2017-00218442-CU-OR

Merle Axelrad vs. City of Sacramento

Nature of Proceeding: Motion to Strike and Joinder by VSS International, Inc.

Filed By: Wood, Ryan C.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the page and line numbers that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

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

Defendant City of Sacramento’s 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 on or about October 10, 2016, Defendants, without her consent or knowledge, and without required certifications and licenses, 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 §3346(a), and Civ. Code §3333.

Treble and Punitive Damages

Defendants move to strike the following language sought in conjunction with Plaintiffs’ trespass cause of action:

For an award of damages, jointly and severally, against each of the Defendants in an amount equal to three times such sum, as determined at trial, as will compensate Plaintiffs for the actual

detriment and damage to the Trees and Property, pursuant to Civil Code sections 733, 3333, and 3346(a); or an award of damages, jointly and severally against each of Defendants, for punitive

damages pursuant to Civil Code 3294 in lieu of treble damages.

(Complaint, 11:13-17.)

Defendants contend that the entirety of the above language should be stricken

because such damages may only be awarded when the wrongdoer intentionally acted willfully or maliciously. (CCP §733, Civ. Code §3346.)

CCP §733 provides: “Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person. . . without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.”

Civ. Code §3346 states: “(a) For wrongful injuries to timber, trees. . . 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 . . . 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.

Thus, the effect of Civ. Code § 3346 (penal damages for injuries to timber), read together with CCP § 733 (trespass for cutting or carrying away timber), is that the Legislature intended, insofar as willful and malicious trespass is concerned under either section, to leave the imposition of treble damages discretionary with the court, but to place a floor on that discretion at double damages which must be applied whether the trespass be willful and malicious or casual and involuntary. Consequently, there are three measures of damages applicable to the pertinent types of trespass: (1) for willful and malicious trespass, the Court may impose treble damages but must impose double damages; (2) for casual and involuntary trespass, the Court must impose double damages; and (3) for trespass under authority of highway officers, only actual damages may be imposed. (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1310; Ostling v. Loring (1994) 27 Cal.App.4th 1731; Civ. Code §3346(a).)

As noted above, Civ. Code § 3346(a) is not limited to treble damages and §3333 permits compensatory damages, neither of which require pleading willful or malicious conduct. Although Plaintiffs plead for “an amount equal to three times,” Plaintiffs should have an opportunity to amend to clarify whether they are also seeking double and/or compensatory damages for their trespass cause of action. Additionally, although Plaintiffs seek double damages in conjunction with their negligence cause of action, it is unclear whether the negligence cause of action is for negligent trespass (i.e. casual and involuntary trespass) or some other negligent act.

Thus, the motion to strike is GRANTED with leave to amend. Due to the manner in which the Court has ruled, it need not express an opinion as to whether Plaintiffs have sufficiently pled willful or malicious conduct.

Inconvenience, Emotional Distress, Annoyance Damages

Defendants move to strike the following language sought in conjunction with Plaintiffs’ trespass and negligence causes of action:

For an award of damages, jointly and severally, against each of Defendants, for such sum, as determined at trial, as will compensate Plaintiff MERLE AXELRAD for the inconvenience,
emotional distress, annoyance and discomfort she suffered and continues to suffer from Defendants’ intrusion onto her Property and the loss of the beauty, shade, and privacy that the Trees have
afforded her, and for the inconvenience, annoyance and discomfort she suffers as and when repairs are made to the Property.

(Complaint, 11:23-28, 12:16-21.)

Defendants contend that the entirety of the above language should be stricken because emotional distress/annoyance a discomfort damages may only be awarded when the wrongdoer intentionally acted willfully or malicious. Defendants cite to Fulle v. Kanani (2017) 7 Cal.App.5th 1305 to support their argument. The Court disagrees with Defendants that Fulle so requires.

In Fulle, the defendant hired a laborer to cut down limbs and branches of trees located on plaintiff’s property. The jury awarded $26,000 for damages to trees, $20,000 for the cost of repair, and $30,000 for past noneconomic loss (including annoyance, loss of enjoyment of the real property, inconvenience and emotional distress. (Id. at 1309.) The plaintiff then moved for treble damages for both economic and non-economic damages. The trial court thereafter imposed treble economic damages, but declined to impose treble non-economic damages. Plaintiff appealed. The Second Appellate District held that “annoyance and discomfort damages are subject to the statutory damage multiplier for trespass to timber.” (Id. at 1308.) In so holding, the court recognized that prior case law stood for the proposition that “a plaintiff may recover damages for annoyance and discomfort proximately caused by tortious injuries to trees on her property if she was in immediate and personal possession of the property at the time of the trespass.” (Id. at 1313.) However, the cases did not address the question presented in Fulle, “whether recoverable annoyance and discomfort damages are subject to the damage multiplier for timber trespass under Code of Civil Procedure section 733 and Civil Code section 3346.” (Id.) Thus, Fulle is limited to the holding that annoyance and discomfort damages are subject to a damage multiplier. It does not stand for the holding that Plaintiffs must plead willful or malicious conduct in order to recover non-economic damages without a multiplier. Here, Plaintiffs have not alleged that they are seeking a multiplier for non-economic damages. Thus, the motion to strike is DENIED.

Attorneys’ Fees

Defendants move to strike the following language: “For attorneys’ fees pursuant to

Code of Civil Procedure Section 1029.8.” (Complaint, 12-:2-3, 12:23.)

CCP §1029.8(a) provides: “Any unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required . . . shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction. The court may, in its discretion, award all costs and attorney’s fees to the injured person if that person prevails in the action.”

Defendants insist that Plaintiffs are not entitled to attorneys’ fees pursuant to CCP §1029.8 because Kent Arborist Services has a valid contractor’s license. (RJN, Ex. C.)

In opposition, Plaintiffs advance that they have sufficiently alleged that “Defendants either are or hired unqualified contractors” and “lacked required arborist and engineer’s licenses and certifications for lawful tree cutting and pruning.” (Opposition, 8:6-9 [emphasis added].)

The motion to strike is GRANTED with leave to amend. CCP §1029.8(a) applies only to the unlicensed person who performed the services. (Rony v. Costa (2012) 210 Cal.App.4th 746, 757.) It does not extend to the person who “used” the services of the unlicensed person nor under respondent superior. (Id., 757-758.) Additionally, given that Plaintiffs have combined all defendants under the term “Defendants,” the Court has sustained Defendants’ demurrer for uncertainty.

Where leave to amend is granted, 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.)