Mark Shevitz et al vs Bradley G Vernon et al

Case Number

23CV04471

Case Type

Hearing Date / Time

Fri, 06/21/2024 - 10:00

Nature of Proceedings

Demurrer and Motion to Strike

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of cross-defendants to the cross-complaint is overruled.

(2) For all reasons discussed herein, the motion of cross-defendants to strike portions of the cross-complaint is denied.

(2) Cross-defendants Mark Shevitz and Kathleen Shevitz shall file and serve an answer to the cross-complaint of Bradley G. Vernon and Shannon Vernon on or before July 3, 2024.

Background:

On October 10, 2023, plaintiffs Mark Shevitz (Mark) and Kathleen Shevitz (Kathleen), Trustees of the Shevitz Family Trust, Dated August 6, 2013 (collectively, the Shevitz), filed a complaint against defendants Bradley G. Vernon (Bradley) and Shannon Vernon (Shannon) (collectively, the Vernons), Shaun Lynch (Lynch), and Evoke Design, Inc. (Evoke), alleging five causes of action: (1) breach of contract – specific performance; (2) breach of implied covenant of good faith and fair dealing; (3) negligent misrepresentation; (4) fraud and intentional deceit; and (5) injunctive relief. (Note: Due to common surnames, the court will at times refer to plaintiffs by their first names. No disrespect is intended.) As alleged in the complaint:

The Shevitz own and reside at 4000 Cuervo Avenue in Santa Barbara, California (the Shevitz property). (Compl., ¶ 1.) The Vernons own and reside at property which is adjacent to the Shevitz property and located at 3990 Cuervo Avenue in Santa Barbara, California (the Vernon property). (Id. at ¶¶ 2, 8.) The Shevitz property and the Vernon property are located in a common interest development known as Hope Ranch which is governed by the Hope Ranch Park Homes Association (the Association), of which the Shevitz and the Vernons are members. (Id. at ¶¶ 8-11 & Exhs. 1-5.)

In 2018, Lynch, who is the Chief Executive Officer of Evoke, prepared architectural plans (the plans) to renovate the existing residence on the Vernon property (the project), which included the construction of a cabana (the Cabana). (Compl., ¶¶ 3, 15.) The plans were presented to the Association for final review on October 2, 2019, and subsequent approval was conditioned on the Vernons maintaining the view corridor in the area where the Cabana was proposed. (Id. at ¶¶ 24-25.)

After the Shevitz expressed concerns regarding the Cabana obstructing their view, the Association, Mark, and Lynch attended a meeting at the Shevitz property on November 15, 2019, during which Lynch installed a story-pole purporting to represent the farthest western leading edge of the Cabana. (Compl., ¶¶ 25-27, 29-31.) On November 20, 2019, Mark and Lynch signed an email from Lynch regarding the story pole location, a photo depicting the placement of the story pole, and a page from a “CAD” image prepared by Lynch to show the placement of the Cabana (collectively, the agreement). (Id. at ¶¶ 27, 29, 32-36.) At the time that Mark and Lynch entered into the agreement, the Vernons and Lynch knew that the intended location for the Cabana would obstruct the views from the Shevitz property and misrepresented the placement of the story pole to induce the Shevitz to drop their opposition to the plans. (Id. at ¶ 53.)

In exchange for the agreement, the Shevitz dropped their opposition to the project. (Compl., ¶ 35.) On the same date the agreement was signed, the Association granted final approval of the plans and subsequently issued a building permit to the Vernons. (Id. at ¶ 37.) Construction of the project commenced in May 2022. (Id. at ¶ 38.)

After construction of the project had commenced, the Shevitz discovered that Lynch was constructing the Cabana directly in the Shevitz’s view corridor. (Compl., ¶ 41.) Following communications regarding the construction of the Cabana, the issuance of a correction notice by the Association, and an Association board meeting, the Association notified Mark on May 31, 2022, that they would not take further action because, according to the Vernons, the Cabana was being built according to the plans. (Id. at ¶ 42, 45, 46, 48.) The Vernons and Lynch have refused to stop construction of the Cabana, have failed to provide any proof that the story pole was erected in the correct location, and have made no attempt to abate, correct or mitigate the impact of the Cabana on the Shevitz’s protected views. (Id. at ¶ 52.)

On November 28 and December 11, 2023, Lynch and Evoke filed, respectively, an answer and an amended answer to the complaint generally denying its allegations and asserting thirteen affirmative defenses.

