Judge: Nathan Vu, Case: 30-2022-01242205, Date: 2022-10-24 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Demurrer
Defendant Fred A. Read, Jr.’s demurrer to the First Amended Complaint is SUSTAINED as to the first and third causes of action, with 15 days leave to amend, and OVERRULED as to the second and fourth causes of action.
Defendant Fred A. Read Jr. demurs to the First Amended Complaint (FAC) filed by Plaintiff Aaron Stull.
Standard for Demurrer
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)
Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)
1st Cause of Action (Intentional Infliction of Emotional Distress)
To state a claim
for intentional infliction of emotional distress, a
plaintiff must establish: (1) extreme and outrageous conduct; (2) intention
to cause or reckless disregard of the probability of causing emotional
distress; (3) severe emotional suffering; and (4) actual and proximate
causation of the emotional distress. (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050.) Extreme and outrageous conduct is a high bar; the
behavior must “'go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community.’” (Alcorn
v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5, quoting
Rest. 2d Torts, § 46, com. d.)
The FAC alleges that Defendant engaged in a pattern of behavior aimed at harassing Plaintiff, including calling code enforcement, calling animal control, calling the building department, going into City Hall to complain about Plaintiff, and falsely accusing Plaintiff of flooding Defendant’s backyard. (See FAC, ¶ 14.) The FAC further asserts that Defendant harassed Plaintiff by making disparaging and false statements to Plaintiff’s neighbors, friends, ex-girlfriend, and former gardner, and the buyers of Plaintiff’s house. (See FAC, ¶¶ 14, subds. (e) & (j), 16, & 23.) The FAC also alleges that Defendant entered Plaintiff’s home without Plaintiff’s permission and damaging Plaintiff’s property. (See FAC, ¶¶ 9-12 & 16-17.)
The FAC claims that Plaintiff developed high anxiety, stress, depression, and has had to seek counseling on a regular basis as a result of this conduct. (See FAC, ¶ 20.)
In Hagberg v. California Federal Bank, the Supreme Court held that statements made to law enforcement personnel to report suspected criminal activity, and to instigate law enforcement personnel to respond, enjoy an unqualified privilege under Civil Code section 47(b), and can be the basis for tort liability only if the plaintiff can establish the elements of malicious prosecution. (See Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 363, superseded by statute on other grounds, Gonzales v. City of Los Angeles (C.D. Cal., Mar. 10, 2021, No. 220CV03519JGBMAA) 2021 WL 4442409, at *6.)
Section 47(b) “is intended to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.” (Hagberg v. California Federal Bank, supra, (2004) 32 Cal.4th at p. 360, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 213, quotation marks and emphasis omitted.) Hagberg v. California Federal Bank explained that “both the effective administration of justice and the citizen’s right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings.” (Id. at pp. 360–61.)
To the extent Plaintiff’s first cause of action is based on Defendant’s alleged phone calls to the code enforcement and animal control and Defendant’s visits to City Hall, such claims are privileged under Section 47(b), so long as the phone calls were not false.
Next, Plaintiff alleges that Defendant harassed Plaintiff by walking around the neighborhood asking neighbors to sign petitions regarding Plaintiff; falsely accusing Plaintiff of flooding Defendant’s backyard; making misrepresentations to Plaintiff’s friends and, on one occasion, Plaintiff’s ex-girlfriend; saying negative things about Plaintiff to Plaintiff’s former gardener; and by making misrepresentations to buyers of Plaintiff’s house. (See FAC, ¶¶ 14, subds. (e) & (j), 16, & 23.)
“‘[T]he requirements [for establishing actionable conduct] are rigorous, and difficult to satisfy. On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.’” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597, quotation marks and citations omitted, disapproved of on other ground, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995; see also Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129.)
“‘[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’ do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist., supra, 14 Cal.App.5th at p. 597; accord Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007; see Yurick v. Superior Court, supra, 209 Cal.App.3d at p. 1123 [“Mere insulting language, without more, ordinarily does not constitute outrageous conduct.”].)
“It is for the court to determine in the first instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1265).
Here, Defendant’s alleged misrepresentations
to Plaintiff’s neighbors, friends, and ex-girlfriend do not constitute
“extreme and outrageous conduct.” They are the type of “mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities”
that are insufficient to support a claim for intentional infliction of
emotional distress.
