On 04/12/2016 NEVIS TWO LLC filed a Personal Injury - Other Personal Injury lawsuit against PAQUITO B PUGEDA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Disposed - Other Disposed.
Disposed - Other Disposed
Stanley Mosk Courthouse
Los Angeles, California
RANDOLPH M. HAMMOCK
NEVIS TWO LLC
PUGEDA GLORINA S.
DOES 1 THROUGH 10
PUGEDA PAQUITO B.
E. JOHNSON LAW FIRM THE
LAMOND CHRISTIAN FITZGERALD
JOHNSON ERIK L
MORRIS JEFFREY MICHAEL
DARROLL EILEEN PALMER
12/6/2017: Case Management Statement
12/11/2017: Notice of Change of Address or Other Contact Information
3/19/2018: Case Management Statement
4/26/2018: Case Management Order
9/21/2018: Request for Judicial Notice
2/20/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
2/28/2019: Proof of Service (not Summons and Complaint)
8/11/2016: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES
10/25/2016: DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT
11/1/2016: Minute Order
Joint Stipulation to Continue Trial; Order; Filed by Nevis Two, LLC (Plaintiff)Read MoreRead Less
Notice of Change of Address or Other Contact Information; Filed by Erik L Johnson (Attorney)Read MoreRead Less
at 08:33 AM in Department M; Hearing on Motion for Summary Judgment - Not Held - Continued - StipulationRead MoreRead Less
RETURNED MAIL; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department M; Hearing on Ex Parte Application (for Order to Show Cause for Contempt and Request for Attorneys' Fees and Costs) - Held - Taken under SubmissionRead MoreRead Less
Certificate of Mailing for (Minute Order (Ex Parte Application for Order to Show Cause for Contempt and...) of 04/04/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Ex Parte Application for Order to Show Cause for Contempt and...)); Filed by ClerkRead MoreRead Less
Opposition (to Plaintiff's Ex Parte Application for OSC re Contempt and Request for Sanctions); Filed by GLORINA S. PUGEDA (Legacy Party); Paquito B. Pugeda (Defendant)Read MoreRead Less
Ex Parte Application (Contempt & Request for Fees & Costs); Filed by Nevis Two, LLC (Plaintiff)Read MoreRead Less
at 08:30 AM in Department M; Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Notice; Filed by Defendant/RespondentRead MoreRead Less
Notice (OF RESCHEDULING HEARING DATE FOR MOTION TO STRIKE ); Filed by Attorney for Defendant/RespondentRead MoreRead Less
NOTICE OF RESCHEDULED HEARING DATE FOR MOTION TO STRIKERead MoreRead Less
Motion to Strike; Filed by Defendant/RespondentRead MoreRead Less
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIESRead MoreRead Less
Motion to Strike (PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES ); Filed by Attorney for Defendant/RespondentRead MoreRead Less
Complaint; Filed by Nevis Two, LLC (Plaintiff); Nevis Two, LLC (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR: 1. NUISANCE; ETCRead MoreRead Less
Case Number: BC616771 Hearing Date: July 21, 2020 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday, July 21, 2020
Department B Calendar No. 9
Nevis Two, LLC v. Paquito B. Pugeda, et al.
Paquito B. Pugeda and Glorina S. Pugeda’s Motion for Summary Judgment
Paquito B. Pugeda and Glorina S. Pugeda’s (“Cross-Complainants”) Motion for Summary Judgment is denied.
Cross-Defendant Nevis Two, LLC’s (“Cross-Defendant”) Objections
Cross-Defendant’s objections 1 to 5 and 11 are sustained. Cross-Defendant’s objections 6 to 8 are overruled. The Court declines to rule on objections 9, 10, and 12. This evidence is directed to the issue of damages which is not relevant as a triable issue of fact exists regarding liability. The Court need only rule on those evidentiary objections that it deems material to disposition of the motion. CCP § 437c(q).
Cross-Complainants’ objections 1, 5, and 10 are sustained. Cross-Complainants’ objections 2 to 4 are overruled. The Court declines to rule on objections 6 to 9. This evidence is directed to the issue of damages which is not relevant as a triable issue of fact exists regarding liability. The Court need only rule on those evidentiary objections that it deems material to disposition of the motion. CCP § 437c(q).
On April 12, 2016, Plaintiff filed its Complaint. This action arises from a dispute between two neighbors over property damage caused by a tree they jointly own. Plaintiff alleges that the tree grew through the property line and that Defendants refused to maintain their property or exercise reasonable care for the tree. Thus, the tree allegedly damaged sidewalks, damaged the roof, and encroached upon Plaintiff’s property. Plaintiff set forth causes of action for: 1. Nuisance; 2. Trespass; 3. Negligence.
