Jeffrey Fallin v. Thomas Orlando et al

that it is entitled to conceal the identity because disclosure would necessarily reveal the substance of the confidential communication and that privacy interests outweigh disclosure.

Jeffrey Fallin v. Thomas Orlando et al 25CV002076

ANGEL’S TREE CARE CORPORATION’S GENERAL AND SPECIAL DEMURRER TO JEFFREY FALLIN’S COMPLAINT

TENTATIVE RULING: The demurrer is OVERRULED. Defendant Angel’s Tree Care Corporation (ATC) is granted 10 Court days’ leave from entry of the instant order to answer the Complaint.

A. PRELIMINARY MATTERS

Defendant, Cross Defendant and Cross-Complainant Angel’s Tree Care Corporation (ATC) demurs, pursuant to Code of Civil Procedure 430.10, subdivisions (e) and (f), to each cause of action asserted by Plaintiff Jeffrey Fallin through his complaint (Complaint). ATC contends that the Complaint fails to allege facts sufficient to state a claim, and that the Complaint is fatally uncertain.

The gravamen of the Complaint is that Mr. Fallin suffered damages when ATC, at the direction of co-defendant Thomas Orlando, and without Mr. Fallin’s permission, cut-down, destroyed, and removed “ten (10) large established shrubs” and “eight (8) mature and living trees” from Mr. Fallin’s property. The Complaint purports to asserts claims against ATC for Trespass, Negligence, and Negligent, as well as Willful Trespass to Timber.

B. LEGAL BACKGROUND

A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc., § 425.10, subd. (a)(1).) “The party against whom a complaint or cross-complaint has been filed may object, by demurrer . . . to the pleading on . . . grounds [that] . . . (e) The pleading does not state facts sufficient to constitute a cause of action . . . [and/or] . . . (f) The pleading is uncertain.” (Code Civ. Proc., § 430.10.)

A demurrer on grounds that a plaintiff has failed to state a claim is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Such a demurrer “‘does not admit . . . facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.’ [Citation.]” (Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 291-292.) The Court must “construe the allegations of a complaint liberally in favor of the pleader.” (Skopp v.

Weaver (1976) 16 Cal.3d 432, 438.) Court must also accept as true facts that may be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405.) The Court may also consider as grounds for a demurrer any matter that is judicially noticeable under Evidence Code sections 451 or 452. (Code. Civ. Proc., § 430.30, subd. (a).) Because, “[a] demurrer tests only the legal sufficiency of the pleading...the question of plaintiff’s ability to

prove the[] allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Comm. on Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14.)

C. LEGAL ANALYSIS

1. The Grant Deed Does Not Establish that the Claims are Necessarily Barred

Mr. Fallin clearly alleges that, at all relevant times, he was the owner of the subject real property. (See Complaint at ¶¶ 9, 18, 25, 31, 40.) ATC argues that “[a]s pleaded in the Complaint, the work occurred on August 12, 2024. [Citation.] Ordinarily, a simple statement of ownership may well suffice. However, pursuant to the County Recorder’s records, the Grant Deed for the Property was not recorded until August 15, 2024. [Citation.].”

ATC’s request that the Court take judicial notice of the Grant Deed attached as Exhibit A to the Declaration of Peter A. Singler (Grant Deed) is GRANTED, subject to the following.

“Judicial notice may be taken of ‘the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Linda Vista Vill. San Diego Homeowners Assn., Inc. v. Tecolote Invs., LLC (2015) 234 Cal.App.4th 166, 184 (Linda Vista Village); see also Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 (Green Foothills) [held: trial court properly took judicial notice of the filing of a Notice of Determination].) Mr. Fallin does not, through the Opposition, dispute the document’s authenticity.

The Court, however, agrees with Mr. Fallin that none of the facts (1) reflected on the Grant Deed and (2) of which the Court is permitted to take judicial notice, is fatal to any of the claims asserted in the Complaint. Put simply, the fact that the Grant Deed was recorded on August 15, 2024, does not necessarily establish that Mr. Fallin did not own the subject property on August 12, 2024, when ATC is alleged to have removed and destroyed the trees and shrubs.

