Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. SC090100, Allan J. Goodman, Judge.
Law Offices of Joel F. Tamraz and Joel F. Tamraz for Plaintiff and Appellant.
Douglas Caiafa; Law Offices of Richard C. Wise II and Richard C. Wise II for Defendants and Respondents.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff Peter Chao appeals from a judgment of dismissal in favor of defendants Tulin Parlar Shannon and Timothy Shannon based upon the sustaining of a demurrer without leave to amend. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises out of the relationship between two homeowners owning condominiums that are adjacent to one another. Defendants Tulin Parlar Shannon and Timothy Shannon (Shannons) are the owners of the first floor units, units 1 and 7, at 2641 Fourth Street in Santa Monica, which serve as the foundation for plaintiff Peter Chao’s (Chao) second floor unit condominium.
On November 15, 2004, the Shannons filed an action against 2641 Fourth Street Homeowners Association, Shannon et al. v. 2641 Fourth Street Homeowners Association, Inc. (Super. Ct. L.A. County, No. SC083493) (Shannon Complaint). The Shannon complaint alleged, inter alia, causes of action for breach of fiduciary duty, breach of CC&R’s and negligence. On January 31, 2005, the Shannons filed a first amended complaint alleging essentially the same claims (Shannon FAC). Chao was a named defendant in the Shannon Complaint and FAC. The Shannon FAC alleged that Chao engaged in improper and defective construction in his unit and in the common areas, which resulted in damage, including significant water intrusion into the Shannons’ units. Additional allegations were made against the 2641 Fourth Street Homeowners Association, Inc. (HOA) for failing to discharge their duties, for treating the Shannons in an unlawful manner and for failing to maintain the common areas.
On May 11, 2005, the HOA, Chao, and April Moskowitz, president of the HOA, filed a cross-complaint against the Shannons for breach of contract, injunctive relief, declaratory relief, intentional infliction of emotional distress, and breach of fiduciary duty (Chao Cross-complaint).
The Chao Cross-complaint sought damages against the Shannons for making structural alterations to the interior of their units and to a common area balcony, including electrical and plumbing work, the removal of bearing walls, adding windows to the exterior walls and greatly expanding the size of existing windows, which affected the support for Chao’s unit, causing subsidence of his floor and walls. The work was done without the permission of the HOA, without any permits from, or inspection by, the City of Santa Monica, and without any engineering study or approval. Chao also complained that the subsidence of the unit caused him fear and trepidation, and that the failure to vent unit 7 caused fumes from the kitchen stove, under plaintiff’s bedroom, to leak into his bedroom and poison him. The Chao Cross-complaint further alleged that the Shannons filed false police reports claiming that they were accosted and threatened by Chao. Further, there were allegations of breach of fiduciary duty against Tulin Parlar Shannon, an officer and director of the HOA. The Chao Cross-complaint was never served, however. Instead, on June 20, 2005, the HOA filed a first amended cross-complaint. Chao was not a cross-complainant and his claims against the Shannons were not included in the cross-complaint.
On March 9, 2006, the Shannons entered into a settlement agreement with the HOA and Chao. Under the terms of the settlement, Chao and the HOA agreed to pay the Shannons $315,000 and agreed to make specified repairs and improvements.
On June 19, 2006, Chao filed the instant action, making the identical allegations as in the Chao Cross-complaint. The action was to abate a nuisance and for damages for nuisance, for intentional and negligent infliction of emotional distress, negligence, injunctive relief, and declaratory relief.
Chao also filed a notice of related action, stating that his new complaint “contains common issues of fact and law, and relate to the same or similar issues that are contained within Case No. SC083493.” The notice of related case action stated that “[t]here are duplications in evidence that will be eliminated by relating the two cases together, and trying the two cases together, including the following: [¶] 1. Whether [the Shannons’] condominium . . . undermine [sic] [Chao’s] unit; [¶] 2. Whether [the Shannons] have interfered with [Chao’s] right to occupy his premises . . .; [¶] 3. Whether the construction that was done in Units 1 and 7 were [sic] done with permits and in accordance with law[; and] [¶] 4. Whether Unit 7 is a ‘bootlegged unit’ and is properly vented.”
On August 7, 2006, defendants filed a notice of motion to strike and a demurrer. The demurrer was made on the ground that Chao’s new action was based on claims arising from the same transaction that served as the basis for the Chao Cross-complaint in the prior action.
