Judge Stephen Morgan, Case 19AVCV00207 2022-10-11 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

This is a torts action arising from a dispute between neighboring landowners. Plaintiff Robert Boyd (“Plaintiff”) alleges that Defendant Ron Thompson (“Defendant”) allowed waste water to flow into the street that borders the property owned by Plaintiff, caused salt water softener and/or chemical waste to enter Plaintiff’s property, 32126 Camino Canyon Road, Acton, California 93510 (the “Property”), from Defendant’s property, and that the salt water discharge damaged Plaintiff’s vegetation and topsoil.

The operative pleading is Third Amended Complaint (“TAC”), filed December 07, 2021. The TAC alleges five causes of action for: (1) Trespass (four counts); (2) Nuisance (four counts); (3) Assault; (4) Intentional Infliction of Emotional Distress (“IIED”); (5) Negligence (three counts).

On June 14, 2022, Defendant filed his Motion for Summary Judgment, or in the alternative, Summary Adjudication.

On September 27, 2022, Plaintiff filed his Oppositions to the Motion for Summary Judgment, or in the alternative, Summary Adjudication and Motion to Bifurcate.

On October 06, 2022, Defendant filed his Reply in Support of Motion for Summary Judgment, or in the alternative, Summary Adjudication.

Standard for Motion for Summary Judgment – The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿¿(Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal. App. 3d 367, 381-382.)¿¿¿

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿¿¿

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

As an initial matter, the Court addresses Defendant’s concern regarding Plaintiff’s “effort to manufacture a dispute about Defendant’s current residence, claiming that the error is in evidence of Defendant’s ‘sneaky character’ ” and the attacks on Defendant’s character. Defendant’s character is not at issue in the Motion for Summary Judgment, or in the alternative, summary adjudication. The Court looks only to presented evidence regarding the causes of action at hand: Trespass, Nuisance, Assault, IIED, and Negligence.

Regarding Defendant’s concern as to deposition testimony and the declaration of Jeff Hughes, Defendant has also presented these in his separately filed Objection to Evidence Submitted by Plaintiff in its Opposition to Motion for Summary Judgment. The Court notes that the filing has 100 objections, spanning 240 pages. For the benefit of the judicial economy as well as clarity and conciseness in the Statement of Decision, the Court address these concerns via the objections and rules as follows:

Overruled – 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 90, 99

The TAC alleges four (4) counts of trespass regarding liquid flowing onto Plaintiff’s property on the following dates: (1) March 2018, (2) January 19, 2021, (3) February 18, 2021, and (4) March 03, 2021.

Defendant presents that trespass requires proof of “the defendant's intentional, reckless, or negligent entry onto the property; . . . harm; and ... the defendant's conduct was a substantial factor in causing the harm.” (Motion 16:2-5 [citing Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262, as modified (Nov. 6, 2017); CACI No. 2000].) Defendant argues that the trespass claims must be dismissed as Plaintiff has admitted through discovery that he has no evidence that Defendant discharged waste water through a defective septic line or by other means onto Plaintiff’s property. Specifically, Defendant points to the following to meet his initial burden:

“ ‘Trespass is an unlawful interference with possession of property.’ 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. (See CACI No. 2000.)” (Ralphs Grocery Co., supra, 17 Cal.App.5th at pp. 261-262 [internal citation omitted].) “Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person.” ’ A trespass may be on the surface of the land, above it, or below it. The migration of pollutants from one property to another may constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [internal citations omitted].)

Defendant meets his initial burden of proof by negating the essential elements that the water came from Defendant, that the water caused harm, and that defendant’s conduct was a substantial factor in causing the harm. The burden now shifts to Plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

Plaintiff argues that Defendant is liable for Negligence, Nuisance, and Trespass under res ipsa loquitor. That is, Plaintiff has the burden to establish three things: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Plaintiff argues that he has satisfied those conditions as: (1) the flooding of Plaintiff’s property would not have happened without Defendant’s negligence; (2) the discharge of salt/waste water onto Plaintiff’s property was done by a hose connected to a spigot on Defendant’s property under Defendant’s control; and (3) Plaintiff did not contribute to the flooding of the hillside.

