Judge Carolyn M. Caietti, Case 37-2020-00019819-CU-OR-CTL 2023-09-07 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2020-00019819-CU-OR-CTL, Date: 2023-09-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/07/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2020-00019819-CU-OR-CTL ZIMMERMAN VS WADE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/05/2023

Defendants Lorinda Trias Wade and Shay Trias' Motion for Summary Adjudication is GRANTED IN PART AND DENIED IN PART.

Background Plaintiffs' First Amended Complaint alleges they are the owners of real property located at 10040 Pandora Dr., La Mesa, County of San Diego, California (the 'Zimmerman Pandora Parcel'). The Zimmerman Pandora Parcel is an unimproved parcel of land with both native California oak trees and various pine trees, natural vegetation, and ancient boulders throughout the parcel. In February of 2019, Defendants' construction workers entered the Zimmerman Pandora Parcel, and, acting at Defendants' direction, without the consent or permission of Plaintiffs, cut down and destroyed trees and large evergreen foliage and shrubbery located on the Zimmerman Pandora Parcel. Defendants trespassed onto Plaintiff's property while conducting construction on their driveway. The FAC asserts causes of action for: (1) trespass; (2) private nuisance; (3) quiet title; (4) declaratory relief; (5) public nuisance.

Defendants answered and filed a cross-complaint against certain individuals and entities responsible for construction work that effected the Zimmerman Pandora Parcel.

Preliminary Matters Defendants' reply is late. (C.C.P., § 1005(b).) Notwithstanding, the Court considered the reply.

In reply, Defendants withdrew the request for summary adjudication of Plaintiffs' attorney fee claim.

(ROA 215.) Plaintiffs' objections Nos. 1-3 to the Declaration of Timothy Lawson are overruled.

Plaintiffs' objections Nos. 4-6 to the Declaration of Colin Walshok are overruled.

Defendants' reply objections Nos. 1-9 to the Declaration of James Zimmerman are overruled. In light of Defendants' withdrawal of the attorney fee issue, objections No. 10-12 are sustained.

Defendants' reply objections No. 13-14 to the Declaration of Michael Perez are overruled. Objection No.

15 is sustained.

Defendants' reply objection No. 16 to the Declaration of Dania Barroso-Condo of the declaration in its Calendar No.: Event ID: TENTATIVE RULINGS

2971257 33 CASE NUMBER: CASE TITLE: ZIMMERMAN VS WADE [IMAGED] 37-2020-00019819-CU-OR-CTL entirety is sustained in light of Defendants' withdrawal of the attorney fee issue. The other objections to this declaration are thus moot.

Discussion In this motion, Defendants Trias and Wade move for summary adjudication on Plaintiffs' claim for punitive damages on the trespass and private nuisance causes of action.

A party may move for summary adjudication as to one or more claims for damages if the party contends there is 'no merit to a claim for damages, as specified in Section 3294 of the Civil Code...' (C.C.P., § 437c(f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a claim for damages. (Ibid.) Summary adjudication motions are 'procedurally identical' to summary judgment motions. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) A three-step analysis is employed in ruling on motions for summary judgment. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) First, the court identifies the issues framed by the pleadings. (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617.) Second, the court determines whether the moving party has established facts justifying judgment in its favor. (Ibid.) Third, if the moving party carried its initial burden, the court decides whether the opposing party demonstrated the existence of a triable issue of material fact. (Id. at p. 618.) In conducting this analysis, the court must strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-39), and may not weigh the evidence or conflicting inferences. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Id. at p. 850.) The standard for a motion for summary adjudication on a claim for punitive damages is whether clear and convincing evidence exists to support that claim. (Szarowicz v. Birenbaum (2020) 58 Cal.App.5th 146, 171.) While a plaintiff need not prove their case for punitive damages to defeat summary adjudication, in ruling on a summary judgment or summary adjudication motion, the judge must view the evidence presented through the prism of the substantive clear and convincing evidentiary burden. (Ibid.

(quotations & brackets omitted).) Civil Code section 3294(a) states, in an action for the breach of an obligation not arising from contract, 'where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, the plaintiff in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.' Malice, oppression and fraud are defined. (Civ. Code, § 3294(c)(1)-(3).) Specifically, 'malice' means 'conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.' (Civ. Code, § 3294(c)(1).) Defendants met their initial burden. There is evidence Defendant Trias did not intend to harm Plaintiffs, reasonably believed the adjacent property was within her property lines and attempted to rectify the situation and remove the concrete materials. (Declaration of Shay Trias, at ¶¶ 12-16.) With regard to Defendant Wade, Defendants consider the property to be Trias' house and Wade had little to no involvement at the house. (Id., at ¶¶ 4-5.) But disputed facts exist as to Defendant Trias. There is also evidence Defendant Trias knew on April 16, 2020 that her agents were dumping material on Plaintiffs' property and allowed them to continue dumping truckloads of material on the property for four more days. (ROA 209 - Declaration of James Zimmerman, at ¶¶ 3-7.) Further, there is evidence that as of April 19, 2020, Defendant Trias obtained a survey map reflecting the boundary lines of the properties and allowed for dumping of additional material on Plaintiffs' property. (ROA 210 - Declaration of Michael Perez, at Ex. 2.) These facts could lead a trier of fact to determine Defendants intended to cause injury to Plaintiffs' property in conscious disregard of Calendar No.: Event ID: TENTATIVE RULINGS

2971257 33 CASE NUMBER: CASE TITLE: ZIMMERMAN VS WADE [IMAGED] 37-2020-00019819-CU-OR-CTL Plaintiffs' rights and safety. This precludes summary adjudication as Issues Nos. 1 and 3.

As to Defendant Lorinda Wade, the undisputed facts show: Defendant Wade does not reside at the property and never has, Defendants consider the property to be Defendant Trias', Defendant Trias had the authority to make decisions regarding the property, Defendant Wade had little involvement in decion making regarding the property, Defendant Wade told Defendant Trias to take care of the flooding herself and Defendant Wade was not a party to any contract involved in the incident. (UMF 4-8, 10, 18.) The additional fact provided by Plaintiff that their attorney sent a cease and desist letter to Defendant Wade (AMF 36) does not show Defendant Wade took any action, let alone, action with malice, fraud or oppression. This is insufficient to support the existence of a disputed fact on the the punitive damage claims against her. Thus, there are no triable issues of material fact and adjudication on Issues 2 and 4 are warranted.

Thus, the Court GRANTS adjudication as to Issues 2 and 4 and DENIES adjudication as to Issues 1 and 3.

Concluding Orders For these reasons, Defendants' motion is GRANTED IN PART AND DENIED IN PART.

The following issues are deemed established in favor of Defendant Lorinda Wade Trias and against Plaintiffs at the trial of this action, or on final disposition of the action by this Court: Plaintiffs' claim for punitive damages against Defendant Lorinda Wade Trias on the trespass cause of action lacks merit as a matter of law.

Plaintiffs' claim for punitive damages against Defendant Lorinda Wade Trias on the private nuisance cause of action lacks merit as a matter of law.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendant Trias is ordered to: (i) prepare and submit a proposed dismissal consistent with this ruling and in accordance with applicable laws and rules; and (ii) serve written notice of the Court's final order on all parties by September 12, 2023, unless all parties submit on the Court's tentative ruling or waive notice at the hearing.

Plaintiffs are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of motion paperwork.

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