Judge: John J. Kralik, Case: 23BBCV02636, Date: 2025-03-07 Tentative Ruling
Case Number: 23BBCV02636 Hearing Date: March 7, 2025 Dept: NCB
North Central District
|
angela mehtemetian and
sarkis mehtemetian as co-trustees of the mehtemetian revocable trust dated
november 18, 2014, et al., Plaintiffs, v. claudia kelley, Defendant. |
Case No.: 23BBCV02636 Hearing Date: March 7, 2025 [TENTATIVE]
order RE: demurrer; motion
to strike |
BACKGROUND
A.
Allegations
Plaintiff Angela Mehtemetian and Sarkis
Mehtemetian as co-trustees of The Mehtemetian Revocable Trust dated November
18, 2014 (“Trust”), Angela Mehtemetian, and Sarkis Mehtemetian (collectively,
“Plaintiffs”) allege that Plaintiffs own property located at 10405 Ditson St.
in Sunland. They allege that Defendant
Claudia Kelley (“Kelley”) owns property at 10417 Ditson St. Plaintiffs allege that in June 2022, while
they were still in escrow for their property, Kelley approached the wall
dividing the backyard between the two properties and pointed out that
Plaintiffs’ chain link fence encroached onto Kelley’s side at one section. Plaintiffs allege they offered to allow Kelley
to move the fence back. They allege that
in October 2022, Kelley laid rocks along the side of Plaintiffs’ driveway in a
dirt area separating the two properties and that Kelley entered their property
to put up plastic rods with strings.
They allege that Kelley also told Plaintiffs not to cut the hedges,
though Plaintiffs claimed the shrubbery was on their side of the property. Plaintiffs allege that they retained a
surveyor in January 2023, who confirmed that the shrubs were on their side of
the property. Plaintiffs allege that
they began efforts to install a chain link fence in August 2023 and that Kelley
has begun a campaign of harassment against them as a result.
The second amended complaint (“SAC”), filed August
19, 2024, alleges causes of action for: (1) trespass to land; (2) private
nuisance; (3) IIED; (4) negligence; (5) injunction; (6) quiet title; (7)
declaratory relief; and (8) invasion of privacy.
B.
Cross-Complaint
On December 13, 2024, Kelly filed the first
amended cross-complaint (“FAXC”) against Angela Mehtemetian and Sarkis
Mehtemetian (both individually and as co-trustees of the Trust for: (1)
intentional trespass; (2) negligent trespass; (3) negligence; (4) private
nuisance; (5) assault; (6) battery; (7) quiet title; (8) agreed boundary line;
(9) adverse possession; (10) implied easement; (11) prescriptive easement; (12)
equitable easement; (13) declaratory relief; (14) IIED; (15) invasion of
privacy; and (16) property damages.
C.
Motions
on Calendar
On February 5, 2025, the Mehtemetians filed a demurrer and motion to
strike portions of the cross-complaint.
On February 24, 2025, Plaintiffs filed opposition briefs.
On February 28, 2025, the Mehtemetians filed reply briefs.
DISCUSSION RE
DEMURRER
Plaintiffs/Cross-Defendants Angela and Sarkis Mehtemetian (hereinafter,
“Cross-Defendants”) demur to each cause of action alleged in the FAXC.
A. 1st cause of action for intentional
trespass and 2nd cause of action for negligent trespass
“Trespass is an unlawful interference with possession of
property.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.) “The elements of
trespass are: (1) the plaintiff's ownership or control of the property; (2) the
defendant's intentional, reckless, or negligent entry onto the property; (3)
lack of permission for the entry or acts in excess of permission; (4) harm; and
(5) the defendant's conduct was a substantial factor in causing the harm.” (Id.
[citing CACI No. 2000].)
Cross-Defendants argue that the trespass causes of action
fail because while Kelley has alleged that Cross-Defendants entered her
property, Cross-Defendants “have show[n] that they had ownership and control of
the area in question by having several survey reports done (three being done by
Kelley’s own surveyors), which Kelley essentially concedes in her FACC, to
confirm that the area is on the Mehtemetian property.” (Dem. at p.3, lines
17-19.)
