Preview
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
7
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 DEFENDANTS JEFF AND SUSAN
v. CROSBY’S REPLY TO PLAINTIFFS
14 ROBERT AND CHRISTINE SCHWOB’S
the COUNTY OF SANTA BARBARA, OPPOSITION TO THE DEMURRER TO
15 CALIFORNIA, a political subdivision; JEFF THE SECOND AMENDED VERIFIED
CROSBY, an individual; SUSAN CROSBY, COMPLAINT
16 an individual; AND DOES 1-50,
INCLUSIVE,
17 Assigned to: Honorable Thomas P. Anderle
Defendants. Hearing Date: April 17, 2024
18 Time: 10:00 a.m.
Dept.: SB 3
19
20
21
22
23 COMES NOW Defendants JEFF CROSBY and SUSAN CROSBY (“Defendants” or the
24 “Crosbys”) Reply to Plaintiffs’ Opposition to Defendants’ Demurrer to the Second Amended Verified
25 Complaint for Damages and Injunctive Relief (the “Opposition”) filed by Plaintiffs ROBERT
26 SCHWOB, individually, and CHRISTINE SCHWOB, individually, (“Plaintiffs” or the “Schwobs”).
27 ///
28 ///
REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 1
1 Plaintiffs’ Opposition to Defendants’ Demurrer to Plaintiffs’ Second Amended Complaint (the
2 “SAC”) does nothing to address the fundamental failures of Plaintiffs’ claims. If anything, Plaintiffs’
3 Opposition eliminates any doubt that the sixth, seventh, eighth, ninth, tenth, eleventh, twelfth,
4 thirteenth, and fourteenth causes of action are not properly alleged. Plaintiffs’ third attempt to keep
5 their deficient claims alive has failed.
6 While Plaintiffs’ enumerated causes of action have multiplied exponentially in their third
7 attempt to plead a valid complaint, Plaintiffs have not adequately alleged additional facts to cure the
8 defects. In an attempt to distract from this fact, the Opposition quotes ample case law but remains
9 noticeably thin on application of such to the facts pled and/or missing in the SAC. Plaintiffs’
10 conclusory statements that “sufficient detail” has been provided (Opposition at p. 1) do nothing to show
11 that Plaintiffs have remedied the deficiencies stated by the Court in its September 20, 2023 ruling on
12 the County of Santa Barbara’s demurrer (“Demurrer Order”) to Plaintiffs’ original complaint. The
13 Court must necessarily sustain the demurrer to the SAC and put an end to this needless waste of judicial
14 resources.
15 1. The Request for Judicial Notice is Proper per Evidence Code 452
16 Plaintiffs concede in their accompanying Opposition to Defendants’ Request for Judicial Notice
17 that Evidence Code section 452, subdivision (c) allows the Court to take judicial notice of an official
18 act of a government agency (Plaintiffs’ Opposition to Motion for Judicial Notice at pp. 1-2).
19 Defendants’ Request for Judicial Notice asks the Court to do exactly that—that the County of Santa
20 Barbara took the action of closing the enforcement action that was against the Crosbys’ property and
21 which is discussed in the SAC. (See e.g., Request for Judicial Notice (“RJN”), Exh. 1 and 2.)
22 Defendants do not ask the Court to consider the truth of the statements made in the County’s
23 April 2023 letters, only the fact that the County took the official act of closing the zoning enforcement
24 action. Plaintiffs incorrectly state that the Crosbys directed the Court to assess factual issues contained
25 in the letters (Id.). Plaintiffs undoubtedly do so because by recognizing the County’s official act
26 occurred, Plaintiffs’ false claim that the Crosbys are currently in violation of County guidelines fails.
27 The Court should disregard Plaintiffs’ erroneous argument and take judicial notice that the County of
28 Santa Barbara closed the zoning enforcement action against the Crosby property.
REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 2
1 2. Plaintiffs Have Not Complied with the Court’s Prior Demurrer Order Regarding the
2 Conspiracy Cause of Action
3 In the original Demurrer Order, this Court agreed that conspiracy is not an independent cause of
4 action, as established by the California Supreme Court three decades ago. (Demurrer Order at p. 17.)
5 Rather, conspiracy is “a legal doctrine that imposes liability on persons who, although not actually
6 committing a tort themselves, share with the immediate tortfeasors a common plan or design in its
7 perpetration.” (Id.) After multiple amendments, the Plaintiffs continue to disregard the Demurrer
8 Order—only revising section headings and adding duplicative claims, but failing to plead additional
9 facts to establish a valid cause of action.