On December 6, 2023, the Vernons filed a general demurrer to each cause of action alleged in the complaint which was opposed by Shevitz.

On January 23, 2024, the Shevitz filed a notice of errata to correct allegations appearing in paragraphs 33, 35, 60, 97, and 98 of the complaint.

On January 24, 2024, Lynch and Evoke filed a notice of related case identifying case number 23CV05093 entitled Mark Shevitz, et al. v. Hope Ranch Park Homes Association, et al., (the Association action) as related to the present action. On February 23, 2024, the court order this matter related to the Association action.

On March 1, 2024, the court issued a Minute Order overruling the demurrer of the Vernons to the complaint and ordering the Vernons to file and serve their answer to the complaint on or before March 11, 2024.

On March 12, 2024, the Vernons filed an answer to the complaint, and a cross-complaint against the Shevitz (the cross-complaint) alleging two causes of action: (1) willful trespass; and (2) negligent trespass. As alleged in the cross-complaint:

The Vernon property is improved with a single-family residence and landscaping which includes mature trees, plants, and other vegetation. (Cross-Compl., ¶ 7.) Between September 4 and 18, 2023, the Shevitz entered the Vernon property while the Vernons were out of the country on vacation, removed one tree, and severely cut back four other trees. (Id. at ¶ 8.) Two of the trees that were cut and removed by the Shevitz were five feet from the boundary line of the Vernon property which was delineated by survey stakes. (Id. at ¶ 10.) All of the trees which were cut and removed were located either on the boundary line or on the Vernon property. (Ibid.) In addition, the cutting of the trees reduced the canopy by over 50 percent. (Id. at ¶ 10.)

The Shevitz never gave any advance warning to the Vernons that they would take these actions. (Cross-Compl., ¶ 8) One month after the tree cutting and removal occurred, the Shevitz filed their complaint in this action. (Id. at ¶ 9.) The Vernons believe that the Shevitz cut and removed the trees on the Vernon property for the purpose of exposing the view of the Cabana from the Shevitz property in order to provide support for the complaint filed in this action. (Id. at ¶ 9.) The Vernons further believe that the Shevitz elected to cut and remove the trees during a time when they knew the Vernon property would be unoccupied. (Id. at ¶ 11.)

On April 12, 2024, the Shevitz filed a demurrer to the cross-complaint on the grounds that each cause of action alleged therein is uncertain and fails to state facts sufficient to constitute a cause of action. On the same date, the Shevitz filed a motion to strike all claims for punitive, treble, or exemplary damages alleged in the cross-complaint, and all facts alleged on information and belief. The demurrer and motion to strike of the Vernons are each opposed by the Shevitz.

Analysis:

(1) The Demurrer

In ruling on a demurrer, the court determines whether the pleading at issue states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Ibid.; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Matters extrinsic to the cross-complaint:

To support their contentions that the cross-complaint is uncertain and fails to state facts sufficient to constitute a cause of action, the Shevitz rely on the purported existence of a what they describe as a longstanding, chain link fence that has represented or demarcated the boundary line between the Vernon property and the Shevitz property (collectively, the properties) from before the Vernons purchased the Vernon property in 2016 and which the Shevitz contend constitutes a “presumptive monument” under Civil Code section 841. (Demurrer at p. 3, ll. 17-21; p. 9, ll. 3-10; p. 13, ll. 1-27; p. 14, ll. 25-27; p. 16, ll. 5-6; p. 18, ll. 3-13 & 24-27; p. 19, ll. 1-13.) The Shevitz further contend that the failure by the Vernons to allege or reference in the cross-complaint the existence of a fence at the property line or the specific location of any trees at issue in this action with respect to the fence “enhances” the uncertainty and ambiguity of the cross-complaint because it is unclear to the Shevitz whether the trees were on the Vernons’ or the Shevitz’s side of the fence, the manner in which the Shevitz avoided or went around the fence to cut the trees, or whether the Vernons contend that the fence inaccurately demarcates the property line. (Ibid.)

Though the Vernons allege the existence of survey stakes delineating the boundary line between the properties, the Shevitz’s contentions demonstrate that the face of the cross-complaint does not disclose or allege the existence of a chain-link or other fence between the properties which demarcates the boundary line. For this reason, any contentions or assertions by the Shevitz that rely on the existence of a purported chain link fence demarcating the property line between the properties constitutes matters extrinsic to the cross-complaint which the court cannot consider on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider matters raised in memorandum and not otherwise pleaded]; Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500 [same; also noting that the court is precluded from weighing disputed facts on demurrer].) Furthermore, on demurrer, the court does not consider whether or not the allegations of the challenged pleading can be proven. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) For these reasons, to the extent the Shevitz rely on the purported existence of a chain link fence between the properties as grounds for the present demurrer, the demurrer is without merit.

