Opinion
H051121
09-30-2024
STEVEN KOGHAN, Plaintiff and Appellant, v. IAN DAVID DRURY et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 22CV00807
Wilson, J.
This appeal arises from an action filed by plaintiff Steven Koghan against numerous defendants, including Ian David Drury, Darlene Amara Delgadillo, Kristin Noel Johnson, Jean Paul Davila, William Eugene Bennett, and Darin Scott Darneal (collectively defendants), for public and private nuisance arising from their alleged reckless driving in front of Koghan's home. The trial court subsequently entered judgment against Koghan after sustaining defendants' demurrers to Koghan's first amended complaint without leave to amend.
While Koghan named a total of 47 defendants and a number of Doe defendants in his first amended complaint, we only refer by name to those defendants who either filed the demurrers at issue in this case or filed responsive briefs in the instant appeal.
Koghan now appeals the trial court's entry of judgment in this case, asserting the court erred in sustained the demurrer. For the reasons stated below, we find no error in the trial court's order and affirm.
I. Factual and Procedural Background
"We derive our facts from those properly pleaded in the complaint and matters properly judicially noticed. [Citations.] We take as true properly pleaded material facts alleged in the pleadings, disregarding contentions, deductions, and conclusions of fact or law. [Citation.]" (County of Santa Clara v. Superior Court (2023) 87 Cal.App.5th 347, 355, fn. 2.)
A. Original Complaint and Demurrer
On April 21, 2022, Koghan filed his original complaint, which identified 14 defendants by name as well as Does one through 200, for two causes of action for public and private nuisance.
A nuisance is broadly defined as "[a]nything 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.) A public nuisance is "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ. Code, § 3480.) "Every nuisance not included in the definition of [Civil Code section 3480) is private." (Civ. Code, § 3481.) To proceed on a private nuisance theory, the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. (See Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 (Venuto).)
In support of his causes of action, Koghan alleged that he was the owner of a residence located on Glen Canyon Road in Santa Cruz County, and that defendants were the owners and/or drivers of "certain motor vehicles" that had driven by his home in the "recent past." Koghan claimed that defendants had operated their vehicles "recklessly and in disregard for the safety and well-being of others" at a speed significantly higher than the posted speed limit of 30 miles per hour. Koghan alleged that as a result of defendants' driving, "highly dangerous conditions" existed in his neighborhood, his property value had diminished by $800,000, and he had sustained injuries to his "health, strength and activity, [as well as] his nervous system and person."
On November 3, 2022, the trial court sustained demurrers by defendants Drury and Davila, and also granted a motion for judgment on the pleadings filed by defendants Amy Jespersen, Matt Jespersen, and Wyatt Jespersen, with leave to amend. The court found that Koghan's complaint failed to establish facts demonstrating that defendants had created a highly dangerous condition on either the public road or Koghan's property. The court also found that Koghan did not make any allegations that defendants' conduct was a substantial factor in causing him harm.
B. First Amended Complaint and Demurrer 1. Complaint, Demurrer, and Response
On November 14, 2022, Koghan filed the operative first amended complaint (FAC), which now identified 47 defendants by name as well as Does one through 1000. Koghan alleged the same two causes of actions in his original complaint, private and public nuisance, but added additional factual allegations in support.
With respect to the private nuisance cause of action, Koghan stated that he had installed a number of "high-tech devices" on his property that captured the date, time of day, license plate number, velocity, and vehicle-produced sound of every vehicle that drove past his residence and had used these devices to produce "accurate data" for each of the named defendants. As Exhibit A, Koghan attached an "exemplar" list of the data received for five of the named defendants in the complaint. Koghan also indicated that Glen Canyon Road was a hilly and windy road spanning approximately three miles, with numerous curves and changes in elevation, and multiple signs reflecting a 30 miles per hour speed limit were posted along the road. He also contended that the road was used "extensively" by bikers and hiking pedestrians, but did not have designated bike lanes or sidewalks on either side. Koghan argued that as a result of these factors and conditions, defendants' speeding, and reckless driving constituted an "abnormally dangerous activity."
Koghan further alleged that the sound produced by the tires, exhaust systems, and engines of defendants' speeding vehicles was "inordinate," "bone-chilling and obnoxious," and created a "noxious condition." He claimed that as a result of this noise, he and his neighbors now experienced physical and psychological distress, namely, reasonable fear of an imminent and violent traffic accident.
Regarding the public nuisance cause of action, Koghan alleged that unlike most of his neighbors' homes, the distance between his garage and the edge of the road was only four feet. As a result, the rear end of his vehicle would back onto the road while the front end was still inside the walls of the garage, leaving him "blinded" and unable to see if any cars were approaching from either direction. In addition, Koghan indicated that when he returned home, he had to use both lanes to make a sharp turn onto his driveway. Koghan therefore claimed that defendants' speeding resulted in an extremely hazardous condition for him every time he exited or entered his garage.
