Jill Dore Kent vs Thomas S Schrock et al

Case Number

23CV05486

Case Type

Hearing Date / Time

Fri, 06/14/2024 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of defendants is sustained, in part with leave to amend, as to the first cause of action alleged in plaintiff’s complaint. As to the second cause of action alleged in plaintiff’s complaint, the demurrer of defendants is overruled.

(2) For all reasons discussed herein, the motion of defendants to strike portions of plaintiff’s complaint is granted, in part, with leave to amend. Paragraph 25 of the complaint and prayer paragraph 4, appearing at line 14 of page 6, shall be stricken. Except as otherwise herein granted, the motion to strike of defendants is denied.

Background:

On December 12, 2023, plaintiff Jill Dore Kent, individually and as Trustee of the Jill Dore Kent Living Trust, UTD 2/28/06 (Kent), filed a verified complaint against defendants Jean Schrock and Thomas Schrock, individually and as Trustees of the Schrock Living Trust dated 3/29/96 (Schrock), alleging two causes of action: (1) violation of city ordinance; and (2) nuisance. As alleged in the complaint:

Kent owns real property commonly known as 1406 Grand Avenue in Santa Barbara, California (the Kent Property). (Compl., ¶ 1.) Schrock own real property commonly known as 1409 Grand Avenue in Santa Barbara, California (the Schrock Property). (Id. at ¶ 2.) The Kent Property and Schrock Property are situated across from each other at Kent’s southerly and Schrock’s northerly boundaries. (Id. at ¶ 3.)

Kent has enjoyed views from the Kent Property since acquiring ownership on March 31, 1995. (Compl., ¶ 11.) Schrock has allowed a Melaleuca tree (the tree) and shrubbery to grow on the Schrock Property without adequate pruning or shaping to protect Kent’s view from the Kent Property. (Id. at ¶ 12.) Kent also believes that the tree and shrubbery constitute a “Spite Fence” under Civil Code section 841.4, which was installed or maintained in order to obstruct the views from the Kent Property. (Id. at ¶ 16.)

On April 24, 2023, Kent notified Schrock of her complaints regarding the obstruction of her view by the tree and shrubbery. (Compl., ¶¶ 6-7 & Exh. 3.) On August 1, 2023, Kent gave a second notice to Schrock offering to mediate the dispute. (Id. at ¶ 8 & Exh. 4.) On October 1, 2023, Kent gave a final notice to Schrock requesting mediation. (Id. at 9 & Exh. 5.) Schrock continues to plant and cultivate the tree and Spite Fence so as to continue the obstruction of Kent’s views. (Id. at ¶ 19.)

On May 1, 2024, Schrock filed a demurrer to the first and second causes of action alleged in the complaint on the grounds that Kent has failed to state facts sufficient to constitute a cause of action or to establish a right to the relief requested by Kent. Also on May 1, 2024, Schrock filed a motion to strike portions of the complaint on the grounds that the matters stated therein are false, irrelevant, or improper.

Kent opposes the demurrer and motion to strike.

Analysis:

(1) Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The complaint is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “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.)

The first cause of action for violation of city ordinance:

In the first cause of action alleged in the complaint, Kent asserts that the City of Santa Barbara enacted Santa Barbara Ordinance No. 5220 (the Ordinance), which Kent alleges added Chapter 22.76 to Title 22 of the Santa Barbara Municipal Code (the Municipal Code). (Compl., ¶¶ 6, 10.) Kent alleges that she has complied with the prerequisites of the Ordinance and seeks restoration of the view which has existed since the time Kent purchased the Kent Property and which has been wrongfully and unreasonably interfered with by the tree and shrubbery on the Schrock Property. (Id. at ¶¶ 12, 13.) Kent further alleges that Schrock has failed to meet and confer regarding Kent’s claims and has failed to abate the obstruction of the view from the Kent Property. (Id. at ¶ 14.)

