Tentative Ruling: Hillside Street Holdings, LLC, v. Noel Lucky, et al
Case Number
25CV08024
Case Type
Hearing Date / Time
Wed, 08/12/2026 - 10:00
Nature of Proceedings
(1) Demurrer to Complaint (2) Motion to Strike Portions of Complaint
Tentative Ruling
For Plaintiff Hillside Street Holdings, LLC: A. Barry Cappello, Richard Lloyd, Cappello & Noel LLP
For Defendants Noel Lucky and Jeffrey Ris, individually and as trustees of the Noel Lucky Living Trust: Briana E. McCarthy, Ron Zonen, McCarthy & Kroes
RULING
- For the reasons set forth herein, the demurrer of Defendants Noel Luck and Jeffrey Ris to the complaint of Plaintiff Hillside Street Holdings, LLC, is sustained, with leave to amend, as to the first (quiet title), second (breach of contract), third (breach of covenant of good faith and fair dealing), fourth (intentional misrepresentation), and fifth (negligent misrepresentation) causes of action. The demurrer is in all other respects overruled.
- The motion of Defendants to strike portions of the complaint is granted in part and denied in part. The motion is granted, with leave to amend, to strike from the prayer of the complaint, paragraph 1 in full, the words “third, fourth, fifth” from paragraph 4, the words “ordering Defendants to remove and/or relocate the solar panels currently obstructing the horizontal roof portion of the Lucky Property, and (2)” from paragraph 5, and paragraph 6 in full. The motion is denied in all other respects.
- Plaintiff shall file and serve its first amended complaint on or before August 27, 2026.
Background
As alleged in the complaint of Plaintiff Hillside Street Holdings, LLC (Hillside):
Hillside purchased property located at 2440 Calle Almonte, Santa Barbara (the Hillside Property) in November 2021. (Complaint, ¶ 8.) The Hillside Property is located in the Mesa area of Santa Barbara and has views of the Pacific Ocean. (Ibid.) Directly to the south of Hillside Property is a neighboring property (the Lucky Property) located at 1441 Calle Galicia. (Complaint, ¶ 9.) The Lucky Property is owned by Defendant Lucky Noel Living Trust (Trust). (Complaint, ¶ 9.) Defendants Noel Lucky and Jeffrey Ris are co-trustees of the Trust. (Complaint, ¶ 3.)
After purchasing the property Hillside began planning significant renovation. (Complaint, ¶ 10.) As part of that planning, Hillside contacted Defendants to confirm that no structure, building, or other obstructions would be placed on the horizontal roof portion of the Lucky Property that would obstruct Hillside’s view. (Ibid.) Hillside also requested permission to replace the material on the horizontal portion of the Lucky Property with an artificial turf material to further enhance Hillside’s view. (Complaint, ¶ 11.) Defendants agreed that Hillside could proceed if it so desired. (Ibid.) By this, Hillside and Defendants entered into an agreement (the Roof Agreement) in which Defendants promised that no structure, building, or other obstructions would be placed by Defendants on the horizontal roof portion of the Lucky Property that obstructed Hillside’s view of the Pacific Ocean and Channel Islands, and that Hillside had the right to resurface the roof portion at its discretion. (Ibid.)
In reliance on the Roof Agreement, Hillside proceeded to design and undertake substantial renovations to the Hillside Property. (Complaint, ¶ 12.) In December 2022, Hillside began using the Hillside Property as a full-time residence. (Complaint, ¶ 13.)
In October 2023, Ms. Lucky informed Hillside that she was instructing her gardener to perform light pruning of branches of a mature olive tree located on the Hillside Property. (Complaint, ¶ 14.) Hillside agreed to light pruning. (Ibid.) Hillside was surprised to observe that the pruning resulted in the removal of multiple mature branches from the olive tree, impairing the appearance and utility of the olive tree. (Ibid.)
On February 25, 2024, Ms. Lucky entered the Hillside Property without permission and removed one of the largest branches of the olive tree, which provided Hillside with substantial privacy and screening of Defendants’ house. (Complaint, ¶ 16.)
In March 2024, Defendants entered the Hillside Property without permission and installed a series of rock steps to facilitate access to landscaping on the Lucky Property. (Complaint, ¶ 15.) The rock steps were used routinely by Defendants until removed on May 7, 2024. (Ibid.)
