Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Allison Armour vs Bruce Tamao Hayashi et al
Case No: 19CV03456
Hearing Date: Fri Feb 21, 2020 9:30

Nature of Proceedings: Demurrer and Motion to Strike

TENTATIVE RULING:

(1) The demurrer of defendants Bruce Tamao Hayashi and Janice Hayashi to the third and fourth causes of action of the first amended complaint of plaintiff Allison Armour is overruled.

(2) The motion of defendants Bruce Tamao Hayashi and Janice Hayashi to the strike portions of the first amended complaint of plaintiff Allison Armour is denied in its entirety.

(3) Defendants Bruce Tamao Hayashi and Janice Hayashi shall file and serve their answer to the first amended complaint on or before March 9, 2020.

Background:

As alleged in the first amended complaint (FAC) of plaintiff Allison Armour: Plaintiff Armour and defendants Bruce Tamao Hayashi and Janice Hayashi (collectively, the Hayashis) are neighbors owning adjoining parcels of real property. (FAC, ¶ 1.) Armour’s property is located at 1291 West Mountain Drive, Santa Barbara. (FAC, ¶ 4.) The Hayashis’ property is located at 965 West Mountain Drive. (FAC, ¶ 7.) Armour’s property is located at a higher elevation, providing it with unobstructed views of the Pacific Ocean, the City of Santa Barbara, and the surrounding hillsides. (FAC, ¶ 1.)

Armour began living at her property in the fall of 2013. (FAC, ¶ 12.)

The Hayashis began living permanently on their property in the winter of 2016. (FAC, ¶ 13.)

Sometime in the spring of 2017, the Hayashis planted approximately twenty-five sycamore trees along the property line between the parties’ respective properties where there is also a fence. (FAC, ¶ 14.) Sycamore trees grow approximately 100 feet in height and will ultimately result in the complete obstruction of Armour’s view. (Ibid.) Armour approached Ms. Hayashi to express her concern that the trees would eventually obstruct Armour’s view, but was rebuffed by Ms. Hayashi. (FAC, ¶ 15.)

After that encounter, the Hayashis became openly hostile to Armour. (FAC, ¶ 16.) Mr. Hayashi began standing behind the fence and repeatedly staring into Armour’s home, including her bedroom, for long periods of time, at all hours of the day. (Ibid.) On multiple occasions, Mr. Hayashi glared at Armour’s guests while she was entertaining, making her guests feel uncomfortable and unsafe. (FAC, ¶ 17.) As a consequence, Armour substantially reduced the amount of social activities she conducts at her home and the time spent outdoors. (Ibid.) Mr. Hayashi would also leave his tractor running for long periods of time, sometimes for as long as five hours, on the property line as close as possible to Armour’s bedroom. (FAC, ¶ 18.)

The Hayashis at the same time stopped trimming the hedge line, pepper trees, and large bougainvillea situated along the property line. (FAC, ¶ 19.) By the summer of 2017, a full year had passed without trimming. (Ibid.) On July 19, 2017, Armour instructed her gardener to trim the bougainvillea that had grown onto Armour’s property. (FAC, ¶ 20.) Mr. Hayashi came rushing out of the house, trespassed upon Armour’s property, and yelled at the gardener not to touch the bougainvillea. (Ibid.) Mr. Hayashi returned to his home and shortly thereafter a shot was fired. (FAC, ¶ 21.) The police were called and Mr. Hayashi was later arrested. (FAC, ¶¶ 21-22.) On December 14, 2017, Mr. Hayashi pled no contest to the discharge of a firearm within city limits and, in addition to criminal probation, the court issued a criminal protective order against Mr. Hayashi prohibiting him from further harassing Armour. (FAC, ¶ 24.)