In the demurrer, Schrock contends that Kent has failed to allege or demonstrate compliance with the claims process provided in the Ordinance. Specifically, Schrock asserts that plaintiff has failed to allege facts, with either the requisite particularity or documentation and supporting evidence, regarding the prior views that have been obstructed by the tree and shrubbery at issue, the location of the tree and shrubbery alleged to have caused an unreasonable obstruction, or the specific restoration action sought by Kent in compliance with “section 22.76.050.B”. (Demurrer at p. 6, ll. 7-11.) Because Kent has failed to facts demonstrating compliance with the claims process outlined in the Ordinance, Schrock argues, Kent has not alleged a “claim” that is capable of judicial resolution under the relevant provisions of Chapter 22.76 of the Municipal Code.

Though the parties refer in their papers to the Ordinance, a reasonable interpretation of the complaint, together with the parties’ respective contentions as stated in the demurrer and opposition thereto, demonstrates that the claims alleged in the first cause of action are based on the provisions of Municipal Code section 22.76.010 et seq., which appear in Chapter 22.76 (entitled “View Dispute Resolution Process”) of Title 22 of the Municipal Code. (Note: Undesignated code references shall be to the Municipal Code unless otherwise stated.)

When the court interprets a statute, its “fundamental task … is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.)

The express stated intent and purpose of Chapter 22.76 of the Municipal Code is to, among other things, “[e]stablish the right of a real property owner to preserve scenic views … free from unreasonable obstructions caused by the growth of trees under circumstances where such views and sunlight access existed prior to the growth of the unreasonable obstruction”, “[e]stablish that real property owners are in need of a process to resolve disputes among themselves concerning view or sunlight access within the immediate vicinity of their property”, and “[e]stablish procedures and evaluation criteria by which private real property owners may seek a mutually acceptable resolution of such views or sunlight access disputes.” (Santa Barbara Mun. Code, § 22.76.020, subds. (A)-(C).) To accomplish its stated intent and purpose, the provisions of Chapter 22.76 set forth a “private view dispute resolution process” available to an owner of real property. (Santa Barbara Mun. Code, § 22.76.040, subd. (A).)

Chapter 22.76 defines a “complainant” as “[a]ny property owner, group of property owners (or an authorized agent thereof) who allege that tree(s)/vegetation located within the immediate vicinity of their property as set forth in Section 22.76.040 is causing unreasonable obstruction of the view or blocking the sunlight benefiting the real property of the [c]omplainant.” (Santa Barbara Mun. Code, § 22.76.030.) Schrock does not effectively dispute that the allegations of the complaint establish that Kent is a “property owner” who alleges that a tree or vegetation is causing an alleged unreasonable obstruction of the view benefiting the Kent Property.

Under section 22.76.090, “[i]f a [c]omplainant has pursued and has been unsuccessful in attempting to obtain an acceptable restoration under Section 22.76.060 (‘Initial Discussion’), Section 22.76.070 (‘Mediation’), or Section 22.76.080 (‘Arbitration’), the Complainant may initiate a civil action in Superior Court for the County of Santa Barbara for resolution of owner’s view or sunlight claim under the provisions of this chapter.” (Santa Barbara Mun. Code, § 22.76.090, subd. (A).) Accordingly, the present action is generally authorized under the provisions of Chapter 22.76.

Relevant provisions of Chapter 22.76 provide that, before filing a civil action under section 22.76.090, a complainant must pursue an initial discussion with the owner of the tree or vegetation at issue as described under section 22.76.060, subdivision (A). (Santa Barbara Mun. Code, § 22.76.090, subd. (A).) If the initial discussion is refused or fails to achieve an agreement between the parties with respect to the obstruction or an appropriate restoration action, the complainant may then “proceed with the subsequent dispute resolution process outlined herein with respect to mediation, arbitration, and court action.” (Santa Barbara Mun. Code, § 22.76.060, subd. (C).)

