Judge: Gregory Keosian, Case: BC678400, Date: 2023-01-31 Tentative Ruling

Case Number: BC678400    Hearing Date: January 31, 2023    Dept: 61

Cross-Defendants USC Investments and Patricia Hartunian’s Motion for Summary Judgment or Adjudication is GRANTED as to the second cause of action for public nuisance, and is otherwise DENIED.

I.      OBJECTIONS

Cross-Complainants Faryan and Leila Afifi object to portions of the declaration of Patricia Hartunian submitted in support of the motion for summary judgment. The objections are OVERRULED, as Hartunian may testify to what she’s observed of interactions between her dogs and Cross-Complainants’, as well as to the practices she’s adopted in response thereto.

II.             SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (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 that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Plaintiff and Cross-Defendant USC Investments, LLC (USCI) and Cross-Defendant Patricia Hartunian (Cross-Defendants) move for summary judgment against the claims contained in Cross-Complainants Faryan Afifi, Leila Afifi, and the Afifi Family Trust (Cross-Complainants). Cross-Defendants argue that all claims against USCI fail because all their evidence of nuisance and ill-conduct stems from the behavior of Hartunian and her agents, none of whom are agents of USCI, which owns the property on which Hartunian resides. (Motion at pp. 17–19.) Cross-Defendants further argue that any claim for public nuisance fails because, in addition to the dog-barking at issue being insubstantial, an insufficient number of people are affected for such conduct to constitute a nuisance to the public. (Motion at pp. 19–21.) Cross-Defendants further argue that Cross-Complainants’ claim for intentional infliction of emotional distress (IIED) fails because the facts do not demonstrate outrageous conduct on the part of Cross-Defendants, nor severe emotional distress on the part of Leila Afifi. (Motion at pp. 21–25.) For the same reasons, Cross-Defendants object to Cross-Complainants’ prayer for punitive damages. (Motion at pp. 25–26.) And finally, Cross-Defendants argue that Cross-Complainants’ private nuisance claim fails because the alleged nuisance is not an unreasonable or substantial impediment to Cross-Complainants’ use of the property. (Motion at pp. 26–29.)

III.            Cross-Defendants’ Account

Cross-Defendants present the following account of events.[1] Defendant Patricia Hartunian lives at the property owned by Defendant USCI, and has since 2001. (Hartunian Decl. ¶ 2.) Hartunian is not an officer or agent of USCI. (Hartunian Decl. ¶ 3.) The property consists of a lot with a home, in which Hartunian lives, and a lot with a large enclosed backyard behind, which shares a boundary with property belonging to Cross-Complainants to the south. (Hartunian Decl. ¶¶ 4, 8.) Cross-Complainants have lived in the southern property since 2016. (Hartunian Decl. ¶ 8.)

During this time, Hartunian had four (as of 2020 three) golden retrievers. (Hartunian Decl. ¶ 5.) Although the dogs are evidently kept on that portion of the property that contains the Hartunian residence, Hartunian and her housekeepers take them out into the lower portion of their property one or more times per day, most days of the week, generally not at night. (Hartunian Decl. ¶¶ 6–7.) Cross-Complainants, meanwhile, have two dogs on their property. (Hartunian Decl. ¶ 10.) A chain-link fence divides the properties, and when the dogs spy each other through the barrier, they bark at each other through the fence. (Hartunian Decl. ¶ 10.)[2] Hartunian characterizes Cross-Complainants’ dogs as the instigators of these events, and states that Cross-Complainants leave the task of separating the dogs to Hartunian or the housekeepers. (Hartunian Decl. ¶¶ 10–11.) Although the parties attempted to come to an arrangement for timing the release of their respective dogs shortly after Cross-Complainants moved in, this arrangement broke down shortly after it was made. (Motion Exh. B at pp. 125–129.)