In June 2024, Hillside learned that Defendants had installed a series of solar panels on the horizontal portion of the Lucky Property that is subject to the Roof Agreement. (Complaint, ¶ 18.) The solar panels stand approximately 18 inches above the horizontal portion of the Lucky Property, are visible from the Hillside Property, and obstruct a significant portion of the ocean view. (Ibid.)
On December 23, 2025, Hillside filed its original verified complaint in this action asserting seven causes of action: (1) quiet title; (2) breach of contract; (3) breach of good faith and fair dealing; (4) intentional misrepresentation; (5) negligent misrepresentation; (6) trespass; and (7) private nuisance.
On May 4, 2026, Defendants filed their demurrer to each cause of action of the complaint. Defendants concurrently filed a motion to strike portions of the complaint.
Hillside opposes both the demurrer and motion to strike.
Analysis:
(1) Requests for Judicial Notice
In support of its opposition to the demurrer, Hillside requests that the Court take judicial notice of: (Plaintiff’s Request for Judicial Notice, exhibit 1) a proof of state registration of Hillside filed with the California Secretary of State; and (exhibit 2) a Notice of Lis Pendens, recorded on July 27, 2026. The Court will grant judicial notice of these documents. (See Evid. Code, § 452, subds. (c), (h).) Judicial notice does not extend to the truth of factual matters set forth in such documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)
(2) Demurrer
“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
(A) Quiet Title
Hillside’s first cause of action is for quiet title.
“An action may be brought under this chapter to establish title against adverse claims to real or personal property or any interest therein.” (Code Civ. Proc., § 760.020, subd. (a).)
“The complaint shall be verified and shall include all of the following:
“(a) A description of the property that is the subject of the action. … In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
“(b) The title of the Plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
“(c) The adverse claims to the title of the Plaintiff against which a determination is sought.
“(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
“(e) A prayer for the determination of the title of the Plaintiff against the adverse claims.” (Code Civ. Proc., § 761.020.)
Defendants argue that Hillside has failed to plead sufficient facts to state this cause of action because the Roof Agreement is insufficient to establish an interest in the Hillside Property and because any such interest is void under Civil Code section 714.
One without any title or interest in the property cannot maintain an action to quiet title. (Osborne v. Abels (1939) 30 Cal.App.2d 729, 731.) On the other hand:
“For purposes of quiet title actions, a claim ‘includes a legal or equitable right, title, estate, lien, or interest in property or cloud upon title.’ (§ 760.010, subd. (a).) The term ‘claim’ ‘is intended in the broad[est] possible sense. [Citation.] The adverse claim is not required to ‘be of any particular character.’ [Citation.] A quiet title action is ‘ “not confine[d] ... to the case of an adverse claimant setting up a legal title or even an equitable one; but the [statute] intended to embrace every description of claim whereby the Plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or whereby the Plaintiff might be incommoded or damnified by the assertion of an outstanding title already held or to grow out of the adverse pretension.” ’ [Citation.]” (Water for Citizens of Weed California v. Churchwell White LLP (2023) 88 Cal.App.5th 270, 281.)
Here, the character of the real property claim alleged by Hillside is insufficiently specific. Hillside asserts in opposition that the interest alleged is an irrevocable license. (Opposition, at pp. 10-11.)
“A licensee has express or implied authority from the owner to perform an act or acts upon property. Like an easement, it is an interest in property which is less than an estate. [Citation.] A primary distinction is that a license is normally revocable at will. [Citation.] Although a license which is not terminable at will is somewhat anomalous [citation], it has been recognized.” (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 36.)
“[A] license may become irrevocable when a landowner knowingly permits another to repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the continuation of the license, has expended time and a substantial amount of money on improvements with the licensor’s knowledge. Under such circumstances, it would be inequitable to terminate the license. [Citation.] In that case, the licensor is said to be estopped from revoking the license, and the license becomes the equivalent of an easement, commensurate in its extent and duration with the right to be enjoyed.” (Richardson v. Franc (2015) 233 Cal.App.4th 744, 751 (Richardson).)
“In the paradigmatic case, a landowner allows his neighbor the right to use some portion of his property—often a right-of-way or water from a creek—knowing that the neighbor needs the right to develop his property. The neighbor then builds a house, digs an irrigation ditch, paves the right-of-way, plants an orchard, or farms the land in reliance on the landowner’s acquiescence. Later, after failing to make a timely objection, the landowner or his successor suddenly raises legal objections and seeks to revoke the neighbor’s permissive usage.” (Richardson, supra, 233 Cal.App.4th at pp. 751–752.)
