This case was last updated from Los Angeles County Superior Courts on 08/07/2021 at 00:13:17 (UTC).

MAUREEN MANSFIELD VS LAWRENCE JAY LIPTON ET AL

Case Summary

On 11/03/2017 MAUREEN MANSFIELD filed an Other - Declaratory Judgment lawsuit against LAWRENCE JAY LIPTON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS, YVETTE M. PALAZUELOS, KEVIN C. BRAZILE, DAVID J. COWAN and RUPERT A. BYRDSONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1892

  • Filing Date:

    11/03/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Declaratory Judgment

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DALILA CORRAL LYONS

YVETTE M. PALAZUELOS

KEVIN C. BRAZILE

DAVID J. COWAN

RUPERT A. BYRDSONG

 

Party Details

Petitioners, Plaintiffs and Cross Defendants

MANSFIELD MAUREEN

GUILLOSSON JEAN-CLAUDE

Defendants and Respondents

LIPTON LAWRENCE JAY AN INDIVIDUAL AND

DOES 1 TO 50

THE LAWRENCE JAY LIPTON TRUST

LIPTON LAWRENCE JAY

MACFARLANE HEATHER

Cross Plaintiff and Defendant

LIPTON LAWRENCE JAY

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

DIJULIO R. DAVID

Defendant and Cross Plaintiff Attorney

SHAPIRO LARA

 

Court Documents

Notice - NOTICE OF CONTINUANCE OF STATUS CONFERENCE

3/25/2020: Notice - NOTICE OF CONTINUANCE OF STATUS CONFERENCE

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/29/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Declaration - DECLARATION DECLARATION OF LARA SHAPIRO RE-OSC RE: STATUS OF CASE

11/21/2019: Declaration - DECLARATION DECLARATION OF LARA SHAPIRO RE-OSC RE: STATUS OF CASE

ORDER ON COURT FEE WAIVER -

1/26/2018: ORDER ON COURT FEE WAIVER -

ORDER ON COURT FEE WAIVER -

11/3/2017: ORDER ON COURT FEE WAIVER -

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW OF DEFENDANT/CROSS-COMPLAINANTS' S...)

8/8/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW OF DEFENDANT/CROSS-COMPLAINANTS' S...)

Declaration - DECLARATION DECLARATION OF LARA SHAPIRO RE-OSC RE: STATUS OF CASE

8/8/2019: Declaration - DECLARATION DECLARATION OF LARA SHAPIRO RE-OSC RE: STATUS OF CASE

Response - Response Lipton and MacFarlane's Response to Court's Order to Show Cause Why The Entire Case Should Not Be Stayed Pending Final Resolution of the LADBS Case Against Lipton's Property; Decla

3/7/2019: Response - Response Lipton and MacFarlane's Response to Court's Order to Show Cause Why The Entire Case Should Not Be Stayed Pending Final Resolution of the LADBS Case Against Lipton's Property; Decla

Response - Response Plaintiff and Cross-Defendant Maureen Mansfield and Cross-Defendant Jean-Claude Guillossons' Response to Order to Show Cause

3/6/2019: Response - Response Plaintiff and Cross-Defendant Maureen Mansfield and Cross-Defendant Jean-Claude Guillossons' Response to Order to Show Cause

Status Report - STATUS REPORT RE: (1) STAY OF THE CASE PENDING RESOLUTION OF LADBS CASE NUMBER: 722145 AGAINST DEFENDANT LIPTON; (2) WHY SANCTIONS SHOULD NOT BE IMPOSED AGAINST PLAINTIFF FOR FAILURE T

8/20/2020: Status Report - STATUS REPORT RE: (1) STAY OF THE CASE PENDING RESOLUTION OF LADBS CASE NUMBER: 722145 AGAINST DEFENDANT LIPTON; (2) WHY SANCTIONS SHOULD NOT BE IMPOSED AGAINST PLAINTIFF FOR FAILURE T

Substitution of Attorney

8/25/2020: Substitution of Attorney

Substitution of Attorney

8/25/2020: Substitution of Attorney

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: STATUS OF THE PENDING CITY OF LOS ANGEL...)

8/25/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: STATUS OF THE PENDING CITY OF LOS ANGEL...)