Plaintiff argues that Defendant is liable for Negligence, Nuisance, and Trespass under Negligence Per Se as Defendant violated the following codes and statutes:

and a presumption of negligence arises when (1) defendant violated a statute; (2) violation proximately caused the plaintiff's injury; (3) injury result from the kind of occurrence the statute was intended to protect. Plaintiff presents that the lack of drains, plumbing, septic system that released polluted, hazardous material onto Plaintiff’s property, as well as the public street, was and is the proximate cause of the soil, vegetation and tree damage to Plaintiff’s property and the codes and statues violated were meant to protect the public, including Plaintiff, from harm.

Plaintiff presents that he has established the elements of trespass. Plaintiff owns his land, Defendant allowed salt/waste water to flow from the street onto his property, Plaintiff was harmed because the entire slope that separates the respective properties was damaged by polluted soil so that the bushes and trees are dead or and the soil has to be replaced (PSS 48), and Defendant is the cause of the damage to Plaintiff’s property due to Round Up on the rosemary bushes and allow salt/waste water to flow onto the slope (PSS 49).

A close look at Plaintiff’s Separate Statement and Exhibits shows that Plaintiff personally has seen chemicals coming down onto his property via a garden hose hooked to a spigot that is periodically open. (Plaintiff’s Separate Statement (“PSS”) No. 7.) Plaintiff has also seen liquid with a white foam come from Defendant’s property. (PSS No. 43.) Defendant also admitted that he was spraying Round Up onto the tops of Plaintiff’s rosemary bushes. (PSS No. 40) Harm exists in the form of dead rosemary plants and dead pine trees. (PSS No. 45; see also Exh. B 110: 3-5, 113:16-25, 114:1-8.) Logical inferences are permitted on a Motion for Summary Judgment. (See Perez v. Buffet (2022) 2022 Cal. App. LEXIS 743 at 11 and 14 [“[l]ogical inferences are permissible but speculation is not”].) Here, Plaintiff’s testimony that the liquid was coming from Defendant’s property creates a logical inference that Defendant’s conduct was a substantial factor in the harm (i.e., elements in soil at a higher level, dead plants). Another logical inference is that the Round Up that Defendant admitted to spraying onto the tops of the rosemary bushes were the cause of the death of the rosemary bushes.

Thus, Plaintiff has met his burden to show that an issue of material fact exists for the alleged counts of Trespass.

It appears that Defendant’s Nuisance arguments are the same as that for Trespass. (See Moving Papers [“Plaintiff’s Causes of Action for Trespass and Private Nuisance Lack Merit Because Plaintiff Has No Evidence That He Was Harmed By Defendant”].)

Plaintiff applies res ipsa loquitor and negligence per se arguments to the Nuisance cause of action.

Plaintiff further argues that he has established the elements for Nuisance. Plaintiff presents that he has established the elements by showing that (1) Defendant left Plaintiff with polluted soil and dying or dead trees and foliage (PSS 55), (2) the damages is substantial because a repair estimate in 2018 was $54,000.00 and the cost would be higher now (PSS 56 and 56.1); and (3) the interference with the enjoyment is unreasonable because the salt/waste water destroyed the use of the soil.

A nuisance is broadly defined as “[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . .” (Cal. Civ. Code § 3479.) “Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. (Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal.App.3d at p. 124.) A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. (Ibid.)” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036.)

Here, for the same facts articulated in the Trespass action, ante, Defendant met his initial burden and Plaintiff has shown that there is a dispute of material fact as to the elements of nuisance. That is, based on Plaintiff’s testimony there is a dispute of material fact as to whether Defendant’s conduct interfered with Plaintiff’s use of his property as it affected the soil and foliage on Plaintiff’s property.

