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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


La Paloma Ranch LLC et al vs Presbyterian Camp and Conference Centers, Inc.

Case No: 17CV04255
Hearing Date: Fri Mar 09, 2018 9:30

Nature of Proceedings: Demurrer on First Amended Complaint; Motion to Strike Portions of First Amended Complaint


(1)        For the reasons set forth herein, the demurrer of defendant Presbyterian Camp and Conference Centers, Inc., to the first amended complaint is overruled in its entirety.

(2)        For the reasons set forth herein, the motion of defendant Presbyterian Camp and Conference Centers, Inc., to strike is granted in part, without leave to amend, to strike paragraph 55 from the first amended complaint, and is denied in all other respects.

(3)        Defendant Presbyterian Camp and Conference Centers, Inc., shall file and serve its answer to the first amended complaint, as stricken, on or before March 26, 2018.



As alleged in the first amended complaint (FAC):

Defendant Presbyterian Camp and Conference Centers, Inc. (PCCC) owned, occupied, and controlled real property located at 2494 Refugio Road, Goleta, also known as Rancho La Scherpa. (FAC, ¶ 7.)

PCCC exercised primary possession and control of Rancho La Scherpa. (FAC, ¶ 9.) Its control included ownership, maintenance, security, leasing of the property, and use of the property for recreational, secular and religious events, retreats, and gatherings. (Ibid.) PCCC knew, or should have known, that persons residing at Rancho La Scherpa started fires on that property and that Rancho La Scherpa is in a very high fire hazard area. (Ibid.) PCCC knew, or should have known, that it was critical to adopt fire safety practices at Rancho La Scherpa which would prevent the ignition of an uncontrolled fire, limit the development and effects of a fire before it starts, and reduce the destruction caused by fire, by such practices as clearing brush and vegetation surrounding dwellings and prohibiting the use of fire at outdoor locations at times of high fire danger. (FAC, ¶ 10.) PCCC failed to adopt or to follow fire safety practices. (FAC, ¶ 11.) PCCC knew, or should have known, that residents at Rancho La Scherpa did not follow fire safety practices. (Ibid.)

On June 15, 2016, a resident living at Rancho La Scherpa, who was an agent, employee, or representative of PCCC or was under the control of PCCC, intentionally built a fire inside a dwelling on Rancho La Scherpa. (FAC, ¶ 8.) The resident carried burning logs from that fire outside and dropped the burning logs and embers on the ground where they ignited the surrounding vegetation. (Ibid.) The ensuing fire, known as the Sherpa Fire, spread rapidly and burned approximately 7474 acres of neighboring property. (FAC, ¶¶ 7-8.)

The Sherpa Fire spread to neighboring property, including property known as La Paloma Ranch belonging to and occupied by plaintiffs La Paloma Ranch LLC and Eric P. Hvolboll. (FAC, ¶ 7.) The Sherpa Fire destroyed large sections of La Paloma Ranch, including avocado trees and orchards, commercial coffee trees, and improvements. (FAC, ¶¶ 7, 12.)

On September 20, 2017, plaintiffs filed their original complaint in this action. After discussions between the parties, plaintiffs filed their FAC on December 4, 2017.

On January 8, 2018, PCCC filed its demurrer to the FAC and its motion to strike portions of the FAC.

The demurrer and motion to strike are opposed by plaintiffs as discussed below.


(1)        Meet and Confer Efforts

The parties’ meet and confer efforts pursuant to Code of Civil Procedure section 430.41 led to the filing of the FAC. Counsel for plaintiffs argue that the meet and confer efforts prior to the filing of the demurrer to the FAC were inadequate; counsel for PCCC argue that the meet and confer efforts were hampered by plaintiffs. While the meet and confer efforts perhaps could have been better handled, the end result is a disagreement in the adequacy of the pleadings that could not be informally resolved. The court will address the merits of the demurrer and motion to strike.

