Judge: Mark H. Epstein, Case: 23SMCV04926, Date: 2024-02-20 Tentative Ruling
Case Number: 23SMCV04926 Hearing Date: February 20, 2024 Dept: I
Plaintiff contends that defendants improperly cut down
certain trees. Plaintiff has therefore
brought various causes of action including trespass to timber and injury to
timber pursuant to Code of Civil Procedure section 733 and Civil Code section
3346, respectively. Plaintiff also sues
for breach of fiduciary duty and conversion (of the timber). Defendants demur to those causes of
action. Plaintiff opposes. The demurrers are SUSTAINED WITH LEAVE TO
AMEND in part and OVERRULED in part.
Turning first to the trespass to timber and injury to timber causes of action (the timber torts), defendants’ major claim is that these trees were alleged to be boundary trees—that is, they straddled the property line. However, both of the timber torts require that the defendant cut down trees on plaintiff’s property. A tree straddling the line, defendants contend, is just not covered. The court agrees with the defense as to the law. The tort requires that the trees be on plaintiff’s property, not common property. However, plaintiff alleges that the trees, or at least one of them, was on her property. One tree is sufficient because a demurrer must go to an entire cause of action, not a part of a cause of action. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446.) Such an allegation is made, and it is specific enough to be characterized as a proper allegation of fact, not just a legal conclusion. (Compl., ¶¶ 23, 39.) That is enough for pleading purposes, and these demurrers are therefore OVERRULED.
The third and fourth causes of action deal with a fiduciary duty. Plaintiff argues that the parties are joint owners of the boundary line and therefore are fiduciaries with respect thereto. (The court notes and is aware of the tension between her argument here—that the trees are on the boundary—and her argument as to the timber torts—that the trees were on her property alone.) Generally, people do not owe each other fiduciary duties. Such duties are either imposed by agreement or by law. In the former case, the agreement arises from a contract or a decision knowingly made to undertake an act on behalf of another. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375.) Plaintiff’s theory is that neighbors are cotenants-in-common, and cotenants owe each other fiduciary duties. Defendants persuasively point out that in California that rule does not apply to cotenants who acquire their interests at different times through different instruments. (Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234.) Plaintiff suggests a contrary rule based on Kallis v. Sones (2012) 208 Cal.App.4th 1274. That was an odd case. The case involved a pine tree that straddled the property. It was strange because a little bit up from the ground, the tree split into two trunks—one on each side of the property line. One party cut down the tree. The Court of Appeal held that the tree was part of a “tree line” and thus belonged to both owners in common and accordingly neither could cut down the tree unilaterally. Perhaps so, but that does not make the neighbors fiduciaries. They might have duties to one another regarding the commonly owned trees, but the duty is not fiduciary in nature. The happenstances that two people own adjoining land does not make them fiduciaries at all—even for the property line. It could be that additional facts could be alleged, and plaintiff will have an opportunity to do so. The court is aware of the allegation that defendant told plaintiff that it would not harm the trees, but that bare statement is not sufficient to create a fiduciary duty. But as the complaint stands, there is no basis to impose a fiduciary duty, and it follows that the aiding and abetting cause of action fails as well. The demurrer to these causes of action is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.
That leaves conversion. Defendants point out that trees are considered real property, not personalty. Conversion is limited to personal property, however, and thus, defendants contend, the conversion action fails. The court must agree. Trees are considered real property—they are part of the ground from which they grow. (Newberry v. Evans (1926) 76 Cal.App. 492.) Cutting the tree is therefore not conversion. Plaintiff argues that once the trees were cut, removing the wood from the land is conversion. There is a logical line to that argument. Once cut down, the trees are not growing from the land any more—the wood is just sitting on top of the land. That would, perhaps, make sense in some circumstances. Where the owner of property cuts down a tree intending to sell the wood but during the night a person comes and takes the wood, it would seem like conversion would be an appropriate tort. But that is not the gist of the claim here. Plaintiff is not suing defendant for selling the lumber; plaintiff is suing the defendant for cutting down the trees. That is not conversion. Plaintiff can try to amend if there is some viable claim that it is the lumber, not the living tree, that gives rise to the tort. So the demurrer is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND. The court notes that part of the problem here is that the complaint simply is overpled. Plaintiff may have a cause of action—or even more than one. But there is no gain to trying to force the facts to fit the pattern of torts that they are not.