Judge: Teresa A. Beaudet, Case: 24STCV13657, Date: 2024-10-21 Tentative Ruling

Case Number: 24STCV13657    Hearing Date: October 21, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Min Wong (“Plaintiff”) filed this action on May 31, 2024 against Defendant Teddy Chang (“Defendant”). The Complaint alleges causes of action for (1) trespass,

(2) violation of “Los Angeles Municipal Code Sec. 46.02,” (3) “wrongful tree removal under California Civil Code,” (4) negligence, (5) negligent hiring and supervision, (6) private nuisance, (7) intentional infliction of emotional distress, (8) negligent infliction of emotional distress, and (9) conversion.

            The Complaint alleges, inter alia, that Plaintiff is the owner of real property located at 3045 Chadwick Dr, Los Angeles, CA 90032 (the “Property”). (Compl., ¶ 1.) Defendant is the owner of real property located at 5000 Templeton Street, Los Angeles, CA, which is adjacent to Plaintiff’s Property. (Compl., ¶ 2.) Plaintiff’s Property includes a 50-foot California Live Oak tree (the “Tree”) that was located entirely within the boundaries of the Property. (Compl., ¶ 6.)

            Plaintiff alleges that “[o]n or around April 28, 2023, without any prior notice, permission, or consent from Plaintiff, Defendant hired workers who trespassed onto Plaintiff’s Property and proceeded to cut down the Tree in its entirety.” (Compl., ¶ 8.) “Plaintiff’s wife discovered the felled Tree on April 29, 2023, while watering plants in the backyard of the Property.” (Compl., ¶ 10.) “On April 30, 2023, three of the workers hired by Defendant returned to the Property to cut the fallen Tree into smaller pieces.” (Compl., ¶ 11.) “Plaintiff’s wife spoke with two of the workers, Victor and Almando, who informed her that Defendant had ordered the Tree’s removal because Defendant intended to sell his property and build a large apartment complex.” (Compl., ¶ 12.) “On May 3, 2023, Plaintiff hired Aztec Land Surveys, Inc. to conduct a professional survey of the Property, which confirmed that the Tree was located entirely within Plaintiff’s property lines.” (Compl., ¶ 14.)

            Defendant now demurs to the second, third, sixth, seventh, and eighth causes of action of the Complaint. Defendant also moves to strike portions of the Complaint. Plaintiff opposes both.

Demurrer

A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B.    Second Cause of Action for Violation of Los Angeles Municipal Code Section 46.02

In the second cause of action of the Complaint, Plaintiff alleges that “Los Angeles Municipal Code Sec. 46.02 prohibits the removal or destruction of protected trees, including California Live Oaks, without a permit.” (Compl., ¶ 21.) Plaintiff alleges that “Defendant violated Los Angeles Municipal Code Sec. 46.02 by causing the removal and destruction of Plaintiff’s protected California Live Oak tree without obtaining the necessary permit.” (Compl., ¶ 22.)

In the demurrer, Defendant argues that “there is no private cause of action for an alleged violation of a municipal code.” (Demurrer at p. 7:9-10.) Defendant cites to, inter alia, Cohen v. Superior Court (2024) 102 Cal.App.5th 706, 711, where the Court of Appeal noted that “Government Code section 36900, subdivision (a) provides: ‘Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.’” (Emphasis in original.) The Court of Appeal in Cohen found that “[h]aving reviewed the statute’s plain language and legislative history, we conclude the Legislature only intended section 36900 to grant city authorities—not all private parties—the right to redress violations of municipal ordinances via either criminal prosecution or civil action.” (Ibid.)  

However, the Court notes that on September 18, 2024, the California Supreme Court granted a petition for review in Cohen. (See Cohen v. S.C. (Cal. Sept. 18, 2024) No. S285484, 2024 WL 4230503, “[t]he petition for review is granted…The issue to be briefed and argued is limited to the following: Does Government Code section 36900, subdivision (a) confer upon private citizens a right to redress violations of municipal ordinances?) The California Supreme Court noted that “[p]ending review, the opinion of the Court of Appeal, which is currently published at 102 Cal.App.5th 706, 322 Cal.Rptr.3d 62, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937, to choose between sides of any such conflict.” Here, however, Defendant does not appear to cite to Cohen v. Superior Court, supra, 102 Cal.App.5th 706 for the limited purpose of establishing the existence of a conflict in authority.
            Defendant also cites to Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596, where the Court of Appeal noted that “[a] violation of a state statute does not necessarily give rise to a private cause of action. Instead, whether a party has a right to sue depends on whether the Legislature has manifested an intent to create such a private cause of action under the statute.” (Internal quotations and citations omitted.) But here, Plaintiff’s second cause of action does not allege a violation of a state statute. As discussed, the cause of action alleges a violation of “Los Angeles Municipal Code Sec. 46.02.”

