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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Gregory Smith v. Herbert Berthels, et al.,

Case No: 1414447
Hearing Date: Mon Jul 08, 2013 9:30

Nature of Proceedings: Demurrer

Santa Barbara County Superior Court Department 5 Judge Colleen K. Sterne Tentative Ruling July 8, 2013 CASE: Gregory M. Smith, Trustee of the Gregory Marshall Smith Trust dated December 11, 1981 v. Herbert E. Barthels, et al., Case No. 1414447 MATTER: Demurrer of Rodriguez Consulting, Inc. to Second Amended Complaint TENTATIVE RULING: Rodriguez’s demurrer to the SAC is sustained without leave to amend. DISCUSSION: Plaintiff Gregory M. Smith, Trustee of the Gregory Marshall Smith Trust dated December 11, 1981, is the owner of real property located at 1839 El Camino de la Luz in Santa Barbara. Defendant Herbert E. Barthels is the owner of real property located at 1837 ½ El Camino de la Luz, which is adjacent to and downhill from plaintiff’s property. In 2009, Barthels hired defendant Steve Schwartz, a trenching contractor, and defendant William Anikouchine, a certified engineering geologist, to excavate a trench on his property to determine the suitability of the site for construction. As part of the project, the City of Santa Barbara required that an environmental impact report be prepared and defendant Rodriguez Consulting, Inc. was hired to prepare the report. Plaintiff alleges that defendants have damaged his property by negligently and carelessly excavating and then backfilling the trench, thereby reducing the lateral support for his property. The second amended complaint (SAC) seeks an injunction requiring defendants to re-excavate and re-fill the trench. Rodriguez now demurs to the SAC for failure to state a cause of action. Rodriguez contends that plaintiff has failed to allege facts showing that Rodriguez owed a legal duty to plaintiff or that Rodriguez could perform the requested relief without trespassing onto Barthels’s property. These are the same grounds on which Rodriguez demurred to plaintiff’s first amended complaint. The court sustained the demurer on April 29, 2013 with leave to amend. ANALYSIS: The party against whom a complaint has been filed may object by demurrer if the pleading fails to state facts sufficient to support a cause of action. Code Civ. Proc. §430.10(e). When a complaint is successfully challenged by a demurrer, the burden is on the plaintiff to demonstrate how the complaint might be amended to cure the defect. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302. A court does not abuse its discretion by sustaining a demurrer without leave to amend where it appears from the complaint and the applicable substantive law that there is no reasonable possibility that an amendment could cure the complaint’s defect. Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486. The determination whether a defendant not in privity of contract with the plaintiff owed a legal duty to the plaintiff is a question of law to be determined by the court and involves a balancing of a number of considerations, including (1) the foreseeability of harm to the plaintiff, (2) the extent to which the transaction was intended to affect the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant’s conduct and the injury suffered, (5) the moral blame attached to the defendant’s conduct, and (6) the policy of preventing future harm. Biakanja v. Irving (1958) 49 Cal.2d 647, 650. In this case, there is no allegation that plaintiff and Rodriguez were in privity of contract. On the contrary, it is specifically alleged that the City of Santa Barbara hired Rodriguez to prepare the environmental impact report for the subject site. (SAC, ¶3.) The question, then, is whether Rodriguez owed a legal duty to plaintiff. The court finds that plaintiff has failed to allege facts showing the existence of such a duty and on that basis will sustain Rodriguez’s demurrer to the SAC. The fourth element of a legal duty is causation. To satisfy this element, plaintiff must allege facts showing that there is a causal connection between Rodriguez’s conduct and plaintiff’s injury, which plaintiff has failed to do. Nowhere in the SAC is it alleged that Rodriguez had any involvement in the decision to dig the trench, or in the actual excavation, backfilling, and re-compaction of the trench. Plaintiff has also failed to allege any facts demonstrating that Rodriguez’s preparation of an environmental impact report caused plaintiff’s alleged damages. In paragraph 15 it is alleged that “the trenching and backfilling of the property was not properly executed, supervised and/or reported by defendants.” (SAC, ¶15.) In paragraph 16 it is alleged that defendants “Anikouchine, Schwartz and Rodriguez erroneously reported that water was added to the soil during compaction.” (SAC, ¶16.) However, plaintiff has failed to allege how Rodriguez’s report, even if inaccurate, caused plaintiff’s injury (i.e., the lack of lateral support for his property). As stated in Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 269, the nexus between the alleged cause and harm cannot be “indirect” or “inferential,” but must be “inexorably linked.” The court will sustain Rodriguez’s demurrer for the additional reason that plaintiff has failed to allege how Rodriguez can perform the injunction plaintiff seeks from the court. Plaintiff’s prayer requests an order “compelling Defendants to remove and replace under proper supervision the materials within the previously trenched areas using appropriate and proper methods to ensure adequate compaction . . . .” (FAC, p. 6, lines 19-21.) However, as discussed above, Rodriguez could not comply with plaintiff’s requested relief, even if ordered, because Rodriguez is not the property owner, Barthels is. (FAC, ¶2.) Further, Rodriguez did not have any involvement in the excavation and re-filling of the trench as that work was performed by Schwartz and Anikouchine. (FAC, ¶¶ 4, 5, 11 and 15.) Based on the foregoing, Rodriguez’s demurrer to the SAC is sustained. The demurrer is sustained without leave to amend as plaintiff has already been given the opportunity to correct the defects in his complaint, yet has failed to do so.
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