Judge: Mark A. Young, Case: 23SMCV03704, Date: 2025-04-22 Tentative Ruling

Case Number: 23SMCV03704    Hearing Date: April 22, 2025    Dept: M

CASE NAME:             Chen, v. Fletcher, et al. 

CASE NO.:                   23SMCV03704

MOTION:                     Demurrer and Motion to Strike the Complaint  

HEARING DATE:   4/22/2025

LEGAL STANDARD 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.) 

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)  

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.) 

ANALYSIS 

Defendant Booth Grading & Excavating Inc. (Doe 1) demurs to the first through fourth causes of action of Plaintiff Diena Chen’s Second Amended Complaint (SAC). Defendant also moves to strike the requests for punitive and treble damages.

Uncertainty

Defendant Booth argues that the SAC is fatally uncertain because it alleges that “Defendants” collectively committed the pled torts. The Court disagrees.  The SAC sufficiently guides Defendant in determining which causes of action to respond. Booth is alleged to be Doe 1. The first four causes of action are alleged against Doe 1. Notably, the fifth cause of action is not alleged against Doe 1. Defendant managed to correctly identify each cause of action alleged against it and demurred to the correct four causes of action. Thus, the SAC is not uncertain within the meaning of section 430.10(f).

First Cause of Action for Trespass to Real Property and Timber

Booth argues that the SAC lacks allegations that Defendant substantially caused Plaintiff’s injuries.  

“ ‘Trespass is an unlawful interference with possession of property.’ [Citation.] 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.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.) To establish a claim of trespass to timber, plaintiff must prove that (1) plaintiff owned/leased/occupied/controlled the property; (2) defendant intentionally entered plaintiff’s property and cut down timber located on the property; (3) plaintiff did not give permission; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing the harm. (CACI 2002.)

            The SAC alleges sufficient facts to support the allegation that Booth’s trespass contributed to Plaintiff’s harm. This action arises from a dispute between two neighbors over trespass to certain vegetation and timber on Plaintiff’s property. Plaintiff purchased her Property in September 2019 and moved into the property in July of 2020. (SAC ¶ 10.) Vegetation was located either on Plaintiff’s Property or on the shared property line with the Fletcher Property. (¶ 11.) Plaintiff’s property also contained numerous mature pine trees which created an aesthetic canopy. (¶ 12.) Fletcher acquired the neighboring Fletcher Property in 2018 and began improving the property in either the spring or summer of 2021. (¶ 13.) At some point during the demolition process, the tree canopy which had existed in Plaintiff’s backyard had been “dramatically and negatively altered” and the dense vegetation that had covered the fence between the two properties and the fence itself had been removed entirely. (Id.) In January 2022, Plaintiff commissioned a survey which concluded that a construction fence put up by Defendants during the demolition was placed several feet onto Plaintiff’s property. (¶ 15.) The construction fence was later removed by Defendants in favor of a new fence in the approximate area of the original fence. (¶ 15.) Plaintiff commissioned a second survey in March 2023 which confirmed that the new fence was accurately located on the property line, but that Defendants damaged trees actually located on Plaintiffs Property. (¶ 16.) A total of four large trees had been removed from Plaintiffs Property and another four trees, all on Plaintiffs Property, had multiple major limbs removed, permanently damaging those trees. (Id.) According to the SAC, Fletcher intentionally instructed his agents to enter upon Plaintiffs Property and remove bushes, vines, other vegetation, multiple large trees, and cut major limbs from other trees in order to create a view of the Pacific Ocean for his property. (¶¶ 17-18.) Doe 1 is allegedly an agent of Plaintiff. (¶ 9.) Defendants had no permission to enter Plaintiff’s property. (¶ 19.) As a direct result of the “willful, intentional and malicious” conduct by Defendants, Plaintiff lost four large trees, had four trees badly damaged, and had the aesthetics and privacy of her yard negatively impacted. (¶ 20.)

            The first cause of action sufficiently pleads Defendant’s role in causing damages.  Accordingly, the demurrer is OVERRULED as to this cause of action.

Second and Third Causes of Action - Duplicative

Booth asserts that the second and third causes of action are not standalone causes of action and are duplicative of Plaintiff’s trespass claim.

Booth does not present compelling authority holding that these statutes do not support a cause of action. In fact, Booth’s cited authority does not contain the statement quoted by Booth nor does it stand for the broader proposition argued in the demurrer. (Heninger v. Dunn, (1980) 101 Cal. App. 3d 858, 862.)

The cited statutes provide for different measures of additional (punitive) damages for trespass to timber under specified circumstances and that are beyond actual damages.  Code of  Civil Procedure section 733 creates liability for treble damages under the following circumstances:

“Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person’s house, village, or city lot, or cultivated grounds; or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.”