Defendant presents that Plaintiff has no evidence to support his claims of assault and IIED. For Assault, Defendant presents that Plaintiff admitted that he did not believe that Defendant was going to hit him with his vehicle and that he was not harmed in the event. (UMF No. 62). Defendant also presents that Plaintiff is more concerned with future actions Defendant may take rather than the alleged incident involving the assault. (UMF No. 63). Defendant believes that the Assault claim must fail because e it did not "reasonably appear to plaintiff that defendant was about to carry out the threat, "and Plaintiff conceded that he was not harmed by this event.

Plaintiff argues that Plaintiff was surprised that Defendant drove into the oncoming traffic lanes, where Plaintiff was located, and gave Plaintiff the middle finger. (PSS No. 61.) Defendant admits that he drove so close to Plaintiff that Plaintiff could see what happened. (PSS No. 62.)

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Q. Was there a time in which -- well, let me see. Was there a time in which you had an

A. I had him on the back bumper of my truck one day. I looked in the mirror. I couldn't see

the headlights. And he followed me for like maybe two miles that way. It's just intimidation. And another time, in the Lowe’s parking lot in Santa Clarita, he put the front bumper right at my window of my car. It wasn't any more than a foot away. And then the time when he stuck me the finger on Aliso Canyon right near my house and turned his truck at me head-on.

Q. Sure. And then the time you mentioned – you said Aliso Canyon when he gave you the finger. Can you tell me what happened there.

A. I was going towards the town of Acton. He was going towards our homes. And he just saw me coming, and up over the steering wheel with his left hand, sticking me the finger, sticking me the finger, waving, sticking me the finger. And then at the last whatever distance, turned the truck towards me. And I moved towards the gutter, and we

Q. And then you said that he flipped you the bird and then he turned his vehicle towards yours. Is that accurate?

A. He came over the double yellow line. I don't think that he would have hit me. I moved towards the right-hand shoulder, and we just passed each other.

Q. Did you sustain any what I'll call emotional injuries as a result of the event?

A. Yes. Understand this: I never know what this guy is going to do next, and so you're thinking, What's coming next? What's coming next? And I know this was early in the morning, so he's probably not had anything to drink. But he drinks about two 6-packs a day. And who knows, if he drinks a little bit more or he has a little shot of something else, he doesn't just go sideways and create a real problem. I'm afraid of the guy, and I don't want to be around him. I don't want to see him, and I don't want to have any kind of conflict with him and ask him why he did something like that or anything else. I never know what he's going to do next. And he's just -- he's a bully, and he knows how to push your buttons

Q. So you weren't necessarily particularly concerned about this specific event but really

overall concerned about the big picture of what Mr. Thompson might do next. Is that accurate?

Based on the testimony, Plaintiff did not think that Defendant would have hit him. A required element of assault is that a plaintiff reasonably believed they were about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat. Though Plaintiff has testified that he did not believe that Defendant would have hit him, Plaintiff also testified that he had to move towards the right-hand shoulder to avoid Defendant. A jury could reasonably infer that Plaintiff reasonably believed he was about to be hit by Defendant and so he had to move to the shoulder to avoid the contact.

Accordingly, Defendant has not met his burden to negate an essential element, or to establish a defense.

Defendant argues that Plaintiff’s IIED claim fails because Plaintiff lacks the facts to prove the elements of this claim. Defendant presents that the actions that constitute the basis for the IIED claim also constitute the basis for other claims and, therefore, should be dismissed for the same reason. Defendant also presents that, for some of the actions constituting the IIED cause of action, Plaintiff admits that neither he nor anyone else saw Defendant engage in these actions. (UMF No. 67); for other actions, they are time barred (UMF No. 65.) Finally, Defendant argues that Plaintiff has not suffered severe emotional distress by his own admissions, by Plaintiff’s lack of seeing any medical providers (UMF Nos. 68-69), and because Plaintiff is happy again now that Defendant has moved away (UMF No. 71). Additionally, though the FAC alleges that Plaintiff sustained permanent disability, loss of income and loss of earning capacity in connection with his IIED claim (See FAC ¶¶ 120-126), Plaintiff now admits that he has sustained no physical injury, and he is not making a lost wage claim nor any claim for loss of earning capacity. (UMF No. 70.)

