against Plaintiff and Roes 1 through 50 asserting six causes of action: (1) trespass to real property; (2) conversion; (3) intentional interference with contractual relations; (4) intentional interference with prospective economic advantage; (5) defamation; and (6) intentional infliction of emotional distress.

On June 13, 2018, Plaintiff filed her operative First Amended Complaint (“FAC”) against the same named defendants asserting the same causes of action as the initial complaint.

On October 10, 2019, Plaintiff substituted Melt Construction, Inc. (“Melt”) for “Doe 1.”[1]

In relevant part, the FAC alleges: (1) Plaintiff owns and resides at real property located at 3901 Pacheco Drive, Sherman Oaks, California 91402 with Assessor Parcel Numbers of 2277-020-009 and 2277-020-008, which as later described in her declaration (Feltus Decl. ¶¶ 3-5) are Lots 23, 24, and 43 (the “Feltus Property”) (FAC ¶ 7); (2) Molchanov owns vacant real property located at Assessor Parcel Numbers of 2277-018-026 also known as Tract 6984 Lots 62 through 65 (the “Molchanov Property”) (id. ¶ 8); (3) the Feltus Property and Molchanov Property are separated by a dirt road part of Hopevale Drive and are across from each other (id. ¶ 9); (4) Plaintiff had a property interest for the protection and preservation of four walnut trees located downslope from the dirt road which extends from the end of the paved part of Hopevale Drive (id. ¶ 11); (5) the trunks of the trees were located entirely on the Feltus Property or adjacent property to the Feltus Property (ibid.); (6) Plaintiff performed tree care and maintenance, not the City of Los Angeles (id. ¶ 12); and (7) all named and Doe defendants cut or caused to be cut the walnut trees down to their stumps, doing so to better develop the Molchanov Property (id. ¶¶ 14).

On June 17, 2019, Molchanov filed a motion for summary judgment or, in the alternative, for summary adjudication.

On June 21, 2019, Julal filed a separate but nearly identical motion for summary judgment or, in the alternative, for summary adjudication.

On January 29, 2020, the Court granted Plaintiff’s former counsel’s motion to be relieved as counsel. On October 28, 2020, Plaintiff filed a substitution of counsel and is therefore no longer self-represented.

Plaintiff filed a joint opposition opposing both motions (through her former counsel) and only Julal filed a reply. Defendants Molchanov and Julal’s (collectively “Defendants”) separate motions are now before the Court.

II. LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc, § 437c, subd. (p)(2).) Defendant can also prove that summary judgment is proper by establishing that he or she has a complete defense to a cause of action. (Genisman v. Carley (2018) 29 Cal.App.5th 45.) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467 (Avivi).)  

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Ibid.; Code Civ. Proc., § 437c, subd. (c).)  

III. REQUEST FOR JUDICIAL NOTICE

Defendants request the Court to take judicial notice of three documents:

1. (Exhibit A) City of Los Angeles – Department of Building and Safety’s Application for Building Permit and Certificate of Occupancy issued on February 2, 2018;

2. (Exhibit B) City of Los Angeles – Department of Building and Safety’s Application for Building Permit and Grading Certificate issued on February 2, 2018; and

3. (Exhibit C) City of Los Angeles – Department of Public Works, Bureau of Street Services’ uncertified response to a records request.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) Evidence Code sections 451 and 452 list matters that are subject to judicial notice. Even if the court grants judicial notice of a document, the court does not accept the truth of its contents or the parties’ interpretation of those contents as true. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Defendants rely on Evidence Code sections 452, subdivisions (c) and (h) and section 453 in support of their request for judicial notice. Plaintiff objects to this request for judicial notice on many grounds, including because the documents as issued by the “City of Los Angeles” are not official acts of any state (Evid. Code, § 452, subd. (c)) and the documents themselves contain inadmissible hearsay and/or irrelevant information and/or information that is reasonably subject to dispute (id., subd. (h)). Notably, Defendants do not respond in their replies to Plaintiff’s objections.