As it stands, Hartunian asks her housekeepers to confirm if Cross-Complainants dogs are outside before deciding whether to release her own dogs, and does not release them if Cross-Complainants’ dogs are spotted. (Hartunian Decl. ¶ 14.) Hartunian claims that she’s witnessed numerous occasions where Cross-Complainants spy her dogs coming, and then release their own dogs to initiate a confrontation at the fenceline, during which time Leila Afifi yells threats and insults at Hartunian. (Hartunian Decl. ¶ 12.) In October 2018, Cross-Defendants put up a temporary fence with netting near the property line to prevent the dogs from seeing each other, and which has reduced interactions between the dogs.(Hartunian Decl. ¶ 15.)

IV.            Cross-Complainants’ Account

Cross-Complainants present a different version of events. Leila Afifi states that shortly after Cross-Complainants moved in, their two dogs and Cross-Defendants’ dogs would bark at each other across the fence line. (Leila Decl. ¶ 6.) While Leila attempted to physically separate the dogs — one of her dogs is infirm — Hartunian did nothing to intervene save to call after her dogs, to no effect. (Leila Decl. ¶¶ 4, 6.) It was Leila who attempted to arrange a notice-agreement with Cross-Defendants, who agreed to notify her by text message when their dogs were being walked on the northern property. (Leila Decl. ¶¶ 7–8.) But Cross-Defendants would not agree to delay walks if Cross-Complainants were not home to keep the dogs in, and they eventually stopped texting, apparently after October 2016. (Leila Decl. ¶ 10, Exh. 2.)

Since that time, Cross-Defendants have walked their dogs by Cross-Complainants property about three times a day for 20–40 minutes, resulting in one or two barking exchanges each day, sometimes at night. (Leila Decl. ¶¶ 12, 14.) Once Cross-Defendants let their dogs out, the dogs rush to a knoll with a view into Cross-Complainants’ property, and once they see any dog or person moving inside or outside the home, they rush to the fence and bark at what they see.[3] (Leila Decl. ¶ 15; Faryan Decl. ¶¶ 3–4.) Faryan Afifi states he has not once seen a member of Cross-Defendants’ household check to see if Cross-Complainants’ dogs are out before releasing their own. (Faryan Decl. ¶ 6.) Rather, once the parties’ dogs are at odds across the fence, and Cross-Complainants have moved to separate them, Hartunian stands aloof, and sometimes remarks that she is “just walking my dogs on my property.” (Leila Decl. ¶ 24; Faryan Decl. ¶ 21.)

There have been many incidents involving the dogs. In 2016, one of the barking incidents resulted in one of Cross-Defendants’ dogs biting the ear of one of Cross-Complainants’ dogs, requiring a visit to the vet. (Leila Decl. ¶ 20.) On one instance in 2017, the dogs rushed down from the knoll to the fence, frightening one of Cross-Complainants’ friends who was then in the backyard. (Leila Decl. ¶ 13.) Often Hartunian or one of her housekeepers accompanies the dogs to the knoll, and looks down with them into Cross-Defendants’ property. (Leila Decl. ¶¶ 16–18, 23.) Leila at one time was inside her home in her underwear, and looked outside to see one of Hartunian’s housekeeper’s looking down at her, pointing and laughing. (Leila Decl. ¶ 16.) At another time, a housekeeper was standing on the knoll with the dogs, and was dancing mockingly while looking at Leila inside her house. (Leila Decl. ¶ 17.) A barking incident between dogs ensued, which, when Leila intervened, prompted someone else on Cross-Defendants’ property to emerge with a phone or camera, recording the event and stating, “I got what I wanted. (Ibid.) Faryan testifies that once, while he and Leila were trying to separate the dogs during another such event, Steven Hartunian (Patricia Hartunian’s husband) grabbed a rake and ran toward him, yelling, “What the hell are you looking at?” (Faryan Decl. ¶ 11.) Cross-Complainants took their dogs back inside, while Cross-Defendants’ dogs remained outside barking for another 20 to 30 minutes. (Ibid.) Cross-Complainants claim there have been hundreds of incidents involving Cross-Defendants’ dogs and the fenceline, which occur on a daily or weekly basis. (Leila Decl. ¶¶ 16, 28.)[4]

