Case Name: San Panwala, et al. v. Alex Mendoza, et al.
Case No.: 18CV329772

I. Factual and Procedural Background

This is a private nuisance action filed by plaintiffs San Panwala (“San”) and Kusum Panwala (collectively “Plaintiffs”) against defendants Alex Mendoza (“Alex”) and Janette Mendoza (collectively “Defendants”).

As alleged in the Complaint, Plaintiffs own and have lived at a property located in Morgan Hill, CA for over two decades. (Complaint, ¶8.) In 2009, Defendants purchased property adjacent to Plaintiff’s property. (Id. at ¶ 10.) At the boundary between the two properties was a wooden fence, alongside which was a dense row of young, short pine trees that had been recently planted. (Id. at ¶¶ 8, 10.)

Around 2010, Plaintiffs contacted Defendants and requested they remove the pine trees, which they feared would eventually obstruct their views of the mountains and landscape. (Id. at ¶ 11.) Plaintiffs offered to pay for the cost of removing the trees and replacing them with shorter ones but Defendants refused, claiming they needed the trees for their privacy. (Ibid.) Since that time, the pine trees were never pruned or trimmed and are at least twenty-five feet tall and obstruct Plaintiffs’ view of the mountains from their kitchen, dining room, and deck. (Id. at ¶¶ 12-13.) On February 25, 2018, Plaintiffs sent a letter to Defendants informing them that the trees annoyed them and interfered with their enjoyment of the property but Defendants did not respond. (Id. at ¶ 16.)

Plaintiffs’ Complaint alleges a cause of action for private nuisance under Civil Code section 841.4 .

Currently before the Court is Defendants’ motion for summary judgment, which Plaintiffs oppose.

II. Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) To demonstrate an action has no merit, a defendant moving for summary judgment must show one or more of the elements of a cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Merits of the Motion

The Complaint alleges a single cause of action for violation of Civil Code section 841.4 (“Section 841.4”), California’s spite fence statute, which provides that “[a]ny 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.” California courts have held that, for purposes of the statute, a “row of trees planted on or near the boundary line between adjoining parcels of land can be a ‘fence or other structure in the nature of a fence.’” (Wilson v. Handley (2002) 97 Cal.App.4th 1301, 1309; Vanderpol v. Starr (2011) 194 Cal.App.4th 385, 394.)

Defendants contend the row of trees on their property is not a spite fence under Section 841.4 because Plaintiffs cannot prove it was erected or maintained with malice.

In determining if the malice element of Section 841.4 has been satisfied, “the pertinent question is whether the [defendants’] dominant purpose in planting [or maintaining] the row of [] trees along their property line with plaintiffs was to annoy plaintiffs.” (Wilson, supra, 97 Cal.App.4th at 1313, emphasis added.)

Here, Defendants present declarations stating the trees were part of the property when they purchased it and they are not maintaining the trees to annoy Plaintiffs. (Def. Sep. Stmt., Nos. 2-3.) This evidence indicates the row of trees was not erected or maintained for the dominant purpose of annoying Plaintiffs. As such, Defendants meet their initial burden of demonstrating Plaintiffs cannot establish the element of malice. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact.

In opposition, Plaintiffs assert the trees are being maintained for the primary purpose of annoying them and preventing them from enjoying their land. In support, they present the following evidence: a letter San wrote to Alex in 2008 regarding his concerns about the rapidly growing trees and requesting they not be allowed to grow to a height that would obstruct his views; a letter their attorney wrote to Defendants in February 2018 recounting San’s prior complaint and indicating the trees, which were now more than twenty (20) feet tall, did not need to be that tall to ensure Defendants’ privacy; discovery responses from Defendants stating Alex’s parents planted six redwood trees within eleven feet of the fence before they purchased the property, the trees were shorter than the home when they moved in and are now taller than the house, they would remove any dead branches from the bottom of the trees and trim any branches pushing against the fence, and they had not trimmed or pruned the trees since receiving Plaintiffs’ attorney’s letter; pictures of the trees blocking the mountain views from the property; and Plaintiffs’ declarations asserting their belief Defendants are maintaining the trees to annoy them and prevent their enjoyment of their property. (Pltf. Sep. Stmt., Nos. 3-11.) Plaintiffs assert the evidence demonstrates Defendants were aware the trees prevented them from enjoying their mountain views, permitted the trees to grow to an excessive height notwithstanding such awareness, failed to respond to their complaints, and have continued to allow the trees to grow considerably taller; they conclude it can be inferred the trees were maintained for the primary purpose of annoying them.

Preliminary, the Court observes there are few cases dealing with a private nuisance claim under Section 841.4 and none that discuss what evidence is sufficient to create a triable issue as to whether a fence was maliciously erected or maintained for the dominant purpose of annoyance. Relative to other claims requiring proof of a defendant’s wrongful intent, intent is often “proven by circumstantial evidence and inferences drawn from the evidence.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 [“Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.”]; see also Padres L.P. v. Henderson (2004) 114 Cal.App.4th 495, 522 [same].) In examining such evidence, a court is “not determining if the evidence is strong or weak, only if sufficient evidence has been presented to raise triable issues of fact.” (Ralph Andrews Prods., Inc. v. Paramount Pictures Corp. (1990) 222 Cal.App.3d 676, 682.)

Here, the Court finds the evidence presented is sufficient to raise a rational inference Defendants may have maintained the row of trees for the dominant purpose of annoyance. Shortly after Defendants moved into their property, Plaintiffs informed them of their concerns the trees would grow to a height that would obstruct the views from their property. (Pltf. Sep. Stmt., No. 3.) Despite this fact, Defendants allowed the trees to grow to approximately thirty (30) feet in height. (Pltf. Sep. Stmt., No. 7.) Moreover, when asked in discovery what efforts had been made to trim or prune the trees, Defendants did not directly respond and only stated they would remove any dead branches from the bottom of the trees and trim any branches pushing against the fence, which could lead to an inference they had no desire to address the height of the trees despite their knowledge of Plaintiffs’ concerns. (Pltf. Sep. Stmt., No. 3.) Taken together, the Court finds Plaintiffs’ evidence is sufficient to raise a triable issue of material fact as to whether Defendants maintained the trees for the dominant purpose of annoying Plaintiffs.

Accordingly, Defendants’ motion for summary judgment is DENIED.