Judge: Christopher K. Lui, Case: 22STCV35466, Date: 2023-03-23 Tentative Ruling
Case Number: 22STCV35466 Hearing Date: March 23, 2023 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the demurrer and motion addressed
herein. As required by Rule 3.1308(a)(2), any party seeking oral argument
must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to
appear and argue. Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of
intention to appear is not given and the parties do not appear, the Court will
adopt the tentative ruling as the final ruling.
Plaintiff alleges that Defendants have trespassed upon his property by erecting encroachments upon Plaintiff’s property, including a wrought iron gate, fencing, and landscaping onto several hundred square feet of Plaintiff’s property without Plaintiff’s consent.
Defendants David Nicklen, Anita Moeira-Nicklen and The Nicklen Family Trust demur to the Complaint and move to strike portions thereof.
TENTATIVE RULING
Defendants David Nicklen, Anita Moeira-Nicklen and The Nicklen Family Trust’s demurrer to the Complaint is OVERRULED as to the fourth cause of action.
Defendants’ motion to strike is
GRANTED with leave to amend as to the punitive damages allegations at Page 3, ¶
10, lines 14-17; Page 4, ¶ 18, lines 14-17; Pages 5 and 6, ¶ 26, lines 27-2; Page
7 line 18, prayer on first cause of action for trespass; Page 7 line 25, prayer
on second cause of action for nuisance; Page 8 line 12, prayer on fourth cause of
action for intentional infliction of emotional distress.
The motion to strike is GRANTED without leave
to amend as to Page 9 line 14, prayer on all causes of action for attorney’s
fees.
ANALYSIS
Demurrer
Meet
and Confer
The Declaration of Fang Li
reflects that Defendant’s counsel satisfied the meet and confer requirement set
forth in CCP § 430.41.
Discussion
Defendants David Nicklen, Anita
Moeira-Nicklen and The Nicklen Family Trust demur to the Complaint as follows:
1. Fourth
Cause of Action (Intentional Infliction of Emotional Distress).
Defendants
argue that the Complaint does not plead fact sufficient to constitute a cause
of action for IIED.
“The elements of the tort of intentional
infliction of emotional distress are: ‘ “(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard of the probability
of causing, emotional distress; (2) the plaintiff's suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional
distress by the defendant's outrageous conduct. …” Conduct to be outrageous
must be so extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that
the conduct be intentional and outrageous.
It must be conduct directed at the plaintiff, or occur in the presence of a
plaintiff of whom the defendant is aware.” (Ibid.)
(Catsouras v. Department of
California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)
Here, Plaintiff
alleges at ¶ 23 of the Complaint as follows:
23. Defendants have engaged in extreme and outrageous conduct directed
toward plaintiff and intended to cause, or with regardless disregard of
causing, emotional distress to plaintiff. Such conduct includes i) repeated
trespasses onto plaintiff’s Property, including to erect a wrought iron
gate, fencing, and landscaping which wholly interfere with plaintiff’s use and enjoyment
of his Property and block his unfettered access to his Property, and ii)
promising but then refusing to remove the encroachments.
(Bold emphasis added.)
Defendants’ argument that the iron
fence existed prior to both parties purchasing their property is a factual matter
which requires submission of evidence extrinsic to the Complaint. Certainly, repeated trespasses can constitute
extreme and outrageous conduct depending on the severity and frequency. For pleading purposes, the allegations are
sufficient.
“Regarding emotional distress, the trial court initially determines whether a
defendant's conduct may reasonably be regarded as so extreme and outrageous as
to permit recovery. Where reasonable men can differ, the jury determines
whether the conduct has been extreme and outrageous to result in liability.
Otherwise stated, the court determines whether severe emotional distress can be
found; the jury determines whether on the evidence it has, in fact, existed.
[Citation.]” (Download.)
(Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1613-14.)
The demurrer
to the fourth cause of action is OVERRULED.
