Bingham v Hutchinson

As alleged in the SAC: Bingham resides in a condominium at 63 Seaview Drive, Montecito (Residence). (SAC, P. 3.) The Residence is owned by CB Trust (CB Trust). (Ibid.) Bingham is the sole trustee of CB Trust. (SAC, P. 19.) The Residence is located directly below another condominium at 69 Seaview Drive (Upstairs Property). (SAC, P.P. 2-3.) The Upstairs Property is owned by Defendant Hutchinson Trust. (Ibid.) Pamela A. Lankowski (Lankowski) is the trustee of Hutchinson Trust. (SAC, P. 22.) Until January 12, 2026, the tenants residing in the Upstairs Property were a family of four, consisting of two young children and their parents (Prior Tenants). (SAC, P.P. 1, 2, 5.) The Prior Tenants are not parties to this action.

Defendant Association is a California nonprofit organization. (SAC, P. 24.) The owners of the 99 condominiums located in Montecito Shores, including Plaintiff CB Trust and Defendant Hutchinson Trust, are members of the Association. (Ibid.) "The Association is incorporated as a nonprofit corporation organized under the California Nonprofit Corporation Law. The Association is created for the purpose of managing [Montecito Shores] and is charged with the duties and granted the powers prescribed by law and set forth in the Governing Documents." (SAC, Ex.

A at p. 14 [Sec. 3.1].) "Every Owner, upon becoming an Owner, shall automatically become a Member of the Association. Ownership of a Condominium is the sole qualification for membership. Each Member shall have the rights, duties, privileges, and obligations set forth in the Governing Documents." (SAC, Ex. A at p. 14 [Sec. 3.2].) " 'Owner' means the record owner(s) of fee simple title to a Condominium within the Development, including contract sellers but excluding those Persons having an interest in a Condominium merely as security for performance of an obligation." (SAC, Ex.

A at p. 7 [Sec. 1.25].)

For an approximate two-year period in late 2023 or early 2024 and continuing until January 12, 2026, there was ongoing and disturbingly loud noise emanating from the Upstairs Property and permeating through the insufficiently soundproofed flooring in the Upstairs Property (Alleged Noise). (SAC, P. 1, 7.) The Alleged Noise was primarily coming from the activity and volume of two young boys--children of the Prior Tenants--running and playing throughout Upstairs Property during all hours of the day. (SAC, P.P. 5-7.) Bingham was also forced to listen to one of the Prior Tenants' children crying at various hours of the night and into the early morning when the child was brought into the bedroom of the Upstairs Property located directly above Bingham's bedroom. (SAC, P. 6.)

Contributing to the Alleged Noise was an illegally enclosed and non-permitted balcony (Balcony) located directly above the living space of the Residence. (SAC, P.P. 4-8.) The Balcony failed to conform to the requirements of Section 5.4 of the Covenants, Conditions, and Restrictions (CCRs) of the Association. (Ibid.)

On March 29, 2024, Bingham first provided formal notice to the Association of the Alleged Noise and non-permitted Balcony. (SAC, P. 30.) On August 2, 2024, Bingham arranged for an appraisal of the Residence after the passing of her husband. (SAC, P. 31.) While present in the Residence, the appraiser noted the Alleged Noise. (Ibid.) According to the appraiser, unless abated, the Alleged Noise would result in a $220,000 reduction in the value of the Residence (7 percent). (Ibid.)

October 6, 2024, Bingham emailed Lankowski, trustee of Hutchinson Trust, bringing to her attention the Alleged Noise and seeking permission to have an inspection done of the Upstairs Property flooring and Balcony. (SAC, P. 34.)

On October 8, 2024, Bingham reached out to Ray Sims (Sims), president of the Association board, requesting that he intervene and have the flooring and Balcony inspected. (SAC, P. 34.) On October 8, 2024, Bingham left one of the Prior Tenants a note on his front step, seeking access to the Upstairs Property for inspection. (SAC, P. 36.) The Prior Tenant replied with an email denying access and requesting that Bingham communicate with the property manager only. (Ibid.) In response to the Prior Tenant's denial of access, Bingham asked him to at least prevent the little boy from running and yelling in the house. (Ibid.) Bingham received no response to her request. (Ibid.)

