Judge: Margaret L. Oldendorf, Case: 21STCV14689, Date: 2022-11-14 Tentative Ruling

Case Number: 21STCV14689    Hearing Date: November 14, 2022    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This lawsuit concerns trees that grow on or near the boundary between two properties. Plaintiff Cesar Romero (Romero) owns and resides in one of the properties.

            Defendants Andrew Van Horn and Kristine Chase live in the other. The property is alleged to be owned by the trusts of one or both of them; it is referred to here as the Van Horn/Chase Property.

The trees at issue consist of a hedge row of Cypress trees running approximately along the boundary between the properties in the front yard, and some trees whose trunks are in the Romero backyard but whose branches extend into the Van Horn/Chase backyard: a Eucalyptus tree and some Brazilian Pepper trees. Romero alleges the Cypress trees were approximately 50 feet tall and had existed along the boundary for years before Romero purchased his property in 2014. Van Horn and Chase purchased the neighboring property in 2020 and when Romero saw Van Horn speaking with a tree trimmer, expressed in no uncertain terms that he would not agree to having the boundary hedge removed. About a year later, Romero alleges that when he was out of town Van Horn/Chase hired tree trimmers (Defendant Bartlett Tree Expert Company) who cut the Cypress boundary hedge as well as the Eucalyptus and Brazilian Pepper trees.

The operative Second Amended Complaint alleges claims for wrongful cutting of trees, criminal trespass, negligence, fraud, and other related claims. At issue is the amended answer filed by Van Horn/Chase. Prior to the case being transferred to this Court, motions for judgment on the pleading had been granted with leave to amend as to the answers of both Van Horn/Chase and Bartlett. Amended answers were filed. Romero filed demurrers and motions to strike as to both.

Before the Court are Romero’s challenges to the Van Horn/Chase amended answer. For the reasons that follow, the demurrer is overruled and the motion to strike is denied.  Romero’s challenges to the Bartlett amended answer will be heard December 15, 2022.

II.        LEGAL STANDARD

            A. Demurrer

Code Civ. Proc. §430.20 provides that a party against whom an answer has been filed may object to the answer by demurrer as provided in §430.30 upon any one or more of the following grounds: (a) the answer does not state facts sufficient to constitute a defense; (b) the answer is uncertain.

Code Civ. Proc. §430.30 provides that when grounds for objection to an answer appear on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.

Code Civ. Proc. §430.40 requires that a demurrer to an answer be filed within 10 days after service of the answer.

B. Motion to Strike

Code Civ. Proc. §435 governs motions to strike the whole or any part of a pleading, which is defined as a demurrer, answer, complaint, or cross-complaint. Section 436 permits trial courts to strike out “any irrelevant, false, or improper matter inserted in any pleading.”

Grounds for a motion to strike must appear on the face of the pleading or from matter the court must take judicial notice of. Code Civ. Proc. §437.

III.      DISCUSSION

A. Procedural History

On August 1, 2022, Romero’s motion for judgment on the pleadings to the Van Horn/Chase answer was granted in part. The order recounts Romero’s argument that each of the Van Horn/Chase affirmative defenses was deficient because each lacked facts, but rules that only affirmative defenses 12, 15, 16, 17, 18, 25, 27, and 28 require additional facts. These are the only affirmative defenses authorized to be amended. Van Horn and Chase were granted 20 days to file an amended answer, if they chose to do so.

A First Amended Answer was filed August 17, 2022, within the 20-day time for amendment. Apparently in response to correspondence from Romero to Van Horn/Chase (discussed below), Van Horn/Chase filed a Second Amended Answer on August 23, 2022.

B. Judicial Notice  

Concurrent with the filing of this demurrer, Romero filed a Request for Judicial Notice and a “Compendium of Exhibits.” The documents of which judicial notice are requested are all documents already in the court file: each of the Van Horn/Chase answers and the August 1, 2022 JOP Order. “A court may judicially notice its own records and proceedings in the same case.” City and County of San Francisco v. Carraro (1963) 220 Cal.App.2d 509, 527. However, there is no basis for considering the documents contained in the Compendium. The documents are not authenticated but even if they had been, a demurrer is limited to defects apparent from the face of the pleading or judicially noticed material.