Demurrer for uncertainty:

The Shevitz contend that the cross-complaint is uncertain because the Vernons have failed to allege that they were in control and possession of the land upon which the trees at issue were growing, that the trees were actually located on the Vernon property, that the Shevitz entered the Vernon property, or the manner in which the Shevitz entered the Vernon property. (Demurrer at p. 3, ll. 9-16 & 27-28; p. 4, ll. 1-5.)

A party may object by special demurrer on the grounds that the subject pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

As further discussed above, to the extent the demurrer for uncertainty relies on whether the Vernons have failed to allege the existence of a chain link fence demarcating the boundary line between the subject properties, the demurrer is without merit and will be overruled.

Moreover, the Shevitz’s recitation of facts alleged in the cross-complaint with respect to the conduct which the Vernons allege constitutes an unlawful trespass demonstrates that the cross-complaint is not unintelligible or ambiguous and that the Shevitz understand the issues and the nature of the claims alleged against them. (See Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [a party “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”]; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) For this reason, the cross-complaint is not so incomprehensible that the Shevitz cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

Furthermore, and as further detailed above, the Vernons expressly allege in the cross-complaint that the Shevitz entered the Vernon property while the Vernons were on vacation for the purpose of cutting or removing trees on the Vernon property or its boundary line. Whether the Shevitz did or did not enter the Vernon property to cut and remove trees, including the circumstances under which any trees were purportedly removed, are facts presumptively within the knowledge of the Shevitz. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [demurrer for uncertainty should be overruled when uncertain facts are within defendant’s knowledge].) In addition, to the extent the cross-complaint is in some respects uncertain with respect to the location of the trees at issue or the manner in which any trees were purportedly removed, these “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Therefore, and for all reasons discussed above, the court will overrule the demurrer for uncertainty.

The demurrer to the first cause of action:

For all reasons further discussed above, to the extent the demurrer to the first cause of action for willful trespass is based on a failure by the Vernons to allege the existence of a chain link fence between the properties, the demurrer will be overruled.

With respect to the first cause of action for willful trespass, apart from asserting the existence of the chain link fence as further discussed above, the Shevitz further contend that the cross-complaint fails to state facts sufficient to constitute a cause of action because the Vernons have failed to allege their possession or control of the land upon which the alleged trespass occurred, and failed to allege facts to show that either a trespass occurred or that any trees at issue were actually injured.

The essential elements of a cause of action for trespass are” “1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

Here, the Vernons expressly allege that they own the Vernon property. (See Cross-Compl., ¶ 1; see also Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1106 (Veiseh) [the existence of legal rights in the land is not necessary to maintain an action for trespass].) In addition, it can be inferred from the express allegations of the cross-complaint that the Vernons were in exclusive possession of the Vernon property at the time the trees were cut and removed. (See McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173 (McBride) [“[t]respass is an invasion of the plaintiff’s interest in the exclusive possession of land”]; Veiseh, supra, 35 Cal.App.5th at p. 1106 [a person in actual or lawful possession of property may maintain an action for trespass].)

In addition, the facts alleged in the cross-complaint as further described above are sufficient to demonstrate that the alleged entry onto the Vernon property by the Shevitz was not authorized by the Vernons. (McBride, supra, 18 Cal.App.5th at p. 1174.) Assuming the truth of the allegation that the Shevitz entered upon the Vernon property for the purpose of cutting and removing trees located on the Vernon property, these facts are sufficient for present purposes to show a direct and forcible harm to the Vernon property. (See Gallin v. Poulou (1956) 140 Cal.App.2d 638, 641 [a trespass may be committed by “consequential and indirect” or “direct and forcible” injuries].)

To the extent the Shevitz contend that the Vernons have failed to allege facts sufficient to constitute a trespass because the allegations show that some of the trees were on the boundary line between the subject properties, the demurrer cannot be sustained. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 (Kong) (“a demurrer cannot rightfully be sustained to part of a cause of action ….”].) Further, “[t]rees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.” (Civ. Code, § 834.) “As such, neither owner ‘is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.’ [Citation.]” (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278.) For these reasons, the contention that the first cause of action fails to the extent the allegations show that some of the trees which were allegedly cut and removed by the Shevitz were not located on land exclusively owned and possessed by the Vernons is also without merit.

