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”).  (First Amended Complaint (“FAC”) ¶ 1.)  Defendant Michael Broukhim (“Moving Defendant”) resides 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 allege their property sustained water damage purportedly as a result of an underground drainage pipe installed by the prior owners of the Broukhim Property, without the necessary permits.  (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.)  Plaintiffs allege Moving Defendant performed the construction without obtaining permits.  (Id.) 

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. ¶ 10.)   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 FAC 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.   

The Court sustained a demurrer to the intentional infliction of emotional distress claim in the original complaint because Plaintiffs failed to allege extreme and outrageous conduct or severe emotional distress.  The Court also granted the motion to strike Plaintiffs’ prayer for punitive damages in the original complaint as Plaintiffs’ allegations of malice, oppression or fraud were wholly conclusory.   

This hearing is on Moving Defendant’s demurrer and motion to strike FAC.  As with their previous demurrer, 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, and (2) Plaintiffs’ prayer for punitive damages should be stricken because they have not alleged malice, oppression or fraud.  

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 the parties met and conferred by phone on August 22, 2024, five days before Moving Defendant filed his demurrer on August 27, 2024.  This satisfies the meet and confer requirements of §§430.41 and 435.5.   

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.  The Court disagrees.   

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.)    

Whether conduct is sufficiently outrageous is a question of fact for the jury.  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.)  This is so because “[t]here is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold and standards of civility.”  (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) 

Here, there are sufficient facts from which a trier of fact could conclude there is extreme and outrageous conduct.  The FAC alleges that moving Defendant has used an illegal drainage system which has caused mud, water and debris to flow to Plaintiffs’ Property, damaging and undermining its foundation.  (FAC ¶¶ 17, 19.)  Plaintiffs have been forced to resort to placing sand bags and diverting the water and mud to the patio side of their house, fouling their backyard.  (Id. ¶13.)  On multiple occasions during the rain, Ms. Ofshe had to climb up the slick hill to the top of the drainage pipe to unclog the pipe so that it would lessen the damage to Plaintiffs’ property.  (Id. ¶16.)  Mud and debris has also flowed into Plaintiffs’ pool, requiring them to drain the pool and clean out the mud at least five times since January 1, 2023.  (Id. ¶13.)  Plaintiffs cannot consistently use their property because they are routinely displaced by the mud flows and the resulting need to repair the property.  (Id. ¶19.)  Plaintiffs feel they are trapped because they cannot sell the property as they would have to disclose the damage that could occur after a heavy rainfall.  (Id. ¶21.)  Plaintiffs live in constant fear that their home will be swept away by the mud flows, and they have suffered extreme mental depression and anxiety, causing a significant strain on their marriage.  (Id. ¶¶ 21, 42.)  Plaintiffs allege Moving Defendant knew of the extent of the damage caused by the illegal drainage, and that his activity is causing anxiety, stress, severe emotional distress, nightmares and depression, yet he continues to use the illegal drainage system and has further exacerbated the problem by engaging in more excavations.  (Id. ¶24.)  On these facts, the Court concludes Plaintiffs have sufficiently alleged extreme and outrageous conduct. 

Moving Defendant argues that Plaintiffs cannot recover emotional distress damages for property damage.  But it is well established in California that trespass and nuisance such as alleged against Moving Defendant give rise to a claim for emotional distress.  (Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1349 (“Our high court and lower courts have long held that once a cause of action for trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance.”)  This is so even where the trespass or nuisance involves solely property damage.  (Id.)   

Moreover, the rule is that there is no recovery for emotional distress arising solely out of property damage, except where there is a pre-existing relationship or an intentional tort.  (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.)  Accordingly, while this rule may apply to a claim for negligent infliction of emotional distress, it does not apply to a claim for intentional infliction of emotional distress, which is an intentional tort.  (Ragland, 209 Cal.App.4th at 203 (“Defendants argue plaintiff cannot recover emotional distress damages—either intentionally or negligently inflicted—because she suffered property damage at most as result of their actions.  Erlich¿v. Menezes and other cases disallowing¿emotional distress damages in cases of¿property damage¿involved negligent infliction of emotional distress.  The rule does not apply to¿intentional infliction¿of emotional distress[.]”).) ¿ 

Moving Defendant argues that inaction, absent an intent to injure, is insufficient to constitute extreme and outrageous behavior.  But Moving Defendant’s actions went beyond inaction.  He continued to use the illegal drainage system and engaged in further excavations even after Plaintiffs brought the property damage and their mental distress to Moving Defendant’s attention.  (Id. ¶24.)  From these acts, one can infer Moving Defendant’s intent to injure.  (Fenton v. Bd. of Directors (1984) 156 Cal.App.3d 1107, 1117 (intent may be inferred from one’s actions).)  When a defendant continues to do an act despite knowing it will cause further injury, it can be said that defendant intended to injure Plaintiffs.  (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 622 (one can infer intent, and therefore, whether the defendant acted intentionally, from surrounding facts and circumstances of the offense).)   

Punitive Damages 

Moving 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 disagrees.    

“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 Court concludes that Plaintiffs have sufficiently alleged an intent to injure, and therefore, malice.  Moving Defendant continued to use the illegal drainage system and engaged in further excavations and construction even after Plaintiffs brought the property damage and their mental distress to Moving Defendant’s attention.  (Id. ¶24.)  When a defendant continues to do an act despite knowing it will cause further injury, it can be said that defendant intended to injure plaintiffs.   

Moreover, a cause or action for intentional¿trespass can give rise¿to¿punitive damages.¿ (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.)  Plaintiffs have alleged willful trespass on the part of Moving Defendant.  While Moving Defendant initially believed he had an easement to drain into Plaintiffs’ Property, he was later disabused of that fact, but continued to illegally drain into Plaintiffs’ Property, thereby willfully trespassing onto Plaintiffs’ Property.  (FAC ¶32.)     ¿ 

Accordingly, the Court denies 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.   

CONCLUSION 

Based on the foregoing, the Court OVERRULES Defendant’s demurrer and DENIES the motion to strike.   

 

IT IS SO ORDERED. 

 

DATED:  September 24, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court