The plain language of the provisions cited above shows that the dispute resolution process described in Chapter 22.76 includes the civil action authorized in section 22.76.090, subdivision (A). Therefore, based on the stated intent and purpose of Chapter 22.76 and the plain language of its provisions further discussed above, a complainant who files an authorized civil action to resolve a view claim must comply with the provisions of the dispute resolution process described therein. (See Santa Barbara Mun. Code, § 22.76.060, subd. (C).) For this reason, Kent must allege compliance, or an exemption from compliance, with the provisions of the dispute resolution procedure outlined in Chapter 22.76 of the Municipal Code.

To the extent Schrock contends that Kent was required to pursue mediation or arbitration under Chapter 22.76, the plain language of its provisions are permissive and not mandatory in this regard. (See Santa Barbara Mun. Code, §§ 22.76.070, subd. (A); 22.76.080, subd. (A).) Furthermore, in the complaint, Kent alleges or effectively alleges that on April 24, 2023, she advised Schrock of the view concerns and invited Schrock to meet and confer to discuss Kent’s complaints. (Compl., ¶ 7 & Exh. 3; see Santa Barbara Mun. Code, § 22.76.060, subds. (A)-(C) [requiring a complainant to first advise the tree or vegetation property owner of view concerns and to request personal discussions].) Though not required under section 22.76.060, subdivision (C), Kent further alleges that on August 1 and October 31, 2023, she offered to mediate the present dispute which Schrock refused. (Compl., ¶¶ 8 & 9 & Exhs. 4 & 5; see Santa Barbara Mun. Code, § 22.76.070, subds. (A)-(D) [setting forth the process for requesting and conducting a mediation].) Schrock offers no reasoned argument to demonstrate that Kent failed to sufficiently advise them of the blockage concerns or otherwise failed to comply with the provisions of section 22.76.060. The express allegations of the complaint including facts which may be reasonably inferred from those expressly alleged demonstrate that the initial discussions did not result in a mutually agreeable solution with respect to the existence or nature of the alleged obstruction or an appropriate restoration action. (See Santa Barbara Mun. Code, § 22.76.060, subd. (A)-(C).)

Regarding Schrock’s contention that Kent has failed to allege a “claim” under Chapter 22.76, though the terms “view or sunlight claim” which appear in section 22.76.090 are not specifically defined in that section, the term “Claim.View or Sunlight” is defined under section 22.76.030 as “[d]ocumentation, as set forth in Section 22.76.050, that outlines the basis of view or sunlight access diminishment and the specific restoration action that is being sought….” (Santa Barbara Mun. Code, § 22.76.030.) The code further provides that the “documentation” described in section 22.76.050 “shall serve as the written basis for … a legal cause of action under the provisions of this chapter.” (Ibid.)

Section 22.76.050 requires that a “view … restoration dispute resolution process claim shall” include the documentation and evidence described in subdivision (B)(1) through (5) of that section. Subdivision (B)(1) of section 22.76.050 requires that the claim include “evidence” of the prior view. (Santa Barbara Mun. Code, § 22.76.050, subd. (B)(1).) The “evidence” that must be included in a claim includes a “written description of the nature and extent of the alleged obstruction, including pertinent and corroborating photographic evidence” which “may” include photographic prints or written declarations and which “should, if possible, “show the extent to which the view or sunlight access has been diminished over time by the excessive growth of the trees or vegetation[.]” (Ibid.) In addition, the claim must include “[t]he location of all trees or vegetation alleged to cause the obstruction, the address of the property upon which the trees or vegetation are located, the present tree/vegetation owner’s name and address[,] [¶] … [t]he specific view or sunlight access restoration actions being requested by the Complainant in order to resolve the allegedly unreasonable view obstruction[,] [¶] … [e]vidence that an initial discussion between the two property owners (as described in Section 22.76.060) has been made and has failed [which “may include, but is not limited to, copies of receipts for certified or registered mail correspondence][,] [] [and] [e]vidence confirming the ownership and the date of acquisition of the Complainant’s property.” (Santa Barbara Mun. Code, § 22.76.050, subd. (B)(2)-(5).)

