Kim Choy vs. Ali Pakzad

Demurrer to Complaint

Cal. Super. - 4th Dist.November 28, 2017

O O 0 9 O N n n b h W N = N N N N N N N N N N N = ) m m e m e m e m e m p d p m e m p m R X N N O N n n b h W N = O V N D R E W I N D = o o MICHAEL B. KUSHNER (State Bar No. 196224) JONATHAN P. SCHMIDT (State Bar No. 293290) JAMES D. DECKER (State Bar No. 306879) Kushner Carlson A Professional Law Corporation 85 Enterprise, Suite 310 Aliso Viejo, CA 92656 Telephone: (949) 421-3030 Telecopier: (949) 421-3031 Attorneys for Defendants THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE KIM CHOY, an individual; Plaintiff, vs. ALI PAKZAD and PAM PAKZAD,individually and as trustees of the PAKZAD FAMILY TRUST dated August 9, 2002; and DOES 1-100, inclusive; Defendants. Case No.: 30-2017-00958042 The Honorable Frederick P. Horn, Dept. C32 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT February 7, 2018 1:30pm C32 Date: Time: Dept.: November 28, 2017Complaint Filed: N/ATrial Date: [Concurrently-filed with the Declaration of Jonathan P. Schmidt; and Motion to Strike] TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on the above-referenced date and time, or as soon thereafter as may be heard, in Department C31 of the Orange County Superior Court located at 700 Civic Center Drive West, Santa Ana, CA 92701, the demurrer of defendants Ali and Pam Pakzad, both individually and as trustees of the Pakzad Family Trust dated August 9, 2002 (“Defendants”) to plaintiff Kim Choy’s (“Plaintiff”) Complaint will come on for hearing (the “Demurrer”). 1 DEMURRER TO COMPLAINT O O 0 9 O N w n R R W O N = N N N N N N N N O N = e m e m e m e m e m e m e m e m e m 0 3 O N W n BR A W I N D = O V O N Y R E W I N D = O This Demurrer is based upon Plaintiff’s failure to allege facts sufficient to state a cause of action for which judgment may be granted. (See Code Civ. Proc. § 430.10(e).) Moreover, the Complaintis fatally uncertain, vague and ambiguous. (See Code Civ. Proc. § 430.10(f).) This Demurreris also based upon this Notice, the attached Memorandum of Points and Authorities, and all other pleadings and documents on file, including any motions and orders, and upon such additional materials or argument set forth at the hearing on this matter. Dated: January 5, 2018 KUSHNER CARLSON, PC MJCHAEL B. KUSHNER ATHAN P. SCHMIDT AMES D. DECKER Attorneys for Defendants 2 DEMURRER TO COMPLAINT O O 0 9 O N n n B s W N N N N N N N N N O N m m m m e m e m e m e d e m e m e d N O N N n n B R A W N = O O N N N R W = O DEMURRER TO THE COMPLAINT Defendants hereby demur to Plaintiff’s Complaint as set forth below: PLAINTIFF’S FIRST CAUSE OF ACTION FOR “DAMAGES FOR TRESPASS” Plaintiff’s cause ofaction for “Damages for Trespass” fails to state a cause of action for which relief may be granted against Defendants. (See Code Civ. Proc. § 430.10(e).) Plaintiff’s cause of action for “Damages for Trespass”is also uncertain. (See Code Civ. Proc. § 430.10(%).) PLAINTIFF’S SECOND CAUSE OF ACTION FOR “INJUNCTIONS RESTRAINING TRESPASS” Plaintiff’s cause of action for “Injunctions Restraining Trespass” fails to state a cause of action for which relief may be granted against Defendants. (See Code Civ. Proc. § 430.10(¢).) Plaintiff’s cause of action for “Injunctions Restraining Trespass”is also uncertain. (See Code Civ. Proc. § 430.10(f).) PLAINTIFF’S THIRD CAUSE OF ACTION FOR “INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS” Plaintiff’s cause of action for “Intentional Infliction of Emotional Distress”fails to state a cause of action for which relief may be granted against Defendants. (See Code Civ. Proc. § 430.10(e).) Plaintiffs cause of action for “Intentional Infliction of Emotional Distress”is also uncertain. (See Code Civ. Proc. § 430.10(f).) Dated: January 5, 2018 KUSHNER CARLSON, PC by ay= MICHAELB.KUSHNER JONATHAN P. SCHMIDT AMES D. DECKER Attorneys for Defendants 3 DEMURRER TO COMPLAINT O O 0 N N O N O n B A W O N N D N N N N N N N N N = m b e m e m p m e m p m e m p m © I A n n BR A W N = O V 0 N N D R A W N R S MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION The Court should sustain the Demurrerto all three causes of action because Plaintiff fails to state facts and legal grounds sufficient to support his claims. Specifically, the Court should sustain the Demurrer because: (1) Plaintiff fails to plead the requisite elements for his first cause of action for “Damages for Trespass,” and he fails to distinguish between general trespass and trespass to timber; (ii) Plaintiff’s second cause of action for “Injunctions Restraining Trespass” is a remedy for injunctive relief and not a proper cause of action; and (iii) Plaintiff fails to allege sufficient facts to show the outrageous conduct element underhis third cause of action for “Intentional Infliction of Emotional Distress.” As a result, Plaintiff’s three causes of action fail as a matter of law. IL. STATEMENT