Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

BACKGROUND 

This case arises from a dispute between neighbors over a hedge.  Plaintiff Anita Gorwara is the owner of real property located at 15224 Earlham Street, Pacific Palisades, California (the “Property”).  In 2021, Plaintiff planted a Ficus hedge row which she claims was entirely on her Property near the property line of the adjacent property, commonly known as 15230 Earlham Street (the “Adjacent Property”).  At the time she planted the hedge, the Adjacent Property was a vacant house, having been foreclosed upon by a financial institution.     

In 2021, Defendants Dr. Albert Chang and Kyong Ae Kim (“Moving Defendants”) bought the Adjacent Property.  The Ficus hedge was already in existence at the time of Moving Defendants’ purchase.  Plaintiff claims Moving Defendants attempted to poison the hedge in September 2021, and when that failed, Moving Defendants instructed their gardener to enter the Property and to cut down Plaintiff’s Ficus hedge.  Moving Defendants maintain that the Ficus hedge is on their property.  This lawsuit ensued.   

The original complaint alleges seven claims for (1) malicious damage to property (Cal. Civ. Code § 733), (2) trespass, (3) negligence per se, (4) negligence, (5) intentional infliction of emotional distress (“IIED”), (6) injunctive relief and (7) quiet title.  Plaintiff then filed a first amended complaint which now adds as a new defendant, Moving Defendants’ gardener, Carmen Carlos Martinez.  

This hearing is on Moving Defendants’ demurrer with motion to strike.  Moving Defendants argue (1) Plaintiffs’ claim for “malicious damage to property” is not supported by Cal. Civ. Code § 733; (2) Plaintiff’s claim for negligence per se fails because it is not an independent cause of action but an evidentiary doctrine; (3) Plaintiff’s IIED claim fails because emotional distress damages are generally not recoverable for property damage; (4) Plaintiff’s injunctive relief claim fails because it is a remedy and not an independent cause of action, and (5) Plaintiff’s quiet title claim fails because Plaintiff does not include the legal description of the property and the date as to which the determination of the rights of the property is sought as required by Code Civ. Proc. § 761.020.  Moving Defendants also move to strike Plaintiff’s claim for punitive damages because Plaintiff has not alleged malice, oppression or fraud, and Plaintiff’s request for attorneys’ fees because Plaintiff has not alleged any contract or statute authorizing such a claim.   

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., §436, subd. (a).) The court may also strike 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. (Code Civ. Proc., §436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., §437.)¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Moving Defendants submit the Declaration of Christine Chou which fails to show the parties met and conferred by telephone or in person.  Rather, counsel sent a meet and confer letter, and the parties exchanged emails.  While Moving Defendants requested a call, Plaintiff did not respond to Moving Defendants’ request.  The Court admonishes Plaintiff to respond to meet and confer requests.  In any event, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer.  (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).)   

PROCEDURAL DEFECT 

Motions¿to¿strike¿and¿demurrers¿must¿be¿filed¿as¿separate¿documents. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020 ¶7:162.1.)  Moving Defendants filed a single omnibus motion.  Accordingly, their papers are procedurally defective.  Notwithstanding, in the interest of moving the case forward, the Court will rule on the demurrer and motion to strike on their merits.  But Moving Defendants should not rely on the Court’s indulgence in the future.     

UNTIMELINESS 

Plaintiff argues Defendants’ demurrer is untimely because it was not filed within 30 days after service of the Complaint.  Defendants concede their demurrer is untimely but argues the Court has discretion to increase the time for filing a demurrer “in furtherance of justice and on any terms that may be proper.”  The Court exercises its discretion to consider the untimely demurrer.   

“[S]ection 473, subdivision (a)(1) allows the court to increase the time for filing a demurrer in furtherance of justice and on any terms that may be proper.” (Jackson v. Doe (2011) 192 Cal. App. 4th 742, 750.)  The trial court may exercise this discretion so long as its action does “not affect the substantial rights of the parties.” (McAllister v. Cty. of Monterey (2007) 147 Cal. App. 4th 253, 282) “There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity; the granting or denial of the motion is a matter which lies within the discretion of the court.” (McAllister v. Cty. of Monterey (2007) 147 Cal. App. 4th 253, 281-282.)   

The Court concludes the late filing was a mere irregularity based on Defendants’ reasonable belief that the parties had informally agreed to not litigate the matter pending the Court’s ruling on a formal stay.  Additionally, Plaintiff has not shown how the Court’s hearing the demurrer will substantially affect her rights.     

ANALYSIS 

Malicious Damage to Property 

Moving Defendants argue that Plaintiff has not properly stated a claim for a violation of Cal. Civ. Code §733.  Section 733 states: 

“When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisposed of, and no valid direction for its accumulation is given, such income belongs to the persons presumptively entitled to the next eventual interest.” 

This statute has no bearing to the present facts.   

