Judge: Edward B. Moreton, Jr., Case: 20SMCV01196, Date: 2022-10-14 Tentative Ruling

Case Number: 20SMCV01196 Hearing Date: October 14, 2022 Dept: 200

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 200

WILLIAM P. HOWELL,

Plaintiff,

SOUTHERN CALIFORNIA EDISON, et al.,

Defendants.

Case No.: 20SMCV01196

Hearing Date: 10/14/22

Trial Date: None.

[TENTATIVE] RULING RE:

(1) Defendant Edison Power Constructors Inc.’s Demurrer with Motion to Strike

(2) Defendant Tidwell Excavation Acquisition Co., Inc.’s Demurrer with Motion to Strike

BACKGROUND

On August 31, 2020, Plaintiff William Howell filed this action against Defendants Southern California Edison (“SCE”), Edison Power Constructors Inc. (“EPC”), Tidwell Excavation Acquisition Co., Inc. (“Tidwell”), and Hampton Tedder Electric Co. (“Hampton”). Plaintiff subsequently filed the first amended complaint adding as a defendant “The People of the State of California, acting by and through the Department of Transportation,” also known as “Caltrans,” but erroneously sued as State of California Department of Transportation.

The operative “Amended Third Amended Complaint” (“TAC”) alleges causes of action (“COA”) for: 1) negligence; 2) fraud and concealment; 3) private nuisance; 4) public nuisance; 5) trespass; 6) inverse condemnation; 7) inverse condemnation; and 8) RICO (18 U.S.C. § 1962(b)).

The TAC alleges the following. There is a culvert (“Culvert”) that runs underneath Topanga Canyon Boulevard where Plaintiff’s property (the “Property”) is located. (TAC, ¶ 3.) The Culvert originally emptied storm water onto an area located above the Property’s driveway (the “Upper Slope”). (TAC, ¶ 3.) Then, using the support of a slope protection concrete called shotcrete (that covered the entire Upper Slope to prevent erosion), the Culvert directed the storm water through the drainage system underneath Plaintiff’s driveway, before discharging that water through an outlet on another slope below the driveway (the “Lower Slope”), that was also covered with shotcrete to prevent erosion. (TAC, ¶ 3.) The storm water would then flow from the Lower Slope, empty into Dix Creek, and a few yards later into Topanga Creek, which is located on the Property. (TAC, ¶ 3.)

On or about September 30, 2019, Defendant EPC, as part of a public works project Defendant SCE enacted and undertook, drilled directly into the Culvert, and then improperly installed a power pole. (TAC, ¶ 4; Figure 1 (p. 4 of the Complaint).) Doing so severely damaged the Culvert and blocked the entire drainage system of which it is part. (TAC, ¶ 4.)

On the morning of December 29, 2019, Plaintiff became aware of the damage to his Property caused by the negligent conduct of Defendants SCE, EPC and Caltrans, when water and debris surged underneath the damaged Culvert and its shotcrete, and then flooded the Upper Slope and driveway, causing substantial mudflow. (TAC, ¶ 40.) The strength and power of the backed-up storm water were so great that it blew out areas above and below the shotcrete that surrounded the Upper Slope, then flowed under the driveway and shotcrete of the Lower Slope, leaving large voids and instability. (TAC, ¶ 40.)

DEMURRERS

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Civ. Code Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law [citations] ….” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Civ. Code Proc., § 430.10, subd. (f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

A. EPC’s Demurrer

Defendant EPC demurs the second cause of action for fraud and concealment and eighth cause of action for RICO (18 U.S.C. § 1962(b)) in the TAC, contending that they fail to state facts sufficient to constitute a cause of action. (Civ. Code Proc., § 430.10, subd. (e).) Plaintiff opposes.

Meet and Confer

EPC’s counsel testifies that Plaintiff originally filed a third amended complaint on June 28, 2022, and then after the parties met and conferred, filed an amended pleading (the TAC) on July 14, but refused to withdraw his fraud and concealment and RICO claims against EPC. (EPC’s Demurrer, filed on August 15, 2022, declaration of Alicen Burtness, ¶ 2.) Plaintiff does not dispute that the parties met and conferred before EPC filed the instant dispute.

Accordingly, the Court finds that EPC has satisfied the meet and confer requirements.

COA 2: Fraud and Concealment

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Fraud must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) In the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The TAC bases its second cause of action on misrepresentation and concealment.