At this demurrer stage, the Court accepts the allegations of
the FAXC pleading as true. While
Cross-Defendants argue that they have essentially proven that they owned the
subject area that constituted the boundary line between the properties based on
the surveys conducted, the Court will not consider extrinsic documents and
arguments at this time. Cross-Defendants
also argue that Kelley has essentially admitted that the surveys show that the
subject area is the property of Cross-Defendants; however, the FAXC alleges
Kelley’s theory of adverse possession and that she and her predecessors now own
and control the subject area. (See FAXC
¶¶13-39.) Whether Kelley can prove her
theory and reliance on adverse possession will be determined at a later stage
in the proceedings upon the consideration of evidence, such as at the motion
for summary judgment or trial stage.
The demurrer to the 1st and 2nd causes
of action is overruled.
B.
3rd
cause of action for negligence
The elements
of a negligence cause of action are “duty, breach of duty, proximate cause, and
damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
Cross-Defendants demur to the negligence
cause of action on the same grounds as above—essentially that they did not
breach their duty of care to Kelley to refrain from damaging Kelley’s property
because the survey reports show that subject area belongs to
Cross-Defendants. Again, the Court
declines to make a substantive determination on Cross-Defendants’ arguments that
rely on the truth of the matters stated within the surveys. The demurrer to the 3rd cause of
action is overruled.
C. 4th cause of action for private
nuisance
The elements for a private nuisance claim are: (1)
interference with the plaintiff’s use and enjoyment of his property; (2) the
invasion of the plaintiff’s interests in the use and enjoyment of the land must
be substantial (i.e., causes the plaintiff to suffer substantial actual
damages); (3) the interference with the protected interest must not only be
substantial, but must also be 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). (Mendez v.
Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248,
262–263.) Unlike public nuisance (which
is an interference
with the rights of the community at large), private nuisance is a civil wrong
based on disturbance of rights in land whereby the plaintiff must prove an
injury specifically referable to the use and enjoyment of his or her land;
however, this injury need not be different in kind from that suffered by the
general public. (Id. at 262.)
In the 4th cause of
action, Kelley alleges that Cross-Defendants placed loud fans and air
conditioning compressors at the subject boundary line area, which emitted noise
in excess of the Los Angeles Municipal Code; screamed/yelled and made shooting
sounds in excess of 80 decibels; and set up surveillance cameras aiming
directly at her property and bedrooms. (FAXC,
¶¶93-94.)
Cross-Defendants demur to the 4th
cause of action, arguing that Kelley’s allegations have been refuted by the
LAPD’s and LADBS’s investigations because the LAPD found no issues with
Kelley’s claims and the LADBS has closed every complaint filed by Kelley. However, the demurrer tests the pleading alone and not the evidence or other
extrinsic matters which do not appear on the face of the pleading or cannot be
properly inferred from the factual allegations of the complaint. (Executive
Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145
Cal.App.3d 496, 499.) Cross-Defendants’
arguments rely on facts beyond the allegations of the FAXC. These arguments based on extrinsic facts are
better raised when evidence may be considered, such as at the motion for
summary judgment and/or trial stage.
The demurrer to the 4th
cause of action is overruled.
D. 5th cause of action for assault
“The elements of a
cause of action for assault are:
(1) the defendant acted with intent to cause harmful or offensive contact, or
threatened to touch the plaintiff in a harmful or offensive manner; (2) the
plaintiff reasonably believed he was about to be touched in a harmful or
offensive manner or it reasonably appeared to the plaintiff that the defendant
was about to carry out the threat; (3) the plaintiff did not consent to the
defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct
was a substantial factor in causing the plaintiff's harm.” (Carlsen v. Koivumaki (2014)
227 Cal.App.4th 879, 890.)
In the 5th cause of
action, Kelley alleges that on August 10, 2023, Sarkis Mehtemetian (with Angela
Mehtemetian’s consent) entered Kelley’s property with a double-bladed electric
saw without Kelley’s consent, raised the running saw, and motioned in towards
Kelley with the intention to cause her fear.