On October 16, 2024, Bingham reached out to Sims, requesting documentation related to the permitting of the Balcony. (SAC, P. 37.) On October 24, 25, and 26, 2024, Bingham corresponded with Association board members Bessie Kouvara and Joel Mendelson regarding the Alleged Noise and shared with them a sound recording. (SAC, P. 29.) Both agreed that the Alleged Noise was irritating and unacceptable. (Ibid.)

On October 30, 2024, in advance of a meeting of the Association board that was set to take place that same date, Bingham, who was then one of the five members of the board, sent an email to the other four members proposing a detailed course of action to remedy the Alleged Noise. (SAC, P. 38.)

On November 7, 2024, Bingham contacted counsel for the Association and asked for a written statement confirming a commitment to address the Alleged Noise. (SAC, P. 42.)

On December 9, 2024, Bingham received an email from counsel for the Association detailing what the Association had obtained in terms of documentation related to the Alleged Noise and inquiring whether Bingham wanted the Association to file a complaint with the County. (SAC, P. 43.) Bingham did not see this email until December 23, 2024. (Ibid.)

On December 23, 2024, Bingham and counsel for the Association corresponded by email. Association counsel informed Bingham that a complaint could be filed with the County and asked whether she wanted the Association to file a complaint. (SAC, P. 44.) On December 24, 2024, Bingham informed counsel for the Association that, due to an injury she sustained and the holiday season, she wished to wait until after the holidays to determine the best course of action. (SAC, P. 45.)

On January 16, 2025, with the holidays now behind her, Bingham reached out to counsel for the Association seeking to obtain documents and information that she could share with Lankowski in the hope of resolving the Alleged Noise without the need for a formal complaint with the County. (SAC, P. 46.)

On February 5, 2025, Bingham requested Association counsel to coordinate an inspection of the Upstairs Property to determine if the Balcony is code-compliant, whether proper soundproofing is installed, and whether the carpet and padding is sufficiently dense. (SAC, P. 51.) With this information, Bingham planned to approach Lankowski in the hope of informally resolving the Alleged Noise. (Ibid.) Bingham received no response. (Ibid.)

On February 22, 2025, the annual meeting of the Association took place, marking the end of Bingham's term as a member of the Association board. Bingham chose not to seek reelection based on the advice of her doctor. (SAC, P. 42.)

Two days later, on February 24, 2025, after Bingham was no longer on the Association board and unbeknownst to her at the time, someone filed a complaint with the County related to the non-permitted Balcony. (SAC, P. 54.) Between February 24, 2025, and March 27, 2025, and also unbeknownst to Bingham, it appears that negotiations took place between Lankowski and the County pertaining to the Balcony. Lankowski requested and received an extension to the abatement schedule that may extend the deadline for Hutchinson Trust to rectify the non-permitted Balcony. (SAC, P. 55.)

On March 31, 2025, Bingham first learned of the complaint that had been filed with the County. (SAC, P. 56.) That same day, Bingham filed her own complaint with the County pertaining to the Alleged Noise and Balcony. (Ibid.)

On April 2, 2025, an inspector for the County visited Bingham at the Residence and confirmed the lack of adequate soundproofing in the Upstairs Property based on the data the County had collected and the noise recordings he heard. (SAC, P. 58.)

On April 30, 2025, Bingham obtained a redacted copy of the complaint someone filed with the County, but with the identity of the person who filed the complaint redacted. (SAC, P. 59.) There is no mention of the Alleged Noise in the complaint--only a one-line statement that the Balcony of was non-permitted. (Ibid.) After inquiring as to the possibility of contesting the abatement schedule, noise issues, and other aspects of the unknown person's complaint with the County, a representative of the County informed Bingham that the issue was out of the County's hands and that her recourse was to file a civil action. (SAC, P. 60.)