Fraud by concealment requires allegations demonstrating the defendant was under a legal duty to

disclose the allegedly omitted or concealed facts. (Los Angeles Memorial Coliseum Commission

v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.) “‘“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]”’ [Citations.]” (Ibid.) “‘Where ... there is no fiduciary relationship, the duty to disclose generally presupposes a relationship grounded in “some sort of transaction between the parties. [Citations.] Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. [Citation.]” [Citation.]’ [Citation.]” (Ibid. [italics removed].)

Here, the TAC alleges the following among other things. EPC was aware of the power pole being improperly installed into the Culvert prior to the rain and flooding on December 29, 2019. (TAC, ¶ 78.) But EPC concealed those facts from Plaintiff even though it and SPC knew or should have known that Plaintiff had no knowledge of the damage to the Culvert, and that the damage could damage the drainage system that traverses through the Howell Property. (TAC, ¶ 78.) EPC further attempted to conceal the damage by removing and relocating the pole, and then placing pea gravel and concrete into the holes where the pole had been to hide the damage from Plaintiff. (TAC, ¶ 79.) Had EPC disclosed the damage to the Culvert and the drainage system of which it belongs, Plaintiff would have demanded that the pole be immediately removed, and danger properly abated. (TAC, ¶ 80.)

EPC argues that Plaintiff’s concealment theory fails because Plaintiff fails to allege what fiduciary or transactional relationship (if any) existed between them such EPC had a legal duty to disclose the alleged damage to the Culvert to Plaintiff.

In opposition, Plaintiff argues that a transactional relationship is unnecessary when the issues of safety are involved and cites Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187 (“Jones”) to support that argument.

However, Jones is distinguishable from this case.

In Jones, a deceased worker (Carlos Jones) died from diseases of the heart, liver, and kidneys after being exposed to multiple chemical products during his employment. (Jones, supra, 198 Cal.App.4th at p. 1191.) His family members “sued 19 manufacturers [footnote omitted] of 34 chemical products, alleging each product identified in the complaint contained toxins that were a substantial factor in causing Carlos's illness and death.” (Ibid.) The trial court sustained several of the defendants’ demurrers without leave to amend after finding (among other deficiencies) that the “cause of action for fraudulent concealment failed because none of the defendants owed Carlos a fiduciary duty giving rise to a duty of disclosure ….” (Id. at p. 1193.)

The California Court of Appeal disagreed with the trial court that the defendants did not owe Jones a duty of disclosure. In so holding, the Court of Appeal thought it relevant (as the plaintiffs argued) that “‘[g]enerally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. [Citation.] The requirement’s purpose is to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use.’ [Citations.]” (Jones, supra, 198 Cal.App.4th at p. 1198.) Indeed, the Court continued, “[a]lthough, typically, a duty to disclose arises when a defendant owes a fiduciary duty to a plaintiff [citation], a duty to disclose may also arise when a defendant possesses or exerts control over material facts not readily available to the plaintiff.” (Id. at p. 1199.) “[In Jones], the amended complaint allege[d] defendants were ‘aware of the toxic nature of their products’ and ‘owed a duty to disclose the toxic properties of their products to [Carlos] because [they] alone had knowledge of material facts, to wit the toxic properties of their products, which were not available to [Carlos].’” (Id. at pp. 1199-1200.) “It also allege[d] defendants owed a duty to disclose because they ‘made representations regarding their products, but failed to disclose additional facts which materially qualify the facts disclosed, and/or which rendered the disclosures made likely to mislead [Carlos].’” (Id. at p. 1200.) Therefore, the amended complaint stated a viable claim for fraudulent concealment against the relevant defendants. (Ibid.) It is also noteworthy that in Jones, while discussing the plaintiffs’ breach of implied warranty the Court of Appeal found that the decedent was in privity with the manufacturers because “‘it is a matter of common knowledge, and of course known to vendor-manufacturers, that most businesses are carried on by means of the assistance of employees and that equipment or supplies purchased by employers will in actual use be handled by the employees, who in this respect may be said to stand in the shoes of the employer.’ [Citation.]” (Id. at p. 1202.)

Here, Plaintiff does not allege that EPC had any duty to warn even before the incident giving rise to his action took place unlike the manufacturers in Jones, who had a duty to warn consumers about hazards inherent in their products.