(FAXC, ¶106.) Kelley alleges that
she had a reasonable apprehension that Sarkis Mehtemetian was going to strike
her with the running saw and in fact struck her body and cut her finger. (Id., ¶107.)
Cross-Defendants argue that the assault cause of action is pled in a
conclusory fashion. (Dem. at p.6.) However, the 4th cause of action
sufficiently alleges the elements of intent of Sarkis Mehtemetian to cause a
harmful/offensive contact of Kelley, her reasonable belief that she would be
touched in a harmful manner, her lack of consent, and the harm she suffered. The allegations are sufficient at the
pleading stage to allege assault. The
demurrer to the 5th cause of action is overruled.
E. 6th cause of action for battery
“The elements of a cause of action
for battery are: (1) the
defendant touched the plaintiff, or caused the plaintiff to be touched, with
the intent to harm or offend the plaintiff; (2) the plaintiff did not consent
to the touching; (3) the plaintiff was harmed or offended by the defendant's
conduct; and (4) a reasonable person in the plaintiff's position would have
been offended by the touching.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)
In the 6th cause of
action, Kelley alleges that on August 10, 2023, Sarkis Mehtemetian and his
workers trespassed on her juniper hedge area and cut down the remaining
sections of the natural boundary line fence between the properties. (FAXC, ¶111.)
She alleges that she placed her right hand around a particular willow
tree branch immediately above the string holding a wrought iron fence section,
when she saw Sarkis Mehtemetian approach with the saw. (Id.)
She alleges he approached her and without hesitation reached across the
fence, aimed the saw at her right hand, and proceeded to cut
the branch. (Id.) She alleges she released the branch before
the blades struck her right hand, but he inflicted a cut on her left hand. (Id.)
Cross-Defendants argue that the battery cause of action fails because
Kelley alleges that she stuck her hand out when Sarkis Mehtemetian was cutting
the branch and that her allegations are fabricated since she did not report
this to the LAPD or bring her injury to Cross-Defendants’ attention when the
incident allegedly occurred.
However, the Court will accept the allegations of the FAXC as
true—i.e., that Sarkis Mehtemetian brought the saw down and injured her left
hand (though she released the branch with her right hand). Further, the fact that she did not report her
injury to the LAPD or Cross-Defendants is not part of the allegations in the
FAXC and, thus, the Court will not consider Cross-Defendants’ extrinsic
arguments and theories at this time. The
demurrer to the 6th cause of action is overruled.
F. 7th cause of action for quiet
title and 8th cause of action for quiet title to agreed boundary
line
CCP § 761.020 states that a quiet
title complaint shall be verified and include the following: “(a) A description
of the property that is the subject of the action. In the case of tangible
personal property, the description shall include its usual location. In the
case of real property, the description shall include both its legal description
and its street address or common designation, if any. [¶] (b) The title of the
plaintiff as to which a determination under this chapter is sought and the
basis of the title. If the title is based upon adverse possession, the
complaint shall allege the specific facts constituting the adverse possession.
[¶] (c) The adverse claims to the title of the plaintiff against which a
determination is sought. [¶] (d) The date as of which the determination is
sought. If the determination is sought as of a date other than the date the
complaint is filed, the complaint shall include a statement of the reasons why
a determination as of that date is sought. [¶] (e) A prayer for the determination
of the title of the plain tiff against
the adverse claims.” (CCP § 761.020.)
The Supreme
Court discussed the doctrine of agreed boundary lines as follows:
Although the agreed-boundary doctrine is well
established in California, our case law has recognized that the doctrine
properly may be invoked only under carefully specified circumstances. As this
court stated in Ernie v. Trinity Lutheran Church, supra, 51
Cal.2d 702, 707: “The requirements of proof necessary to establish a title by
agreed boundary are well settled by the decisions in this state. [Citations.]