In May 2025, Bingham provided further evidence to the Association pertaining to the Alleged Noise demonstrating the issue was real and significant. (SAC, P.P. 63-65.)

In September and December 2025, Bingham learned that the Hutchinson Trust is seeking an "as-built" permit for the Balcony and that the building plans propose to install tile on the floor of the Balcony. (SAC, P.P. 61-62.) This violates the Association rules which require wall-to-wall padding and carpet for second and third floor units for all areas except the entry, bathrooms and kitchen. (SAC, P. 62.)

On June 2, 2026, Defendant Association filed a demurrer to the SAC on the grounds that the SAC fails to state a COA against the Association. Plaintiffs oppose this demurrer. Defendant Hutchinson Trust did not take a position on the demurrer.

On June 12, 2026, Defendant Hutchinson Trust filed an answer generally denying the allegations in the SAC and also filed a motion to strike allegations of emotional distress damages in the SAC. Plaintiffs oppose the motion to strike on the grounds that the theory of private nuisance permits the recovery of such damages. Defendant Association did not take a position on the motion to strike.

Analysis

(1) Standard on Demurrer

"Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we ... assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial Court to sustain a demurrer if the Plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the Court to sustain a demurrer without leave to amend if the Plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247).

"The reviewing Court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.)

"[I]n ruling on a demurrer the trial Court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)

(2) Association's Demurrer to First COA for Private Nuisance

The elements of private nuisance are: "First, the Plaintiff must prove an interference with its use and enjoyment of its property. Second, the invasion of the Plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the Plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land." (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

"The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the Defendant may be liable." (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100.)

"The only parties who can be liable for a nuisance are 'the party who maintains the nuisance' as well as 'the party or parties who create or assist in its creation.' " (Kaura v. Stabilis Fund II, LLC (2018) 24 Cal.App.5th 420, 434 (Kaura), internal quotation marks omitted.)

"[L]iability for nuisance does not hinge on whether the Defendant owns, possesses or controls the property [creating the nuisance], nor on whether he is in a position to abate the nuisance; the critical question is whether the Defendant created or assisted in the creation of the nuisance." (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38 (City of Modesto).)

As alleged in the SAC, Bingham resides at the Residence owned by the CB Trust for which Bingham is the sole trustee. For an approximate two-year period, Bingham was deprived of the quiet use and enjoyment of the Residence due to the Alleged Noise. The Alleged Noise caused Bingham constant fatigue, stress, anxiety, and emotional distress, and interrupted sleep. As a result, Bingham also allegedly sustained economic and reputational harm. The SAC also alleges that the Residence's value was reduced because of the Alleged Noise. The SAC has alleged an unreasonable interference with the use and enjoyment of a property interest.

As to whether the Association may be liable for causing this interference, " '[t]he conduct necessary to make the actor liable for ... a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the ... private interest.' [Citation.] ... A connecting element to the prohibited harm must be shown." (San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. (2019) 36 Cal.App.5th 427, 436 (SDG&E).)

Here, the SAC does not allege that the Association directly created the Alleged Noise. Rather, the Alleged Noise was created by the Prior Tenants of the Upstairs Property. The SAC alleges that the Association assisted in the creation of the Alleged Noise by failing to act to enforce the CCRs. The SAC alleges that section 5.3(j) of the CCRs states that "no owner shall engage in any nuisance or do any act which unreasonably threatens the health, safety, and welfare of other residents of [the Association]" and section 12.2 states that "every act or omission that violates the Governing Documents, in whole or in part, is declared to be and constitutes a nuisance."

