2017-00218442-CU-OR

Merle Axelrad vs. City of Sacramento

Nature of Proceeding: Hearing on Demurrer to Complaint and Joinder by VSS International,

Filed By: Wood, Ryan C.

Defendants VSS International, Inc. and Valley Slurry Seal Co.’s (collectively “Defendants”) demurrer to Plaintiffs’ complaint is ruled upon as follows.

Defendant City of Sacramento’s (“City”) joinder to the demurrer is GRANTED.

Defendants’ request for judicial notice is granted.

This is an action for trespass and negligence. Plaintiffs Merle Axelrad, Trustee of the Merle Axelrad Serlin Trust, and Merle Axelrad (collectively “Plaintiffs”) allege that Defendants contracted with the City and “other defendants” for work in the vicinity of the property. Then, without her consent or knowledge, Defendants trespassed into her yard along the 1st Avenue side of her property and chopped the trees in her landscape, denuding them of most branches and leaves. Plaintiffs allege the improper cutting of the trees did not involve recognized, proper pruning practices and violated the policies of Gov’t Code §53067. In the prayer for relief, Plaintiffs seek damages pursuant to CCP § 733, Civ. Code § 3333, and Civ. Code §3346(a). Plaintiffs also seek damages for all costs to repair the harm done to the trees, adjacent landscaping, and irrigation system. Plaintiffs allege that co-defendant Kent Tree Removal (aka Kent Arborist Services), which is solely owned by co-defendant John Kent, contracted with the City and other defendants for work in the vicinity of the property. The work was done in conjunction with the City’s road resurfacing work which purportedly required sunlight to cure the new pavement.

Defendants demur to each cause of action on the ground that Plaintiffs fail to state sufficient facts and the complaint is uncertain.

The demurrer for uncertainty is SUSTAINED with leave to amend. The Court agrees that the complaint is uncertain because Plaintiff combines all defendants under the term “Defendants”, despite each defendant appearing to have a different role in the project.

Because the Court has sustained the demurrer for uncertainty, the Court declines to address Defendants’ remaining grounds for demurrer.

Plaintiffs may file and serve a first amended complaint (“FAC”) by no later than January 22, 2018, Response to be filed and served within 30 days thereafter, 35 days if the FAC is served by mail. (Although not required by any statute or rule of court, Plaintiffs are requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.)