Judge: Armen Tamzarian, Case: 23STCV07646, Date: 2024-05-23 Tentative Ruling
Case Number: 23STCV07646 Hearing Date: May 23, 2024 Dept: 52
Defendants
James Takis and Douglas Reed’s Demurrer and Motion to Strike Portions of
Complaint
Demurrer
Defendants James Takis, individually and as
trustee of The James Taki Revocable Trust dated February 23, 1988, and Douglas
Reed, demur to the third through seventh causes of action alleged by plaintiffs
Dawyne P. Henry and Brandy L. Lakis, as trustee of The Brandy L. Lakis Trust,
U/A dated October 26, 2016.
3rd Cause of Action: Vandalism (Penal Code §
594)
Plaintiffs
do not allege sufficient facts for this cause of action. Penal Code section 594 governs the crime of
vandalism. That statute does not provide
for a civil action. (Compare Pen. Code,
§ 594 with Pen. Code, § 496, subd. (c) [“Any person who has been injured by a
violation of subdivision (a) or (b) may bring an action for three times the
amount of actual damages, if any, sustained by the plaintiff, costs of suit,
and reasonable attorney’s fees”].)
4th Cause of Action: Private Nuisance
Plaintiffs do not allege sufficient facts for
this cause of action. Private nuisance is “a nontrespassory
interference with the private use and enjoyment of land.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937 (San Diego Gas).) It requires “interference with the
plaintiff’s use and enjoyment of [his or her] property.” (Ibid.) The invasion must be “substantial” and
“ ‘unreasonable.’ ” (Id.
at p. 938.) “The primary test for
determining whether the invasion is unreasonable is whether the gravity of the
harm outweighs the social utility of the defendant’s conduct, taking a number
of factors into account.” (Ibid.) “[T]he standard is objective: the question is
not whether the particular plaintiff found the invasion unreasonable, but
‘whether reasonable persons generally, looking at the whole situation
impartially and objectively, would consider it unreasonable.’ ” (Ibid.)
In
the section on this cause of action, the complaint alleges, “On April 5, 2022,
Defendants, including by and through their agents, entered onto Plaintiffs’
Property and cut, thinned, and removed a significant portion of Plaintiffs’
trees, creating a condition that subjects Plaintiffs to a continuous invasion
of privacy and is an obstruction to the free use of Plaintiffs’ Property, to
interfere with the comfortable enjoyment of life and said property, as Plaintiffs
cannot utilize their yard without being viewed by Defendant Takis, Defendant
Reed, or any other individual residing, visiting, or occupying the Takis
Property and/or the Reed Property.” (¶
62.)
Cutting
trees on plaintiffs’ property may constitute a trespass (which plaintiffs
allege in their first and second causes of action). But that is not “a nontrespassory
interference.” (San Diego Gas, supra,
13 Cal.4th at p. 937.)
As to “being viewed” in their yard by their
neighbors, plaintiffs fail to allege a substantial and objectively unreasonable
interference. The law generally does not
recognize real property rights to the view from one’s property. (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 535 [“ ‘ “a landowner has no natural right to air, light or an unobstructed
view and the law is reluctant to imply such a right” ’ ”].) Plaintiffs provide no authority for a corresponding
right to not be viewed by others on one’s property. Being visible to others is not a substantial
interference with use and enjoyment of property. Furthermore, the complaint alleges, “The Takis Property and Reed
Property are adjacent to one another and sit slightly elevated above
Plaintiffs’ Property.” (¶ 15.) Being seen by their uphill neighbors is not an
objectively unreasonable interference with the use of plaintiffs’ land.