Plaintiff also claims that Defendant entered Plaintiff’s home without permission and damaged Plaintiff’s property. (See FAC, ¶¶ 9-12 & 17.) Specifically, Plaintiff alleges on information and belief that:
1. Defendant obtained a copy of the key to Plaintiff’s home and entered Plaintiff’s home without Plaintiff’s permission, (see FAC, ¶ 12);
2. Defendant threw rocks at Plaintiff’s new boat because the damage was on the side of the boat facing Defendant’s house, (see FAC ¶ 17, subd. (a));
3. Defendant entered Plaintiff’s backyard and cut the wiring to Plaintiff’s jacuzzi, (see FAC ¶ 17, subd. (b));
4. Defendant cut the wires on a solar light Plaintiff installed because the light was installed near Defendant’s house, (see FAC ¶ 17, subd. (c));
5. Defendant tampered with Plaintiff’s gas line and caused Plaintiff to receive a gas bill over $1,000 that month, (see FAC ¶ 17, subd. (e); and
6. Defendant caused a flood in Plaintiff’s front yard, (see FAC ¶¶ 17, subds. (f)).
A “[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” (Pridnoff v. Balokovich (1951) 36 Cal.2d 788, 792.) Here, however, Plaintiff has provided no facts or information that would reasonably support his allegations.
For example, Plaintiff asserts no facts to support the allegation that Defendant entered Plaintiff’s house, other than speculating that because Defendant had access to Plaintiff’s home before Plaintiff purchased it, Defendant somehow continued to have access to Plaintiff’s home after Plaintiff moved in. Further, the fact that Plaintiff’s boat and solar light were in proximity to or facing Defendant’s home does not support a reasonable belief that Defendant damaged these items. Finally, the fact that Defendant (who was a neighbor of Plaintiff) walked in front of Plaintiff’s front yard or was seen at Plaintiff’s front door is not a reasonable basis to allege that Defendant tampered with Plaintiff’s gas line or flooded Plaintiff’s front yard.
However, Plaintiff did allege, not based on information and belief, that “Defendant also pulled the wires from [Plaintiff’s] automatic sprinklers located in the front yard so that the automatic sprinklers would not work properly.” (See FAC, ¶ 17, subd. (d).) Although Plaintiff gives no other factual support or explanation for this allegation, the court will assume that because Plaintiff did not plead on information and belief, Plaintiff makes this allegation based upon personal knowledge.
Nonetheless, pulling the wires of Plaintiff’s automatic sprinklers and causing them to not work properly does not constitute “extreme and outrageous conduct.” While it may be more concerning to Plaintiff than the alleged verbal harassment by Defendant, it is not “the most extremely offensive” conduct or “so extreme and outrageous as to permit recovery.”
In alleging distress, courts have required the plaintiff to set forth facts indicating the nature or extent of any mental suffering, and have sustained demurrers where such factual allegations were lacking. (See Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1113–1114 [affirming judgment after demurrer without leave to amend; although plaintiff alleged he “sustained injury to his health, strength, and emotional condition,” he “did not plead specific facts that establish severe emotional distress resulting from defendant’s conduct”]; Bogard v. Employers Cas. Co. (1985) 164 Cal.App.3d 602, 607, 617–618, fn.2 [trial court did not err in sustaining demurrer to emotional distress claim where plaintiffs alleged they suffered “suffered mental anguish and emotional distress, and became ill, nervous and upset” without any facts indicating the nature or extent of their suffering, but it was error not to give leave to amend].)
Plaintiff’s allegations that he suffered and continues to suffer “severe and continuous emotional distress, and physical and mental pain and anguish,” (FAC, ¶ 35), and “developed high anxiety, stress, and depression and had to seek counseling on a regular basis” (FAC, ¶¶ 20& 24) are insufficient to withstand demurrer. The FAC does not allege the duration of Plaintiff’s distress or facts which demonstrate that Plaintiff’s emotional distress was severe and continuous.
For the above reasons, the demurrer to the first cause of action must be sustained.
2nd Cause of Action (Private Nuisance)
A private nuisance is “a non-trespassory interference with the private use and enjoyment of land.” (San Diego Gas & Elec. Co. v. Superior Court (1996) 13 Cal.4th 893, 937; see Civil Code, §§ 3479-3481.)