10 On top of the fact that “conspiracy” is not a legally recognized cause of action, Plaintiffs blindly
11 insist that the conspiracy claim “is more than rank conjecture” (Opposition at p. 7). Yet Plaintiffs
12 have—for the third time—failed to include factual allegations that would show (1) that the Crosbys
13 schemed with the County to create a private or a public nuisance, (2) that the parties intentionally
14 joined in this scheme, and (3) that such action was done for the purpose of injuring the Schowbs or the
15 public. (SAC at ¶153, Opposition at 3-4). Loosely alleging supposed “phone calls and personal
16 meetings” during which Defendants “secretly conspired” via “surreptitious communications” with the
17 County does not establish conspiracy. (SAC at ¶¶ 57, 154). What did the parties agree upon? Who at
18 the County was involved? Plaintiffs’ statements are absolutely the definition of “rank conjecture.”
19 Although the Schowbs are unhappy with the fact that the County closed its enforcement action against
20 the Crosbys, the facts show that the Crosbys have successfully complied with all relevant land use
21 codes and building permit requirements. (See e.g., RJN, Exh. 1 and 2).
22 As there is “no such thing as a separate cause of action for conspiracy” (Demurrer Order at p.
23 18) and the Schwobs have already included duplicative public and private nuisance causes of action,
24 the Court should sustain the Demurrer to the separately alleged tenth, eleventh, twelfth, and thirteenth
25 conspiracy causes of action.
26 ///
27 ///
28 ///
REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 3
1 3. Plaintiffs Fail to Adequately Plead Public Nuisance Under Any Legal Theory
2 Plaintiffs’ Opposition is devoid of response to the arguments made by the Crosbys in the
3 Demurrer. Namely, to have standing to pursue a public nuisance as a private person, plaintiff must
4 adequately allege the existence of a nuisance affecting the community at large, and also that they
5 sustained a special injury, distinct in some way from the more general public harm. (Cal Civ. Code §
6 3480; Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App. 5th 1059, 1100.) In
7 essence, an entire neighborhood or community or at least a considerable number of persons should be
8 affected. (§ 3480.)
9 Plaintiffs concede this doctrine applies (Opposition at pp. 6-7), but offer no facts to establish
10 that any other community members are affected by the Crosbys’ backyard play. There is no allegation
11 that any other member of the public has heard or been impacted in any other way by the Crosbys
12 playing pickleball. Instead, Plaintiffs attempt to distract the Court by arguing that Plaintiffs are
13 pleading a “violation of the Code” (Id. at 7). If this argument were accepted, then every time a property
14 owner violated a building or zoning code, they would be committing a public nuisance. No such
15 authority exists.
16 Furthermore, as stated above, this argument lacks any factual basis in addition to lacking any
17 legal authority, as the County—not the Plaintiffs—determine whether a Code violation exists. The
18 County has determined the Crosbys are not in violation of any County codes. (See e.g., RJN, Ex. 1 and
19 2). Accordingly, Plaintiffs have no leg to stand on and have failed again to allege any facts to maintain
20 the eighth and ninth causes of action for public nuisance.
21 4. Plaintiffs Fail to Plead Private Nuisance and Attempt to Mask this Failure by Referencing
22 Inapplicable Case Law
23 As with Plaintiffs other Opposition arguments, Plaintiffs attempt to gloss over the SAC’s
24 deficiencies with irrelevant or inapplicable arguments. In desperation, Plaintiffs cite case law from
25 Michigan and Wisconsin in an attempt to establish a “certain noise level” could become a nuisance
26 irrespective of a noise ordinance violation (Opposition at p. 3).
27 Plaintiffs then cite Acadia California Ltd. V. Herbert, a largely inapplicable case. In Acadia,
28 Defendant willfully and maliciously shut off Plaintiffs’ water supply, a disruption that caused Plaintiff
REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 4
1 to fear for his safety. (Acadia, California, Limited v. Herbert(1960) 54 Cal.2d 328, 336.) Plaintiffs’
2 wife suffered from a mental illness and had a relapse after the water shut-off, resulting in her receiving
3 “extensive medical treatment and hospitalization.” (Id. at 337.) The Acadia court considered a situation
4 where a clear harm had already occurred.