Plaintiff argues that the list of emotionally distressing conduct is long and occurred over time. Plaintiff lists the events. Plaintiff presents that Defendant has not moved out despite what Plaintiff has heard and the emotional distress will continue so long as Defendant remains a neighbor.

It appears from the TAC that the actions that constitute the basis for the IIED claim are those that have been previously alleged. That is, the spraying of Round Up, the intrusion of salt/waste water, and the swerving of Defendant’s car into Plaintiff’s lane. The issues of the dead snake, shooting coyotes, and trash are not at issue. Defendant’s argument regarding those events are inapposite.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;(2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051.) “[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208Cal.App.4th 1590, 1614.)

It is patent that swerving into another driver’s lane in oncoming traffic is “outrageous” as it is so extreme as to exceed all bounds of that usually tolerated in a civilized society. Defendant’s arguments

Regarding emotional distress linked to property damage, there is case precedent:

That proposition [that emotional distress damages are recoverable in trespass and nuisance cases] is indeed settled: Our high court and lower courts have long held that once a cause of action for trespass or nuisance is established, a landowner may recover for annoyance and discomfort, including emotional distress or mental anguish, proximately caused by the trespass or nuisance. (Acadia, California, Limited v. Herbert (1960) 54 Cal.2d 328, 337 [5 Cal. Rptr. 686, 353 P.2d 294] [“It is settled that, regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance”]; Herzog v. Grosso (1953) 41 Cal.2d 219, 225–226 [259 P.2d 429]; Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 271–272 [288 P.2d 507] (Kornoff); Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1607 [146 Cal. Rptr. 3d 585]; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 172 [100 Cal. Rptr. 2d 662], disapproved on another ground in People v. Rogers (2013) 57 Cal.4th 296, 330–331 [159 Cal. Rptr. 3d 626, 304 P.3d 124]; Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal. Rptr. 399] [“The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass”]; Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1042, fn. 3 [29 Cal. Rptr. 2d 664] [“Damages for emotional distress can be recovered in an action for private nuisance”; citing cases]; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 288 [262 Cal. Rptr. 754] [“‘[M]ental distress caused by the nuisance created and maintained by the defendant is an element of loss of enjoyment’”], citing Acadia, supra, 54 Cal.2d at p. 337; Smart v. City of Los Angeles (1980) 112 Cal.App.3d 232, 239–240 [169 Cal. Rptr. 174]; Alonso v. Hills (1950) 95 Cal.App.2d 778, 780, 786–788 [214 P.2d 50].)

This is so even where the trespass or nuisance involves solely property damage. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986, fn. 10 [25 Cal. Rptr. 2d 550, 863 P.2d 795] [“precedent in the law of nuisance and trespass establishes quite clearly that emotional distress without physical injury is compensable”; citing cases]; Acadia, California, Limited v. Herbert, supra, 54 Cal.2d at p. 337; Kornoff, supra, 45 Cal.2d 265; Alonso v. Hills, supra, 95 Cal.App.2d at pp. 786–788 [plaintiff suffered “distress in … mind, … mental anguish and discomfort, annoyance, fright and shock” by reason of blasting operations that caused weakened structural integrity to the building, exterior cracks to the building and walls, damage to windowsills and frames, and leaking plumbing].)

In Herzog v. Grosso, supra, 41 Cal.2d 219, a neighbor blocked access to an easement leading to a public road, forcing the plaintiff and his family to use a steeper and more dangerous path. (Id. at pp. 222–223.) The trial court awarded the plaintiffs damages for “‘nervousness, worry, and mental distress for the safety of themselves and their daughter and others … .’” (Id. at p. 225.) The California Supreme Court upheld the award: “Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom” and “in the present case the suffering caused by fear for the safety of the daughter and visitors was a natural consequence of defendant's conduct and an invasion of a protect[a]ble interest of an occupant of real property.” (Id. at pp. 225–226.)

