Rucker v. City of
Filed 1/24/13 Rucker v. City of Hayward CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
HAROLD J.
RUCKER,
Plaintiff and Appellant,
v.
CITY OF
HAYWARD et al.,
Defendants and Respondents.
A133332
(Alameda County
Super. Ct. No. RG 10505300)
Harold J. Rucker sued the City of
Hayward, and its employees Stacy Sorensen, Jill Hadden, and Toshikazu
Yoshihata, alleging defendants unlawfully and maliciously removed a shrub from
property on which he resided. Rucker’s
first amended complaint asserted trespass,
negligent and intentional infliction of emotional distress, and violation
of constitutional rights. Defendants
demurred, arguing Rucker did not own the property or shrub and therefore lacked
standing to sue. The trial court
sustained the demurrer without leave to amend and entered a judgment of
dismissal. We affirm.
Factual
and Procedural Background
name="_ftnref1" title="">[1]
Marva L. Hickman owns real property located on Wauchula Way in Hayward,
California. Since 1986, Hickman and
Rucker “have been Business Associated/Domestic Partners.†In 2003, Hickman granted Rucker a “parol
lease for life†to the Wauchula Way property.
In 2007, Rucker became the trustee of the living trust of Marva L.
Hickman, which authorizes him to manage all of Hickman’s assets, real and
personal, and to initiate and settle claims.
Rucker has, at all relevant times, resided at and been entitled to
possess the Wauchula Way property.
On April 24, 2009, the city received an anonymous complaint about a
25-year-old ornamental shrub on the Wauchula Way property. The city issued a notice stating this was a
repeat complaint, the shrub was blocking the pedestrian right of way on the
sidewalk and creating a safety hazard, and needed to be “pulled back completely
from the sidewalk area or be removed.â€
Rucker addressed the “foliage obstructing a three[-]inch edge of the
sidewalk for approximately two feet by pruning and compressing the trimmed
foliage with vinyl netting.†He believed
no violation remained justifying the shrub’s removal.
During a conversation with city employee Stacey Sorensen on May 24,
2009, Rucker learned the city still intended to remove the shrub. He told Sorensen he believed local vandals
were the source of the repeated, unfounded complaints about the shrub and asked
her to investigate further before taking any action. Sorensen, however, stated “in a[n] insulting
and arrogant voice that, ‘The bush will come down! A crew will be out next week to cut down the
bush!’ â€
On June 9, 2009, despite Rucker’s efforts, Sorensen directed Jill
Hadden, another city employee, to hire workers to enter the Wauchula Way
property and remove the shrub. When
Rucker confronted Hadden and asked her for papers authorizing removal, Hadden
did not produce any, but called in Hayward Police for support. Officer Yoshihata arrived. He told Hadden to “ ‘[g]et the crew
ready’ †and then spoke on the phone with Sorensen. He reported to Rucker what Sorensen told him: “ ‘[y]ou had your opportunity for a hearing and you did not show
up.’ †Rucker protested this was
false—that he was not notified of a hearing—and asked Yoshihata to tell him
what was wrong with the shrub. Yoshihata
responded it was leaning “ ‘slightly to the left.’ †When shown nearby properties with shrubs
egregiously encroaching on the sidewalk, Yoshihata said the other shrubs were
not the issue. The shrub was
removed.
On June 17, 2009, Rucker submitted a claim for injuries to the
city. On September 28, 2009, the
city rejected the claim. Rucker then
filed suit against the city, Sorensen, Hadden, and Yoshihata.
Defendants demurred to Rucker’s initial complaint on May 20, 2010. The trial court sustained the demurrer on the
ground Rucker had not sufficiently pleaded standing to sue, but granted leave
to amend.
Rucker’s first amended complaint, filed July 13, 2010, strengthened the
standing allegations and contained four discernable causes of action. First, Rucker alleged trespass against
Hadden. Second, Rucker alleged negligent
infliction of emotional distress against Yoshihata. He asserted the police officer breached a
duty of care to prevent a trespass and destruction of private property, thereby
causing severe emotional distress.