5th Cause of Action: Intrusion into Private
Affairs
Plaintiffs
do not allege sufficient facts for this cause of action. “[T]he action for intrusion has two elements: (1) intrusion into a
private place, conversation or matter, (2) in a manner highly offensive to a
reasonable person.” (Shulman v. Group
W Productions, Inc. (1998) 18 Cal.4th 200, 231.) That plaintiffs have “direct visual access
into Plaintiffs’ yard” (Comp., ¶ 74) such that they “cannot utilize their yard
without being viewed by” their neighbors (¶ 75) is not intrusion in a manner
highly offensive to a reasonable person.
6th Cause of Action: Conspiracy
Plaintiffs
do not allege sufficient facts for this cause of action. “Conspiracy
is not a cause of action, but a legal doctrine that imposes liability on
persons who, although not actually committing a tort themselves, share with the
immediate tortfeasors a common plan or design in its perpetration. [Citation.]
By participation in a civil conspiracy, a coconspirator effectively
adopts as his or her own the torts of other coconspirators within the ambit of
the conspiracy. [Citation.] In this way, a coconspirator incurs tort
liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi
Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.)
The complaint
alleges, “Defendant Takis and Defendant Reed agreed and knowingly conspired
between themselves to intentionally cause Defendant Takis’s gardeners and/or landscapers
to enter Plaintiffs’ Property, without Plaintiffs’ permission, to cut down,
thin, and remove a significant portion of the trees located on Plaintiffs’
Property.” (¶ 84.) Rather than an independent cause of action, that
may constitute a basis for holding Takis and Reed liable for others’
torts. Plaintiffs’ complaint previously
asserts tort causes of action against Takis and Reed. The sixth cause of action for “conspiracy” is
superfluous.
7th Cause of Action: Quiet Title
Plaintiffs’
complaint is defective as to this cause of action. In a quiet title action, “[t]he complaint
shall be verified.” (CCP §
761.020.) Plaintiffs’ complaint is not verified.
Motion to Strike
Defendants
Takis and Reed move to strike 11 portions of the complaint regarding punitive
damages. Courts may strike allegations
related to punitive damages where the facts alleged “do not rise to the level
of malice, oppression or fraud necessary” to recover punitive damages under Civil
Code section 3294. (Turman v. Turning
Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) Conclusory allegations are not enough. (Smith v. Superior Court (1992)
10 Cal.App.4th 1033, 1042.) The
complaint must make “factual assertions supporting a conclusion [defendants]
acted with oppression, fraud or malice.”
(Ibid.)
Portion Nos. 3 (¶ 58), 4 (¶ 70), 5, (¶ 80), 6 (¶
88), 8 (prayer, p. 18:8), 9 (prayer, p. 18:18), 10 (prayer, p. 18:28), and 11
(prayer, p. 19:7) arise from the third through seventh causes of action. The court sustains defendants’ demurrer to
those causes of action. As to these
portions of the complaint, the motion to strike is therefore moot.
Portion Nos. 1 (¶ 41), 2 (¶ 52), and 7 (prayer, p.
17:16) arise from the first cause of action for trespass and the second cause
of action for trespass to timber. Plaintiffs
allege sufficient facts for punitive damages for these causes of action. Plaintiffs allege defendants instructed
landscapers to “intentionally enter[] onto Plaintiffs’ Property by cutting,
trimming, and thinning a significant portion of Plaintiffs’ trees.” (Comp., ¶¶ 36, 47.) They further allege, “Defendants had prior
knowledge that Plaintiffs would not consent to Defendants’ entry.” (¶¶ 37, 48.) “Defendants forcibly cut, trimmed, removed,
and damaged the trees located on Plaintiffs’ Property.” (¶¶ 38, 49.)
At this stage, these allegations suffice for
punitive damages. Whether the alleged
conduct rises to the level of malice, oppression, or fraud is a question of
fact.
Disposition
Defendants James Takis and Douglas Reed’s
demurrer to plaintiffs Dwayne P. Henry and Brandy L. Lakis’s third through
seventh causes of action is sustained with 20 days’ leave to amend.
Defendants’ motion to strike portions of
plaintiffs’ complaint is denied.