Motion To Strike
Meet
and Confer
The Declaration of Fang Li reflects
that Defendant’s counsel satisfied the meet and confer requirement set forth in
CCP § 435.5.
Discussion
Defendants David Nicklen, Anita
Moeira-Nicklen and The Nicklen Family Trust move to strike the following
portions of the Complaint:
1. Page 3, ¶ 10, lines 14-17: “In acting as alleged
and trespassing onto the Property, defendants acted with malice, oppression,
and/or fraud as against plaintiff and in conscious disregard of plaintiff’s
rights, including respecting his quiet and peaceful enjoyment of the Property, such
that plaintiff is entitled to an award of punitive and exemplary damages in an
amount to be proved at trial”;
GRANTED with leave to amend.
To
withstand a motion to strike punitive damages allegations, the complaint must
set forth facts supporting a claim for punitive damages:
The mere allegation an intentional
tort was committed is not sufficient to warrant an award of punitive
damages. (Citation omitted.) Not only must there be circumstances of
oppression, fraud or malice, but facts must be alleged in the pleading
to support such a claim.
(Grieves
v. Superior Court (Fox) (1984) 157 Cal.App.3d 159, 166 [emphasis added].)
(See also Clauson v. Superior Court (Pedus Services, Inc.) (1998) 67
Cal.App.4th 1253, 1255 [“[T]o survive a motion to strike an
allegation of punitive damages, the ultimate facts showing an entitlement to
such relief must be pled by a plaintiff.”])
Plaintiff’s proposed amended complaint asserts a cause of
action for strict liability—which requires no intent—and negligence, which only
requires a breach of duty by conduct falling below the applicable standard of
care. “Malice,” as that term is defined
in Civil Code §3294(c)(1) requires an intent to cause plaintiff injury, which
Plaintiff has not pled.
The Complaint does not contain sufficient factual
allegations to demonstrate that Defendants acted with malice, oppression or
fraud toward Plaintiff, as those terms of defined in Civil Code, § 3294(c) as
follows:
(1) ‘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.
(2) ‘Oppression’ means despicable
conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person's rights.
(3) ‘Fraud’ means an intentional misrepresentation, desceit,
or concealment of a material fact known to the defendant with the intention on
the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.
(Civil Code, §
3294(c)(1)-(3) [bold emphasis added].)
2. Page 4, ¶ 18, lines 14-17: “Defendants acted with
malice, oppression, and/or fraud as against plaintiff and in conscious
disregard of plaintiff’s rights, including respecting his quiet and peaceful
enjoyment of the Property, such that plaintiff is entitled to an award of
punitive and exemplary damages in an amount to be proved at trial”;
GRANTED with leave to amend.
See above re: No. 1.
3.. Pages 5 and 6, ¶ 26, lines 27-2: “Defendants
acted with malice, oppression, and/or fraud as against plaintiff and in
conscious disregard of plaintiff’s rights, including respecting his quiet and peaceful
enjoyment of the Property, such that plaintiff is entitled to an award of
punitive and exemplary damages in an amount to be proved at trial”;
GRANTED with leave to amend.
See above re: No. 1.
4. Page 7 line 18, prayer on first cause of action
for trespass: “For punitive and exemplary damages.”
GRANTED with leave to amend.
See above re: No. 1.
5. Page 7 line 25, prayer on second cause of action
for nuisance: “For punitive and exemplary damages.”
GRANTED with leave to amend.
See above re: No. 1.
6. Page 8 line 12, prayer on fourth cause of action
for intentional infliction of emotional distress: “For punitive and exemplary damages.”
GRANTED with leave to amend.
See above re: No. 1.
7. Page 9 line 14, prayer on all causes of action:
“For attorneys’ fees as permitted by law.”
GRANTED without leave to amend.
Plaintiff asserts only common law causes of action,
not statutory or contractual causes of action which might give rise to a right
to recover attorney’s fees.
“[A]s a general rule, attorney fees
are not recoverable as costs unless they are authorized by statute or
agreement.” (People ex rel. Dept. of
Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th
424, 429.)