Civil Code section 3346(a) similarly provides treble or double damages, depending on whether the conduct was negligent or intentional.

“For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment.”

“[T]he effect of [Civil Code] section 3346 as amended, read together with [Code of Civil Procedure] section 733, is that the Legislature intended, insofar as willful and malicious trespass is concerned under either section, to leave the imposition of treble damages discretionary with the court, but to place a floor upon that discretion at double damages which must be applied whether the trespass be willful and malicious or casual and involuntary, etc. There are now three measures of damages applicable to the pertinent types of trespass: (1) for willful and malicious trespass the court may impose treble damages but must impose double damages; (2) for casual and involuntary trespass, etc., the court must impose double damages; and (3) for trespass under authority actual damages.” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn.3.)

Though all three causes of action attempt to remedy the same wrong, the Court disagrees that the second and third counts are completely duplicative with the first count for trespass. The fact that one cause of action is duplicative or mirrors another cause of action is not a ground on which a demurrer must be sustained under section 430.10. This is in part because “it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890; see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [a court may sustain a demurrer for “duplicative pleading which adds nothing to the complaint by way of fact or theory”].) The argument that two causes of action are duplicative “is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman, supra, 162 Cal.App.4th at 889-890.) Here, the second and third counts state separate statutory grounds for increased damages, either double or treble damages depending on Defendants’ intentionality, malice, or negligence. Thus, the two causes of action add to the complaint by way of theory of recovery. The demurrer for “duplicative” causes of action is therefore unsupported.

Accordingly, the demurrer is OVERRULED as to these causes of action.

Third Cause of Action under CCP § 733

Booth also demurs to the third cause of action under Code of Civil Procedure section 733 on the grounds that the complaint fails to state sufficient facts to support a “willful and malicious” trespass.

As discussed, the SAC alleges that Defendants, including Booth, cut down or otherwise injured trees or timber on Plaintiff’s property without permission or authority. (SAC ¶¶ 16-20.) Booth did not have permission to enter Plaintiff’s property. (¶ 19.) As a direct result of the “willful, intentional and malicious” conduct by Booth, Plaintiff lost four large trees, had four trees badly damaged, and had the aesthetics and privacy of her yard negatively impacted. (¶ 20.) The third cause of action confirms that Booth “cut down trees and injured other trees all located on Plaintiffs Property without permission or lawful authority in an attempt by Defendants to improve the view of the ocean and surrounding area from the vantage point of the new construction on the Fletcher Property.” (SAC ¶ 30, emphasis added.) The alleged ultimate facts of the intentional and willful injury to timber “without permission or lawful authority” are thus pled. Therefore, the alleged facts support a claim under CCP section 733.

Accordingly, the demurrer is OVERRULED.

Fourth Cause of Action for Negligence

Booth demurs to the fourth cause of action for failure to state sufficient facts. However, Booth does not brief the issue in its memorandum. Accordingly, the demurrer is OVERRULED.

Motion to Strike – Treble/Double Damages

Booth moves to strike the request for increased damages under CCP section 733 and Civil Code section 3346(a). The motion is denied for the same reasons discussed above. As stated, the SAC alleges sufficient ultimate facts against Booth to support the imposition of damages under the cited statutes. The SAC alleges that Booth willfully, intentionally and maliciously removed timber from Plaintiff’s property. Unlike recovery of punitive damages under Civil Code section 3294, there is no heightened pleading standard for recovery under the trespass to timber statutes which might justify a motion to strike such relief.

Accordingly, the motion to strike is DENIED.

Motion to Strike – Punitive Damages

Booth moves to strike punitive damages. The Court concurs that insufficient specific facts are pled against Booth to support a claim of punitive damages under Civil Code section 3294.

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.) 

Malice is defined as conduct “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Despicable” is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp., supra, 8 Cal.4th at 726.) The statute “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.” (Id.)

Critically, when the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Civ. Code § 3294(b); White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 571-573 [defining managing agent].)

The SAC alleges no facts, specific or generalized, that an officer, director, or managing agent perpetrated, authorized, or knowingly ratified the alleged trespass. Moreover, the SAC alleges no specific facts of “despicable” conduct, or conduct which Booth intended to harm Plaintiff.

Accordingly, Defendant’s motion is GRANTED. Plaintiffs do not demonstrate a reasonable possibility of successful amendment. Plaintiffs have not proffered any facts regarding despicable conduct or regarding conduct by an officer, director, or managing agent of Booth. Therefore, the Court is not inclined to grant leave to amend as to the request for punitive damages.