Judge: David S. Cunningham, Case: 23STCV04372, Date: 2024-11-21 Tentative Ruling


Case Number: 23STCV04372    Hearing Date: November 21, 2024    Dept: 11

Marotta (23STCV04372)

 

Tentative Ruling Re: Demurrer to Second Amended Complaint

 

Date:                           11/21/24

 

Time:                          10:30 am

 

Moving Party:           4045 Vineland Avenue Partners and E&S Ring Management Corp. (collectively “Defendants”)

 

Opposing Party:        Michelle Marotta (“Plaintiff”)

 

Department:              11

 

Judge:                         David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

 

Defendants’ demurrer is overruled as to all three causes of action.

 

BACKGROUND

 

This is a putative class action.  The second amended complaint (“SAC”) alleges:

 

1. Plaintiff brings this action as a class action, on behalf of herself and all other California residents residing on Arch Drive, in Studio City, California, similarly situated, relating to Defendants’ public and private nuisances, and negligence, and negligent infliction of emotional distress.  Defendants and each of them, are alleged herein, to have installed but failed to adequately maintain or secure at least one overly-mature Pine tree on the SUBJECT PROPERTY on and before February 24, 2023, causing said tree to collapse and remain on Arch Drive on and after February 24, 2023 and creating and thereafter maintaining a dangerous condition that Defendants, and each of them, refused to remedy timely at any time.  This constituted a danger to the public due to the risk of immediate physical harm from the collapsed tree and its branches that blocked the public road and alley way, the lack of access due to the road blockage caused by the fallen tree, and the unsafe conditions and resulting damage to utility services that hindered, prevented and interfered with repair crews and repair equipment from the Los Angeles Department of Water and Power (“LADWP”) or any other government agencies, from making repairs needed to restore services to Plaintiff and those similarly situated, within a reasonable time.  [Citations.] Defendants also refused reasonable requests to access or to allow access onto their property so that emergency repairs needed to restore power could be made in a reasonable and safe manner  Such access was needed for reasons including to initiate repairs to power lines and power poles on and near the TREE FALL area including portions of the tree that fell into and out of the SUBJECT PROPERTY.  Also, access to the SUBJECT PROPERTY was needed for anyone to remove the Defendants’ fallen tree or any parts thereof which extended from the SUBJECT PROPERTY to and through Arch Drive and the abutting public alley which was left inaccessible and a continuing dangerous condition as alleged herein. Simply removing the portions of the tree not on the SBJECT PROPERTY would not allow the harm addressed herein to be remedied.  As These acts left an estimated number of over 500, individuals, denizens, residents, tenants or occupants living in or on Arch Drive, to suffer the special and unique personal harm,  emotional distress, inconvenience, and/or deprivation of use of their residences/ouster, actually or constructively, without light, power, heat and/or hot water of any kind, as well as lack of security and dark and unsafe conditions, for an unreasonable amount of time (more than 3 nights and four days as more detailed below in ¶¶ 8-17) (“BAD NEIGHBOR ACTS”).  The BAD NEIGHBOR ACTS also resulted in Plaintiff and those similarly situated incurring general and special damages and entitling them to a permanent injunction against Defendants and each of them, restraining or prohibiting Defendants from installing and failing to adequately maintain, or otherwise refusing to timely remove fallen trees or any portion thereof, they own or manage, or which obstruct or prevent ordinary use of public streets or sidewalks or threatening to or actually downing powerlines in and around Arch Drive.

 

* * *

 

8. At all times relevant Plaintiff and those similarly situated were residents (including as tenants and owners and with property rights) of Arch Drive, in Studio City, California.  The rear of the SUBJECT PROPERTY is located on Arch Drive with an iron fence lining the street as well as various trees including several mature pine trees of 30-50 feet or taller planted and installed several years before February 24, 2023 on the SUBJECT PROPERTY.

 