(2)        Request for Judicial Notice

For the first time in reply in support of both the demurrer and motion to strike, PCCC requests that the court take judicial notice of documents on the California Secretary of State’s website and documents on the website of the California Franchise Tax Board. These requests for judicial notice are denied. There is no reason why these items could not and should not have been presented in connection with the moving papers and the court declines to consider evidentiary matter presented for the first time in reply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Additionally, the court notes that information provided on the websites, while intending to be accurate, are not official records and are not indisputably correct. (See “Disclaimer” <https://businesssearch.sos.ca.gov/> [as of Mar. 5, 2018].)

(3)        Demurrer

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’” (Yanting Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

Plaintiffs’ first cause of action is for negligence. “[T]he well-known elements of [a] negligence cause of action [are] duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) PCCC argues that plaintiffs have not alleged specific facts showing these elements and instead have only alleged conclusions.

Negligence may be pleaded simply and without the type of evidentiary facts argued by PCCC: “No strict requirements exist for the form of such allegations. The legal conclusion that a ‘duty’ exists is not necessary. … [T]he duty to exercise reasonable care can be inferred from the assertion of the fact that defendant owned and managed the property. [Citation.] The negligence element may be generally pleaded; the breach of duty of care may be alleged by stating the act was negligently done. [Citations.] Here, the complaint alleged defendant’s negligent management and maintenance of his property. Proximate cause, as here, may also be simply set forth.” (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117, fns. omitted.)

Plaintiffs have alleged that PCCC owned and controlled the property, failed to have fire safety practices in place, and that the failure led to a resident—a person under the legal control of PCCC—to start an uncontrolled fire during a time of high fire danger. These allegations are sufficient to allege a cause of action for negligence. The demurrer to the first cause of action will be overruled.

Plaintiffs’ fourth cause of action is for premises liability. “As in a general negligence cause of action, a plaintiff bringing an action for premises liability based on a negligence theory must plead and prove that the defendant breached a duty of care owed to the plaintiff that proximately caused injury and damages. [Citation.] Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) The same allegations that support the cause of action for general negligence are sufficient to allege a cause of action for premises liability. The demurrer to the fourth cause of action will be overruled.

Plaintiffs’ third cause of action is for private nuisance. “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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.)

PCCC argues that plaintiffs do not sufficiently allege a private nuisance because there is no current and ongoing interference and a private nuisance action cannot be maintained solely by the fear of future injury. (Demurrer, p. 11.) Plaintiffs allege that PCCC has failed to adopt and follow fire safety practices, including practices that would prevent a fire from breaking out or spreading to neighboring properties. (FAC, ¶¶ 11, 17, 32.) Plaintiffs allege this condition caused the prior damage from the Sherpa Fire and remains unabated. (FAC, ¶ 40.)

“[A] fire hazard clearly constitutes a nuisance within the provisions of [Civil Code] section 3479.” (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100.) “In this state, however, a private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041-1042.) PCCC argues that the private nuisance claim is based on the fear of a future injury.

Plaintiffs’ claim, however, is not “solely” based on the fear of a future injury. “A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.” (Koll-Irvine Center Property Owners Assn. v. County of Orange, supra, 24 Cal.App.4th at p. 1041.) Here, the alleged fire hazard as a private nuisance is not a mere fear of a future injury from fire but an actual injury to plaintiffs’ property caused by a fire resulting from the fire hazard. Moreover, even if the hazard no longer exists, “[t]he abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.” (Civ. Code, § 3484.) Plaintiffs state a cause of action based upon private nuisance. The demurrer to the third cause of action will be overruled.

Plaintiffs’ second cause of action is for public nuisance. “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493.) PCCC argues that fire damage is the same for all affected by the Sherpa Fire and therefore no cause of action is stated for public nuisance.