In the complaint, Kent generally describes the nature of the alleged obstruction by the trees and shrubbery as blocking Kent’s views of the City of Santa Barbara and Pacific Ocean, and alleges that the tree and shrubbery are located on the Schrock Property, the address of the Schrock Property, and that Schrock owns the trees and shrubbery. These allegations are general and conclusory, and do not demonstrate that Kent has complied with the provisions of Chapter 22.76, including section 22.76.050, subdivision (B), or that Kent is exempt from compliance with these provisions.

For example, Kent fails to allege the specific nature and extent of the alleged obstruction including the location of the offending trees and shrubbery on the Schrock Property, or the specific view restoration actions requested by Kent. In addition, it is unclear based on the conclusory allegations of the complaint whether the evidence described in subdivision (B) of section 22.76.050 exists, or whether Kent alleges that she is exempt from compliance with these provisions or why. To the extent the documentation and evidence described in section 22.76.050 exists, it is unclear why it is not included as part of the private cause of action alleged in the complaint as required by that section. For example, Kent does not allege an exemption or exception from the provisions which refer to evidence or documentation of a dispute resolution process claim.

The examples provided herein are intended to be illustrative but not exhaustive, and the court declines to issue an advisory opinion as to what, if any, allegations would be sufficient to cure the deficiencies described herein. For all reasons described above, Kent has failed to allege facts sufficient to state a private cause of action under section 22.76.090, including a “claim” as provided or defined in Chapter 22.76. (Green v. Grimes-Stassforth Stationery Co. (1940) 39 Cal.App.2d 52, 56 [“[w]here a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute”].) Therefore, the court will sustain the demurrer to the first cause of action alleged in the complaint.

Though Kent generally requests leave to amend the complaint, Kent offers no reasoned argument showing a reasonable possibility that the defects addressed herein can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) Notwithstanding that Kent has failed to demonstrate the manner in which the complaint may be amended, as this is an original complaint which does not necessarily show on its face that it is incapable of amendment, the court will grant leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.)

As the court will sustain the demurrer, it is not necessary for the court to determine the merits of the additional grounds for demurrer to the first cause of action offered by Schrock. The court notes, however, that while section 22.76.020, subdivision (B), contemplates that the dispute resolution process will apply to disputes concerning view access within the “immediate vicinity” of the subject properties, that term is not defined in Chapter 22.76. Moreover, Kent alleges that the Schrock Property and the Kent Property are “situated across from each other” on the same street. (Compl., ¶ 3.) Schrock fails to explain with reasoned argument why this allegation does not demonstrate that the properties at issue are not within the “immediate vicinity” of each other as provided under the provisions of Chapter 22.76.

Moreover, the provisions of section 22.76.050, subdivision (A), requiring a complainant to notify the City Community Development Department of any request for mediation or arbitration under section Chapter 22.76 and provide claim documentation materials is for the express stated purpose of recordkeeping. (Santa Barbara Mun. Code, § 22.76.050, subd. (A).) The plain language of this provision does not require a complainant to allege and prove in a private cause of action filed under section 22.76.090 that the notification or claim documentation materials were provided. (See, e.g., Rental Housing Assn. of Northern Alameda County v. City of Oakland (2009) 171 Cal.App.4th 741, 754-756 [general discussion of burdens of proof provisions in local eviction ordinance]; Evid. Code, § 500.)

In addition, to the extent that any exhibit to the complaint includes allegedly false matter, falsity is not grounds for a demurrer. (Code Civ. Proc., § 430.10, subds. (a)-(h) [setting forth grounds for a demurrer]; see also Blank, supra, 39 Cal.3d at p. 318 [the court treats a demurrer as admitting all material facts properly pleaded].)