In addition, three years after Jones, the Court of Appeal in Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178 (“Hoffman”) suggested that a transactional, not just any relationship, was required to establish fraud by concealment.

In that case, the Court of Appeal rejected the argument that a company that owned a prescriptive easement had a duty to warn potential buyers of its prescriptive easement on a property. “[The] appellants Steven Hoffman (Hoffman) and Swee Lin Hoffman (collectively, the Hoffmans), purchased the 170 Wolfe property. After close of escrow, the owner of the 162 Wolfe property, respondent 162 North Wolfe LLC (162 LLC), claimed a landscape easement and prescriptive easement rights of ingress and egress over 170 Wolfe.” (Hoffman, supra, 228 Cal.App.4th at p. 1181.) “The Hoffmans argue[d] that ‘there was a relationship between the parties arising out of their mutual interest in the 170 [Wolfe] Property. At the time of Respondents’ nondisclosure, the Hoffmans were tenants in possession of the 170 [Wolfe] Property and [were] in the process of purchasing it. 162 LLC ... claimed easement rights in the 170 [Wolfe] Property.’” (Id. at p. 1189.) On the other hand, “162 LLC reiterate[d] on appeal its argument … that summary adjudication …[was] proper because of the absence of a relationship between the parties.” (Id. at p. 1186.) “It contend[ed] that because it had no ‘fiduciary or other transactional relationship with the Hoffmans which would give rise to a duty to disclose material facts known to one party and not the other,’ it had no duty to disclose to the Hoffmans that it claimed easement rights over the 170 Wolfe property.” (Ibid.) “162 LLC contends that therefore, as a matter of law, any alleged concealment of these claimed rights was not actionable.” (Ibid.) The Court of Appeal held: “We reject the Hoffmans’ contention that because they were potential buyers in a pending sale of 170 Wolfe while 162 LLC claimed undisclosed easement rights over that property, there was a relationship between the parties triggering a duty of disclosure on the part of 162 LLC.” (Id. at p. 1189.)

In so holding, the Court distinguished Hoffman from other cases where a duty to disclose has been found. (Id. at pp. 1180-1193 [explaining that Hoffman was unlike (1) Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, where (a) there was a transaction relationship between the parties (a merger) and (b) the appellate court found the plaintiff adequately pleaded a claim for active concealment or suppression of facts by alleging that the law firm that represented the opposing party undertook to disclose a transaction but then failed to disclose all material facts; and (2) Pavicich v. Santucci (2000) 85 Cal.App.4th 382, where there was a relationship based upon a business transaction between the parties].)

The Hoffman court also distinguished its holding from the one in Jones explaining that “[a] manufacturer’s nondisclosure to the public of the toxic nature of its products where the toxicity is known to the manufacturer but not to others is a very different circumstance from a landowner’s knowledge that it possesses prescriptive easement rights. Jones cannot be used to extend liability for concealment under the facts presented here.” (Hoffman, supra, 228 Cal.App.4th at p. 1192.)

Here, the Court is not persuaded it can use Jones to extend liability for concealment under the facts presented here where there are no facts alleging that EPC had an original duty to warn Plaintiff and there was no transactional relationship between EPC and Plaintiff. Indeed, the Culvert that EPC installed, as the TAC acknowledges, was on Defendant SCE’s right-of-way.

Therefore, Plaintiff’s fraudulent concealment claim against EPC fails.

“A plaintiff asserting fraud by misrepresentation is obliged to plead and prove actual reliance,

that is, to ‘“establish a complete causal relationship’ between the alleged misrepresentations and

the harm claimed to have resulted therefrom.’ [Citations.]” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864.) “‘Besides actual reliance, [a] plaintiff must also show “justifiable” reliance, i.e., circumstances were such to make it reasonable for [the] plaintiff to accept [the] defendant’s statements without an independent inquiry or investigation.’ [Citation.] The reasonableness of the plaintiff's reliance is judged by reference to the plaintiff's knowledge and experience.’ [Citation.]” (Ibid.) “[T]he reasonableness of the reliance is ordinarily a question of fact. [Citations.] However, whether a party’s reliance was justified may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts.” (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843.)

Here, EPC alleges that Plaintiff fails to allege the elements of intent to defraud and detrimental reliance. As to the latter, EPC argues that TAC alleges that Jim Abbott made false statements to which Plaintiff relied. However, Abbott was SCE’s employee, not EPC’s.