The doctrine requires that there be [1] an uncertainty as to the true boundary
line, [2] an agreement between the coterminous owners fixing the line, and [3]
acceptance and acquiescence in the line so fixed for a period equal to the
statute of limitations or under such circumstances that substantial loss would
be caused by a change of its position.” (Ibid.)
(Bryant v. Blevins
(1994) 9 Cal.4th 47, 55.)
Cross-Defendants argue that
Kelley’s quiet title cause of action fails because the parties have conducted
multiple surveys showing that the subject area belongs to
Cross-Defendants. They also argue that
Kelley’s exhibits include tracts dating back to 1912 and 1959 in an attempt to
show that she is the bona fide purchaser, but Cross-Defendants argue that they
are the real bona fide purchasers. (Dem.
at p.8.) They argue that Kelley cannot
prove ownership with clear and convincing evidence and that she is not the
lawful owner of the subject area. Cross-Defendants
make similar arguments regarding the 8th cause of action. They argue that the best course of action is
to review the legal description by a real estate expert. (Dem. at p.9.)
For the same reasons discussed
above, the demurrer to the 7th cause of action is overruled. Further, Kelley is not required at the
pleading stage to prove her claims with evidence. Cross-Defendants should also reserve their
affirmative defenses regarding whether they are bona fide purchasers for a
later time, as such facts are not alleged in the FAXC. The demurrer to the 7th and 8th
causes of action is overruled.
G. 9th cause of action for adverse
possession
“To establish adverse
possession, the claimant must prove: (1)
possession under claim of right or color of title; (2) actual, open, and
notorious occupation of the premises constituting reasonable
notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5)
payment of all taxes assessed against the property during the five-year period.” (Main Street Plaza v. Cartwright &
Main, LLC (2011) 194 Cal.App.4th 1044, 1054.)
The FAXC alleges that Kelley has owned her property since 1996 and
Cross-Defendants acquired their property in 2022. (FAXC, ¶¶2-3.) Kelley alleges that in 2009, she commissioned
a survey due to property line and ownership responsibility disputes and that
she disagreed with the 2010 survey. (Id.,
¶¶26-27.) She alleges that she went to
her neighbor “Mrs. Harris” to explain the survey results and Kelley’s belief
that her property line goes to the juniper hedge and continues with the fence. (Id., ¶27.) Kelley alleges that she and Mrs. Harris
agreed on October 10, 2010 to the continued use of the existing boundary
structures starting at the juniper hedge, continuing with the common divider
retaining wall, the next retaining wall topped by a chain link fence, and going
downhill to the end of a chain link fence that has been maintained and improved
by Kelley since her purchase in 1996. (Id.) In the 9th cause of action, Kelley
alleges that she has used the subject area in an open, notorious, and
continuous manner and that taxes have been levied or assessed against the property
since 1996, which is over the 5-year adverse possession period. (Id., ¶¶143-144.)
Cross-Defendants argue that the ownership of the subject area has been
in dispute since 2010 and that Kelley’s allegations regarding Mrs. Harris
amount to an implied agreement to maintain a hedge together. However, Cross-Defendants’ arguments again
rely on extrinsic arguments. Taking the
allegations as true, Kelley alleges that she and Mrs. Harris agreed to the
boundary lines such that Kelley was adversely using the subject area as her
own—the allegations of the FAXC do not allege that Kelley and Mrs. Harris
entered into a “hedge maintenance” agreement.
At the demurrer stage, the Court will accept the allegations of the
pleadings. Whether Kelley can actually
prove her allegations will be determined beyond the pleading stage. The demurrer to the 9th cause of
action is overruled.
H.
