Louis Accaria vs. Von Housen Management Inc, a California corporation

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver

34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 07/08/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 8D

and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

***NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 25 WILL BE HEARD IN DEPARTMENT 8D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE OR GORDON D. SCHABER COURTHOUSE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION.***

TENTATIVE RULING:

Defendant George Grinzewitsch, Jr., Inc. dba Mercedes-Benz of El Dorado Hills’s (“Defendant”) motion for summary judgment and/or summary adjudication is ruled upon as follows.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendant’s 67 Undisputed Material Facts will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence already in the record which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Background

This action arises out of a car fire, which spread to the home of Plaintiffs Louis Accaria, Jr., Emily Trowe, and Kali Mullock’s, a minor by and through her Guardian ad Litem, Michelle Gregory (“Plaintiffs”).

On October 4, 2021, Plaintiffs took their 2017 Mercedes-Benz GLC43 (the “Vehicle”) to Defendant for routine service, including an oil change. Unbeknownst to Plaintiffs, one of Defendant’s mechanics failed to replace the Vehicle’s oil cap. (First Amended Complaint (“FAC”) ¶¶ 13, 15.)

After the service appointment, Trowe drove the Vehicle home with Mullock as a passenger. Accaria followed behind in a separate car. (FAC ¶ 15.) Trowe parked the Vehicle in their garage, and she and Mullock exited the Vehicle. Accaria arrived at about

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the same time and exited his car. Shortly thereafter, the Vehicle’s engine compartment burst into flame. The fire spread, causing damage to Plaintiffs’ home. (FAC ¶ 16.)

Plaintiffs filed their initial Complaint on April 12, 2023, alleging (1) negligence, (2) nuisance, and (3) trespass against Von Housen Management, Inc. and Von Housen’s Motors (together, “Von Housen”). On August 23, 2023, Plaintiffs filed an amendment to their complaint, substituting Defendant to the Complaint in place of Doe 1.

On February 26, 2025, Plaintiffs’ home insurance company, Nationwide Mutual Insurance Company (“Nationwide”), filed a separate complaint against Defendant asserting a single cause of action for negligence.[1] (Declaration of Ronald L. Carello, Exh. 12, Complaint in 24CV003313 [“Nationwide Action”].) The Complaint in the Insurer Action alleges that Insurer paid $318,845.87 to Plaintiffs “for property and related damages” to Plaintiffs’ home and became equitably and contractually subrogated to the rights of Accaria. (Ibid.) The Insurer dismissed its claim with prejudice on November 14, 2024. (Carello Decl., Exh. 16.)

Meanwhile, Defendant and Von Housen filed a motion for judgment on the pleadings against Plaintiffs’ initial Complaint. This Court partially granted that motion on September 10, 2024, finding that Plaintiffs’ cause of action for nuisance relied on the same underlying facts as their cause of action for negligence and therefore failed as a matter of law. (Order, Sept. 10, 2024.)

Plaintiffs then filed the operative First Amended Complaint (“FAC”) on September 20, 2024. The FAC states causes of action for (1) nuisance and (2) trespass, thereby omitting the cause of action for negligence. The FAC also dropped Van Housen as a defendant.

This matter is currently set for trial on October 5, 2026.

Moving Papers. Defendant moves for summary judgment or summary adjudication in the alternative on the grounds that the FAC is barred by collateral estoppel from resolution of the Nationwide Action, that property damages are barred by res judicata or collateral estoppel, that discovery responses do not support any claim for damages in emotional distress or lost wages, and that Plaintiffs’ nuisance and trespass claims cannot support emotional distress damages.[2] In support of its motion for summary judgment, Defendant asserts 67 Undisputed Material Facts (UMFs).

In the alternative, Defendant presents sixteen issues for summary adjudication. For analytical purposes, the Court groups the sixteen issues as follows:

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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Collateral Estoppel of Claims by the Nationwide Action: Issues 1 and 2

 Issue 1: The first cause of action for nuisance is barred because Plaintiffs are collaterally estopped from pursuing the action based on the resolution of the Nationwide Action (Plaintiffs’ insurer).

 Issue 2: The second cause of action for trespass is barred because Plaintiffs are collaterally estopped from pursuing the action based on the resolution of the Nationwide Action (Plaintiffs’ insurer).

