Judge: Barbara M. Scheper, Case: 23STCV13558, Date: 2024-11-15 Tentative Ruling

Case Number: 23STCV13558    Hearing Date: November 15, 2024    Dept: 30

Dept. 30

Calendar No.

Present, et. al. vs. Playa Properties 2, LLC, et. al., Case No. 23STCV13558

Tentative Ruling re:  Defendants’ Demurrer to Second Amended Complaint; Motion to Strike

Derek Eitel, Jay Eitel, and Jenie Eitel, Robert Eitel and Jaynee Eitel (Defendants) demur to Harold Present, Regina Present, and Jacqueline Present’s (Plaintiffs) second cause of action for trespass in their second amended complaint (SAC). Defendants also move to strike Plaintiffs’ prayer and justification for punitive damages. Defendants’ demurrer is sustained without leave to amend and their motion to strike is denied.  Defendants are ordered to answer within ten (10) days of today’s date.

A demurrer is sustained where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., 430.10, subd. (e).) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Yalung v. State (2023) 98 Cal.App.5th 71, 80.) In reviewing a complaint’s legal sufficiency, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Tit. Guaranty Co. (1998) 19 Cal.4th 26, 38.) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, a court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations pleaded or the difficulty a plaintiff may have in proving his allegations. (Ion Equipment Corporation v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

The Court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The Court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court. (Id., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.)

Defendants demur to Plaintiffs’ cause of action for trespass on the ground that Plaintiffs have not pled sufficient facts to support such a claim. (Id., § 430.10, subd. (e).) “The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.” (Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 90 (Golden Gate) [quoting Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262].)

Plaintiffs allege that Defendants exposed bedding planes on a hillside, leaving the hillside on which Plaintiffs’ property is situated unsupported. (SAC ¶ 11.) This created a landslide vulnerable slope and impaired the lateral and subjacent support of Plaintiffs’ property. (Ibid.) Plaintiffs further allege that this removal of support and resulting landslide constitutes a trespass. (Id. ¶ 22.) As a result of these actions, Plaintiffs allege that they have suffered economic losses and emotional distress damages. (Id. ¶ 23–24.)

Defendants argue that Plaintiffs’ allegations do not include an entry onto Plaintiffs’ property as required under Golden Gate. A cause of action for trespass must include an alleged “unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174.) A physical entry may be via personal intrusion or by throwing or placing something on the land. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) It may be on the surface of land, above it, or below it. (Ibid.)

Here, Plaintiffs plead no physical intrusion onto their land. Plaintiffs allege that Defendants’ actions have interfered with their land by causing instability and a resulting landslide. (SAC ¶ 11.) The landslide caused parts of Plaintiffs’ property to collapse, but did not result in a physical entry of an object or person onto Plaintiffs’ land. The landslide occurred because of actions on Defendants’ land. (Id. ¶ 6.) Plaintiffs allege no personal intrusion onto their land above or below ground, nor the entry of any unauthorized object.

Instead, Plaintiffs contend that Defendants’ removal of support on their own property is an indirect invasion still recognized as trespass in California. However, “[r]ecovery allowed in prior trespass actions predicated upon noise, gas emissions, or vibration intrusions has, in each instance, been predicated upon the deposit of particulate matter upon the plaintiffs’ property or on actual physical damage thereto.” (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229.) Even indirect invasions upon property still require a physical intrusion or damage from an entry to be actionable trespasses. No such intrusion is alleged here, where the damage to Plaintiffs’ property derives from a secondary effect of moving adjacent earth. Thus, Plaintiffs’ cause of action for trespass fails as a matter of law.

Plaintiffs are not granted leave to amend. The Court does not find that there is a reasonable probability Plaintiffs can cure their cause of action for trespass with amendment. Plaintiffs’ theory of trespass is inherently flawed, in that their SAC does not allege any sort of entry onto their property by a person or an object. Accordingly, Defendants’ demurrer as to Plaintiffs’ second cause of action for trespass is sustained without leave to amend.

Motion to Strike

Defendants move to strike Plaintiffs’ claims for punitive damages. A plaintiff may recover punitive damages where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Malice is defined as conduct intended to injure the plaintiff or despicable conduct by a defendant acting with a willful and conscious disregard of the rights and safety of others. (Id., § 3294, subd. (c)(1).) Oppression means despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of their rights. (Id., § 3294, subd. (c)(2).) And fraud refers to intentional misrepresentations or concealment of a material fact known to the defendant. (Id., § 3294, subd. (c)(3).)

A plaintiff attempting to prove malice or oppression must offer clear and convincing evidence of despicable conduct. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 328 (Mock).) This refers to conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Id. at p. 331.) A claim for punitive damages is insufficient where it lacks a factual assertion supporting the conclusion that a party acted with oppression, malice, or fraud. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Here, Plaintiffs allege that “the conduct of Defendants . . . has been oppressive, fraudulent, or malicious in that said Defendants have acted with a willful and conscious disregard of the rights and safety of others . . . because they ignored citations from the City of Los Angeles (City) requiring them to repair the retaining wall . . . and also ignored numerous warnings that their retaining wall and slope was about to collapse.” (SAC ¶ 10.) These do not constitute conclusory allegations without any factual basis. Plaintiffs support their claims of oppressive and malicious conduct with Defendants’ ignoring the warnings and citations from the City which preceded and foretold the eventual collapse.

Defendants further argue that their alleged failure to head the warnings and citations from the City does not constitute despicable conduct under Mock. Contrary to Defendants’ assertions, such conduct is potentially despicable. If Defendants were aware of an imminent landslide risk as Plaintiffs allege, then they knew that Plaintiffs were in physical danger. Defendants’ failure to heed warnings from officials, and placing lives in danger as a result, could prove despicable to a jury, justifying punitive damages. Thus, Plaintiffs have pled sufficient facts to warrant a claim for punitive damages. Accordingly, Defendants’ motion to strike is denied.