Colburn v. Halsey's Tree Service, et al

Plaintiffs allege that they own real property "dotted with mature redwood, oak, and pistachio trees." (SAC P.9.) Plaintiffs allege that Defendant SCE "...would occasionally provide notice to the Colburns of their intent to cut a tree on their property to maintain the integrity of their power lines. The Colburns' residence is gated, secured, and protected with access limited to those individuals with a passcode. Despite this, SoCal Edison would always ensure the Colburns received notice and opportunity before a tree was cut." (SAC P.10.)

Further that, in February 2025, an employee of Plaintiffs, spoke with an individual from Defendant Hasley's, who informed the employee that Hasley's was contemplating cutting down a large redwood tree on Plaintiffs' property. (SAC P.11.) Plaintiffs' employee "...strictly informed the Halsey's employee that the Colburns did not consent to the cutting of the tree, they were not permitted to enter onto the Colburns' property, and they did not have permission to cut any part of their foliage." (SAC P.11.)

Further, Plaintiffs allege that, later on the same day, Plaintiff Mrs. Colburn noticed a "beloved redwood tree" had been "topped and maimed," "destroyed" and "illegally cut and killed." (SAC P.12.) Plaintiffs found a "Notice of Vegetation Activities" door tag ("Notice") from which stated the tree had been topped because of broken roots and a heavy lean towards power lines. (SAC P.12.) The Notice bore SCE's logo, was signed by Steven Hasley. (SAC P.12.) However, Plaintiffs allege that a storm the week prior left the tree at issue completely unmoved. (SAC P.12.)

Plaintiffs allege "Halsey included a phone number on the Notice and listed "(ATM)" as a contractor company. On information and belief, Halsey served as the inspector of the tree and recommended it be cut. However, on information and belief, American Tree Medics, Inc. and Wright Tree Service, Inc., performed the unlawful cutting and were participating in SoCal Edison's vegetation management program under which the cutting was performed." (SAC P.12.) Halsey, American Tree, and Wright are hereafter collectively referred to as the "Tree Cutting Defendants." (SAC P.12.)

Plaintiffs allege that the Notice "demonstrates that the cutting of the Colburn's redwood tree was known about and/or authorized by SoCal Edison and performed under SoCal Edison's vegetation-management program." (SAC P.13.) Further, that on information and belief "managing agents of the Tree Cutting Defendants, Steven Halsey, DOE 2, and DOE 3, equally knew about and/or were operating jointly in authorizing and conducting the inspection, recommendation, authorization, and cutting of the Colburn's redwood tree, and acted as a joint enterprise and as agents of SoCal Edison in doing so.

On further information and belief, the Tree Cutting Defendants, through Steven Halsey, DOE 2, and DOE 3, authorized such conduct despite having advance knowledge that the Colburns did not consent based on their agents' conversation with Pedro Esquivel and Halsey's notation on the Notice that they were nevertheless "forced" to cut down the tree." (SAC P.13.)

Plaintiffs further allege that the Tree Cutting Defendants were acting as agents of SoCal Edison in the course and scope of their agency relationship. (SAC P.14.) Plaintiffs allege that SCE incentivizes local vendors because SCE pays local arborists to cut down trees which purport to improve the safety of power lines, irrespective of permission. (SAC P.15.) "The program financially incentivized contractors, including the Tree Cutting Defendants, to perform cuttings on private property irrespective of whether the property owner's consent had been obtained or whether the cutting was in fact necessary for power-line safety.

By offering a per-tree fee, SoCal Edison pre-authorizes and ratifies cuts performed under the program, accepts the benefits of those cuts in the form of vegetation clearance around its power lines, and clothes the participating contractors with apparent and ostensible authority to perform cuts on private property. In cutting the Colburn's redwood tree, the Tree Cutting Defendants acted under color of authority granted by SoCal Edison through the per-tree compensation program. SoCal Edison's managing agents, including DOE 1, knew or should have known that the per-tree compensation structure would cause contractors to cut trees without property-owner consent and on pretextual safety grounds, and nevertheless designed, authorized, implemented, and continued the program." (SAC P.15.)