Second cause of action for nuisance:

In the second cause of action, Kent alleges as further discussed above that the tree and shrubbery constitute a Spite Fence under Civil Code section 841.4, were installed with the intent to obstruct Kent’s views and disrupt Kent’s quite use and enjoyment of the Kent Property, and will continue to grow and form a wall blocking all views from the Kent Property. (Compl., ¶ 16.) Kent further alleges that the existence of a purported Spite Fence forms part of a general scheme to annoy Kent and prevent Kent from enjoying the Kent Property. (Id. at ¶ 17.) For these reasons, Kent alleges, Schrock’s conduct constitute a nuisance under Civil Code section 3479 which Schrock has refused to abate despite Kent’s requests. (Id. at ¶¶ 18-19.)

In the demurrer to the second cause of action, Schrock contends that, because the nuisance claim alleged by Kent is predicated on the existence of the Spite Fence, Kent must plead facts with particularity sufficient to state a cause of action under Civil Code section 841.4. Because Kent has failed to allege facts showing that the tree and shrubbery constitute a ”structure” that exceeds 10 feet in height, that Schrock intentionally or maliciously erected or maintained the tree or shrubbery as a spite fence, that Schrock engaged in a scheme to annoy Kent, or that Kent owns adjoining property, Schrock argues, Kent has failed to allege a claim for private nuisance based on a spite fence under Civil Code section 841.4.

Civil Code section 841.4 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” constitutes a private nuisance per se. (Civ. Code, § 841.4; City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1163-1164 [discussion of nuisance per se].) “The spite fence statute expresses the judgment of the Legislature that a fence—that is, a structure built to separate or mark the boundary between two adjoining parcels—does not need to be more than 10 feet high to serve that purpose.” (Wilson v. Handley (2002) 97 Cal.App.4th 1301, 1309.) In addition, “[w]hat makes a spite fence a nuisance under section 841.4 is not merely that it obstructs the passage of light and air, but that it does so unnecessarily for the malicious purpose of annoyance.” (Id. at pp. 1311, 1312-1313 [also noting that while annoyance need not be the sole purpose for the fence, “it must at least be the ‘dominant’ purpose].)

Though there are no facts alleged in the complaint showing that the tree and shrubbery at issue exceed 10 feet in height as required by the express provisions of Civil Code section 841.4, and notwithstanding whether Kent has alleged facts sufficient to demonstrate that the Kent Property and Schrock Property are “adjoining” for purposes of Civil Code section 841.4 or a malicious intent by Schrock to annoy Kent, a reasonable interpretation of the complaint demonstrates that Kent also relies upon the provisions of Civil Code section 3479 to allege a nuisance claim. (Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 68 [“a general demurrer should not be sustained if the complaint, liberally construed, states a cause of action on any theory”].) Therefore, notwithstanding whether Kent has alleged facts sufficient to constitute a cause of action for nuisance per se under Civil Code section 841.4, Kent may allege a nuisance claim provided she has alleged facts sufficient to state a cause of action under Civil Code section 3479. (See Griffin v. Northridge (1944) 67 Cal.App.2d 69, 74-75 [finding that a fence that did not exceed 10 feet in height could still constitute a nuisance if it “was not constructed to serve the comfort of defendants but only to annoy and grieve plaintiffs”]; Haehlen v. Wilson (1936) 11 Cal.App.2d 437, 439-440 [noting parties relied on Civil Code section 3479 and not the statute “dealing with spite fences”].)
 

Under Civil Code section 3479, “[a]nything which is injurious to health, … or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.) “A nuisance may be a public nuisance, a private nuisance, or both. … ‘[A] private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.’ [Citation].” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341 (Newhall); see also Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [“a private nuisance is a civil wrong based on disturbance of rights in land”].)

The allegations of the complaint including facts which may be inferred from those expressly alleged show that Kent intends to allege a private nuisance based on an injury to, or a private right incidental to, her ownership of the Kent Property. (Newhall, supra, 19 Cal.App.4th at p. 342; see also Compl., ¶ 18 [alleging that the conduct of Schrock “constitutes a nuisance within the meaning of section 3479 of the Civil Code”].)

