Judge: Stephen Morgan, Case: 22AVCV00997, Date: 2023-04-11 Tentative Ruling

Case Number: 22AVCV00997    Hearing Date: April 11, 2023    Dept: A14

Background

This is a real property action. Plaintiff Yasmin Bibanco Rodriguez (“Plaintiff”) alleges that on or around September 2020, she purchased the real property located at Vac/Vic Avenue H8/85 Ste, Roosevelt Corner, CA 93535 (the “Subject Property”). Plaintiff presents that the real property is a portion of land and when she visited the Subject Property prior to purchase, the land was clean and clear of any trash and/or waste. However, after the purchase, Plaintiff presents that she would visit every weekend and, each time she visited, there was more yard waste. Plaintiff contends that she stopped visiting the property for a few months and, when she resumed her weekend visits in June 2021, an enormous amount of waste had been piled on her property. Plaintiff states she attempted to ask the city for help, but was told that she needed the names of the individuals dumping. Plaintiff and her family began the process of clearing the waste every weekend. During the process, Plaintiff and her family built a shed. Plaintiff’s father stayed at the shed, saw people dumping, and informed them to stop. The individuals continued, but did not dump when Plaintiff’s father was on the Subject Property. On August 8, 2022, Plaintiff presents that she stayed at Subject Property with her son and around 6:30 am, they saw a truck dumping waste on her property. Through this incident, Plaintiff discovered that the truck belonged to Defendant Tip Top Arborists, Inc (“Tip Top”). Plaintiff alleges that she called Tip Top, eventually speaking to Defendant James P. Lewandowski aka Jim Lewandowski (“Lewandowski” and collectively “Defendants”). Plaintiff contends that Lewandowski asked to speak to her father and that he wanted Plaintiff’s father to sign a document stating that Defendants had permission to dump waste and mulch on Subject Property. Plaintiff told Defendant Lewandowski that her father was not signing anything. Plaintiff states that Lewandowski: (1) admitted to dumping yard waste and mulch onto the Subject Property, and (2) Lewandowski then told Plaintiff that Defendants were willing to pick up the waste on the street but not on the actual property because the Defendant did not want any issues with the city. Plaintiff states that she informed Lewandowski that she wanted her property cleaned and Lewandowski then told her that she could sue him.

On December 01, 2022, Plaintiff filed her Complaint alleging four causes of action for: (1) Trespass, (2) Private Nuisance, (3) Negligence, and (4) Intentional Infliction of Emotional Distress (“IIED”).

On February 03, 2023, Defendants filed a Declaration Pursuant to Cal. Code Civ. Proc. §§ 430.41(a)(2) and 435(a)(2) for Additional Time to Meet and Confer Prior to Filing a Responsive Pleading.

On March 07, 2023, Defendants filed this Demurrer with Motion to Strike.

On March 23, 2023, Plaintiff filed her Oppositions.

On April 04, 2023, Defendants filed their Replies.

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 Legal Standard

Standard for Demurrer – 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,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿

¿¿¿¿¿¿

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿

¿¿¿¿¿¿¿

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿¿

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Standard for Motion to Strike – The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

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Meet and Confer Requirement – Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. §§ 430.41 and 435.5.) The Court notes that the Moving Party has complied with the meet and confer requirement. (Decl. Jason M. Fodrini ¶¶ 2-4.)

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Discussion

Application –

i.       Demurrer

As an initial matter, the Court notes that Defendants have provided a Statement of Demurrer which reads:

Per Code of Civil Procedure 5430.10, defendant Americana La Crescenta, LLC demurs

to the complaint as follows:

1. The fourth cause of action for intentional infliction of emotional distress fails to state facts sufficient to constitute this cause of action. (Code Civ. Proc. 5430.10(e).)

(Demurrer, p. 3.)

Americana La Crescenta, LLC is not a party to this action. The Court believes that this is a scrivener’s error.

The Court believes that this does not affect notice as (1) the Demurrer uses the correct case name and case number in its bird cage format, (2) lists the proper Defendants in the Notice on pages one and two; and (3) provides the grounds for the Demurrer on pages one through three. (See Demurrer at specified pages.)

Further, had notice been an issue, Plaintiff has opposed the moving papers on its merits. "It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.)

Defendants demur to the IIED claim in the Complaint. Defendants believe that Plaintiff's allegations of tree trimmings on Plaintiff's property do not rise to the level of "severe emotional distress" required to proceed for IIED. Defendants further present that, had Plaintiff pled actionable conduct, her claim for IIED would still fail has she has not pled facts showing severe distress and such allegations are necessary under California law for an IIED claim. Defendants present that Plaintiff has only stated that she “suffered severe emotional distress[]” in paragraph 58 of the Complaint and that such a statement is conclusory.

Plaintiff cites to Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 977 (“Potter”) which focused on disposal of waste. Plaintiff presents that she has alleged that mulch was dumped onto her property in the Complaint; mulch is a hazardous material; under Los Angeles County regulations hazardous waste must be properly disposed of at designated sites; and Defendants are ISA (International Society of Arboriculture) trained which means that they must follow a code of ethics, including complying “with all applicable laws, regulations, policies, and ethical standards governing professional practice of arboriculture.” (Opp. 7:22-24 [no citation provided by Plaintiff].)