Assuming an irrevocable license is an appropriate characterization of Hillside’s alleged interest (see note below), the otherwise terminable-at-will license may become irrevocable as a matter of estoppel based upon substantial reliance. Here, Hillside seeks to determine rights as of when the Roof Agreement was made, i.e., at the time Hillside discussed the matter with Defendants. (Complaint, ¶¶ 10, 11, 27.) Hillside also alleges that reliance followed the agreement. (Complaint, ¶¶ 12, 23.) The complaint cannot be fairly read to allege that substantial reliance sufficient to make a license irrevocable occurred on the same date that the Roof Agreement was made. Whether or not there was sufficient substantial reliance subsequent to the making of the Roof Agreement, the allegations are insufficient to show substantial reliance as of the date when the Roof Agreement was made. Consequently, Hillside alleges only a terminable-at-will license as of that date and does not allege a property interest sufficient to state a cause of action to quiet title as of that date. The demurrer to this cause of action will be sustained on this ground.
As the above quotation mentions, a license is defined in this context as express or implied authority to another from the owner of the servient property to perform an act or acts upon servient property. Here, there are two different rights asserted. One asserted right is to avoid obstruction of Hillside’s view; the other asserted right is to replace the material on the horizontal portion of the Lucky Property. (Complaint, ¶¶ 10, 11.) The latter is authority for Hillside to act on the servient property, something that easily could fall within the definition of a license. The former is an asserted obligation of Defendants to refrain from doing something with their own land, something that does not fall directly within this definition of a license. To the extent that this distinction may have some impact upon later proceedings (about which the Court expresses no opinion), the Court raises the issue so that the parties may address this matter if and when it becomes relevant. In the present context, because the asserted right to replace material is alleged to fall within this definition and so would not be a basis for a demurrer to the entire cause of action even if the other asserted right fell outside the definition, it is not a matter relevant to this demurrer. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [a demurrer cannot be sustained to part of a cause of action].)
Defendants also argue that any such alleged agreement would be void by the application of Civil Code section 714.
“Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.” (Civ. Code, § 714, subd. (a).)
“This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (Civ. Code, § 714, subd. (b).)
Hillside alleges that an alternative placement of solar panels consistent with the Roof Agreement would be reasonable. (Complaint, ¶ 19.) Reasonableness of a restriction on solar energy system installation is an issue of fact. (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 630–631.) Consequently, Hillside’s allegations are sufficient, for pleading purposes, to avoid the application of section 714, subdivision (a). The demurrer will not be sustained on this ground.
(B) Contract Claims
Hillside’s second cause of action is for breach of contract. “A cause of action for breach of contract requires pleading of a contract, Plaintiff’s performance or excuse for failure to perform, Defendant’s breach and damage to Plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
Defendants argue that Hillside has failed to plead mutual assent, definite terms, or consideration, that Hillside has failed to plead whether the alleged contract is written, oral, or implied, and that Civil Code section 714 bars any solar-placement restriction.
Hillside alleges: “Plaintiff and Defendants entered into an agreement that no structure, building or other obstructions would be placed by Defendants on the horizontal roof portion of the Lucky Property that obstructed Plaintiff’s view of the Pacific Ocean and Channel Islands, and that Plaintiff had the right to resurface the roof portion, at its discretion (the ‘Roof Agreement’).” (Complaint, ¶ 29.)
The agreement asserted in this allegation is not asserted to be oral or in writing. In opposition, Hillside argues that the allegations that “Plaintiff contacted Defendants to confirm” (Complaint, ¶ 10) and that “Plaintiff also requested permission” and “Defendants agreed” (Complaint, ¶ 11) imply an oral agreement. Such text is equally consistent with a written agreement, such as by email. Further complicating the allegations, Plaintiff is a limited liability company (Complaint, ¶ 2) and Defendants are multiple persons (Complaint, ¶ 3). No allegation sets forth who communicated with whom. The special demurrer will be sustained on the ground that the complaint fails to plead whether the contract is oral, written, or implied. (See Code Civ. Proc., § 430.10, subd. (g).)