Preclusion of Property Damages: Issues 3 and 4

 Issue 3: The Plaintiffs are not entitled to recover monetary damages for physical damage to personal and real property because of res judicata based on the resolution of the Nationwide Action (Plaintiffs’ insurer).

 Issue 4: The Plaintiffs are not entitled to recover monetary damages for physical damage to personal and real property because of collateral estoppel based on the resolution of the Nationwide Action (Plaintiffs’ insurer).

Physical Injuries: Issues 5, 9, and 13

 Issue 5: Plaintiff Louis Accaria, Jr., is not entitled to recover damages for physical injury (separate from emotional distress) because the discovery responses do not support the claim.

 Issue 9: Plaintiff Emily Trowe is not entitled to recover damages for physical injury (separate from emotional distress) because the discovery responses do not support the claim.

 Issue 13: Plaintiff Kali Mullock, a minor, is not entitled to recover damages for physical injury (separate from emotional distress) because the discovery responses do not support the claim.

Emotional Distress Damages in Nuisance: Issues 6, 10, and 14

 Issue 6: Plaintiff Lous Accaria, Jr., is not entitled to recover damages for emotional distress because the cause of action for nuisance does not allow for recover [sic] of emotional distress damages under the facts of this case.

 Issue 10: Plaintiff Emily Trowe is not entitled to recover damages for

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emotional distress because the cause of action for nuisance does not allow for recover [sic] of emotional distress damages under the facts of this case.

 Issue 14: Plaintiff Kali Mullock, a minor, is not entitled to recover damages for emotional distress because the cause of action for nuisance does not allow for recover [sic] of emotional distress damages under the facts of this case.

Emotional Distress Damages in Trespass: Issues 7, 11, and 15

 Issue 7: Plaintiff Lous Accaria, Jr., is not entitled to recover damages for emotional distress because the cause of action for trespass does not allow for recover [sic] of emotional distress damages under the facts of this case.

 Issue 11: Plaintiff Emily Trowe is not entitled to recover damages for emotional distress because the cause of action for trespass does not allow for recover [sic] of emotional distress damages under the facts of this case.

 Issue 15: Plaintiff Kali Mullock, a minor, is not entitled to recover damages for emotional distress because the cause of action for trespass does not allow for recover [sic] of emotional distress damages under the facts of this case.

Lost Wages: Issues 8 and 12

 Issue 8: Plaintiff Lous Accaria, Jr., is not entitled to recover damages for lost wages because the discovery responses do not support the claim.

 Issue 12: Plaintiff Emily Trowe is not entitled to recover damages for lost wages because the discovery responses do not support the claim.

Mullock’s Property Damages: Issue 16

 Issue 16: Plaintiff Kali Mullock, a minor, is not entitled to recover damages for property damage because the discovery responses do not support the claim.

Opposition. Plaintiffs argue that both nuisance and trespass claims allow emotional distress damages, that their statement of damages does not limit their claims, that they are not estopped from claiming property damages for which their insurer has not reimbursed them, that they are entitled to damages for past and future medical expenses and that determining physical injuries is premature when Plaintiffs have not yet been deposed. Plaintiffs also argue that they continue to assert a negligence theory, which separately allows emotional distress damages.

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In support of their arguments, Plaintiffs submit Additional Material Facts (“AMFs”), numbered 68 through 105. Plaintiffs also dispute UMFs 2, 28, 35, 54, and 57–67 as “immaterial and irrelevant.”[3]

Plaintiffs concede that they do not seek damages for lost wages and that Mullock does not seek property damages. (See Plf’s Separate Statement at pp. 9, 13, 15 [failing to dispute that Accaria and Trowe do not seek lost wages and that Mullock does not seek property damages].)

Reply. In Reply, Defendant argues that all Plaintiffs’ claims for damages fail and must be summarily adjudicated.

Defendant submits a “Reply Separate Statement in Response to Plaintiffs’ Additional Material Facts.” The summary judgment statute specifically prohibits any separate statement in reply. (Code Civ. Proc., § 437c, subd. (b)(4)). Because a party opposing summary judgment need show only the existence of a triable issue of material fact, additional material facts are considered “disputed” on summary judgment even when the moving party does not affirmatively dispute them. (Id. § 437c, subd. (b)(3).) The Court does not consider this filing.

Defendant submitted evidentiary objections to Plaintiffs’ Declaration, Exhibit K (Fire Department Incident Report) and a statement in Plaintiffs’ Declaration, Exhibit B (Declaration of Emily Trowe). The Court finds these objections not material to disposition of this motion and declines to rule on them. (Code Civ. Proc., § 437c, subd. (q).)