Motion to Bifurcate

10/30/2020: Motion to Bifurcate

Opposition - OPPOSITION PLAINTIFF AND CROSS-DEFENDANTS OPPOSITION TO MOTION TO BIFURCATE CROSS-COMPLAINT FROM COMPLAINT

11/16/2020: Opposition - OPPOSITION PLAINTIFF AND CROSS-DEFENDANTS OPPOSITION TO MOTION TO BIFURCATE CROSS-COMPLAINT FROM COMPLAINT

Reply - REPLY ISO MOTION TO BIFURCATE CROSS-COMPLAINT FROM COMPLAINT

11/20/2020: Reply - REPLY ISO MOTION TO BIFURCATE CROSS-COMPLAINT FROM COMPLAINT

Request for Judicial Notice

11/20/2020: Request for Judicial Notice

Declaration - DECLARATION RE: LIPTONS' CRIMINAL CASE STATUS AND IN SUPPORT OF OPPOSITION TO MOTION TO BIFURCATE

11/25/2020: Declaration - DECLARATION RE: LIPTONS' CRIMINAL CASE STATUS AND IN SUPPORT OF OPPOSITION TO MOTION TO BIFURCATE

192 More Documents Available

 

Docket Entries

  • 11/07/2022
  • Hearing11/07/2022 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 11/03/2022
  • Hearing11/03/2022 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/30/2021
  • DocketNotice (of Court Order); Filed by Maureen Mansfield (Plaintiff)

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  • 04/27/2021
  • Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Hearing on Motion for Summary Adjudication (FILED by Defendants) - Held - Motion Denied

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  • 04/27/2021
  • Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Trial Setting Conference - Held

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  • 04/27/2021
  • DocketOrder (Ruling: April 27, 2021); Filed by Clerk

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  • 04/27/2021
  • DocketMinute Order ( (Hearing on Motion for Summary Adjudication FILED by Defendant...)); Filed by Clerk

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  • 04/19/2021
  • DocketObjection (Defendants' Evidentiary Objections to Supplemental Declaration of Maureen Mansfield in Support of Opposition to Defendants' Motion for Summary Adjudication; [Proposed] Order); Filed by Lawrence Jay Lipton (Defendant); Heather McFarlane Erroneously Sued As Heather MacFarlane (Defendant)

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  • 04/05/2021
  • DocketSupplemental Declaration (BRIEF IN SUPPORT OF OPPOSITION TO MSA); Filed by Maureen Mansfield (Plaintiff)

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  • 04/05/2021
  • DocketSupplemental Declaration (- PLAINTIFF MAUREEN MANSFIELD?S SUPPLEMENTAL SEPARATE STATEMENT IN OPPOSITION TO DEFENDANTS?MOTION FOR SUMMARY ADJUDICATION); Filed by Maureen Mansfield (Plaintiff)

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360 More Docket Entries
  • 12/05/2017
  • DocketVERIFIED ANSWER OF DEFENDANTS LAWRENCE JAY LIPTON, AN INDRVTDUAL. AND LAWRENCE JAY LIPTON, TRUSTEE OF THE LAWRENCE JAY LIPTON TRUST TO THE VERIFIED COMPLAINT OF MAUREEN MANSFIELD

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  • 12/05/2017
  • DocketSummons on Cross Complaint

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  • 12/05/2017
  • DocketCROSS-COMPLAINT FOR DAMAGES AND [NJUCTEON FOR I. TRESPASS ;ETC

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  • 11/06/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • DocketProof-Service/Summons

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  • 11/03/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 11/03/2017
  • DocketSUMMONS

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  • 11/03/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/03/2017
  • DocketCOMPLAINT FOR INJUNCTWE AND DECLARATORY RELIEF, CIVIL PENALTIES, AND OTHER EQUITABLE RELIEF 1) PUBLIC NUISANCE; ETC

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  • 11/03/2017
  • DocketComplaint; Filed by Maureen Mansfield (Plaintiff)

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Tentative Rulings

Case Number: BC681892    Hearing Date: April 27, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: Tuesday, April 27, 2021

Case Name: Maureen Mansfield v. Lawrence Jay Lipton, et al.

Case No.: BC681892

Motion: Summary Judgment

Moving Party: Defendants Lipton et al.