Though the documents in the compendium are not considered in the analysis here, the Court notes that Exhibit D is a letter from Romero to counsel for Van Horn and Chase. In it, Romero notes that the 7^th and 8^th affirmative defenses allege Romero did not own the property at issue and/or that Van Horn/Chase owned it. Romero “advised” the lawyers that making intentionally false statements violates Rules of Professional Conduct and further, that if the answer was not immediately amended Romero would be forced to file an amended pleading alleging claims for Ejectment, Quiet Title, and Disparagement of Title.  Additionally, Romero stated that he would file a complaint with the State Bar.

C. Demurrer is Overruled

Romero had 10 days from the filing of the Van Horn/Chase answer to file a demurrer. This he failed to do. The Second Amended Van Horn/Chase Answer was filed and served (via first class mail and email) August 23, 2022. Romer’s demurrer was not filed until September 13, 2022, 21 days later. Even adding two days for email service, the demurrer was not timely filed.

In addition, the demurrer lacks merit on substantive grounds. Each of the affirmative defenses that Van Horn/Chase were authorized to amend were adequately amended with the addition of factual allegations.

With regard to the 7^th and 8^th causes of action, which were amended in response to Romero’s letter, Romero argues that Van Horn and Chase have made substantial changes to these affirmative defenses such that they are now vague and ambiguous. The Court disagrees.   

The 7^th affirmative defense previously alleged on information and belief that “plaintiff did not own the property at issue.” Pursuant to Code Civ. Proc. §431.20(b), to the extent this is “new matter” in the answer it is “deemed controverted” by Romero. Boundary issues and the right to cut trees were already placed at issue by the Romero pleading, so it is not clear that this would be considered “new matter.” In any event, in response to Romero’s threats of reporting counsel to the State Bar, Van Horn/Chase filed a further amended answer fleshing out in greater detail what they meant. “These answering Defendants are informed and believe, and based thereon allege, that plaintiff did not own the Cypress trees at issue in this litigation, defined by plaintiff in the operative Complaint as “Boundary Trees” pursuant to Civil Code §833.”

As amended, the 7^th affirmative defense is not lacking in facts and it is not vague or ambiguous. Romero’s argument that the amended allegations contradict the prior allegation is not well taken; the amendment simply clarifies what is meant by the ownership allegation.

The 8^th affirmative defense previously alleged on information and belief “that Defendants are the lawful owners and/or holders of the rights they are exercising and the manner they are exercising over the timber and property that are the subject of this action.” The amended pleading adds more detail. It contains the same sentence just quoted and then adds, “These answering Defendants are informed and believe and thereon allege that they are the lawful owners of the Cypress trees at issue in this litigation, defined by plaintiff in the operative Complaint as “Boundary Trees” pursuant to Civil Code §833. Further, these answering Defendants are informed and believe, and based thereon allege, that Defendants had the right to trim branches hanging over their property to the property line. These answering Defendants are informed and believe and thereon allege that they acted reasonably in causing branches to be removed from the Eucalyptus trees at issue in this litigation to the boundary line of their property and did not cause any foreseeable injury to the Eucalyptus trees. (See Bonde v. Bishop (1952) 112 Cal.App.2d 1, 5-6, citing Grandona v. Lovdal (1886) 78 Cal. 611 and Stevens v. Moon (1921) 54 Cal.App. 737.)”

The same analysis applies here. The amended answer does not contradict prior allegations; rather, it fills them out with further details. This affirmative defense does not fail to state a defense and it is not vague or ambiguous.

D. Motion to Strike is Denied

Romero seeks to strike the Introductory Statement and the 7^th, 8^th, 12^th, 15^th, 16^th, 17^th, 18^th, 25^th, 27^th, and 28^th affirmative defenses.

As to the introductory paragraphs, which detail some of the case’s procedural history, Romero argues that Van Horn and Chase have no knowledge of the events described. It is not clear what is meant by this, but it is not a basis for striking the paragraphs. Romero also argues that these paragraphs contain irrelevant information. Even if true, these introductory paragraphs are not part of the pleading’s denial section or affirmative defenses section. No purpose would be served by striking them. As Van Horn and Chase explain, these paragraphs are merely intended to orient their position as against Romero. They also oppose on the ground that Romero did not meet and confer on the issue of the introductory paragraphs.

The affirmative defenses Romero seeks to strike are the same ones he challenged in the demurrer, based on all the same arguments. None have merit. The amended answer was timely filed and the defenses have been amended with sufficient facts.

IV.      CONCLUSION AND ORDER

            Romero’s demurrer to the Van Horn/Chase Second Amended Answer to the Second Amended Complaint is overruled. The motion to strike is denied.  Van Horn and Chase are ordered to give notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT