Demurrer in Robert Schwob vs County of Santa Barbara California et al| Trellis.Law

On June 06, 2023 a Motion,Ex Parte was filed involving a dispute between Schwob, Robert, and Corsby, Susan, County Of Santa Barbara California, Crosby, Jeff, for Unlimited Other Petition (Not Spec) (43) in the District Court of Santa Barbara County.

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1 Robert B. Forouzandeh (Bar No. 247177)
rforouzandeh@rppmh.com
2 Melissa Rapp (Bar No. 332957)
mrapp@rppmh.com
3 REICKER, PFAU, PYLE & McROY LLP
1421 State Street, Suite B
4 Santa Barbara, CA 93101
Tel (805) 966-2440
5 Fax (805) 966-3320

6 Attorneys for Defendant JEFF CROSBY and SUSAN CROSBY

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA—ANACAPA DIVISION
10

11 ROBERT SCHWOB, an individual; Case No.: 23CV02404
CHRISTINE SCHWOB, an individual; Assigned to: Judge Thomas P. Anderle
12
Plaintiffs,
13 DEFENDANT JEFF AND SUSAN
v. CROSBY’S NOTICE OF DEMURRER
14 AND DEMURRER TO PLAINTIFFS’
the COUNTY OF SANTA BARBARA, SECOND AMENDED VERIFIED
15 CALIFORNIA, a political subdivision; JEFF COMPLAINT; MEMORANDUM OF
CROSBY, an individual; SUSAN CROSBY, POINTS AND AUTHORITIES;
16 an individual; AND DOES 1-50, DECLARATION OF MELISSA RAPP
INCLUSIVE,
17 [Filed concurrently herewith: Request for
Defendants. Judicial Notice ISO Notice of Demurrer and
18 Demurrer to Second Amended Complaint]
19 Date: March 27, 2024
Time: 10:00 a.m.
20 Dept.: SB 3
21

22 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

23 PLEASE TAKE NOTICE that on March 27, 2024, at 10:00 a.m., or as soon thereafter as

24 counsel can be heard, in Department 3 of the above-entitled Court, located at 1100 Anacapa Street,

25 Santa Barbara, California 93101, Defendants JEFF CROSBY and SUSAN CROSBY (the “Crosbys”),

26 will move the Court for an order sustaining a demurrer to the Second Amended Verified Complaint for

27 Damages and Injunctive Relief (the “SAC”) filed by Plaintiffs ROBERT SCHWOB, individually, and

28 CHRISTINE SCHWOB, individually, as against the Crosbys only.

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 1
1 This demurrer is brought pursuant to California Code of Civil Procedure § 430.10 and is based

2 on this Notice of Demurrer, the attached Demurrer, the attached Memorandum of Points and

3 Authorities, the attached Declaration of Melissa Rapp, the records and files of this action, and any such

4 further oral and written arguments as may be submitted to the Court at or before the hearing.

6 DATED: February 13, 2024 REICKER, PFAU, PYLE & McROY LLP

8 By_________________________________
Robert B. Forouzandeh
9 Melissa Rapp
Attorneys for Defendants Jeff Crosby and Susan Crosby
10

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 2
1 TABLE OF CONTENTS

2 DEMURRER…………………………………………………………………………………………….7

3 MEMORANDUM OF POINTS AND AUTHORITIES……………………………………………. 10

4 I. INTRODUCTION...................................................................................................................... 10

5 II. STATEMENT OF ALLEGED FACTS ................................................................................... 11

6 III. STANDARD OF REVIEW ....................................................................................................... 12

7 IV. ARGUMENT .............................................................................................................................. 12

8 A. The SAC Fails to State Facts Sufficient to Constitute Sixth and Seventh Causes of Action for Private

9 Nuisance--Illegal Sports Court and Private Nuisance--Pickleball Play. .....................................................12

10 B. The SAC Fails to State Facts Sufficient to Constitute an Eighth and Ninth Cause of Action for Public

11 Nuisance—Illegal Sports Court and Public Nuisance--Pickleball Play. .....................................................15

12 C. The Demurrer to the Tenth, Eleventh, Twelfth, and Thirteenth Causes of Action Should Be Sustained

13 Because Conspiracy is Not an Independent Cause of Action and Nonetheless the Allegation of a

14 Conspiracy to Commit a Private Nuisance and Public Nuisance is Not Sufficiently Pled. ........................16

15 D. The SAC Fails to State Facts Sufficient to Constitute a Fourteenth Cause of Action for Declaratory Relief.

16 18

17 E. The Court Should Deny Plaintiff Leave to Amend Because No Liability Exists Under Substantive Law.20

18 V. CONCLUSION .......................................................................................................................... 20

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 3
1 TABLE OF AUTHORITIES
Page(s)
2 Cases
3 117 Sales Corp. v. Olsen,
4 (1978) 80 Cal.App.3d 645 ..................................................................................................................... 17
5 Agins v. City of Tiburon,