The Association argues it had no duty to Bingham, who is not a member of the Association in her individual capacity, to enforce the CCRs for her benefit. The Association cites the line of cases indicating that "tenants ... have no legal standing to maintain a complaint that [an association] failed to adequately enforce its own governing documents." (Woolard v. Regent Real Estate Services, Inc. (2024) 107 Cal.App.5th 783, 791.) The Association argues that only members may enforce the CCRs. (See Martin v.

Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1036 ["the right of enforcement is inextricable from ownership of real property"]; see also Civ. Code, Sec. 5975, subd. (a) ["[T]hese servitudes may be enforced by any owner of a separate interest or by the association, or by both."].) The Association further argues that the SAC did not cite any provision of the CCRs or governing documents stating that the Association was required to stop, limit, or prevent the Alleged Noise.

As to the existence of a duty from the Association, "[d]uty 'may be imposed by law, be assumed by the Defendant, or exist by virtue of a special relationship.' " (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) It appears that the Association is allowed to impose monetary penalties or initiate disciplinary provisions on owners for violations of the governing documents if the Association has adopted such a policy. (Civ. Code, Sec.Sec. 5850-5875.) There are also statutory provisions governing the resolution of disputes between the Association and its members. (Civ. Code, Sec.Sec. 5900-5920.)

The first COA for private nuisance is asserted by Bingham in her individual capacity and in her capacity as trustee of CB Trust. (SAC, p. 13, ll. 10-15.) The SAC alleges that CB Trust owns the Residence and is a member of the Association. The SAC alleges that the Residence, as an asset of the CB Trust, was reduced in value as a result of the Alleged Noise and the Association's failure to enforce the CCRs. The SAC appears to allege a potential duty from the Association to Bingham in her capacity as trustee of the CB Trust based on the CCRs and statutory law for common interest developments.

As to the scope and nature of the Association's duty, "[g]enerally, fiduciary duties owed by a homeowners association to its members are limited to those arising from its governing documents and relevant statutory requirements." (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 425 (Golden Eagle).)

The SAC attaches the CCRs as Exhibit A. Section 5.3(j) of the CCRs directly addresses the Association's duties pertaining to the Alleged Noise: "No Owner shall engage in any nuisance or any illegal, noxious, or offensive activity in any part of the Development, or do any act which unreasonably threatens the health, safety and welfare of other residents of the Development, or which is or may become a nuisance or cause unreasonable embarrassment, disturbance or annoyance to other Owners in the use and enjoyment of their Units or of the Common Area, including disturbing or annoying actions and behaviors of pets.

Each Owner shall comply with all applicable ordinances and statutes and with all requirements of local and/or state boards of health with respect to the occupancy and use of such Owner's Unit. Notwithstanding the foregoing, the Association shall not use any Association funds or resources to abate any annoyance or nuisance emanating from outside the physical boundaries of the Development. "In the event a complaint is made regarding non-compliance with the foregoing nuisance provisions, the Owners involved shall endeavor to resolve the dispute without involvement of the Association.

If the Owners are unable to resolve the dispute between themselves, upon request the Board will evaluate the complaint and determine the appropriate level of Association participation in the dispute resolution process, if any; it shall be incumbent upon the complaining Owner to provide substantial evidence of the alleged nuisance violation to the Board. In no event shall the Association be obligated to resolve a nuisance complaint to the satisfaction of a complaining Owner or other person if the Board determines that the nuisance complaint: (1) is a neighbor-to-neighbor dispute; or (2) involves a high level of sensitivity on the part of the complaining Owner or other person to physical stimuli (such as, without limitation, sounds, sights or smells) and/or emotional stimuli.

Any mitigation of a nuisance which is required of an Owner by the Association shall be the sole responsibility and at the sole cost of such Owner." (SAC, Ex. A at p. 43 [Sec. 5.3(j)], italics added.)