5 In contrast, Plaintiffs allege private nuisance based on concern about potential future harm.
6 Plaintiffs state that “they are concerned about the health risks associated with the stress, upset, and
7 annoyance, and long-term exposure to the excessive noise” created by the Crosbys. [emphasis added]
8 (SAC at ¶¶ 109, 111). The Schwobs’ “concern” about their future health is not enough to maintain a
9 cause of action for private nuisance when there has been no actual harm. Plaintiffs also fail to plead the
10 “unreasonableness” element in the context of a private nuisance claim, such as the nature, duration, or
11 amount that the gravity of the harm outweighs the social utility of the conduct. (SAC at ¶¶ 90-103 and
12 104-122.) As with the Opposition’s other sections, Plaintiffs fail to explain or to remedy these many
13 deficiencies. The sixth and seventh cause of action for private nuisance remain defective as they fail to
14 state facts sufficient to be maintained.
15 5. Conclusion
16 The Crosbys respectfully request that this Court sustain the Defendants’ Demurrer to the sixth,
17 seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth cause of action in the Second
18 Amended Complaint. As the parties stipulated when leave to amend and file the SAC was granted, this
19 was Plaintiffs’ last chance. As such, the Demurrer should be sustained without leave to amend.
20
21 DATED: April 10, 2024 REICKER, PFAU, PYLE & McROY LLP
22
By____________________________________
23 Robert B. Forouzandeh
Melissa Rapp
24 Attorneys for Defendants Jeff and Susan Crosby
25
26
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28
REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 5
1
PROOF OF SERVICE
2
3 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
4 I, the undersigned, say that I am a citizen of the United States, over 18 years of age, and not a
party to the within action. I am employed by the law firm of Reicker, Pfau, Pyle & McRoy LLP, 1421
5 State Street, Ste. B, Santa Barbara, California 93101.
6 On April 10, 2024, I served the foregoing document described as: DEFENDANT JEFF AND
7 SUSAN CROSBY’S REPLY TO PLAINTIFFS ROBERT AND CHRISTINE SCHWOB’S
OPPOSITION TO THE DEMURRER TO THE SECOND AMENDED VERIFIED
8 COMPLAINT on the interested parties listed below, as follows:
9 SEE ATTACHED SERVICE LIST
10 ( ) (By Mail) I caused such document to be mailed in a sealed envelope, by first-class mail,
11 postage fully prepaid. I am “readily familiar” with this firm’s practice of collection and
processing correspondence for mailing. It is deposited with the U.S. postal service on that same
12 day in the ordinary course of business. I am aware that on motion of party served, service is
presumed invalid if the postal cancellation date or postage meter date is more than one (1) day
13 after the date of deposit for mailing as stated in this declaration.
14 ( ) (By Personal Service) I caused such document to be delivered by hand.
15
( ) (By Fax) I caused such document to be sent via facsimile transmission to the above-listed
16 addressee(s) and FAX number(s). This transmission was reported as complete and without
error.
17
(X) ((By E-mail [CCP § 1010.6(a)(2)) On the date indicated on this Proof of Service, at the time
18
indicated on in the header of my electronic mail, I transmitted the foregoing document(s) by
19 electronic mail to one or more of the recipients at each firm indicated on this Proof of Service. I
caused my computer to print or maintain a record of the electronic mail to the recipients named
20 in this Proof of Service, a true and correct copy of which has been retained by Reicker, Pfau,
Pyle & McRoy LLP in either hard copy or electronic format in the ordinary course of business
21 and is available for inspection if necessary.
22
(X) (State) I declare under penalty of perjury pursuant to the laws of the State of California that the
23 foregoing is true and correct.
