Judge: H. Jay Ford, III, Case: 22SMCV02704, Date: 2023-08-31 Tentative Ruling

Case Number: 22SMCV02704    Hearing Date: August 31, 2023    Dept: O

Case Name:  Moussavi, et al. v. Fifield, et al.

SUBJECT:                 (1)  DEMURRER TO COMPLAINT

                                    (2)  MOTION TO STRIKE

MOVING PARTY:   (1) and (2) Defendants Randy Fifield; Tony Maintenance & Garden and Antonio Aguilera

RESP. PARTY:         (1) and (2) Plaintiffs Ramin Moussavi and Sarah Moussavi

TENTATIVE RULING

            Defendants Randy Fifield, Tony Maintenance & Gorden and Antonio Aguilera’s Demurrer to the 2^nd cause of action   for private nuisance in the FAC is OVERRULED and the Motion to Strike is DENIED.

I.  Demurrer to 2^nd cause of action   for private nuisance—OVERRULE

            “Anything which is injurious to health ... 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” is a nuisance.  See CC §3479; Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358–359. 

“A nuisance may be either a negligent or an intentional tort.”  Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.  The essential elements of private nuisance are:

            1. Plaintiff owned/leased/occupied/controlled the property;

            2. Defendant created a condition that (1) was harmful to health; (2) was indecent or offensive to the senses; (3) was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; or (4) unlawfully obstructed 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;

            3.  That this condition interfered with Plaintiff's use or enjoyment of his or her land;

            4.  Plaintiff did not consent to the condition;

            5.  That an ordinary person would be reasonably annoyed or disturbed by Defendant's conduct;

            6. That Plaintiff was harmed;

            7. That Defendant's conduct was a substantial factor in causing Plaintiff's harm; and

            8. That the seriousness of the harm outweighs the public benefit of [name of defendant]'s conduct.  See CACI No. 2021; see also CC §3479; see San Diego Gas & Electric Co. v. Supr. Ct. (1996) 13 Cal.4th 893.

            Nuisance is based on “[a]nything which is…an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…is a nuisance.”  CC §3479.  A private nuisance exists where the interference or obstruction is of the use of private land owned by the plaintiff.  See Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.  “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.  An interference need not directly damage the land or prevent its use to constitute a nuisance; private plaintiffs have successfully maintained nuisance actions against airports for interferences caused by noise, smoke and vibrations from flights over their homes and against a sewage treatment plant for interference caused by noxious odors.”  Id. (“[A] private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury.”)

            “An action for private nuisance is designed to redress an substantial and unreasonable invasion of one's interest in the free use and enjoyment of one's property.  The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless  conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the defendant may be liable. On the other hand, the invasion may be intentional but reasonable; or it may be entirely accidental and not fall within any of the categories mentioned above.  Determination whether something, not deemed a nuisance per se, is a nuisance in fact in a particular instance, is a question for the trier of fact.”  Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230–1231. 

            Plaintiffs sufficiently allege facts from which a trier of fact could find Defendants created a private nuisance by intentionally cutting down Plaintiffs’ hedge.  See FAC, ¶¶24-26.  Plaintiffs allege that Defendants cut down so much of the hedge that their use and enjoyment of their property was substantially and unreasonably interfered with.  Id. at ¶40.  Plaintiffs allege they have suffered loss of free use and enjoyment of the property, loss of value of the Hedge and loss of property.  Id. at ¶40.  Plaintiffs allege Defendants knowingly trespassed on Plaintiffs’ property to cut down the hedge/trees without Plaintiffs’ permission.  Id. at 39.  Plaintiffs allege Defendants waited until they knew Plaintiffs were on vacation, so that the hedge/trees could be trimmed without Plaintiffs’ knowledge.  Id. at ¶31. 

            Defendants also demur on grounds of uncertainty due to Plaintiffs’ failure to allege specific facts against each Defendant.  A demurrer for uncertainty will only be sustained where the complaint is so poorly drafted that a defendant cannot reasonably respond.  See Khoury v. O’Maly (1993) 14 Cal.App.4th 612, 616 (“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”) 

            Plaintiffs’ FAC is not so poorly drafted that Defendants cannot reasonably respond.  Plaintiffs allege that Defendant Fifield instructed Defendant Aguilera to cut down the trees by 6 feet and that both Defendants knew the hedge was on Plaintiffs’ property and Plaintiffs did not give their permission to have it trimmed down.  See FAC, ¶¶25, 29, 31, 37. 

II.  Motion to Strike—DENY

            Defendants moves to strike the punitive damages and treble damages allegations in the 1^st cause of action   for trespass.  The punitive damages are sought pursuant to CC §3294 and the treble damages, pursuant to CC §3346. 

            Defendants do not challenge the sufficiency of the trespass cause of action.  Plaintiffs allege intentional trespass and destruction of property, which is sufficient to support a claim for punitive damages.  See FAC, ¶¶29-31; CC §3294 (punitive damages available in cases of clear and convincing evidence of fraud, malice or oppression); 6 Witkin, Summary (11th ed. 2020), Torts, §1759 (willful trespass or intentional injury to real property are occasionally grounds for an award of punitive damages).

            Plaintiffs also allege Defendants’ “wrongful injur[y] to timber, trees or underwood” upon Plaintiffs’ land per CC §3346.  See FAC, ¶¶24-26, 32.  In case of wrongful injury to timber or trees, “the measure of damages is three times such sum as would compensate for the actual detriment.”  CC §3346. 

            Plaintiffs also allege a claim for attorney’s fees based on CCP §1029.8 or as otherwise allowed by contract or law.  Plaintiffs sufficiently plead a claim for fees based on statute, contract or law.  Whether Plaintiffs can successfully obtain such fees is not at issue on a demurrer. 

            Moreover, there is no requirement that a plaintiff allege the intent to seek attorney’s fees pursuant to CCP §1033.5(a)(10) as an element of costs in the complaint. “Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a judgment.”  Snatchko v. Westfield LLC (2010) 187 Cal.App.4^th 469, 497.  “There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings.”  Yassin v. Solis (2010) 184 Cal.App.4^th 524, 533.  “Although there is no requirement that statutory attorneys' fees be pleaded in the underlying action, they should be mentioned in the complaint.”  7 Witkin, Cal. Proc. (6^th ed. 2023), Judgment, §318.  Plaintiffs mention the statutory fees they seek in the prayer for relief, which is all that is required.