Plaintiffs alleged further than an arborist has determined the tree is dead, will not regrow due to the cut and that the "tree was clearly outside of the powerline clearance minimum required by law, supporting the inference that the managing agents of the Tree Cutting Defendants knew there were no serious power line risks and instead concocted a false and pretextual claim that the conditions forced them to top the tree so they could overcome the Colburn's lack of consent and collect their fee from SoCal Edison. The cut redwood tree was approximately fifty feet tall." (SAC P.16.)

As to the first cause of action for trespass to timber, Plaintiffs allege ownership of the Property, including the trees and that "The Tree Cutting Defendants, acting as an agent of SoCal Edison, intentionally entered onto the Property and damaged timber located thereon. The Tree Cutting Defendants were explicitly instructed to not cut timber on the Colburns' property, but nevertheless did so." (SAC P.18.) Plaintiffs seek treble damages and attorneys fees as to willful and intentional cutting and, alternatively, double damages and attorneys' fees for casual or "involuntary trespass" pursuant to Civil Code section 3346. (SAC P.19.)

As to the second cause of action for conversion, Plaintiffs allege "The Tree Cutting Defendants, acting within the course and scope of their agency with SoCal Edison, interfered with that right by cutting and killing, without permission, the tree. The Colburns did not consent to the killing of their tree." (SAC P.21.) Plaintiffs seek punitive damages as to this cause of action, alleging that the cutting was wanton, malicious and intentional as: "The Tree Cutting Defendants were explicitly instructed not to cut the redwood tree on the Property yet nevertheless did so.

The cutting was performed for financial gain under a per tree compensation structure designed and maintained by SoCal Edison, regularly participated in by the Tree Cutting Defendants on false and pretextual justifications. The conduct was authorized, directed, and/or ratified by managing agents of each of the Tree Cutting Defendants and of SoCal Edison, including without limitation Steven Halsey, DOE 1, DOE 2, and DOE 3, who had advance knowledge that the Colburns did not consent to the cutting.

In the alternative, the per-tree compensation program was designed, implemented, and maintained at the corporate-policy level by Defendants' managing agents in a manner that consciously disregarded the rights of property owners and was likely to cause, and did cause, the harm suffered by the Colburns." (SAC P.22.)

Defendants Wright and SCE demurrer to each cause of action on grounds of subject matter jurisdiction, arguing that claims are barred as a matter of law under Public Utilities Code section 1759. Defendants further seek to strike portions of the complaint, a number of paragraphs and the punitive damages request in the prayer. In opposition, Plaintiffs argue that section 1759 is inapplicable to remove jurisdiction from this Court and Public Utilities Code section 2106 provides for actions that request damages against public utilities. There appears to be no opposition filed as to the motion to strike.

(1) Demurrer - Authority and Analysis The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220. To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.) It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.)

Public Utilities Code Sec. 1759 The Court borrows the "...summary of the governing law concerning section 1759 as stated in Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th 225" as stated in PegaStaff v. Pacific Gas & Electric Co. (2015) 239 Cal.App.4th 1303, 1314-1315 as follows: "'The commission is a state agency of constitutional origin with far-reaching duties, functions, and powers ... including the power to fix rates, establish rules, hold various types of hearings, award reparation, and establish its own procedures.' (Consumers Lobby Against Monopolies v.

Public Utilities Com. (1979) 25 Cal.3d 891, 905, citing Cal. Const., art. XII, Sec.Sec. 1-6.) In addition, the Legislature, which has the '"plenary power ... to confer additional authority and jurisdiction upon the commission,"' can broaden the commission's authority. (Consumers Lobby Against Monopolies, supra, at p. 905, quoting Cal. Const., art. XII, Sec. 5).

"Employing its plenary power, the Legislature enacted the Public Utilities Act (Sec. 201 et seq.), which 'vests the commission with broad authority to "supervise and regulate every public utility in the State."' ([San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893].) This broad authority authorizes the commission to '"do all things, whether specifically designated in [the Public Utilities Act] or in addition thereto, which are necessary and convenient" in the exercise of its jurisdiction over public utilities.' (Ibid., italics omitted.) '"The commission's authority has been liberally construed" [citation], and includes not only administrative but also legislative and judicial powers ... .' (Ibid.)