In opposition, the Plaintiff focuses on his concealment allegations and does not address or point to any allegation showing misrepresentation on the part of EPC. As to the concealment allegations, the Court discusses those above.

Therefore, the Court finds it proper to sustain the demurrer.

The burden is on the Plaintiff “to articulate how [he] could amend [his] pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, Plaintiff “must show in what manner [he] can amend [his] complaint and how that amendment will change the legal effect of [his] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Here, Plaintiff fails to articulate how he can amend his fraud and concealment claim to allege facts sufficient to show that EPC owed him a duty to disclose.

Accordingly, the Court SUSTAINS the demurrer as to the second cause of action for fraud and concealment, without leave to amend.

COA 8: RICO (18 U.S.C. § 1962(b))

“RICO is contained in title 18, United States Code sections 1961 through 1968. It is aimed at

‘racketeering activity’ and to this end, among other civil and criminal remedies, it creates a private cause of action for treble damages by providing ‘[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.’ (18 U.S.C. § 1964(c).)” (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1228 (“Gervase”).)

“Although RICO provides for a private cause of action in federal district court, the California Supreme Court has held that state courts have concurrent jurisdiction over RICO claims.” (Gervase, supra, 31 Cal.App.4th at p. 1228.) “In exercising this jurisdiction state courts are applying and, where necessary, interpreting federal statutory law.” (Id. at pp. 1228-1229.)

“For an act or omission to qualify as racketeering activity, it must be included in the list of activities set forth in title 18, United States Code section 1961, subdivision (1).” (Gervase, supra, 31 Cal.App.4th at p. 1232.) “While that list is lengthy, it does not include every criminal or civil wrong a person or entity might commit and excluded actions, no matter how grievous, cannot qualify as racketeering activity within the meaning of RICO.” (Ibid.) “[A] common element of all actions included in the list is a requirement that the action be criminal in nature, that is, that it be chargeable, indictable, or punishable as a crime.” (Ibid.)

“To support a claim under RICO, it is not enough that the defendant engaged in a racketeering activity; rather, the plaintiff must also establish a pattern of racketeering activity.” (Gervase, supra, 31 Cal.App.4th at p. 1232.) Although RICO requires at least two predicate acts of racketeering activity, “it appears clear that Congress intended to require a minimum of two acts but not to provide that two acts are necessarily sufficient.” (Ibid.)

“RICO is concerned with racketeering activity in connection with an enterprise that engages in or affects interstate commerce ….” (Gervase, supra, 31 Cal.App.4th at p. 1233.)

Here, Plaintiff’s Racketeer Influenced and Corrupt Organizations (“RICO”) claim alleges the following, among other things. “SCE and EPC constitute enterprises engaged in and whose activities affect interstate and foreign commerce.” (TAC, ¶ 137.) “SCE and EPC directly and indirectly acquired and maintained interests in and control of the enterprises through a pattern of racketeering activity in violation of 18 U.S.C. §1962(b).” (TAC, ¶ 138.) “Pursuant to and in furtherance of their unlawful schemes, SCE and EPC committed numerous acts that constitute a pattern of racketeering activity pursuant to 18 U.S.C. § 1961(5).” (TAC, ¶ 139.) “Those acts included, but are not limited to, colluding to conceal from Howell the improperly installed Pole in the Subject Culvert and subsequent and negligent attempts to stabilize the Pole through pole stabilizing foam and pea gravel.” (TAC, ¶ 139.)

The Court agrees with EPC that the TAC fails to allege facts showing racketeering or a pattern of such. Indeed, since the Court has sustained without leave to amend EPC’s demurrer to the Plaintiff’s fraud and concealment claim, there is no basis for the racketeering claim, which requires an action that is criminal in nature.

Plaintiff fails to articulate how he can amend his RICO claim to render it sufficient.

Accordingly, the Court also SUSTAINS the demurrer as to the eighth cause of action for RICO, without leave to amend.

B. Tidwell’s Demurrer

Tidwell demurs to the third cause of action for private nuisance, fourth cause of action public nuisance, and fifth cause of action for trespass in the TAC. Plaintiff opposes.

Meet and Confer

Tidwell’s counsel testifies that Tidwell and Plaintiff met and conferred on August 8, 2022, telephonically but were unable to resolve the pleading issues. (Tidwell’s Demurrer, filed on August 15, 2022, declaration of Holly Chang Beal, ¶ 2.)

