Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV-267966. Sidney P. Chapin, Judge.
Kerry Fritz II, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
OPINION
Kane, J.
Plaintiff Kerry Fritz II filed a complaint against the owner and manager of a café based on alleged occurrences of excessively loud music and obnoxious or indecent behavior that, according to plaintiff, interfered with the quiet enjoyment of his property. The complaint also set forth other miscellaneous claims against various individuals. After a demurrer was sustained with leave to amend, plaintiff filed a first amended complaint that added numerous new parties and new causes of action. The trial court struck the entire first amended complaint on its own motion because the amended pleading (i) greatly exceeded the scope of the trial court’s grant of leave to amend following the sustaining of the prior demurrer; (ii) improperly added new parties and new causes of action that could only be joined by first obtaining leave of the court in a motion to amend; and (iii) was a confused “mess” that failed to comply with the basic pleading requirements of Code of Civil Procedure section 425.10. Although the trial court announced its intention to grant the motion to strike with leave to amend, when plaintiff balked at the idea of filing an amendment that would remove his newly added parties and causes of action, the trial court struck the first amended complaint without leave to amend and dismissed the action. Plaintiff appeals from the judgment of dismissal.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
We sympathize with the difficult task faced by trial courts that must, in ruling on pleading motions in cases such as this one, decide what to make of complaints that narrate a confusing litany of perceived grievances or disappointed expectations, but which for the most part are not structured around legally recognizable causes of action with statements of the essential factual elements of each. We must conclude, however, that although the trial court properly granted its motion to strike the first amended complaint, its abrupt denial of leave to amend and dismissal of the entire action, without notice, was an abuse of discretion. Under the circumstances, leave to amend the first amended complaint on a limited basis should have been allowed. Accordingly, we will reverse the judgment.
In holding that leave to amend should have been allowed, we do not suggest that plaintiff may reassert any cause of action against defendant Cynthia Norris. Her prior demurrer was sustained without leave to amend by the trial court, and that ruling has not been appealed.
FACTS AND PROCEDURAL BACKGROUND
On August 7, 2009, plaintiff filed his original complaint. Plaintiff alleged that a café or restaurant business operating under the name of the Tumbleweed Café was engaged in conduct amounting to a private nuisance, including loud music (“thumping bass”) and other noises; cars and dirt bikes spinning out in front of the premises; drunken men and women engaging in boisterous, lewd and indecent conduct; and people urinating in public. Such noise and offensive conduct allegedly made it impossible for plaintiff to sleep or otherwise peacefully enjoy the use of his property.
Plaintiff’s original complaint also contained multiple other claims, some of which appeared to be tangentially related in some manner to plaintiff’s dispute regarding the conduct in and around the Tumbleweed Café. These other claims were styled by plaintiff as follows: defamation and false light invasion of privacy (against defendant Orchel Krier); intentional and negligent interference with prospective economic advantage (against defendant Orchel Krier); interference with plaintiff’s civil rights by means of threats, intimidation or coercion in violation Civil Code section 52.1 (against defendants Gary Odom and Jeremy Cox); disturbing the peace in violation of Penal Code section 415 (against defendants Charles Barba, Sharon Smith, “Mr. and Mrs. Henry,” David Letterman, and Timothy Patton); false light invasion of privacy (against defendant Kristen Hacker); defamation (against defendant Marvin Martin); theft or conversion of personal property (against defendant Bradley Hodges); forgery (against defendant Bradley Hodges); unlawful assembly in violation of Penal Code section 407 (against defendants Kristin Hacker, Troy and Sharon Smith and Gary Odom); obstruction of justice (against defendant Brandi Wheeler); and violation of general personal rights (against defendant Cynthia Norris).
As this summary reveals, many of the claims alleged in the original complaint were for supposed violations of the Penal Code and the nature of the attempted civil causes of action were not always apparent.
See footnote 2, ante.