Responding Party: Plaintiff Mansfield

Notice: OK


Ruling: The Motion for Summary Judgment is DENIED.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


BACKGROUND

On November 3, 2017, Plaintiff Maureen Mansfield (“Mansfield”) filed a Complaint against Lawrence Jay Lipton (“Lipton”), individually and as Trustee of The Lawrence Jay Lipton Trust (the “Trust”), as well as the Trust itself and unnamed Does, stating causes of action for private nuisance, public nuisance, maintenance of public nuisance, abatement of public nuisance, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress, seeking damages and declaratory and injunctive relief. The nuisance claims arise out of a carport, retaining wall, and concrete planter on Lipton’s property which allegedly encroach on the Grape Place street; Mansfield’s property neighbors Lipton’s property. The negligence and infliction of emotional distress claims arise out of a hornet attack Mansfield suffered, allegedly due to Lipton spraying poisons on a hornet nest on his property.

On May 1, 2018, Mansfield filed a First Amended Complaint stating the same causes of action but naming Heather MacFarlane, Lipton’s caretaker for the Property, as a new Defendant.

On December 12, 2018, Lipton and MacFarlane filed a Motion for Summary Adjudication of the claims asserted in the FAC.

On February 11, 2019, Mansfield filed an Opposition to the Motion.

On February 20, 2019, Lipton and MacFarlane filed a Reply in support of the Motion.

On March 18, 2019, the Court stayed the action in its entirety pending resolution of the City of Los Angeles's action against Lipton pertaining to the same property at issue.

On December 1, 2020, the Court lifted the stay and placed the Motion for Summary Adjudication back on calendar.

On April 5, 2021, Mansfield filed a Supplemental Opposition to the Motion addressing the intervening events after the stay and their effects on disposition of this Motion.

On April 19, 2021, Lipton filed Evidentiary Objections to the Supplemental Declaration filed alongside the Supplemental Opposition.

 

DISCUSSION

Applicable Law

Summary judgment is proper when the moving party is entitled to judgment as a matter of law and there are no triable issues of material fact. (CCP sec. 473c(c).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party must satisfy the initial burden of proof by presenting facts to negate or establish an essential element of each claim at issue. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519-20.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met its burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material fact exists. (CCP § 437c(o)(2).) “Materiality is measured by the law applicable to the legal theories put in issue by the complaint [or petition].” (Panattoni v. Superior Court (1988) 203 Cal.App.3d 1092, 1094.) Factual issues are immaterial if they are “outside the scope of the pleadings.” (AARTS Production, Inc. v. Crocker National Bank (1986) 176 Cal.App.3d 1601, 1065.)

Application to Facts

Preliminary Matters

Judicial Notice

Lipton and MacFarlane request the Court take judicial notice of the FAC. The Request is unopposed. The Court takes notice of the FAC as a court record. (Evid. Code sec. 452(d).)

Mansfield requests the Court take judicial notice of a copy of the Los Angeles Department of Building and Safety’s (“LADBS”) “Order to Comply and Notice of Fee,” order number A-4074295, addressed to Lipton, dated May 26, 2016 (the “Demolition Order”). The Court takes judicial notice as requested as the Order is an official act of a municipal executive agency. (Evid. Code sec. 452(c).)

Evidentiary Objections

A “trial court presented with timely evidentiary objections in proper form must expressly rule on the individual objections.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255.)

Here, Lipton filed evidentiary objections to the Declaration of Maureen Mansfield.

Objection 1 is SUSTAINED IN PART as to Mansfield’s photographs and the City’s photographs of the encroaching construction; insufficient foundation was laid. The Objection is otherwise OVERRULED.

Objection 2 is OVERRULED. Mansfield's testimony concerning car accidents and parking issues outside her own house is clearly a matter within her personal knowledge, and is not speculative. The hearsay objection is specious as no out-of-court statement is alleged.

Objection 3 is OVERRULED, as the Demolition Order is subject to judicial notice and may be considered to that extent. (See Mangini v. R.J. Reynolds (1994) 7 Cal.4th 1057, 1063 (in taking judicial notice of official acts, courts “do not take judicial notice of the truth of all matters stated therein…”)) In recognizing that the LADBS has ordered demolition of the carport (discussed further below), the Court is not taking as true the bases for that order—merely taking notice of the “existence” of the Order and its effect, as is proper.

Objection 4 is SUSTAINED as consisting entirely of inadmissible hearsay.

Objection 5 is SUSTAINED IN PART as to the allegations of out-of-court statements by opposing counsel, which are hearsay, but OVERRULED as to the allegations of Mansfield’s experience of the hornet attack, which are supported by Mansfield’s personal knowledge and are not speculative.