The Court agrees that the applications (Exhibits A and B) and response to a records request (Exhibit C) are not “[o]fficial acts” that are a proper subject of judicial notice. (Evid. Code, § 452, subd. (c).) The documents are not otherwise subject to judicial notice as facts that are not reasonably subject to dispute as demonstrated by the factual disputes in the parties’ papers. (Id., subd. (h).) Judicial notice of the existence of the documents is a valid request. However, Defendants instead improperly seek to obtain judicial notice of the truth of their contents. (See Horne v Dist. Council 16 Int'l Union of Painters & Allied Trades (2015) 234 Cal.App.4th 524, 535 [judge may take judicial notice of agency letters and other documents, but not of truth of statements contained in them, which are subject to dispute].)

Therefore, the Court DENIES the requests for judicial notice.

IV. EVIDENTIARY OBJECTIONS

Plaintiff and Julal object to each other’s evidence.

A. Plaintiff’s Evidentiary Objections

Plaintiff objects to portions of the declarations of Alexander Shvartsman (Julal’s principal) and Nick Kazemi (professional land surveyor) filed in support of Defendants’ motions and the declaration of David Miller (Defendants’ counsel) filed in reply to Plaintiff’s opposition.

The Court rules as follows:

Shvartsman Declaration: (1) overruled; (2) overruled as to first sentence and sustained as to the second sentence; (3) overruled as to all sentences except the last one, as to which the objection is sustained; (4) overruled; (5) sustained as to whether the permit authorized the cutting of trees and overruled as to balance; (6) overruled, except that objections are sustained to portion of statements regarding who owned portions of the property; (7) overruled; (8) overruled; and (9) sustained as to legal effect of permit (i.e., retroactive effect) and whether any action was done with “full legal authority” and overruled as to the balance.

Kazemi Declaration: all objections are overruled as the arguments raised go to the weight of the evidence, not its admissibility.

Miller Declaration: (1) sustained.

B. Julal’s Evidentiary Objections

Only Julal objects to Plaintiff’s evidence. (See objections 1:22.) Julal objects to portions of the declarations of Allison Feltus, Bruce Lorman (Plaintiff’s former counsel), and Robert Hennon (professional land surveyor).

Julal’s objections are not numbered in violation of the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b) [“Each written objection must be numbered consecutively . . . .”].) More problematically, Julal does not file a copy of a proposed order that is required. (Cal. Rules of Court, rule 3.1354(c); see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 [trial court not required to give a second chance at filing properly formatted papers].) Accordingly, the Court does not rule on the improperly raised objections.

V. EVIDENCE ESTABLISH UNDISPUTED FACTS OR DISPUTED ISSUES

Defendants filed a separate statement of material facts (“UMF”) and Plaintiff filed a separate statement of additional material facts (“AMF”) in opposition.

A. Defendants’ Separate Statement

Defendants set forth 17 material facts across the five issues, i.e., ¶¶ 1-6 for issue 1, ¶¶ 7-8 for issue 2, ¶¶ 9-11 for issue 3, ¶¶ 12-13 for issue 4, and ¶¶ 14-17 for issue 5. Because the “undisputed facts” pertain to more than one issue, Defendants should have repeated the facts for each issue if relevant. Defendants did so for certain facts (e.g., compare UMF ¶¶ 5 with 7), but missed certain facts that are relevant and should have been repeated. The Court overlooks this error and Defendants’ failure to incorporate the facts by reference.

The Court notes that Plaintiff’s “dispute” of the material facts is incomplete because Plaintiff does not explain why such facts are disputed other than citing her evidentiary objections and her declarations without any explanation how her evidence creates a dispute. (See Cal. Rules of Court rule 3.1350(f)(2) [“An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute . . . .”].) The Court also overlooks this incompleteness.

Essentially, the parties dispute: (1) whether the City of Los Angeles owns the property designated for N. Hopevale Drive (UMF ¶ 3); (2) on whose property the four trees are located (id. ¶¶ 4-5, 7, 14); (3) whether Plaintiff owned the four trees (id. ¶ 8, 15); and (4) the nature of the permits to cut the trees, i.e., whether they were valid and when they were issued (id. ¶¶ 9-10, 12-13).

B. Plaintiff’s Additional Material Facts

Plaintiff filed a statement of additional material facts numbered from 16 to 43. In their reply papers, Defendants notably do not respond to or contest any of Plaintiff’s AMF.

Of note, Plaintiff sets forth more specific facts regarding the nature of her property and responsibilities with the tree maintenance reflecting her property rights (AMF ¶¶ 17, 21-24, 40=42), Shvartsman’s actions (id. ¶ 19), and more information regarding the disputed lawfulness of the contractor’s removal of the trees (id. ¶¶ 30, 32, 36-37).