6 (1979) 24 Cal.3d 266 ............................................................................................................................. 19
Applied Equipment Corp. v. Litton Saudi Arabia Ltd.,
7
(1994) 7 Cal.4th 511 .......................................................................................................................... 16-17
8
AREI II Cases,
9
(2013) 216 Cal.App. 4th 1004 ............................................................................................................... 17
10 Atkins v. Sacramento Mun. Utility Dist.,
11 (1992) 18 Cal.App.4th 208 .................................................................................................................... 14
12 Award Metals, Inc. v. Super. Ct.,
(1991) 228 Cal.App.3d 1128 ................................................................................................................. 12
13
Beck Development Co. v. Southern Pacific Transportation Co.,
14
(1996) 44 Cal.App.4th 1160 .................................................................................................................. 16
15
Blank v. Kirwan,
16 (1985) 39 Cal.3d 318 ............................................................................................................................. 14
17 California Ins. Guarantee Assn. v. Superior Court,
18 (1991) 231 Cal.App.3d 1617 ................................................................................................................. 20

19 California State Employees’ Assn. v. Flournoy,
32 Cal.App.3d 219 ................................................................................................................................. 12
20
Cansino v. Bank of America,
21
(2014) 224 Cal.App.4th 1462 ................................................................................................................ 12
22 City of Cotati v. Cashman,
23 (2002) 29 Cal.4th 69 ............................................................................................................................. 18
24 Daniels v. Select Portfolio Servicing, Inc.,

25 (2016) 246 Cal.App.4th 1150 ................................................................................................................ 17
DeLaura v. Beckett,
26
(2006) 137 Cal.App.4th 69 .................................................................................................................... 19
27
Evans v. City of Berkeley,
28
(2006) 38 Cal.4th 1 ................................................................................................................................ 12

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 4
1 Filarsky v. Superior Ct.,
2 (2022) 28 Cal.4th 419 ............................................................................................................................ 19

3 Fox v. JAMDAT Mobile, Inc.,
(2010) 185 Cal.App.4th 1068 ................................................................................................................ 12
4
General of America Ins. Co. v. Lilly,
5
(1968) 258 Cal.App.2d 465 ................................................................................................................... 19
6 Graham v. Bank of America, N.A.,
7 (2014) 226 Cal.App.4th 594 .................................................................................................................. 18
8 Ingram v. Flippo,

9 (1990) 74 Cal.App.4 1280 .................................................................................................................... 12
Koll-Irvine Center Property Owners Assn. v. County of Orange,
10
(1994) 24 Cal.App.4th 1036 .................................................................................................................. 14
11
Mendez v. Rancho Valencia Resort Partners, LLC,
12
(2016) 3 Cal.App.5th 248 ...................................................................................................................... 13
13 Mobley v. L.A. Unified School Dist.,
14 (2001) 90 Cal.App.4th 1221 .................................................................................................................. 12

15 Rincon Band of Luiseno Mission Indians etc. v. Flynt
(2021) Cal.App. 5th 1059 ...................................................................................................................... 16
16
San Diego Gas & Electric Co. v. Superior Court,
17
(1996) 13 Cal.4th 893 ............................................................................................................................ 13
18
Schaeffer v. Gregory Village Partners, L.P.
19 (N.D. Cal. 2015) 105 F.Supp.3d 951……………………………………….….……….…….……15, 16
20 Schep v. Capital One, N.A.,
21 (2017) 12 Cal.App.5th 1331 .................................................................................................................. 12

22 State of Calif. v. Superior Court,
(1974) 12 Cal.3d 237 ............................................................................................................................. 19
23
Walter H. Leimert Co. v. California Coastal Com.,
24
(1983) 149 Cal.App.3d 222 ................................................................................................................... 19
25 Wilson v. Transit Authority,
26 (1962) 199 Cal.App.2d 716 ................................................................................................................... 19
27 Wyatt v. Union Mortgage Co.,

28 (1979) 24 Cal.3d 773 ....................................................................................................................... 16, 17

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 5
1 Statutes
2 Code Civ. Proc., § 430.10(e)............................................................................................................... 7, 8, 9

3 Code Civ. Proc., § 1601 ............................................................................................................................ 19
Code Civ. Proc., § 3480…….………………………………………………………………….………...16
4
Code Civ. Proc., § 430.41 ......................................................................................................................... 21
5

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 6
1 DEMURRER TO COMPLAINT
2 Pursuant to California Code of Civil Procedure (“CCP”) § 430.10(e), Defendants JEFF
3 CROSBY and SUSAN CROSBY (the “Crosbys”) hereby generally demur to the Second Amended
4 Complaint for (1) Private Nuisance—Illegal Sports Court, (2) Private Nuisance—Pickleball Play, (3)
5 Public Nuisance—Illegal Sports Court, (4) Public Nuisance—Playing of Pickleball, (5) Conspiracy to
6 Commit Private Nuisance—Illegal Sports Court, (6) Conspiracy to Commit Private Nuisance—Playing
7 of Pickleball, (7) Conspiracy to Commit Public Nuisance—Illegal Sports Court, (8) Conspiracy to
8 Commit Public Nuisance—Playing of Pickleball, and (9) Declaratory Relief, filed by Plaintiffs
9 ROBERT SCHWOB and CHRISTINE SCHWOB, individually, on the following grounds as against
10 the Crosbys only:
11 DEMURRER TO THE SIXTH CAUSE OF ACTION
12 (PRIVATE NUISANCE—ILLEGAL SPORTS COURT)
13 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Sixth Cause of Action for Private Nuisance on
14 the grounds that it does not state facts sufficient to constitute a cause of action against the Crosbys.
15 DEMURRER TO THE SEVENTH CAUSE OF ACTION
16 (PRIVATE NUISANCE—PICKLEBALL PLAY)
17 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Seventh Cause of Action for Public
18 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the
19 Crosbys.
20 DEMURRER TO THE EIGHTH CAUSE OF ACTION
21 (PUBLIC NUISANCE—ILLEGAL SPORTS COURT)
22 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Eighth Cause of Action for Public
23 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the
24 Crosbys.
25 ///
26 ///
27 ///
28 ///