9. On February 24, 2023, one of those trees had overgrown to such size, weighing several tons and more than 40 feet in height, that it had uprooted and fell through the SUBJECT PROPERTY’s iron fencing and onto the public road and alley.  This created a dangerous condition, including without limit, several limbs protruded like dangerous spikes (including into areas where people walked), debris from the tree was scattered, the length of the enormous tree (while still having the base on Defendants’ property) blocked the public road and alley way and prevented access for equipment and crews needed to make repairs to power lines and poles; and the fallen tree and debris therefrom made it unsafe and too dangerous for repair crews to commence repairs without first removing the fallen tree and accessing the SUBJECT PROPERTY (as noted above) for those the needed emergency repairs.  Further, as addressed above, during February 24 to 27, 2023, Defendants did not permit, prevented, refused, or otherwise would not readily permit equipment or repair crews from LADWP onto the SUBJECT PROPERTY which was needed to make those emergency repairs to restore power and services to Plaintiff and those similarly situated.  Moreover, the alleyway entrance and egress was blocked, including one-end of Arch Drive was entirely blocked and completely obstructed.  Upon information and belief, the over-grown tree collapsed and fell due to the lack of lateral support and subjacent support at the point where the tree was abutting the public road, and due to its overgrowth without the needed additional support or securing of that tree and improper maintenance, causing its insufficient rooting to destabilize the surrounding dirt and land during the rainstorm on or about February 24, 2023, and causing Defendants’ tree to fall onto nearby electricity poles and break several powerlines and bend others along Arch Drive and the alleyway, and which, Defendants knew or should have known, would and did cause all or substantially all of the tenants, residents and apartment buildings on Arch Drive to be left entirely without any power for longer than reasonable, and such that the easternly entrance to Arch Drive was completely blocked and untraversable, dangerous and hazardous, during that time.  (the allegations in this paragraph are referred to as the “TREE FALL”).  

 

10. On and between February 24, 2023 to February 27, 2023, the SUBJECT PROPERTY, operated in the ordinary course of business as a fully functioning apartment rental property fully serviced with onsite staff consisting of a property manager and staff and offsite property or asset managers, engineering and landscaping managers and staff.  

 

11. By the late night of February 24, 2023, Plaintiff and those similarly situated (including other tenants, residents, neighbors, and/or persons suffering from the BAD NEIGHBOR ACTS) and others began to make complaints to Defendants, and each of them, and/or their managers in charge and on the property, to remove the fallen tree and obstructions on the public road, and about their persistence to refusal to stop the BAD NEIGHBOR ACTS or remedy the TREE FALL.  This includes as early as late night on February 24, 2023 through the early morning February 25, 2023, and continually until and through February 27, 2023.  

 

12. In fact, during that time, Defendants, and each of them, were informed and advised of the unsafe and dangerous conditions created by the TREE FALL and there was a growing number of tenants, residents, occupants and/or persons working for LADWP, who physically appeared outside the SUBJECT PROPERTY’s front entrance in person to complain and/or request that Defendants and each of them, remedy the dangerous conditions created by the TREE FALL as well as to grant access to LADWP repair crews and equipment to areas on the SUBJECT PROPERTY needed to restore power and services damaged by the TREE FALL .  Defendants’ managers and employees, refused, and instead argued with these individuals, threatened to call the police and did call police or the sheriff during that time, and would not allow LADWP access to the SUBJECT PROPERTY to remedy to  make emergency repairs to restore power or to to remedy the dangerous condition created by the TREE FALL (or do so itself), and continued to engage in the BAD NEIGHBOR ACTS.  Defendants’ managers and employees also ignored Plaintiff, those other tenants, residents, and occupants and interested persons.  Defendants continued to reject and refuse to comply with multiple requests from LADWP for reasonable and safe access to the SUBJECT PROPERTY so as to allow LADWP to safely make repairs to the downed power lines and broken or bent power poles during the relevant time period. 

 

13. Further, upon information and belief, on or about February 25 or 26, 2023, in response to request to remove the tree as requested by LADWP so power could be restored, one of Defendants’ on-site managers publicly stated in the neighborhood, “F@@@ the tenants” and that Plaintiff or tenants could take care of it themselves, or words to that effect.  The BAD NEIGHBOR acts continued throughout the time, and by the morning of February 26, 2023, at or about 8 am, when LAWDP attempted to make repairs to restore power, they were refused entry onto the SUBJECT PROPERTY by Defendants’ on-site managers and/or staff.

 

14. At all times relevant, Defendants, and each of them, knew or should have known of the TREE FALL, that it caused the power outages, and that the BAD NEIGHBOR ACTS would and did harm Plaintiff and those similarly situated, but Defendants ignored the problem and refused or failed to repair, correct, or remedy the problem or remove the fallen tree or obstructions, despite knowing and being requested to do so urgently, including by putative class members and LADWP, and despite Defendants, and each of them being aware of the ongoing and increasing harm and danger to Plaintiffs, and those similar situated, by the persistence of the TREE FALL and BAD NEIGHBOR ACTS. Yet, they would not attempt to remedy the obstructions, TREE FALL, or discontinue the BAD NEIGHBOR ACTS, nor would Defendants agree to pay to have their fallen tree removed, or actually ensure it was removed at any time or otherwise engage in any act to remedy it or the damages caused by their actions

 