Legal Standard

In evaluating a motion for summary judgment, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create

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issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden. A defendant moving for summary judgment bears a burden of production to make a prima facie case that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [citing Code Civ. Proc., § 437c, subd. (p)(2)].)

If the moving party has met its initial burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or affirmative defense claimed. (Code Civ. Proc., § 437c, subd. (p); Aguilar, supra, 25 Cal.4th at pp. 850–851.) To do so, the party must produce evidence to controvert the asserted undisputed material facts or set forth additional disputed facts. (Code Civ. Proc., § 437c, subd. (b)(3).)

While a motion for summary adjudication is treated largely the same as one for summary judgment, there are a few important differences. One of these is California Rules of Court, rule 3.1350(b), which mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another is that summary adjudication can be granted only if the motion 'completely disposes' of a cause of action, affirmative defense, claim for punitive damages, or question of duty. (Code Civ. Proc., § 437c, subdivision (f)(1).) In contrast, a motion for summary judgment can be granted only against an entire “action or proceeding.” (Id. § 437c, subd. (a)(1).)

Finally, in ruling on the motion, the Court must consider the evidence, and inferences reasonably drawn therefrom, in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried and that the party is entitled to judgment as a matter of law. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

Discussion

Collateral Estoppel of Claims by the Nationwide Action: Issues 1 and 2

Defendant asserts collateral estoppel of Plaintiffs’ claims as Issues 1 and 2 in its Notice of Motion but does not argue these issues in its Memorandum of Points and Authorities.

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Defendant instead goes directly to its Issues 3 and 4, arguing that property damages are barred by the Nationwide Action. (MPA, at pp. 8:21–10:5 [“The Nationwide Mutual Insurance Company Action That Was Dismissed with Prejudice is Dispositive of the Property Damages Claim”]; 11:18-12:2.) Further, the substantive legal arguments that follow are each directed at specific damage categories and not at the entire causes of action for nuisance or trespass. (See MPA, §§ III.B; III.C.; Reply at p. 1:21–22 [“This Motion for Summary Adjudication contends that not all damages claimed are recoverable by Plaintiffs.”].)

Defendant has failed to support Issues 1 and 2 with citations or argument. A court need not consider an issue lacking in reasoned, substantial argument and citation to supporting authority. (Woods v. Horton (2008) 167 Cal.App.4th 658, 677.) Moreover, the Court does not furnish legal arguments for a party. (See KCSFV I, LLC v. Florin County Water Dist. (2021) 64 Cal.App.5th 1015, 1031; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)

Accordingly, Defendant fails to meet its initial burden, and Defendant’s motion for summary adjudication of Issues 1 and 2 is DENIED.

Summary Adjudication of Types of Damages

All of Defendant’s remaining issues are directed at particular types of damages:  Preclusion of Property Damages: Issues 3 and 4  Physical Injuries: Issues 5, 9, and 13  Emotional Distress Damages in Nuisance: Issues 6, 10, and 14  Emotional Distress Damages in Trespass: Issues 7, 11, and 15  Lost Wages: Issues 8 and 12  Mullock’s Property Damages: Issue 16

A court can grant summary adjudication only when a motion 'completely disposes' of a cause of action, affirmative defense, claim for damages, or question of duty. (Code Civ. Proc., § 437c, subd. (f).)

In support of its contention that “summary adjudication of the individual damages claimed is proper,” Defendant cites to Code of Civil Procedure section 437c(f)(1), which provides:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense

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to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

In DeCastro West Chodorow & Burns, Inc. v. Super. Ct. (1996) 47 Cal.App.4th 410, 412, the Court addressed “whether Code of Civil Procedure section 437c, subdivision (f)(1), permits summary adjudication with respect to only one of two or more components of compensatory damages claimed by plaintiff, so that the granting of the motion will not completely dispose of a cause of action.” The Court concluded “that section 437c, subdivision (f)(1), does not permit summary adjudication under such circumstances, and the trial court properly denied defendants’ motion for summary adjudication on that ground.” (Ibid.)