Third, Rucker alleged intentional infliction of emotional distress
against Sorensen for emphatically telling him the shrub would be felled and for
making that decision maliciously and without cause, and against Hadden and
Yoshihata for going along with Sorensen’s decision in reckless disregard of
Rucker’s well being. Fourth, Rucker sought
injunctive relief and damages under the Federal Civil Rights statute, title 42
United States Code section 1983, against Soresnsen, Hadden, and
Yoshihata. Citing the Fourth and
Fourteenth amendments to the Federal Constitution, Rucker claims defendants
unreasonably seized and destroyed his property without due process after
applying city ordinances in a discriminatory fashion.
Defendants demurred to Rucker’s first amended complaint on July 21,
2010. Defendants asserted Rucker still
had not pleaded standing and had failed to sufficiently allege each of his four
causes of action.
title="">[2] The trial court issued a written order
sustaining the demurrer without leave to amend on September 20, 2010. While “sympathetic to Plaintiff’s concerns
that a bush was improperly (and, perhaps, unnecessarily) destroyed,†the trial
court held Rucker, as a mere tenant and occupant of the Wauchula Way property,
lacked standing to sue. Based on this
order, the trial court entered a judgment of dismissal against Rucker on August
9, 2011. Rucker filed a timely notice of
appeal on September 28, 2011.
Meanwhile, on May 14, 2010, within days of defendants’ first demurrer
contesting Rucker’s standing, Rucker’s partner, and owner of the Wauchula Way
property, Hickman, filed her own lawsuit.
In a complaint largely mirroring Rucker’s initial complaint, Hickman
alleged a single cause of action for deprivation of civil rights under title 42
United States Code section 1983.
Defendants did not demur, but filed an answer. In April 2011, Hickman dismissed her lawsuit
with prejudice following attempts at settlement.
Discussion
“ ‘A demurrer tests the legal sufficiency of the complaint.’ [Citation.]
On review of an order sustaining a demurrer without leave to amend, our
initial standard of review is de novo, ‘i.e., we exercise our independent
judgment about whether the complaint states a cause of action as a matter of
law.’ [Citation.] In analyzing the complaint, we ‘give[] the
complaint a reasonable interpretation, and treat[] the demurrer as admitting
all material facts properly pleaded.’
[Citation.]†(
Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) We review the decision to deny leave to amend
“for abuse of discretion.
[Citation.] We will reverse for
abuse of discretion if we determine that there is a reasonable possibility the
plaintiff can cure the pleading by amendment.â€
(Glen Oaks Estates Homeowners
Assn. v. Re/Max Premier Properties, Inc. (2012) 203 Cal.App.4th 913, 919.)
“Standingâ€
“Only a real party in interest
has standing to prosecute an action, except as otherwise provided by
statute. (Code Civ. Proc., § 367.) A party who is not the real party in interest
lacks standing to sue. (Cloud v.
Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004 . . . .) ‘A real party in interest ordinarily is
defined as the person possessing the right sued upon by reason of the
substantive law.’ (Killian v. Millard
(1991) 228 Cal.App.3d 1601, 1605 . . . .)
A complaint filed by someone other than the real party in interest is
subject to general demurrer on the ground that it fails to state a cause of
action. (Carsten v. Psychology
Examining Com. (1980) 27 Cal.3d 793, 796 . . . .) The purpose of this section is to protect a
defendant from harassment by other claimants on the same demand. (Keru Investments, Inc. v. Cube Co.
(1998) 63 Cal.App.4th 1412, 1424 . . . .)â€
(Redevelopment Agency of San Diego v. San Diego Gas & Electric
Co. (2003) 111 Cal.App.4th 912, 920-921.
The trial court and defendants viewed Rucker’s lack of ownership of the
Wauchula Way property as a complete bar to all four causes of action in
Rucker’s lawsuit. This
no-ownership-means-no-ability-to-sue argument remains defendants’ sole
“standing†argument and their primary argument on appeal. Whether Rucker can sue to vindicate his
claims is “a threshold issue†and therefore an issue that must be resolved
before considering other matters related to the merits of Rucker’s claims. (Blumhorst
v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993,
1000.) His ability to pursue relief must
also be considered as to each cause of action.
(Ibid.)