The allegations of the cross-complaint further discussed above are also sufficient to allege a cause of action under Civil Code section 3346, subdivision (a), based on “an intentional crossing of boundary lines into [the Vernon property] to injure timber.” (Russell v. Man (2020) 58 Cal.App.5th 530, 537.) Though the Shevitz appear to contend that the Vernons must include in the cross-complaint facts showing the specific location of each tree that was cut or removed or the type or size of each tree including whether the trees were deciduous or actually hedges or shrubs, these contentions are unfounded and without adequate support. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608 [general discussion of pleading requirements].)

With respect to the Shevitz’s apparent contention that the Vernons are not entitled to recover double or treble damages under Civil Code section 3346 or Code of Civil Procedure section 733, a demurrer challenges only the legal sufficiency of the pleading at issue. (See Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732; Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381 [trial courts should not be “distracted from the main issue, or rather, the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action”].) Therefore, even if a pleading “prays for relief to which the [pleader] is not entitled, or fails to seek the proper relief,” is it nevertheless good against a general demurrer “if it pleads facts sufficient to show that the pleader is entitled to some equitable relief.” (Woodley v. Woodley (1941) 47 Cal.App.2d 188, 190-191; see also Moropoulos v. C.H. & O.B. Fuller Co. (1921) 186 Cal. 679, 688 [“[t]he prayer for damages itself is not a part of the complaint, subject to demurrer, and the fact that plaintiff has prayed for exemplary damages, or any other relief to which he may not be entitled does not affect the sufficiency of his complaint”].) For these reasons, the demurrer to the damages claimed in the cross-complaint is also unmeritorious.

It is also the court’s understanding that the Shevitz contend that the first cause of action fails to allege facts sufficient to show any willful conduct by the Shevitz. “Liability for trespass may be imposed for conduct which is intentional, reckless, negligent or the result of an extra-hazardous activity.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 (Staples).) Generally, “the term ‘willful’ has no ‘single, uniformly applicable’ definition, it refers generally to intentional conduct undertaken with knowledge or consciousness of its probable results. [Citation.] Willful conduct does not require a purpose or specific intent to bring about a result. However, it does require more than negligence or accidental conduct.” (Patarak v. Williams (2001) 91 Cal.App.4th 826, 829.) For these reasons, allegations that the Shevitz intended to cross onto the Vernon property without permission for the purpose of cutting and removing trees are sufficient to show willful conduct by the Shevitz. (See Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480-1481 [allegations that a trespasser intended “to be at the place on the land where the trespass allegedly occurred” were sufficient].)

Further, to the extent the Shevitz challenge the Vernons’ ability to allege or establish damages including whether they are entitled to treble damages for willful conduct, the court will overrule the demurrer for reasons further discussed above. (Kong, supra, 108 Cal.App.4th at p. 1047 [demurrer to a particular type of damages or remedy cannot be sustained]; see also Staples, supra, 189 Cal.App.3d at p. 1406 [nominal damages may be recovered for trespass]; Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645 [“double” damages under Civil Code section 3346 and Code of Civil Procedure section 733 “must be applied whether the trespass be wilful and malicious or casual and involuntary”].)
 

For all reasons discussed above, the court finds that the Vernons have alleged facts sufficient to state a cause of action for willful trespass. Therefore, the court will overrule the demurrer to the first cause of action alleged in the cross-complaint.

Demurrer to the second cause of action:

Regarding the second cause of action for negligent trespass, the Shevitz contend that the cause of action is redundant and that the Vernons cannot use the same allegations to support a different theory of liability. The Vernons may plead “alternative inconsistent theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.) Moreover, redundancy is not grounds for a demurrer. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 302-303.) For these reasons, the court will also overrule the demurrer to the second cause of action alleged in the cross-complaint.

(2) Motion To Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) On a motion to strike, the court reads the allegations of the subject pleading “as a whole, all parts in their context” and assumes their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

The Shevitz request that the court strike from the cross-complaint all allegations and claims for treble, punitive, or exemplary damages on the grounds that the Vernons have failed to allege facts demonstrating malice, fraud, or oppression by the Shevitz. In their opposition to the motion to strike, the Vernons assert that “this is not a standard claim for exemplary damages, but one based upon trespass to timber.” (Opp. Motion to Strike at p. 4, ll. 15-18.) Accordingly, the opposition of the Vernons is directed solely to whether they have alleged facts sufficient to recover treble damages under Code of Civil Procedure section 733.