Herzog was followed by Kornoff, in which the plaintiffs sued the owner and operator of a cotton gin for damages to their real property and personal injury from fumes, dust and lint. (Kornoff, supra, 45 Cal.2d at p. 266.) A jury initially found the plaintiffs had suffered injury only to their real property, not any personal injury. (Id. at p. 267.) On a retrial of damages only, the jury was instructed that the plaintiffs were entitled to discomfort and annoyance proximately caused by the trespass, and it reached judgment again for the plaintiffs. (Ibid.) On appeal to the California Supreme Court, the defendant argued that damages for annoyance and discomfort were error in the absence of personal injury. (Id. at p. 271.) Before addressing that question, the court observed that the plaintiffs had pleaded that the comfort and enjoyment of their home had been diminished to the extent they had been unable to live normally and peacefully, and they had suffered “severe nervous distress and mental anguish.” (Id. at p. 272.) These allegations, according to the high court, were “sufficient to permit damages for discomfort and annoyance if such damages are otherwise proper.” (Ibid.) The court held they were proper in that case: “It appears to us that the discomfort and annoyance suffered by plaintiffs is an injury directly and proximately caused by defendant's invasion of their property and that such damages would naturally result from such an invasion. It also appears to us that discomfort and annoyance may be suffered where there is no physical injury suffered.” (Ibid.)

Kornoff reviewed numerous cases including Alonso v. Hills, supra, 95 Cal.App.2d 778, in which the Court of Appeal upheld a damage award for emotional distress as a form of discomfort and annoyance even though the plaintiff was not home at the time of a blast that caused a rock to destroy a bench near the plaintiff's daughter. (Alonso, at p. 788.) The plaintiff testified in that case that he “could not rest or sleep because of fear for his own security and that of his family … .” (Ibid.) According to the Alonso court, “This is a form of discomfort for which plaintiff under the circumstances of this case is entitled to recover, as well as for other discomfort not challenged on appeal. The amount of the recovery for discomfort and annoyance is left to the sound judgment and discretion of the trier of facts without necessity of specific evidence as to such amount.” (Ibid.) Kornoff also pointed out that in Green v. General Petroleum Corp. (1928) 205 Cal. 328 [270 P. 952], a trespass action in which the plaintiffs were forced to leave their home due to oil drilling operations, the court upheld a damage award stating, “‘The law affords redress by giving damages against a wrongdoer for the annoyance and discomforts suffered in such cases as this.’” (Kornoff, supra, 45 Cal.2d at p. 274, quoting Green, at pp. 336, 337.) It observed that in Judson v. Los Angeles Suburban Gas Co. (1910) 157 Cal. 168 [106 P. 581], “no impairment of plaintiff's health was involved”; in that case the plaintiff asserted that smoke, odor, and noise produced by gasworks “‘interfered with his comfortable enjoyment of his property. …’” (Kornoff, at p. 275.)

Kornoff thus upheld the award of emotional distress damages as part of the plaintiffs' discomfort and annoyance even though the only injury the plaintiffs suffered was to their real property, rejecting the defendant's contention that the fear and shock described in prior cases as part of annoyance and discomfort were personal injuries: “While defendant's trespass here is not of the type to cause fright or shock or even physical illness (as found by the jury), it obviously is of the type to cause plaintiffs much annoyance and discomfort. Plaintiffs' property—lawns, flowers, shrubs, window screens, hedges and furniture are, during the ginning season which lasts for approximately six months of each year, covered with a thick coating of dust and lint and ginning waste. This was specifically found to be a trespass and an injury to the real property. The annoyance and discomfort suffered by plaintiffs as a result of the injury to the real property is a natural consequence thereof.” (Kornoff, supra, 45 Cal.2d at p. 273.) Kornoff made clear that while the mental distress suffered by the plaintiffs there did not rise to the level of fright or shock, it was nevertheless compensable.