Looking first at the cause of action for trespass, “[t]he
usual action is by an owner, but neither ownership nor actual possession is
essential.†(5 Witkin, Cal. Procedure,
§ 632, p. 65, citing Rogers v. Duhart (1893) 97 Cal. 500 [trespass
action by lessee who had not yet taken possession]; Wolfsen v. Hathaway
(1948) 32 Cal.2d 632, 644 [“The propriety of an action for damages to property
by one who is not in possession or entitled to possession at the time of its
in this state under varying factual circumstances.â€], overruled on another
ground in Flores v. Arroyo (1961) 56 Cal.2d 492, 497; Vaughn v.
Dame Construction Co. (1990) 223 Cal.App.3d 144, 148 [“It has been
recognized in many instances that one who is not the owner of the property
nonetheless may be the real party in interest if that person’s interests in the
property are injured or damaged.â€]; Smith
v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774 [“trespass is designed
to protect possessory—not necessarily ownership—interests in land from
unlawful interference. [Citations.] The proper plaintiff . . . is the person in
actual possession; no averment or showing of title is necessaryâ€]; cf.
Contracting Co. (1981) 123 Cal.App.3d 898, 906 [“In order to state a cause
of action for injury to real property, plaintiff’s ownership,
of the property must be alleged.â€], italics added.)
trespass. (See
v. Outdoor Media Group
(2007) 155 Cal.App.4th 778, 781.) “[A]
party may rely upon his possession as against a mere trespasser.†(Kellogg v. King (1896) 114 Cal. 378,
383.)
Rucker has alleged he was in possession of the Wauchula Way property at
the time of the shrub removal, and in some cases, that might be sufficient to
allow him to pursue a trespass claim.
Here, it is not.
As noted, an articulated
purpose of section 367’s requirement that the real party in interest bring an
action “ ‘is to protect a defendant from a multiplicity of suits and the
further annoyance and vexation at the hands of other claimants to the same
demand.’ †(Standard Fire Ins. Co. v. Spectrum
Community Assn. (2006) 141 Cal.App.4th 1117, 1140.)
this case, Hickman, the owner, also filed a complaint based on the same factual
allegations made by Rucker. That Hickman
only alleged one cause of action, for violation of her civil rights under
section 1983, and did not also separately allege a cause of action for
trespass, as well, does not detract from the fact that she made the
allegedly wrongful removal of the shrub on her property. Hickman unquestionably could seek damages for
that allegedly wrongful removal and damage to her property, and whether labeled
a civil rights claim for wrongful destruction of property without due process,
or a cause of action for trespass on and injury to property, the demand she
made, and the one Rucker seeks to make here are the same.
Accordingly, in this case, Hickman is the real party in interest and
she timely pursued and resolved claims based on the removal of the shrub on her
property. Rucker thus cannot confront
the city a second time with the same damages demand. (Standard Fire Ins. Co. v.
Spectrum Community Assn., supra, 141 App.4th at p. 1140.)
He therefore cannot pursue the asserted causes of action for trespass
and for a due process violation, since both are based on the removal of the
shrub and injury to Hickman’s property.
These two causes of action were therefore properly dismissed.
In contrast, Rucker’s
emotional distress causes of action assert damages uniquely personal to
him. (See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989)
48 Cal.3d 583, 590 [focus is not on harm to plaintiff spouse];
152 Cal.App.4th 518, 530, 533 [dealing separately with emotional distress
claims of wife and deceased husband]; see also Thing v. La Chusa (1989) 48 Cal.3d 644, 648 [emotional distress
torts protect individual interests].) We
therefore conclude he has “standing†to assert them. However, as we will discuss, these causes of
action fail for other reasons.
Negligent Infliction of Emotional Distress
“Negligent infliction of emotional distress is a form of the tort of
negligence, to which the elements of duty, breach of duty, causation and
damages apply. The existence of a duty
is a question of law.†(
Inc. (1993) 6 Cal.4th 124, 129.)
Rucker brought this cause of action solely against
Officer Yoshihata, who responded to a call for support to Hadden and her
team during the bush removal.