Plaintiff probably meant to cite to Cal. Civ. Proc. Code §733 which provides that “[a]ny person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person … is liable to the owner of such land … for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.”   

The court is obligated to look past the form of a pleading to its substance.  Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.  (See, e.g.,¿Williams¿v.¿Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿“It is not what a paper is named, but what it is that fixes its character.” (Parnham¿v.¿Parnham¿(1939) 32 Cal.App.2d 93, 96.)  Accordingly, that Plaintiff cited to the incorrect statute is not a basis to sustain the demurrer. 

Instead, our task is to determine whether Plaintiff has adequately stated a claim under Cal. Civ. Proc. Code §733.  Moving Defendants argue Plaintiff has not, because she has not sufficiently alleged malice or intent.  The Court disagrees.   

“Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially.”  (People v. Thomas (2011) 52 Cal.4th 336, 355.)  One can infer intent, and therefore, whether the defendant acted intentionally, from surrounding facts and circumstances of the offense.  (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 622.)  One’s actions are circumstantial evidence of his intent.¿ (Fenton v. Bd. of Directors (1984) 156 Cal.App.3d 1107, 1117.)  So it is here.  Plaintiff has alleged Defendants poisoned her hedge and sent their gardener to cut down the hedge on her property.  (FAC ¶¶ 9, 14.)  Defendants’ malicious intent may be inferred from these actions.   

Moving Defendants also argue that Plaintiff fails to state how she was harmed, the manner of harm, or the amount of her damages.  The Court agrees.  “If the recovery of money or damages is demanded, the amount demanded shall be stated.”  (Code Civ. Proc. § 425.10(a)(2).)  Because Plaintiff has failed to state the amount of her damages, the Court sustains the demurrer to her malicious damage claim. 

Negligence Per Se 

Plaintiff’s negligence per se claim alleges a violation of Civ. Code §733.  For reasons stated above, that is likely a miscite as the facts alleged here do not support a violation of §733.  Regardless, the negligence per se claim is subject to demur because “[n]egligence per se is an evidentiary doctrine, rather than an independent cause of action.”  (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210-1211; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286 (“[T]o apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute.”).)  As both the courts in Jones and Quiroz held, Plaintiff’s third cause of action for negligence per se is not cognizable. Therefore, the Court sustains the demurrer to Plaintiff’s negligence per se claim without leave to amend. 

IIED  

Citing Erlich v. Menezes (1999) 21 Cal.4th 543, 554, Moving Defendants argue that Plaintiff’s IIED claim fails because emotional distress damages are not recoverable in connection with property damage.  The Court disagrees. 

Erlich v. Menezes¿and other cases disallowing emotional distress damages in cases of property damage involved negligent infliction of emotional distress.  (Id. (negligent construction of home does not support emotional distress damages);¿Butler-Rupp v. Lourdeaux¿(2005) 134 Cal.App.4th 1220, 1228–1229¿(negligent breach of lease of storage space);¿Camenisch v. Superior Court¿(1996) 44 Cal.App.4th 1689, 1693¿(negligent infliction of emotional distress based on legal malpractice);¿Smith v. Superior Court¿(1992) 10 Cal.App.4th 1033, 1040¿(“mere negligence will not support a recovery for mental suffering where the defendant's tortious conduct has resulted in only economic injury to the plaintiff”).)¿  

The rule does not apply to intentional infliction of emotional distress.  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203-204.)  “[R]ecovery for emotional distress caused by injury to property is permitted only where there is a preexisting relationship between the parties or an intentional tort.” (Lubner v. City of Los Angeles¿(1996) 45 Cal.App.4th 525, 532 (emphasis added); see¿Cooper v. Superior¿Court¿(1984) 153 Cal.App.3d 1008, 1012 (no recovery for emotional distress arising solely out of property damage “absent a threshold showing of some preexisting relationship or intentional tort”).)  IIED is an intentional tort.  (Ragland, 209 Cal.App.4th at 203-204.)  If Plaintiff successfully pleads and proves the elements, Plaintiff would be entitled to recover of emotional distress damages.   

Moving Defendants next argue that Plaintiff has not sufficiently alleged outrageous conduct.  The Court disagrees.  “For conduct to be considered outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”¿(Christensen v. Superior Court¿(1991) 54 Cal. 3d 863, 903.)  Here, Plaintiff alleges Moving Defendants maliciously poisoned her Ficus hedge and directed their gardener to enter Plaintiff’s property to maliciously cut down and damage Plaintiff’s Ficus hedge.  (FAC ¶¶ 9, 14.)  These allegations are sufficient to support a finding of intentional trespass which can constitute extreme and outrageous conduct.  Because intentional trespass can support a claim for punitive damages which requires despicable conduct, Haun v. Hyman (1963) 223 Cal.App.2d 615, 620, it must follow that it can also support a finding of extreme and outrageous conduct.  Both despicable and outrageous conduct are defined as conduct that would not be tolerated in a civilized society.   

