Judge: Margaret L. Oldendorf, Case: 21STCV14689, Date: 2022-12-15 Tentative Ruling

Case Number: 21STCV14689    Hearing Date: December 15, 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 (Osti Tree Service of Sierra Madre), 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 Bartlett. Prior to the case being transferred to this Court, motions for judgment on the pleadings 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. This Court overruled Romero’s demurrer to the amended Van Horn/Chase answer and denied the motion to strike.

Before the Court today are Romero’s challenges to the Barlett amended answer. For the reasons that follow, the demurrer is overruled and the motion to strike is denied. 

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 5, 2022, Romero’s motion for judgment on the pleadings to the Bartlett answer was granted in part. The order recounts Romero’s argument that each of the Bartlett affirmative defenses was deficient because each lacked facts; but the ruling indicates that only affirmative defenses 3, 4, 10, 12, 14, 16, 18, 19, and 20 required additional facts. These are the only affirmative defenses that were authorized to be amended.

Bartlett was granted 30 days to file an amended answer. Thirty days from August 5, 2022, is September 4, 2022, a Sunday. The next day was Labor Day, a court holiday. The First Amended Answer filed September 6, 2022 was therefore timely. 

B. Judicial Notice  

Romero requests judicial notice of documents already in the court file: Exhibit 1 is the Court’s August 5, 2022 order; Exhibits 2 and 3 are copies of Bartlett’s answers. “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. The request for judicial notice is granted.

The Romero Declaration at ¶2 authenticates the meet and confer letters, which are offered as exhibits in a Compendium of Exhibits.  

C. The Demurrer To Bartlett’s Answer Is Overruled

Barlett’s amended answer adds facts to each of the challenged affirmative defenses, except the 19^th, which it intentionally omits from its amended answer. Nevertheless, Romero demurs to each of these affirmative defenses, arguing that they fail to state sufficient facts to constitute a defense and that each is uncertain. These arguments lack merit.

Bartlett’s Third Affirmative Defense previously alleged as follows:

“As a third, separate and distinct affirmative defense, these Answering Defendants allege that the injuries and damages, if any, sustained by Plaintiff as alleged in the Second Amended Complaint herein, were proximately caused by the acts, errors, omissions, negligence and/or breaches of obligation of individuals or entities other than these Answering Defendants and, as such, these Answering Defendants are not responsible for any such injuries or damages.”

The amended answer alleges:

“As a third, separate and distinct affirmative defense, this Answering Defendant alleges that the injuries and damages, if any, sustained by Plaintiff as alleged in the Second Amended Complaint herein, were proximately caused by the acts, errors, omissions, negligence and/or breaches of obligation of individuals or entities other than this Answering Defendant and, as such, this Answering Defendant is not responsible for any such injuries or damages.  For example, Plaintiff has alleged that Co-Defendants and non-party, Osti Tree Services have undertaken acts with respect to the trees at issue in this litigation.  Furthermore, the terms and conditions of Bartlett’s agreement with Co-Defendants require Co-Defendants to represent that they own the trees or vegetation included in the scope of work or are otherwise authorized to perform care on the trees or vegetation included in the scope of work.  Additionally, Plaintiff is alleging damages as a result of trimming of Brazilian Pepper Trees, which was not undertaken by this Answering Defendant.”

The argument Romero makes is that “there are no facts or evidence how Bartlett derived these facts other than by hearsay and/or pure speculation.” Memorandum of Points and Authorities at 2:23-24. This is not a proper argument for demurrer to an answer. A demurrer admits the facts pleaded and argues that based on those alleged facts, no defense  is stated. Bartlett’s amended answer alleges, with facts, the defense that Romero’s injuries and harm, if any, were caused by others. No evidentiary showing is required, nor would any be proper, on demurrer.

Romero argues that the allegation others caused the harm is a legal conclusion and not a factual allegation. The argument fails because the allegation that Osti Tree Service undertook acts with respect to the trees is a factual allegation.

Romero complains that Bartlett attempts to introduce a claim not contained in his pleading about Bartlett cutting Romero’s Brazilian Pepper trees. But the SAC does allege in numerous places that Bartlett wrongfully entered Romero’s property and cut, among other things, his Brazilian pepper trees. SAC at ¶¶ 118, 119, 147, 199, 200.