15. By the morning of February 26, 2023, after Plaintiff and those similarly situated had been three nights without any power/electricity/light and were living in squaller, without convenient showers, hot water, electrical stoves, televisions, chargers, and were living in darkness or otherwise ousted, constructively or actually, out of their own homes or apartments, and/or were increasingly suffering intolerable inconveniences, humiliation, emotional distress, and rapid deterioration in habitable living conditions.  Defendants acts continually deprived Plaintiff and those similar situated, of the value of the rents/mortgages and homes or apartments for that time, as Defendants OWNER and PROPERTY MANAGERS were indifferent to Plaintiff and those similarly situation, and they allowed their nuisance to persist including, without limit, continuing to engage in the BAD NEIGHBOR ACTS, continuing to ignore the TREE FALL, and refusing to allow removal and instead permitting the fallen tree to obstruct the public road and damage the power supply in the area.  Nor did Defendants otherwise abate the nuisance or nuisance activities so as to allow for the LADWP to lawfully remove Defendants’ fallen tree and, in fact, continued to prevent LADWP from lawfully making the repairs needed to restore power. 

 

16. By the night of February 26, 2023, LADWP was still unable to access or affect repairs, and did not have authority from Defendants to remove Defendants’ fallen tree, and Defendants, and each of them, still refused to pay for or otherwise remove the fallen tree on their own and they prevented LADWP from taking such action.  After LADWP was turned away and prevented from making repairs, for yet another night, several tenants gathered near the TREE FALL, including Plaintiff and others similarly situated, to protest Defendants’ nuisance and refusal to remedy the nuisances as alleged herein, including calling a tree removal company to remedy the TREE FALL and BAD NEIGHBOR ACTS, and this was observed by at least one Sherriff’s Deputy on-scene.  After approaching Defendants’ on-site managers or staff to pay for the removal that night and being rejected, the tenants (including Plaintiff) engaged in peaceful self-help, by collecting community funds and through a Good Samaritan, to pay the approx. $3,000 to remove and dispose of Defendants’ fallen tree so LADWP could start working on repairs to restore power to Arch Drive so they could return to normal use of their residences, and to permit Plaintiff and those similarly situated to use of the road and sidewalk on Arch Drive without Defendants’ obstructions and debris.

 

17. On February 27, 2023, after four days without power and ordinary and reasonable use of their homes and apartments and without habitable living conditions, the LADWP was able to restore the electrical service and power to Arch Drive at or about 1:30 pm that day as a result of the class members and Good Samarita having the tree removed after Defendants continued to refuse to do so and prevented the removal.  

 

18. However, large pieces of the fallen tree from the TREE FALL were a continuing and persistent nuisance to Plaintiff and those similarly situated, because Defendants, and each of them, refused to remove their debris and continued to ignore the TREE FALL, which persisted to be a nuisance and blocked parts of the sidewalk of and adjacently to Arch Drive for several days or weeks after February 27, 2023. . . .

 

(Complaint, ¶¶ 1, 8-18.)

 

At issue here is Defendants’ demurrer.

 

DISCUSSION

 

The SAC contains three causes of action:

 

(1) public nuisance;

 

(2) private nuisance; and

 

(3) negligence and negligent infliction of emotional distress.

 

Defendants

 

Defendants assert that the causes of action fail because Plaintiff fails to allege duty and breach.  Particularly, Defendants claim:

 

* “no court has recognized a duty of private citizens to aid electric utilities to restore power” by “removing trees entangled in powerlines” (Demurrer, p. 15, capitalization and emphasis deleted; see also id. at pp. 12-14, 16-17);

 

* Defendants had a right to exclude DWP from their property and did not have a duty to allow DWP to enter their property (see id. at pp. 17-18);

 

* the SAC fails to allege that “Defendants[] actively interfered with DWP’s duty to repair their public powerline” or that Defendants denied access to DWP (id. at p. 18, capitalization and emphasis deleted; see also id. at pp. 19-20); and

 

* Plaintiff relies on distinguishable cases.  (See id. at pp. 20-22; see also id. at p. 23.)

 

Plaintiff

 

Plaintiff disagrees.  She claims:

 

* independent of LADWP’s duty to restore power, Defendants had a duty to plant the tree, and maintain it, in a reasonable manner pre-fall (see Opposition, pp. 4-12);

 

* Defendants are liable for interfering with LADWP, and failing to remove the tree, post-fall (see ibid. [arguing that Defendants prevented LADWP from entering the property to make repairs]);

 

* leaving the tree in the street for three days and nights caused a nuisance (see id. at pp. 12-13);

 

* the duty allegations satisfy the Rowland factors (see id. at pp. 13-16);

 

* Defendants’ purported right to exclude LADWP from their property was “limited by the harm being caused” (id. at p. 16, capitalization and emphasis deleted; see also id. at p. 17); and

 

* the SAC alleges facts showing post-fall bad acts.  (See id. at pp. 17-18.)

