Judge Kerry Bensinger, Case Number: 24STCV00549, Date: 2024-05-30 Tentative Ruling

MOVING PARTY: Defendants Irma M. Fitzgibbons and Irma M. Fitzgibbons, as Trustee of the Irma M. Fitzgibbons Survivor’s Trust

RESPONDING PARTY: Plaintiffs Laurentia Popa, Laurentia Popa and Andrea Princess Popa Williams, as Trustees for The Popa Family Living Trust

Laurentia Popa and Andrea Princess Popa Williams, as Trustees of The Popa Family Living Trust (“Plaintiffs”), are the owners of the real property located at 4803 Bonvue, Los Angeles, California (“Bonvue Property”). Irma M. Fitzgibbons, individually and as Trustee of the Irma M. Fitzgibbons Survivor’s Trust (“Defendants”), is the owner of the real property located at 4822 Glencairn Dr., Los Angeles, California (“Glencairn Property”). The Glencairn Property is located directly above and bordering the Bonvue Property. Plaintiffs allege that, since July 13, 2022 to the presents, Defendants caused water and soil to flow from the Glencairn Property onto Plaintiffs’ Bonvue Property.

On January 8, 2024, Plaintiffs filed a Complaint for (1) Negligence, (2) Trespass, and (3) Nuisance against Defendants. Plaintiffs seek injunctive relief and punitive damages.

On February 20, 2024, Defendants filed this Demurrer and Motion to Strike punitive damages from the Complaint.[1]

“The primary function of a pleading is to give the other party notice so that it may prepare its¿case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿

“A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of¿America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges¿facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the¿complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,¿N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded¿factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of¿which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,¿however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.¿Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿“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.”¿ (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿¿

Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised by the demurrer.¿ (Code Civ. Proc., §§ 430.41(a).)¿Defense counsel has satisfied the meet and confer requirement.¿ (See Declaration of Scott Gutjahr, ¶¶ 2-4.)¿¿¿¿¿

Defendants argue each cause of action fails on the grounds that they are uncertain. The court addresses each cause of action in turn.

The elements of a cause of action for negligence are well established.¿ They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.¿ (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; CACI No. 400.)

Defendants argue the First Cause of Action is uncertain. Not so. As alleged, Defendants “had and have a non-transferable, non-delegable duty to design, construct, engineer, operate, manage, inspect and properly maintain their property [Glencairn Property]to prevent water and soil from flowing onto Plaintiffs’ [Bonvue Property].” (Complaint, ¶ 16.) Defendants breached that duty by “(1) failing to design, construct, engineer, operate, manage, inspect and properly maintain their property; (2) failing to develop and maintain drainage to prevent water flowing from their property onto Plaintiffs’ property; (3) failing to install a retaining wall to prevent soil flowing from their property onto Plaintiffs’ property.” (Complaint, ¶ 17.) As a result of Defendants’ actions and/or omissions, Plaintiffs suffered damages, including, but not limited to, “damage to landscape and hardscape, fixtures, and structures on their property” (Complaint, ¶ 19) and “costs relating to storage, clean up, disposal, repair, depreciation and/or replacement of their property” (Complaint, ¶ 21). Each element for a cause of action for negligence has been adequately pleaded. The First Cause of Action is not uncertain.

To establish a prima facie case of trespass, plaintiff must prove the following elements: (1) the plaintiff’s lawful possession or right to possession, as the owner or otherwise, of described property; (2) the defendant’s wrongful act of trespass on the property; and (3) damage to plaintiff proximately caused by the trespass. (CACI No. 2000; see also Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1304-1307.)

Defendants argue the Second Cause of Action is uncertain. Defendants’ argument again misses the mark. As alleged, Plaintiffs are the owners of the Bonvue Property. (Complaint, ¶ 6.) Defendants, as the owners of the bordering Glencairn Property, caused water and soil to flow onto Plaintiffs’ Bonvue Property, which constitutes a continuing and/or permanent trespass on the Bonvue Property. (Complaint, ¶ 28.) Plaintiffs’ have suffered damage to landscape and hardscape, fixtures, and structures on the Bonvue Property, among other damages. (Complaint, ¶ 29.) Each element for a cause of action for trespass has been adequately pleaded. The Second Cause of Action is not uncertain.

The elements of an action for private nuisance are: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it 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. (Today's IV, Inc. v. Los Angeles Cnty. Metro. Transportation Auth. (2022) 83 Cal. App. 5th 1137, citing San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; CACI No. 2021.)

Defendants argue the Third Cause of Action is uncertain. The challenge fails. Each element of a nuisance claim has been pleaded. (See Complaint, ¶¶ 6, 39-42.) The Third Cause of Action is adequately pleaded.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)¿

Defendants seek an order striking allegations supporting Plaintiffs’ request for punitive damages.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Defendants argue that the Complaint alleges in conclusory fashion and without any factual support that Defendants’ conduct was malicious, willful, wanton, and despicable as defined by Civil Code section 3294.

Plaintiffs argue that punitive damages may be available in a trespass actions, and further, there are allegations to support punitive damages. The court agrees with Plaintiffs. “Punitive damages may be awarded when a trespass is committed from malicious motives or reckless disregard of the rights of others.” (Armitage v. Decker (1990) 218 Cal.App.3d 887 907.) Here, Plaintiffs allege that Defendants caused water and soil to flow onto Plaintiffs’ property even after being told by Plaintiff Laurentia Popa of the issue. (Complaint, ¶ 10.) Further, the injury is ongoing and has not been remediated, according to Plaintiffs. (Id.) From these facts, a reasonable inference supports the contention Defendants’ failure to correct the problem amounts to a reckless disregard of Plaintiffs’ rights, considering they were apprised of the issue (at this point) almost two years ago. There are sufficient allegations to support the request for punitive damages.

Defendants are ordered to file their Answer to the Complaint within 20 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Defendants appear to conflate the sufficiency of each cause of action with the sufficiency of the allegations to support requests for punitive damages and injunctive relief. To the extent Defendants challenge each cause of action and the allegations supporting the punitive damages request, the court addresses each challenge separately.