Case Number: 18STCV03092 Hearing Date: October 17, 2019 Dept: 1

TENTATIVE RULING

MOTION: Motion to Strike

HEARING DATE: October 17, 2019

CASE NUMBER: 18STCV03092

CASE NAME: Aguilar v. Los Angeles Dep’t of Water & Power

MOVING PARTY: Defendants Los Angeles Department of Water & Power and City of Los Angeles (collectively, “City”).

RESPONDING PARTY: Individual Plaintiffs

Background

On October 31, 2018, Plaintiffs Sheila Aguilar, et. al., filed the first complaint in this now consolidated complex proceeding seeking recovery for damages arising from the Camp Fire. Defendants Los Angeles Department of Water & Power and City of Los Angeles (collectively, “City”) move to strike references to Code of Civil Procedure section 733[1] and Civil Code section 3346 throughout Plaintiff’s First Amended Complaint on the ground that Government Code section 818 prohibits Plaintiffs from recovering double and treble statutory damages for lost timber against a public entity.

Discussion

When ruling on a demurrer or motion to strike, the Court accepts the truth of all properly pleaded material facts of the subject pleading, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-967 (1992), and draws reasonable “inferences favorable to the plaintiff, not the defendant.” Perez v. Golden Empire Transit Dist., 209 Cal. App. 4th 1228, 1239 (2012); see Doe v. Roman Catholic Bishop of Sacramento, 189 Cal. App. 4th 1423, 1427 (2010); Clauson v. Superior Court, 67 Cal. App. 4th 1253, 1255 (1998) (“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”). The Court may also consider matters properly subject to judicial notice, Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985), but need not accept “contentions, deductions or conclusions of fact or law.” Daar v. Yellow Cab Co., 67 Cal. 2d 695, 713 (1967).

Though the governing standards are similar, demurrers and motions to strike differ starkly in their respective purposes. Demurrers can only be used to reach entire causes of action. See Ellena v. Dep’t of Ins., 230 Cal. App. 4th 198, 206 (2014) (“A demurrer must be overruled if the complaint states a claim on any theory.”); Kong v. City of Hawaiian Gardens Redevelopment Agency, 108 Cal. App. 4th 1028, 1047 (2002) (“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”). On the other hand, the purpose of a motion to strike is “to reach certain kinds of defects in a pleading that are not subject to demurrer.” Baral v. Schnitt, 1 Cal. 5th 376, 388 (2016) (citing 5 Witkin, Cal. Proc. 5th, Pleading § 1008 (2008)) (internal quotation marks omitted) (emphasis added).

In general, California law provides for treble actual damages for the unlawful removal or damage of timber. See Civ. Proc. Code § 733 (“Any person who [removes] or otherwise injures any tree or timber on the land of another . . . , without lawful authority, is liable . . . for treble the amount of damages . . . .”); Civ. Code § 3346(a) (“For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, [subject to certain exceptions].”). However, “[n]otwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” Gov. Code § 818; Civ. Code § 3294 (permitting a plaintiff to recover punitive damages in tort when “the defendant has been guilty of oppression, fraud, or malice”).

The City contends that the treble damages provisions in the Code of Civil Procedure and Civil Code are punitive in nature and therefore prohibited by Government Code section 818. Plaintiffs counter that treble damages for timber can properly be recovered from a public entity because: (1) statutory damages are not prohibited by section 818 since statutory damages are, in principle, legally distinct from punitive damages awarded under Civil Code section 3294; and (2) those provisions do not primarily punish defendants in any event.

As an initial point, the Court disagrees with Plaintiffs’ first argument. While the Court agrees with Plaintiffs that exemplary damages and statutory damages “are distinct legal concepts, one of which is entrusted to the factfinder, the other to the Legislature,” Beeman v. Burling, 216 Cal. App. 3d 1586, 1598 (1990), the Court is unconvinced that this labelling alone disposes of whether section 818 immunity applies. Whether “the two are awarded based on the same [or different] standards,” Beeman, 216 Cal. App. 3d at 1597, is irrelevant to what purpose each serves. Indeed, it is well-established that “both exemplary damages and statutory damages serve to motivate compliance with the law and punish wrongdoers,” Id. at 1598 (emphasis added). Had the Legislature intended to only prohibit punitive damages under Civil Code section 3294, yet per se authorize statutory damages against a public entity, then it would not have added the additional clause further prohibiting all “damages imposed primarily for the sake of example and by way of punishing the defendant.” Gov. Code § 818.

Thus, the Court must assess whether the statutory damages imposed by sections 733 and 3346 would primarily punish the City. In Los Angeles County Metropolitan Transportation Authority v. Superior Court, 123 Cal. App. 4th 261, 271-77 (2004), the Court of Appeal concluded that the civil penalty provision in the Unruh Civil Rights Act, see Civ. Code § 52(b)(2), is not solely punitive and is therefore permissible in light of Government Code section 818. As the Court noted, “[m]ost civil penalties are necessarily punitive to some extent in that they aim to deter misconduct and may lead to recoveries in excess of an otherwise available measure of compensation.” 123 Cal. App. 4th at 272. Thus, the Court held that “civil penalties are not punitive for section 818 purposes if some other remedial aim predominates.” Id.; accord Kizer v. County of San Mateo, 53 Cal. 3d 139, 145 (1991) (“As we explained in Younger, damages which are punitive in nature, but are not simply or solely punitive in that they fulfill legitimate and fully justified compensatory functions, have been held not to be punitive damages within the meaning of Government Code section 818.”).

