LMP REALTY ADVISORS, LLC VS TERRACOTTA TWO, LLC

5. CASE # CASE NAME HEARING NAME LMP REALTY ADVISORS, LLC VS CVRI2602951 DEMURRER TERRACOTTA TWO, LLC Tentative Ruling:

Defendant demurs to the fourth, eighth, and ninth causes of action on the grounds that each fail to state facts sufficient. (CCP § 430.10(e).)

Defendant satisfied the statutory meet-and-confer requirement with a telephone call. (Declaration of Andrew Lanphere, ¶ 5.)

A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded and of facts which may be inferred from those expressly pleaded. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) A demurrer, however, does not admit contentions, deductions, or conclusions of fact or law. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

Fourth Cause of Action – Enforcement of Permanent Injunction

Defendant first argues the fourth cause of action for enforcement of the permanent injunction obtained in CVRI 2104149 is procedurally improper because the correct method of enforcement would be a contempt proceeding in the aforementioned case, rather than a separate civil action for damages. In support, Defendant cites to McFarland v. Superior Court (1924) 194 Cal.407 (“McFarland”), Gale v. Tuolumne County Water Co. (1914) 169 Cal.46 (“Gale”), and Astourian v. Superior Court (1990) 226 Cal.App.3d 720 (“Astourian”).

None of the cases cited by Defendant stand for the proposition that a contempt proceeding is the only way to enforce a permanent injunction. In fact, each of the three cases is in the context of a contempt proceeding making them factually distinguishable from this case. On reply, Defendant acknowledges this, stating, “Plaintiffs’ authorities establish only that contempt is not the exclusive remedy for an injunction violation – a point [Defendant] does not dispute.” (Defendant’s Reply, p. 1:9-10.)

Defendant then tries to shift the burden to Plaintiffs, arguing Plaintiffs fail to cite authority permitting an “enforcement” cause of action. But as the party bringing this demurrer, Defendant fails to cite authority establishing that the cause of action fails to state facts sufficient on the grounds that a party cannot bring a separate civil cause of action for enforcement of a permanent injunction. Defendant goes on to argue that injunctive relief is a remedy, not a standalone cause of action.

Although strictly speaking, an injunction is a remedy rather than a cause of action, a cause of action is also commonly used in pleading as applying only to the relief sought, even though separately pleaded claims have origin in the same right or obligation.

(McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) To state a cause of action for an injunction, the complaint must plead facts that warrant injunctive relief. (San Francisco v.

Market S. R. Co. (1950) 95 Cal.App.2d 648, 656.) The allegations are sufficient to state a claim regarding injunctive relief under the prior permanent injunction granted by the court. Defendant also argues the cause of action is duplicative, which has been recognized as a basis for sustaining a demurrer. (See Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501 [finding demurrer was properly sustained without leave to amend as to cause of action that contained allegations of other causes and “thus add[ed] nothing to the complaint by way of fact or theory of recovery”]; see also Award Metals, Inc. v.

Superior Court (1991) 228 Cal.App.3d 1128, 1135.) However, this cause of action specifically points to the permanent injunction in CVRI 2104149 and enforcement of same, sufficiently distinguishing it from the fifth, sixth, and seventh causes of action which, as alleged, seek new declaratory and injunctive relief. For pleading purposes, this is sufficient. The demurrer is overruled as to the 4th cause of action.

Economic Loss Rule

Defendant next argues the eighth and ninth causes of action for nuisance and negligence are barred by the economic loss rule. Pursuant to the “economic loss rule,” there is generally no recovery in tort for negligently inflicted purely economic losses, meaning financial harm unaccompanied by physical or property damage. (Rattagan v. Uber Techs., Inc. (2024) 17 Cal.5th 1, 20.) Such claims are barred when they arise from or are not independent of the parties’ underlying contract. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 924.)

The economic loss rule prevents the law of contract and the law of tort from dissolving one into the other. (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1130.) The economic loss rule applies where the parties are in contractual privity and the plaintiff's claim arises from the contract (in other words, the claim is not independent of the contract). (Sheen, supra, 12 Cal.5th at 923, [“Not all tort claims for monetary losses between contractual parties are barred by the economic loss rule.

But such claims are barred when they arise from–or are not independent of the parties’ underlying contracts”].) As alleged, the eighth cause of action for nuisance makes no mention of the easement agreements. Rather, it alleges Defendant’s failure to maintain pavement, lighting, landscaping, irrigation, drainage, and curbs and abandonment of common areas caused injury to Plaintiffs’ enjoyment of their properties and operation of their businesses. (Complaint, ¶¶ 100-101.) These allegations sufficiently separate Plaintiffs’ claims from the underlying contracts.

However, the ninth cause of action for negligence as alleged specifically mentions Defendant breached the duty owed pursuant to the easement agreements. (Id. at ¶ 105.) The allegations are such that the only alleged duty is contractual in nature, and thus, barred by the economic loss rule.

The demurrer is overruled as to the 8th cause of action but sustained as to the 9th cause of action, with ten (10) days leave to amend from the date of service of the notice of ruling or service of the signed order, whichever is first.

Moving party is ordered to submit a proposed order consistent with this ruling by no later than August 31, 2026, by 5:00 p.m.