10th
cause of action for implied easement
The purpose of the doctrine of implied easements is to give effect to the
intentions of the parties, as shown by all of the facts and circumstances of
the case. (Piazza v. Schaefer (1967) 255 Cal.App.2d 328, 332.) The factors
essential to the creation of an easement by implied grant include: “(1) A
separation of the title; (2) before the separation takes place the use which
gives rise to the easement shall have been so long continued and so obvious as
to show that it was intended to be permanent; and (3) the easement shall be
reasonably necessary to the beneficial enjoyment of the land granted.” (Id. at 323-333.)
The 10th cause
of action alleges that the parties’ properties were initially owned by a single
real estate development company and then later developed into separate
properties. (FAXC, ¶¶149-150.) Kelley alleges that the properties are
located on a steep hill that requires the use of multiple retaining walls that
prevented soil erosion and slope collapse.
(Id.) She alleges that the
juniper hedge placement created a natural boundary line divider and windbreak
protection for the properties’ “high wind” area. (Id., ¶151.) She alleges that she is entitled to an
implied easement to maintain landscaping, walls, fences, and other improvements
in the disputed area. (Id.,
¶154.)
Cross-Defendants argue
(without elaboration) that Kelley failed to plead the elements of an implied
easement. They have not specified which
element is lacking or how the allegations are insufficient. In opposition, Kelley argues that she has
pled each element: (1) separation of title as alleged in paragraphs 149-150;
(2) prior use and permanency in paragraph 150; and (3) that the easement was
reasonably necessary to the beneficial enjoyment of the land in paragraphs
151-157.
At the pleading stage,
the Court finds the allegations sufficient for an implied easement. The demurrer to the 10th cause of
action is overruled.
I.
11th
cause of action for prescriptive easement
“To establish the elements of a prescriptive easement, the claimant must
prove use of the property, for the statutory period of five years, which use
has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile
to the true owner; and (4) under claim of right.” (Main Street Plaza v. Cartwright &
Main, LLC (2011) 194 Cal.App.4th 1044, 1054.) A prescriptive
easement does not require payment of taxes.
(Id.) While proving adverse
possession gives a successful claimant title to property, a successful claimant of a prescriptive easement
gains the right to make a specific use of someone else's property. (Id.)
Cross-Defendants argue that for the same reasons that the adverse
possession claim lacks merit, the prescriptive easement claim too lacks
merit. For the same reasons discussed
above, the demurrer to the 11th cause of action is overruled.
J. 12th cause of action for equitable
easement
Granting an equitable easement is within the discretion of the trial court
upon the finding of all 3 factors: (1) “the [encroacher] must be innocent. That
is, his or her encroachment must not be willful or negligent. The court should
consider the parties’ conduct to determine who is responsible for the dispute”;
(2) “unless the rights of the public would be harmed, the court should [stop
the encroachment] if the [burdened landowner] will suffer irreparable injury
... regardless of the injury to [the encroacher]”; and (3) “the hardship to the
[encroacher] from [ordering removal of the encroachment] must be greatly
disproportionate to the hardship caused plaintiff by the continuance of the
encroachment and this fact must clearly appear in the evidence and must be
proved by the defendant.” (Hansen v. Sandridge
Partners, L.P. (2018) 22 Cal.App.5th 1020, 1027–1028 [internal quotation marks
omitted].)
Cross-Defendants argue that Kelley is not an innocent encroacher, that
she has willfully and negligently encroached the area since 2010, she willfully
encroached the area in 2022 when Cross-Defendants moved in and following
surveys, and that Kelley’s hardship would not greatly outweigh
Cross-Defendants’ hardship. These
arguments are, once again, based on extrinsic facts. Cross-Defendants may dispute or deny the
facts alleged in the FAXC, but a demurrer is not the proper mechanism to do
so. The demurrer to the 12th
cause of action is overruled.
K.
13th
cause of action for declaratory relief
A cause of
action for declaratory relief is a remedy created by CCP § 1060 and it is
pleaded if it: (1) sets forth facts showing the existence of an actual
controversy relating to the legal rights and duties of the respective parties
and (2) requests that the rights and duties be adjudged. (City of Tiburon v. Northwestern Pac. R.R.