Though the allegations of the complaint show that Kent alleges a cause of action for private nuisance under Civil Code section 3479, the demurrer of Schrock to the second cause of action for nuisance is directed solely to whether Kent has alleged facts sufficient to state a cause of action under Civil Code section 841.4. Wholly absent from the demurrer is any reasoned argument to demonstrate why the allegations of the complaint are insufficient to allege a nuisance claim under Civil Code section 3479. Therefore, Schrock has failed to meet their burden to demonstrate that Kent has failed to allege facts stating a cause of action on any theory. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 200 [“[i]n a motion proceeding, the moving party usually has the burden of proving every fact essential to the relief requested”].)

In addition, the court may consider only the grounds stated in the notice and demurrer to determine whether Kent has failed to allege facts sufficient to state a cause of action for nuisance. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [the trial court is not required to consider grounds for relief not raised or sought by the moving party].) The court may also construe the absence of any supporting argument with respect to the nuisance claim alleged under Civil Code section 3479 as an admission that the demurrer is not meritorious and a waiver of this ground for demurrer. (Cal. Rules of Court, rule 3.1113(a) & (b).) Moreover, to the extent the demurrer addresses only part of the second cause of action with respect to claims alleged under Civil Code section 841.4, it cannot be sustained. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.)

For all reasons further discussed above, the court will overrule the demurrer of Schrock to the second cause of action alleged in the complaint.

(2) Motion To Strike

The motion to strike of Schrock requests an order striking matters alleged in paragraphs 14 and 25 of the complaint, prayer paragraphs 1 through 4, and the entirety of exhibit 6 of the complaint. “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).)

Paragraph 14:

Schrock requests that the court strike the portion of paragraph 14 of the complaint that alleges a “failure” of Schrock to meet and confer with reference to their claims….” (Compl., ¶ 14.) Schrock contends that the falsity of this allegation is apparent from paragraphs 2 and 3 of exhibit 6 to the complaint which, according to Schrock, describes their participation in meet and confer efforts with Kent.

The paragraphs of exhibit 6 referenced by Schrock ostensibly describe a meeting and conversations between Kent and the parents of Schrock, and not with Schrock. (See Compl., Exh. 6 at p. 1, ¶¶ 2 & 3.) Moreover, exhibit 6 notes that Schrock “failed to mention” a purported meeting between Kent and the parents of Schrock in a subsequent letter. (Ibid.) Schrock fails to explain how a meeting attended by, or a conversation with, persons other than Schrock demonstrate that Schrock did not fail to meet and confer with Kent. For this reason, the court will deny the motion to strike the allegations of paragraph 14 further described above.

Paragraph 25 and prayer paragraph 4:

Schrock requests that the court strike the entirety of paragraph 25 of the complaint and prayer paragraph 4, which each allege or state a claim for punitive damages. Schrock contends that Kent has failed to allege any facts or circumstances that demonstrate willful, oppressive, or malicious conduct by Schrock.

To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).)

“Malice” means “conduct which is intended by the defendant 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.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) While the term “despicable” is not defined in Civil Code section 3294, subdivision (c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property, legal rights, or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

Giving the allegations of the complaint a reasonable interpretation and assuming their truth, the claim for punitive damages alleged in the complaint is premised on the assertion that Schrock failed to adequately prune or shape the tree and shrubbery which resulted in an obstruction of views from the Kent Property, that Schrock did not comply with the requirements of Chapter 22.76, and that Schrock did not abate the obstruction of Kent’s view. The allegations of the complaint are conclusory and, at most, allege arguably careless conduct or ignorance by Schrock. For this reason, the allegations of the complaint are insufficient to support a claim for punitive damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211 [defendant’s carelessness, recklessness, or ignorance is insufficient to justify imposition of punitive damages].) Therefore, the court will grant the motion to strike the allegations appearing in paragraph 25 of the complaint and prayer paragraph 4, with leave to amend.