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 7
1 DEMURRER TO THE NINTH CAUSE OF ACTION

2 (PUBLIC NUISANCE—PLAYING OF PICKLEBALL)

3 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Ninth Cause of Action for Public

4 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the

5 Crosbys.

6 DEMURRER TO THE TENTH CAUSE OF ACTION

7 (CONSPIRACY TO COMMIT PRIVATE NUISANCE—ILLEGAL SPORTS COURT)

8 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Tenth Cause of Action for Private

9 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the

10 Crosbys.

11 DEMURRER TO THE ELEVENTH CAUSE OF ACTION

12 (CONSPIRACY TO COMMIT PRIVATE NUISANCE—PLAYING OF PICKLEBALL)

13 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Eleventh Cause of Action for Private

14 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the

15 Crosbys.

16 DEMURRER TO THE TWELFTH CAUSE OF ACTION

17 (CONSPIRACY TO COMMIT PUBLIC NUISANCE—ILLEGAL SPORTS COURT)

18 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Twelfth Cause of Action for Private

19 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the

20 Crosbys.

21 DEMURRER TO THE THIRTEENTH CAUSE OF ACTION

22 (CONSPIRACY TO COMMIT PUBLIC NUISANCE—PLAYING OF PICKLEBALL)

23 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Thirteenth Cause of Action for Private

24 Nuisance on the grounds that it does not state facts sufficient to constitute a cause of action against the

25 Crosbys.

26 ///

27 ///

28 ///

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 8
1 DEMURRER TO THE FOURTEENTH CAUSE OF ACTION

2 (DECLARATORY RELIEF)

3 Pursuant to CCP § 430.10(e), the Crosbys demurs to the Fourteenth Cause of Action for

4 Declaratory Relief on the grounds that it does not state facts sufficient to constitute a cause of action

5 against the Crosbys.

7 DATED: February 13, 2024 REICKER, PFAU, PYLE & McROY LLP

9 By_________________________________
Robert B. Forouzandeh
10 Melissa Rapp
Attorneys for Defendants Jeff Crosby and Susan Crosby
11

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 9
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 This is now Plaintiffs’ third attempt to plead a valid complaint. Similar to the original

4 Complaint and the First Amended Complaint, the Second Amended Complaint (“SAC”) fails to state

5 sufficient facts for all nine causes of action leveled against the Crosbys. Plaintiffs have failed to remedy

6 the deficiencies of their original complaint (the “Complaint”) as recognized in the Court’s September

7 20, 2023 ruling on the County of Santa Barbara’s demurrer (“Demurrer Order”). 1 Instead, Plaintiffs

8 have merely re-asserted causes of action against the Crosbys for nuisance, conspiracy, and declaratory

9 relief and added irrelevant new allegations.

10 In January 2022, the County of Santa Barbara (the “County”) received a report from Plaintiffs

11 Robert and Christine Schwob (the “Schwobs”) about a pickleball court in the backyard of the Crosbys’

12 Montecito property. The County’s relevant land use code does not prohibit a landowner’s ability to play

13 pickleball (or any sport) on private property. The County code does regulate “structures” (such as

14 sports courts) in regard to the property line setbacks. When notified by the County of a setback issue,

15 the Crosbys properly abated the concern by converting the structure to a patio. A patio is not defined as

16 a “structure” by the County and is thus not subject to setback restrictions.

17 The Schwobs have filed suit against the Crosbys seeking removal of the patio, related fencing,

18 and the complete cessation of pickleball noise. In asserting that the patio and activity constitute a

19 private and public nuisance, the SAC lacks sufficient facts.

20 Moreover, the Schwobs erroneously allege the Crosbys “conspired” with the County to allow

21 the patio to exist. In doing so, the SAC ignores the Demurrer Order, which explained that conspiracy is

22 not an independent cause of action. In addition, even if the conspiracy cause of action could stand, the

23 SAC fails to include any statements establishing the requisite intent to conspire or to commit a

24 wrongful act.

25 Similarly, the Schwobs seek a declaration that the Crosbys are in violation of the County’s own

26 land use codes--even though the County itself does not believe they are in violation of the codes. Such

28 1
At the time this Court sustained the County’s Demurrer, the Crosbys’ Demurrer to the original Complaint was pending and
became moot and was not ruled upon as a result of the County’s Demurrer.