VI. DISCUSSION

The parties essentially argue about (1) whether the trees are located on Plaintiff’s property; (2) whether Plaintiff otherwise has an ownership interest in the trees; and (3) whether Defendants removed the trees with lawful authority based on the issued government permits by the City of Los Angeles.

A. Whether the Trees Were Located on Plaintiff’s Property

Defendants argue that the four trees were not on Plaintiff’s property, but instead upon the public right of way owned by the City of Los Angeles.

Defendants identify three kinds of evidence in support of their position: (1) Lisa Smith, a certified arborist, concluded that there are four walnut trees on the Molchanov Property and three walnut trees located on the City of Los Angeles’ right of way and, of all of those trees, three on the Molchanov Property and one in the public right of way were cut (Smith Decl. ¶ 8); (2) Nick Kazemi, a land surveyor, surveyed the area and determined the cut trees are entirely on the area designated as Hopevale Drive, which is a public right-of-way (Kazemi Decl. ¶ 3); and (3) the permit to remove the trees issued by the Department of Public Works (RJN Ex. C pp. 55-57) confirms that the three off-site trees corresponds with Kazemi’s survey map (Shvartsman Decl. Ex. B), reflecting that the trees are in a public right-of-way.

Defendants meet their initial burden that the trees were not on Plaintiff’s property based on the first and second arguments. Regarding the first argument, it is unclear how Smith can issue such an opinion concluding on which property the trees were located. Nevertheless, Plaintiff does not object to her declaration including that conclusion and does not otherwise discuss Smith’s opinion in her opposition. Next, regarding the second argument, Kazemi is qualified to state an opinion regarding the location of the trees and his opinion is reasonably supported. His prepared map, based on the City of Los Angeles’ subdivision map for the corresponding land, reflects that three of the cut trees were not on Plaintiff’s property but instead in Hopevale Drive. (Kazemi Decl. ¶¶ 3-4, Ex. B and C.) Finally, the Court rejects the third argument because the permit is not a proper subject of judicial notice.

The burden now shifts to Plaintiff to show that there is a triable issue of fact as to whether the trees were on her property.

In response, Plaintiff contends through her declaration and the Declaration of Robert Hennon, a land surveyor, that the trees were on her property because her property extends to the center line of the street (here Hopevale Drive) and some of the cut trees are within the center line (Feltus Decl. ¶ 7; Hennon Decl. ¶¶ 10, 14-15.) In other words, while the trees were not on her designated lots, her property is not limited to the designated lots but extends to the street. More specifically, Plaintiff argues that her property conveyed by grant deed had a reference to a tract map and lot numbers (Feltus Decl. Ex. 4), and pursuant to Murray v. Title Ins. & Trust Co. (1967) 250 Cal.App.2d 248, 253, she can rely on a general presumption that she owns the land to the center of the street. (See also Civ. Code, §§ 831, 1112.)

However, this general presumption could possibly be rebutted based on the subdivision tract map containing a reference to the dedication of the “Walks and Drives” to the public. (Kazemi Decl. Ex. C. p. 1 [“[W]e consent to the making of said map and subdivision and hereby dedicate to the Public use all of the Walks and Drives. . . .”].) The pivotal question is not whether the interest was actually dedicated to the City of Los Angeles (here by common law dedication since the dedication occurred before the Subdivision Map Act so statutory dedication is inapplicable) and accepted by the City, but what specific interest was dedicated: a fee or an easement.

Notably, this language in the tract map does not indicate a transfer of a fee to the City of Los Angeles, but instead reflects an easement. Nevertheless, Defendants argue that a public easement goes beyond a private easement whereby the City of Los Angeles has a broader interest that includes a “right of exclusive possession.” (Galeb v. Cupertino Sanitary Dist. of Santa Clara County (1964) 227 Cal.App.2d 294, 303.) In other words, Defendants argue that the interest in Hopevale Drive is owned by the public (i.e., City of Los Angeles) in a way that Plaintiff cannot claim ownership to the trees within it. The Court does not find this argument persuasive given the easement language in the dedication, other presumptions (see Civ. Code, §§ 733, 831, 1112), and the competing expert opinions on this issue (compare Kazemi Decl. ¶¶ 5-6 with Hennon Decl. ¶¶ 10, 14-15).