On October 27, 2009, defendants Tumble Oak, LLC and Orchel Krier filed a general and special demurrer to plaintiff’s original complaint. The demurrer challenged the cause of action for private nuisance on the following grounds: plaintiff failed to allege any interest in real property as a basis for his right to quiet enjoyment that was allegedly adversely impacted by defendants’ conduct; plaintiff failed to allege defendants’ ownership in or control over the café business; and, plaintiff failed to allege facts showing that the statute of limitations had not expired regarding conduct that, according to the complaint, took place in 2005. Defendant Krier challenged the sufficiency of the causes of action for defamation and false light invasion of privacy on the ground that the alleged statement made by him (i.e., that plaintiff increased the sales price of his home) was plainly not defamatory nor an adequate basis for a false light privacy claim. Additionally, defendants demurred to the claims of negligent and intentional interference with a prospective economic advantage on the ground that essential elements were not alleged, including the existence of a legally sufficient prospective economic advantage with which defendants allegedly interfered, and the specific conduct on the part of defendants that constituted the alleged interference.
On November 24, 2009, the trial court sustained defendants’ demurrer to the original complaint with 30 days’ leave to amend.
On January 4, 2010, plaintiff filed a first amended complaint. The first amended complaint added numerous new parties and new causes of action. The caption of the first amended complaint listed 27 defendants, but even that number was too low as the body of the first amended complaint named many other individuals who allegedly engaged in wrongdoing and who were apparently being sued. The trial court noted there were at least a dozen new parties, but plaintiff said it was more like 15. Most of the purported causes of action were entirely new and were based on different facts or events than were alleged in the original complaint. In total, the first amended complaint contained 47 counts or purported causes of action.
At the subsequent hearing in which the first amended complaint was stricken, the trial court noted there were no “Doe” allegations in the original complaint; therefore, the new parties could not be named as Does.
In the interest of brevity, what follows is only a general overview of some of the newly asserted causes of action in the first amended complaint. Apparently, plaintiff was arrested and was committed for a time to a mental hospital (called Crestwood). His new claims are disjointed and confusing, but as best as we are able to discern, most of them related to events surrounding his arrest and commitment. For example, the first amended complaint alleged in numerous separate counts that the County of Kern (or individual officers or employees thereof) violated due process or equal protection, or were guilty of some other misconduct, based on the following alleged occurrences: the length of plaintiff’s jail term or other confinement was longer than it might otherwise have been because the County of Kern gave to “Crestwood policymaking decisions to keep M.I.S.T. clients as long as the average for other clients”; plaintiff’s jail term was not reduced by certain credits to which he thought he was entitled; plaintiff had to secure a bail bond and was not released on his own recognizance, despite his repeated protests of innocence; plaintiff was placed in a “stigma-plus circumstance” which precluded him from pursuing any profession of choice domestically and/or in other countries, as he is now considered “an un-desirable”; a doctor at a Lerdo interim detention facility did not take an x-ray of plaintiff’s injured back; a sheriff’s deputy allegedly wrote a false report about plaintiff; another sheriff’s deputy arrested plaintiff, but did not arrest the people that plaintiff wanted arrested; plaintiff filed a personnel complaint with the sheriff’s office, but a deputy of which he complained later arrested plaintiff; and deputies in the sheriff’s office took the position that they could not arrest people for merely making obscene gestures at plaintiff or calling plaintiff offensive names.
The first amended complaint also alleged, in claims directed at Crestwood and individual doctors who evaluated plaintiff’s competency, that the doctors were not qualified, did not follow procedures, delayed his return to court and/or were part of a secret conspiracy against plaintiff. Also, the first amended complaint alleged that many public defenders violated duties owed to plaintiff. One public defender allegedly knew of evidence of plaintiff’s competency relating to “whether [plaintiff] went to Indonesia or not,” but failed to investigate further and was part of the secret conspiracy against plaintiff, leading to plaintiff’s involuntary commitment to Crestwood. The Alcohol Control Board was sued because it granted the Tumbleweed Café a license to sell alcoholic beverages even though plaintiff sent the board e-mails warning that barmaids often turn up the jukebox volume and that the neighborhood had inadequate law enforcement. The Taft Police Department was sued because no one would arrest “Mrs. Henry” for giving the extended finger to plaintiff while driving in Taft. Other new counts against individuals who live in plaintiff’s neighborhood were added, such as a claim that Claudia Letterman “breached a duty to the plaintiff to control the actions of the known propensities of the residents” at her residence.