While consideration is presumed for contracts in writing (Civ. Code, § 1614), consideration must be pleaded for an oral contract. (Acheson v. W.U. Tel. Co. (1892) 96 Cal. 641, 644.) Here, the promises alleged entirely burden Defendants and do not show an obvious benefit to Defendants. The element of a contract is insufficiently pleaded in this cause of action because consideration is not alleged. The demurrer will be sustained on that ground. The Court notes that Hillside alleges this cause of action as breach of contract rather than as an action based on promissory estoppel. Accordingly, the Court does not analyze this cause of action under a promissory estoppel theory.
For the same reasons discussed above, the Court will not sustain the demurrer on the grounds that Civil Code section 714 voids the contract.
Hillside’s third cause of action is for breach of the implied covenant of good faith and fair dealing.
“Breach of the covenant of good faith and fair dealing is nothing more than a cause of action for breach of contract.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1344.) “The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48-49.)
For the reasons discussed above, Hillside has failed adequately to allege the contract. Consequently, the demurrer will be sustained to this cause of action.
(C) Fraud Claims
Hillside’s fourth cause of action is for intentional misrepresentation. Defendants argue that Hillside has not alleged this cause of action with sufficient particularity, that Hillside pleads only a future promise, and that Hillside otherwise does not plead facts for reasonable reliance, causation, and damages.
“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] … [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Id. at p. 645, internal quotation marks omitted.)
The complaint fails to allege the “how, when, where, to whom, and by what means the representations were tendered. As discussed above, Hillside is an entity, not a natural person; Defendants are alleged generally without identifying which natural persons were involved. No natural person is alleged as a participant in any communication. The manner and place of communications are also not alleged with specificity. The demurrer will be sustained on this ground.
By its terms, the complaint alleges a future promise rather than a present fact. (Complaint, ¶ 40.) “Generally, the misrepresentation must be a material and knowingly false representation of fact.” (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 693.) Here, Hillside seems to assert promissory fraud. (Opposition, at p. 16.)
“An action for promissory fraud may lie where a Defendant fraudulently induces the Plaintiff to enter into a contract. [Citations.] In such cases, the Plaintiff’s claim does not depend upon whether the Defendant’s promise is ultimately enforceable as a contract. ‘If it is enforceable, the [Plaintiff] ... has a cause of action in tort as an alternative at least, and perhaps in some instances in addition to his cause of action on the contract.’ [Citations.]” (Lazar, supra, 12 Cal.4th at p. 638.)
Intent is an ultimate fact and may be alleged using conclusive language. (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803; see also Woodroof v. Howes (1891) 88 Cal. 184, 190.) To the extent Hillside alleges inducement to enter into a contract, Hillside would adequately allege the lack of intent to perform. Similarly, Hillside has adequately alleged reliance and damages. (Complaint, ¶¶ 36, 39, 45.) The demurrer will not be sustained for lack of sufficient allegations of intent, reliance, or damages.
Hillside’s fifth cause of action is for negligent misrepresentation.
“The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)
“Each element in a cause of action for … negligent misrepresentation must be factually and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)
As discussed in the context of intentional misrepresentation, Hillside has not alleged the misrepresentation with sufficient specificity. For the same reasons, the Court will sustain the demurrer on that ground.
Unlike intentional misrepresentation, negligent misrepresentation requires the allegation of a past or existing fact. There is no cause of action for negligent promissory fraud. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) The demurrer will be sustained on this ground as well.
(D) Trespass and Nuisance
Hillside’s sixth cause of action is for trespass. “The elements of 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, 261–262.)
Defendants argue that Hillside does not allege these elements. However, Hillside specifically alleges removal of a tree branch without permission. (E.g., Complaint, ¶ 16.) The removal of a tree branch while on Hillside’s property without permission is sufficient to allege a cause of action for trespass.
As to treble damages, “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency, supra, 108 Cal.App.4th at p. 1047.)
The demurrer to this cause of action will be overruled.
Hillside’s seventh cause of action is for private nuisance.
“Plaintiffs attempt to state a cause of action for private nuisance, i.e., a nontrespassory interference with the private use and enjoyment of land. [Citation.] In distinction to trespass, liability for nuisance does not require proof of damage to the Plaintiff’s property; proof of interference with the Plaintiff’s use and enjoyment of that property is sufficient. [Citation.] In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements. … [¶] The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the Plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the Plaintiff to suffer ‘substantial actual damage.’ [Citations.] … [¶] The second additional requirement for nuisance is superficially similar but analytically distinct: ‘The interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’ [Citations.]” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937-938.)