In response, on August 31, 2006, Chao filed a first amended complaint (FAC) to abate a private nuisance and for damages, for intentional and negligent infliction of emotional distress, negligence, and for injunctive relief. The FAC was based upon matters and nuisances that occurred subsequent to the filing of the Chao Cross-complaint in the prior action, including nuisances of a continuing nature, such as the continued destruction of the underpinnings of Chao’s condominium unit by the Shannons; high levels of noise directed at Chao via radios, stereos, and other devices for numerous consecutive days and nights, sometimes for 24 hours a day; the Shannons’ continuously summoning police and falsely stating to police officers that Chao was attacking the Shannons and that Chao had injured the Shannons’ condominium unit; and other nuisances that caused Chao to seek medical assistance for the harm suffered by him as a result of the distress that was caused by the Shannons.
On September 5, 2006, the date set for hearing on the demurrer to the original complaint, the trial court declined to rule on the demurrer to the original complaint and instead set a hearing on a demurrer to the FAC for September 19, 2006, 11 days away, over Chao’s objection. It set a schedule for the filing of the demurrers and responses thereto, of which Chao requested written notice, but for which written notice was never given.
On September 11, 2006, the Shannons filed a demurrer to the FAC and a motion to strike the FAC, both on the ground the FAC was based on the same transaction as Chao’s Cross-complaint in the first action. Chao filed opposition to the demurrer and motion to strike. On September 15, 2006, Chao filed objections to the hearing on the demurrer and motion to strike because written notice had not been served, and Chao’s attorney did not recall the date and schedule set by the trial court due to the chaotic nature of the hearing on September 5, 2006. However, in spite of the objections, the trial court sustained the demurrer to the FAC, finding that the five causes of action alleged against the Shannons by Chao in this action were compulsory as to the Shannons in the prior action. The trial court entered a judgment of dismissal of the action on September 27, 2006.
DISCUSSION
A. Standard of Review
The court should not sustain a demurrer without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Plaintiff bears the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.)
On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, we assume the truth of the complaint’s properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) We also consider matters which have been or may be judicially noticed. (Ibid.; Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, fn. 3.) We review the trial court’s ruling de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.)
B. Whether the Trial Court Properly Sustained the Demurrer
1. Continuing Nuisance
Chao contends that the actions complained of are continuing nuisances which give rise to a new cause of action each time an act occurs. Therefore, Chao asserts, the nuisances could not be alleged as compulsory counterclaims, because the acts complained of had not occurred at the time he filed the Chao Cross-complaint in the first action. Therefore, he stated a claim for relief, and the trial court erred in sustaining the Shannons’ demurrer.
Code of Civil Procedure section 426.30 provides, in relevant part: “Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.”
In sustaining the Shannons’ demurrer to the FAC, the trial court ruled: “The five causes of action alleged against the Shannons by Chao in this action were compulsory as to the Shannons in the earlier-filed action, viz., SC083493. See, Code of Civil Procedure section 426.10[, subdivision] (c). By failing to prosecute these causes of action via cross-complaint in SC083493, Chao forfeited them. Code of Civil Procedure section 426.30; Carroll v. Import Motors[, Inc.] (1995) 33 Cal.App.4th 1429, 1435-38.”
We first note that Code of Civil Procedure section 426.30 applies even though Chao dismissed the Chao Cross-complaint in the prior action. Carroll v. Import Motors, Inc., supra, 33 Cal.App.4th 1429 holds that a voluntary dismissal of a prior action does not preclude the application of section 426.30. “To permit the dismissal and refiling of an action to function as an automatic exception to the compulsory cross-complaint requirement would encourage just the kind of piecemeal litigation [Code of Civil Procedure] section 426.30 is intended to prohibit.” (Id. at p. 1436.)
The question thus is whether Chao’s causes of action in the FAC could have been alleged in the Chao Cross-complaint in the prior action, barring Chao from raising them here. We first address Chao’s contention that the trial court erred in sustaining the demurrer to his first cause of action for nuisance, in that he alleged a continuing nuisance which could not have been raised in the Chao Cross-complaint in the prior action.
In Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, the court noted that there are two types of nuisance. A permanent nuisance is one “where ‘“by one act a permanent injury is done, [and] damages are assessed once for all.”’ [Citations.]” (Id. at pp. 868-869.) Permanent nuisances generally involve solid structures encroaching on plaintiff’s land, and plaintiff must bring one action to recover all damages from the encroachment, past, present and future. (Id. at p. 869.)
A continuing nuisance is one where “a use may be discontinued at any time.” (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.) In the case of a continuing nuisance, “persons harmed by it may bring successive actions for damages until the nuisance is abated. [Citation.] Recovery is limited, however, to actual injury suffered prior to commencement of each action.” (Ibid.) Continuing nuisances generally involve ongoing or repeated disturbances, such as those caused by noise, vibration or noxious emissions. (Ibid.)