Moreover, in light of the fact that the California Supreme Court has granted review in Cohen to determine whether “Government Code section 36900, subdivision (a) confer[s] upon private citizens a right to redress violations of municipal ordinances,” the Court declines to sustain Defendant’s demurrer to the second cause of action on the grounds that “there is no private cause of action for an alleged violation of a municipal code.” (See Cohen v. S.C. (Cal. Sept. 18, 2024) No. S285484, 2024 WL 4230503; Demurrer at p. 7:9-10.)

In light of the foregoing, the Court overrules Defendant’s demurrer to the second cause of action of the Complaint.

C.    Third Cause of Action for “Wrongful Tree Removal Under California Civil Code”

In the third cause of action, Plaintiff alleges, inter alia, that “Defendant wrongfully caused the removal and destruction of Plaintiff’s Tree without permission or justification…Defendant’s actions in removing the Tree were willful and malicious, justifying an award of treble damages under California Civil Code sections [sic] 3346.” (Compl., ¶¶ 26-27.)

Civ. Code, section 3346, subd. (a) provides that “[f]or 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.”

            In the demurrer, Defendant argues that “Plaintiff pleads conclusory allegations, including Paragraph 26: ‘Defendant wrongfully caused the removal and destruction of Plaintiff’s Tree without permission of justification:’, and Paragraph 27: ‘Defendant’s actions in removing the tree were willful and malicious justifying an award of treble damages under California Civil Code section 3346.’ These allegations provide nothing but conclusory allegations…” (Demurrer at pp. 7:26-8:2.) Defendants contend that “Plaintiff provides no facts to support such allegations.” (Demurrer at p. 8:3-4.)

            But as set forth above, Plaintiff alleges, inter alia, that “[o]n or around April 28, 2023, without any prior notice, permission, or consent from Plaintiff, Defendant hired workers who trespassed onto Plaintiff’s Property and proceeded to cut down the Tree in its entirety.” (Compl., ¶ 8.) Plaintiff alleges that “[o]n April 30, 2023, three of the workers hired by Defendant returned to the Property to cut the fallen Tree into smaller pieces.” (Compl., ¶ 11.) Plaintiff further alleges that “[o]n May 3, 2023, Plaintiff hired Aztec Land Surveys, Inc. to conduct a professional survey of the Property, which confirmed that the Tree was located entirely within Plaintiff’s property lines.” (Compl., ¶ 14.)          Plaintiff also notes that the Complaint alleges that “Defendant had ordered the Tree’s removal because Defendant intended to sell his property and build a large apartment complex.” (Compl., ¶ 12.) Plaintiff asserts that “[t]his allegation supports an inference that Defendant acted willfully and with improper motive.” (Opp’n at p. 4:20-22.)

            Based on the foregoing, the Court does not find that Defendant has shown that the allegations of the third cause of action are “conclusory.” Accordingly, the Court overrules Defendant’s demurrer to the third cause of action of the Complaint.[1]

D.    Sixth Cause of Action for Private Nuisance

Next, Defendant argues that “Plaintiff’s sixth cause of action for ‘private nuisance’ is duplicative of his negligence causes of action and therefore surplusage and demurrable.” (Demurrer at p. 8:11-13.) Defendant cites to El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349, where the Court of Appeal noted that “the factual allegations incorporated into the nuisance cause of action involved negligence and defective workmanship. Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. The trial court reasonably found that Escorial’s nuisance cause of action was merely a clone of the first cause of action using a different label.” (Internal citations omitted.)[2]

However, although Defendant argues that the private nuisance cause of action is duplicative of the negligence “causes of action,” Defendant does not compare the allegations of these causes of action. In the fourth cause of action for negligence, Plaintiff alleges that “Defendant owed a duty of care to Plaintiff to ensure that any actions taken with respect to trees on or near the property line would not cause harm to Plaintiff’s Property or Plaintiff’s trees…Defendant breached this duty of care by failing to ascertain the location of the Tree, failing to obtain the necessary permits for tree removal, and causing the destruction of Plaintiff’s Tree without permission or justification.” (Compl., ¶¶ 30-31.) To the extent Defendant’s argument concerns the fifth cause of action for negligent hiring and supervision, this cause of action alleges that “Defendant had a duty to exercise reasonable care in the hiring and supervision of the workers he employed to perform work on or near the property line between his property and Plaintiff’s Property…Defendant breached this duty by failing to properly screen, train, and supervise the workers he hired, resulting in the wrongful removal and destruction of Plaintiff’s Tree.” (Compl., ¶¶ 34-35.)