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 10
1 declaratory relief is not appropriate to challenge an agency’s adjudicatory application of a land use

2 ordinance to a specific land parcel.

3 For these reasons, the Crosbys request that the demurrers to the sixth, seventh, eighth, ninth,

4 tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action against the Crosbys be sustained

5 without leave to amend.

6 II. STATEMENT OF ALLEGED FACTS

7 Plaintiffs Robert and Christine Schwob are owners of a home on East Valley Road in

8 Montecito. (SAC at ¶¶ 11, 12, 20.) Defendants Jeff and Susan Crosby live on Santa Angela Lane and

9 share a rear property line with the Schwobs. (SAC at ¶¶ 4, 12, 20.)

10 In January 2022, County staff visited the Crosby property after receiving a complaint. (SAC at

11 ¶¶ 28, Exh. C.) The County confirmed the existence of a non-compliant backyard sports court and

12 issued a Notice of Violation (“NOV”). (Id.) The NOV informed the Crosbys that although structures

13 are allowed, the cumulative footprint must not exceed 30% of the total setback (SAC, Exh. C.) At that

14 time, the sports court violated code because it constituted a “structure” and, together with an Accessory

15 Dwelling Unit under construction, encroached into the setback. (Id.) The Crosbys were informed how

16 to abate the violation and promptly sought to do so. (Id.)

17 In line with the available abatement options, the Crosbys removed the permanent pickleball net,

18 painted over the court stripes, and lowered the nearby fence height to six feet. (SAC at ¶ 42.) The

19 County determined that these actions properly corrected the violations. (SAC, Exh. I.) With respect to

20 the setback restriction, removing the net and lines converted the sports court to a patio. Given the

21 County does not consider a patio a “structure,” the patio no longer factored into the 30% cap on setback

22 encroachment (Id.)

23 As the County code does not restrict a property owner’s ability to play pickleball or any other

24 sport, the Crosbys continued to lawfully engage in the sport on the newly converted patio. (SAC at ¶

25 43). As allowed under County requirements, the Crosbys are able to continue to use the area for

26 pickleball by using a moveable net and temporary boundaries. (SAC at ¶ 51).

27 ///

28 ///

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 11
1 III. STANDARD OF REVIEW

2 A demurrer “test[s] the sufficiency of a complaint by raising questions of law,” including

3 “whether the complaint states facts sufficient to constitute a cause of action.” (Award Metals, Inc. v.

4 Super. Ct. (1991) 228 Cal.App.3d 1128, 1131.) To survive a demurrer, “a pleading must contain factual

5 allegations supporting the existence of all the essential elements of the asserted claims. (Mobley v. L.A.

6 Unified School Dist. (2001) 90 Cal.App.4th 1221, 1239.) In particular, a court may properly sustain a

7 general demurrer to a declaratory relief claim without leave to amend when the controversy presented

8 can be determined as a matter of law. (California State Employees’ Assn. v. Flournoy 32 Cal.App.3d

9 219, 240-241.)

10 Although courts “assume the truth of all facts properly pleaded,” they need not assume the truth

11 of “contentions, deductions, or conclusions of fact or law.” (Cansino v. Bank of America (2014) 224

12 Cal.App.4th 1462, 1468.) “‘[A] complaint otherwise good on its face is subject to demurrer when facts

13 judicially noticed render it defective.’“ (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20.) A court

14 “must” “disregard allegations that are contrary to judicially noticed facts and documents.” (Schep v.

15 Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337.) And where the contents of a document not

16 attached to the complaint “form the basis of the allegations” in the complaint, it is “essential” that the

17 court evaluate the complaint by reference to those documents. (Ingram v. Flippo (1990) 74 Cal.App.4

18 1280, 1285.)

19 Moreover, when a cause of action is asserted against two or more defendants, “the sufficiency

20 of the complaint against one defendant does not immunize the plaintiff against a properly imposed

21 demurrer by another defendant who may separately demur.” (Fox v. JAMDAT Mobile, Inc. (2010) 185

22 Cal.App.4th 1068, 1078.)

23 IV. ARGUMENT
A. The SAC Fails to State Facts Sufficient to Constitute Sixth and Seventh Causes of Action
24 for Private Nuisance--Illegal Sports Court and Private Nuisance--Pickleball Play.
25 The Schwobs’ SAC duplicates the private nuisance cause of action from their prior complaint

26 iterations, applying it, first to an “Illegal Sports Court” and second, to “Pickleball Play.”