Plaintiffs concede that Code of Civil Procedure section 733 and Civil Code section 3346 are at least partially “penal and punitive,” Swall v. Anderson, 60 Cal. App. 2d 825, 828 (1943), in nature. Accordingly, to escape the proscription of section 818, sections 733 and 3346 must “fulfill legitimate and fully justified compensatory functions,” Kizer, 53 Cal. 3d at 145. The caselaw Plaintiffs rely on cuts against them on this point. One key distinguishing trait of Code of Civil Procedure section 733 and Civil Code section 3346 is that the measures of damages in those sections are not fixed amounts set by statute. Cf., e.g., People ex. Rel. Younger v. Superior Court, 16 Cal. 3d 30, 37-39 (holding that Water Code section 13350 civil penalties for oil spills are permissible under Government Code section 818 because they partially compensate for unquantifiable damages); Wat. Code § 13350(d)(1)-(2) (“The court may impose civil liability either on a daily basis [of up to $15,000 a day] or on a per gallon basis [of up to $20 a gallon], but not on both.”); Los Angeles Cnty. Metro. Transp. Auth., 123 Cal. App. 4th at 271-77 (discussing civil penalties under Civil Code section 52(b)(2)); Civ. Code § 52(b)(2) (“A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 . . . .”). Rather, the amounts are simply treble a individual Plaintiff’s actual damages. See Civ. Proc. Code § 733 (“[T]reble the amount of damages . . . .”); Civ. Code § 3346(a) (“[T]hree times such sum as would compensate for the actual detriment . . . .”).

In that regard, the Court is unconvinced that these sections are compensatory in nature since any award under them requires an assessment of (and provides for recovery greater than) the Plaintiff’s actual losses. Cf. Los Angeles Cnty. Metro. Transp. Auth., 123 Cal. App. 4th at 276 (“[T]he civil penalty mandated by section 52, subdivision (b)(2), appears designed to ensure that the plaintiff will receive at least a minimum amount of compensation, even though there are little or no actual damages sustained.”). Indeed, the Court of Appeal has stated just as much when explaining how such damages are calculated: “[T]he damages to be doubled or trebled pursuant to Civil Code section 3346 are those determined by the trier of fact to constitute just compensation within the overall limits of reasonableness, regardless of what specific measure of damages is used.” Heninger v. Dunn, 101 Cal. App. 3d 858, 869 (1980). Thus, the excess amount recovered over a Plaintiffs’ actual damages appears to serve some other non-compensatory purpose. The Court is convinced that this other purpose is “imposed primarily for the sake of example and by way of punishing the [City].” Gov. Code § 818.

Plaintiffs’ argument that the sections 733 and 3346 are nevertheless outside the ambit of Government Code section 818 because “[t]he obvious purpose of [both] code sections is to protect trees and timber on private land,” Swall, 60 Cal. App. 2d at 828, is unpersuasive. To support their contention, Plaintiffs themselves note that the “‘purpose of [each section] is to educate blunderers (persons who mistake location of boundary lines) and to discourage rogues (persons who ignore boundary lines), to protect timber from being cut by others than the owner.’” Heninger, 101 Cal. App. 3d at 868 (quoting Gould v. Madonna, 5 Cal. App. 3d 404, 408 (1970)) (“Statutes providing for recovery of double or treble damages for injuries to trees are intended to make timber appropriation unprofitable.”); see Pls.’ Opp’n, 7:24-8:1.

Thus, even if sections 733 and 3346 have the intended effect of protecting trees, they do so only by virtue of punishing “rogues” and making examples of “blunderers.” If Plaintiffs’ position prevailed, it would render section 818 effectively toothless, since any statutory damages provision or civil penalty that is punitive in nature—even primarily so—could simply be recast in light of its conduct-regulating effect to avoid section 818’s proscription. Such a result cannot stand.

This approach to double and treble damages is quintessentially punitive in nature, and the Court is unable to see any dual or other purpose that would be permissible under Government Code section 818. Unlike the Court in Los Angeles County Metropolitan Transportation Authority, this Court cannot determine from “legislative history that section[s 733 and 3346] ha[ve any other] important nonpunitive purposes.” 123 Cal. App. 4th at 270. Without that, the Court has no reasonable basis to find that sections 733 and 3346 were enacted to either “provide increased compensation to the plaintiff,” id., or “to encourage private parties to seek redress through the civil justice system by making it more economically attractive for them to sue,” id. at 270-71. For that reason, the requests for double and treble damage against the City must be stricken.

Conclusion

Accordingly, the City’s motion to strike is GRANTED without leave to amend.

[1] The Complaint erroneously refers to Civil Code section 733.