While the Court acknowledged that the initial framing references “one or more claims of damages,” it held that such reference is “still qualified by, and limited to, punitive damages.” (Id. at p. 421.) Further, with respect to the phrase “claim for damages” in the second sentence, the Court held that “in order to give effect to the first sentence of subdivision (f)(1), the second sentence must also be read in conjunction with the first sentence, so that the reference to ‘a claim for damages’ must be qualified as referring to the previously defined claim from punitive damages.” (Ibid.)

As such, the Court held that summary adjudication is not permitted as to “only one component of the damages element of a cause of action, which does not dispose of the entire cause of action.” (Id. at p. 419, 422.)[4]

As such, the motion for summary adjudication is not properly before the Court and must be denied unless the motion will completely dispose of a cause of action.

Plaintiffs assert two causes of action: nuisance and trespass. All of Defendant’s remaining issues for summary adjudication relate to types of damages that may or may not be recoverable.

Trespass

“Trespass is an unlawful interference with possession of property.” [Citation.] The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.

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(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.) “[T]respass may be committed by consequential and indirect injury as well as by direct and forcible injury.” (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1305–1306.) “The interference need not take the form of a personal entry onto the property by the wrongdoer. Instead, it ‘may be accomplished by the casting of substances or objects upon the plaintiff's property from without its boundaries.’ [Citation.]” (Id. at p. 1306.) The Court of Appeal in Elton followed out of state authority in holding that “a fire can constitute a trespassory invasion.” (Id. at p. 1307) “When negligently inflicted with resulting actual damage, [fire] may constitute a trespass.” (Ibid.)

Nominal damages are available in trespass without showing actual damages, so long as the plaintiff proves some physical damage to the property based on intangible intrusion. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406; see Elton, supra, 50 Cal.App.4th at p. 1307.)

Plaintiffs demonstrate a triable issue of material fact on the issue of physical damage to their property: “As a result of the ensuing fire, Plaintiffs’ home was damaged.” (AMF 84.) Even if Defendant successfully showed that Plaintiffs could not prove any actual damages, Plaintiffs could be awarded nominal damages. Defendant will not be able to dispose of the trespass action.

Further, it is “indeed settled” that emotional distress damages are recoverable in trespass and nuisance cases. (Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1348.) As the Hensley Court explained:

Our high court and lower courts have long held that once a cause of action for trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance. (Acadia, California, Limited v. Herbert (1960) 54 Cal.2d 328, 337, 5 Cal.Rptr. 686, 353 P.2d 294 [“It is settled that, regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance”]; Herzog v.

Grosso (1953) 41 Cal.2d 219, 225– 226, 259 P.2d 429; Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 271–272, 288 P.2d 507 (Kornoff); Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1607, 146 Cal.Rptr.3d 585; Hassoldt v. Patrick Media

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Group, Inc. (2000) 84 Cal.App.4th 153, 172, 100 Cal.Rptr.2d 662, disapproved on another ground in People v. Rogers (2013) 57 Cal.4th 296, 330–331, 159 Cal.Rptr.3d 626, 304 P.3d 124; Armitage v. Decker (1990) 218 Cal.App.3d 887, 905, 267 Cal.Rptr. 399 [“The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass”]; Koll–Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1042, fn. 3, 29 Cal.Rptr.2d 664 [“Damages for emotional distress can be recovered in an action for private nuisance”; citing cases]; Smith v.

County of Los Angeles (1989) 214 Cal.App.3d 266, 287–288, 262 Cal.Rptr. 754 [“‘[M]ental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment’”; citing Acadia, supra, 54 Cal.2d at p. 337, 5 Cal.Rptr. 686, 353 P.2d 294]; Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232, 239–240, 169 Cal.Rptr. 174; Alonso v. Hills (1950) 95 Cal.App.2d 778, 780, 786–788, 214 P.2d 50.)

This is so even where the trespass or nuisance involves solely property damage. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn. 10, 25 Cal.Rptr.2d 550, 863 P.2d 795 [“precedent in the law of nuisance and trespass establishes quite clearly that emotional distress without physical injury is compensable”; citing cases]; Acadia, California, Limited v. Herbert, supra, 54 Cal.2d at p. 337, 5 Cal.Rptr. 686, 353 P.2d 294; Kornoff, supra, 45 Cal.2d 265, 288 P.2d 507; Alonso v. Hills, supra, 95 Cal.App.2d at pp. 786–788, 214 P.2d 50 [plaintiff suffered “distress in ... mind, ... mental anguish and discomfort, annoyance, fright and shock” by reason of blasting operations that caused weakened structural integrity to the building, exterior cracks to the building and walls, damage to windowsills and frames, and leaking plumbing].)