"Commission action is subject to judicial review, the 'manner and scope' of which is established by the Legislature. (Cal. Const., art. XII, Sec. 5.) 'Pursuant to this constitutional provision the Legislature enacted article 3 of chapter 9 of the Public Utilities Act, entitled "Judicial Review ..." (Sec. 1756 et seq.),' which 'prescribes a method of judicial review that is narrow in both "manner and scope."' (Covalt, supra, 13 Cal.4th at p. 915.) Among the provisions of that article is subdivision (a) of section 1759, which provides that HN4 '[n]o court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court.'

"Despite this limitation on the jurisdiction of trial courts to review commission rules and decisions, the Legislature has provided for a private right of action against utilities for unlawful activities and conduct. Specifically, section 2106 provides for an action to recover for loss, damage, or injury 'in any court of competent jurisdiction' by any corporation or person against '[a]ny public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission.'

"'[R]ecognizing a potential conflict between sections 2106 and 1759,' the California Supreme Court 'has held section 2106 "must be construed as limited to those situations in which an award of damages would not hinder or frustrate the commission's declared supervisory and regulatory policies."' (Koponen v. Pacific Gas & Electric Co. (2008) 165 Cal.App.4th 345, 351 [81 Cal. Rptr. 3d 22] (Koponen) ... .) "In Covalt, the Supreme Court '"established a three-part test to determine whether an action is barred by section 1759: (1) whether the commission had the authority to adopt a regulatory policy; (2) whether the commission had exercised that authority; and (3) whether the superior court action would hinder or interfere with the commission's exercise of regulatory authority."'" [citations omitted.]

Superior court jurisdiction is precluded only if all three prongs of the Covalt test are answered affirmatively. (Anchor Lighting v. Southern California Edison Co. (2006) 142 Cal.App.4th 541, 549)."

First and Second Prongs are Met The court in Sarale, supra, 189 Cal. App. 4 th at 237-239 establishes the first two prongs of the test with respect to tree trimming and minimum clearance from power lines. As to the first prong, the Sarale court states: "the commission has authority to "supervise and regulate every public utility in the State" and "do all things ... necessary and convenient in the exercise of such power and jurisdiction." (Sec. 701.) More specifically, the commission has the express authority to "require every public utility " to maintain its systems and equipment "in a manner so as to promote and safeguard the health and safety of its employees, passengers, customers, and the public." (Sec. 768.)

The regulating of tree trimming distances around power lines effectuates this purpose. As the commission itself has stated, 6 "The question of appropriate tree-trimming standards and practices has a broad reach, encompassing issues of worker safety, public safety, fire suppression, and environmental consequences ... ." (Bereczky v. Southern California Edison Co. (1996) 65 Cal.P.U.C.2d 145, 147.) Thus, we conclude the commission's authority includes regulating tree trimming around power lines." (Id. at 237.)

The Court here, based on Sarale and the complaint, finds the first prong established here, where the complaint alleges tree trimming due to proximity to power lines is at issue. (Complaint P.P.12, 15, 16.) As to the second prong, the Sarale court noted "general order No. 95 (rule 35) provides rules governing the construction of overhead electric lines" and that "...it is quite apparent that the commission has exercised its jurisdiction to regulate tree trimming around power lines." (Id. at 238-239.)

Further, that "For purposes of applying the Covalt test, it does not matter whether we characterize the commission's actions broadly, as addressing "the management of vegetation near power lines," or narrowly, as addressing "minimum [tree] trimming clearances." What matters is that the commission has exercised its authority to adopt a regulatory policy relating to tree trimming around power lines--regardless of how that policy may be characterized." (Id. at 239.) As such, the Court finds the second prong has been established.

Third Prong At issue, therefore, is the third prong as to "whether the superior court action would hinder or interfere with the commission's exercise of regulatory authority" Sarale In Sarale, the one set of plaintiffs sued Defendant PG&E for damages and declaratory and injunctive relief for the trimming of trees at greater distances from power lines than the minimum clearance distances specified in the PUC general order. (Sarale, supra, 198 Cal. App. 4 th at 232-233; See also Mata v. Pacific Gas & Electric Co. (2014) 224 Cal.App.4th 309, 319 [summarizing Sarale].)

