Misha Crosby, et al. v. California Tree Design, Inc.

(1) DEMURRER TO FIRST AMENDED COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Defendant California Tree Design, Inc.

RESPONDING PARTY(S): Plaintiffs Misha Crosby and Datura Enterprises, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Misha Crosby and Datura Enterprises, LLC, allege Datura entered into a written service contract with Defendant whereby Defendant would remove trees from Plaintiffs’ property. Plaintiff alleges that Defendant violated the contract by removing trees protected by the Los Angeles protected tree ordinance. Plaintiff asserts causes of action for (1) breach of contract, (2) negligence, (3) fraudulent misrepresentation, and (4) tortious injury to property.

Defendant now demurrers to the Third and Fourth Causes of Action in the FAC, as well as moves to strike the treble damages request in the Prayer. Plaintiffs opposed. 

TENTATIVE RULING:

Defendant’s Demurrer to the Fourth Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND. 

Defendant’s Demurrer to the Third Cause of Action is OVERRULED.

Defendant’s Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND. 

Defendant is ordered to file an Answer to the FAC (as modified by this ruling) within 21 days.

Moving Defendant is ordered to give notice, unless waived.

DISCUSSION:

Demurrer to Complaint

I. Meet and Confer

The Declaration of attorney Frances E. Agoncillo confirms that the meet and confer requirement was satisfied. 

II. Judicial Notice

The court declines to take judicial notice of Defendant’s Exhibits as they are not relevant to the disposition of this motion. (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 482 [declining to take judicial notice of irrelevant matters].) Whether considered or not, the result of this ruling would remain the same. At most, the exhibits create a triable issue of fact. 

III. 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.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)  

IV. Analysis

Defendant demurrers to the Third Cause of Action for Fraudulent Misrepresentation and Fourth Cause of Action for Tortious Injury to Property. Each is addressed in turn. 

A. Third Cause of Action for Fraudulent Misrepresentation

Defendant first demurrers to the Third Cause of Action for fraudulent misrepresentation. “To establish a claim for fraudulent misrepresentation, the plaintiff must prove: ‘(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.’ ” (Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 434.)

First, Defendant argues Plaintiffs have not pled fraud with the requisite specificity. Generally, “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc.¿(2009) 171 Cal.App.4th 1356, 1384, internal quotations omitted.) “The normal policy of liberally construing pleadings against a demurrer will not be invoked to sustain a fraud cause of action that fails to set forth such specific allegations. (Id.)” The heightened pleading standard for fraud requires “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.)

Plaintiff Crosby owns real property at 8461 West Grand View Drive, Los Angeles, CA. (FAC ¶ 7.) “On July 6, 2023, Crosby, acting through Datura, entered into a written service contract (the “Contract”) with Defendant California Tree Design, Inc. for removal of trees and shrubs and treatment of stumps on the Property.” (Id., Exh. A.) The Contract specifically provides that “California Tree Design, Inc. will not remove the oak trees or any other protected trees on the lot.” (Id.)

“Prior to entering into the contract, Crosby met with a representative of Defendant, Frankie Lopez, at the Property, and Crosby explained to Lopez that Crosby wanted certain designated trees and shrubs removed from the property, but did not want any of the live oaks or any other trees and shrubs that were protected by the Los Angeles protected tree ordinance (LAMC Section 46.00, et seq, hereafter the “tree ordinance”) removed from the property, because Crosby did not have the required tree removal permit. Crosby ask Lopez if the designated trees that Crosby wished to have removed were protected by the protected tree ordinance. Lopez stated he was an arborist, and represented that none of the trees Crosby wished removed were protected by the tree ordinance. Lopez as an arborist is held to a high degree of care when it comes to identifying protected trees under the tree ordinance. Crosby, in reasonable reliance upon the representations of Lopez, then entered into the Contract to have Defendant remove designated trees from the Property. But for the representations by Lopez that the trees Crosby desired to have removed were not protected by the tree ordinance, Crosby would not have entered into the Contract or hired Defendant to remove the trees. Lopez exhibited gross negligence by failing to identify the protected trees as being protected by the tree ordinance.” (Id. ¶ 8.) 

“After execution of the Contract, on July 7, 2023, representatives of Defendant came to the Property and tortiously and negligently removed one or more Southern California Black Walnut trees that were protected by the protected tree ordinance, without the required permit. Such conduct constitutes a trespass to the Property, and tortious removal of trees, as unlawful removal of protected trees was not authorized by the Contract. One or more of the protected Southern California Black Walnut trees removed had been designated by Crosby for removal, only after Lopez had told Crosby that they were not protected.” (Id. ¶ 9.) 

