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.)