On February 10, 2010, a case management conference was held for the purpose of determining whether the trial court would dismiss parties that had not been served. At the February 10, 2010, hearing, the trial court announced that it was going to strike the first amended complaint and that plaintiff would be given leave to amend on a limited basis. The trial court explained that the pleading did not conform to the basic requirements of section 425.10, which provides that a complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” The first amended complaint was such a confusing “mess” that the trial court was “not going to impose on counsel or any other defendant in this case or the court to try to make sense out of that pleading.” Moreover, the trial court explained that plaintiff had improperly joined new parties and added new causes of action without obtaining leave of court pursuant to a noticed motion to amend, and also that the amendment went “well beyond” the trial court’s grant of leave to amend when the trial court sustained the demurrer to the original complaint. Rather than merely improving or clarifying the causes of action to which demurrer had been sustained, the first amended complaint “morphed into a 50-page pleading” with all sorts of new parties, new claims and government conspiracies.
The trial court was not amused by plaintiff’s pleading tactics: “This is not some sand box to play around in. You will bring your pleadings into conformity with appropriate law, specifically indentifying your particular type of claim, and you will not join causes of action not pled in your original complaint, nor, parties, until you have leave of court to do so.”
As to the limited basis for leave to amend, the trial court explained that “the starting point for that amended pleading is clarification of and nothing beyond what claims were being asserted in the … original complaint.” That would be the first stage. After that was done, plaintiff would be permitted to bring a motion for leave to amend to add new parties or causes of action, and the trial court would then consider those matters. In an effort to assist plaintiff, the trial court informed plaintiff that he would need to identify the causes of action at issue and research the required elements to plead them adequately: “[Y]ou need to … identify the causes of action. Look to pleading books. Do the research. Do what you have to do, but don’t turn the pleading into some sort of cathartic rambling dissertation on everything that you think is wrong with local government, from the City of Taft to the public defender’s office, to the courts in Fresno, or whatever. That’s not what it’s all about. This court won’t tolerate it.”
Plaintiff responded to the trial court’s comments with consternation, indicating that everything that he put in the first amended complaint was necessary and proper. Plaintiff said that he was sure that “case law says you have to put everything in there that I put in there,” and that “[t]his is how the case law says things need to be pled.” At that point, the trial court reminded him that the new claims went beyond anything set forth in the original complaint and would require a motion to amend. When plaintiff persisted, the trial court said: “I’ll give you a choice. [¶] I’m going to strike the pleading with leave to amend, or I’ll strike the pleading without leave to amend and you can take it up to the Fifth District Court of Appeald.” After further back and forth argument, the trial court posed the choice to plaintiff again: “So what would you like to do, sir … [¶] Listen to me. I’m giving you a choice right now. I will give you 20 days leave to file an amended—,” to which plaintiff interjected, “Can’t be done, not with everything—” (Italics added.)
As soon as plaintiff made his “[c]an’t be done” statement, the trial court immediately struck the first amended complaint, with prejudice, without leave to amend, and ordered the case dismissed. A judgment of dismissal was filed on April 19, 2010. Plaintiff timely filed a notice of appeal.
DISCUSSION
1. Overview of Motion to Strike and Standard of Review
We are called upon to review the trial court’s order granting, without leave to amend, a motion to strike the first amended complaint, resulting in dismissal of the action. Under section 436, “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms as it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”
Generally speaking, a motion to strike is used to reach pleading defects that are not subject to demurrer (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1008, p. 420), such as to remove irrelevant or superfluous allegations in a pleading (§ 436, subd. (a)), or to strike an entire pleading due to improprieties in its form or in the procedures pursuant to which it was filed. (§ 436, subd. (b); Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) Section 436, subdivision (b), “is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro v. Camarlinghi, supra, at p. 528.)