Accordingly, the Court finds that Tidwell has satisfied the meet and confer requirements.

COA 3: Private Nuisance

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Civ. Code, § 3479.) To state a cause of action for private nuisance, a plaintiff must allege a non-trespassory interference with the private use and enjoyment of property. (Civ. Code, §§ 3479 – 3481; San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.) Liability for private nuisance also requires two additional elements: (i) substantial actual damage, which is (ii) unreasonable as to its nature, duration, frequency or amount. (Id. at pp. 937-938.)

Virtually any disturbance of the enjoyment of property may amount to a nuisance, so long as the

interference is substantial and unreasonable. (Monks v. City of Rancho Palos Verdes (2008) 167

Cal.App.4th 263, 302.) “As stated by Prosser: ‘There is perhaps no more impenetrable jungle in

the entire law than that which surrounds the word “nuisance.” It has meant all things to all men,

and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.’” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.) Whether

an interference is substantial and unreasonable is a question of fact determined by considering

all the circumstances of the case. (Mendez v. Rancho Valencia Partners, LLC (2016) 3

Cal.App.5th 248, 263-64.)

On June 8, 2022, the Court sustained Tidwell’s demurrer to the third cause of action for private nuisance with leave to amend. In so ruling, the Court noted that the Second Amended Complaint (“SAC”) failed to allege how Tidwell’s alleged removal of the pea gravel that another defendant installed on the hole where the power pole had been located on the Culvert, “contributed to the nuisance or the damages caused by the [Culvert], or how such an act would contribute to the damages alleged.” (Minute Order dated June 8, 2022 (“June 8 Minute Order”), pp. 9, 10 [the last paragraph].)

Now Tidwell demurs to the private nuisance claim in the TAC, contending that it still fails to make such an allegation. Plaintiff alleges that on January 10, 2020, Defendant Hampton negligently placed pea gravel in the hole where the power pole had been inserted in the Culvert.

Tidwell acknowledges that the TAC also alleges that its jackhammering work caused further erosion to the slope of the Property, a further slide of the Property, and already visible voids to become larger, but argues that because the TAC also alleges that damage done to the property was already substantial and unreasonable before Tidwell arrived at the Property, the Court should sustain the demurrer.

The Court finds Tidwell’s arguments unpersuasive. The Court finds that the TAC has alleged facts sufficient to constitute a cause of action for private nuisance against the defendant. (TAC, ¶¶ 47, 89.) In addition, whether Tidwell’s jackhammering in fact contributed to the damage allegedly already done to the property is irrelevant for the purposes of a demurrer.

Accordingly, the Court OVERRULES Tidwell’s demurrer to the third cause of action for private nuisance.

COA 4: Public Nuisance

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance of damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.) “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493.)

Similar to the private nuisance claim, the Court previously sustained Tidwell’s demurrer to Plaintiff’s fourth cause of action for public nuisance, with leave to amend, because “the SAC [did] not allege that Tidwell substantially contributed to the maintenance of the nuisance.” (June 8 Minute Order, p. 11, the fifth paragraph.)

In its demurrer, Tidwell makes the same arguments as above, that Plaintiff was aware of the significant damage on the Property well before Tidwell arrived on the scene.

The Court finds the TAC has alleged facts sufficient to constitute a cause of action for public nuisance. (TAC, ¶¶ 101-103.) Tidwell’s arguments are unpersuasive for the same reasons they were above.

Accordingly, the Court OVERRULES Tidwell’s demurrer to the fourth cause of action for public nuisance.

COA 5: Trespass

“The elements of a common law trespass are (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry on the property; (3) lack of permission to enter the property, or acts in excess of the permission; (4) actual harm; and (5) the defendant’s conduct as a substantial factor in causing the harm.” (Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 (2010) 113 Cal.Rptr.3d 88, 93.)

A defendant does not need to enter plaintiff's property personally, as casting substances or

objects onto the property qualifies as entry. (Elton v. Anheuser-BU.S.C.h Beverage Group, Inc.

(1996) 50 Cal.App.4th 1301, 1306 [“For instance, trespassory invasion may take the form

of ginning lint [citation], cement dust [citation], and even invisible particles of fluoride compounds [citation]”].) “‘An entry may also be accomplished by setting in motion an agency which, when put in operation, extends its energy to the plaintiff’s premises to its material injury. [Citation.]” (Ibid.) “Thus, intangible intrusions such as noise or vibrations may constitute a trespass if they cause actual physical damage [citations] as opposed to merely a diminution in market value [citation]. Even damaging electronic signals sent by a computer ‘hacker’ can constitute a trespass ….” (Id. at p. 1307.)