Accordingly, the Court finds that there is a triable issue of fact whether the Feltus Property includes portions of Hopevale Drive that contained the trees.

B. Whether Plaintiff Otherwise has an Ownership Interest in the Trees

Defendants also dispute whether Plaintiff has another kind of interest in the removed trees through an easement by performing tree maintenance or by way of adverse possession. (Motion 9:12-10:3.) The Court does not need to examine this issue given the earlier discussion, i.e., there already is a triable issue of fact whether Plaintiff had a property interest in the trees.

C. Whether Defendants had lawful authority to remove the trees

Notwithstanding there is a triable issue of fact regarding Plaintiff’s claim to a property interest in the trees, Defendants argue that they acted with lawful authority cutting the trees pursuant to a validly issued permit by the City of Los Angeles that ratified or retroactively approved Defendants’ conduct.

As a preliminary matter, the Court rejects Plaintiff’s argument that the permit, even if it could retroactively apply to Defendants’ conduct, has no legal effect for Defendants’ actions because it was issued to Melt. Plaintiff argues that Melt is a separate entity. (Opposition 11:17-18.) However, there is admissible evidence showing that Melt is Julal’s successor in interest and that Shvartsman owns both companies. (Shvartsman Decl. ¶ 8.) Although the Court notes that this fact is not specifically identified in Defendants’ UMF (see UMF ¶ 10), Defendants refer to this fact in the separate statement and the evidence supporting it is in the moving papers. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315.)

Defendants contend that they received lawful permits and therefore their actions cannot be “wrongful” in a way that would support Plaintiff’s claims under Code of Civil Procedure sections 733 and 3346. Defendants first contend that Shvartsman on behalf of Julal obtained a validly issued Class “B” Construction Permit. (Shvartsman Decl. ¶ 4, Ex. A.) However, Defendants do not explain how this construction permit, while it authorizes certain construction work, would permit Defendants to perform work on another person’s property, which as discussed above there is a triable issue of material fact regarding this ownership. (See Shvartsman Decl. Ex. A [“2. OWNER-APPLICANT must be the owner of the affected property . . . .”].) Next, Defendants contend that the City of Los Angeles Board of Building and Safety Commissioners approved their application[2] and thus granted a permit to remove the protected trees. (Id. Ex. B.) But this permit was issued after the removal of the trees in question. A close review of the permit does not suggest that such approval should apply retroactively, especially considering there is no explicit language stating so and the language that is there mentions trees to be removed, i.e., in the future. Defendants do not cite any supporting authority for this retroactive effect. Alternatively, even if there were some effect of the permit to excuse Defendants’ conduct, Defendants do not present any authority to support that the effect would be completely retroactive. In other words, it is certainly plausible that the permit would merely excuse the unlawful action as of the date of the issuance of the permit and that Defendants would be liable for the time period from removal to the issuance of the permit. It also could be the proffered situation Defendants argue, but they do not provide any explanation or authority for the Court to reach that conclusion.

These unanswered questions lead the Court to conclude that Defendants have not met their initial burden to show that they removed the trees with lawful authority. Additionally, even if Defendants had done so, Plaintiff correctly notes that a written Notice of Non-Compliance issued to Julal creates a triable issue of fact about whether Defendants’ actions will be deemed retroactively lawful since work could only commence after satisfying the Urban Forestry Requirements consistent with municipal ordinances. (Feltus Decl. Ex. 11.)

D. Application to the First through Third Causes of Action

Because the Court finds that there is a triable issue of material fact regarding whether the trees are on the Feltus Property and whether Defendants had lawful authority to remove them, the Court cannot grant summary adjudication for the first, second, and third causes of action because: as to the first cause of action, the removal of trees on the Feltus Property is an act of trespass because it is an unlawful interference with Plaintiff’s property right; as to the second cause of action, the removal of trees is in fact a wrongful injury to the trees; and as to the third cause of action, Defendants had a duty to act reasonably not to intrude on another’s property right and by cutting down the trees they did so, which was also in violation of municipal ordinances.