The Sarale plaintiffs alleged "...that the scope of power line easements authorized PG&E '"to trim no further than the distance established by'" the PUC (Sarale, supra, 189 Cal.App.4th at p. 233) and that PG&E had trimmed 'beyond what the commission has mandated.' (Id. at p. 242, original italics.)" (Mata, supra, 224 Cal. App. 4 th at 319.)

The Court of Appeal in Sarale affirmed the sustaining of the demurrer without leave to amend stating: "trial courts lack jurisdiction to adjudicate claims that a power utility has engaged in excessive trimming or unreasonable vegetation management when the utility has acted under guidelines or rules set forth by the commission. Section 1759 safeguards the commission's ability to implement statewide safety protocols from being undermined by an unworkable patchwork of conflicting determinations regarding what constitutes necessary or proper management of power lines. In short, challenges to PG&E's tree trimming as unreasonable, unnecessary, or excessive lie within the exclusive jurisdiction of the commission to decide." (Sarale, supra, 189 Cal.App.4th at 231.)

Further, the Sarale court held: " Our holding does not leave the Sarales and Wilbur without a remedy for excessive tree trimming. Plaintiffs may contest rule 35's necessity and implementation before the commission...Exhaustion of administrative remedies is usually the correct answer to challenge of a regulatory rule....Here, the exhaustion requirement comports with section 1759's intent to allow the commission to act effectively in safeguarding people and property from danger." (Id. at 243.) "In short, section 1759 does not leave plaintiffs without a remedy for excessive tree trimming by PG&E. However, their remedy lies before the commission rather than in superior court." (Id. at 244.)

Mata In Mata, supra, 224 Cal.App. 4 th, plaintiffs sued PG&E and a tree trimming company after a man was electrocuted by a high voltage power line while trimming a tree, based on negligence and premises liability theories that the defendants failed to maintain an adequate clearance of the power lines from the trees. (Id. at 312; See summary by Pegastaff, supra, 239 Cal. App. 4 th at 1321) In comparing Mata and Sarale, the Pegastaff court noted: "The Mata court considered the same PUC regulations as the Sarale court (id. at p. 316) and observed: "the PUC rules and prior orders repeatedly make clear that while a utility normally must maintain specified minimum clearances between its overhead electric lines and adjacent trees, the commission leaves to the determination of the utility whether greater clearances are necessary at particular locations to accomplish the purposes of [the regulations], including to 'secure safety ... to the public in general.'

Nowhere in its rules or orders does the commission suggest that in making such determinations, the utility is relieved of its obligation to exercise reasonable care to avoid causing harm to others, or relieved of its responsibility for failing to do so." (Id. at p. 318.) The court concluded that the suit was not barred by section 1759. (224 Cal.App.4th at p. 320.)" (Pegastaff, supra, 239 Cal. App. 4 th at 1321)

Finally, the PegaStaff court notes: "The Sarale plaintiffs argued the utility went too far and caused property damage, whereas the Mata plaintiffs argued it failed to go far enough, resulting in personal injury. The PUC regulation allowed utilities to go farther than the minimum, and Sarale held that a suit penalizing a utility for doing so would interfere with the regulation." (Pegastaff, supra, 239 Cal. App. 4 th at 1322)

Mata further notes, in finding that section 1759 does not obviate the jurisdiction of a superior court, that: "...there is a fundamental difference between the claims in that case and plaintiffs' claim here. In Sarale, the landowners were attempting to prohibit PG&E from trimming more than the minimum required by the PUC, although--as indicated above--the PUC has made unmistakably clear that in some cases safety or other considerations require more than minimum clearances and that the utility should use its judgment to go beyond the minimum when necessary to ensure the reliability of service or public safety.

In the view of the majority, recognition of the landowners' claims would have effectively countermanded the authorization that the PUC granted the utility to make that determination and to extend clearance beyond the minimum when necessary to ensure service reliability or public safety. Here, on the other hand, plaintiffs' claims do not conflict with the PUC rule authorizing the utility to make a reasonable determination whether safety or other considerations require trimming beyond the minimum clearance.

Permitting plaintiffs to prosecute in superior court their claim for having failed to use due care in making such a determination does not hinder or interfere with the exercise of the PUC's authority. To the contrary, awarding damages to those injured by the utility's failure to make such a reasonable determination as anticipated by the PUC complements and reinforces rule 35. A superior court action for such damages is "in aid of, rather than in derogation of, the PUC's jurisdiction." (Mata, supra, 224 Cal.