Hillside has sufficiently alleged these elements with respect to its allegations of trespass and injury to Hillside’s olive tree, which constitutes an alternative claim to the trespass cause of action. Because Hillside has sufficiently alleged this cause of action based upon this aspect of the cause of action, it is unnecessary, as a matter of pleading, for the Court to address whether this cause of action is stated as to the claims arising out of the alleged Roof Agreement.
The demurrer to this cause of action will be overruled.
(E) Leave to Amend
This is a demurrer to the original complaint in this action. The Court will grant leave to amend.
(2) Motion to Strike
“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
Defendants move to strike text at paragraphs 16, 17, 25, 41 through 45, 48 through 50, 53, 55, 59, and 61 of the body of the complaint, and paragraphs 1, 3, 4, 5, and 6 of the prayer of the complaint.
Paragraphs 25, 41 through 45, and 48 through 50 are within causes of action for which the Court sustains the Defendants’ demurrer. The motion to strike is moot as to these paragraphs.
Because the Court sustains the demurrer to the first cause of action, the motion will be granted to strike paragraph 1 of the prayer of the complaint.
Because the Court sustains the demurrer to the third, fourth, and fifth causes of action, the motion will be granted to strike the words “third, fourth, fifth” from paragraph 4 of the prayer of the complaint.
(A) Punitive Damages
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a Plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, Courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Defendants move to strike the remainder of the prayer for punitive damages (prayer, ¶ 4). With respect to the sixth and seventh causes of action, Hillside has alleged intentional conduct with the purpose of damaging Hillside’s property, i.e., the olive tree.
“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice, the Plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the Defendant.” (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).)
As discussed above in the context of fraud, intention is an ultimate fact that may be alleged with conclusory language. Hillside has adequately alleged malice as to the trespass and damage to the olive tree. The motion to strike will be denied as to the remainder of paragraph 4 of the prayer. For the same reason, the motion to strike allegations of criminal trespass in paragraphs 16 and 17 will be denied. For the same reason, the motion to strike allegations of intent in paragraphs 53 and 59 will be denied.
(B) Other Damages
Defendants move to strike the allegation of causation and harm in paragraphs 55, 59, and 61. These allegations are conclusory, but are supported by the prior specific allegations. (E.g., Complaint, ¶¶ 14-17.) The motion to strike will be denied as to these allegations.
Hillside moves to strike paragraph 3 of the prayer of the complaint: “On the sixth and seventh causes of action, treble damages pursuant to Civil Code section 3346, subdivision (a) and/or Code of Civil Procedure section 733.”
“For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the Defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment.” (Civ. Code, § 3346, subd. (a).)
“Any person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person, or on the street or highway in front of any person's house, village, or city lot, or cultivated grounds; or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.” (Code Civ. Proc., § 733.)
As discussed above, Hillside has adequately alleged intentional trespass to damage Hillside’s tree. These allegations are sufficient to support the prayer for damages under Civil Code section 3346 and Code of Civil Procedure section 733.
Defendants move to strike the prayer for attorney fees in paragraph 6 of the prayer. In opposition, Hillside concedes that it has not alleged a basis for attorney fees, but it seeks to reserve its right to seek attorney fees as may later appear appropriate. (Opposition, at p. 15.) The motion to strike will be granted as to this language. Hillside may make a noticed motion to amend as appropriate in the future.
(C) Injunction
Finally, Defendants move to strike paragraph 5 of the prayer: “Injunctive relief ordering Defendants to remove and/or relocate the solar panels currently obstructing the horizontal roof portion of the Lucky Property, and (2) enjoining Defendants from doing any act in future that interferes with Plaintiffs’ use and enjoyment of the Hillside Property.”
Because the Court sustains the demurrer to the causes of action asserting claims based upon the Roof Agreement, the injunctive relief sought as to the Roof Agreement is not now supported by the complaint. The Court will grant the motion to strike as to the first item. Defendants make no argument why an injunction may not be a proper remedy for trespass. The motion will be denied as to item 2, which includes an injunction relating to the alleged trespass.
This motion to strike is to the original complaint. The Court will grant leave to amend.