“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.)

Specific to the IIED claim, Plaintiff’s Complaint states:

The first element is met because Defendant's conduct was outrageous as they repeatedly sent employees to Plaintiffs property to dump waste knowing that it was wrong and continuing their actions despite being asked to stop.

The second element is met because the Defendant acted with reckless disregard of the probability that Plaintiff would suffer emotional distress. Defendants continued to dump waste on Plaintiffs property for almost 2 years and not thinking of the consequence of their actions. Plaintiff resorted to sleeping in her car for weekends on end because she wanted to clean the mess made by Defendant's only for the mess to return the following week, it was a repeated cycle that caused Plaintiff to suffer from severe emotional distress and stress.

The third element is met because Plaintiff suffered severe emotional distress for those two years and continues to do so.

The fourth element is met because the Defendant's conduct was a substantial factor in causing Plaintiff's sever emotional distress as they made no attempt to resolve the mess they made after Plaintiffs pleas. Defendants would wait until Plaintiff wasn't on her property to dump waste because they knew this was causing her harm. Due to Defendant's actions in dumping waste on Plaintiffs property, she would not have suffered any damages. Furthermore, the actions of dumping waste on someone's property is foreseeable that Plaintiff would suffer harm.

(Complaint ¶¶ 56-59.)

The Court has read Potter, supra, in its entirety. First, Potter, supra, discussed IIED at a different stage in the judicial process. It was known to the Courts that the toxic water dumped into the drinking water included known carcinogens, constituting an ultrahazardous activity. (See Potter, supra, 6 Cal.4th 965 at 9766-77.) The plaintiffs in Potter faced an enhanced but unquantified risk of developing cancer in the future due to the exposure. (Id. at 975.) Despite this, the Supreme Court of California determined that Christensen v. Superior Court (1991) 54 Cal. 3d 868 precluded any liability for IIED in absence of a determination that Firestone Tire & Rubber Co.’s conduct was directed at plaintiffs or undertaken with knowledge of their presence and consumption of the groundwater, and with knowledge of a substantial certainty that they would suffer severe emotional injury upon discovery of the facts. (Id. at 1000-1004.)

Plaintiff’s Complaint does not include any allegations that mulch is a hazardous material. Plaintiff has presented this in her Opposition only. As pled, the allegations for IIED focus on dumping waste, including mulch, knowing that it was wrong and continuing their actions despite being asked to stop. “[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Plotnik v. Meihaus (2012) 208Cal.App.4th 1590, 1614.) Based on the pleadings, the Court does not believe that the dumping of waste rises to the level of extreme as to exceed all bounds of that usually tolerated in a civilized community.

Plaintiff alleges, as to her emotional distress, only that she “suffered severe emotional for those two years and continues to do so.” (Complaint ¶ 57.) Such a statement is conclusory. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Further, “[s]evere emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397 (“Fletcher”).) The allegations do not indicate that Plaintiff suffered emotional distress that meets the standard set out by Fletcher.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California

law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685). “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)

Based on Plaintiff’s presentation in her Opposition, it appears that the pleadings may be rectified by an amendment.

Defendant reiterates this sentiment in its Reply: “In relying upon allegations outside the four corners of the Complaint, Plaintiff is acknowledging that insufficient facts have been pled to show severe emotional distress. Strikingly in Plaintiff’s Opposition at page 7 (lines 18-29), she appears to be alleging new facts not previously pled within the four corners of the Complaint. Namely, Plaintiff is now making allegations about hazardous and toxic materials and the danger of inhaling and working with hazardous waste. Defendants do not acknowledge that these ‘facts’ would be sufficient to plead causation. However, the fact is that they were not pled in the first place.” (Reply 1:26-28, 2:1-4.)

The Demurrer is SUSTAINED with leave to amend.

ii.     Motion to Strike

Defendants seek a Court order striking the following:

1. Paragraph 60 in its entirety.

2. Prayer for relief for punitive damages,

3. Prayer for relief for attorneys' fees.

As the Complaint stands, the Demurrer to the IIED cause of action has been sustained with leave to amend. As such, the Motion to Strike Paragraph 60 is now moot.

Regarding the prayer for relief for punitive damages, Defendants present that it is solely based on the IIED claim. Defendants argue that under Cal. Code Civ. Proc. § 3294, Defendants’ actions of dumping tree trimmings does not raise to the level of fraud, oppression, or malice. The Court notes that Defendants present that they “offered to clean up the mess.” (Motion to Strike 5:16.) This challenges the pleadings. Defendants do not seek to strike the allegations that they offered only to pick up the waste on the street. (See Complaint ¶ 28.) As such, the Court does not consider Defendants’ aforementioned presentation.