(Id. at pp. 1348–1349.)

The Court finds that Plaintiffs have presented a triable issue of fact regarding emotional distress damages (Issues 7, 11, and 15.). Plaintiffs declare that the fire disrupted their daily routines and sleep habits, causing strain, stress, and anxiety. (AMFs 87, 88, 89.) Accaria and Mullock have incurred expenses for mental health counseling. (AMF 102.)

Because Plaintiffs have raised triable issues of fact regarding nominal damages and emotional distress damages with respect to their trespass claim, there is no basis for finding summary adjudication as to this cause of action, as the remaining damages arguments would not completely dispose of the case.

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Accordingly, Defendant’s motion for summary adjudication as to any issue of damages regarding Plaintiff’s trespass cause of action is DENIED.

Nuisance: Emotional Distress Damages (Issues 6, 10, and 14)

“[T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) “In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient.... In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements....” (Ibid.) “The first additional requirement for recovery ... on a nuisance theory is proof that the invasion of the plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’” (Id. at p. 303.) “The second additional requirement for nuisance is superficially similar but analytically distinct: ‘The interference with the protected interest must not only be substantial, but it must also be unreasonable.’” (Ibid.)

Damages/harm are an essential element of the cause of action for nuisance. (Wilson v. Southern Cal. Edison Co. (2018) 21 Cal.App.5th 786, 802.)

If Defendant can show that there is no triable issue of fact on any of Plaintiffs’ claims for damages, an essential element of the nuisance claim would be negated; in other words, for Defendant to succeed on any portion of this motion, Defendant must completely negate the element of damages for Plaintiffs’ nuisance claim.[5] If so, the motion would completely dispose of the cause of action. However, the Court finds Plaintiffs’ claim for emotional distress damages to be dispositive (Issues 6, 10, and 14).

As set forth above, Plaintiffs declare that the fire disrupted their daily routines and sleep habits, causing strain, stress, and anxiety. (AMFs 87, 88, 89.) Accaria and Mullock have incurred expenses for mental health counseling. (AMF 102.)

Defendant attempts to distinguish Hensley as depending on the exacerbation of a preexisting physical malady. (MPA, at p. 15:9–18.) Hensley is clear however: “[F]ear, stress and anxiety suffered as a direct and proximate result of [the trespass] are compensable as damages for annoyance and discomfort.” (Hensley, supra, at p. 1351.) This holding did not depend on exacerbation of the plaintiff’s physical condition or the physical injury.

Defendant asserts that Plaintiffs’ Complaint and Statement of Damages alleged only general damages and that Plaintiffs did not check a box for “Emotional Distress.” (UMFs

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22, 35, 48.) According to Defendant, this precludes Plaintiffs from now claiming emotional distress damages. However, it is “well-settled” that, in a contested case, “a plaintiff may secure relief different from or greater than that demanded in the complaint.” (Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 39.) Likewise, while a plaintiff is “limited by his section 425.11 statement of damages when a default is taken [citation], he is not so limited when an answer is filed and the case proceeds to trial.” (Id. at p. 41.) Furthermore, the FAC seeks damages for “fear, worry, annoyance, disturbance, inconvenience, mental anguish, emotion distress, [and] loss of quiet enjoyment in property.” (AMF 103.) Defendant cannot reasonably be surprised by Plaintiffs’ request for emotional distress damages or state that it is outside the scope of the pleadings.

Defendant argues that emotional distress damages without physical injury are not available for this nuisance claim “based on one set of facts which are basically negligence.” (MPA, at p. 14:12–15:2.) Because the nuisance claim is “basically negligence,” Defendant contends, the rules limiting emotional distress damages in negligence claims when there is no physical injury should apply to this nuisance claim.