Co. (1970) 4 Cal.App.3d 160, 170; see CCP § 1060 [identifying the remedy of
declaratory relief].) If these requirements are met, the Court must
declare the rights of the parties whether or not the facts alleged establish
that the plaintiff is entitled to a favorable declaration. (Id.) Declaratory relief is a broad remedy, and the
rule that a complaint is to be liberally construed is particularly applicable
to one for declaratory relief. (Id.)
A demurrer is a procedurally
inappropriate method for disposing of a complaint for declaratory relief.
(Lockheed Martin Corp. v. Continental
Ins. Co. (2005) 134 Cal. App. 4th 187, 221.) This is based on the
reasoning that an order sustaining the demurrer would leave the parties where
they were, with no binding determination of their rights, to await an actual
breach and ensuing litigation. (Id.)
This would defeat a fundamental purpose of declaratory relief, which is to
remove uncertainties as to legal rights and duties before breach and without
the risks and delays that it involves. (Id.) The object of declaratory relief is not necessarily a
beneficial judgment; instead, it is a determination, favorable or unfavorable,
that enables the plaintiff to act with safety. (Id.) This reasoning has established the rule that the
defendant cannot, on demurrer, attack the merits of the plaintiff's claim
(italics added for emphasis). (Id.) Accordingly, a complaint is sufficient if it
shows an actual controversy; it need not show that plaintiff is in the
right. (Id.)
Cross-Defendants argue that there
is no controversy because the property does not belong to Kelley, which is
based on surveys conducted on the properties.
However, Cross-Defendants cannot attack the merits of Kelley’s claim at
this stage. Cross-Defendants, by nature
of their demurrer papers, dispute that the subject area is Kelley’s
property. There is a controversy alleged
between the parties and the Court declines to make a judicial determination at
the pleading stage. As such, the
demurrer is overruled as to the 13th cause of action.
L. 14th cause of action for IIED
The elements of intentional
infliction of emotional distress are: (1) outrageous conduct by the defendant;
(2) the defendant’s intention of causing or reckless disregard of the
probability of causing emotional distress; (3) the plaintiff suffered severe or
extreme emotional distress; and (4) the plaintiff’s injuries were actually and
proximately caused by the defendant’s outrageous conduct. (Vasquez
v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,
832.) In order to avoid a demurrer, the
plaintiff must allege with great specificity, the acts which she believes are
so extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Id.)
In the 14th cause of
action, Kelley alleges that Cross-Defendants have intentionally harassed,
alarmed, annoyed, frightened, and terrorized her with confrontational and
violent behavior; destroyed property; failed to cooperate to amicably resolve
their disputes; forcibly entered her property; made threats of physical harm;
etc. (FAXC, ¶¶188-189.) She alleges that they acted with reckless
disregard to the probability that she would suffer emotional distress when they
“butchered” the juniper hedge, destroyed her property, and brandished the
electric saw close to her and cut her finger.
(Id., ¶190.) She also alleges
that Sarkis Mehtemetian made various statements that he will make sure she
moves and will hit/crush her. (Id.,
¶191.) She also alleges that
Cross-Defendants operated loud fans, pointed bright lights on her property, and
made other loud noises. (Id.,
¶192.) She alleges that she suffered
emotional distress, has recurring nightmares, and has suffered from physical
manifestations of her emotional distress such as eczema, sleep deprivation,
elevated blood pressure, etc. (Id.,
¶¶194, 198.)
Cross-Defendants argue that Kelley
has alleged many voluminous contentions with no actual claim pled in hopes to
muddy the claim to make it pass muster.
(Dem. at p.13.) However, there
are enough allegations in the FAXC to allege a claim of IIED based on the
various and continuous conduct by Cross-Defendants against Kelley and her
alleged property, and the injuries she suffered as a result. The demurrer to the 14th cause of
action is overruled.
