Judge: Lee W. Tsao, Case: 22NWCV01141, Date: 2023-08-22 Tentative Ruling

Case Number: 22NWCV01141    Hearing Date: August 22, 2023    Dept: C

ROY v. BROWN

CASE NO.:  22NWCV01141

HEARING: 8/22/23

#1

TENTATIVE RULING

Cross-Defendant Roy’s motion to strike parts of cross-complaint is GRANTED with 10 days leave to amend.

Moving Party to give NOTICE.

Cross-Defendant Roy moves to strike punitive damages allegations pursuant to CCP §§ 435, 436, and CC § 3294.

As an initial matter, the court is in receipt of Cross-Complainant’s objection to the untimely Reply, which is sustained.  Regardless, the court’s ruling is not affected by the Reply.

This is a dispute between two adjoining neighbors.  Plaintiff Roy alleges that Defendant Brown has trespassed over Plaintiff’s property and altered and/or meddled with Plaintiff’s garden/vegetation and obstructed Plaintiff’s security cameras.  Based thereon, the operative First Amended Complaint asserts causes of action for:

1.    Private Nuisance

2.    Trespass

3.    Negligence

Cross-Complainant Brown alleges that Roy failed to maintain her landscaping, causing serious nuisance, and has placed cameras pointing directly at Brown’s home, invading Brown’s privacy.  Roy was cited by the City of Bellflower for her overgrown vegetation.  The Cross-Complaint asserts causes of action for:

1.    Nuisance

2.    Declaratory Relief

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records).  (CCP § 437.)

Punitive Damages:

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”  (CC § 3294(a).)  “‘(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.”  (CC § 3294(c).)

“A nuisance may be either a negligent or intentional tort. If the latter, then exemplary damages are recoverable.” (Stoiber v. Honeychuck (1980) 110 Cal.App.3d 903, 920.)

¶ 18 alleges that “Cross-Defendants’ conduct, including failing and refusing to maintain the vegetation in the yard of the Roy Property and allowing it to become seriously overgrown to the degree of City and utility company involvement, failing and refusing to take pest-control measures for the rodent infestation caused by the overgrown vegetation and fruit trees, and pointing video and audio surveillance devices towards the Brown Residence, is and has been intentional and unreasonable, or alternatively unintentional but negligent or reckless.”

The court finds that this allegation, without more, is insufficient to give rise to punitive damages.  The Cross-Complaint does not allege that the cameras are pointing into the windows of Brown’s house, or in any manner that would violate Brown’s privacy expectations.  Further, there are insufficient facts in the Cross-Complaint to indicate that the overgrown vegetation was the result of Roy’s intentional acts.

Accordingly, the motion is GRANTED with 10 days leave to amend.