This is particularly true as the Grant Deed indicates that it was executed on July 12, 2024. As ATC appears to concede, transfer of title occurs upon delivery of the conveyance by the grantor, and acceptance by the grantee. (See Support Memo at 6:24-7:2; see also Perry v. Wallner (1962) 206 Cal.App.2d 218, 221 [“It is essential that there be a delivery of the conveyance with intent to transfer the title before a transfer of real property is valid”].) Nothing in the Grant Deed establishes (or even tends to suggest) that such delivery was accomplished after August 12, 2024.

Nevertheless, ATC argues that acts regarding delivery of the Grant Deed “are not alleged in the Complaint, and the public records defy an unexplained conclusory allegation of ownership in the Complaint.” (Support Memo at 7:2-3.)

The general rule is that a complaint is sufficient if it alleges ultimate, as opposed to evidentiary, facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Los Angeles).) As noted above, the Complaint alleges the ultimate fact that Mr. Fallin owned the real property at the time of the events giving rise to his claims. The Court is unpersuaded that, because of the Grant Deed or otherwise, Mr. Fallin is required to allege anything more.

Finally, “the public records defy an unexplained conclusory allegation of ownership in the Complaint” only when inferences therefrom are drawn against Mr. Fallin. On demurrer, however, the Court must make all reasonable inferences “liberally in favor of the pleader.” (Skopp v. Weaver, supra, 16 Cal.3d at 438.)

2. The Trespass Claim is Adequately Pled

ATC’s first argument – that Mr. Fallin fails to allege ownership of the real property – is addressed above.

ATC next argues that Mr. Fallin fails to adequately allege the element of defendant’s intentional, reckless, or negligent entry onto the property. ATC acknowledges the allegations of paragraph 20 of the Complaint that “Orlando instructed Angels and its employees to intentionally, negligently and/or recklessly enter onto Plaintiff's PROPERTY for the purpose of performing tree and shrub removal on the PROPERTY,” but contends that “this [is not a factual allegation at all. It is a ‘contention’ (aka an argument), based on ‘information and belief.’ In other words, it is a legal conclusion, not a statement of fact. In still other words, it is a ‘lawyer’s argument’ to be ‘disregarded.’” (Support Memo at (8:9-12.)

The Court disagrees.

Again, the general rule is that a complaint is sufficient if it alleges ultimate, as opposed to evidentiary, facts. (See Los Angeles, supra, 42 Cal.4th at 550.) “‘In order to plead a cause of action, the complaint must contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language.’ (Code. Civ. Proc., § 425.10, subd. (a).) While it is true that pleading conclusions of law does not fulfill this requirement, it has long been recognized that ‘[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. [Citations.]

For example, the courts have permitted allegations which obviously included conclusions of law and have termed them ‘ultimate facts’ or ‘conclusions of fact.’’ [Citations.] What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. [Citations.]’ [Citation.]’ It has been consistently held that ‘‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. [Citation.]” (Doheny Park Terrace Homeowners Association., Inc. v.

Truck Insurance Exchange (2005) 132 Cal.App.4th 1076, 1098-1099 (Doheny Park).)

The Court finds the allegations of paragraph 20 of the Complaint sufficient to apprise ATC of the basis upon which Mr. Fallin seeks relief.

ATC next argues that “there is no allegation that ATC actually entered upon Fallin's property.” Perhaps not; explicitly. However, entry onto the property is not only a reasonable, but an unavoidable inference from Plaintiff’s allegation that “On or about, August 12, 2024, Defendants, without Plaintiff's consent, cut down trees and removed shrubs on Plaintiff’s PROPERTY.” (Complaint at ¶ 11.) The Court finds this inference, in the context of paragraph 20’s allegation that ATC “Orlando instructed Angels and its employees to intentionally, negligently and/or recklessly enter onto Plaintiff's PROPERTY for the purpose of performing tree and shrub removal on the PROPERTY” sufficient to satisfy the entry element of the Trespassing claim.