27 First, the sixth cause of action for “Private Nuisance—Illegal Sports Court” is erroneous at the

28 outset in its use of the term “illegal” in its title. The Crosbys complied with the County’s orders and

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 12
1
removed any element of a sports court. (SAC at ¶ 42-43; Exh. I.) As established by the County and its
2
applicable ordinances, the current existing structure is a patio – as defined by the County and found by
3
the County to be in full compliance of the County’s ordinances (RJN, Exh. 1 and 2.). The zoning
4
enforcement case was closed in April 2023. (Id.) In the SAC, the Schwobs attempt to distract from the
5
SAC’s deficiencies by repeatedly and incorrectly referring to the Crosbys’ patio as “illegal” and
6
“unpermitted” to support their claim that it is a nuisance (SAC at ¶¶ 93, 103, 106, 121.) However, as
7
previously noted, The Schwobs’ assertions are inflammatory and unsupported. There is no basis for this
8
cause of action because, as the County has concluded, no illegal sports court exits.
9
Second, the Schwobs’ revisions in the SAC do not cure the defects of the Complaint and First
10
Amended Complaint whereby a cause of action for private nuisance was not adequately pled. To
11
establish a cause of action for private nuisance, the plaintiff must first prove an interference with his
12
use and enjoyment of his property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
13
893, 938.) Second, the invasion of the plaintiff’s interest in the use and enjoyment of the land must be
14
substantial, i.e., that it caused the plaintiff to suffer substantial actual damage. (Id.) Third, the
15
interference with the protected interest must not only be substantial, but it must also be
16
unreasonable…i.e., it must be of such a nature, duration, or amount as to constitute unreasonable
17
interference with the use and enjoyment of the land. (Id.) Substantial damage and unreasonableness are
18
to be judged by an objective standard. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3
19
Cal.App.5th 248, 264.)
20
With respect to the substantial damage element, the degree of harm is to be measured by the
21
effect the invasion would have on persons of normal health and sensibilities living in the same
22
community. (SD G&E, supra, 13 Cal.4th at pp. 938–939.) “‘If normal persons in that locality would not
23
be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even
24
though the [idiosyncrasies] of the particular plaintiff may make it unendurable to him.’“ (Id.)
25
With respect to the unreasonableness element, the primary test for determining whether the
26
invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the
27
defendant’s conduct, taking a number of factors into account. (Id.) “Again the standard is objective: the
28
question is not whether the particular plaintiff found the invasion unreasonable, but ‘whether

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 13
1
reasonable persons generally, looking at the whole situation impartially and objectively, would consider
2
it unreasonable.’“ (Id.)
3
Here, the Schowbs’ SAC is peppered with statements that the Crosbys’ conduct was
4
“unreasonable.” (SAC at ¶¶ 27, 103, 106, 122, 136). Again, simply saying the magic word by itself is
5
nothing more than a legal conclusion which the court may disregard when evaluating the legal
6
sufficiency of the pleading. (See Blank v. Kirwan (1985) 39 Cal.3d at p. 318, 216). The Schwobs fail to
7
adequately plead facts to plead the “unreasonableness” element in the context of a private nuisance
8
claim, such as the nature, duration, or amount that the gravity of the harm outweighs the social utility of
9
the conduct. (SAC at ¶¶ 90-103 and 104-122). The Schwobs attempt to remedy these deficiencies with
10
vague conclusory references to neighbors: “…the sport of pickleball creates a nuisance for neighboring
11
properties.” (SAC ¶ 59). Yet no facts are alleged to explain or support this conclusion or to explain how
12
the Schwobs have been “substantially annoyed or disturbed” by the pickleball’s alleged “piercing
13
noises.” (SAC ¶ 60). Similarly, pleading the magic word of “social utility” without any factual basis of
14
what that means is not enough. (SAC at ¶¶ 96, 115, 125.) As the Schwobs’ pleading is devoid of any
15
allegation that compares or weighs the harm suffered versus social utility, the SAC fails to state a prima
16
facie case of private nuisance.
17
More importantly, there is no factual allegation that the mere existence of the “sport court”/patio
18
causes any nuisance. The Schwobs allege, in conclusory fashion, that when the Crosbys play pickleball
19
on the patio that the noise becomes loud. This fact in and of itself demonstrates that the Sixth Cause of
20
Action is deficient.
21
Moreover, a private nuisance action cannot be maintained for an interference in the use and
22
enjoyment of land caused solely by the fear of a future injury. (Koll-Irvine Center Property Owners
23
Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041–1042.) (See Atkins v. Sacramento Mun.
24
Utility Dist. (1992) 18 Cal.App.4th 208: where plaintiff failed to present evidence to show an actual
25
damage to themselves or their properties and the cited fear, anxiety, and emotional distress did not
26
support a private action for nuisance.) The Schwobs allege they “are concerned about the health risks
27
associated with the stress, upset, and annoyance, and long-term exposure to the excessive noise and
28
disturbance levels” created by the Crosbys’ game-playing, which purportedly “render their home and

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 14
1
yard unusable.” (SAC at ¶¶ 109, 111). Yet the Schwobs’ “concern” or anxiety about their future health
2
is not enough to maintain a cause of action for private nuisance – there has been no actual harm thus
3
far. In addition, the Schwobs claim they have suffered “economic hardship” and that their “property has
4
diminished in value” (SAC at ¶ 101),without any factual explanation of how or why the Schwob’s
5
lawful use of their property – as confirmed by the County – has negatively impacted their property
6
value or what economic hardship the Schwobs have endured. .
7
Accordingly, the Schwobs’ sixth and seventh causes of action for private nuisance cannot
8
survive the Crosbys’ demurrer.
9 B. The SAC Fails to State Facts Sufficient to Constitute an Eighth and Ninth Cause of Action
10 for Public Nuisance—Illegal Sports Court and Public Nuisance--Pickleball Play.

