2018-00240243-CU-PO

Elizabeth Ochoa vs. Megan Evans

Nature of Proceeding: Hearing on Demurrer

Filed By: Spinelli, Domenic D.

Defendants Cedar Street Realty and Debra Pughsley’s Demurrer to the Complaint is ruled on as follows:

This action arises out of a dispute between plaintiff and her former next door neighbor, Megan Evans. Plaintiff alleges that there is a large pecan tree on the neighbor’s property, possibly diseased or dying, that encroaches, trespasses and overhangs plaintiff’s property. Evans lived next door to plaintiff until April 17, 2018. Defendant Sanders is the current owner of the property.

Plaintiff alleges that in January of 2017 a large branch fell from the tree and hit plaintiff’s property causing $425 in damage. Defendant Evans gave plaintiff permission to remove the tree at plaintiff’s expense but then revoked permission and denied access. (Complaint ¶¶18-19)

Debra Pughsley is a licensed real estate agent associated with Cedar Street Realty, Inc. Plaintiff alleges that Pughsley was defendant’s real estate agent for the sale of the property. Plaintiff alleges at some unspecified time, Evans and Pughsley “engaged in negotiations” with plaintiff regarding removal of the tree and made false representations as to why the tree could not be removed at that time, “causing unreasonable delay and burdensome costs”. (Complaint ¶21) On April 27, 2018 Evans sold the property to Sanders. Plaintiff has made offers to pay for the cost of removal but Sanders has failed to remove the tree.

The demurrer does not address the 1st cause of action Trespass, 2nd cause of action for Private Nuisance, 3rd cause of action Private Nuisance Per Se, 5th Cause of action Negligence Per Se, or the 10th Cause of action for Injunctive Relief, as these causes of action are alleged only against non moving parties Evans and/or Sanders.

A demurrer to an alleged cause of action must be sustained where “[the pleading does not state facts sufficient to constitute a cause of action”, (C.CP. § 430.10, subd. (e)), or is “uncertain,” i.e., ambiguous or unintelligible. (C.CP. § 430.10, subs, (f).) Only well-pled facts suffice to state a cause of action under California law, and conclusory assertions are disregarded in ruling on a demurrer. (Serrano v. Priest (1 971) 5 Cal.3d 584, 591.) While the Court must accept as true all material allegations properly pled in the complaint in evaluating a demurrer, the Court need not accept legal conclusions, contentions or deductions. (Buller v. Sutter Health (2008) 160 Cal.App. 4th 951, 986 (on demurrer, “[we do not assume the truth of contentions, the deductions or conclusions of fact or law.”) [internal quotations marks omitted]. See also Freeman v. San Diego Ass ‘n of Realtors (1999) 77 Cal.App.4th 171, 144, fn.11; Aubry v. Tri-City Hospital (1992) 2 Cal.4th 962, 966-67.) Plaintiff bears the burden of pleading facts sufficient to state a claim; courts will not supply essential elements of a claim that were not initially pled. (See Richards v. Harper (9th Cir. 1988) 864 F.2d 85, 88.) To survive dismissal, the complaint’s “[factual allegations must be enough to raise a right to relief above the speculative level.” (Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555.)

4th cause of action Negligence

The demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. The liability of moving party appears to arise from alleged false statements that the tree could not be removed. The elements for negligence are

(1) duty, (2) breach of that duty, (3) causation, and (4) damages. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463.) Plaintiff’s Complaint fails to allege that Pughsley or CSR owed a legal duty of care to Plaintiff or that either breached that duty of care.

Pughsley’s only alleged involvement was assisting in negotiations on behalf of Evans regarding the removal of the free and serving as the real estate agent handling the listing. As listing agents, they did not own the property or the tree in question, and had no obligations to the Plaintiff to remove it. Moreover, Plaintiff cannot hold CSR liable for any damages she may have endured prior to its listing of the property, nor can she hold Pughsley liable for any damages occurring prior to her involvement in

the negotiations, such as the damage to her roof that occurred on or about January 10, 2017.

6th cause of action Negligent Infliction of Emotional Distress

Sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. This cause of action is duplicative of the negligence cause of action. Unless there is a bystander witnessing the injury of a close family member, this cause of action is merely one of negligence. “‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . ” ‘ (Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588 [quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 838, p. 195. Plaintiff has not alleged she suffered any physical injuries. She has only alleged damage to her property. It is well settled “that damages for emotional distress are ordinarily not recoverable in an action for negligent misrepresentation when the injury other than the emotional distress is only economic.” (Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 798, 780; Erhich v. Menezes (1999) 21 Cal. 4th 543 [emotional distress damages in connection with property damages are not compensable.]

7th cause of action Fraud

Sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff has not alleged fraud with the requisite specificity, nor has she alleged detrimental reliance or damages resulting from the alleged misrepresentations that the tree could not be removed.

The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages. West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, (quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.

When pleading a claim for fraud, each and every element must be alleged, “and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Stansfield v Starkey (1990) 220 Cal.App.3d 59, 73; Cadlo v Owens-Illinois, lnc. (2004) 125 Cal.App.4th 513,519 (stating that “[e]ach element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged”). To satisfy the particularity requirement, the plaintiff must plead facts which “show how, when, where,

to whom, and by what means the representations were tendered.” Stansfield, supra, 220 Cal.App.3d at p. 74; see also Lazar v Superior Court (1996) 14 Cal.4th 631, 645.

Plaintiff has alleged that Evans, Pughsley, and CSR made false representations to Plaintiff, via telephone and email, by stating that Evans would allow removal of the tree if plaintiff paid for the entire cost and did not file suit with the Superior Court seeking same. Plaintiff relied on the statements because paying the cost of removal was less expensive than litigation. (Complaint. ¶¶ 59-62.) Plaintiff alleges that the tree was not removed, resulting in her having to file a lawsuit.

8th cause of action Conspiracy to Commit Fraud

Sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff has not alleged fraud with the requisite specificity, nor a specific act in furtherance of the conspiracy, nor has she alleged detrimental reliance or damages resulting from the alleged misrepresentations. See ruling on the Fraud cause of action.

9th cause of action for Intentional Infliction of Emotional Distress

Sustained with leave to amend for failure to state facts sufficient to constitute a cause of action. The allege misrepresentation of inability to remove a pecan tree resulting in the continued presence of the pecan tree which had previously caused property damage to plaintiff’s roof in the alleged amount of $425, and resulted in having to file a lawsuit to remove the tree, does not rise to the level of outrageous conduct nor do emotional distress damages arise from property damage.

Plaintiff may file and serve an Amended Complaint on or before January 22, 2019. Response may be filed and served within 30 days of the service of the amended complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.