OF RELEVANT FACTS On November 28, 2017, Plaintiff filed the Complaint in the above-captioned matter. The Complaintalleges three causes of action: (i) “Damages for Trespass”; (ii) “Injunctions Restraining Trespass”; and (iii) “Intentional Infliction of Emotional Distress.” The causes of action in the Complaint stem from Defendants allegedly entering Plaintiff’s neighboring property and damaging his eucalyptus trees. Plaintiff personally served the Complaint and an attached Summons on the Defendants on December 7, 2017. On December 27, 2017, Defendants’ counsel sent a “meet and confer” correspondence to Plaintiff’s counsel via regular mail. (Decl. of Schmidt, §2.) Theletter details the procedural deficiencies in the Complaint and Defendants’ intention to file the Demurrer. (Decl. of Schmidt, 2.) Plaintiff’s counsel did not respond. (Decl. of Schmidt, § 3.) Defendants’ counsel followed the correspondence with a telephone call to the numberlisted on the Complaint for Plaintiff’s counsel, which went unanswered. (Decl. of Schmidt, § 3.) Defendants subsequently filed the Demurrer. III. A DEMURRER MUST BE SUSTAINED IF DEFECTS ARE APPARENT ON THE FACE OF THE COMPLAINT Code of Civil Procedure section 430.10 states in pertinent part that: 4 DEMURRER TO COMPLAINT O O 0 J O& O N n b h W N = N N N N N N N N N m e e m e m e d e m m k p m e m p m p e 0 9 O N n n B R W I N D R O Y O Y N N N D N E E W N N = R o o The party against whom a complaint or cross-complaint has been filed may object, by demurrer...to the pleading on any one or more of the following grounds: ogg (e) The pleading does not state sufficient facts to constitute a cause of action. (f) The pleading is uncertain. As used in this sub-division, “uncertain” includes ambiguous and unintelligible. In ruling on a demurrer, the trial court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) It is therefore proper to sustain a demurrer without leave to amend when it is improbable for a cause of action to be properly stated. (Wilner v. Sunset Life Ins. Co., (2000) 78 Cal.App.4th 952, 958-959.) IV. THE DEMURRER IS BOTH TIMELY AND PROCEDURALLY APPROPRIATE Code of Civil Procedure section 430.40 states that a demurrer may be taken to a complaint within thirty (30) days after service of the complaint. Plaintiff personally served the Complaint on Defendants on December 7, 2017. As such, this Demurrer is timely. In addition, Code of Civil Procedure section 430.10 allows a party to file a demurrer to a complaint when: (i) the pleading does not state facts sufficient to constitute a cause of action; and (ii) the pleading is uncertain - the definition of which includes ambiguous and unintelligible. (Code Civ. Proc. §§ 430.10(e) and (f).) The Demurrer is thus procedurally proper. Code of Civil Procedure section 430.41(a) requires the parties to “meet and confer” and for the demurring party to file an accompanying declaration stating either: (i) the means by which the demurring party met and conferred with the pleading party, and that the parties did not reach a resolution; or (ii) that the party subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. As shown in the concurrently-filed Declaration, Defendants “met and conferred” with Plaintiff via written correspondence and by attempted telephone conference, and Plaintiff did not respond. (See Decl. of Schmidt, 49 2-3.) Defendants had no choice but to file the Demurrer. 5 DEMURRER TO COMPLAINT O O 0 I O N U n B A W N N N N N N N N N N N N N = r m o m p d p m p e e m pe d p m e m 0 N N L L B R A W N = O N O D N R E W N = o V. PLAINTIFE’S FIRST CAUSE OF ACTION FOR “DAMAGES FOR TRESPASS” FAILS BECAUSE PLAINTIFF DOES NOT PLEAD THE ELEMENTS OF GENERAL TRESPASS OR TRESPASS TO TIMBER The elements for a claim for generaltrespass are: (i) that plaintiff owned or possessed the real property; (ii) that defendant intentionally, recklessly, or negligently entered plaintiffs property; (iii) that plaintiff did not consent to the entry; (iv) that plaintiff was harmed; and (v) that defendant’s entry was a substantial factor in causing plaintiff’s harm. (McRae v. Blakeley (1906) 3 Cal.App. 171, 174; CACI No. 2000 (Rev. June 2013).) The elements for a claim oftrespass to timber are the same, except with an additional element for damage to trees. (See Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645; see also Civ. Code § 3346.) In the Complaint, Plaintiff pleads the following under his first cause of action for “Damages to Trespass”: (i) “[a]s a proximate result of defendant’s conduct as herein alleged, plaintiff is informed and believes and thereon alleges that he has been damaged in a sum equal to the diminution in value to plaintiff’s estate, in an amount according to proof”; (ii) “Defendants” wrongful destruction of the TREESon plaintiff’s property violated Civil Code §3346”; and (iii) [a]s a proximate result of defendant’s conduct as herein