E. Fourth Cause of Action

Regarding the fourth cause of action, Defendants correctly argue that “injunctive relief” is a remedy and not a cause of action. (See City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Therefore, even if Plaintiff has valid claims that survive the summary judgment motion, she cannot assert a claim for injunctive relief. Instead, Plaintiff can only pray for that relief. Code of Civil Procedure sections 525 and 526 do not authorize Plaintiff to pursue this relief as a cause of action. Plaintiff also indirectly admits that this cause of action is not a separate cause of action, but one that is “tethered to” the trespass claim. (Opposition 15:7.) It is the prayer for injunctive relief that is tethered to that claim, not the alleged cause of action for injunctive relief.

Accordingly, the Court grants summary adjudication on the fourth cause of action because it is not a legally cognizable claim.

VII. CONCLUSION

For the foregoing reasons, the Court DENIES the motion for summary judgment, DENIES the motion for summary adjudication on the first, second, and third causes of action, and GRANTS summary adjudication on the fourth cause of action.

Defendants are ordered to provide notice of this ruling.

DATED: February 1, 2021

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court


[1] Defendant Melt Construction, Inc. filed a demurrer that is scheduled for a hearing on February 1, 2021. The Court addresses the demurrer in a separate order.

[2] Defendants refer to documents that are not subject to judicial notice. (RJN Ex. C pp. 48-49.) However, the actual permit itself (Shvartsman Decl. Ex. B) is admissible evidence

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

ALLISON FELTUS,

Plaintiff,

vs.

SVETLANA MOLCHANOV, an individual; JULAL CONSTRUCTION, INC., a California corporation; J & J TREE SERVICE, INC., a California Corporation, and DOES 1-10, inclusive,

Defendants.

AND RELATED CROSS ACTIONS.

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CASE NO: LC105529

[TENTATIVE] ORDER RE: DEFENDANT MELT CONSTRUCTION, INC.’S DEMURRER TO PLAINTIFF’S DOE AMENDMENT

Dept. U

8:30 a.m.

February 1, 2021

I. BACKGROUND

This is a trespass action involving the removal of four walnut trees on residential property. The neighboring residents dispute on whose property the trees were located and whether the trees’ removal was lawfully done in accordance with valid permits issued by the City of Los Angeles.

On April 14, 2017, Plaintiff Allison Feltus (“Plaintiff”) filed her initial Complaint against Defendants Svetlana Molchanov (“Molchanov”), Julal Construction, Inc. (“Julal”), J & J Tree Service, Inc. (“J&J”), and Does 1 through 100 asserting four causes of action: (1) trespass to real property; (2) wrongful injuries to trees; (3) negligence; and (4) injunctive relief.

On August 8, 2017, Molchanov, Julal, and Alexander Shvartsman (“Shvartsman”) filed a Cross-Complaint against Plaintiff and Roes 1 through 50 asserting six causes of action: (1) trespass to real property; (2) conversion; (3) intentional interference with contractual relations; (4) intentional interference with prospective economic advantage; (5) defamation; and (6) intentional infliction of emotional distress.

On June 13, 2018, Plaintiff filed her operative First Amended Complaint (“FAC”) against the same named defendants asserting the same causes of action as the initial complaint.

On October 10, 2019, Plaintiff substituted Melt Construction, Inc. for “Doe 1.”

In relevant part, the FAC alleges: (1) Plaintiff owns and resides at real property located at 3901 Pacheco Drive, Sherman Oaks, California 91402 with Assessor Parcel Numbers of 2277-020-009 and 2277-020-008 (the “Feltus Property”) (FAC ¶ 7); (2) Molchanov owns vacant real property located at Assessor Parcel Numbers of 2277-018-026 also known as Tract 6984 Lots 62 through 65 (the “Molchanov Property”) (id. ¶ 8); (3) the Feltus Property and Molchanov Property are separated by a dirt road part of Hopevale Drive and are across from each other (id. ¶ 9); (4) Plaintiff had a property interest for the protection and preservation of four walnut trees located downslope from the dirt road which extends from the end of the paved part of Hopevale Drive (id. ¶ 11); (5) the trunks of the trees were located entirely on the Feltus Property or adjacent property to the Feltus Property (ibid.); (6) Plaintiff performed tree care and maintenance, not the City of Los Angeles (id. ¶ 12); and (7) all named and Doe defendants cut or caused to be cut the walnut trees down to their stumps, doing so to better develop the Molchanov Property (id. ¶¶ 14).