Lipton also filed objections to the Supplemental Declaration of Maureen Mansfield.

Objection 1 is OVERRULED—the attached Misdemeanor Complaint against Lipton is a court record not constituting hearsay (thus subject to judicial notice were that requested, Evid. Code sec. 452(d)) and there are no indicia of unreliability. The improper opinion testimony and speculation objections lack merit.

Objections 2 and 3 are OVERRULED. There are no out-of-court statements alleged, so the hearsay objections lack merit. The testimony regarding the criminal proceedings is not speculative and Mansfield has foundation to testify given her tracking of Lipton’s proceedings since the March 2019 stay. Mansfield clearly has foundation and personal knowledge to testify regarding the immediate impacts of the encroachments on her property and requests made of her by the City to address those encroachments.

Objection 4 is OVERRULED. No out-of-court statements are alleged; the hearsay objection is meritless. There is no speculative testimony or improper opinion testimony. Mansfield does not lack foundation regarding her observed (and photographed) removal of the hornet nest.

Mansfield filed two evidentiary objections to the Declaration of Lara Shapiro, objecting to Ms. Shapiro’s authentication of Mansfield’s discovery responses. Both evidentiary objections are OVERRULED—the contents of Mansfield’s discovery responses do not constitute inadmissible hearsay and Ms. Shapiro has sufficient personal knowledge and foundation to affirm that the responses are indeed those served by Mansfield. There is no speculation or improper opinion testimony in the objected-to passages.

Statute of Limitations—Nuisance

In Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, the Supreme Court addressed “the requirement that, . . . to avoid the bar of the statute of limitations by demonstrating that the nuisance is ‘continuing’ (or ‘temporary’) rather than ‘permanent,’ the plaintiff must present substantial evidence that the . . . condition is one that is both subject to remediation . . . and that the cost of [remediation] is ‘reasonable.’” (Id. at 1090.) The fundamental rule is that the statute of limitations on a claim based on permanent nuisance “begins to run upon creation of the nuisance” while a claim based on continuing nuisance does not—instead, “[w]here a continuing nuisance is alleged, every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.” (Id. at 1093.) There are two principal tests for distinguishing permanent nuisances from continuing nuisances. The first “crucial distinction between a permanent and continuing nuisance is whether the nuisance may be discontinued or abated”; the difficulty of abatement is relevant, as “reasonable cost [is] a component of ‘abatability.’” (Id. at 1093, 1096, 1100 (“‘abatable’ means reasonably abatable…”)) A second “alternative test of continuing nuisance” is whether the impact of the nuisance “may vary over time.” (Id. (quoting Field–Escandon v. DeMann (1988) 204 Cal.App.3d 228, 234.))

The Mangini Court also discussed at length the purpose of the abatability requirement. As discussed in Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, the assessment of abatability is fundamentally practical—“it would be a rare case in which an alleged nuisance could not be abated were countervailing considerations (such as expense, time, and legitimate competing interests) disregarded.” (Id. at 678.) “[I]n a strictly literal sense even a nuisance represented by an encroaching building or an underlying public utility pipeline might be discontinued or abated, ‘at any time,’ by tearing down the building or digging up the pipeline,” but such situations are to be addressed by “the concept of permanent nuisance, as an exception to the preexisting rule that all nuisances should be treated as abatable and thus continuing.” (Id.) “Regardless of literal abatability, where as a practical matter either abatement or successive lawsuits would be inappropriate or unfair then the nuisance may be regarded as permanent and the plaintiff relegated to a single lawsuit, subject to a single limitation period, for all past and anticipated future harms.” (Id. (emphasis added)) Thus, “[b]ecause a literal answer to the question whether a particular nuisance can be discontinued or abated will not invariably serve the purposes of the rules . . . the discontinued-or-abated rubric should be regarded as no more than a convenient shorthand for the fundamental considerations” of practicality underlying the distinction between permanent and continuing nuisance. (Compare Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 473 (duty is “only an expression of the sum total of those considerations of policy” underlying imposition of liability))

Thus, a nuisance is “abatable”—and thus continuing rather than permanent—where the “nuisance can be remedied at a reasonable cost by reasonable means,” unless “as a practical matter either abatement or successive lawsuits would be inappropriate or unfair” under the circumstances. (Mangini, supra, 12 Cal.4th at 1103.) The varying impact of a nuisance over time may also be sufficient to establish its continuing nature. (Id. at 1100.) Here, Mansfield’s nuisance claim pertains to the carport, retaining wall, and planters on Lipton’s property which encroach on the Grape Place street, reducing its width from 26 feet to 10 feet (together the “Encroachments”). (See FAC, para. 32-71 (nuisance claims)) If it cannot be said that the Encroachments constitute a permanent nuisance as a matter of law, summary adjudication on statute of limitations grounds is improper—the nuisance claims would not necessarily be time-barred as “every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.” (Mangini, supra, 12 Cal.4th. at 1093.)

In Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, the Supreme Court addressed “the requirement that, . . . to avoid the bar of the statute of limitations by demonstrating that the nuisance is ‘continuing’ (or ‘temporary’) rather than ‘permanent,’ the plaintiff must present substantial evidence that the . . . condition is one that is both subject to remediation . . . and that the cost of [remediation] is ‘reasonable.’” (Id. at 1090.) The fundamental rule is that the statute of limitations on a claim based on permanent nuisance “begins to run upon creation of the nuisance” while a claim based on continuing nuisance does not—instead, “[w]here a continuing nuisance is alleged, every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.” (Id. at 1093.) There are two principal tests for distinguishing permanent nuisances from continuing nuisances. The first “crucial distinction between a permanent and continuing nuisance is whether the nuisance may be discontinued or abated”; the difficulty of abatement is relevant, as “reasonable cost [is] a component of ‘abatability.’” (Id. at 1093, 1096, 1100 (“‘abatable’ means reasonably abatable…”)) A second “alternative test of continuing nuisance” is whether the impact of the nuisance “may vary over time.” (Id. (quoting Field–Escandon v. DeMann (1988) 204 Cal.App.3d 228, 234.))

As an initial point, “[i]nterference with the ingress and egress to and from a public street constitutes ‘both a private and a public nuisance and may constitute a special injury actionable by an individual.’” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Mansfield argues the Encroachments interfere with the use of the Grape Place public street by limiting its width by nearly two-thirds. “A private individual may bring an action to abate a public nuisance when the individual suffers harm that is specially injurious to himself.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040.) Thus, the Encroachments may sustain a private claim if the interference with use of Grape Place “is specially injurious” to Mansfield. Mansfield argues the interference is indeed so injurious because government service vehicles, such as “postal service, garbage disposal and fire department” vehicles, are unable to readily access the street due to its narrowed width to the detriment of Mansfield. (Opposition, p. 6; see FAC, para. 48-50.)

Lipton argues the Encroachments constitute a permanent nuisance because (1) they were not “intended to serve a temporary purpose,” (2) the effect of the encroachment does not vary over time, and (3) the “solid structures” at issue are not reasonably abatable in that they “cannot be readily moved or altered.” (Motion, p. 7; Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 595 (“permanent structures such as pipelines, buildings, walls and fences [have been] long considered permanent nuisances for purposes of the three-year statute of limitations.”)) In response, Mansfield argues there is a triable issue of fact as to whether the nuisance caused by the Encroachments is permanent or continuing. (Opposition, p. 5; see Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 980 (“Whether contamination is a permanent or continuing nuisance is generally a question of fact”); accord Starrh, supra,153 Cal.App.4th at 597.)

Specifically, Mansfield argues the nuisance “is continuing in nature” due to “repeated car accidents [and] continual parking and access difficulties suffered by the public and by government service vehicles (e.g., postal service, garbage disposal and fire department etc.) [arising from] the narrowed width of GRAPE PLACE.” (Opposition, p. 6.) Relatedly, Mansfield notes fire trucks and other government vehicles have limited access to the premises, arguing this “constitutes a serious ongoing safety issue to the neighborhood and its residents.” (Opposition, p. 6.) Finally, Mansfield argues the encroachments are indeed abatable by removal based on the City’s action against Lipton and Demolition Order. Mansfield argues Starrh supports her own position as the actual nuisance here is not the mere existence of the Encroachments “but the continuing accidents and safety issues caused by them.” (Opposition, p. 7.) In Starrh, the defendants argued leaking ponds constituted permanent structures, but the court rejected this argument because it “is not the pond's structure that constitutes a trespass”; “[i]nstead, it is the produced water that permeates through the pond that is a trespass.” (Id. at 596-97.)