11 The Schwobs SAC again duplicates the public nuisance cause of action from prior complaints,

12 applying it both to an “Illegal Sports Court” and “Pickleball Play.”

13 First, as discussed above, the Crosbys complied with the County’s orders and removed any

14 elements of a sports court. (SAC, Exhibit I). As established by the County, the remaining structure is a

15 patio, which has been found to be in full compliance (by the County) of the County’s ordinances (RJN,

16 Exh. 1 and 2.). The zoning enforcement case was closed in April 2023. (Id.) As such, the eighth cause

17 of action for Public Nuisance—Illegal Sports Court fails to state facts sufficient to be maintained.

18 In the SAC, the Schwobs attempt to distract from the SAC’s deficiencies by repeatedly referring

19 to the Crosbys’ patio as “illegal” and “unpermitted” to support their claim that it is a nuisance (SAC at

20 ¶¶ 106, 121.) However, as previously noted, the Schwobs’ assertions are unsupported and contradicted

21 by the County – who is the sole arbitrator on what improvements are illegal and which ones are not.

22 There is no basis for this cause of action because no “illegal” or any other type of sports court exits.

23 More importantly, there is no factual allegation that the mere existence of the “sport court”/patio causes

24 any nuisance. The Schwobs allege, in conclusory fashion, that when the Crosbys play pickleball on the

25 patio that the noise becomes loud. This fact in and of itself demonstrates that the Eighth Cause of

26 Action is deficient.

27 Second, Plaintiffs have failed to establish public nuisance in the SAC. A public nuisance claim

28 under California law requires a plaintiff to prove: (1) the existence of a duty; (2) causation; and that the

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 15
1
alleged interference with the use or enjoyment of property is both (3) substantial; and (4) unreasonable.
2
(Schaeffer v. Gregory Village Partners, L.P. (N.D.Cal.2015) 105 F.Supp.3d 951, 966.)
3
In addition to the requirements set forth in Section IV(A) above to allege a private nuisance, to
4
have standing to pursue a public nuisance as a private person, plaintiff must adequately allege the
5
existence of a nuisance affecting the community at large, and also that they sustained a special injury,
6
distinct in some way from the more general public harm. (Cal Civ. Code § 3480; Rincon Band of
7
Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App. 5th 1059, 1100.) Thus, the focus must be
8
upon whether an entire neighborhood or community or at least a considerable number of persons are
9
affected in the manner and by the factors that make the thing a nuisance under the Civil Code section
10
defining nuisance [§ 3480] ; i.e., a private nuisance does not become a public nuisance merely because
11
the public may be said to be affected in some tangential manner, rather than specifically in the manner
12
set forth in that Civil Code section. (Beck Development Co. v. Southern Pacific Transportation Co.
13
(1996) 44 Cal.App.4th 1160, 1209.)
14
Here, the Schwobs have failed to establish that the activities alleged in the SAC interferes with
15
collective social interests in any manner, let alone in a substantial and unreasonable manner. They have
16
also not shown how they have sustained a special, distinct injury. Furthermore, the Schwobs have failed
17
to establish how the community, or at least a considerable number of people, are specifically affected in
18
the manner set out under the Civil Code. The Schwobs’ factually devoid conclusory statement that
19
“…the sport of pickleball creates a nuisance for neighboring properties” is without any substantiation
20
(SAC ¶ 59) or any allegation that any other neighbor has had any issues with or expressed any concern
21
with the activities alleged in the SAC. Therefore, the Schwobs’ eighth and ninth causes of action for
22
public nuisance fails.
23
C. The Demurrer to the Tenth, Eleventh, Twelfth, and Thirteenth Causes of Action Should
24 Be Sustained Because Conspiracy is Not an Independent Cause of Action and Nonetheless
25 the Allegation of a Conspiracy to Commit a Private Nuisance and Public Nuisance is Not
26 Sufficiently Pled.

27 Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who,
28 although not actually committing a tort themselves, share with the immediate tortfeasors a common

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 16
1 plan or design in its perpetration. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784, 157;

2 Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th at 511.) In its Demurrer Order,

3 this Court agreed. (Demurrer Order at p. 19.)

4 In attempting to cure this deficiency in the SAC, the Schwobs edited each section heading to

5 add “to Commit Private Nuisance—Illegal Sports Court/Playing of Pickleball” and “to Commit Public

6 Nuisance—Illegal Sports Court/Playing of Pickleball” following Conspiracy. The Schowbs have not

7 revised the content of either section. The Schwobs simply added a few additional words to the section

8 heading and duplicated the causes of action to apply them to both “Illegal Sports Court” and “Playing

9 of Pickleball.” The Schwobs’ minor heading revisions do not cure the failure to plead any new or

10 additional facts to establish a cause of action which this Court already pointed out were deficient

11 previously.