“[P]olice officers and other public security officers, like other
persons, generally may not be held liable in damages for failing to take
affirmative steps to come to the aid of, or prevent an injury to, another
person. ‘As a rule, one has no duty to
come to the aid of another. A person who
has not created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act.’ †(Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128-1129.)
Officer Yoshihata never formed a special relationship with Rucker and
never misled Rucker into believing he was there to offer Rucker
protection. Rather, Yoshihata came at
Hadden’s request to support her and her team.
Rucker cites no case suggesting a duty would arise under these alleged
facts. Accordingly, this cause of action
was also properly dismissed.
Rucker asserted a cause of action for intentional infliction of
emotional distress against Sorensen, Hadden, and Yoshihata. To establish a cause of action for
intentional infliction of emotional distress, a plaintiff must show: (1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct. (Potter
v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (
To be considered outrageous, conduct must “ ‘ “be so extreme as to
exceed all bounds of that usually tolerated in a civilized community.†[Citation.]’
[Citation.]†(
p. 1001.) Thus, liability does not arise from “ ‘ “
mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.†’ †(Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d
531, 537.) The court determines, in the
first instance, whether conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery. (
67, 87.)
“ ‘ “[P]laintiffs must necessarily be expected and required to be
hardened to a certain amount of rough language, and to occasional acts that are
definitely inconsiderate and unkind.†’ â€
(Johnson v. Ralphs Grocery Co.
(2012) 204 Cal.App.4th 1097, 1108-1109 [comments taunting a shoplifter as she
left store not actionable].) Thus, mere
speech is often not actionable. (See
she left store not actionable]; Chang v.
Lederman, supra, 172 Cal.App.4th
at p. 87 [lawyer’s letter directing non-client to move from residence was not
actionable, even if it failed to inform non-client of potential right to
continued possession].) However, here,
Rucker has alleged not only speech, but high-handed conduct—that Sorensen and
Hadden orchestrated and implemented, respectively, the unauthorized trespass
and bush removal without cause and without sufficient
Rucker has not cited any case holding such allegations rise to the
level of stating a claim for intentional infliction of emotional distress. The most similar case our own research
disclosed is Dalusio v. Boone (1969) 71 Cal.2d 484, 488 (
“Shortly
after defendant’s employees began removing [a] fence [encroaching on
defendant’s land], plaintiff came upon the scene and asked defendant what was
occurring. Upon being informed of
defendant’s intentions, plaintiff, then 85 years old and ailing with a heart
condition, requested defendant to order the work stopped. When defendant refused, a heated verbal
exchange between plaintiff and defendant ensued during the course of which
plaintiff became very excited and upset. . . .
As a result of all this, plaintiff suffered emotional distress followed
by physical illness.†(
Dalusio
held that the plaintiff’s trespass complaint “essentially stated a cause of
action for the tort of intentional
infliction of mental distress.†(
sufficient to find tort occurred and damage award not excessive].)
The
allegations in Dalusio, however,
describe a more egregious situation than occurred here. Unlike in Dalusio
there are no allegations Rucker was elderly and infirm, and suffered acute
distress that lead to physical illness.
While Rucker’s allegations describe highhanded, and even disdainful
treatment, that should not be condoned, they do not describe conduct “so
extreme†as to “exceed all bounds of that usually tolerated in a civilized
community.†Accordingly, Rucker’s cause
of action for intentional infliction of emotional distress was also properly
dismissed.
Leave to Amend
Rucker had one opportunity to flesh
out his allegations, and he attempted to do so in his first amended
complaint. He has not articulated how he
could cure any of the defects in his causes of action asserted in his amended
complaint if given leave to further amend.
Nor do we discern any such possibility.
Accordingly, his causes of action were properly dismissed without leave
to further amend.
The judgment of dismissal is
affirmed. The city is entitled to costs
on appeal.
_________________________
Banke,
J.
We concur:
_________________________
Marchiano, P. J.
_________________________
Dondero, J.
following the sustaining of a demurrer without leave to amend, the facts are
those alleged in the operative pleadings.
city did not demur on governmental immunity grounds and does make any immunity
arguments on appeal. (See
Cal.App.4th 1372, 1389 [taking silence on immunity as a concession at demurrer
stage].)
