Judge Deirdre Hill, Case 22STCV23642 2023-04-20 Tentative Ruling

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The motion to strike is DENIED. Defendants are ordered to file an answer within ten days.

On July 21, 2022, plaintiff Cynthia Constantino filed a complaint against Jim Delurgio and Elizabeth Delurgio for (1) spite fence (Civil Code §841.1) and (2) intentional private nuisance (Civil Code §3479).

“The court may, upon a motion . . . , or at any time in its discretion, and upon terms it deems proper: (a) Strike any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” CCP §436(b).

CCP §431.10 states: “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An ‘immaterial allegation’ means ‘irrelevant matter’ as that term is used in Section 436.”

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Defendants request that the court strike the punitive damage claim in the FAC, including para. 2 at page 10, Exemplary Damages Attachment, and prayer for relief at page 3 for punitive damages.

The FAC alleges that plaintiff resides at 513 Camino De Encanto, Torrance. Defendants reside at property directly behind plaintiff, located at 209 Via El Toro, Torrance. The properties are adjoining parcels, separated by a cinder block wall, and situated just blocks from the Pacific Ocean in the lower Riviera area of Torrance. The area is subject to the Hillside Overlay/View Protection Zone created by Torrance. Plaintiff has owned the Encanto property since 1999. Defendants bought their property in 2005. For all the years that plaintiff lived in her house, before defendants moved into their house, plaintiff always and continuously enjoyed blue and whitewater views of the ocean, as well as views of the beaches, mountains, and city views, including city lights. Plaintiff also enjoyed airflow into her property from the west in the form of cooling ocean breezes that served to cool her home as said breezes are a natural form of air conditioning keeping her home from overheating, particularly during hot and humid months. Plaintiff also enjoyed natural light coming into her home, as well as blue sky horizon and spectacular sunsets from the evening setting sun.

Plaintiff further alleges that it is known by property owners/occupants in the neighborhood, including defendants, that the various views and airflow breezes are a major part of the comfort and enjoyment of said homes as well as the value upon the properties. The city of Torrance has ordained that structures should not impair views, light, airflow and that each/all of the factors should not be obstructed by foliage/vegetation that negatively affect neighboring properties and their occupants/residents.

The FAC further alleges that defendants have purposely and intentionally placed, all along the common rear wall of the subject adjoining properties, in a row and next to said dividing wall, acting as a de facto fence or fence-like structure, shrub/tree foliage/vegetation that has been purposely allowed to unnecessarily exceed ten feet in height, and even higher. Said foliage/vegetation include a type of honeysuckle shrub and bird of paradise trees. Said shrubs and trees have been purposely allowed by defendants to grow out of control, unmaintained and untrimmed, even after plaintiff repeatedly requested that defendants trim the offending foliage/vegetation to the level of the adjoining common rear wall of the properties. Defendants have maliciously planted, erected, and maintained at unnecessary heights the existing foliage for the purpose of annoying, vexing, and irritating plaintiff and knowing that their actions have caused great harm to plaintiff’s enjoyment of her property. Defendants have stated to plaintiff and to plaintiff’s neighbors on Encanto “that defendants would act to eliminate, obliterate and destroy with foliage/vegetation the views, light, and airflow of plaintiff and her neighbors such that they would lose same.” As a direct result of defendants’ malicious, spiteful, intentional, and purposeful actions in planting/erecting/maintaining their shrubs/trees/foliage/vegetation unnecessarily exceeding ten feet in height, plaintiff has been injured in her comfort and enjoyment of her property. All of plaintiff’s views have been eliminated. In place of such views is a de facto wall/fence structure of shrubs/trees/foliage. Further, defendant Jim Delurgio has also engaged in sham, phony, and pretend trimming of the offending foliage along the common dividing wall all-the-while taunting, mocking, jeering, and laughing at plaintiff while in fact not trimming anything at all.

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” “(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, deceit, 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). “Despicable conduct” means “conduct that is so vile, wretched, and loathsome that it would be looked down upon by decent people.” Mock v. Michigan Miller’s Mutual Ins. Co. (1992) 4 Cal. App. 4^th 306, 331.

The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” “In order to 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.” Clauson v. Superior Court (1998) 67 Cal. App. 4^th 1253, 1255. A claim for punitive damages must be pled with factual specificity. Brousseau v. Jarrett (1977) 73 Cal. App. 3d 864, 872. “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” Grieve v. Superior Court (1984) 157 Cal. App. 3d 159, 166 (citations omitted).

Defendants argue that the allegations are conclusory and do not demonstrate conduct to support punitive damages. Defendants contend that the FAC lacks facts that would otherwise describe how defendants’ maintenance of the foliage was for some purpose other than a typical homeowner. Defendants further assert that the pleaded maintenance fails to demonstrate anything more than maintenance for aesthetic value or privacy reasons, much less facts suggesting that defendants’ maintenance purposes related to plaintiff.

In opposition, plaintiff argues that plaintiff has pled intentional tort causes of action and that punitive damages are properly sought and awardable in such causes of action.

In reply, defendants reiterate their argument that the FAC states insufficient facts to support punitive damages.

The court rules as follows: The court finds that the allegations are sufficient to support a claim for punitive damages. The 1^st cause of action is for “spite fence.” Civil Code §841.4 states: “Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.” “[T]he intent to annoy the neighbor need not be the sole purpose for building or maintaining the fence . . . but it must at least be the ‘dominant’ purpose.” Wilson v. Handley (2002) 97 Cal. App. 4^th 1301, 1312-13 (citation omitted).

A row of trees can be a “structure in the nature of a fence” for purposes of Civil Code §841.4. See Vanderpol v. Starr (2011) 194 Cal. App. 4^th 385, 389.

The cause of action for spite fence includes a “malice” element. Defendants did not argue that the allegations are insufficient. Further, plaintiff alleges that defendant taunted, mocked, jeered, and laughed at plaintiff while pretending to trim the trees and that defendants have stated to plaintiff and to plaintiff’s neighbors “that defendants would act to eliminate, obliterate and destroy with foliage/vegetation the views, light, and airflow of plaintiff and her neighbors such that they would lose same.”