 

Reply

 

In reply, Defendants contend:

 

* the duty to fix the powerline, and remove the tree, belonged to LADWP (see id. at pp. 5, 7-9);

 

* it is undisputed that Defendants were not required to give LADWP access to their property (see id. at pp. 5-6, 10-11);

 

* Plaintiff fails to highlight facts that show interference with LADWP’s repair efforts (see id. at pp. 11-12); and

 

* Plaintiff must allege a cognizable duty for the nuisance causes of action.  (See id. at p. 12.)

 

Analysis

 

Last time, the Court noted that the original complaint appeared to allege “one main duty with respect to the nuisance claims and at least two main duties with respect to the negligence claims.”  (4/19/24 Ruling Re: Demurrer, p. 4.)  “The main duty for the nuisance claims was the duty to abate the nuisance by removing the fallen tree to make it possible to restore power and to allow residents to enter and exit both sides of Arch Drive.  [Citation.]”  (Ibid.)  “The main duties for the negligence claims were to install (and maintain) the tree in a reasonable, safe manner pre-fall and to remove the tree post-fall.  [Citations.]”  (Ibid.)

 

The Court sustained the demurrer to the nuisance claims because “Plaintiff alleged[] that [LA]DWP asked Defendants to remove the tree and that Defendants refused and prevented [LA]DWP from making repairs.  [Citations.]”  (Ibid.)  The Court found that those “allegations, if true, arguably would support the recognition of a duty against Defendants.”  (Ibid.)  The Court granted leave to amend because the allegations were vague and conclusory, and the Court “need[ed] to see more details regarding the communications and what happened between Defendants and [LA]DWP.”  (Ibid.)

 

The Court also granted leave to amend as to the negligence claims.  (See ibid.)  Although “the pre-fall duty allegations appear[ed] sufficiently alleged,” the Court found “it [] appropriate to give Plaintiff a chance to strengthen the post-fall duty allegations.”  (Ibid.)

 

The SAC is similar.  Same as the original complaint, it alleges pre-fall and post-fall theories.

 

The pre-fall theory is a viable theory.  The Court finds that the demurrer to the negligence cause of action should be overruled because planting and maintaining the tree in a negligent manner is an adequate basis for liability at the pleading stage.  (See, e.g., SAC, ¶¶ 1, 9, 54.)

 

Turning to the post-fall theory, the SAC states that Defendants’ tree fell on “electricity poles and [broke] several powerlines[,]” causing a power outage and “creat[ing] a dangerous condition[.]”  (Id. at ¶ 9.)  Plaintiffs’ continue to theorize that Defendants were responsible for removing the tree so that LADWP workers could enter the area to restore power.  (See, e.g., id. at ¶¶ 1, 9, 14.)

 

Plaintiff’s theory is overbroad.  The effect of Plaintiffs’ theory would be to require the private owner of an obstruction, which arose during a storm, to remove the obstruction while it is still entwined with exposed powerlines that are owned and maintained by a public utility.  Contact with the exposed powerlines could create an extreme risk of harm, perhaps death, not only to the private owner, but also to private neighbors.  Plaintiff would have the private owner – and the private neighbors – incur the extreme risk of harm before the public utility acts to eliminate the extreme risk.  None of the cases cited by Plaintiffs goes this far.  (See Carson v. Facilities Development Co. (1984) 36 Cal.3d 830 [finding that city and condominium association could be liable for dangerous condition created by private sign that obstructed view at public intersection]; see also Gibson v. Garcia (1950) 96 Cal.App.2d 681 [finding that the complaint stated a claim against transit company where injuries stemmed from car crashing into transit company’s rotten pole]; Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387 [in a wrongful-death case concerning construction worker who was electrocuted when his boom truck contacted power line, lessor of construction yard’s motion for summary judgment reversed because lessor knew that the power line ran across the property and posed a foreseeable threat of electrocution]; City and County of San Francisco v. Ho Sing (1958) 51 Cal.2d 127 [following a slip-and-fall case, county and city allowed to bring indemnity claim against defendant who had installed a defective skylight in public sidewalk]; Mattos v. Mattos (1958) 162 Cal.App.2d 41 [judgment against defendant for nuisance where defendant’s trees fell onto plaintiff’s property and restricted grazing]; Barton v. Capitol Market (1943) 57 Cal.App.2d 516 [in a slip-and-fall case, nonsuit judgment reversed because the evidence was sufficient to permit the jury to decide whether defendant’s spraying of the sidewalk caused plaintiff’s injury]; Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852 [in a slip-and-fall case, nonsuit judgment reversed because the evidence indicated that defendants knew meat deliveries to market made sidewalk slippery, and, after deliveries, defendants did not clean sidewalk]; Schaefer v. Lenahan (1944) 63 Cal.App.2d 324 [in a case where plaintiff was injured when she stepped in a hole on the sidewalk, judgment granted in favor of defendant who owned property abutting the sidewalk]; Sexton v. Brooks (1952) 39 Cal.2d 153 [in a slip-and-fall case, judgment against owner of building next to sidewalk reversed due to erroneous jury instruction]; Peters v. City and County of San Francisco (1953) 41 Cal.2d 419 [similar – erroneous jury instruction in a slip-and-fall case against abutting landowner; judgment against city affirmed because the evidence supported the jury’s finding that city had constructive notice of defective sidewalk]; Alcaraz v. Vece (1997) 14 Cal.4th 1149 [in a case where plaintiff was injured by stepping on a broken water meter on strip of city land, the evidence established a triable issue regarding the landlords’ control of the city land]; Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92 [finding that the water district was not negligent when it failed to remove natural debris from its watershed and that the nuisance claim against the water district necessitated a finding of negligence]; Parker v. Larsen (1890) 86 Cal. 236 [finding the defendant liable where irrigation water from his land seeped onto the plaintiff’s land].)  