Cross-Complainants claim that the unpredictable presence of Cross-Defendants’ dogs has changed the way they live in their home. Faryan states that there is no way to know when Cross-Defendants dogs will be released, or once released, when they will be taken back in. (Faryan Decl. ¶ 29.) All of Cross-Complainants’ doors are kept closed to ensure their own dogs don’t rush out to bark at Cross-Defendants, meaning the house is perpetually stuffy and hot, as its doors were intended to be its primary means of ventilation. (Leila Decl. ¶¶ 21, 32; Faryan Decl. ¶ 5.) Cross-Complainants had built their house to allow the inside and outside to be open to each other, which design is now frustrated. (Leila Decl. ¶ 32.) Cross-Defendants’ dogs bark at Cross-Complainants when they are outside in their yard, barbequing, having drinks, or entertaining friends, even when Cross-Complainants’ own dogs are inside. (Leila Decl. ¶ 26; Faryan Decl. ¶ 28.) Cross-Complainants’ dogs are thus kept inside much of the time to avoid altercations. (Leila Decl. ¶ 29.) Cross-Defendants’ dogs prevent Cross-Complainants from napping during the day or recuperating from illness. (Leila Decl. ¶¶ 29–30.) They cannot make normal use of the rooms or areas that Cross-Defendants’ dogs can see from outside, such as the patio area, the kitchen, the dining or the dining room. (Faryan Decl. ¶ 32.) The temporary fence erected by Cross-Defendants does nothing to limit barking encounters, as it does not block the dogs view from the knoll or prevent them from rushing to the fenceline. (Faryan Decl. ¶ 15.)

Leila Afifi states that she now suffers from constant anxiety as a result of her neighbors’ dogs, not knowing when they will be released or for how long, always rushing down to close doors when she hears them coming. (Leila Decl. ¶ 32.) Leila now has a panic response when she hears dogs barking near her home, which occurs 10-20 times a day, and is started from sleep by nightmares of aggressive, barking dogs. (Leila Decl. ¶¶ 32, 34.) Leila now sleeps less than three hours a night, and suffers from stomach upset and heart palpitations she never suffered from before. (Leila Decl. ¶ 35.)

V.             USCI’S LIABILITY

Cross-Defendants argue that USCI, the entity that owns the property in which Patricia Hartunian and her dogs live, cannot be liable for any of the causes of action asserted in the cross-complaint because it has not participated in any of the wrongdoing alleged by Cross-Complainants, except by being owner of the property on which the conduct took place. (Motion at pp. 17–19.) All these events, Cross-Defendants argue, occurred betweeen Cross-Complainants, Patricia Hartunian, and Patricia Hartunian’s housekeepers, none of whom are agents or officers of USCI. (Hartunian Decl. ¶¶ 3, 6.)

 “[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.) Such authority, however, assumes the absence of negligence on the part of the possessor of the property, as “an owner of land may not do even nonnegligent acts on his property with impunity where they create a nuisance as to his neighbor, and that in such circumstances the owner of the neighboring land is entitled to appropriate relief.” (Shields v. Wondries (1957) 154 Cal.App.2d 249, 255.)

But where a landowner’s failure to act constitutes negligence, that failure to act may subject the landowner to negligence liability:

Liability for nuisance may result from the failure to act. Thus, a possessor of land is liable for a private nuisance caused by an abatable artificial condition that is otherwise actionable, if the possessor (a) knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved; (b) knows or should know that the condition exists without the consent of those affected by it; and (c) has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect affected persons.

(c) [§ 160] Failure To Act., 13 Witkin, Summary 11th Equity § 160 (2022) Courts recognize that a party that possesses real property may be liable for the failure to abate a known nuisance. (See Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 105 [“[N]egligence may be essential to a claim of nuisance where the alleged nuisance involves a failure to act”]; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1138 [citing Restatement Second of Torts to the same effect].) A landowner such as USCI may thus be liable for the unreasonable failure to abate a nuisance on their property that they themselves did not create or assist in creating, if it knew about the nuisance, knew that Cross-Complainants did not consent to it, and failed to take reasonable steps to abate the nuisance.