In extraordinary cases, a pleading is so unintelligible or so utterly lacking in any basis for a cause of action that the entire pleading may be stricken by the trial court on the ground it does not comply with the basic rule of pleading set forth at section 425.10, subdivision (a), that a complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” (Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631 [where plaintiff sued himself, no basis for cause of action existed].) In such a case, the entire pleading is “not drawn in conformity with the laws of this state” and is therefore subject to motion to strike. (§ 436, subd. (b); Velez v. Smith (2006) 142 Cal.App.4th 1154, 1161.)
Arguably, a more correct vehicle to test the sufficiency of a complaint on the court’s own motion is section 438.
Here, the trial court struck the first amended complaint for a variety of reasons, both procedural and substantive, including that it went beyond the prior order granting leave to amend, it improperly included new parties and causes of action without obtaining permission of the court pursuant to a motion to amend, and it failed to comply with section 425.10. A trial court’s order striking an improper pleading and entering dismissal is ordinarily reviewed for abuse of discretion. (Leader v. Health Industry of America, Inc. (2001) 89 Cal.App.4th 603, 612.) However, since the trial court’s order in this case was based, in part, on plaintiff’s failure to state a cause of action, de novo review is appropriate. As in the case of a demurrer sustained without leave to amend, we consider the matters alleged on the face of the complaint, accept as true the properly pleaded factual allegations, liberally construe the complaint and independently review the trial court’s ruling. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In addition, to the extent we consider the propriety of a trial court’s procedural methodology, especially where principles of due process are implicated, our review is likewise de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801 [where issue requires consideration of legal concepts to be applied and the values that animate legal principles, de novo review is appropriate].)
II. Motion to Strike Was Properly Granted
We agree with the trial court that the first amended complaint was subject to a motion to strike. First, the pleading went beyond the scope of the trial court’s prior grant of leave to amend. When, as here, a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which demurrer was sustained, but that is all. (People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785-786.) Therefore, when the trial court sustained the general and special demurrer by defendants Tumble Oak, LLC and Orchel Krier to the particular causes of action alleged against them, the grant of leave to amend was limited to those causes of action and parties. It was improper for plaintiff to include new parties and new causes of action, as such claims were beyond the scope of the trial court’s order granting of leave to amend. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [scope of leave to amend after demurrer sustained did not include adding new causes of action]; People ex rel. Dept. of Pub. Wks. v. Clausen, supra, at p. 785 [scope of leave to amend after demurrer sustained did not include adding new parties].) Thus, the trial court correctly granted the motion to strike the first amended complaint because it was “not drawn or filed in conformity with … an order of the court.” (§ 436, subd. (b).)
Of course, a court may specify otherwise by granting leave to amend on a broader scale.
Second, and along the same lines, plaintiff could not add new causes of action or new parties without first obtaining leave or permission of the trial court to do so. (Harris v. Wachovia Mortgage, FSB, supra, 185 Cal.App.4th at p. 1023; Taliaferro v. Davis (1963) 220 Cal.App.2d 793, 795.) Plaintiff should have, but did not, file a noticed motion for leave to amend pursuant to section 473, at which time the trial court could have considered those matters. Because plaintiff did not obtain prior permission to file the new claims contained in his first amended complaint, it was “not drawn or filed in conformity with the laws of this state.…” (§ 436, subd. (b).) For this additional reason, the trial court correctly granted the motion to strike.