App. 4th at 320.)

Further, the Mata court noted: "Unlike the situation in Sarale, denying plaintiffs the right to pursue their claim in superior court would deny them any means of recovery. In Sarale the majority opinion explains that the landowners could seek injunctive relief from the PUC to prohibit excessive tree trimming. (Sarale, supra, 189 Cal.App.4th at pp. 243-244.) However, the commission has recognized its inability to determine prospectively whether clearance beyond the minimum is necessary or advisable at every location where power lines are situated throughout the state, and it has expressly declined any attempt to do so.

The PUC cannot evaluate and rectify individual claims for damages resulting from a utility's failure to exercise reasonable care in making that determination at a particular location...Thus, although some language in the Sarale majority opinion may be read to suggest that the courts have no jurisdiction to consider any claim involving alleged inadequate tree trimming around regulated power lines, such a conclusion is not supported by the facts of that case, the pronouncements of the PUC, section 2106, or fundamental principles of equity and the role of the courts."

Hartwell However, the California Supreme Court in Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 275 noted " a court has jurisdiction to enforce a water utility's legal obligation to comply with PUC standards and policies and to award damages for violations" and "damage claims based on the theory that the water failed to meet federal and state drinking water standards are not preempted by section 1759. A jury award based on a finding that a public water utility violated DHS standards would not interfere with the PUC regulatory policy requiring water utility compliance with those standards." (Id. at 276.)

Further, the Hartwell court noted "PUC can redress violations of the law or its orders by suit (Sec. 2101), by mandamus or injunction (Sec.Sec. 2102-2103), by actions to recover penalties (Sec.Sec. 2104, 2107), and by contempt proceedings (Sec. 2113), but these remedies are essentially prospective in nature. They are designed to stop the utilities from engaging in current and ongoing violations and do not redress injuries for past wrongs." (Id. at 277.) "Because the PUC cannot provide for such relief for past violations, those damage actions would not interfere with the PUC in implementing its supervisory and regulatory policies to prevent future harm." (Id.)

As such, PegaStaff notes: " Hartwell demonstrates that application of the third prong of Covalt does not turn solely or primarily on whether there is overlap between conduct regulated by the PUC and the conduct targeted by the suit. The fact that the PUC has the power and has exercised the power to regulate the subject at issue in the case establishes the first and second prongs of Covalt, but will not alone establish the third. Instead, the third prong requires a careful assessment of the scope of the PUC's regulatory authority and evaluation of whether the suit would thwart or advance enforcement of the PUC regulation.

Also relevant to the analysis is the nature of the relief sought--prospective relief, such as an injunction, may sometimes interfere with the PUC's regulatory authority in ways that damages claims based on past harms would not. Ultimately, if the nature of the relief sought or the parties against whom the suit is brought fall outside the PUC's constitutional and statutory powers, the claim will not be barred by section 1759." (PegaStaff, supra, 239 Cal.App.4th at 1318)

While the Court recognizes that the claims by Plaintiffs are that SCE authorized tree trimming beyond the minimum established by the regulations are more like Sarale, as opposed to claiming that SCE did not authorize enough trimming, as in Mata, the Court is guided by the cases noted above that indicate the commission does not address past wrongs or award damages. Those cases indicate that the commission cannot and does not examine individualized claims of such past harms. Hartwell indicates that the nature of the relief sought here, damages based on a past wrong, would not interfere with the commission in implementing its supervisory or regulatory policies. As such, under Hartwell, the Court does not find the claims barred by section 1759. Therefore, the Court overrules the demurrer.

(2) Motion to Strike - Authority and Analysis Defendants seek to strike the following: 1. Page 2, lines 5-18 (beginning "at all relevant times"); 2. Page 3, lines 10-24 (beginning "at all relevant times"); 3. Page 5, lines 13-14 (beginning at "Notice of Vegetation Activities"; ending at "to top"); Page 12, lines 19-21 (beginning at "and Wright Tree"; ending at "was performed"); 4. Paragraph 13; 5. Paragraph 15; 6. Paragraph 16; 7. Paragraph 22; 8. Page 9, item 2 ("For punitive damages").