24 Executed April 10, 2024, at Santa Barbara, California.
25
_______________________________
26
Nolan O’Malley
27 Legal Assistant
28
REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 6
1 SERVICE LIST
2
3 James F. Scafide Attorneys for Plaintiffs,
Tyler Sprague ROBERT SCHWOB and CHRISTINE
4 FIGUEROA LAW GROUP SCHWOB
7 West Figueroa St., Suite 300
5 Santa Barbara, CA 93103
jim@figueroa.law
6 tyler@figueroa.law
7
Christine M. Monroe, Deputy Attorneys for Defendant,
8 D’Ann Sjovold COUNTY OF SANTA BARBARA
COUNTY OF SANTA BARBARA
9 105 E. Anapamu St., 93101
Santa Barbara, CA 93101
10
cmonroe@countyofsb.org
11 dsjovold@countyofsb.org
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REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND
COMPLAINT: Page 7
Preview
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 7 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 DEFENDANTS JEFF AND SUSAN v. CROSBY’S REPLY TO PLAINTIFFS 14 ROBERT AND CHRISTINE SCHWOB’S the COUNTY OF SANTA BARBARA, OPPOSITION TO THE DEMURRER TO 15 CALIFORNIA, a political subdivision; JEFF THE SECOND AMENDED VERIFIED CROSBY, an individual; SUSAN CROSBY, COMPLAINT 16 an individual; AND DOES 1-50, INCLUSIVE, 17 Assigned to: Honorable Thomas P. Anderle Defendants. Hearing Date: April 17, 2024 18 Time: 10:00 a.m. Dept.: SB 3 19 20 21 22 23 COMES NOW Defendants JEFF CROSBY and SUSAN CROSBY (“Defendants” or the 24 “Crosbys”) Reply to Plaintiffs’ Opposition to Defendants’ Demurrer to the Second Amended Verified 25 Complaint for Damages and Injunctive Relief (the “Opposition”) filed by Plaintiffs ROBERT 26 SCHWOB, individually, and CHRISTINE SCHWOB, individually, (“Plaintiffs” or the “Schwobs”). 27 /// 28 /// REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 1 1 Plaintiffs’ Opposition to Defendants’ Demurrer to Plaintiffs’ Second Amended Complaint (the 2 “SAC”) does nothing to address the fundamental failures of Plaintiffs’ claims. If anything, Plaintiffs’ 3 Opposition eliminates any doubt that the sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, 4 thirteenth, and fourteenth causes of action are not properly alleged. Plaintiffs’ third attempt to keep 5 their deficient claims alive has failed. 6 While Plaintiffs’ enumerated causes of action have multiplied exponentially in their third 7 attempt to plead a valid complaint, Plaintiffs have not adequately alleged additional facts to cure the 8 defects. In an attempt to distract from this fact, the Opposition quotes ample case law but remains 9 noticeably thin on application of such to the facts pled and/or missing in the SAC. Plaintiffs’ 10 conclusory statements that “sufficient detail” has been provided (Opposition at p. 1) do nothing to show 11 that Plaintiffs have remedied the deficiencies stated by the Court in its September 20, 2023 ruling on 12 the County of Santa Barbara’s demurrer (“Demurrer Order”) to Plaintiffs’ original complaint. The 13 Court must necessarily sustain the demurrer to the SAC and put an end to this needless waste of judicial 14 resources. 15 1. The Request for Judicial Notice is Proper per Evidence Code 452 16 Plaintiffs concede in their accompanying Opposition to Defendants’ Request for Judicial Notice 17 that Evidence Code section 452, subdivision (c) allows the Court to take judicial notice of an official 18 act of a government agency (Plaintiffs’ Opposition to Motion for Judicial Notice at pp. 1-2). 19 Defendants’ Request for Judicial Notice asks the Court to do exactly that—that the County of Santa 20 Barbara took the action of closing the enforcement action that was against the Crosbys’ property and 21 which is discussed in the SAC. (See e.g., Request for Judicial Notice (“RJN”), Exh. 1 and 2.) 22 Defendants do not ask the Court to consider the truth of the statements made in the County’s 23 April 2023 letters, only the fact that the County took the official act of closing the zoning enforcement 24 action. Plaintiffs incorrectly state that the Crosbys directed the Court to assess factual issues contained 25 in the letters (Id.). Plaintiffs undoubtedly do so because by recognizing the County’s official act 26 occurred, Plaintiffs’ false claim that the Crosbys are currently in violation of County guidelines fails. 27 The Court should disregard Plaintiffs’ erroneous argument and take judicial notice that the County of 28 Santa Barbara closed the zoning enforcement action against the Crosby property. REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 2 1 2. Plaintiffs Have Not Complied with the Court’s Prior Demurrer Order Regarding the 2 Conspiracy Cause of Action 3 In the original Demurrer Order, this Court agreed that conspiracy is not an independent cause of 4 action, as established by the California Supreme Court three decades ago. (Demurrer Order at p. 17.) 