12 To state a conspiracy claim under California law, a plaintiff must allege (1) formation and

13 operation of the conspiracy and (2) damages resulting to plaintiff (3) from a wrongful act done in

14 furtherance of the common design. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7

15 Cal.4th at 511.) It is “well-settled that bare allegations and rank conjecture do not suffice for civil

16 conspiracy.” (AREI II Cases (2013) 216 Cal.App. 4th 1004, 1022.) To withstand demurrer, the facts

17 alleged must detail “the nature of the acts done, the relations of the parties, the interests of the alleged

18 conspirators, and other circumstances.” (117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649.)

19 As in the Complaint and FAC, the Schwobs’ allegations (as they are duplicated) in the SAC fall

20 short. They plead no facts that the Crosbys entered into a conspiracy with the County, merely providing

21 conclusory statements that the Crosbys did so. (SAC at ¶¶ 43, 153-155). Simply using the magic word

22 of “conspiracy” by itself is insufficient. (See Daniels v. Select Portfolio Servicing, Inc., (2016) 246

23 Cal.App.4th 1150, 1173 finding that appellants failed to allege that respondents conspired to commit

24 fraud when they allege that respondents “agreed to deceive appellants into participating in the loan

25 modification processes” but noted that respondents provided “no factual allegations about the nature of

26 that agreement.”)

27 The Schwobs provide no factual allegations that would show that the Crosbys schemed with the

28 County to create a private or a public nuisance, that the parties intentionally joined in this scheme, and

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 17
1 that such action was done for the purpose of injuring the Schowbs or the public. There are no

2 allegations about a relationship between the Crosbys and the County that would support an inference

3 that the Crosbys sought to conspire to create a private or a public nuisance “in allowing an illegal

4 pickleball court to exist.” (SAC at ¶153). Vaguely referring to supposed “phone calls and personal

5 meetings” that Defendants “secretly conspired” does not establish conspiracy. (SAC at ¶154). The

6 Schwobs argument that to the contrary, the facts show the Crosbys actively worked to bring the

7 property into compliance with land use codes and successfully did so. (See e.g., Request for Judicial

8 Notice (“RJN”), Exh. 1 and 2).

9 Finally, the SAC brings up a new issue of a purported violation of the County’s Grading Code

10 and building permit requirements (SAC at ¶152). This allegation is baseless. The County has not found

11 violation of either requirement. The Schwobs’ claim that “the County, which initially required that

12 there be no evidence of sports equipment and that the fence be relocated to five feet inward later

13 ignored those requirements and permitted the Sports court to exist, without requiring a permit” (SAC

14 at ¶57) is inaccurate and nonsensical. The Schwobs cannot unilaterally decide a violation of the

15 County’s own ordinances has taken place—they are not the County. Moreover, the Schowbs insistence

16 that “surreptitious communications” must have taken place between the County and the Crosbys (Id.) is

17 insufficient to establish conspiracy. While the Schwobs may be unhappy about the County’s application

18 of its laws and ordinances, an unsupported conspiracy cause of action is not appropriate to express such

19 dissatisfaction.

20 Accordingly, the Schwobs’ “conspiracy to commit private nuisance” tenth and eleventh causes

21 of action and “conspiracy to commit public nuisance” twelfth and thirteenth causes of action cannot

22 survive the Crosbys’ demurrer.

23 D. The SAC Fails to State Facts Sufficient to Constitute a Fourteenth Cause of Action for

24 Declaratory Relief.

25 To obtain declaratory relief, not only must there be an actual controversy, but a court may

26 refuse to issue a declaration if it is improper or unnecessary. (Graham v. Bank of America, N.A. (2014)

27 226 Cal.App.4th 594, 618.) “The fundamental basis of declaratory relief is the existence of an actual,

28 present controversy over a proper subject.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) “The

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 18
1 court may sustain a demurrer on the ground that the complaint fails to allege an actual or present

2 controversy, or that it is not ‘justiciable.’“ (DeLaura v. Beckett (2006) 137 Cal.App.4th 69, 79). “The

3 court also may sustain a demurrer without leave to amend if it determines that a judicial declaration is

4 not ‘necessary or proper at the time under all the circumstances.’“ (Id. (quoting Code Civ. Proc., § 1601

5 and Wilson v. Transit Authority (1962) 199 Cal.App.2d 716, 721).) “[T]he court properly may refuse to

6 grant relief where an appropriate procedure has been provided by special statute and the court believes

7 that more effective relief can and should be obtained through that procedure.” (Filarsky v. Superior Ct.

8 (2022) 28 Cal.4th 419, 433.)

9 In the SAC, the Schwobs have again simply restated identical allegations (adding minor detail

10 that is either incorrect or inapplicable), and fail to cure the defects of the Complaint and the First

11 Amended Complaint. The Schwobs improperly ask the Court to declare that the Crosbys’ patio

12 currently violates provisions in the Montecito Land Use and Development Code despite the fact that the

13 County, the ultimate arbiter of its own codes and ordinances, has already determined the violations

14 were abated (Complaint at ¶ 74; FAC at ¶ 116; SAC at ¶ 183 and Complaint, Exh. C; RJN, Exh. 1 and

15 2). The law is well established that an action for declaratory relief is not appropriate to review an

16 administrative decision. (Walter H. Leimert Co. v. California Coastal Com. (1983) 149 Cal.App.3d

17 222.) Declaratory relief is an appropriate remedy only if the party is seeking a declaration that the

18 statute or regulation is unconstitutional. (Agins v. City of Tiburon (1979) 24 Cal.3d 266); State of Calif.