The Hayashis continued to engage in conduct intended to interfere with Armour’s quiet enjoyment of her property. (FAC, ¶ 25.) Mr. Hayashi continued to park his tractor along the property line for days at a time and would extend the tractor’s arm as high into the air as possible to obstruct views. (Ibid.) Mr. Hayashi would leave a radio playing at an unreasonably high volume in a window pointed at Armour’s property. (Ibid.) The Hayashis also placed a camera on a tall pole and pointed the camera toward Armour’s outdoor pool. (Ibid.)

In April 2018, the Hayashis dug up two 5,000-gallon water tanks that had been buried on their property. (FAC, ¶ 27.) The Hayashis then imported large quantities of earth, which were used to elevate the water tanks to further obstruct the view from Armour’s property. (Ibid.) The Hayashis purchased an additional 10,000-gallon water tank and arranged the tanks above-ground to obstruct Armour’s views. (Ibid.) The Hayashis obtained a permit from the City of Santa Barbara for the placement of the new water tank without giving required notice to Armour so as to deny Armour the opportunity to oppose the application. (Ibid.) The Hayashis have expressly and publicly admitted that their intent in placing the water tanks was malicious with the intent of harming Armour. (FAC, ¶ 28.)

The Hayashis have also imported massive amounts of earth, causing noise, dirt, dust, and other debris making it difficult for Armour to enjoy her outdoor space and views. (FAC, ¶¶ 29-30.)

On July 2, 2019, Armour filed her original complaint in this action against the Hayashis.

On October 15, 2019, the Hayashis filed their original cross-complaint against Armour. On November 8, the Hayashis filed their first amended cross-complaint.

On November 20, 2019, Armour filed her FAC. The FAC asserts four causes of action: (1) assault; (2) intentional infliction of emotional distress; (3) private nuisance; and, (4) spite fence (Code Civ. Proc., § 841.4).

On December 10, 2019, Armour filed her answer to the first amended cross-complaint.

On December 16, 2019, the Hayashis filed this demurrer and motion to strike portions of the FAC. The demurrer and motion to strike are opposed by Armour.

Analysis:

(1) Request for Judicial Notice

In support of their demurrer and motion to strike, the Hayashis request that the court take judicial notice of the City of Santa Barbara building permit for the installation of the water tanks on the Hayashi property. (Request for Judicial Notice, exhibit C.) The court will grant the request on the grounds that the document is an official record of the City of Santa Barbara. (See Evid. Code, § 452, subd. (h); Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524, fn. 3.)

(2) Demurrer

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

The Hayashis demur to the third and fourth causes of action. Armour’s third cause of action is for private nuisance.

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

The Hayashis argue that Armour does not have a right to an unobstructed view over adjoining property and so any obstruction, particularly one built pursuant to a building permit, cannot constitute a nuisance. The Hayashis further argue that potential growth of trees does not state a present action for a nuisance.

“[L]iability for nuisance does not require proof of damage to the plaintiff’s property; proof of interference with the plaintiff’s use and enjoyment of that property is sufficient. [Citation.] … [L]iability for private nuisance requires proof of two additional elements. … [¶] The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ [Citations.] The Restatement (Second) recognizes the same requirement as the need for proof of ‘significant harm’ [citation], which it variously defines as ‘harm of importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ [citation] and an invasion that is ‘definitely offensive, seriously annoying or intolerable’ [citation]. The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? [Citation.] ‘If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.’ [Citation.] This is, of course, a question of fact that turns on the circumstances of each case.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937–938, italics omitted.)

“The second additional requirement for nuisance is superficially similar but analytically distinct: ‘The interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’ [Citations.] The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account. [Citation.] Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but ‘whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.’ [Citation.] And again this is a question of fact: ‘Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case.’ [Citations.]” (San Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at pp. 938–939.)

It is unnecessary for the court to dissect the multiple allegations of conduct to determine what may separately constitute a legally cognizable private nuisance. Armour has alleged conduct, including particularly the running of the tractor, construction dust and debris, and gunfire designed to discourage Armour’s use of her outdoor space, which conduct is by itself sufficient to plead a cause of action for private nuisance. (See, e.g., Schild v. Rubin (1991) 232 Cal.App.3d 755, 764 [“Excessive and inappropriate noise may under certain circumstances constitute an interference with the present enjoyment of land amounting to a nuisance.”].) The demurrer to the third cause of action will be overruled. (See also Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”].)

Armour’s fourth cause of action is for violation of the spite fence statute, Civil Code section 841.4, which provides: “Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.”

The difficulty in addressing the demurrer to this cause of action is that neither party adequately discusses how or to what extent that the allegations of the FAC do or do not meet the definition of section 841.4. “The spite fence statute expresses the judgment of the Legislature that a fence—that is, a structure built to separate or mark the boundary between two adjoining parcels—does not need to be more than 10 feet high to serve that purpose.” (Wilson v. Handley (2002) 97 Cal.App.4th 1301, 1309.) Generally, “what makes a spite fence a nuisance under section 841.4 is not merely that it obstructs the passage of light and air, but that it does so unnecessarily for the malicious purpose of annoyance.” (Id. at p. 1311.) However, “[s]ection 841.4 does not specify that the fence must interfere with something more than light and air to be a nuisance ….” (Ibid.)

Trees or other living things can fall within the definition of section 841.4. (Wilson v. Handley, supra, 97 Cal.App.4th at p. 1310.) .) While trees that may, but have not yet grown taller than 10 feed would not be within the definition of section 841.4, Armour alleges some trees, shrubs, and other plants that unreasonably exceed 10-feet in height and hence falling within the application of section 841. (FAC, ¶¶ 19, 31, 51.) It is ambiguous whether the water tanks are alleged to be included within the scope of the fourth cause of action. (FAC, ¶¶ 51, 52.) However, the trees and shrubs that have been affirmatively alleged are sufficient to state a cause of action and a demurrer may not be made to part of a cause of action. The demurrer to this cause of action will be overruled.

(3) Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “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, subd. (a).)

The Hayashis move to strike the allegations from the FAC of paragraphs 28, 34, 49, and the prayer for punitive damages. Paragraph 28 alleges that the Hayashis have expressly and publicly admitted on social media that their intent in placing water tanks as they did was malicious. Included in paragraph 28 is an image of a social media post from Brent Hayashi (identified in the demurrer as the Hayashis’ son). The Hayashis argue that these allegations and the image are irrelevant. The allegations of intent are relevant to claims for punitive damages (further discussed below). The social media post is not irrelevant for pleading purposes merely because it is not made by the Hayashis themselves (regardless of whether the post would or would not be admissible as evidence). The existence of the post demonstrates at some level the existence of expressions of intent by the Hayashis even if the social media post is not directly attributable to them. The motion to strike will be denied as to paragraph 28.

Paragraph 34 alleges Armour’s basis for claiming in excess of $3 million in damages. The Hayashis argue that this allegation is irrelevant because the basis for the claim includes aesthetic issues that are not cognizable as a basis for nuisance liability or damages. The entirety of paragraph 34 is not irrelevant. The allegations include items that are potentially recoverable as damages. The fact that, in the Hayashis’ view, the claim is inflated because it includes non-recoverable items does not make the full statement irrelevant. The additional material merely qualifies the remainder of the allegations. The motion to strike will be denied as to paragraph 34.

Paragraph 49 is a generic statement of malice which corresponds to the prayer for punitive damages. “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] 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. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“In an action for the breach of an obligation not arising from contract, where 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.” (Civ. Code, § 3294, subd. (a).) “ ‘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.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).)

The Hayashis frame Armour’s claims as a complaint only about obstruction of views, which claims are not cognizable as a basis for damages. As discussed above with respect to the demurrer, even ignoring issues of aesthetics and views, Armour has alleged nuisance conduct which is malicious, oppressive, and despicable within the meaning of section 3294. The motion to strike will be denied as to paragraph 49 and the prayer for punitive damages.