5 Rather, conspiracy is “a legal doctrine that imposes liability on persons who, although not actually 6 committing a tort themselves, share with the immediate tortfeasors a common plan or design in its 7 perpetration.” (Id.) After multiple amendments, the Plaintiffs continue to disregard the Demurrer 8 Order—only revising section headings and adding duplicative claims, but failing to plead additional 9 facts to establish a valid cause of action. 10 On top of the fact that “conspiracy” is not a legally recognized cause of action, Plaintiffs blindly 11 insist that the conspiracy claim “is more than rank conjecture” (Opposition at p. 7). Yet Plaintiffs 12 have—for the third time—failed to include factual allegations that would show (1) that the Crosbys 13 schemed with the County to create a private or a public nuisance, (2) that the parties intentionally 14 joined in this scheme, and (3) that such action was done for the purpose of injuring the Schowbs or the 15 public. (SAC at ¶153, Opposition at 3-4). Loosely alleging supposed “phone calls and personal 16 meetings” during which Defendants “secretly conspired” via “surreptitious communications” with the 17 County does not establish conspiracy. (SAC at ¶¶ 57, 154). What did the parties agree upon? Who at 18 the County was involved? Plaintiffs’ statements are absolutely the definition of “rank conjecture.” 19 Although the Schowbs are unhappy with the fact that the County closed its enforcement action against 20 the Crosbys, the facts show that the Crosbys have successfully complied with all relevant land use 21 codes and building permit requirements. (See e.g., RJN, Exh. 1 and 2). 22 As there is “no such thing as a separate cause of action for conspiracy” (Demurrer Order at p. 23 18) and the Schwobs have already included duplicative public and private nuisance causes of action, 24 the Court should sustain the Demurrer to the separately alleged tenth, eleventh, twelfth, and thirteenth 25 conspiracy causes of action. 26 /// 27 /// 28 /// REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 3 1 3. Plaintiffs Fail to Adequately Plead Public Nuisance Under Any Legal Theory 2 Plaintiffs’ Opposition is devoid of response to the arguments made by the Crosbys in the 3 Demurrer. Namely, to have standing to pursue a public nuisance as a private person, plaintiff must 4 adequately allege the existence of a nuisance affecting the community at large, and also that they 5 sustained a special injury, distinct in some way from the more general public harm. (Cal Civ. Code § 6 3480; Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App. 5th 1059, 1100.) In 7 essence, an entire neighborhood or community or at least a considerable number of persons should be 8 affected. (§ 3480.) 9 Plaintiffs concede this doctrine applies (Opposition at pp. 6-7), but offer no facts to establish 10 that any other community members are affected by the Crosbys’ backyard play. There is no allegation 11 that any other member of the public has heard or been impacted in any other way by the Crosbys 12 playing pickleball. Instead, Plaintiffs attempt to distract the Court by arguing that Plaintiffs are 13 pleading a “violation of the Code” (Id. at 7). If this argument were accepted, then every time a property 14 owner violated a building or zoning code, they would be committing a public nuisance. No such 15 authority exists. 16 Furthermore, as stated above, this argument lacks any factual basis in addition to lacking any 17 legal authority, as the County—not the Plaintiffs—determine whether a Code violation exists. The 18 County has determined the Crosbys are not in violation of any County codes. (See e.g., RJN, Ex. 1 and 19 2). Accordingly, Plaintiffs have no leg to stand on and have failed again to allege any facts to maintain 20 the eighth and ninth causes of action for public nuisance. 21 4. Plaintiffs Fail to Plead Private Nuisance and Attempt to Mask this Failure by Referencing 22 Inapplicable Case Law 23 As with Plaintiffs other Opposition arguments, Plaintiffs attempt to gloss over the SAC’s 24 deficiencies with irrelevant or inapplicable arguments. In desperation, Plaintiffs cite case law from 25 Michigan and Wisconsin in an attempt to establish a “certain noise level” could become a nuisance 26 irrespective of a noise ordinance violation (Opposition at p. 3). 27 Plaintiffs then cite Acadia California Ltd. V. Herbert, a largely inapplicable case. In Acadia, 28 Defendant willfully and maliciously shut off Plaintiffs’ water supply, a disruption that caused Plaintiff REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 4 1 to fear for his safety. (Acadia, California, Limited v. Herbert(1960) 54 Cal.2d 328, 336.) Plaintiffs’ 2 wife suffered from a mental illness and had a relapse after the water shut-off, resulting in her receiving 3 “extensive medical treatment and hospitalization.” (Id. at 337.) The Acadia court considered a situation 4 where a clear harm had already occurred. 