 

The question is whether Plaintiff’s interference allegations change the result.  On balance, the answer is yes.  The SAC alleges:

 

. . . a growing number of tenants, residents, occupants and/or persons working for LADWP, who physically appeared outside the SUBJECT PROPERTY’s front entrance in person to complain and/or request that Defendants and each of them, remedy the dangerous conditions created by the TREE FALL as well as to grant access to LADWP repair crews and equipment to areas on the SUBJECT PROPERTY needed to restore power and services damaged by the TREE FALL .  Defendants’ managers and employees, refused, and instead argued with these individuals, threatened to call the police and did call police or the sheriff during that time, and would not allow LADWP access to the SUBJECT PROPERTY to remedy to  make emergency repairs to restore power or to remedy the dangerous condition created by the TREE FALL (or do so itself), and continued to engage in the BAD NEIGHBOR ACTS.  Defendants’ managers and employees also ignored Plaintiff, those other tenants, residents, and occupants and interested persons.  Defendants continued to reject and refuse to comply with multiple requests from LADWP for reasonable and safe access to the SUBJECT PROPERTY so as to allow LADWP to safely make repairs to the downed power lines and broken or bent power poles during the relevant time period.

 

(SAC, ¶ 12; see also, e.g., id. at ¶¶ 1 [Defendants “prevented and interfered with [LADWP] repair crews and repair equipment” and “refused reasonable requests to access or to allow access onto their property”], 9 [“Defendants did not permit, prevented, refused, or otherwise would not readily permit [LADWP] equipment or repair crews . . . onto the SUBJECT PROPERTY”], 14 [Defendants “refused or failed to repair, correct, or remedy the problem or remove the fallen tree or obstructions, despite knowing and being requested to do so urgently, including by putative class members and LADWP”], 15 [Defendants “continued to prevent LADWP from lawfully making the repairs needed to restore power”], 16 [Defendants “prevented LADWP from taking [] action” and “turned LADWP away”].)  Taken as true, the allegations show that Defendants rejected LADWP’s in-person requests to enter the property to remove the tree, make repairs, and restore the power.  In fact, a reasonable reading is that Defendants’ obstructed LADWP’s response to an emergency.  The Court believes the allegations suffice to allege duty and breach and that the interference question is a factual question that should be fleshed out via discovery.[1]

 

Defendants’ argument about their right to exclude LADWP from the property is unpersuasive.  The argument is based on Cedar Point Nursery v. Hassid (2021) 594 U.S. 139.  (See Demurrer, pp. 17-18; see also Reply, p. 10.)  A California regulation authorized union organizers to enter “an agricultural employer’s property” “for up to three hours per day, 120 days per year” “to solicit support for unionization.”  (Cedar Point Nursery, supra, 594 U.S. at 143.)  The United States Supreme Court held that the regulation “constitute[d] a per se physical taking under the Fifth and Fourteenth Amendments.”  (Id. at 144, 162.)  Here, however, the SAC alleges an emergency scenario; there was a fallen tree ensnared with exposed powerlines, and Defendants impeded LADWP’s efforts to respond to the danger.  Cedar Point Nursery does not apply to these facts.

 

Nor does Defendants’ other non-emergency case, Bounds v. Superior Court (2014) 229 Cal.App.4th 468.  (See Reply, p. 10.)