alleged, plaintiff is entitled to recover damages oftreble in the amount of the actual detriment, pursuant to Civil Code §3346.” Nowhere does Plaintiff plead the elements for ownership, intent, consent, or whether any alleged entry was a substantial factor in causing harm to Plaintiff. Plaintiff also does not detail whether the first cause of action is a claim for generaltrespass or trespass to timber as described above. Instead, Plaintiff incorporates an assortment of factual allegations that are not tethered to any defined or pleaded element, which renders the first cause of action fatally uncertain. (See Code Civ. Proc. § 430.10(f).) Thefirst cause of action must be pleaded more particularly so as to afford Defendants the opportunity to defend themselves. 111 111 6 DEMURRER TO COMPLAINT O o 0 J O N n n B R W N [N S N S " I S E S E e e a e e a a e e 0 N N n n B R A W N Rm , O O N N N N R E W N = O VI. PLAINTIFF’S SECOND CAUSE OF ACTION FOR “INJUNCTION RESTRAINING TRESPASS” FAILS BECAUSE AN INJUNCTION IS A REMEDY AND NOT A CAUSE OF ACTION Plaintiff also improperly pleads a second cause of action for “Injunctions Restraining Trespass,” which is not an actual cause of action. “Injunctive relief is a remedy, not a cause ofaction. [Citations omitted.] A cause of action must exist before a court may grant a request for injunctive relief.” (Ivanoffv. Bank ofAmerica, N.A. (2017) 9 Cal.App.5th 719, 734; Allen v. City ofSacramento (2015) 234 Cal.App.4th 41, 65; City ofSouth Pasadena v. Dept. ofTransportation (1994) 29 Cal.App.4th 1280, 1293.) Because Plaintiff pleads a remedy for a continuing trespass as his second cause of action, it must necessarily fail at the demurrer stage as a matter of law. VII. PLAINTIFF’S THIRD CAUSE OF ACTION FOR “INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS” FAILS BECAUSE PLAINTIFF DOES NOT PLEAD SUFFICIENT FACTS TO SHOW THE ELEMENT OF OUTRAGEOUS CONDUCT The elements for a claim for intentional infliction of emotional distress are: (i) that defendant’s conduct was outrageous; (ii) that defendant intended to cause emotional distress or knowingly and recklessly caused such distress in the plaintiff; (iii) that plaintiff suffered severe emotional distress; and (iv) that defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; CACI No. 1600.) To prove the element of “outrageous conduct,” a plaintiff needs to allege conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Cochran, supra, 65 Cal.App.4th at pp. 494-99 [discussing several examples of decisions where a defendant’s conduct was deemed sufficiently outrageous, including despicable racial and discriminatory firings, fraud and public ridicule, and physical threats].) In the Complaint, Plaintiff fails to plead any facts that would sufficiently show the element of “outrageous conduct.” Plaintiff simply pleads an insufficient, general allegation that “[a]ll of defendant’s conduct, as alleged above, was extreme and outrageous and done with the intent to inflict severe emotional distress upon plaintiff.” Nowhere does Plaintiff plead any allegations of physical 7 DEMURRER TO COMPLAINT O O 0 9 a n n B h W O N N O N N N N N N O N N O N m m e m e m e m e m e m e m e d © 9 A L L B R A W N = , O D N N N N W N = o threats, racial epithets or discriminatory conduct, any fraud and subsequent public ridicule, or any allegations of outrageous conduct whatsoever. As a result, the third cause of action should be stricken without leave to amend. VIII. CONCLUSION Based on the foregoing, Defendants respectfully request that the Court sustain the Demurrer to all three causes of action in Plaintiff’s Complaint. Dated: January 5, 2018 By: KUSHNER CARLSON, PC - 8 MICHAELS. KUSHNER JONATHAN P. SCHMIDT AMES D. DECKER Attorneys for Defendants DEMURRER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 foregoing is true and correct. PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 85 Enterprise, Suite 310, Aliso Viejo, CA 92656. On January 5, 2018, I served the following document(s) described as follows: NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT On the following interested parties in this action: Eric S. Canfield, Esq. Feldsott Lee Pagano & Canfield 23161 Mill Creek Drive, Suite 300 Laguna Hills, CA 92653 Tel: (949) 729-8002 Fax: (949) 729-8012 Attorneysfor Plaintiff VIA MAIL -- CCP §1013(a). I caused a true copy of said document(s) to be placed in a sealed envelope, addressed as above and placed for collection and processing under the firm’s ordinary course of business. Iam readily familiar with Kushner Carlson’s practice of collecting, processing and depositing correspondence for mailing. Under this practice, envelopes would be deposited with the United States Postal Service at Aliso Viejo, California the same day with postage thereon fully prepaid. I declare under penalty ofperjury, under the laws of the State of California that the Proof Of Service