The Court previously made the following findings concerning the fifth cause of action for trespass against Tidwell: “As previously discussed, according to the allegations in the SAC, Caltrans instructed Tidwell to remove the pea gravel previously installed by [Defendant Hampton] so that the damaged Subject Culvert could be exposed. (SAC ¶¶11, 40, 43, 44, 84.) Tidwell, at the direction of Caltrans, removed the pea gravel, exposed the Subject Culvert and repaired the Subject Culvert. (SAC ¶45.) The SAC does not allege that any of these acts, including the removal of the gravel, contributed to the flooding.” (June 8 Minute Order, p. 12, the last paragraph.)

Tidwell now demurs to the TAC’s trespass claim, contending (among other things) that it fails because Plaintiff does not allege, as required, that Tidwell intentionally, recklessly, or negligently entered the Property or acted in excess of permission. On the contrary, as in the SAC, it alleges that Tidwell was working at the direction of SCE and Caltrans, on Caltrans right-of-way. (Referring to TAC, ¶¶ 41, 47, 48.) The TAC also alleges that Plaintiff was present during Tidwell’s work, and that a Caltrans representative was present at well and even directed Tidwell’s work. (Referring to TAC, ¶¶ 41, 47, 48.)

However, as Plaintiff argues and stated above, an entry may also be accomplished by setting in motion an agency which, when put in operation, extends its energy to the plaintiff’s premises to its material injury. Here, the fifth cause of action incorporates previous paragraphs in the TAC, including those that allege that Tidwell’s jackhammering, and adds that Tidwell’s actions contributed to storm water and debris entering the Property. (TAC, ¶ 110.) The Court finds those facts are sufficient to constitute a cause of action for trespass.

Accordingly, the Court OVERRULES Tidwell’s demurrer to the fifth cause of action for trespass.

MOTIONS TO STRIKE

The court may strike out (1) any irrelevant, false, or improper matter inserted in any pleading or (2) all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)

A. EPC’s Motion to Strike

Meet and Confer

The Court finds that EPC met its meet and confer requirement (in light of Plaintiff’s failure to indicate otherwise) before filing its instant motion to strike. (EPC’s Motion to Strike, filed on August 15, 2022, declaration of Alicen Burtness, ¶ 2.)

Discussion

EPC moves to strike:

(1) Punitive damages allegations (TAC, ¶¶54, 59, 60, 61, 62, 76, 85, 96, 106, 113; Prayer, Item 8);

(2) Treble damages allegations based on Plaintiff’s RICO claim (TAC, ¶141; Prayer, Item 9);

(3) Costs of suit (Prayer, Item 10);

(4) Prayer for pre-judgment interest (Prayer, Item 11); and

(5) Prayer for attorneys’ fees (Prayer, Item 12).

As an initial matter, the Court DENIES the motion to strike Plaintiff’s prayers for costs of suit (Item 10), pre-judgment interest (Item 11), and attorneys’ fees (Item 12). Just because Plaintiff cannot ultimately recover those fees does not mean that it is improper for him to allege them.

However, the Court GRANTS. without leave to amend, EPC’s motion to strike the treble damages allegations (TAC, ¶141; Prayer, Item 9) because the Court has sustained EPC’s demurrer to the eighth cause of action for RICO without leave to amend.

With regards to the punitive damages allegations, a complaint must set forth the elements stated in the general punitive damage statute, Civil Code section 3294. (College. Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).)

Here, the Court has sustained without leave to amend EPC’s demurrer to the second cause of action for fraud and concealment.

Accordingly, the Court GRANTS EPC’s request to strike Paragraph 85 from the TAC, without leave to amend.

As for the rest of the punitive damages’ allegations, the Court finds that Plaintiff has not alleged facts sufficient to show malice or oppression.

“‘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, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).)

Here, Plaintiff argues that EPC’s installation of a power pole “evinces an attitude of wanton and reckless disregard for the Howell Property, its value, its uniqueness, the protected stream, and implied ongoing interests of the Howell family subjecting Defendants to the imposition of punitive damages.” (TAC, ¶ 54.)