Kornoff concluded: “The California cases appear to draw no distinction between cases involving nuisance and those involving trespass in permitting an award of damages for discomfort and annoyance directly resulting from an injury to real property. There seems to be no sound reason to refuse [such an] award … since it is obvious that such an injury may cause discomfort and annoyance without also causing an actual physical injury to the person.” (Kornoff, supra, 45 Cal.2d at p. 275.)

(Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1348-51 (“Hensley”).)

In Hensley, the appellate court reversed the trial court’s determination that the plaintiff’s emotion distress that occurred due to a fire that ravaged plaintiff’s home was not distinct from annoyance and discomfort. (Id. at 1352.) The appellate court believed that the trial court’s attempt to distinguish emotional distress was an abuse of the trial court’s discretion. (Ibid.)

The Court thus believes that Defendant has not met his burden to negate an essential element, or to establish a defense to the IIED claim.

Defendant presents that the duty is releasing contaminants into water and allowing that water to flow onto Plaintiffs property and that Plaintiff was damaged as a result and, as presented in the Trespass and Negligence Causes of Action, Plaintiff only observed water on one occasion (UMF No. 21), no evidence as to where the source of the water is (UMF No. 43), and that there was no damage to the foliage (UMF No. 45).

Plaintiff presents that the duty is “to reasonable [sic] maintain his property in a way so as to avoid a neighbor, such as Plaintiff BOYD, or his property from being injured.” (Opposition 24:4-5.) The negligent act is the discharge of salt/waste water and/or continued pollution of soil (PSS Nos. 65-66) and it was clear that the foliage was damaged (PSS Nos. 67-68.)

“ ‘The elements of a cause of action for negligence are well established. Theyare “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v.County of San Mateo (1996) 12 Cal.4th 913, 917.)

The TAC alleges the duty to be: “Defendant RON THOMPSON and DOES 1 through 100, as owners and maintainers of property, have a non-delegable duty to apply a level of care commensurate with and proportionate to the danger of maintaining its property including the releasing of contaminants into water that is then permitted to flow onto Plaintiff BOYD's property.” (TAC ¶ 128.)

The Court believes that the duty alleged is that of Cal. Civ. Code § 1714(a) which reads in relevant part:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. . .

The Court has discussed the issues of the salt/waste water, Round Up, and damages to the foliage, ante. (See Trespass analysis.) While Defendant had initially met his burden, Plaintiff has shown that a triable issue of one or more material facts or a defense thereto exists. This analysis is applicable for the Nuisance Cause of Action as well.

Defendant argues that Plaintiff presented no material evidence to dispute the fact that Plaintiff’s damages, if any, were not caused by an act or omission of Defendant. Defendant further argues that the undisputed facts of this case clearly and convincingly support the

conclusion that nothing done by Defendant caused or contributed to damage to Plaintiffs hillside. Defendant presents that Plaintiff misstates testimony, that counts two through four of the Trespass and Nuisance claims fail because they are based upon speculation and Plaintiff admits that he sustained no damages, Plaintiff produced no evidence that Round Up or Waste Water caused damage to his foliage, that the Negligence counts fail because they are based upon speculation and Plaintiff admits he has no damages, res ipsa loquitor is inapplicable, negligence per se fails because plaintiff presented no evidence of causation or damages, Plaintiff failed to present evidence establishing the elements of Assault, and Plaintiff failed to present evidence establishing elements of IIED.

The Court is not convinced by these arguments and stands by its analysis. As mentioned, ante, logical inferences are permitted on a Motion for Summary Judgment. (See Perez v. Buffet (2022) 2022 Cal. App. LEXIS 743, 11 and 14.)

As to inconsistent testimony, such testimony provides fertile ground for impeachment at trial. (See Cal. Evid. Code §§769–770; Cal. Code Civ. Proc. §2025.620(a).)

Summary Adjudication to the Second Cause of Action (Private Nuisance) is DENIED.

The Court notes as to the different counts within the causes of action, “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Cal. Code Civ. Proc. § 437c(f).)

[1] “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Cal. Code Civ. Proc. § 437c(q).)