Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case involves a dispute between neighbors.  Plaintiffs Richard Ofshe and Keri Ofshe own the property located at 11585 Bellagio Road, Los Angeles, California 90049 (“Plaintiffs’ Property”).  (Compl. ¶ 1.)  Defendant Michael Broukhim (“Moving Defendant”) owns the property located at 711 Linda Flora Dr., Los Angeles California 90049 (“Broukhim Property”.)  (Id. ¶ 2.)  Defendants William Adams and Jacqueline Adams were the former owners of the Broukhim Property. (Id. ¶ 3.)  Plaintiffs’ Property and the Broukhim Property are adjoining lots.  (Id. ¶ 15.)   

Plaintiffs allege their property sustained water damage purportedly as a result of an underground drainage pipe installed by the prior owners of the Broukhim Property.  (Id. ¶ 8.)  Plaintiffs also allege that Moving Defendant has engaged in further excavation and construction which increased the flow of water and mud from the Broukhim Property onto Plaintiffs’ Property.  (Id. ¶ 9.)   

When Plaintiffs brought the issue to Moving Defendant’s attention, Moving Defendant claimed that the prior owners told him they had an easement to drain water onto the Plaintiffs’ Property. (Id. ¶ 9.)   It turned out that there was no such easement.  (Id.)  Plaintiffs requested that Moving Defendant remedy the property damage, but Moving Defendant refused.  (Id. ¶ 11.)       

The operative complaint alleges four causes of action against all Defendants for (1) willful trespass, (2) negligent trespass, (3) intentional infliction of emotional distress, and (4) private nuisance.   

This hearing is on Moving Defendant’s demurrer and motion to strike the complaint.  Defendant argues that (1) the intentional infliction of emotional distress claim fails because Plaintiffs have not alleged extreme and outrageous conduct on the part of Moving Defendant; (2) Plaintiffs’ prayer for punitive damages should be stricken because they have not alleged malice, oppression or fraud, and (3) Plaintiffs’ prayer for prejudgment interest should be stricken because Plaintiff’s claimed damages are uncertain.  

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.”).)  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 Defendant submits the Declaration of James McGarry which attests counsel requested to meet and confer by telephone on May 6, May 7, and May 14, but Plaintiffs’ counsel never responded.  This satisfies the meet and confer requirements of §§430.41 and 435.5.  Plaintiffs’ counsel is admonished to respond to requests to meet and confer.    

DISCUSSION 

Intentional Infliction of Emotional Distress 

Moving Defendant argues that Plaintiffs’ claim for intentional infliction of emotional distress fails because Plaintiffs have not alleged extreme and outrageous conduct or severe emotional distress.  The Court agrees.   

To state a claim for intentional infliction of emotional distress, a plaintiff must allege (1) extreme and outrageous conduct by the defendant with the intention of causing or reckless disregard of the probability of causing, emotional distress, (2) the plaintiff’s suffering of severe or extreme emotional distress, and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.  Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Wilson v. Hyneck (2012) 207 Cal.App.4th 999, 1009.)    

This is a property damage case.  The damage was allegedly caused by a faulty drainage pipe that was installed without a permit and exacerbated by further excavation and construction.    None of this conduct is extreme and outrageous.  Plaintiffs’ allegation that Moving Defendant intended to injure them (Compl. ¶ 25) is wholly conclusory.  Plaintiffs claim Moving Defendant failed to correct the problem even after it was brought to his attention.  But inaction, absent an intent to injure, is insufficient to constitute extreme and outrageous behavior for intentional infliction of emotional distress liability.  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.)¿   

Plaintiffs’ citation to Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337 is unavailing.  The case dealt with whether a plaintiff could recover for emotional distress damage once a cause of action for trespass or nuisance is established.  (Id. at 1349.)  It did not address the requirements for alleging a claim for intentional infliction of emotional distress.    

Plaintiffs have also failed to properly allege severe or extreme emotional distress.  “With respect to the requirement that the plaintiff show severe emotional distress, this court has set a high bar.  ‘Severe emotional distress’ means emotional distress of such substantial quality or enduring quality that no reasonable [person] in a civilized society should be expected to endure.”  (Potter v. Firestone Tire and Rubber Co. (1993) 6 Cal.4th 965, 1004.)  The Complaint fails to allege facts showing severe emotional distress.  Instead, Plaintiffs’ mere allegations of “humiliation, mental anguish and physical and emotional distress” (Compl. ¶ 26), are wholly conclusory.  There are no specific facts alleged to support a claim of severe emotional distress.  (Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047¿(mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress).)          