In the sixth cause of action for private nuisance, Plaintiff alleges that “Defendant’s actions in causing the removal and destruction of Plaintiff’s Tree have created a substantial and unreasonable interference with Plaintiff’s use and enjoyment of the Property…The removal of the Tree has decreased the aesthetic value and privacy of the Property, and has increased the risk of soil erosion and landslides.” (Compl., ¶¶ 38, 39.) The Court does not find that the private nuisance cause of action is duplicative of Plaintiff’s causes of action for negligence or negligent hiring and supervision.

Based on the foregoing, the Court overrules Defendant’s demurrer to the sixth cause of action of the Complaint.

E.     Seventh Cause of Action for Intentional Infliction of Emotional Distress

Defendant asserts that the seventh cause of action fails to state facts sufficient to constitute a cause of action. “The elements of a prima facie case for the tort of intentional infliction of emotional distress [are] (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.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 (internal quotations and citation omitted).) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid.)

In the demurrer, Defendant argues that “[a]s to the claim of Intentional Infliction of Emotional distress –Plaintiff merely state [sic] the Defendant’s conduct was ‘outrageous’ – a purely conclusory allegation with no facts to support it at all.” (Demurrer at p. 10:2-4, emphasis omitted.) But Plaintiff alleges that “Defendant’s conduct in causing the removal and destruction of Plaintiff’s cherished Tree was outrageous and exceeded all bounds of decency tolerated in a civilized society.” (Compl., ¶ 42.) Plaintiff alleges that “[t]he Tree…provided significant aesthetic, environmental, and property value benefits to the Plaintiff and the Property.” (Compl., ¶ 7.) The Court finds that Plaintiff has adequately alleged “outrageous conduct” for purposes of Plaintiff’s cause of action for intentional infliction of emotional distress.

Defendant also argues that “Plaintiff cannot plead a claim for emotional distress based on property damage or the removal of the tree.” (Demurrer at p. 11:20-21.) Defendant cites to Erlich v. Menezes (1999) 21 Cal.4th 543, 554, where the California Supreme Court noted that “[t]he fact that emotional distress damages may be awarded in some circumstances does not mean they are available in every case in which there is an independent cause of action founded upon negligence. No California case has allowed recovery for emotional distress arising solely out of property damage.” (Internal quotations and citations omitted.)

In the opposition, Plaintiff cites to Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337, 1348-1349, where the Court of Appeal noted that “[o]ur 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…[‘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’]…” The Hensley Court noted that “[t]his is so even where the trespass or nuisance involves solely property damage.” (Id. at p. 1349.) The Hensley Court also noted as follows with respect to Erlich v. Menezes, supra, 21 Cal.4th 543:

“SDG&E points in isolation to Erlich’s statement that “‘[n]o California case has allowed recovery for emotional distress arising solely out of property damage.’” (Erlich v. Menezes, supra, 21 Cal.4th at p. 554, quoting Cooper v. Superior Court, supra, 153 Cal.App.3d at p. 1012.) In making that statement, Erlich was observing that even if the defendant’s negligence gave rise to a sufficient independent duty to the plaintiffs, such a finding would not entitle them to emotional distress damages: “‘The fact that emotional distress damages may be awarded in some circumstances [citation] does not mean they are available in every case in which there is an independent cause of action founded upon negligence.’” (Erlich, at p. 554, italics added.) Because the plaintiffs’ mental suffering due to the negligent construction of the house “derive[d] from an inherently economic concern,” there was no precedent for an award of emotional distress damages based on a finding of the defendant’s negligence. (Id. at p. 558.) Erlich pertains only to actions for negligent breaches of contract or negligence. It does not address nuisance or trespass cases, or whether emotional distress damages are available in such cases at all. Nothing in Erlich precludes or limits the Hensleys from seeking emotional distress damages.” (Hensley v. San Diego Gas & Electric Co., supra, 7 Cal.App.5th at pp. 1358-1359.)

In light of this authority, the Court does not find that Defendant has shown that Plaintiff may not allege a claim for emotional distress in this action.

Defendant also argues that “Plaintiff has pled no facts evidencing the claimed severe emotional distress. Instead, Plaintiff simply pleads conclusory averments that Plaintiff suffered ‘severe emotional distress, mental anguish’ and will continue to do so in the future.” (Demurrer at p. 11:4-6, emphasis omitted.) Defendant cites to Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004, where the California Supreme Court noted that “in intentional infliction actions, recovery is allowed only for severe or extreme emotional distress. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Internal quotations and citation omitted.)