Moving Defendants also argue that Plaintiff has not sufficiently alleged she suffered severe emotional distress.  On this point, the Court agrees.  Severe emotional distress is defined as “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.”¿ (Fletcher v.¿Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)  Moreover, to¿sufficiently¿state this element, plaintiff must set forth facts indicating the nature and extent of any¿alleged¿mental suffering.¿ (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)¿Conclusory allegations that plaintiff suffered¿severe¿emotional¿distress, without more, are held insufficient.  (Id.; see also¿Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.)  Here, there is a single conclusory allegation that “Plaintiff has suffered severe emotional distress”.  There is no description of the nature and extent of Plaintiff’s distress.  Accordingly, the Court sustains the demurrer to Plaintiff’s IIED claim with leave to amend.   

Injunctive Relief 

Moving Defendants argue that Plaintiff’s claim for injunctive relief fails because injunctive relief is not a cause of action.  The Court agrees.   

“Injunctive relief is a remedy not a cause of action. [Citations.]  A cause of action must exist before a court may grant a request for injunctive relief.”  (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65; accord, City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 (“A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.”’); see also Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App4th 604, 618; McDowell v. Watson (1997) 59 Cal.App.4th 1155,1159.  Therefore, the Court sustains the demurrer to the sixth cause of action for injunctive relief without leave to amend.   

Quiet Title 

Moving Defendants argue that Plaintiff have not properly alleged the requirements for a quiet title action.  The Court agrees.   

Code Civ. Proc. § 761.020 provides the requirements for a quiet title cause of action as follows:  

“1. A description of the property that is the subject of the action. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.  

2. The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title.  

3. The adverse claims to the title of the plaintiff against which a determination is sought.  

4. The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of reasons why a determination as of the date is sought.  

5. A prayer for determination of title of the plaintiff against adverse claims.”  

Here, Plaintiff failed to include both the legal description of the property and the date as of which the determination of rights of the property is sought, as required by Code of Civ. Proc. §761.020.  Therefore, the Court sustains the demurrer to the seventh cause of action for quiet title, with leave to amend.   

Punitive Damages 

Moving Defendants move to strike Plaintiff’s claim for punitive damages in connection with her claims for malicious damage to property and IIED as well as her prayer for relief.  Moving Defendants argue Plaintiff has not alleged malice, oppression or fraud.  The Court disagrees. 

Civ. Code § 3294 (a)¿authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…” “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”¿ (Civ. Code § 3294 (c)(2).)  “Malice” is defined to mean “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 (c)(a).) 

“Despicable conduct” is defined as “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary, decent people.” ¿(Mock v. Michigan Millers Mutual Ins. Co. (1990) 4 Cal. App. 4th 306, 331, quoting¿BAJI 14.72.1; see also CACI 3940.)  Such conduct has been described as “[having] the character of outrage frequently associated with crime.”¿ (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, quotation omitted.) 

Here, Plaintiff alleges that Moving Defendants engaged in¿trespass¿onto her property, intentionally destroying her ficus hedge.  A claim for intentional¿trespass¿has long been held to support a claim for¿punitive damages.  (See¿Haun, 223 Cal.App.2d at 620 (“Where a trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship or oppression, it is clear that¿punitive damages¿may be awarded.”); 6 Witkin, Summary (11th ed. 2020), Torts, §1759 (willful trespass or intentional injury to real property are occasionally grounds for an award of punitive damages).)¿ The motion to strike the claim for punitive damages accordingly is denied. 

Attorneys’ Fees 

Defendants move to strike Plaintiff’s request for attorneys’ fees as not authorized by contract or statute.  The Court agrees.   

California generally follows what is commonly referred to as the “American Rule,” which provides that each party to a lawsuit must ordinarily pay his or her own¿attorney fees. (See, e.g.,¿Trope v. Katz¿(1995) 11 Cal.4th 274, 278.)  The¿American Rule¿is codified in¿Code Civ. Proc. § 1021, which states in¿relevant part:¿“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties … .”¿ Pursuant to § 1021, attorneys’ fees are recoverable only when authorized by contract or statute.  (Harbor City Discount Auto Center, Inc. v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 886.)   

Here, Plaintiff prays for “costs of litigation, including statutory attorney fees” but has failed to allege any legal basis for seeking attorney fees, including an agreement between the parties or a statute entitling Plaintiff to an award of attorneys’ fees, if any.  Plaintiff’s Opposition does not address this issue, and therefore, Plaintiff is deemed to have conceded on this point.  Accordingly, the Court grants the motion to strike Plaintiff’s claim for attorneys’ fees.   

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART the demurrer with 20 days’ leave to amend and DENIES IN PART and GRANTS IN PART the motion to strike without leave to amend.   

IT IS SO ORDERED. 

DATED: September 18, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court