Prayer paragraphs 1 through 3:

Schrock contends that the preliminary and permanent injunction sought in prayer paragraph 1 is not supported by the allegations of the complaint because the allegations do not demonstrate any irreparable injury to Kent. Schrock also contends that Chapter 22.76 of the Municipal Code does not provide for an award of damages. For these reasons, Schrock contends, the court should strike the request for an injunction stated in prayer paragraph 1, and the requests for general, special, and consequential damages stated in prayer paragraphs 2 and 3.

Both damages and an injunction are remedies available to a person whose property or personal enjoyment is affected by a private nuisance. (See Code Civ. Proc., § 731; Civ. Code, § 3501; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1243.) Therefore, as the court will overrule the demurrer to the second cause of action for nuisance, the court will deny the motion to strike prayer paragraphs 1 through 3.

Exhibit 6:

Schrock contends that exhibit 6 to the complaint, which is a letter dated November 22, 2023, from counsel for Kent to the “Law Offices Of Edward Schrock”, refers to inadmissible settlement discussions which are protected under Evidence Code sections 1152 and 1154. For this reason, Schrock argues that the court should strike exhibit 6 from the complaint in its entirety.

In addition to the matters further described above, exhibit 6 to the complaint references an “ ‘offer’ of settlement” purportedly made in a letter dated November 17, 2023, by counsel for Schrock, and which was ostensibly rejected by Kent. Exhibit 6 also discusses Kent’s offer to mediate the present dispute and the commencement of litigation by Kent pursuant to Chapter 22.76 of the Municipal Code. (Compl., Exh. 6.)

Evidence of settlement communications is not admissible to prove liability. (Evid. Code, § 1152.) However, Schrock provides no legal authority or reasoned argument to support the contention that a mere reference to the existence or rejection of a settlement offer, without more, constitutes matter that may properly be stricken under Code of Civil Procedure section 436. Moreover, the matters stated in exhibit 6 appear to be essential to the claims alleged by Kent. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [matters essential to a cause of action should not be eliminated from a pleading].) Therefore, and for all reasons discussed above, the court will deny the motion of Schrock to strike exhibit 6 from the complaint.

(3) Request For Judicial Notice

Schrock requests that the court take judicial notice of the Ordinance which was adopted by the Santa Barbara City Council on January 15, 2022, and of Chapter 22.76 of the Municipal Code. (RFJN, ¶¶ 1-2 & Exhs. 1 & 2.)  Though not necessary for present purposes, the court will grant Schrock’s request for judicial notice of the Ordinance and of Chapter 22.76 of the Municipal Code. (Evid. Code, § 452, subs. (b).)

Schrock also requests that the court take judicial notice of two grant deeds, each of which were recorded in the official records of the County of Santa Barbara on August 2, 1966, and May 15, 1996. (RFJN, ¶¶ 3-4 & Exhs. 3 & 4.) The grant deeds, including the dates of their recordation or contents, do not appear to be relevant to the issues presented in the demurrer and motion to strike regarding whether Kent has stated facts sufficient to constitute a cause of action or whether the complaint includes matters which are irrelevant, false, improper, or otherwise do not conform to applicable law. (See Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) In addition, though the court may take judicial notice of the fact of recordation of the grant deeds, judicial notice does not extend to the truth or proper interpretation of their contents. (Evid. Code, § 452, subd. (c); Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) For these reasons, the court denies the request of Schrock for judicial notice of the grant deeds attached to the request as exhibits 3 and 4.

Schrock further requests that the court take judicial notice of a map and satellite image purporting to depict the respective locations of the Kent Property and Schrock Property. (RFJN, ¶¶ 5-6 & Exhs. 5 & 6.) The map and image constitute matters extrinsic to the complaint which may not be considered on demurrer. (See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500 [also noting that the court is precluded from weighing disputed facts on demurrer].) Therefore, the court will deny the request for judicial notice of the map and satellite image attached to the request as exhibits 5 and 6.