19 v. Superior Court (1974) 12 Cal.3d 237, 249 (where a demurrer was sustained to declaratory relief

20 cause of action which sought the same remedies as writ of mandate).) Although the Schwobs are

21 undoubtedly unhappy with the County’s determination that the Crosbys are now in compliance with

22 relevant codes, the proper method of pursuing this grievance is via mandamus--not declaratory relief.

23 Finally, the Schwob’s declaratory relief cause of action is redundant, raising identical issues to

24 the first cause of action for mandamus against the County. “The declaratory relief statute should not be

25 used for the purpose of anticipating and determining an issue which can be determined in the main

26 action. The object of the statute is to afford a new form of relief where needed and not to furnish a

27 litigant with a second cause of action to determine identical issues.” (General of America Ins. Co. v.

28 Lilly (1968) 258 Cal.App.2d 465, 470). Under section 1601 of the Code of Civil Procedure, the court

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 19
1 may refuse to exercise the power to grant declaratory relief if it is not necessary or proper at the time

2 under all of the circumstances. (California Ins. Guarantee Assn. v. Superior Court (1991) 231

3 Cal.App.3d 1617, 1623-4.) The availability of another form of relief that is adequate will usually justify

4 a refusal to grant declaratory relief. (Id.) As the Schwobs’ concerns will be heard in the mandamus

5 proceedings, declaratory relief is improper.

6 E. The Court Should Deny Plaintiff Leave to Amend Because No Liability Exists Under
7 Substantive Law.

8 When the parties agreed to stipulate to grant the Schwobs leave to amend to file the Second

9 Amended Complaint, after the Schwobs failed to even oppose the various demurrers to the FAC, the

10 stipulation specifically provided that no further leave to amend would be granted to the Schwobs if a

11 demurrer to the SAC was sustained.

12 As such, by the Schwob’s own stipulation, if this Court grants the Demurrer, no further leave to

13 amend should be granted.

14 V. CONCLUSION

15 Based on the foregoing, the Crosbys respectfully request that the demurrers to the sixth,

16 seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action as to the

17 Crosbys be sustained without leave to amend.

19 DATED: February 13, 2024 REICKER, PFAU, PYLE & McROY LLP
20
By____________________________________
21 Robert B. Forouzandeh
Melissa Rapp
22 Attorneys for Defendants Jeff and Susan Crosby
23

DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 20
1 DECLARATION OF MELISSA RAPP

2 I, Melissa Rapp, declare that:

3 1. I am an attorney at law duly licensed to practice before all Courts of the State of

4 California and am a partner of the law firm of Reicker, Pfau, Pyle & McRoy LLP, attorneys of record

5 for Defendants Jeff Crosby and Susan Crosby (the “Crosbys”) in this action.

6 2. I have personal knowledge of the matters stated herein, except as to those matters stated

7 on information and belief, and as to those matters, I believe them to be true. If called to testify, I could

8 and would competently testify to the facts stated herein.

9 3. I am making this declaration to explain the means by which I complied with the meet

10 and confer requirements pursuant to Code of Civil Procedure § 430.41 before filing this demurrer to the

11 Second Amended Verified Complaint (“SAC”) with the Court.

12 4. On January 11, 2024, I e-mailed Mr. Scafide, the attorney of record for Plaintiffs, to

13 provide reasoning for why I believed that the Second Amended Complaint is subject to demurrer and to

14 schedule a telephone call to discuss my concerns. Plaintiffs’ attorneys responded on January 15th and

15 we scheduled a call for January 18, 2024.

16 5. On January 18, 2024, Mr. Scafide and I telephonically met and conferred. I explained

17 the Crosbys’ position with respect to why the Sixth through Fourteenth Causes of Action are deficient

18 and subject to Demurrer. Mr. Scafide disagreed with the Crosbys’ position. We did not come to an

19 agreement and I told him that we would proceed to file our demurrer.

20 I declare under penalty of perjury under the laws of the State of California that the foregoing is

21 true and correct.

23 Dated: February 13, 20

Case Info

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Anderle, Thomas P Track Judge’s New Case

Case No.

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Document Filed Date

February 13, 2024

Case Filing Date

June 06, 2023

County

Parties

Corsby, Susan Respondent
County of Santa Barbara California Respondent
Crosby, Jeff Respondent
Scafide, James F Attorney
Schwob, Christine Petitioner 2
Schwob, Christine Petitioner 2 (participant)
Schwob, Robert Petitioner
Christine Monroe Attorneys for Defendants
Tyler Sprague Attorneys for Plaintiffs
Robert Forouzandeh Attorneys for Defendants
Melissa Rapp Attorneys for Defendants
Thomas Anderle Attorney

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Motion,Ex Parte: Robert Schwob vs County of Santa Barbara California et al

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