“As the Supreme Court explained more than 110 years ago in Lind v. City of San Luis Obispo (1895) 109 Cal. 340, 344 … (Lind ), in which the plaintiff and his neighbors were exposed to the offensive effects of a local cesspool, ‘ “[W]hen the alleged nuisance would constitute a private wrong by injuring property or health ... for which an action might be maintained in favor of a person injured, it is none the less actionable because the wrong is committed in a manner and under circumstances which would render the guilty party liable to indictment for a common nuisance.... [A]n injury to private property, or to the health and comfort of an individual, is in its nature special and peculiar and does not cause a damage which can properly be said to be common or public, however numerous may be the cases of similar damage arising from the same cause.” ’ Much more recently, but to the same effect, the Restatement Second of Torts recognizes, ‘When the public nuisance causes personal injury to the plaintiff or physical harm to his land or chattels, the harm is normally different in kind from that suffered by other members of the public and the tort action may be maintained.’ [Citation.]” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1550, fn. omitted.)

The fire hazard that is alleged, as demonstrated by the size of the Sherpa Fire, affects an entire community or neighborhood. While all persons affected by the Sherpa Fire suffered “fire damage” in broad terms, under the Restatement test, the specific damage suffered by plaintiffs, whether to avocado trees or specific improvements, constitutes damage that is different in kind than that suffered by other members of the public. Plaintiffs have sufficiently alleged a cause of action for public nuisance.

Plaintiffs’ fifth entitled cause of action is for trespass. “ ‘Trespass is an unlawful interference with possession of property.’ [Citation.] 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 Company v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262.)

“The rule has evolved in California that trespass may be committed by consequential and indirect injury as well as by direct and forcible injury.” (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 232.) “[T]he spread of a negligently set fire to the land of another constitutes a trespass.” (Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 460 (Kelly).) Plaintiffs sufficiently allege a cause of action for trespass based upon the same allegations supporting the cause of action for negligence.

Apart from common law trespass, within the cause of action labelled as the fifth cause of action are two separate, untitled statutory claims, one under Civil Code section 3346 (FAC, ¶¶ 53-54) and one under Code of Civil Procedure section 733 (FAC, ¶ 55).

“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).)

“If the fire also damages trees—that is, causes ‘injuries to ... trees ... upon the land of another’ (§ 3346, subd. (a))—then the actual damages recoverable under [Health and Safety Code] section 13007 may be doubled (for negligently caused fires) or trebled (for fires intended to spread to the plaintiff’s property) pursuant to section 3346.” (Kelly, supra, 179 Cal.App.4th at p. 461.) Health and Safety Code section 13007 provides: “Any person who personally or through another wilfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows a fire kindled or attended by him to escape to, the property of another, whether privately or publicly owned, is liable to the owner of such property for any damages to the property caused by the fire.”

A different view of whether section 3346 applies to negligently set fires was provided in Scholes v. Lambirth Trucking Company (2017) 10 Cal.App.5th 590, review granted June 21, 2017, S241825 (Scholes). (Note: While citing Scholes, PCCC failed to identify that review had been granted, in violation of Rules of Court, rule 8.1115(e)(1).) Kelly cited, but disagreed with, an earlier decision on this same issue, Gould v. Madonna (1970) 5 Cal.App.3d 404 (Gould): “The fundamental problem with the decision in Gould, supra, 5 Cal.App.3d 404 …—quite apart from its speculation and assumptions as to the intent of the Legislature—is that the court essentially ignored the best indicator of the Legislature’s intent: the plain language of the statutes.” (Kelly, supra, 179 Cal.App.4th at p. 462.) The Scholes court stated: “[T]he court in [Kelly] disagreed with our analysis in Gould and found that section 3346 does apply to fire damage to trees. [Citation.] Kelly determined the plain language of the statute authorizing an award of double damages ‘ “[f]or wrongful injury to ... trees ... upon the land of another, ... where the trespass was casual or involuntary” ’ includes damage from a negligently set brush fire. [Citation.] Kelly did not consider the legislative history or purposes behind the two sets of statutes. [Citation.] Despite Kelly’s disagreement with our analysis, Gould remains viable and controlling here.” (Scholes, supra, 10 Cal.App.5th at p. 602.) The California Supreme Court granted review to resolve this split in authority and the Supreme Court’s docket in Scholes indicates that the Supreme Court may set oral argument within the next few months.