Here, the SAC alleges the Association did take some action as to the Alleged Noise, including gathering documentation and offering to coordinate a potential complaint with the County to address these issues. However, absent from the SAC is any citation to the CCRs, governing documents, or statutory authority indicating that the Association had an affirmative duty to stop, limit, or prevent the Alleged Noise. The SAC makes no allegations that the Association found the Alleged Noise was not a neighbor-to-neighbor dispute after Bingham's complaints. Indeed, a reasonable reading of the SAC establishes this is a neighbor-to-neighbor noise dispute. "In no event shall the Association be obligated to resolve a nuisance complaint to the satisfaction of a complaining Owner or other person" under such circumstances. (SAC, Ex. A at p. 43 [Sec. 5.3(j)].)

In order to state a nuisance claim based on the Association's failure to act, the SAC must allege facts showing the Association had an affirmative duty to take action to address the Alleged Noise that was not undertaken by the Association. (See SDG&E, supra, 36 Cal.App.5th at p. 436.) Without an alleged basis for the Association's duty to take affirmative steps to prevent the Alleged Noise, the SAC fails to allege facts indicating that the Association assisted in the creation of the nuisance. (See Kaura, supra, 24 Cal.App.5th at p. 434; City of Modesto, supra, 119 Cal.App.4th at p. 38.) The SAC falls short on these issues.

For all these reasons, the Court will sustain the Association's demurrer to the first COA in the SAC, without leave to amend. This is the third iteration of Plaintiffs' complaint. Plaintiffs had had ample opportunity to allege a private nuisance COA against the Association but failed to do so. It does not appear that the SAC could be amended to state such a COA against the Association.

(3) Association's Demurrer to Second COA for Breach of Equitable Servitudes

" '[E]quitable servitudes permit Courts to enforce promises restricting land use when there is no privity of contract between the party seeking to enforce the promise and the party resisting enforcement. Like any promise given in exchange for consideration, an agreement to refrain from a particular use of land is subject to contract principles, under which Courts try 'to effectuate the legitimate desires of the covenanting parties.' " (Cebular v. Cooper Arms Homeowners Assn. (2006) 142 Cal.App.4th 106, 122.)

In the context of a common interest development, "[t]he covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall ... bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both." (Civ. Code, Sec. 5975, subd. (a).) "[A] condominium owner may enforce the [CCRs] under the law of equitable servitudes without resorting to a breach of contract cause of action." (Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 832.)

The SAC alleges that CB Trust is a member of the Association by and through its ownership of the Residence. The SAC alleges that Bingham in her capacity as trustee of the CB Trust seeks to enforce the Association CCRs or governing documents. The SAC alleges that the Association breached the CCRs or governing documents pertaining to unit modifications, lease restrictions, inspection upon change of ownership, board approval of remodeling, and other provisions. (SAC, P.P. 68-77, 86, 87, 121-127, Ex. A.) The SAC alleges that some of these breaches are ongoing and that the Balcony is not in compliance with the CCRs and other governing documents. (Ibid.) This is sufficient to allege a cause of action for breach of equitable servitudes. The Court will overrule the Association's demurrer to the second COA.

(4) Association's Demurrer to Third COA for Breach of Good Faith and Fair Dealing

The CCRs and certain governing documents may be treated as contractual obligations between the owners in common interest developments and associations. (See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 240.)

"The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation. [Citation.] 'The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract's purpose.' [Citations.] 'In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.' " (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.)

"The covenant thus cannot 'be endowed with an existence independent of its contractual underpinnings.' [Citation.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349-350.)

The SAC alleges a COA for breach of the covenant, including that the Association frustrated her attempts to bring the Balcony into compliance with the CCRs and governing Association rules. The Court will overrule the demurrer to the third COA.

(5) Association's Demurrer to Fourth COA for Breach of Fiduciary Duty

"The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach." (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.)

"A fiduciary duty is a duty to act with the utmost good faith for the benefit of the other party. It can arise from a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client or from a 'confidential relationship' ... founded on a moral, social, domestic, or merely personal relationship. The 'essential elements' of a confidential relationship have been described as 1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself." (Thomas v.

Regents of University of California (2023) 97 Cal.App.5th 587, 629.) "[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law." (Id.)