However, the issue in the Complaint was not the defective installation of a power pole, but the installation of the power pole directly on the Culvert. It is the effect of that installation on the Culvert (not the power pole itself) that gives rise to Plaintiff’s alleged damages. However, just because EPC installed a power pole in the wrong place, that does not mean that its conduct was of the kind that would entitle Plaintiff to punitive damages. “As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) EPC’s installation of a power pole on the wrong location without more (e.g., that the power pole fell and electrocuted Plaintiff) is not of the character of outrage frequently associated with a crime.

Plaintiff fails to explain how he can further amend his pleading to sufficiently allege punitive damages against EPC.

Accordingly, the Court GRANTS the request to strike Prayer, Item 8 (which seeks exemplary damages against all defendants except Caltrans), and Paragraphs 54, 59, 60, 62, 76, 96, 106, and 113.

However, the Court DENIES the request to strike Paragraph 61, which is not alleged against EPC.

Conclusion

The Court GRANTS and DENIES in part EPC’s Motion to Strike Portions of the TAC as follows.

The Court GRANTS the request to strike Prayer Items 8 and 9, and Paragraphs 54, 59, 60, 62, 76, 85, 96, 106, 113, and 141, to the extent they request punitive damages against EPC, without leave to amend.

The Court DENIES the request to strike Paragraph 61 and Plaintiff’s prayers for costs of suit (Item 10), pre-judgment interest (Item 11), and attorneys’ fees (Item 12).

B. Tidwell’s Motion to Strike

Meet and Confer

Tidwell’s counsel testifies that Tidwell and Plaintiff met and conferred on August 8, 2022, telephonically but were unable to resolve the issues addressed in the instant motion to strike. (Tidwell’s Motion to Strike, filed on August 15, 2022, declaration of Holly Chang Beal, ¶ 2.)

Accordingly, the Court finds that Tidwell has satisfied the meet and confer requirements.

Discussion

Tidwell moves to strike the following allegations from the TAC:

(1) The reference to Tidwell in Paragraph 1 (page 1, lines 4, 15, 19, and 26);

(2) The reference to Tidwell in Paragraph 4 (page 3, line 16);

(3) The reference to Tidwell in Paragraph 9 (page 9, lines 21 and 23 and page 10, line 6);

(4) The reference to Tidwell in Paragraph 12 (page 13, lines 10 and 11);

(5) The reference to Tidwell in Paragraph 23 (page 18, lines 10-12, and 15);

(6) The reference to Tidwell in Paragraph E (page 26, line 1);

(7) The reference to Tidwell in Paragraph 43 (page 26, line 9);

(8) The reference to Tidwell in Paragraph 44 (page 26, line 19);

(9) The reference to Tidwell in Paragraph 54 (page 30, line 27);

(10) The reference to Tidwell in Paragraph 59 (page 33, line 18-19);

(11) The reference to Tidwell in Paragraphs 60 (page 35, lines 22 and 23);

(12) The reference to Tidwell in Paragraph 60 (page 36, lines 2, 10, 15, 21, 24);

(13) The reference to Tidwell in Paragraph 62 (page 37, lines 5 and 8-9);

(14) The reference to Tidwell in Paragraph 76 (page 41, lines 10-12, 13, 15, and 17);

(15) The reference to Tidwell in Paragraph 85 (page 44, lines 13, 16, and 23);

(16) The reference to Tidwell in Paragraph 96 (page 47, lines 12-13, 16, and 19);

(17) The reference to Tidwell in Paragraph 106 (page 50, lines 1, 2, 5, and 8);

(18) The reference to Tidwell in Paragraph 113 (page 52, lines 16-17, 20, and 23);

(19) The reference to Tidwell in Prayer, Paragraph 8 (page 60, lines 1 and 2);

(20) The reference to Tidwell in Prayer, Paragraph 9 (page 60, lines 3, 4, and 5); and

(21) The reference to Tidwell in Prayer, Paragraph 12 (page 61, lines 8 and 9).

As an initial matter, the Court DENIES Tidwell’s request to strike Prayer, Paragraph 12, because the TAC does not assert the inverse condemnation claim against Tidwell, and that prayer clearly states that the attorney’s fees are requested in relation to that claim.

In addition, Tidwell is essentially requesting the Court to strike allegations describing Tidwell’s liability. The Court refuses to do so.