5 In contrast, Plaintiffs allege private nuisance based on concern about potential future harm. 6 Plaintiffs state that “they are concerned about the health risks associated with the stress, upset, and 7 annoyance, and long-term exposure to the excessive noise” created by the Crosbys. [emphasis added] 8 (SAC at ¶¶ 109, 111). The Schwobs’ “concern” about their future health is not enough to maintain a 9 cause of action for private nuisance when there has been no actual harm. Plaintiffs also fail to plead the 10 “unreasonableness” element in the context of a private nuisance claim, such as the nature, duration, or 11 amount that the gravity of the harm outweighs the social utility of the conduct. (SAC at ¶¶ 90-103 and 12 104-122.) As with the Opposition’s other sections, Plaintiffs fail to explain or to remedy these many 13 deficiencies. The sixth and seventh cause of action for private nuisance remain defective as they fail to 14 state facts sufficient to be maintained. 15 5. Conclusion 16 The Crosbys respectfully request that this Court sustain the Defendants’ Demurrer to the sixth, 17 seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth cause of action in the Second 18 Amended Complaint. As the parties stipulated when leave to amend and file the SAC was granted, this 19 was Plaintiffs’ last chance. As such, the Demurrer should be sustained without leave to amend. 20 21 DATED: April 10, 2024 REICKER, PFAU, PYLE & McROY LLP 22 By____________________________________ 23 Robert B. Forouzandeh Melissa Rapp 24 Attorneys for Defendants Jeff and Susan Crosby 25 26 27 28 REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 5 1 PROOF OF SERVICE 2 3 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA 4 I, the undersigned, say that I am a citizen of the United States, over 18 years of age, and not a party to the within action. I am employed by the law firm of Reicker, Pfau, Pyle & McRoy LLP, 1421 5 State Street, Ste. B, Santa Barbara, California 93101. 6 On April 10, 2024, I served the foregoing document described as: DEFENDANT JEFF AND 7 SUSAN CROSBY’S REPLY TO PLAINTIFFS ROBERT AND CHRISTINE SCHWOB’S OPPOSITION TO THE DEMURRER TO THE SECOND AMENDED VERIFIED 8 COMPLAINT on the interested parties listed below, as follows: 9 SEE ATTACHED SERVICE LIST 10 ( ) (By Mail) I caused such document to be mailed in a sealed envelope, by first-class mail, 11 postage fully prepaid. I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal service on that same 12 day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one (1) day 13 after the date of deposit for mailing as stated in this declaration. 14 ( ) (By Personal Service) I caused such document to be delivered by hand. 15 ( ) (By Fax) I caused such document to be sent via facsimile transmission to the above-listed 16 addressee(s) and FAX number(s). This transmission was reported as complete and without error. 17 (X) ((By E-mail [CCP § 1010.6(a)(2)) On the date indicated on this Proof of Service, at the time 18 indicated on in the header of my electronic mail, I transmitted the foregoing document(s) by 19 electronic mail to one or more of the recipients at each firm indicated on this Proof of Service. I caused my computer to print or maintain a record of the electronic mail to the recipients named 20 in this Proof of Service, a true and correct copy of which has been retained by Reicker, Pfau, Pyle & McRoy LLP in either hard copy or electronic format in the ordinary course of business 21 and is available for inspection if necessary. 22 (X) (State) I declare under penalty of perjury pursuant to the laws of the State of California that the 23 foregoing is true and correct. 24 Executed April 10, 2024, at Santa Barbara, California. 25 _______________________________ 26 Nolan O’Malley 27 Legal Assistant 28 REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 6 1 SERVICE LIST 2 3 James F. Scafide Attorneys for Plaintiffs, Tyler Sprague ROBERT SCHWOB and CHRISTINE 4 FIGUEROA LAW GROUP SCHWOB 7 West Figueroa St., Suite 300 5 Santa Barbara, CA 93103 jim@figueroa.law 6 tyler@figueroa.law 7 Christine M. Monroe, Deputy Attorneys for Defendant, 8 D’Ann Sjovold COUNTY OF SANTA BARBARA COUNTY OF SANTA BARBARA 9 105 E. Anapamu St., 93101 Santa Barbara, CA 93101 10 cmonroe@countyofsb.org 11 dsjovold@countyofsb.org 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY TO THE OPPOSITION TO THE DEMURRER TO SECOND AMENDED VERIFIED PETITION AND COMPLAINT: Page 7