Based on Koghan's alleged fear of future harm and distress, the FAC requested an unspecified amountof general damages "according to proof" and $800,000 for the loss in property value. Koghan also requested a permanent injunction against defendants' alleged reckless driving, punitive damages, "private attorney general fees," and costs.
Defendants Davila, Darneal, Drury, Amara, Johnson, and Glenn Edward Damron all filed demurrers to the FAC, contending that the FAC: (1) failed to state facts sufficient to constitute a cause of action for either private or public nuisance; and (2) improperly joined defendants without demonstrating that they were acting in concert with one another.
In his opposition to the demurrers, Koghan claimed that he had resolved the deficiencies in the original complaint by including new factual allegations regarding the data received from his high-tech devices, the driving conditions and posted speed limit on Glen Canyon Road, and the disturbance caused by the loud driving noises. Koghan also argued that public policy supported joinder of defendants because all of their conduct was "virtually identical" and arose out of the same "series" of occurrences. Finally, Koghan claimed that he was not required to prove "special injury" to establish a cause of action for public nuisance when he was also alleging a cause of action for private nuisance.
Although not stated in Koghan's opposition, this presumably referred to the requirement that a private party can only maintain an action based on a public nuisance "if it is specially injurious to himself, but not otherwise." (Civ. Code, § 3493.)
2. Trial Court Order
Prior to the March 29, 2023 hearing on the demurrers, the trial court issued a tentative ruling sustaining the demurrers. After hearing argument from all parties and taking the matter under submission, the trial court adopted its tentative ruling with "slight changes" and issued a written order on April 22, 2023, sustaining defendants' demurrers without leave to amend.
While a copy of this ruling was not included in the record on appeal, the trial court indicated in its final written order that it was adopting its tentative ruling sustaining the demurrers with "slight changes."
In its order, filed on April 24, 2023, the trial court indicated that the FAC failed to state facts sufficient for a cause of action for nuisance, and defendants were improperly joined. In evaluating the cause of action for private nuisance, the trial court found that Koghan failed to demonstrate that the alleged invasion of his interests in his property was substantial or unreasonable. The court specifically noted that defendants' alleged speeding was not an unreasonable interference in Koghan's property, particularly since the activity from the recording devices, as provided by Koghan, demonstrated that the speeding only lasted for a few seconds, was infrequent, and took place during the day or early evening hours. In addition, the court did not find that defendants' alleged conduct was a substantial factor in causing Koghan any harm, particularly since an "untold number" of unidentified drivers may have engaged in the same conduct.
With respect to the public nuisance cause of action, the trial court found that Koghan failed to demonstrate that the alleged injury he suffered - namely, the loud noise from the speeding vehicles - was specific to him, particularly since the FAC alleged that many of Koghan's neighbors were subjected to the same conditions. The trial court also noted that because the alleged harm was for loud noise, the shorter length of Koghan's driveway had no bearing on whether he was specially injured by the alleged nuisance.
Furthermore, the trial court found that defendants were improperly joined to the action because none of them were jointly or severally liable for the alleged conduct, and their alleged conduct did not arise from the same transaction or occurrence sharing a common question of fact or law. Finally, while the issue was not raised by the parties, the trial court noted that Koghan's prayer for injunctive relief was futile because enforcement of traffic laws was the "exclusive province" of law enforcement; as a result, the court would have no authority to order defendants not to exceed the speed limit or refrain from reckless driving.
In the written order, the trial court directed the clerk of the court to enter judgment in favor of defendants against Koghan.
Although judgment had not yet been entered at the time Koghan filed his appeal, this court deemed the order sustaining the demurrer without leave to amend to incorporate a judgment of dismissal and allowed the appeal to proceed. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 528, fn. 1.)
II. Discussion
Koghan contends the trial court erred in sustaining the demurrers because the FAC contained sufficient facts supporting both causes of action. Koghan further claims that there was no misjoinder of defendants. For the reasons stated below, we find no error in the trial court's order and affirm.
A. Applicable Law and Standard of Review
"When reviewing a ruling on a demurrer, we examine de novo whether the complaint alleges facts sufficient to state a cause of action." (Liapes v. Facebook (2023) 95 Cal.App.5th 910, 919 (Liapes), citing Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558 (Regents).)" 'We assume the truth of the properly pleaded factual allegations, [and] facts that reasonably can be inferred from those expressly pleaded.' [Citation.] But we do not assume the truth of 'contentions, deductions, or conclusions of law.'" (Liapes, supra, 95 Cal.App.5th at p. 919, quoting Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 440.)