A plaintiff bringing a claim of private
nuisance under California law must show that: (1) he owned, leased, occupied
or controlled real property; (2) defendant, by acting or failing to act,
created a condition or permitted a condition to exist that was harmful to
health or was an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property; (3) defendant’s conduct
in acting or failing to act was intentional, or unreasonable but negligent or
reckless; (4) this condition substantially interfered with plaintiff's use or
enjoyment of his land; (5) an ordinary person would reasonably be annoyed or
disturbed by defendant’s conduct; (6) plaintiff did not consent to defendant’s
conduct; (7) plaintiff suffered harm as a result of defendant's conduct; (8)
defendant’s conduct was a substantial factor in causing plaintiff's harm; and
(9) the seriousness of the harm caused by defendant outweighs its social
utility. (See Department of Fish & Game v. Superior Court (2011)
197 Cal.App.4th 1323, 1352; Birke v. Oakwood Worldwide (2009)
169 Cal.App.4th 1540, 1548.)
The second cause of action is based on much of the same conduct as alleged in the first cause of action. (See FAC, ¶¶ 44.)
As discussed above, to the extent Plaintiff’s nuisance claim is based Defendant’s alleged phone calls to code enforcement, such claims are privileged under Section 47(b). Further, the allegations made on information and belief are also insufficient. (See FAC, ¶¶ 12 & 17.)
However, the allegations of verbal harassment, (see FAC, ¶¶ 14, subds. (e) & (j), 16, & 23), and pulling the wires of Plaintiff’s automatic sprinklers, (see FAC, ¶ 17, subd. (d)), are of sufficient nature, duration, or amount to constitute unreasonable interference with the use and enjoyment of the land. (See San Diego Gas & Elec. Co. v. Superior Court, supra, 13 Cal.4th 893 at p. 938.)
The demurrer to the second cause of action must be overruled.
3rd Cause of Action (Trespass to Land)
“The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another.” (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1778, quotation marks omitted.) “The elements of a common law trespass are (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry on the property; (3) lack of permission to enter the property, or acts in excess of the permission; (4) actual harm; and (5) the defendant’s conduct as a substantial factor in causing the harm.” (Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (2010) 186 Cal.App.4th 1078, reversed on other grounds, 55 Cal.4th 1083.)
The third cause of action for trespass to land alleges that Plaintiff owned the home located at 4110 View Park Drive in the City of Yorba Linda. (See FAC, ¶ 52.) Plaintiff also alleges, on information and belief, that Defendant intentionally entered Plaintiff’s home without Plaintiff’s permission. (See FAC, ¶ 56.)
For the reasons stated above, Plaintiff’s allegation on information and belief that Defendant intentionally entered Plaintiff’s home is insufficient.
The demurrer to the third cause of action must be sustained.
Fourth Cause of Action (Trespass to Chattel)
The elements of a cause of action for trespass to chattel are (1) the plaintiff’s possession of the property, (2) the defendant's intentional interference with the plaintiff’s use of the property, (3) without the plaintiff’s consent, and (4) damages. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566-1567.)
The fourth cause of action for trespass to chattel alleges that Defendant intentionally interfered with Plaintiff’s use of his boat, jacuzzi, solar light, sprinklers, and gas line. (See FAC, ¶¶ 17, subds. (a)-(e), & 62.)
For the reasons stated above, Plaintiff’s allegation on information and belief that Defendant intentionally interfered with Plaintiff’s use of his boat, jacuzzi, solar light, and gas line are insufficient. However, the allegation that Defendant intentionally interfered with Plaintiff’s use of his sprinklers is sufficient.
Thus, the demurrer to the fourth cause of action must be overruled. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].)
Motion to Strike
Defendant Fred A. Read, Jr.’s motion to strike a portion of the First Amended Complaint is DENIED.
Defendant Fred A. Read, Jr. moves to strike the portion of the First Amended Complaint (FAC) that states, “Stull also spoke to Defendant’s granddaughter who conceded that Defendant was a ‘difficult person’ to deal with.” (See FAC, ¶ 15.)
Standard for Motion to Strike
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Civil Proc. Code, § 436.)
“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Civil Proc. Code, § 431.10, subd. (b).)
A motion to strike also may strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)
However, motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. (Civil Proc. Code, § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010).) The allegations of the complaint are presumed true and are to be read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Defendant seeks to strike the portion of paragraph 15 that states “Stull also spoke to Defendant’s granddaughter who conceded that Defendant was a ‘difficult person’ to deal with.” (FAC, ¶ 15.)
This allegation is not clearly irrelevant, false, or improper. Thus, the directive to construe pleadings liberally and the reluctance to use motions to strike weighs in favor of a denial in this instance. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [use of motion to strike “should be cautious and sparing” so as not to create a “procedural ‘line item veto’ for the civil defendant”].)
Plaintiff shall give notice of this ruling.