ATC argues that “[a]s to the third essential element (lack of permission), the Complaint unequivocally states otherwise, to wit: ATC was hired and instructed to enter the Property and cut down the trees.” (Support Memo at 8:17-19, citing Complaint, at ¶¶ 10, 20.)

The Court finds that this element is adequately pled by the allegations that Mr. Fallin owned the subject property (discussed above), and the allegation that “FALLIN did not consent to ORLANDO’S or ANGELS’ presence on the PROPERTY.” (Complaint at ¶ 2; see also Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 778 [“A good faith belief that entry has been authorized or permitted provides no excuse for infringement of property rights if consent was not in fact given by the property owner whose rights are at issue”].)

3. The Fact that Trespass to Trees is Not a Separate Claim is No Ground for Demurrer

ATC correctly notes that a claim for Trespass to Trees (or “injury to trees”) is simply a Trespass cause of action, and that Civil Code section 3346 provides only a particularized from of damages therefor.

These arguments, in effect, take issue with Mr. Fallin’s organization of the Complaint, and the names given to the sections thereof. The Court finds, in them, no grounds for demurrer. “Even though the plaintiffs labeled their causes of action, that does not mean they are bound by those labels. It is an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings or the character of the damage recovery suggested in connection with the prayer for relief. (Citation omitted.)” (Jaffe v.

Carroll (1973) 35 Cal.App.3d 53, 57.) “The courts of this state have, of course, long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.” (Ibid.)

Because Mr. Fallin has alleged facts sufficient to state a claim for Trespass, the additional allegations of paragraphs 31 through 46 (labelled the Third Cause of Action for Trespass to Timber – Negligent or Reckless and Fourth Cause of Action for Trespass to Timber – Willful and Malicious Conduct), even though they may not state a distinct claim, support Mr. Fallin’s prayer for damages vis-à-vis Civil Code section 3346 and are not separately subject to demurrer.

4. Negligence

The Court finds no merit in ATC’s arguments that Mr. Fallin failed to allege that ATC owed Fallin a duty of care.

“In determining liability for negligence, we begin always with the command of Civil Code section 1714, subdivision (a) . . ..” (Christensen v. Super. Ct. (1991) 54 Cal.3d 868, 885 [Christiansen].) That statute provides, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civil Code, § 1714, subd. (a).) “In the absence of a statutory provision limiting this rule, exceptions to the general principle imposing liability for negligence are recognized only when clearly supported by public policy.” (Christiansen, supra, at p. 885.)

That this general provision is broad enough to include a duty to avoid trespassing onto the property of another and causing damage to timber thereon is made clear by Civil Code section 3346. This duty is precisely what Mr. Fallin alleges through the Complaint.

5. ATC Fails to Persuade the Court that the Complaint is Uncertain

A demurrer for uncertainty is disfavored and strictly construed; even where a complaint is in some respects uncertain ambiguities can be clarified under modern discovery procedures. (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 (Lickiss) [held: a demurrer for uncertainty is disfavored and strictly construed; even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures]) As noted above, “a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. [Citation.]” (Doheny Park, supra, 132 Cal.App.4th at 1098-1099.)

The Court finds that the Complaint is intelligible and articulates the allegations sufficiently to acquaint ATC with the nature, source and extent of the claims against it.

6.

Conclusion

Based on the foregoing, the demurrer is OVERRULED. ATC is granted 10 Court days’ leave from entry of the instant order to answer the Complaint.

Zhi Wei Liu v. Napa Crossing East II, LLC 25CV002180

MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

TENTATIVE RULING: The motion is GRANTED. The clerk is directed to set aside the Default entered against Defendant Napa Crossing East II, LLC (“Defendant”) on January 15,

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