"We liberally construe the complaint 'with a view to substantial justice between the parties,' drawing 'all reasonable inferences in favor of the asserted claims.'" (Liapes, supra, 95 Cal.App.5th at p. 919, quoting Regents, supra, 220 Cal.App.4th at p. 558.) "The plaintiff must demonstrate the court erroneously sustained the demurrer and 'must show the complaint alleges facts sufficient to establish every element of each cause of action.'" (Liapes, supra, 95 Cal.App.5th at p. 919, quoting Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.)
When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Koghan did not assert an error by the trial court in denying leave to amend. If an argument is not made on a particular point, we may treat it as forfeited. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Since not raised on appeal, we need not and do not address the court's denial of leave to amend.
B. The Trial Court Did Not Err In Sustaining the Demurrer to the FAC 1. Private Nuisance Cause of Action
As stated above, a nuisance is broadly defined as "[a]nything 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.)
To proceed on a private nuisance cause of action, a plaintiff must prove all of the following elements: (1) they owned, leased, occupied or controlled real property; (2) defendant, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to health or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (3) defendant's conduct in acting or failing to act was intentional and unreasonable or unintentional but negligent or reckless; (4) this condition substantially interfered with plaintiff's use or enjoyment of their land; (5) an ordinary person would reasonably be annoyed or disturbed by defendant's conduct; (6) plaintiff did not consent to defendant's conduct; (7) plaintiff suffered harm as a result of defendant's conduct; (8) defendant's conduct was a substantial factor in causing plaintiff's harm; and (9) the seriousness of the harm caused by defendant outweighs its social utility. (See Department of Fish &Game v. Superior Court (2011) 197 Cal.App.4th 1323, 1352, italics added; CACI No. 2021; Civ. Code, §§ 3479 &3481; see also In re Firearm Cases (2005) 126 Cal.App.4th 959, 987-988 (Firearm Cases) ["a connecting element to the prohibited harm must be shown"].)
Although there are multiple elements necessary to prove private nuisance, we will focus on whether Koghan has pled facts sufficient to establish any individual defendant's conduct was a substantial factor in causing him harm. According to the FAC, the alleged injury referrable to Koghan's use and enjoyment of his land was purportedly from the loud noise caused by defendants' speeding and reckless driving past Koghan's residence. Specifically, the FAC alleged that this noise resulted in Koghan and his neighbors suffering a "reasonable fear of an imminent and violent traffic accident that could involve one or more bicyclists, hikers, two passing vehicles or a single-vehicle crash." As Exhibit A, Koghan attached an "exemplar" list of the data received for five of the 47 named defendants in the complaint. The list included each defendant's name, date (of incident), estimated speed (e.g. "67-70 mph"), and time of day (of the alleged speeding). According to this list, the five defendants were alleged to have sped past Koghan's home 18 times over the course of nine months (Wyatt Jesperson), 32 times over the course of two months (Jean Paul Deville), 23 times over the course of three years (Ian Drury), 23 times over the course of three months (Christiano Willis De Oliveira), and 23 times over the course of nine months (Michael Bullock).
Koghan alleged that "[e]ach of these occasions of Defendants' speeding creates a condition that causes Plaintiff to suffer the physical and psychological stresses . . . and deprives Plaintiff of the quiet enjoyment of his home property, all of which is proximately caused by the Defendants' recklessness and unlawful driving." While Koghan provided information obtained from "high-tech devices" attached to his home, he provided no facts indicating that he was specifically present during any or all of these events, and consequentially, actually heard noise from the named defendants' vehicles or was present when the defendants' vehicles were speeding. As discussed above, although we liberally construe the complaint, the plaintiff must still allege facts sufficient to establish every element of each cause of action and we do not assume the truth of contentions, deductions, or conclusions of law.
Even assuming Koghan's presence during some or all of these occasions, the FAC does not allege any facts which demonstrate that the conduct, specifically by those defendants whom Koghan identified by name, was a substantial factor in causing him the harm he identified. To the contrary, the FAC indicated that Glen Canyon Road was used "extensively" by motor vehicles, and the noise Koghan experienced was attributable to anyone who drove at a high speed past his home, which allegedly included not only the 47 named defendants but one thousand unknown Doe defendants. Accordingly, given the significant number of drivers that could ostensibly drive past Koghan's house at a high rate of speed, the FAC fails to provide facts sufficient to demonstrate that if not for the conduct of the specific defendants identified, Koghan would not have been subjected to the alleged harmful noise and related physical and psychological stress causing loss of comfortable enjoyment of life or property. (See, e.g., Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 [noting that the substantial factor test generally produces the same rules as a "but-for" test, namely, that a defendant's conduct is a cause of the injury if the injury would not have occurred "but for" that conduct].) Therefore, we find that as a matter of law, the trial court did not err in finding that Koghan failed to establish facts sufficient to state a cause of action for private nuisance.