In reaching the foregoing conclusions, the Court notes the Starrh and Mangini courts’ warnings to “be cautious not to enlarge the category of permanent nuisance beyond those structures or conditions that truly are permanent.” (Starrh, supra, 153 Cal.App.4th at 597; Mangini, supra, 12 Cal.4th at 1104.) “It stressed that, where some means of abatement exist, classifying the trespass or nuisance as permanent will discourage remedial efforts.” (Id.) The Starrh court specifically cautioned against classifying nuisances as permanent where this would allow the offending party “to continue [its] questionable practices with no economic incentive to employ more . . . protective practices.” (Id. (focusing on environmental contamination cases)) Such windfalls should be avoided unless the nuisance arises from “structures or conditions that truly are permanent.”

As set forth above, the Encroachments are not only abatable—the City has already determined the Encroachments must be abated, issued a Demolition Order, and later commenced criminal prosecution of Lipton for misdemeanor violations of the Municipal Code on his property. (Mansfield Decl., Exh. 1 (LADBS Order to Comply directing Lipton to “Demolish and remove all construction work performed without the required permit(s)," specifically identifying the “wood carport,” and to obtain a survey “to determine if carport is encroaching on the public right-of-way”); Supp. Mansfield Decl., Exh. 5 (criminal complaint against Lipton for violations of Municipal Code)) This indicates the nuisance is continuing and should not be time-barred as a practical matter. (Mangini, supra, 12 Cal.4th at 1100 (“If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place…”)) Abatability is the cornerstone of permanence analysis and strongly supports a determination that the nuisance or trespass is continuing in nature. The order for Lipton to abate the Encroachments strongly indicates abatability, as does the ensuing criminal prosecution for failure to do so (albeit to a lesser extent).

Thus, the Court finds the Encroachments are continuing nuisances for purposes of the statute of limitations. Lipton has not established entitlement to summary judgment on the nuisance causes of action. Lipton also argues the declaratory and injunctive relief claims are barred because they are “based on [the] claims for nuisance,” arguing the statute of limitations for nuisance applies to bar equitable causes of action based on the same facts. (Motion, p. 8; Troeger v. Fink (1958) 166 Cal.App.2d 22, 29 (“where the statute of limitations has barred any right to 'coercive' relief, declaratory relief designed to vindicate the same asserted right is likewise barred.”)) For the reasons set forth above, the underlying nuisance claims are not time-barred; Lipton poses no other argument as to the declaratory relief and injunctive relief claims. The Court therefore denies summary adjudication of those claims as well.

Negligence

Mansfield’s negligence claim is based on a hornet attack suffered on April 19, 2018 which landed Mansfield in the emergency room. (FAC, para. 34-36, 39-40, 77-78.) Mansfield alleged the hornets’ nest was located on Lipton’s property and that a handyman retained by Lipton “sprayed poison into the beehive and sealed up the openings,” causing the hornets to “fly[] away from the disturbed nest" and exhibit "a greater aggressiveness,” resulting in the attack. Neither party offers evidence regarding whether poison was indeed sprayed or whether the nest was located on Lipton’s property—indeed, Lipton identifies no “facts” or evidence at all in his Separate Statement, merely arguing he owed no duty as a matter of law. (UMF 6.)

Lipton argues he owed no duty of care to Mansfield to prevent the alleged hornet attack because a landowner is not liable for injuries to others resulting from “an attack by a wild animal indigenous to the area,” arguing the hornet attack was such an attack. (UMF 6.) Lipton relies principally on Brunelle v. Signore (1989) 215 Cal.App.3d 122, 130 fn. 5, wherein the Court of Appeal found “some support for the conclusion that a landowner has no duty to protect against attacks by indigenous animals.” (Id.) The Brunelle court relied on cases addressing “animals ferae naturae,” i.e. wild and indigenous animals not domesticated by the landowner. (Id.)

However, the Court finds this case is controlled by Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, a recent case addressing negligence liability “for insect bites.” The Staats court specifically distinguished Brunelle as “involv[ing] dangers posed by stray insects” rather than “dangers posed by discrete conditions on the property, such as yellow jacket nests, from which dangerous insects emanate.” (Id. at 836). The Staats court concluded the reasoning in Brunelle was “not at odds with recognizing a duty of a property owner to protect against” dangerous conditions on the property, such as hornet nests. (Id.) Thus, a negligence claim may be “based on the [property owner’s] alleged failure to inspect its premises to discover and eradicate [dangerous insect] nests.” (Id.) The court “recognize[d] that the type of animal at issue may affect the policy considerations in weighing whether there is a duty to protect against the risk the animal poses,” noting certain statutory protections for bees, but found “no law or other circumstance, however, suggesting yellow jackets need special protection.” (Id. at 842.)