We are in partial agreement with the third reason for the trial court’s grant of the motion to strike on its own motion, which was that the first amended complaint failed to comply with section 425.10, subdivision (a)(1), that a complaint must set forth a “statement of the facts constituting the cause of action, in ordinary and concise language.” We agree with the trial court that the new causes of action and/or claims adding new parties in the first amended complaint were little more than vague and conclusory narratives of plaintiff’s perceived grievances relating to his arrest, commitment and other events, but which failed to set forth ultimate facts of any recognizable cause or causes of action. As the trial court correctly pointed out, plaintiff must state facts constituting the essential elements of a legally recognizable cause or causes of action. “A complaint must allege the ultimate facts necessary to the statement of an actionable claim.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) In addition, California Rules of Court, rule 2.112, requires that each separately stated cause of action or count “must specifically state: [¶] (1) Its number (e.g., ‘first cause of action’); [¶] (2) Its nature (e.g., for ‘fraud’); [¶] … [¶] [and] (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).” The new claims utterly failed in these respects.
It may be that the reason the trial court struck the entire first amended complaint, and not merely the allegations that added new causes of action and joined new parties, was due to the time and judicial resources that would be needed to sift through plaintiff’s lengthy and confusing pleading to remove the improper allegations. That is, the trial court may have been putting the burden on plaintiff to file a cleaned-up and compliant pleading. Such an approach would clearly have been within the trial court’s discretion in this case, assuming that leave to amend had been granted. However, not only did the trial court strike the entire first amended complaint—including the causes of action that were in the original complaint—but leave to amend was not granted.
We find it unnecessary to decide whether each of the causes of action that were in the original complaint, and which were realleged in the first amended complaint, failed to meet the pleading standard of section 425.10. Since other grounds adequately supported the trial court’s grant of the motion to strike (see above), and because we conclude primarily on procedural or notice grounds that leave to amend should have been allowed in this case (see below), it is unnecessary to undertake a comprehensive scrutiny of these purported causes of action. As will be seen, the crux of the issue before us is not that the trial court granted a motion to strike on its own motion or that it concluded the first amended complaint was pervasively noncompliant with section 425.10, but that it abruptly denied leave to amend and dismissed the entire action in a context in which plaintiff did not have notice or an opportunity to defend. We now turn to those significant matters.
Section 436 expressly allows a trial court to strike all or portions of a pleading on its own motion. Similarly, section 438, subdivision (b)(2), allows the trial court on its own motion to grant a motion for judgment on the pleadings.
III. Denial of Leave to Amend and Dismissal of Action
A. The Trial Court Abused Its Discretion in Denying Leave to Amend
To recapitulate the proceedings that led to dismissal, the trial court, in the context of a case management conference, announced that it was striking on its own motion plaintiff’s first amended complaint, with leave to amend limited to the particular causes of action and parties that were alleged in the original complaint. As to the new claims and new parties set forth in the first amended complaint, the trial court made it clear that such allegations were improper and would be stricken from the pleading for the reasons we have discussed above. Any proposed amendment to add new claims and new parties would only be considered by the trial court in a noticed motion to amend, at which time the trial court would decide whether, or the extent to which, such proposed amendment would be permitted. In other words, the trial court outlined to plaintiff what he would have to do from a pleading standpoint: Namely, file a second amended complaint that removed all the new causes of action and new parties; and, after the second amended complaint was filed, if plaintiff desired to join new claims or new parties, or to make other amendments, then he would have to seek leave of the trial court to do so pursuant to a noticed motion to amend under section 473. We believe that this approach as announced by the trial court was both reasonable and legally sound, and should have been adopted.
We appreciate that the trial court changed course based on statements of plaintiff at the hearing, and we will address that issue in part B. of this section.
When the trial court abruptly changed course, denied leave to amend and dismissed the entire action with prejudice, we believe it reversibly erred due to failure to provide adequate notice and opportunity to respond, which are basic to due process. The trial court did not give the parties advance notice of its intention to grant a motion to strike, to deny leave to amend, or to dismiss the action. Generally, when a motion having such a significant impact on the viability of the case or on the rights of the parties is going to be considered by the court, notice and opportunity to respond are important, if not essential, for purposes of due process. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70 [if trial court considers grounds for summary judgment not raised by the parties, due process requires that parties be given opportunity to respond]; Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 243-244 [notice required for motion to certify class action, due to significant impact on viability of case]; Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1531, fn. omitted [“The court on its own motion may dismiss an action for delay in prosecution … provided that the plaintiff is afforded the same procedural rights he would have if the defendant had made the motion, i.e., notice and an opportunity to oppose”]; McDonald v. Severy (1936) 6 Cal.2d 629, 631 [general rule that notice is required if rights of parties materially affected]; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 7, p. 432 [notice is considered essential in any application affecting the rights of the adverse party].)