Plaintiff rebuts this, presenting that the claim for punitive damages is also connected to the claim for trespass. Plaintiff presents that Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265 (“Kornoff”) states: “In an action for civil trespass, a property owner or tenant may recover for compensatory or punitive damages, including, but not limited to, the loss of market value, emotional distress, and/or the cost of restoration.” Plaintiff highlights how the Kornoff court focuses on recovery for discomfort and annoyance.

Defendant presents in its Reply that Plaintiff is seeking to add allegations not within the four corners of the Complaint.

The Court could not find Plaintiff’s cited quote. The Court found, instead, “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.” (Id. at 272 [cited by Plaintiff in Opp. 3:17-19].) The Court notes that perhaps Plaintiff is citing another case as there is no citation following the quote; however, as Kornoff is cited both immediately preceding and following the quote, the Court believes that Plaintiff cited, or attempted to cite, Kornoff.

Causes for trespass do support an award of punitive damages. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 [citing Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316].) However, such punitive damages are not automatic. (Id.) Plaintiff must allege specific facts at the pleading stage when seeking punitive damages.

Cal. Code Civ. Proc. § 3924 provides: “… [W]here it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Cal. Civ. Code § 3294(a).) Fraud, oppression, and malice are defined as:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Code Civ. Proc. § 3294(c)(1).)

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Code Civ. Proc. § 3294(c)(2).)

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Code Civ. Proc. § 3294(c)(3).)

Plaintiff’s Trespass claim describes trespass, states the elements of trespass, and goes through how each of the elements are met. (See Complaint ¶¶ 30-37.) Plaintiff's complaint does not to contain specific facts as to corporate ratification. As such, punitive damages have not been sufficiently alleged.

The Court notes that the ruling on punitive damages in the prayer may be made superfluous by the amended pleading.

The Court turns next to attorneys’ fees.

Defendants present that attorneys’ fees are only recoverable when authorized by contract, statute, or law under Cal. Code Civ. Proc. §1033.5(a)(10)(A) and case precedent. Defendants argues that Plaintiff does not allege any basis for her entitlement to the recovery of attorney’s fees.

Plaintiff argues that the sole reason this action was brought was due to Defendants. Plaintiff attempted to negotiate with Defendant, who responded that he did not care and to sue him. Plaintiff did so, thus incurring attorney costs. Plaintiff believes that this case should fall under Cal. Code Civ. Proc. § 1021 as this case involves “exceptional circumstances for which the attorney’ fees should be paid by the Defendant’s [sic] and not the Plaintiff.” (Opposition 5:1-2.)

Defendant’s Reply reiterates that there are no facts pled to support such a prayer and reiterates that attorneys' fees are only recoverable when authorized by contract, statute, or law under Cal. Code Civ. Proc. § 1033.5(a)(10)(A-C) and Cal. Code Civ. Proc. § 1021.5 allows attorneys’ fees only upon motion.

Cal. Code Civ. Proc. § 1021 reads:

Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.

Cal. Code Civ. Proc. § 1021 allows a party to be entitled to their costs when a plaintiff prevails in a damage action based on commission of a felony offense (Cal. Code Civ. Proc. § 1021.4); cases resulting in public benefit (Cal. Code Civ. Proc. § 1021.5); claims involving implied indemnity (Cal. Code Civ. Proc. § 1021.6); actions involving peace officers, libel, slander, and bad faith (Cal. Code Civ. Code § 1021.7); certain cases in which the Attorney General prevails (Cal. Code Civ. Proc. § 1021.8); certain trespass cases involving trespassing on lands either under cultivation or intended or used for the raising of livestock (Cal. Code Civ. Proc. § 1021.9); cases involving interstate sale of tobacco (Cal. Code Civ. Proc. §1021.10); and cases involving the enforcement of laws that regulate or restrict firearms (Cal. Code Civ. Proc. § 1021.11); actions by or against the sactions between a small business or a licensee and a state regulatory agency (Cal. Code Civ. Proc. § 1028.5); personal injury actions against an unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required (Cal. Code Civ. Proc. § 1029.8); cases for the recovery of wages for labor performed (Cal. Code Civ. Proc. §1031); and costs in inverse condemnation proceedings include attorney’s fees (Cal. Code Civ. Proc. § 1036). Other provisions of Code Civ. Proc. §§¿1021–1038 apply to costs in specific kinds of actions or proceedings only or to particular parties in an action or proceeding.

Plaintiff’s case does not fall under one of these exceptions.

Accordingly, the Motion to Strike is MOOT in part as to paragraph 60 in its entirety and GRANTED as to the prayer for relief for punitive damages and the prayer for relief for attorneys' fees.

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Conclusion

Defendants Tip Top Arborists, Inc. and James P. Lewandowski aka Jim Lewandowski’s Demurrer is SUSTAINED with leave to amend. 

Plaintiff is to file an amended Complaint within 30 days of this Court Order. 

Defendants Tip Top Arborists, Inc. and James P. Lewandowski aka Jim Lewandowski’s Motion to Strike is MOOT in part as to paragraph 60 in the Complaint and GRANTED in part as to the prayer for relief for punitive damages and the prayer for relief for attorneys' fees.