Courts have recognized the substantial overlap between negligence claims and nuisance claims. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 103–104.) “When negligent conduct interferes with another’s free use and enjoyment of his or her property, nuisance liability arises.” (Contra Costa County v. Pinole Point Properties, LLC (2015) 235 Cal.App.4th 914, 924.) On some facts, a party may successfully assert that a nuisance claim is an improper “clone” of a negligence claim when both negligence and nuisance claims are pled.[6] (El Escorial Owners’ Assoc. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

But Defendant has not provided any authority for the separate proposition that a court on a motion for summary judgment may treat a nuisance claim as though it were a negligence claim, when only a nuisance claim is pleaded. Indeed, Hensley rejected a similar argument. There, the defendant argued that emotional distress damages should not be permitted “for a ‘negligent’ trespass or nuisance involving property damage” and that the court should recognize “policies generally restricting emotional distress damages.” (Hensley v. San Diego Gas & Electric Co., supra, 7 Cal.App.5th at pp. 1341, 1348.) The Court was not persuaded, holding that emotional distress damages are available in nuisance “even where the trespass or nuisance involves solely property damage.” (Id. at 1349.)

The Complaint alleges a cause of action for nuisance, not negligence. Defendant’s motion did not raise and argue any issue attacking the nuisance cause of action as a whole. As such, the Court treats the cause of action as one in nuisance. Causes of action for nuisance allow for recovery of emotional distress damages and Plaintiffs have

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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presented evidence to raise a triable issue of fact regarding such damages. Accordingly, Defendant has failed to meet its initial burden, and the motion for summary adjudication of Issues 6, 10, and 14 is DENIED.

Because Plaintiffs have raised triable issues of fact regarding emotional distress damages with respect to their nuisance claim, there is no basis for finding summary adjudication as to this cause of action, as the remaining damages arguments would not completely dispose of the case.

Accordingly, Defendant’s motion for summary adjudication as to any issue of damages regarding Plaintiff’s nuisance cause of action is DENIED.

Disposition

Defendant’s motion for summary judgment or in the alternative summary adjudication is DENIED.

This minute order is effective immediately. Pursuant to California Rules of Court, rule 3.1312, Plaintiffs shall prepare an appropriate order which conforms to Code of Civil Procedure section 437c, subd. (g).

[1] Defendant’s unopposed request for judicial notice is GRANTED for the purposes

appropriate for judicial notice. (Evid. Code, § 453, subd. (a); Johnson & Johnson v. Super. Ct. (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not the truth of the statements contained therein].) [2] Defendant’s notice of motion states the grounds for the motion are “that the

undisputed material facts establish that Defendants involved in the incident at the subject property, located at 790 Mindoro Court in El Dorado Hills, CA, where the subject incident occurred. Plaintiff cannot establish Defendant created a nuisance or committed a trespass during the incident on the subject property. Therefore, Plaintiff cannot establish a necessary element of their First and Second cause of action asserted for nuisance and trespass.” (Not. of Mot., p. 2:1–6.) Some words or phrases may have been inadvertently omitted from these sentences.

Regardless, Defendant’s issues as particularly stated for adjudication and as argued in its Memorandum of Points & Authorities do not seem to support these sentences. Plaintiffs responded to the arguments in Defendant’s Memorandum of Points and Authorities, and the Court will rule on the arguments the parties presented. [3] All or most of these “disputes” are improper evidentiary objections within the Separate

Statement that are thereby waived. (Cal. Rules of Court, rules 3.1352, 3.1354(b).) Regardless, the Court need not rule on evidentiary objections when the dispute or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 07/08/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 8D

objection is not material to disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).) [4] The Court notes that the provisions of section 437c(t) could provide a mechanism for

such relief, but (1) Defendant did not move upon this section; and (2) the Parties did not complete the procedural prerequisites to such a motion. To summarize, subdivision (t) requires (1) the parties’ joint stipulation and (2) preapproval of the Court before a party may file a motion directed solely at claims for damages (other than punitive damages) unless the motion will completely dispose of a cause of action, an affirmative defense, or an issue of duty.

The purpose of restricting summary adjudication to complete disposal of an issue is for judicial economy, not for the benefit of the parties. (Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 242.) This same purpose is clear in Section 437c, subdivision (t), in that both parties must jointly stipulate that the motion will further the interest of judicial economy. For this reason, the Court finds that the procedures of Section 437c, subdivision (t), are not waived by Plaintiff’s failing to raise the issue.

Further, the Court recognizes that if it were to grant summary judgment on a ground not raised by the moving party, due process would require the opposing party an opportunity to respond. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 70.) Here, as set forth herein, the Court denies the motion. [5] This appears to be Defendant’s theory of their motion as well. (Reply, at p. 1:22–23

[“If all damages are not recoverable, then Summary Judgment must be entered.].) [6] Defendant made such an argument in its motion for judgment on the pleadings.