On January 23, 2020, Defendant Melt Construction, Inc. (“Defendant”) filed this demurrer to Plaintiff’s Doe Amendment to the FAC pursuant to California Civil Code section 430.10, subdivisions (e) and (f) for insufficient facts and uncertainty.  In essence, Defendant demurs to the entire FAC.

On January 29, 2020, the Court granted Plaintiff’s former counsel’s motion to be relieved as counsel.  On October 28, 2020, Plaintiff filed a substitution of counsel and is therefore no longer self-represented.

As of October 28, 2020, Plaintiff had not filed an opposition. Plaintiff’s opposition was due on October 23, 2020, i.e., nine court days before the scheduled hearing date of November 5, 2020. (Code Civ. Proc., § 1005, subd. (b).)  Although the hearing on the demurrer was continued to February 1, 2021, Plaintiff has still filed no opposition.

The Court notes that Plaintiff has had notice of this hearing, first of the existence of the hearing through the order granting Plaintiff’s former counsel relief from her representation (January 31, 2020 order ¶ 7) and the current hearing date through Court’s notices of continuance of the hearing, including the most recent notice served on October 15, 2020 by the clerk (October 15, 2020 notice), all served to Plaintiff’s last known address. 

On November 2, 2020, the Court granted Plaintiff’s request to continue the hearing on this demurrer and other motions to February 1, 2021, but still no opposition was filed. 

II. LEGAL STANDARD

A. Leave to Amend

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, at p. 747.)

B. Leave to Amend

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

III. DISCUSSION

A. Meet and Confer Requirement

Before filing a demurrer, the moving party is required to meet and confer with the party who filed the pleading for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.)

Defendant’s counsel claims to have made a good faith attempt to meet and confer with Plaintiff’s counsel (before he was relieved) in a telephone call on an unknown date. Although there is no specified date, the Court finds no reason to not credit this declaration.  Finding the meet and confer declaration to be sufficient, the Court proceeds to the merits.

B. Demurrer – All Causes of Action

First, Defendant argues that Plaintiff did not amend any causes of action to include Defendant. (Demurrer 2:21-24.) The Court rejects this argument because each cause of action does in fact identify Doe 1 as a defendant both in the preamble of the allegations and the allegations themselves. (See e.g., FAC 4:9, 13 [first cause of action].)

Second, Defendant generally contends that Plaintiff insufficiently pleads any allegations as to Defendant’s involvement in a way that would allow Defendant to respond to Plaintiff’s claims. (Demurrer 2:24-28.) Although sustaining a demurrer on grounds of uncertainty is generally disfavored, it is appropriate here given the vague allegations explaining and identifying the Doe defendants. (FAC ¶ 5.) Notably, the FAC does not explain or identify any specific manner how the Doe defendants (and therefore Defendant when substituted in this action) were involved. (Id. 2:17 [“in some manner liable to plaintiff for the events and happenings alleged in this complaint and for plaintiffs [sic] injuries and damages].) Although Defendant is a construction company and presumably Defendant is allegedly liable for the construction involving the removal of the trees, the allegations are not clear about its involvement including how it damaged the trees, whether it did the actual removal, advised how to remove the trees, or consulted on obtaining of permits.

Therefore, the Court SUSTAINS the demurrer as to all causes of action.

C. Demurrer – Fourth Cause of Action

The Court also SUSTAINS the demurrer to the fourth cause of action because injunctive relief is a remedy and not a cause of action. (See City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Therefore, even if Plaintiff amends her pleading successfully, Plaintiff cannot state a valid claim for injunctive relief.

D. Leave to Amend

Because Plaintiff does not oppose, she has not identify any additional facts that should entitle her an opportunity for leave to amend. That said, because the basis for sustaining the demurrer is a lack of detail regarding Defendant’s involvement in the tree removal, the Court assumes that Plaintiff has additional facts to explain her reasons for adding Defendant as a Doe defendant.  Accordingly, the Court is inclined to GRANT leave to amend, if requested, but will make its ultimate decision at the hearing.

IV. CONCLUSION

For the foregoing reasons, Defendant’s demurrer is SUSTAINED WITH LEAVE TO AMEND.

Defendant is ordered to provide notice of this ruling.

DATED: February 1, 2021

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

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