In the opposition, Plaintiff asserts that “Plaintiff has alleged that Defendant’s conduct caused her to suffer severe emotional distress, including shock, anxiety, and distress over the loss of the cherished tree.” (Opp’n at p. 7:1-2.) But the Complaint does not appear to contain such allegations regarding shock and anxiety. Rather, in the seventh cause of action, Plaintiff alleges that “[a]s a direct and proximate result of Defendant’s intentional infliction of emotional distress, Plaintiff has suffered and will continue to suffer severe emotional distress, mental anguish, and other damages in an amount to be proven at trial.” (Compl., ¶ 44.) The Court agrees with Defendant that this allegation is conclusory.

Based on the foregoing, the Court sustains Defendant’s demurrer to the seventh cause of action of the Complaint, with leave to amend.

F.     Eighth Cause of Action for Negligent Infliction of Emotional Distress

In the demurrer, Defendant asserts that “Plaintiff may not state a separate claim for negligent infliction of emotional distress.” (Demurrer at p. 11:8-9.) Defendant cites to Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, where the California Supreme Court noted that “[w]e have repeatedly recognized that [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.” (Internal quotations and emphasis omitted; see also Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 876 [“[n]egligent infliction of emotional distress is not an independent tort…”].) In the opposition, Plaintiff does not appear to cite any legal authority demonstrating that Plaintiff may allege an independent cause of action for negligent infliction of emotional distress. Plaintiff acknowledges that “NIED is not a distinct tort.” (Opp’n at p. 7:15-16.)

Based on the foregoing, the Court sustains Defendant’s demurrer to the eighth cause of action of the Complaint, without leave to amend.

            Motion to Strike

A court may strike any “¿irrelevant, false, or improper matter¿inserted in any pleading¿” or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿¿Code Civ. Proc., § 436¿¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)¿¿ 

Defendant moves to strike a number of allegations from the Complaint. First, Defendant moves to strike Plaintiff’s punitive damages allegations. Plaintiff seeks punitive damages in connection with the first cause of action for trespass. (Compl., ¶ 19.) In addition, Plaintiff’s prayer for relief alleges that Plaintiff seeks punitive damages. (Compl., Prayer for Relief, ¶ 3.)

The Court notes that Defendant’s motion discusses law applicable to punitive damages, but Defendant does not appear to apply such law to the allegations of the Complaint here. (See Mot. at pp. 6:12-7:20.) Defendant does not appear provide any analysis as to why Plaintiff’s punitive damages allegations should purportedly be stricken. Defendant simply concludes that the allegations are “[not] sufficient to state a claim for punitive damages.” (Mot. at p. 4:15.) The Court does not find that Defendant has shown that Plaintiff’s punitive damages allegations should be stricken.

Next, Defendant moves to strike paragraphs 42, 43, and 44 of the Complaint. These paragraphs are contained in the seventh cause of action for intentional infliction of emotional distress. As set forth above, the Court sustains Defendant’s demurrer to the seventh cause of action, with leave to amend. Thus, the Court denies Defendant’s motion to strike paragraphs 42, 43, and 44 of the Complaint as moot.

Defendant also moves to strike the allegation that “Defendant wrongfully caused the removal and destruction of Plaintiff’s Tree without permission or justification.” (Compl., ¶ 26.) Defendant cites to Smithson v. Sparber (1932) 123 Cal.App. 225, 232, where the Court of Appeal found that “[a] reading of the complaint from beginning to end indicates, as we have already said, a claimed case of negligence and nothing more. Whatever words are found in the pleading (such, for instance, as ‘carelessly, negligently, wilfully, wrongfully, and in fraud of the rights of these plaintiffs’) going to state the pleader’s conclusions, may be disregarded.” But the Court does not see how this shows that the entirety of paragraph 26 of the Complaint should be stricken. Moreover, the motion does not appear to contain any analysis specifically discussing the allegations of this paragraph of the Complaint. The Court denies Defendant’s motion to strike as to paragraph 26.  

Lastly, Defendant moves to strike Plaintiff’s request “[f]or attorney’s fees as permitted by law.” (Compl., Prayer for Relief, ¶ 6.) However, the motion does not appear to contain any argument as to why this allegation should be stricken. Thus, the Court denies Defendant’s motion to strike Plaintiff’s request for attorney’s fees.

Based on the foregoing, the Court denies Defendant’s motion to strike in its entirety.

Conclusion

Based on the foregoing, the Court sustains Defendant’s demurrer to the seventh cause of action of the Complaint, with leave to amend. The Court sustains Defendant’s demurrer to the eighth cause of action of the Complaint without leave to amend. The Court overrules Defendant’s demurrer to the second, third, and sixth causes of action of the Complaint.

Defendant’s motion to strike is denied.

Plaintiff is ordered to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders Defendant to file and serve his answer to the Complaint within 30 days of the date of this order.

Defendant is ordered to give notice of this order.

DATED:  October 21, 2024                           ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court