Here, triable issues of fact exist as to whether USCI knew about the nuisance and failed to address it, and further triable issues exist as to whether it contributed to the creation of the nuisance that Cross-Complainants allege. The relationship between Patricia Hartunian and USCI is not that of an ordinary tenant and landlord. Rather, Patricia’s husband, Steven Hartunian, is member and manager of USCI, as indicated in the verifications he executed for USCI’s discovery in this action. (Opposition Exh. 21.) Nor is USCI “a property owner that is not in possession,” as Cross-Defendants frame it in their motion. (Motion at p. 18.) These same discovery responses indicate that Steven — again, USCI’s manager — lives in the property with Patricia Hartunian and, presumably, their dogs. (Opposition Exh. 22.) Evidence further suggests that USCI is aware of the alleged nuisance, has made decisions concerning the boundary at issue, and has indeed participated in altercations at the fenceline through the person of Steven Hartunian. (Faryan Decl. ¶ 11; Leila Decl. ¶ 19; Opposition Decl. Exh. D at p. 102.) There is thus sufficient evidence for a trier of fact to find that USCI knew of, permitted, approved, and ratified the conduct of Patricia Hartunian and her staff in relation to their contacts with Cross-Complainants. Accordingly, there is no basis to dismiss any claim against USCI except as may exist to dismiss the claims against the other Cross-Defendant.

VI.            PUBLIC NUISANCE

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code § 3479.)  “In determining whether something is a public nuisance, the focus must be upon whether an entire neighborhood or community or at least a considerable number of persons are affected in the manner and by the factors that make the thing a nuisance under Civil Code section 3479. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1209.)

Cross-Defendants argue that no claim for public nuisance can exist because the nuisance that Cross-Complainants allege did not affect a sufficient number of persons, and because Cross-Complainants do not allege harm specific to them that is different from that they allege with respect to the general public. (Motion at p. 20.) Cross-Defendants point to discovery responses in which Leila Afifi asserted that two neighbors on Cross-Complainants’ road had complained of the barking dogs. (Motion Exh. E, SROG No. 2.) They argue that this evidence is hearsay and cannot constitute proof of a nuisance affecting “an entire neighborhood.” (Motion at p. 20.) Cross-Complainants in opposition present the declaration of Carol Homolka, who testifies that she has walked up Cross-Complainants’ road many times to stretch in front of the fire gate leading into Cross-Defendants’ property, where the dogs push against the gate, barking at “intolerable” volumes and upsetting the peace and quiet of the neighborhood. (Homolka Decl. ¶ 4.)

The court agrees with Cross-Defendants that no triable issues of fact exist as to Cross-Complainants’ public nuisance claim. Public nuisances are substantial and unreasonable interferences with “the exercise of rights common to the public,” not merely the rights of one private landowner. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) To that end, the nuisance must interfere with the rights of “an entire community or neighborhood, or any considerable number of persons.” (Civ. Code § 3480.) Here, Cross-Complainants have presented only evidence that one person endured barking when she stopped to stretch in front of the gate to Cross-Defendants’ property. Her conclusory characterization of the barking as “intolerable” for the brief period she rested in front of the gate does not support a finding that the barking was a substantial and unreasonable interference with the rights of the neighborhood or a considerable number of persons, such as would be necessary to support a public nuisance claim.

Accordingly, the motion is GRANTED as to the second cause of action for public nuisance.

VII.        PRIVATE NUISANCE

A private nuisance is “a nontrespassory interference with the private use and enjoyment of land.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) A private nuisance claim requires a showing that the interference is both “substantial, i.e., that it caused the plaintiff to suffer “substantial actual damage,” and “unreasonable, . . . i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Id. at p. 938, internal quotation marks omitted.) These are both questions of fact. (See Monks v. City of Rancho Palos Verdes (2008) 167 Cal.app.4th 263, 303.)