The Supreme Court’s resolution of this issue in Scholes will resolve the issue in this case, too, insofar as the issue is negligence. But for purposes of this demurrer, it is sufficient to note that Gould, Kelly, and Scholes, all identify Civil Code section 3346 as a statute providing a measure of damages and not as a statute providing the underlying right, and hence providing the underlying cause of action. (Gould, supra, 5 Cal.App.3d at p. 407; Kelly, supra, 179 Cal.App.4th at p. 461; Scholes, supra, 10 Cal.App.5th at p. 602.) As an issue affecting only the measure of damages and not whether an action is stated, the demurrer on the grounds of the inapplicability of Civil Code section 3346 to the cause of action will be overruled. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”].)

Similarly, Code of Civil Procedure section 733 provides: “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.” This section together with Civil Code section 3346 has been interpreted also as affecting the measure of damages for trespass depending upon the level of culpability. (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn. 3.) Section 733 is only applicable if there is a finding that the conduct was willful or malicious. (Id. at p. 645.) Again, a demurrer cannot be sustained to part of a cause of action. The demurrer will therefore be overruled.

(4)        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).)

PCCC first moves to strike the allegations and prayer for attorney fees pursuant to Code of Civil Procedure section 1021.5 in paragraphs 15 and 56 of the text of the FAC and in paragraph 4 of the prayer. “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Code Civ. Proc., § 1021.5.)

“ ‘There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a ... judgment[.]’ [Citation.] As there was no requirement they be pled at all, the trial court erred in striking [plaintiff’s] prayer for attorney fees based on a failure to adequately plead their basis and [plaintiff’s] failure to reallege his request for fees in his first amended complaint does not waive or forfeit his ability to seek them at the conclusion of this case.” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.) The court will deny the motion to strike the requests for attorney fees pursuant to Code of Civil Procedure section 1021.5. Whether, or to what extent, fees may be available under section 1021.5 will be determined at the conclusion of the case.

PCCC next moves to strike the allegations and prayer for punitive (multiplier) damages pursuant to Code of Civil Procedure section 733 and Civil Code section 3346. PCCC argues that these are punitive damages that are not available against a religious corporation and that the multiplier damages are not available for the same reasons raised in the demurrer. With respect to the former argument, the foundational fact—that PCCC is a religious corporation—is not alleged in the FAC and the court does not grant the reply request for judicial notice. Because the factual foundation does not appear on the face of the FAC or in judicially noticed materials, the court will deny the motion as to the ground that PCCC is a religious corporation.

As to the substantive issue of whether multiplier damages are available under these sections, the answer is different depending upon which section is applicable. As discussed in the context of the demurrer, there is a split in authority soon to be resolved by the California Supreme Court whether Civil Code section 3346 applies to negligent conduct. Because this issue is soon to be resolved by the Supreme Court and there is authority supporting the application of Civil Code section 3346 to negligent conduct, the court will deny the motion to strike as to section 3346. (Of course, this issue may be revisited as appropriate following the ruling by the Supreme Court.) On the other hand, Code of Civil Procedure section 733 applies only where the conduct is willful or malicious. (Salazar v. Matejcek, supra, 245 Cal.App.4th at p. 645.) Plaintiffs allege conduct that is negligent and reckless (FAC, ¶ 53), but not willful or malicious. The motion to strike paragraph 55 will be granted. Because willful or malicious intent is inconsistent with the FAC allegations as to PCCC, the motion will be granted without leave to amend. Should facts develop which would support a claim under section 733, plaintiffs may make a noticed motion for leave to amend.

PCCC also moves to strike the attorney fee allegation and prayer pursuant to Code of Civil Procedure section 1021.9. “In any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” (Code Civ. Proc., § 1021.9.) As discussed above in the context of the demurrer, plaintiffs have sufficiently alleged trespass (whether or not entitled to multiplier damages). Plaintiffs also allege that the trespass included lands under cultivation as an avocado orchard. (FAC, ¶ 51.) Consequently, plaintiffs sufficiently allege a claim for attorney fees pursuant to section 1021.9. (See Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1308.) The motion to strike will be denied as to these allegations.

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