 

Accordingly, the demurrer is overruled in full.

 

 

 

 

               

 

 

 


[1] Since discovery is appropriate, the Court declines to analyze the Rowland factors further.

*************************************************************************************************************************************************

Marotta (23STCV04372)

 

Tentative Ruling Re: Motion to Strike Re: Second Amended Complaint

 

Date:                           11/21/24

 

Time:                          10:30 am

 

Moving Party:           4045 Vineland Avenue Partners and E&S Ring Management Corp. (collectively “Defendants”)

 

Opposing Party:        Michelle Marotta (“Plaintiff”)

 

Department:              11

 

Judge:                         David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

 

Defendants’ motion to strike is denied.

 

BACKGROUND

 

This is a putative class action.  The second amended complaint (“SAC”) alleges:

 

1. Plaintiff brings this action as a class action, on behalf of herself and all other California residents residing on Arch Drive, in Studio City, California, similarly situated, relating to Defendants’ public and private nuisances, and negligence, and negligent infliction of emotional distress.  Defendants and each of them, are alleged herein, to have installed but failed to adequately maintain or secure at least one overly-mature Pine tree on the SUBJECT PROPERTY on and before February 24, 2023, causing said tree to collapse and remain on Arch Drive on and after February 24, 2023 and creating and thereafter maintaining a dangerous condition that Defendants, and each of them, refused to remedy timely at any time.  This constituted a danger to the public due to the risk of immediate physical harm from the collapsed tree and its branches that blocked the public road and alley way, the lack of access due to the road blockage caused by the fallen tree, and the unsafe conditions and resulting damage to utility services that hindered, prevented and interfered with repair crews and repair equipment from the Los Angeles Department of Water and Power (“LADWP”) or any other government agencies, from making repairs needed to restore services to Plaintiff and those similarly situated, within a reasonable time.  [Citations.] Defendants also refused reasonable requests to access or to allow access onto their property so that emergency repairs needed to restore power could be made in a reasonable and safe manner  Such access was needed for reasons including to initiate repairs to power lines and power poles on and near the TREE FALL area including portions of the tree that fell into and out of the SUBJECT PROPERTY.  Also, access to the SUBJECT PROPERTY was needed for anyone to remove the Defendants’ fallen tree or any parts thereof which extended from the SUBJECT PROPERTY to and through Arch Drive and the abutting public alley which was left inaccessible and a continuing dangerous condition as alleged herein. Simply removing the portions of the tree not on the SBJECT PROPERTY would not allow the harm addressed herein to be remedied.  As These acts left an estimated number of over 500, individuals, denizens, residents, tenants or occupants living in or on Arch Drive, to suffer the special and unique personal harm,  emotional distress, inconvenience, and/or deprivation of use of their residences/ouster, actually or constructively, without light, power, heat and/or hot water of any kind, as well as lack of security and dark and unsafe conditions, for an unreasonable amount of time (more than 3 nights and four days as more detailed below in ¶¶ 8-17) (“BAD NEIGHBOR ACTS”).  The BAD NEIGHBOR ACTS also resulted in Plaintiff and those similarly situated incurring general and special damages and entitling them to a permanent injunction against Defendants and each of them, restraining or prohibiting Defendants from installing and failing to adequately maintain, or otherwise refusing to timely remove fallen trees or any portion thereof, they own or manage, or which obstruct or prevent ordinary use of public streets or sidewalks or threatening to or actually downing powerlines in and around Arch Drive.

 

* * *

 

8. At all times relevant Plaintiff and those similarly situated were residents (including as tenants and owners and with property rights) of Arch Drive, in Studio City, California.  The rear of the SUBJECT PROPERTY is located on Arch Drive with an iron fence lining the street as well as various trees including several mature pine trees of 30-50 feet or taller planted and installed several years before February 24, 2023 on the SUBJECT PROPERTY.

 