As a result of the tree removal, “the City of Los Angeles instituted enforcement proceedings against Crosby for wrongful removal of protected trees without a permit in violation of Los Angeles Municipal Code Section 46.00, et seq. Plaintiffs have incurred legal and expert fee expenses in defending in those enforcement proceedings, and will likely suffer detrimental consequences from the City, such as withholding of building permits for some period of time and possibly fines and/or other expenses.” (Id. ¶ 10.) In addition, “neighbors in the area assumed that Crosby had knowingly hired the Defendant to remove protected trees, and have spread that assumption to multiple members of the Los Angeles community, resulting in false statements about Crosby, and as a result exposing Crosby to hatred, contempt, ridicule and obloquy; and caused Crosby to be shunned and avoided.” (Id. ¶ 11.)  Thus, Plaintiff “has suffered damage to his reputation, and mental and emotional pain and suffering.” (Id.)

Here, Plaintiffs have alleged sufficient facts on each element of this cause of action. Defendant, through Lopez, represented that none of the trees Crosby wished to remove were protected by the tree ordinance. In fact, some of the trees were protected. Plaintiff alleges that Lopez, who represented he was an arborist, made that representation with recklessly and without regard for its truth. Plaintiff reasonably relied on that representation when he retained Defendant to remove the trees. That was a substantial factor in causing Plaintiff’s harm when Defendant removed the protected trees and Plaintiff faced enforcement proceedings from the City.  

Next, Defendant argues that Plaintiffs have not alleged a “complete causal relationship” between the alleged statement and the harm suffered. It is Defendant’s position that Plaintiffs’ damages were “inevitable and due to causes unrelated to Defendant’s actions.” (Dem. 6: 3-4.) Defendant points to various outside facts: that a separate tree removal service, Think Green Tree Care, removed protected trees prior to Defendant; and that neighbors Rikki Poulos and Jamie Hall, who reported the tree removal, were the cause of the damages.

However, as Defendant appreciates in its demurrer, causation requires that a Defendant’s conduct be a “substantial factor” in causing Plaintiff’s harm—but it need not be the only factor. (See Strebel v. Brenlar Investments, Inc. (2006) 135 Cal.App.4th 740, 752 [applying substantial factor jury instruction in fraud action].) Here, based on the allegations, whether Defendant’s misrepresentation was a substantial factor in causing Plaintiffs’ harm is a question of fact that cannot be resolved by demurrer. 

Accordingly, Defendant’s Demurrer to the Third Cause of Action is OVERRULED.

B. Fourth Cause of Action for Tortious Injury to Property

Plaintiff’s Fourth Cause of Action is for Tortious Injury to Property under Civil Code section 3346 and Code of Civil Procedure section 733. (FAC ¶ 22.) 

Section 733 provides:

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.

Section 3346(a) provides:

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.

Defendant argues Plaintiff cannot prevail on this cause of action because he has not alleged a trespass. Rather, as alleged in the FAC, Defendants were on the property permissively pursuant to a contract for tree removal. Plaintiffs respond that the removal itself “constitutes a trespass to the Property, and tortious removal of trees, as unlawful removal of protected trees was not authorized by the Contract.” (FAC ¶ 9.) 

Here, the court finds Defendant’s argument on this point more persuasive. Defendant was lawfully on the property at the direction of Plaintiffs and pursuant to contract. This is not a trespass, at least as contemplated by the legislature when it enacted these code sections. After all, the purpose of these tree removal statutes was to “educate blunderers (persons who mistake location of boundary lines) and to discourage rogues (persons who ignore boundary lines), to protect timber from being cut by others than the owner.” (Scholes v. Lambirth Trucking Co. (2020) 8 Cal. 5th 1094, 1110.) To invoke the statutes in the present context is an attempt to fit a square peg into a round hole. This court therefore concludes that Plaintiffs have failed to allege a trespass necessary to support this cause of action.

Accordingly, Defendant’s Demurrer to the Fourth Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Finding no reasonably possibility of successful amendment, no leave to amend is given. 

Motion to Strike

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis

Defendant moves to strike Plaintiffs’ request for treble damages sought under Civil Code section 3346 and CCP section 733. (FAC ¶ 22; Prayer for Relief, ¶ 3.)

These damages are available only under sections 3346 and 733, which makes up Plaintiffs’ fourth cause of action for “tortious injury to property.” As discussed in the accompanying demurrer, Plaintiff has not alleged the facts necessary to support the Fourth cause of action, and the demurrer is sustained. Without that cause of action, no treble damages are available.

Accordingly, Defendant’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND.

IT IS SO ORDERED.

Dated:   March 3, 2025 ___________________________________