Cross-Defendants argue that Cross-Complainants cannot prevail upon their private nuisance claim because dogs barking at one another is an ordinary part of neighbors’ affairs, for which a nuisance action will not lie. (Motion at p. 27.) Cross-Defendants further argue that their actions have been reasonable, as indicated by their putting up of a temporary fence along the property line. (Motion at p. 27.)

Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of ‘give and take, *938 live and let live,’ and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.

(San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937–938.)

Cross-Defendants analogize the conduct alleged by Plaintiffs with the conduct at issue in Schild v. Rubin (1991) 232 Cal.App.3d 755, in which plaintiff neighbors brought suit against neighbors for playing backyard basketball during the day, based on the noise caused by the activity. When the trial court granted the plaintiffs’ request for an injunction under Code of Civil Procedure § 527.6, the appellate court reversed on the grounds that the conduct did not constitute harassment under the statute because it did not “seriously alarm” the plaintiffs or cause “substantial emotional distress.” (Id. at p. 762.) The court also concluded that the injunction could not be sustained as a means of abating a nuisance, since the sound of the basketball-playing was not substantial or unreasonable. (Id. at pp 764–765.)

Cross-Complainants here have presented evidence sufficient to uphold a finding of substantial and unreasonable intrusion into their interest in their property. The evidence presented shows that the presence of Cross-Defendants’ dogs is unpredictable, and effectively prevents Cross-Complainants from keeping their own dogs out of doors in their own yard. By the same token, Cross-Complainants are prevented from using amenities on their own property — such as the backyard, their outer doors, or rooms visible to the dogs — for fear of instigating a barking incident. The incidents themselves are characterized as going beyond the level of noise, but rather as involving near-violent altercations through the fenceline, which may pose a danger to one of Cross-Complainants’ infirm dogs. Leila Afifi testifies to the level of stress this has caused her.

Cross-Complainants further testify that USCI and Patricia Hartunian needlessly encourage barking altercations by leading their dogs to the site in question and doing nothing to separate them. While the fence where the altercations occur is only a few feet from Cross-Complainants’ residence (Leila Decl. ¶ 25), it is some distance away from the residence of Cross-Defendants, who live on a lot not adjacent to Cross-Complainants’ property, and who (Faryan claims) must descend a long staircase in order to release their dogs onto the lot that abuts Cross-Complainants’ property. (Faryan Decl. ¶ 15; Hartunian Decl. ¶ 2.) Although Cross-Defendants argue that they have put up a temporary fence along Cross-Complainants’ property to prevent further altercations, and further argue that Cross-Complainants are the ones who instigate the conflicts, Cross-Complainants deny such allegations, and argue that the fence is a retaliatory eyesore that has not mitigated the problem. Triable issues of fact thus exist as to whether Cross-Defendants conduct has created a substantial and unreasonable interference with Cross-Complainants’ use of their property.

The motion is therefore DENIED as to the first cause of action for private nuisance.

VIII.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS / PUNITIVE DAMAGES

“The elements of a prima facie case for the tort of intentional infliction of emotional distress (IIED) are: (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 severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 228–29.) Outrageous conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

Cross-Defendants argue that they have not engaged in outrageous conduct because all that has occurred is Patricia Hartunian walking her own dogs on her own property. (Motion at pp. 21–24.) They cite the case of Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614, which involved allegations of outrageous conduct in relation to a neighborly dispute. The appellate court in that decision upheld IIED verdicts against two brothers who had, during one ten-minute boundary-line confrontation, called their neighbor obscene names, threatened “to kick [his] ass,” to “kill [him],” to “kill [his] dog,” and intimated — by the question, “How is your wife doing?” — that they were threatening his wife as well. (Id. at p. 1598.) The court reasoned that such threats were not “mere violations of the niceties of polite conversation, but rather constituted outrageous conduct intended to inflict emotional distress.” (Id. at pp. 1613–1614, internal quotation marks omitted.) The court reversed, however, a verdict of IIED against another defendant, reasoning that some conduct — the defendant’s telling of plaintiffs to “curb” their dog, another instance in which he told the neighbor to stop their dog’s barking — could not support a finding of outrageous conduct. (Id. at pp. 1610–1611.) But the court indicated that other conduct alleged of the same defendant — specifically striking the plaintiffs’ dog with a baseball bat — could support an outrageous conduct verdict, were it not for the fact that damages for emotional distress for these same incidents were already awarded through other claims. (Id. at pp. 1611–1612.)