This same analysis applies to the 10^th Affirmative Defense, which alleges that any damage Romero suffered was caused by others.

Bartlett’s 4^th Affirmative Defense alleged Romero’s actions constitute a release and waiver. The amended 4^th Affirmative Defense alleges that as a property owner, Romero has an obligation to ensure his trees do not cause a nuisance to neighboring property owners and that by permitting his trees to overhang onto the Van Horn/Chase property he waived his rights as to those overhanging branches, and implicitly released Bartlett and Co-Defendants from taking action as to the branches. Romero’s argument that Bartlett has attempted to introduce a claim about nuisance “with no surrounding facts, evidence, and/or explanation” fails; introducing facts is exactly what Bartlett has done.

The 12^th Affirmative Defense alleges that Romero’s damages, if any, were the proximate result of an unavoidable accident or act of God. Bartlett has amended the pleading to add that property values fluctuate based on a variety of factors, including weather. This goes to Romero’s alleged damages, which include diminution in value of the property. The affirmative defense does not lack facts and is not uncertain. Rather, it identifies other potential sources for Romero’s claimed loss of property value.

The 14^th Affirmative Defense alleges Romero’s claims are barred because damages were caused by a superseding, intervening cause. This answer has been fleshed out with the fact that property values have gone down due to rising interest rates.

The 16th Affirmative Defense alleged laches, waiver, estoppel, and/or unclean hands. The amended answer alleges, “For example, a property owner has an obligation to ensure its trees and vegetation do not cause a nuisance to neighboring property owners.  By permitting his trees or vegetation to overhang onto Co-Defendants’ property, Plaintiff waives any right to the overhanging branches and implicitly releases Defendant and Co-Defendants from taking action against the overhanging branches.”

The 18th Affirmative Defense alleged Romero’s claims were barred by Co-Defendants’ (Van Horn and Chase) interest in the property. Bartlett adds the factual allegation on information and belief “based on the expert report of Peter Martin, that the arborvitae at issue in this case is located on real property owned by Co-Defendants and, therefore, are the property of Co-Defendants, not Plaintiff.” Romero argues strenuously that Bartlett is alleging facts it knows to be false. Again, this is not a proper argument for a demurrer.  The allegation is a factual one, and it must be accepted as true for purposes of a demurrer.

The 19th Affirmative Defense alleged that Romero’s claims are barred based on the lack of value of the branches. That affirmative defense has been dropped.

Finally, the 20^th Affirmative Defense alleged Romero’s claims are barred by the doctrines of public necessity and/or private necessity. Here, Bartlett has added the following factual allegations:

“For example, it was necessary for Bartlett to take a few steps down Plaintiff’s driveway to clean up trimmings in order to avoid harm to Plaintiff’s real property.  Defendant is also informed and believes that it was necessary to trim the front of the arborvitae to protect pedestrians and other travelers on the sidewalk, as the large arborvitae prevented Co-Defendants’ visibility of travelers when Co-Defendants were driving their cars out of their driveway.  Defendant is also informed and believes that it was necessary to trim any overhanging branches for protection of Co-Defendants and Co-Defendants’ property.”

That is, Bartlett is alleging that to the extent it trespassed on Romero’s property, it did so out of necessity. Romero’s argument that Bartlett lacks standing to make claims on behalf of other misses the point. To the extent it is being sued for the trimming that it performed, it is alleging that it did so out of necessity.

The demurrer is overruled in its entirety.

D. The Motion to Strike is Denied

Romero attacks the same affirmative defenses in his motion to strike that were attacked in the demurrer. Rather than arguing they are uncertain or fail to state sufficient facts, he argues they introduce false or improper material. As to the 3^rd Affirmative Defense, for example, it is argued that the introduction of another party (Osti) who is not alleged to have “cut and hacked” the trees, is improper. Not so. Bartlett is entitled to identify who it believes caused the harm. This is especially so since Romero previously challenged Bartlett’s answer for not containing enough facts.

None of the new matter alleged in the affirmative defenses at issue is false, improper, or not drawn in conformity with the law. The motion to strike is denied.

IV.      ORDER

            Romero’s demurrer to Bartlett’s First Amended Answer to the Second Amended Complaint is overruled. The motion to strike is denied.  Bartlett is ordered to give notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT