Judge Gary Y. Tanaka, Case 21TRCV00245 2023-01-09 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, January 9, 2023

Department B Calendar No. 5

Plaintiffs’ Complaint was filed on April 1, 2021. Plaintiffs’ First Amended Complaint was filed on June 17, 2021. Plaintiffs allege the following facts. Plaintiffs own and reside at 601 Paseo de los Reyes, Redondo Beach, California 90277. Defendant Karyn Chamberlain is the owner of neighboring property. Defendant Gutierrez & Sons Tree Service & Landscaping, Inc. was hired by Defendant Chamberlain. Defendants caused harm to Plaintiffs by trespassing and cutting trees and vegetation on Plaintiffs’ property. Plaintiffs allege the following causes of action: 1. Willful Trespass, Temporary Restraining Order, and Preliminary and Permanent Injunction; 2. Request for Declaratory Relief; 3. Elder Abuse.

On March 11, 2022, Karyn Chamberlain and Michael Chamberlain filed a Cross-Complaint alleging causes of action for: 1. Nuisance; 2. IIED; 3. Elder Abuse; 4. Declaratory Relief.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)

Cross-Defendant moves for summary adjudication of the following issues as to the Cross-Complaint.

Issue 1: “The first cause of action of the . . . Cross-Complaint for Private Nuisance fails because none of the small trees and shrubs growing along the Atkins' south property line exceed ten feet in height and therefore do not constitute a spite fence as defined in Civil Code section 841.4.” (Notice of Motion, page 1, lines 12-15).

Issue 2: “The fourth cause of action of the . . . Cross-Complaint for Declaratory Relief fails because none of the small trees and shrubs growing along the Atkins' south property line exceed ten feet in height and therefore do not constitute a spite fence as defined in Civil Code section 841.4.” (Notice of Motion, page 1, lines 16-19).

“Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.”

Cross-Defendants have met their initial burden to submit evidence to show that an essential element of Cross-Complainants’ first and fourth causes of action cannot be established or that there is a complete defense to the causes of action. Cross-Defendants allege that the offending trees and shrubs do not constitute a spite fence pursuant to Civ. Code § 841.

However, Cross-Complainants have met their burden to submit competent evidence to show the existence of a triable issue of material fact as to the first and fourth causes of action. (Cross-Complainants’ Separate Statement of Facts and Supporting Evidence, 1, 3, 4, 6.) Cross-Complainants submitted evidence indicating that the offending trees and shrubs are located on a planter which is 49.7 inches above grade where the hedge begins and that, therefore, the foliage height is between 135.3 inches and 163.9 inches above the finish grade of the northern property. (Decl., John O. Schuricht, ¶¶ 6-8.) Thus, a triable issue of material fact exists as to whether the asserted offending structure exceeds ten feet in height. The sole ground for Cross-Defendants’ motion was that the offending structure was less than ten feet in height and, therefore, could not constitute a spite fence under Civ. Code § 841.