The facts presented by Cross-Complainants here raise triable issues as to whether Cross-Defendants have engaged in outrageous conduct. The evidence presented by Cross-Complainants suggests that Cross-Defendants have daily, over a period of years, walked their dogs from their residence across their back lot to Cross-Complainants’ property line. Cross-Complainants’ evidence suggests that Cross-Defendants do so at unpredictable times, sometimes at night, without offering warning to Cross-Complainants, but with knowledge that such actions are likely to create an altercation between the parties’ respective dogs. Cross-Complainants present evidence that one of their dogs was injured in such an incident. Cross-Complainants further state that when such altercations occur, it is they who rush to separate the dogs, while Cross-Defendants stand aloof, sometimes verbally asserting their right to walk their dogs on their own property. Cross-Complainants identify instances in which Hartunian or her housekeepers have mocked Cross-Complainants as these altercations occurred, pointing at Leila Afifi or dancing. Cross-Complainants identify one instance in which Steven Hartunian threateningly ran toward Faryan Afifi with a rake while Cross-Complainants were attempting to separate the dogs along the fence.

It is not inevitable that a trier of fact will credit Cross-Complainants’ account of events, but if believed, it could support a finding that Cross-Defendants engaged in outrageous conduct. While a court bears the initial responsibility to determine whether conduct can reasonably be labeled outrageous, “if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.) This is such a case. Although none of the individual instances described match the threatened or actual violence described in the two instances that formed the basis for the Plotnik decision, the “hundreds” of incidents that Cross-Complainants relate are described as occurring with such frequency, disruptiveness, and indicia of malicious purpose, that a finding of outrageous conduct could be supported.

Cross-Defendants further argue that Leila Afifi has not adequately supported her claim for emotional distress damages.

Generally, a plaintiff may not recover for intentional infliction of emotional distress unless the distress suffered has been severe. A plaintiff, however, may recover for emotional distress alone without any resulting physical disability. Severe emotional distress means ... emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. It may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.

(Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 476.)

Leila Afifi has described experiencing what may be called severe emotional distress under the above authority. She describes living in a state of “constant anxiety” while she is in her home, such that any barking — from any dog in the neighborhood — causes her to “surge into a panic,” which occurs 10 to 20 times per day. (Leila Decl. ¶ 32.) Sometimes she has nightmares about dogs barking and wakes in a panic, or else realizes she actually hears dogs baring, which causes her to panic once more and rush to secure the doors. (Leila Decl. ¶ 34.) Her sleep has deteriorated to three hours a night, she now takes sleep supplements, and has begun sleeping in a different room that doesn’t face Cross-Defendants’ property. (Leila Decl. ¶¶ 35–36.) On days with dog encounters, she is exhausted and retires to bed early after dinner. (Leila Decl. ¶ 37.) And she states that for the past three to four years, she has suffered from upset stomach and heart palpitations, which she had never suffered from before. (Leila Decl. ¶ 37.) This evidence is not a generalized averment of anxiety, concern, and agitation, such as been held insufficient to claim severe emotional distress (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051), but a reasonably specific description of severe disruption of everyday well-being.

Accordingly, the motion is DENIED as to the fifth cause of action for IIED.

The arguments offered in relation the Cross-Complainants’ prayer for punitive damages closely follows the analysis above. (Motion at pp. 25–26.) Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

“Malice” means 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.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

As described in relation to Cross-Complainants’ claim for IIED, Cross-Complainants’ evidence in opposition to this motion describes conduct of sufficient persistence, injurious quality, and intentionality that, if credited, a trier of fact could find it despicable, and committed with intent to injure or in reckless disregard of Cross-Complainants’ rights.

The motion is therefore DENIED as to the prayer for punitive damages.