9. On February 24, 2023, one of those trees had overgrown to such size, weighing several tons and more than 40 feet in height, that it had uprooted and fell through the SUBJECT PROPERTY’s iron fencing and onto the public road and alley.  This created a dangerous condition, including without limit, several limbs protruded like dangerous spikes (including into areas where people walked), debris from the tree was scattered, the length of the enormous tree (while still having the base on Defendants’ property) blocked the public road and alley way and prevented access for equipment and crews needed to make repairs to power lines and poles; and the fallen tree and debris therefrom made it unsafe and too dangerous for repair crews to commence repairs without first removing the fallen tree and accessing the SUBJECT PROPERTY (as noted above) for those the needed emergency repairs.  Further, as addressed above, during February 24 to 27, 2023, Defendants did not permit, prevented, refused, or otherwise would not readily permit equipment or repair crews from LADWP onto the SUBJECT PROPERTY which was needed to make those emergency repairs to restore power and services to Plaintiff and those similarly situated.  Moreover, the alleyway entrance and egress was blocked, including one-end of Arch Drive was entirely blocked and completely obstructed.  Upon information and belief, the over-grown tree collapsed and fell due to the lack of lateral support and subjacent support at the point where the tree was abutting the public road, and due to its overgrowth without the needed additional support or securing of that tree and improper maintenance, causing its insufficient rooting to destabilize the surrounding dirt and land during the rainstorm on or about February 24, 2023, and causing Defendants’ tree to fall onto nearby electricity poles and break several powerlines and bend others along Arch Drive and the alleyway, and which, Defendants knew or should have known, would and did cause all or substantially all of the tenants, residents and apartment buildings on Arch Drive to be left entirely without any power for longer than reasonable, and such that the easternly entrance to Arch Drive was completely blocked and untraversable, dangerous and hazardous, during that time.  (the allegations in this paragraph are referred to as the “TREE FALL”).  

 

10. On and between February 24, 2023 to February 27, 2023, the SUBJECT PROPERTY, operated in the ordinary course of business as a fully functioning apartment rental property fully serviced with onsite staff consisting of a property manager and staff and offsite property or asset managers, engineering and landscaping managers and staff.  

 

11. By the late night of February 24, 2023, Plaintiff and those similarly situated (including other tenants, residents, neighbors, and/or persons suffering from the BAD NEIGHBOR ACTS) and others began to make complaints to Defendants, and each of them, and/or their managers in charge and on the property, to remove the fallen tree and obstructions on the public road, and about their persistence to refusal to stop the BAD NEIGHBOR ACTS or remedy the TREE FALL.  This includes as early as late night on February 24, 2023 through the early morning February 25, 2023, and continually until and through February 27, 2023.  

 

12. In fact, during that time, Defendants, and each of them, were informed and advised of the unsafe and dangerous conditions created by the TREE FALL and there was a growing number of tenants, residents, occupants and/or persons working for LADWP, who physically appeared outside the SUBJECT PROPERTY’s front entrance in person to complain and/or request that Defendants and each of them, remedy the dangerous conditions created by the TREE FALL as well as to grant access to LADWP repair crews and equipment to areas on the SUBJECT PROPERTY needed to restore power and services damaged by the TREE FALL .  Defendants’ managers and employees, refused, and instead argued with these individuals, threatened to call the police and did call police or the sheriff during that time, and would not allow LADWP access to the SUBJECT PROPERTY to remedy to  make emergency repairs to restore power or to to remedy the dangerous condition created by the TREE FALL (or do so itself), and continued to engage in the BAD NEIGHBOR ACTS.  Defendants’ managers and employees also ignored Plaintiff, those other tenants, residents, and occupants and interested persons.  Defendants continued to reject and refuse to comply with multiple requests from LADWP for reasonable and safe access to the SUBJECT PROPERTY so as to allow LADWP to safely make repairs to the downed power lines and broken or bent power poles during the relevant time period. 

 

13. Further, upon information and belief, on or about February 25 or 26, 2023, in response to request to remove the tree as requested by LADWP so power could be restored, one of Defendants’ on-site managers publicly stated in the neighborhood, “F@@@ the tenants” and that Plaintiff or tenants could take care of it themselves, or words to that effect.  The BAD NEIGHBOR acts continued throughout the time, and by the morning of February 26, 2023, at or about 8 am, when LAWDP attempted to make repairs to restore power, they were refused entry onto the SUBJECT PROPERTY by Defendants’ on-site managers and/or staff.

 

14. At all times relevant, Defendants, and each of them, knew or should have known of the TREE FALL, that it caused the power outages, and that the BAD NEIGHBOR ACTS would and did harm Plaintiff and those similarly situated, but Defendants ignored the problem and refused or failed to repair, correct, or remedy the problem or remove the fallen tree or obstructions, despite knowing and being requested to do so urgently, including by putative class members and LADWP, and despite Defendants, and each of them being aware of the ongoing and increasing harm and danger to Plaintiffs, and those similar situated, by the persistence of the TREE FALL and BAD NEIGHBOR ACTS. Yet, they would not attempt to remedy the obstructions, TREE FALL, or discontinue the BAD NEIGHBOR ACTS, nor would Defendants agree to pay to have their fallen tree removed, or actually ensure it was removed at any time or otherwise engage in any act to remedy it or the damages caused by their actions

 