In his FAC, Chao alleges a nuisance beginning in the year 2000. Specifically, paragraph 5 alleges tortious acts occurred in the year 2000 to mid-2006, and paragraph 12 alleges such acts occurred from September 2003 to 2005 and thereafter. He seeks to undo construction which occurred and was completed prior to his filing of the Chao Cross-complaint. Specifically, he seeks to require the Shannons to “reconstruct Units 1 and 7 and place them in the condition that existed prior to the destruction and the removal of the vertical and lateral support for [Chao’s] . . . unit, to restore the walls in [the Shannons’] condominium in the condition that they existed prior to removing said walls and placing of windows in said walls to undermine [Chao’s] unit, . . . and to cause [Chao’s] foundation to be safe and able to withstand earthquake, landslide, and storm damage, as it previously existed prior to the destruction by defendants.”
In part, Chao is seeking to undo acts of a permanent nature, which occurred at specific times in the past and caused injury at the time they occurred. The acts cannot be easily abated or discontinued at any time. They are the essence of a permanent nuisance. (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at pp. 868-869.) That the injury has not yet been remedied does not transform the nuisance from permanent to continuing. (See ibid.)
To the extent Chao has alleged a permanent nuisance which occurred before the filing of the Chao Cross-complaint in the prior action, he was required to make the allegations in that cross-complaint. His failure to do so bars raising them in this action. (Code Civ. Proc., § 426.30.)
To the extent Chao has alleged acts constituting a nuisance, either permanent or continuing, which may have occurred or caused injury after the filing of the Chao Cross-complaint, his cause of action is not barred. He therefore should be given leave to amend his nuisance cause of action to specify the acts or injuries as to which a cause of action may be stated. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
2. Injunction
An “[i]njunction is an equitable remedy available to a person aggrieved by certain torts . . . on a showing of . . . inadequacy of the remedy at law.” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 778, p. 235.) For a plaintiff to plead adequately a cause of action for injunction, he must plead an underlying “tort or other wrongful act constituting the cause of action” as well as the “grounds for equitable relief of this kind, i.e., a showing of inadequacy of the remedy at law.” (Id., § 779, p. 236.)
To the extent Chao can state a cause of action for nuisance, he may also be able to state a cause of action for injunctive relief. He therefore should be granted leave to amend that cause of action as well. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
C. Whether the Trial Court Properly Denied Leave to Amend the Remaining Causes of Action
Chao makes no contention that the trial court erred in sustaining the Shannons’ demurrer to his remaining causes of action. Any such contention therefore is waived. (Title G. & T. Co. v. Fraternal Finance Co. (1934) 220 Cal. 362, 363; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, pp. 627-629.)
Chao does assert, however, that the trial court should have granted leave to amend the complaint. He represented, in both his reply brief and at oral argument, that he could clarify the allegations of his complaint to state causes of action against the Shannons that are not barred by the Chao Cross-complaint in the prior action. We briefly discuss each of the remaining causes of action.
The elements of a cause of action for intentional infliction of emotional distress are: “‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress [caused] by the defendant’s outrageous conduct. . . .”’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) It is reasonably probable that Chao can amend his complaint to allege extreme and outrageous conduct by the Shannons intended to cause Chao severe emotional distress, and that Chao did, in fact, suffer severe emotional distress due to their conduct. The trial court therefore abused its discretion in denying leave to amend this cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
Negligent infliction of emotional distress is not an independent tort but merely the tort of negligence, with the traditional elements of duty, breach, causation and damages. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) A cause of action for negligent infliction of emotional distress lies only where plaintiff suffers serious emotional distress “as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’” (Id. at p. 1073.) That relationship must be a preexisting, consensual relationship giving rise to a legally protectable interest in being free from emotional distress caused by another’s negligent conduct. (Bro v. Glaser (1994) 22 Cal.App.4th 1398, 1441.)
The only preexisting relationship between Chao and the Shannons that appears in the allegations of the FAC is that they own adjoining condominiums. This is not a consensual relationship giving rise to a duty of care. It thus does not appear reasonably possible that Chao can amend to state a cause of action for negligent infliction of emotional distress, so leave to amend was properly denied as to this cause of action. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
Chao implicitly acknowledges that his cause of action for negligence is vague and uncertain, in that he alleges negligent acts occurring from 2000 to mid-2006. He argues that the uncertainty can be cured by amendment, however, and the trial court therefore abused its discretion in denying him leave to amend that cause of action. We agree that the uncertainty can be cured by amendment, and Chao should be given the opportunity to amend. (See 5 Witkin, Cal. Procedure, supra, Pleading, § 943, pp. 400-401.)
DISPOSITION
The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the Shannons’ demurrer without leave to amend and to enter a new and different order granting leave to amend as to Chao’s causes of action for nuisance, injunctive relief, intentional infliction of emotional distress and negligence. Chao is to recover costs on appeal.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.