On December 4, 2017 Defendants filed a Cross-Complaint alleging that Cross-Defendant’s trimming of the tree caused the destruction of the tree. Cross-Complainants alleged causes of action for: (1) Intentional Destruction of Timber (Civ. Code Sections 834, 3346); (2) Negligence Per Se (Civ. Code Section 3346); (3) Private Nuisance.
Cross-Complainants move for summary judgment as to their Cross-Complaint. Cross-Defendant has met its burden to provide specific facts to show the existence of a triable issue of material fact as to Cross-Complainants’ causes of action. CCP § 437c(p)(1).
Motion for Summary Judgment
The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.
“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).)
First and Second Causes of Action
As to the first and second causes of action for Intentional Destruction of Timber and Negligence Per Se, Cross-Defendant has provided competent evidence to show the existence of a triable issue of material fact.
Civil Code § 834 states: “Line trees. Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.” Here, neither party disputes that the tree stands partly on the line of both Cross-Complainants and Cross-Defendant.
Civil Code § 3346(a) states:
“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.”
“The presumption of negligence created by Evidence Code section 669 concerns the standard of care, rather than the duty of care. In order for the presumption to be available, either the courts or the Legislature must have created a duty of care. [A]n underlying claim of ordinary negligence must be viable before the presumption of negligence of Evidence Code section 669 can be employed .... [I]t is the tort of negligence, and not the violation of the statute itself, which entitles a plaintiff to recover civil damages.” Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353 (internal citations and quotations omitted).
“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: “(1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218.
Thus, to prevail on the first and second causes of action, Cross-Complainants must establish that Cross-Defendant violated Civ. Code § 3346 which requires wrongful causing of injury to the tree of Cross-Complainants. However, Cross-Defendant has shown that a triable issue of fact exists as to whether the trimming of the tree branches caused wrongful injury to the tree.
There is no evidence, and Cross-Complainants do not contend, that Cross-Defendant actually entered upon Cross-Complainants’ land to cut parts of the tree on Cross-Complainants’ property, or that Cross-Defendant cut down the entire tree. Instead, Cross-Complainants allege that Cross-Defendant cut branches existing on Cross-Defendant’s property which Cross-Complainants believe ultimately caused harm to the tree resulting in the eventual removal of the tree. Cross-Complainants provide evidence that the branch trimming caused the eventual destruction of the tree. (Cross-Complainants’ Amended Separate Statement of Facts and Supporting Evidence, 7, 9, 24.) Contrarily, Cross-Defendant provides evidence that the trimming did not cause the underlying harm to the tree resulting in its eventual removal. (Cross-Defendant’s Response to Separate Statement of Facts, 24-27.) Thus, a triable issue of material fact exists as to the essential element of wrongful conduct which is required to establish statutory liability pursuant to Civil Code § 3346.
Neither Kallis v. Sorzes (2012) 208 Cal.App.4th 1274, nor Rony v. Costa (2012) 210 Cal.App.4th 746, 755, two cases primarily relied upon by Cross-Complainants, definitively establish Cross-Complainants’ contention that summary judgment is warranted. In both cases, there was no dispute as to liability because the Defendants had acted in a manner resulting in the eventual removal of the entire tree. Here, Cross-Defendant has provided evidence creating a dispute as to this central issue of liability. Cross-Defendant alleges that the tree stood for more than 5 years after being trimmed in 2015. (Decl., Gregory Applegate, ¶ 3.) In addition, according to Cross-Defendant’s expert, the tree showed no evidence of decay or infestation when it was observed in 2019 and 2020. (Decl., Gregory Applegate, ¶ 3.) Cross-Defendant’s expert acknowledges that the tree was removed but does not state that the cause was the tree branch pruning. (Decl., Gregory Applegate, ¶ 4.)
Third Cause of Action
Similarly, as discussed above, a triable issue of material fact exists as to the third cause of action for Nuisance. Nuisance is conduct which “interferes with the comfortable enjoyment of life or property.” Civ. Code § 3479. To be actionable, the interference must be “substantial” and “unreasonable.” San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938. Here, triable issues of fact exist as to whether Cross-Defendant substantially and unreasonably interfered with Cross-Complainants’ enjoyment of life or property.
Thus, Cross-Complainants’ Motion for Summary Judgment is denied.
The Court notes that Cross-Defendant’s opposition included a request for judgment on the pleadings as to Cross-Complainants’ first and second causes of action. The Court denies any such request, without prejudice, subject to a properly noticed motion for judgment on the pleadings.
Cross-Defendant is ordered to give notice of this ruling.
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