Accordingly, the Court DENIES Tidwell’s request to strike the following:

(1) The reference to Tidwell in Paragraph 1 (page 1, lines 4, 15, 19, and 26);

(2) The reference to Tidwell in Paragraph 4 (page 3, line 16);

(3) The reference to Tidwell in Paragraph 9 (page 9, lines 21 and 23 and page 10, line 6);

(4) The reference to Tidwell in Paragraph 12 (page 13, lines 10 and 11);

(5) The reference to Tidwell in Paragraph 23 (page 18, lines 10-12, and 15);

(6) The reference to Tidwell in Paragraph E (page 26, line 1);

(7) The reference to Tidwell in Paragraph 43 (page 26, line 9); and

(8) The reference to Tidwell in Paragraph 44 (page 26, line 19).

With regards to the punitive damages allegations, the Court finds that Plaintiff has not alleged facts sufficient to show malice or oppression on the part of Tidwell. The allegations in the TAC (e.g., that Tidwell’s jackhammering contributed to the ultimate damages) do not show that Tidwell’s alleged wrongful conducts were of the character of outrage frequently associated with crime. The TAC has alleged at best grossly negligent or reckless conduct against Tidwell.

Plaintiff fails to explain how he can further amend his pleading to sufficiently allege punitive damages against Tidwell.

Accordingly, the Court GRANTS Tidwell’s request to strike the following (without leave to amend):

(1) The reference to Tidwell in Paragraph 54 (page 30, line 27);

(2) The reference to Tidwell in Paragraph 59 (page 33, line 18-19);

(3) The reference to Tidwell in Paragraphs 60 (page 35, lines 22 and 23);

(4) The reference to Tidwell in Paragraph 60 (page 36, lines 2, 10, 15, 21, 24);

(5) The reference to Tidwell in Paragraph 62 (page 37, lines 5 and 8-9);

(6) The reference to Tidwell in Paragraph 76 (page 41, lines 10-12, 13, 15, and 17);

(7) The reference to Tidwell in Paragraph 85 (page 44, lines 13, 16, and 23);

(8) The reference to Tidwell in Paragraph 96 (page 47, lines 12-13, 16, and 19);

(9) The reference to Tidwell in Paragraph 106 (page 50, lines 1, 2, 5, and 8);

(10) The reference to Tidwell in Paragraph 113 (page 52, lines 16-17, 20, and 23);

(11) The reference to Tidwell in Prayer, Paragraph 8 (page 60, lines 1 and 2); and

(12) The reference to Tidwell in Prayer, Paragraph 9 (page 60, lines 3, 4, and 5).

Conclusion

Tidwell’s Motion to Strike is GRANTED and DENIED in part.

CONCLUSION

Defendant Southern California Edison Company’s Demurrer is SUSTAINED, without leave to amend.

Defendant Edison Power Constructor’s Motion to Strike is GRANTED and DENIED in part as follows. The Court GRANTS the request to strike Prayer Items 8 and 9, and Paragraphs 54, 59, 60, 62, 76, 85, 96, 106, 113, and 141, to the extent they request punitive damages against EPC, without leave to amend. The Court DENIES the request to strike Paragraph 61 and Plaintiff’s prayers for costs of suit (Item 10), pre-judgment interest (Item 11), and attorneys’ fees (Item 12).

Defendant Tidwell Excavation Acquisition Co, Inc.’s Demurrer OVERRULED in its entirety.

Defendant Tidwell Excavation Acquisition Co, Inc.’s Motion to Strike is GRANTED and DENIED in part as follows:

The Court DENIES Tidwell’s request to strike the following:

(1) The reference to Tidwell in Paragraph 1 (page 1, lines 4, 15, 19, and 26);

(2) The reference to Tidwell in Paragraph 4 (page 3, line 16);

(3) The reference to Tidwell in Paragraph 9 (page 9, lines 21 and 23 and page 10, line 6);

(4) The reference to Tidwell in Paragraph 12 (page 13, lines 10 and 11);

(5) The reference to Tidwell in Paragraph 23 (page 18, lines 10-12, and 15);

(6) The reference to Tidwell in Paragraph E (page 26, line 1);

(7) The reference to Tidwell in Paragraph 43 (page 26, line 9);

(8) The reference to Tidwell in Paragraph 44 (page 26, line 19); and

(9) The reference to Tidwell in Prayer, Paragraph 12 (page 61, lines 8 and 9).

The Court GRANTS Tidwell’s request to strike the following (without leave to amend):