Accordingly, the Court sustains the demurrer to the intentional infliction of emotional distress claim.      

Punitive Damages 

Defendant moves to strike Plaintiffs’ claim for punitive damages and allegations of malicious, oppressive, fraudulent, intentional or willful conduct.  Defendant argues Plaintiffs have only made conclusory allegations that they are entitled to punitive damages without stating facts supporting a finding of malice, oppression or fraud.  The Court agrees.    

“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.4th 1253, 1255.)  “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.”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).)   

Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)     

Cal. Civ. Code section 3294 provides the basis upon which punitive damages can be recovered.  Punitive damages may only be sought where there is clear and convincing evidence that the defendant has been guilty of malice, oppression or fraud: 

(c)(1) “Malice” means conduct which is intended 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. 

(c)(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(c)(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.  

(Civ. Code §3294.) 

Section 3294 was amended in 1987 to increase the burden of proof required in order to allege a punitive damages claim as well as to raise the level of misconduct necessary for an award of punitive damages.  The California Supreme Court has ruled that the insertion of the word “despicable” in §3294 created a “new substantive limitation on punitive damage awards.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “Despicable” means conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)  “Such conduct has been described as having the character of outrage frequently associated with [a] crime.”  (Id.) 

Punitive damages are disfavored by public policy and are allowed only under the most extreme circumstances and in the “clearest of cases.”  (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9.)  “To contain the generosity and emotionality of juries, appellate courts have set the threshold high in defining situations in which punitive damages can be given.  Conduct which may be characterized as unreasonable, negligent, grossly negligent or reckless does not satisfy the highly culpable state of mind warranting punitive damages.  Conduct which warrants punitive damages must be of such severity or shocking character [as] warrants the same treatment as accorded willful misconduct – conduct in which defendant intends to cause harm.”  (Id. at 10 (internal quotations and citations omitted).)  

Here, the factual allegations in the complaint do not support a finding of malice, oppression or fraud.  Plaintiffs do not allege fraud.  As to malice and oppression, in the absence of intent to injure (which Plaintiffs have only plead conclusorily), both require a showing of despicable conduct.  (College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, 725.)  Plaintiffs allege Moving Defendant bought the Broukhim Property which had a faulty drainage pipe; thereafter, performed excavation and construction, which allegedly increased the flow of mud and water onto Plaintiffs’ Property; and then discovered that he did not have an easement as was represented to him by the former property owners.  This is not “vile, base, contemptible, miserable, wretched or loathsome conduct,” nor does it have the character of outrage frequently associated with a crime.  (Scott, 175 Cal.App.4th at 715.)   

Accordingly, the Court grants the motion to strike the prayer for punitive damages and the related allegations that Moving Defendant’s conduct was willful, intentional, malicious, fraudulent or oppressive.   

Prejudgment Interest 

Moving Defendant argues that Plaintiff cannot recover prejudgment interest because damages are not certain.  The Court disagrees. 

Pursuant to Civ. Code § 3288, “[i]n an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud or malice, interest may be given in the discretion of the jury.”  In¿Bullis¿v.¿Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815, the California Supreme Court explained: “Under¿Civil Code section 3288, the trier of fact¿may award prejudgment interest ‘[in] an action for the breach of an obligation not arising from contract,¿and¿in every case of¿oppression, fraud or malice …’ (Italics added.)  It is clear from this language that a party does not have to prove both a breach of a noncontractual obligation and oppression, fraud or malice.  Even if plaintiff’s damages are not liquidated,¿prejudgment interest may be awarded.”  (Id. at 814-815.)  That Plaintiff’s damages are not certain, therefore, does not preclude the award of prejudgment interest under § 3288. 

Accordingly, the Court denies the motion to strike the prayer for prejudgment interest.      

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant’s demurrer with 20 days’ leave to amend and GRANTS IN PART and DENIES IN PART the motion to strike with 20 days’ leave to amend.   

 

IT IS SO ORDERED. 

 

DATED:  July 19, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court