Judge Thomas D. Long, Case Number: 22STCV25545, Date: 2023-05-02 Tentative Ruling

On August 8, 2022, Plaintiff Shalimar Luciano filed this action against Defendants Spalding Drive LLC, Pedram Ben-Cohen, and Negeen Ben-Cohen (collectively, “Defendants”), alleging (1) trespass to chattels; (2) breach of the implied covenant of quiet enjoyment; (3) negligence; and (4) constructive eviction.

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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

A. The First Cause of Action Does Not Allege Facts Showing That the Plants Were Plaintiff’s Chattels.

“Trespass to chattel, although seldom employed as a tort theory in California (indeed, there is nary a mention of the tort in Witkin’s Summary of California Law), lies where an intentional interference with the possession of personal property has proximately caused injury.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566.) “[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property ‘not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.’” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350.)

Defendants argue that Plaintiff cannot allege trespass to chattels because the bushes, trees, and other plants were not her chattels. (Demurrer at pp. 6-8.)

Plaintiff alleges that she planted flowers, trees, and approximately 40 rose bushes on the property. (Complaint ¶ 7; see Complaint ¶¶ 9-10.) “A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs . . . .” (Civ. Code, § 660.) When a person affixes her property to the land of another without an agreement permitting her to remove it, the thing affixed belongs to the owner of the land. (Civ. Code, § 1013.) Therefore, when the plants attached their roots to the property, they presumptively became affixed to the land and the property of the landowner, not Plaintiff.

Plaintiff argues that her prior landlords approved the landscaping, and they told Defendants that the plants belonged to Plaintiff. (Opposition at pp. 3-4; see Complaint ¶¶ 10, 12, 16.) However, Plaintiff still does not allege the existence of an agreement permitting Plaintiff to remove the plants. (See Civ. Code, § 1013.)

Plaintiff also argues that the plants are chattel because Plaintiff transported them to the property. (Opposition at p. 3; see Complaint ¶ 9.) This does not change the fact that the plants became affixed to the property when Plaintiff planted them into the property’s ground.

Finally, Plaintiff argues, “In the landlord-tenant context, courts tend to favor the tenant and conclude that the item is not a fixture: i.e., it is presumed that the tenant intends the item to benefit his or her own use of the premises and does not intend to incorporate it permanently into the realty.” (Opposition at p. 4.) Plaintiff’s cited cases of Pomeroy v. Bell (1897) 118 Cal. 635 and O.L. Shafter Estate Co. v. Alvord (1906) 2 Cal.App. 602 involve removal of items affixed to the property where removal could be effected without injury to the premises, under Civil Code section 1019. Although Daniger v. Hunter (1952) 114 Cal.App.2d 796, 798 does not directly cite Civil Code section 1019, that court found that a sink was chattel, like a stove or sink, because the sink was “part of a unit which is so constructed as to be easily disconnected and removed without damage to the realty or the article itself.” Similarly, Andrews v. First Realty Corp. (1935) 6 Cal.App.2d 407 (cited in Daniger) involved the question of whether refrigerating equipment was a fixture or personal property based on its ability to be removed without damage to the property.

Here, there are no factual allegations showing that the plants were chattels that could be removed without damaging Defendants’ property. The plants’ transport to the property in December 2002 does not show that they still could have been removed without damaging the property as of November 2021. (See Complaint ¶¶ 6, 9, 21.) To the contrary, the Complaint alleges that Defendants destroyed “full-grown trees and bushes.” (Complaint ¶ 21.) One tree that Plaintiff “cultivated from infancy” was reduced to a “bare stump[].” (Complaint ¶ 22.)

Because the plants were attached to Defendants’ land by roots, they are presumptively affixed and became the property of the landowner in the absence of an agreement permitting Plaintiff to remove the plants. (See Civ. Code, §§ 660, 1013.) There are no facts pleaded to show that the plants were nevertheless chattels because they could be removed without injuring the land. (Civ. Code, § 1019.)

B. The Second Cause of Action Does Not Allege Interference With Plaintiff’s Quiet Enjoyment of the Property She Possessed.

“An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.” (Civ. Code, § 1927.) “In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.)

Plaintiff alleges that Defendants breached the implied covenant by using poison in the garden and destroying the garden. (Complaint ¶ 45.) However, as discussed with the first cause of action, the Complaint lacks facts showing that the garden was Plaintiff’s property and that she had a right of possession. The harm that Plaintiff alleges is harm only to the garden, not to Plaintiff’s use and enjoyment of the residence itself (where it appears undisputed that Plaintiff did have a right of possession).

A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Defendants argue that they could not breach any duty to Plaintiff by “cutting, pruning, or even destroying” trees and bushes that were their property. (Demurrer at p. 9.)

Plaintiff alleges that “Defendants, as owners, lessors, managers, and landlords, owed Plaintiff a duty of care to allow her to harvest the plants and make her botanical creams, herbal remedies, and flower essences used to support her livelihood.” (Complaint ¶ 55.) As a result of Defendants destroying the garden, Plaintiff suffered personal injury, property damages, emotional distress, and mental anguish. (Complaint ¶¶ 58-59.)

Plaintiff cites no authority imposing a legal duty that requires the landlord to allow a tenant to harvest plants that are presumptively the landlord’s property. In the absence of facts showing that the plants were in fact Plaintiff’s property or that there was an agreement for Plaintiff to harvest the plants, Defendants had no legal duty.

D. The Fourth Cause of Action Lacks Facts to Support a Constructive Eviction.

A constructive eviction is a breach of the covenant of quiet enjoyment that compels a tenant to vacate. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 897.)

Plaintiff alleges that Defendants rendered the property unfit for the purpose for which it was leased when Defendants destroyed the garden. (Complaint ¶ 61.) Plaintiff does not attach a copy of her lease or allege with specificity the terms of the lease, so it is not apparent that gardening was the purpose for which Plaintiff leased the property. Instead, the lease appears to have been for residential property where Plaintiff lived, where there also happened to be room for a garden. (See Complaint ¶¶ 6-7.) As discussed above, there are no facts showing that Plaintiff had a right to possession of the plants and garden, and Plaintiff does not allege interference with the conditions of the residence. Without facts to establish a breach of the implied covenant of quiet enjoyment, the cause of action for constructive eviction fails.

The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)

Defendants move to strike paragraphs 30, 42, 52, and Prayer for Relief paragraph 2, all relating to punitive damages. “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) The allegations of Defendants destroying a garden on their property do not rise to this level.

Additionally, a corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) There are no such allegations for Defendant Spalding Drive LLC.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court