Judge: Matthew C. Braner, Case: 37-2022-00033595-CU-BC-CTL, Date: 2023-10-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2022-00033595-CU-BC-CTL KNOWLTON VS YEN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendants Forrest Knowlton and Paula Dunn's demurrer to the first amended cross-complaint is SUSTAINED.

A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Cross-Defendants demur to the first cause of action in the cross-complaint for trespass to timber, and to the third cause of action for trespass to land, primarily on the grounds the cross-complaint fails to adequately allege that Cross-Defendants (or an agent of Cross-Defendants) entered Cross-Complainant Keiming Yen and Yehming Yen's property. More specifically, Cross-Defendants emphasize that most of the factual allegations in the cross-complaint center on Cross-Defendant John Hawkins, and that the only alleged affirmative conduct attributable to them is hiring a gardener, Mr. Acosta, who 'cut the bamboo trees which are the focus of the Knowlton/Dunn complaint,' and that 'through his employment acted as an agent for Knowlton and Dunn.' Cross-Complainants also allege that Cross-Defendants have 'intentionally allowed' the poisonous substance purportedly used by Cross-Defendant Hawkins (prior to Cross-Defendants' purchase of the property) to kill Cross-Complainant's corner bamboo trees.

The allegations in the cross-complaint as to the first and third causes of action against Cross-Defendants Knowlton and Dunn are not sufficient to survive demurrer. First, the allegation that Mr. Acosta was 'employed' by Cross-Defendants and as part of that employment acted as the agent of Cross-Defendants is a legal conclusion unsupported by adequate factual allegations. The scant factual allegations in the cross-complaint do not overcome the logical conclusion that a gardener is not an 'employee' subject to the 'control' of his customers, but rather at best may be considered an independent contractor. (See Anderson v. Badger (1948) 84 Cal.App.2d 736, 741 ['If the one who is to perform the service is subject to control as to the manner of performance by the one for whom the service is rendered he is an employee, or agent, whereas, if he is not subject to control but is engaged to produce a certain result by means and in a manner of his own choosing he is an independent contractor.'].) Second, with respect to the acid migration allegations, Cross-Complainants have not adequately alleged Calendar No.: Event ID:  TENTATIVE RULINGS

2993574  23 CASE NUMBER: CASE TITLE:  KNOWLTON VS YEN [IMAGED]  37-2022-00033595-CU-BC-CTL that Cross-Defendants Knowlton and Dunn were active participants in causing the acid migration. (See Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 99-100 ['The absence of cases finding landowners liable for trespass without their active participation is presumably because trespass requires an act which is intentional, reckless, negligent or the result of ultrahazardous activity.'].) The cross-complaint is explicit in its allegations with respect to the cause of acid or poison; it was used specifically and solely by Cross-Defendant Hawkins prior to him selling the property to Cross-Defendants Knowlton and Dunn. (FACC, ¶¶ 18-19 [acid used to kill bamboo tree sometime between March and July 2020], 20 [Knowlton and Dunn purchased property on March 25, 2021].) Accordingly, the demurrer to the cross-complaint is sustained with leave to amend.

Cross-Complainants have 30 days from entry of this order to file a second amended cross-complaint.

The minute order is the order of the court.

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