Staats is directly on point here, and Lipton makes no effort to distinguish it. Instead, Lipton’s Reply cites the same language from Brunelle discussed above and dicta from People v. Kasold (1957) 153 Cal.App.2d Supp. 891 indicating that bees are wild animals for purposes of the doctrine of ferae naturae. (Id. at 892-93; Reply, p. 6-7.) Kasold is irrelevant—as explained in Staats, a nest of bees or hornets may constitute a “discrete condition[] on the property” which the landowner has a duty “to discover and eradicate,” even if the landowner has no duty to control the insects themselves. This rationale is persuasive. Moreover, as noted in Staats, the Legislature has expressed different policies regarding bees compared to other insects—such as hornets. The language in Kasold regarding bees is not necessarily on point in addressing a hornet swarm, as “the type of animal at issue may affect the policy considerations in weighing whether there is a duty.” (Staats, supra, 25 Cal.App.5th at 842.) Lipton has not carried his burden to establish he did not owe Mansfield a duty of care to address dangers emanating from the hornet nest on his property. Thus, Lipton is not entitled to summary adjudication of Mansfield’s negligence claim.

In addition, Lipton argues for the first time in the Reply that Mansfield “has not shown evidence of any actual injury (damages), a necessary element of her claims for negligence and intentional infliction of emotional distress,” arising from the hornet swarm. (Reply, p. 7.) The Court does not consider this argument, as Lipton’s argument is based on an alleged evidentiary conflict nowhere addressed in the Motion or Opposition. (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275-76 (issues raised for the first time in a reply brief should not be considered; an “issue is new if it does more than elaborate on issues raised in the opening brief or rebut arguments made by the respondent.”)) The Motion itself does not argue Mansfield is unable to show damages, nor is this issue addressed in the Opposition. Additionally, the evidence relied upon was introduced for the first time in the Reply even though it plainly could have been introduced with the moving papers. (Shapiro Reply Decl., para. 2 (medical attestation received April 20, 2018, several months before filing of Motion)) Most significantly, it is Lipton’s burden on summary judgment to negate the element of damages by establishing that Mansfield did not incur damages—which Lipton did not do in the Motion or Reply, merely asserting inconsistencies in the evidence. (Scalf, supra, 128 Cal.App.4th at 1519 (“the [moving] defendant must present facts to negate an essential element.”))

 

Infliction of Emotional Distress Claims

Lipton argues the negligent infliction of emotional distress (NIED) claim fails because NIED “is not an independent tort, and cannot be pled as an independent cause of action,” arguing the NIED claim is merely a negligence claim. (Motion, p. 10-11 (“If a claim for negligence cannot be maintained, neither can this claim for negligent infliction of emotional distress. It is superfluous.”)) Lipton argues the NIED claim fails because “Plaintiff has not and cannot meet her burden of showing that Defendant Lipton owed her a duty of care, breached that duty of care, and caused her alleged damages.” (Motion, p. 10.) But as the moving party, Lipton bears the burden here to negate one of those elements. (Scalf, supra, 128 Cal.App.4th at 1519.) Lipton asserts no novel arguments against the NIED claim, arguing he does not owe a duty of care for the same reasons set forth above. Based on the foregoing, Lipton failed to establish he did not owe a duty of care.

Finally, Lipton argues the intentional infliction of emotional distress (IIED) claim fails because “[c]ase law does not support a cause of action . . . for the alleged bee (hornet) attack),” block quoting discussion of the ferae naturae doctrine from Kasold, supra, 153 Cal.App.2d.Supp. at 892-93 and summaries of the law applicable to an IIED claim. (Motion, p. 10-11.) No cognizable argument was posed—it is wholly unclear what element Lipton believes is negated by the doctrine of ferae naturae. The Reply offers no clarification, block quoting Kasold again as well as Brunelle (which is distinguishable here, as discussed, and did not address IIED in any event). (Reply, p. 6-7.) Lipton has not carried his burden to negate an element of Mansfield’s IIED claim and therefore is not entitled to summary judgment.

CONCLUSION

The Motion for Summary Judgment is DENIED.

Plaintiffs to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.