Accordingly, we believe that when a trial court strikes a pleading on its own motion without advance notice to the parties of its intention to do so, it should afford an opportunity to amend in all but the most extreme cases, unless it is clear as a matter of law that the pleading cannot be corrected by amendment. This cautionary rule avoids the potential occurrence of a hasty dismissal that terminates the action in violation of due process principles. (See, e.g., Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768-769 [hasty dismissal reversed where trial court “immediately dismissed the action,” despite the fact that the defendants had not requested dismissal in the motion to strike nor had the court given any prior notice it intended to dismiss, and amendment was possible]; Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193 [hasty dismissal violated due process where the plaintiff not notified of potential dismissal if he failed to appear at status conference].) Here, the trial court did not exercise such caution. It struck plaintiff’s first amended complaint without prior notice, then abruptly denied leave to amend and dismissed the case with prejudice. We conclude the trial court erred because the sua sponte determinations that resulted in dismissal of the action were made by the trial court without adequate notice and opportunity to respond.
Alternatively, the trial court could postpone the hearing on the issue of whether to grant leave to amend, and thereby allow the plaintiff a fair opportunity to respond.
Moreover, to highlight the prejudicial nature of that error, we note the dismissal was ordered even though a reasonable possibility for amendment plainly existed with respect to at least one of the causes of action in the original complaint—namely, private nuisance. “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman, supra, 63 Cal.App.4th at p. 768.) “If there is a reasonable possibility a … defect could be cured by amendment, it is ordinarily an abuse of discretion to deny leave to amend, a drastic step which leads to complete termination of the pleader’s action.” (Ibid.; accord, Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1398, fn. 4 [same rule in context of judgment on pleadings].)
The first amended complaint continued to allege a cause of action for private nuisance. It stated that Orchel Krier and Tumble Oak, LLC were the manager and/or owner of Tumbleweed Café, and that said café was operated in a manner that interfered with the quiet enjoyment of plaintiff’s nearby property. The alleged disturbances included excessively loud music; customers of the café being encouraged to unlawfully spin-out in their vehicles or dirt bikes; drunken men and women engaged in loud or disruptive conduct; lewd acts in public and public urination. A nuisance is broadly defined by statute to include the following: “Anything which is injurious to health, … or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.…” (Civ. Code, § 3479.) Examples of interferences with the use and enjoyment of land actionable under a private nuisance theory are legion, and include such disturbances as excessive noise, dust, or vibrations. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041; see People v. Mason (1981) 124 Cal.App.3d 348, 353 [nighttime loud music held to be a nuisance].)
Defendants Krier and Tumble Oak, LLC filed a prior demurrer to the cause of action for private nuisance as alleged in the original complaint. They asserted that plaintiff failed to allege any interest in real property as a basis for his right to quiet enjoyment; plaintiff failed to allege defendants’ ownership in or control over the café business; and, plaintiff failed to allege facts showing that the statute of limitations had not expired regarding conduct that, according to the complaint, began in 2005. The first two of these deficiencies appear to have been cured in the first amended complaint. As to the statute of limitations, it appears that plaintiff has reasonably attempted to plead a continuing or reoccurring nuisance, rather than a permanent one, and his pleading now refers to more recent dates of such occurrences within the three-year statutory period. (See Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1142-1144 [continuing nuisance theory explained]; 5 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 601, p. 779.) Therefore, it appears plaintiff has either adequately stated a cause of action for private nuisance, or if any defects remain, there is a reasonable possibility of curative amendment.