M. 15th cause of action for invasion
of privacy
The cause of action for invasion of
privacy by intrusion has two elements: “(1) intrusion into a private place, conversation or
matter, (2) in a manner highly offensive to a reasonable person.
[Citation.] The first element …
is not met when the plaintiff has merely been observed, or even
photographed or recorded, in a public place. [Citation.] Rather, ‘the
plaintiff must show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about, the plaintiff. The
tort is proven only if the plaintiff had an objectively reasonable expectation
of seclusion or solitude in the place, conversation or data source.’” (Sanders
v. American Broadcasting Companies, Inc. (1999)
20 Cal.4th 907, 914–915.)
In the 15th
cause of action, Kelley alleges that Cross-Defendants intentionally intruded
upon her privacy by destroying the juniper hedge, which allow Cross-Defendants,
their workers, and their visitors or anyone walking by to look into Kelley’s
property and bedrooms; setting up surveillance cameras directly at the
bedrooms; and taking unauthorized pictures of Kelley and her visitors. (FAXC, ¶201.)
Cross-Defendants
argue that the hedge that was destroyed was on their property so that no
invasion of privacy occurred. (Dem. at
p.14.) However, the ownership of the
hedge is in dispute in this action.
Further, the demurrer fails to address Kelley’s allegations that
Cross-Defendants erected surveillance cameras pointed at her property and took
pictures of Kelley and her guests. Taking
the allegations of the FAXC as true, there are other grounds upon which this
cause of action is based. As such, the
demurrer to the 15th cause of action is overruled.
N. 16th cause of action for property
damages
Cross-Defendants argue that no property damage occurred
because the juniper hedge is their property and not Kelley’s property. For the same reasons discussed above, the
demurrer to the 16th cause of action is overruled.
DISCUSSION RE
MOTION TO STRIKE
Plaintiffs/Cross-Defendants move to strike
the allegations in the FAXC at 1:12-13, 2:26 to 3:2, 3:5-9, 3:11-12, 5:26-6:6,
pages 6-8, and references to punitive damages.
A. Irrelevant, Vague, and/or Conclusory
Allegations
The Court has reviewed the allegations quoted on pages 2 and 3 of the
motion to strike. Cross-Defendants move
to strike those allegations as irrelevant, vague, and/or conclusory. At this time, the Court declines to strike
the allegations as they provide the factual basis for Kelley’s claims.
B. Punitive Damages
A complaint including a request for
punitive damages must include allegations showing that the plaintiff is
entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
1255.) A claim for punitive damages cannot be pleaded generally and
allegations that a defendant acted "with oppression, fraud and
malice" toward plaintiff are insufficient legal conclusions to show that
the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73
Cal.App.3d 864, 872.) Specific factual allegations are required to
support a claim for punitive damages. (Id.)
Civil Code §
3294 authorizes a plaintiff to obtain an award of punitive damages when there
is clear and convincing evidence that the defendant engaged in malice,
oppression, or fraud. Section 3294(c) defines the terms in the
following manner:
(1)
"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.
(2)
"Oppression"
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
(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.
Cross-Defendants provide a recitation of the law regarding punitive
damages and then argue in a generalized fashion that they have not received
adequate notice of the conduct charged against them and that the allegations
are conclusory. In reply, they argue
that there is no evidence of malice, oppression, or fraud. They have not addressed specific allegations
of punitive damages in the FAXC or why such allegations are inadequate. Further, at the pleading stage, Kelley need
not prove her allegations with evidence, as the consideration of evidence will
be at a later time. As no substantive arguments
have been presented, the motion to strike is denied.
CONCLUSION AND
ORDER
Plaintiffs/Cross-Defendants’ demurrer to the
first amended cross-complaint is overruled.
Cross-Defendants’ motion
to strike is denied.
Cross-Defendants are
ordered to answer.
Cross-Defendants shall
provide notice of this order.
DATED:
March 7, 2025 ___________________________
John
J. Kralik
Judge
of the Superior Court