Judge: Elaine W. Mandel, Case: 23SMCV04183, Date: 2023-12-15 Tentative Ruling

Case Number: 23SMCV04183    Hearing Date: December 15, 2023    Dept: P

Tentative Ruling

Hill v. Sundquist, et al., Case No. 23SMCV04183

Hearing Date December 15, 2023

Defendants Sundquist’s Demurrer to Complaint and Motion to Strike

Plaintiff alleges defendant neighbors failed to contribute to replacing a shared fence that had fallen into disrepair. Defendants Sundquist demurs and moves to strike punitive damages.

Cal. Civ. Code §841(b)(2)

Under Cal. Civ. Code §841(b)(2), “[a]djoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them[,]” and “[w]here a landowner intends to incur costs for a fence described in paragraph (1), the landowner shall give 30 days’ prior written notice to each affected adjoining landowner.”

Defendant demurs, arguing the complaint does not allege Hill gave thirty days’ notice. Hill’s opposition does not address this argument. SUSTAINED with ten days leave to amend to allege compliance with statutory notice requirements.

Intentional Infliction of Emotional Distress

A cause of action for IIED requires plaintiff to allege conduct “so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized community.” Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051. The question of whether a defendant’s conduct can reasonably be called outrageous is a question of law that can be determined on demurrer. Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533-534.

The only wrongdoing alleged is Sundquist allowing a hydrangea vine to grow out of control and failing to contribute to the cost of replacing a fence. None of the conduct alleged is shocking or outside the bounds of basic decency. As a matter of law, no reasonable fact finder could conclude Hill’s allegations qualify as “extreme and outrageous” behavior justifying a cause of action for IIED. SUSTAINED.

Negligent Infliction of Emotional Distress

Generally, there is no legal duty to avoid negligently causing emotional distress to another. GU v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204. Such duty, however, can be imposed by law, voluntarily assumed by defendant or exist by virtue of a special relationship between the parties. Id.

Hill has not alleged facts establishing Sundquist owed a duty to avoid negligently causing emotional distress. Hill cites no law imposing such duty, has not alleged Sundquist assumed such duty and has not claimed any special relationship that creates the duty. SUSTAINED without leave to amend.

Punitive Damages

Punitive damages are recoverable against a defendant who acts with fraud, malice, or oppression. Cal. Civ. Code §3294. The complaint alleges conduct that, while it may be tortious, does not rise to the level of wrongdoing required to support punitive damages. GRANTED.