15. By the morning of February 26, 2023, after Plaintiff and those similarly situated had been three nights without any power/electricity/light and were living in squaller, without convenient showers, hot water, electrical stoves, televisions, chargers, and were living in darkness or otherwise ousted, constructively or actually, out of their own homes or apartments, and/or were increasingly suffering intolerable inconveniences, humiliation, emotional distress, and rapid deterioration in habitable living conditions.  Defendants acts continually deprived Plaintiff and those similar situated, of the value of the rents/mortgages and homes or apartments for that time, as Defendants OWNER and PROPERTY MANAGERS were indifferent to Plaintiff and those similarly situation, and they allowed their nuisance to persist including, without limit, continuing to engage in the BAD NEIGHBOR ACTS, continuing to ignore the TREE FALL, and refusing to allow removal and instead permitting the fallen tree to obstruct the public road and damage the power supply in the area.  Nor did Defendants otherwise abate the nuisance or nuisance activities so as to allow for the LADWP to lawfully remove Defendants’ fallen tree and, in fact, continued to prevent LADWP from lawfully making the repairs needed to restore power. 

 

16. By the night of February 26, 2023, LADWP was still unable to access or affect repairs, and did not have authority from Defendants to remove Defendants’ fallen tree, and Defendants, and each of them, still refused to pay for or otherwise remove the fallen tree on their own and they prevented LADWP from taking such action.  After LADWP was turned away and prevented from making repairs, for yet another night, several tenants gathered near the TREE FALL, including Plaintiff and others similarly situated, to protest Defendants’ nuisance and refusal to remedy the nuisances as alleged herein, including calling a tree removal company to remedy the TREE FALL and BAD NEIGHBOR ACTS, and this was observed by at least one Sherriff’s Deputy on-scene.  After approaching Defendants’ on-site managers or staff to pay for the removal that night and being rejected, the tenants (including Plaintiff) engaged in peaceful self-help, by collecting community funds and through a Good Samaritan, to pay the approx. $3,000 to remove and dispose of Defendants’ fallen tree so LADWP could start working on repairs to restore power to Arch Drive so they could return to normal use of their residences, and to permit Plaintiff and those similarly situated to use of the road and sidewalk on Arch Drive without Defendants’ obstructions and debris.

 

17. On February 27, 2023, after four days without power and ordinary and reasonable use of their homes and apartments and without habitable living conditions, the LADWP was able to restore the electrical service and power to Arch Drive at or about 1:30 pm that day as a result of the class members and Good Samarita having the tree removed after Defendants continued to refuse to do so and prevented the removal.  

 

18. However, large pieces of the fallen tree from the TREE FALL were a continuing and persistent nuisance to Plaintiff and those similarly situated, because Defendants, and each of them, refused to remove their debris and continued to ignore the TREE FALL, which persisted to be a nuisance and blocked parts of the sidewalk of and adjacently to Arch Drive for several days or weeks after February 27, 2023. . . .

 

(Complaint, ¶¶ 1, 8-18.)

 

At issue here is Defendants’ motion to strike punitive damages.

 

DISCUSSION

 

Defendants contend the motion to strike should be granted because Plaintiff fails to allege malice, oppression, or fraud with particularity.  (See Motion, pp. 11-15; see also Reply, pp. 4-7.)

 

Plaintiff disagrees.  She claims Defendants waived the right to strike punitive damages. (See Opposition, p. 13.)  She also claims the allegations state sufficient facts.  (See id. at pp. 5-10.)

 

The waiver argument is unavailing.  The SAC is a new complaint.  Plaintiff fails to cite authority that prohibits a defendant from challenging punitive-damages allegations in a new pleading.

 

Regardless, the motion to strike is denied.  The Court incorporates the demurrer tentative ruling.  As explained there, the SAC alleges that Defendants interfered with LADWP’s response to an emergency.  (See 11/21/24 Tentative Ruling Re: Demurrer to Second Amended Complaint, p. 9.)  The Court finds that the interference allegations suffice to allege malice or oppression and that, ultimately, the efficient approach is to move to the discovery stage to flesh out the facts.

 

To the extent Defendants claim punitive damages are unavailable, the Court disagrees.  The SAC alleges negligent conduct and intentional conduct.  Multiple decisions “recognize[] the availability of punitive damages” in negligence actions.  (Bommareddy v. Superior Court (1990) 222 Cal.App.3d 1017, 1020 [collecting cases]; see also, e.g., Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270 [affirming punitive-damages award in an asbestos case where the plaintiff alleged negligence and strict liability concerning the defendant’s failure to warn].)  The same is true in nuisance actions when the alleged conduct is intentional.  (See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.)  Again, the Court finds that the SAC alleges a factual basis for punitive damages.