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., Sec. 435, subd. (b).) The motion may seek to strike any "irrelevant, false or improper matter inserted in any pleading" or any part of the pleading "not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Code Civ. Proc., Sec. 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., Sec. 431.10, subds. (b), (c).)

"Punitive damages are imposed as punishment for the defendant's serious misconduct." (5 Witkin Cal. Proc. (5th ed. 2019) Pleading, Sec. 933.) "Although the basic principle of damages is compensation, additional damages may be given in tort actions where the defendant's conduct has been outrageous, for the purpose of punishing and deterring him or her and others from outrageous conduct in the future. Citations.]" (6 Witkin Sum. Cal. Law (11th ed. 2017) Torts, Sec. 1727.) Claims for punitive damages are governed by Code of Civil Procedure section 3294, which limits their availability to circumstances where "the defendant has been guilty of oppression, fraud, or malice."

Consequently, punitive damages "cannot be recovered without a pleading of malice, oppression, or fraud ... ." (5 Witkin Cal. Proc. (5th ed. 2019) Pleading, Sec. 933, citing Hall v. Berkell (1955) 130 Cal. App. 2d 800, 804.)

Relevant here, "malice" as used in section 3294, means conduct "intended ... to cause injury to the plaintiff" or "despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." Section 3294's reference to "despicable conduct" represents a " substantive limitation on punitive damage awards." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) "Absent an intent to injure the plaintiff, 'malice' requires more than a 'willful and conscious' disregard of the plaintiffs' interests. The additional component of 'despicable conduct' must be found. [Citations.]" (Ibid.)

In reviewing a motion challenging the sufficiency of punitive damages allegations, the court must consider whether the factual allegations concerning the actual conduct alleged "apprises the adversary of the factual basis of the claim. [Citations.]" (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 234.) The factual allegations, in addition, must support entitlement to punitive damages. "Notwithstanding relaxed pleading criteria" permissible with other claims, punitive damages "demand firm allegations." (G.

D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) " Animus malus or evil motive, then, is the central element of the malice which justifies an exemplary award." (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 30.) "[C] onscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged." (Id. at 32.)

Here, the Court does not find a basis to strike the allegations referenced in Nos. 1 and 2 above with respect to the alleged connection between doe defendants and the named defendants as irrelevant, false or improper. Rather, these allegations are necessary to allege punitive damages against corporate employers for the alleged acts of their employees or agents. Therefore, the Court denies the motion as to Nos. 1 and 2.

As to the allegations referenced in No. 3 above, the Court finds these allegations to be merely a descriptive summary of the discovery of the alleged tree cutting at issue in this matter, and finds no basis to strike the entirety of the allegations sought to be struck. Additionally, the allegations sought to be struck as to Nos. 4 and 5 above link the various named and doe defendants to the main theory of this case: that SCE authorizes various other parties to find and remove trees in order to obtain a monetary sum as opposed to the performance of some public safety function. As such, the Court finds no legal basis to strike the allegations referenced in No.

3.

As to the request to strike paragraph 16 in No. 6 above, the Court, finds, as with the above, no irrelevant, false or improper matter with respect to the alleged acts taken by Plaintiffs following the tree cutting. These allegations sufficiently place Defendant on notice of the basis for the alleged treble and punitive damages sought via the causes of action.

As to Nos. 7 and 8, it appears sufficient that Plaintiffs allege Wright, as SCE's agent, trespassed on the property, intentionally cut the tree as motivated by a reward program from SCE and did so despite explicit instructions not to cut the Subject Tree. "Where a trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship or oppression, it is clear that punitive damages may be awarded." (Haun v. Hyman (1963) 223 Cal.App.2d 615, 620.)

With respect to employers, section 3294 provides that "[a]n employer shall not be liable for [punitive damages], based upon acts of an employee ..., unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation."

Here, the allegations in paragraphs 4 and 5 are sufficient with respect to advanced knowledge, authorization or ratification of the tree cutting acts to meet this standard for the purposes of a motion to strike. Therefore, the Court denies the motion as to Nos. 7 and 8.

As the Court has overruled the demurrer and denied the motion to strike, the Court orders Defendants SCE and Wright to answer the second amended complaint no later than ten (10) days from the date of this hearing. If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Smith, Debra Darlene vs. Hulsey, Eddie Lee