“An award of treble damages for the cutting of, injury to or removal of timber is authorized by two code sections: section 733 of the Code of Civil Procedure and section 3346 of the Civil Code. Although neither section expressly so provides, it is now settled that to warrant such an award of treble damages it must be established that the wrongful act was willful and malicious. [Citations.] … The intent required is the intent to vex, harass, or annoy or injure the plaintiff.” (Caldwell v. Walker (1963) 211 Cal.App.2d 758, 762, fn. omitted (Caldwell).)

As expressly noted by the court in Caldwell, the “particular inquiry” in that case was “directed to the factual ingredients essential to establish the willful and malicious act and to uncover the requisite intent which prompts it.” (Caldwell, supra, 211 Cal.App.2d at p. 763.) In conducting its analysis, the Caldwell court examined the decisions in Fick v. Nilson (1950) 98 Cal.App.2d 683 (Fick), in which the evidence was determined to be insufficient to demonstrate malice or an intent to injure by the defendant, and Roche v. Casissa (1957) 154 Cal.App.2d 785 (Roche), in which the defendant knew the trees at issue were not on his land and cut them down to improve his view. (Caldwell, supra, 211 Cal.App.2d at p. 763; see also Fick, supra, 98 Cal.App.2d at p. 686 [the existence of “confusing” evidence of ownership and evidence showing that the defendant had cut down trees in an effort to protect his own property and not to injure another were insufficient to demonstrate malice]; Roche, supra, 154 Cal.App.2d at pp. 788-789 [evidence that defendant knew the trees he cut down were not on his own land and had made no effort to determine title supported a finding of malicious conduct].)

The decisions in Caldwell, Fick, and Roche are, for present purposes, instructive. For example, as further discussed above, the Vernons have sufficiently alleged a willful trespass by the Shevitz onto the Vernon property for the purposes of cutting and removing trees that were located either on the Vernon property or on the boundary line between the properties. Giving the cross-complaint a reasonable interpretation, including facts which may be inferred from those expressly alleged, the trier of fact could find that the entry onto the Vernon property without permission for the purpose of cutting and removing trees from the Vernon property or its boundary line constitutes a reckless disregard of or indifference to the rights of the Vernons. (Caldwell, supra, 211 Cal.App.2d at p. 766.) For this reason, the Vernons have alleged facts sufficient to show malice and to support an award of treble damages under Civil Code section 3346 and Code of Civil Procedure section 733.

As the allegations of the cross-complaint are sufficient to support a finding of malice for purposes of an award of statutory treble damages, they are also sufficient to demonstrate a willful and conscious disregard of the Vernons’ rights under Civil Code section 3294, subdivision (a). (Civ. Code, § 3294, subd. (c)(1) [defining “malice” to include conduct intended to cause injury or “despicable conduct” carried on with a “willful and conscious disregard of the rights … of others”].) A reasonable trier of fact could also conclude that the entering onto another’s property without permission and for the purpose of cutting or removing trees while the property owner is out of the country under the circumstances alleged in the cross-complaint constitutes despicable conduct sufficient to support an award of punitive damages under Civil Code section 3294. (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872 [general discussion of despicable conduct under Civ. Code, § 3294, subd. (c)(1); see also Marshall v. Brown (1983) 141 Cal.App.3d 408, 418 [“statutory damages and punitive damages arising out of the same cause of action are not mutually exclusive”].)

The Shevitz also move to strike allegations made on information and belief regarding whether the Shevitz were aware that the Vernons were on vacation when the alleged tree cutting and removal occurred. A party “may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” (Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792; see also Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551 [in appropriate cases a plaintiff may rely on the “doctrine of less particularity” to the extent a defendant has withheld or concealed evidence].) When allegations are based on information and belief, the pleader “must allege ‘information that “lead[s] [the plaintiff] to believe that the allegations are true.” ’ [Citation.]” (Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.)

It can be inferred from the allegations of the cross-complaint that the Vernons do not possess personal knowledge of the circumstances surrounding the alleged cutting and removal of trees from the Vernon property while the Vernons were out of the country. The Vernons further and expressly allege that the trees were cut and removed while they were away for the purpose of concealing this conduct and in order to support the allegations of the complaint filed in this action by the Shevitz. These assertions are sufficient to plead information that would lead the Vernons to believe that the allegation that the Shevitz knew the Vernons were on vacation during the time they allegedly cut and removed the trees is true. Any ambiguities regarding these allegations can be clarified during discovery. Therefore, the court will deny the motion to strike these allegations.