The above discussion regarding private nuisance demonstrates that in denying leave to amend and dismissing the action, the trial court lost sight of the issue of whether a reasonable possibility of amendment existed regarding the causes of action that had been alleged in the original complaint. Such a possibility clearly existed regarding at least one of the causes of action that had been alleged in the original complaint and realleged in the first amended complaint, which confirms the trial court’s hasty dismissal was prejudicial. We now turn to the question of whether plaintiff’s statements at the hearing justified the trial court’s order.
B. Plaintiff’s Statements at the Hearing
After the trial court declared its intention to strike the first amended complaint, including its intention to (1) grant leave to amend limited to the causes of action and parties in the original complaint, and (2) require a successful motion to amend as a prerequisite to adding new claims and parties, plaintiff began to express his disagreement with that result. Plaintiff said that he was sure that “case law says you have to put everything in there that I put in there,” and that “[t]his is how the case law says things need to be pled.” Plaintiff persisted in his belief that he was supposed to “put everything in there,” and he did not see how it could be changed and still remain a proper pleading. This was the context of the last exchange that occurred between the trial court and plaintiff, just before the trial court denied leave and dismissed the action. The trial court stated: “I’m giving you a choice right now. I will give you 20 days leave to file an amended—,” to which plaintiff interrupted, “Can’t be done, not with everything.….”
In the entire context, it appears that plaintiff was mainly reiterating his mistaken view that he was required by case law to “put everything in there that [he] put in there.” That is, his “Can’t be done” statement was primarily one of disagreement over what the law would require and/or allow him to plead, and in light of his mistaken view of the matter, plaintiff did not see how he properly could do otherwise. In essence, plaintiff was disputing the propriety of the trial court’s decision that new causes of action and new parties could not be joined absent court permission pursuant to a motion to amend. In any event, we do not construe plaintiff’s statement in the heat of the moment as a concession that any deficiencies in the pleading noted by the trial court could not possibly be corrected; nor was it a refusal to comply with the trial court’s orders, once issued. We conclude plaintiff’s statement did not, by itself, justify the trial court’s immediate denial of leave and dismissal of the action, at least in the context here of a motion to strike on the court’s own motion where advance notice was not given.
At oral argument, plaintiff said that what he was trying to say was he “needed more time” to comply.
C. Clarification of Disposition
We hold that the trial court’s denial of leave to amend and dismissal of the entire action, without advance notice to the parties or an adequate opportunity to respond, cannot stand. Although the trial court correctly granted the motion to strike the first amended complaint, leave to amend should have been permitted to allow plaintiff to file a second amended complaint as to the particular causes of action that were in the original complaint and were realleged in the first amended complaint. On remand, the trial court should enter a new order granting leave to file such a second amended complaint. If such an amended pleading is timely filed, plaintiff may thereafter seek leave of the trial court to make further amendments by a motion under section 473. In the context of such a motion, plaintiff is not foreclosed by the disposition of this appeal from requesting permission to join new causes of action or parties, including claims based on the new matters that were improperly added to the first amended complaint (and stricken by the court). Of course, the outcome of any such motion would be left to the trial court’s sound discretion, to be exercised under well-established principle.
Of course, once the second amended complaint is filed, parties who are served with the amended pleading may challenge its sufficiency by appropriate motion, including demurrer or motion to strike. And, of course, the trial court would have discretion to deal with a deficient pleading on its own motion, upon adequate notice, pursuant to sections 436 and 438.
Although we reverse, we do so primarily on notice or procedural grounds. The trial judge faced a difficult task. Despite his best efforts to explain in what manner plaintiff’s pleading was inadequate, plaintiff continued to insist that his pleading was legally sufficient. Plaintiff was wrong. His pleading was deficient in several respects and thereby subject to a motion to strike. But plaintiff was entitled to have notice and an opportunity to respond before his action was dismissed. For this reason we reverse.
DISPOSITION
The judgment of dismissal and the order denying leave to amend are reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Each party shall bear their own costs on appeal.
WE CONCUR: Levy, Acting P.J., Gomes, J.