2. Public Nuisance Cause of Action
A public nuisance is "one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ. Code, § 3480.) A private party can maintain an action based on a public nuisance "if it is specially injurious to himself, but not otherwise." (Civ. Code, § 3493.) The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public. (See, e.g., Venuto, supra, 22 Cal.App.3d at pp. 124-125; Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 21; Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 725-726.) In cases where courts have found the special injury element has been met, these special injuries or harms are "generally of the type suffered while exercising the right common to the general public that is the subject of the interference." (Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059, 1103.) Some examples of special injuries include a building owner being required to undertake testing for hazardous conditions due to pollution caused by the previous lessees of the same property (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137-1138), and nauseating odors and excessive mosquito and fly infestations on certain properties adjacent to a dairy farm, which was releasing noxious gases. (Wade v. Campbell (1962) 200 Cal.App.2d 54, 59-60.) In addition, similar to a private nuisance claim, "the necessary elements for proof of a cause of action for public nuisance include the existence of a duty and causation." (In Re Firearm Cases, supra, 126 Cal.App.4th at p. 988.)
Koghan contends that because his allegations were for both private and public nuisance, he was not required to prove the special injury requirement, citing Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540 in support. However, this is only the case when the plaintiff has alleged facts sufficient to state a private nuisance. (See Venuto, supra, 22 Cal.App.3d at pp. 124-125.) Accordingly, because Koghan failed to allege facts sufficient to state a cause of action for private nuisance for the reasons discussed above, he was required to prove the special injury requirement to establish a cause of action for public nuisance.
Koghan claims that the FAC "clearly allege[d]" he suffered harm that differed from that of his neighbors, namely, that he was subjected to "special danger" when entering or exiting his garage due to the shorter length of his driveway. However, the harm allegedly suffered by Koghan, as noted in his complaint, was from the loud noise produced by defendants' alleged reckless driving, not the actual driving itself. Koghan did not demonstrate how the noise from the allegedly speeding cars would cause him to suffer the "special danger" associated with his shorter driveway. In other words, the FAC fails to demonstrate any causal connection between any unique or extra difficulty Koghan would have in entering and exiting his garage onto Glen Canyon Road and the noise allegedly caused by defendants' reckless driving. Accordingly, we find no error in the trial court's order sustaining the demurrer on Koghan's cause of action for public nuisance.
3. Misjoinder of Defendants
Under Code of Civil Procedure section 379, subdivision (a), multiple persons may be joined as defendants in a single action if any of the following are asserted against them: "(1) [a]ny right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or [¶] (2) [a] claim, right, or interest adverse to them in the property or controversy which is the subject of the action." If the parties are not properly joined, a court may sustain a demurrer for misjoinder of parties. (Code Civ. Proc., §430.10, subd. (d).)
Koghan contends that the trial court erred in finding defendants were improperly joined to the action because the "countless incidents" of reckless driving amounted to a series of occurrences involving several common questions of law or fact. Specifically, Koghan claims that because all of the occurrences involved the same location, recording device, speed limit, and victims, among other common factors, filing separate complaints against each defendant would result in a "huge waste" of court and party resources.
We disagree. While defendants allegedly engaged in the same conduct of reckless driving, the FAC did not allege that defendants were jointly and severally liable for their conduct, as each defendant acted individually when driving past Koghan's home. In addition, the FAC did not contain any facts demonstrating that each alleged incident of reckless driving was somehow connected or related. (See Southern California Edison Co. v. State Farm Mut. Auto. Ins. Co. (1969) 271 Cal.App.2d 744, 748 [affirming a special demurrer for misjoinder of defendant insurance companies who were all "involved in separate accidents for which entirely separate claims arose"]; see also Hoag v. Superior Court (1962) 207 Cal.App. 2d 611, 617-619 (Hoag) [finding joinder was inappropriate of four defendants involved in four independent, unrelated transactions].) Moreover, possible common questions of law and fact, standing alone, are insufficient to permit joinder. (Hoag, supra, 207 Cal.App. 2d at p. 620, quoting Coleman v. Twin Coast Newspapers, Inc., 175 Cal.App.2d 650, 654.) Absent any other facts demonstrating that joinder was appropriate under Code of Civil Procedures section 397, we find no error in the trial court sustaining the demurrer on the basis that defendants were improperly joined.
In his responding brief, defendant Darneal asks that the court consider imposing sanctions against Koghan pursuant to California Rules of Court, rule 8.276(a) for filing a frivolous appeal. We decline the invitation.
The judgment is affirmed. Defendants may recover their costs on appeal.
WE CONCUR: Greenwood, P. J. Bamattre-Manoukian, J.