As discussed above, the fourth COA for breach of fiduciary duty is asserted against the Association by Bingham in her capacity as trustee for CB Trust. As discussed above, "[g]enerally, fiduciary duties owed by a homeowners association to its members are limited to those arising from its governing documents and relevant statutory requirements." (Golden Eagle, supra, 19 Cal.App.5th at p. 425.)

The SAC alleges that the Association failed to ensure that remodel work on the Upstairs Property was performed in accordance with the CCRs or other governing documents. The SAC alleges that the Association failed to ensure the Balcony complied with the Association CCRs and other rules. (SAC, P.P. 68-77, 86, 87, 121-127, Ex. A.) The SAC alleges that the Association breached their fiduciary duties to ensure the Balcony complies with the CCRs and Association rules. (Ibid.) According to the SAC, these breaches caused the Residence to lose value, which injured the CB Trust. The elements of breach of fiduciary duty have been alleged. The Court will overrule the Association's demurrer to the fourth COA.

(6) Association's Demurrer to Fifth COA for Negligence

The elements of negligence are duty, breach, causation, and damages. (Burgess v. Superior Court, 2 Cal. 4th 1064, 1072.) The SAC alleges that the Association "owed a duty of care to Mindy Bingham, in her capacity as the trustee of The Comiskey/Bingham Trust, to safeguard and protect Mindy Bingham from any nuisance that would interfere with the quiet use and enjoyment of 69 Seaview." (SAC, P. 149.)

" 'Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.' " [Citation.] The nuisance claim 'stands or falls with the determination of the negligence cause of action' in such cases." (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.)

As discussed above in the context of private nuisance, the SAC fails to allege the Association breached any duties pertaining to preventing or remedying the Alleged Noise. For these same reasons, the Court also sustains the Association's demurrer to the fifth COA, without leave to amend.

(7) Motion to Strike by Hutchinson Trust

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof ...." (Code Civ. Proc., Sec. 435, subd. (b)(1).) "The Court may, upon a motion made pursuant to [s]ection 435, or at any time in its discretion, and upon terms it deems proper: [P.] ... [s]trike out any irrelevant, false, or improper matter inserted in any pleading." (Code Civ. Proc., Sec. 436, subd. (a).)

"In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth." (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Here, Defendant Hutchinson Trust argues that there is no basis for allegations of emotional distress damages because its demurrer to the NEID COA was sustained as to the FAC. However, notably, the Court overruled the Hutchinson Trust's demurrer to the first COA for private nuisance in the FAC. (Minute Order, April 15, 2026, P. 3.)

"[O]nce 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." (Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1348-1349, italics in original.) " 'The California cases appear to draw no distinction between cases involving nuisance and those involving trespass in permitting an award of damages for discomfort and annoyance directly resulting from an injury to real property. There seems to be no sound reason to refuse [such an] award ... since it is obvious that such an injury may cause discomfort and annoyance without also causing an actual physical injury to the person.' [Citation.]" (Id. at p. 1351.)

Nonetheless, as argued by the Hutchinson Trust, for the reasons stated in this Court's minute order dated April 15, 2026, the tort of NEID has not been alleged in this action. The Court sustained the demurrer to the NEID COA as to the FAC. (Minute Order, April 15, 2026, P. 10.) The same reasoning applies here, as to the SAC. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 666; Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1228.)

The law permits pleading emotional distress damages as to the nuisance claim, but elements of NEID have not been alleged. Thus, the Court will grant the motion to strike as to paragraph 158, page 34, lines 8 through 10, and paragraph 161, page 34, lines 15 through 20, of the SAC pertaining to the theory of negligence. The Court will otherwise deny the motion since, as discussed above, emotional distress damages can be pled as to the first COA for nuisance.

Tentative Ruling: Jose A. Rodriguez, et al. v. Francisco Espinosa, et al Tentative Ruling: Jose A. Rodriguez, et al. v. Francisco Espinosa, et al