VINCENT E. SCHOLES, Plаintiff and Appellant, v. LAMBIRTH TRUCKING COMPANY, Defendant and Respondent.
No. C070770
Court of Appeal, Third District, California
Mar. 7, 2017
8 Cal. App. 5th 590
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) June 21, 2017, S241825.
Vincent E. Scholes, in pro. per., for Plaintiff and Appellant.
Anwyl, Scoffield & Steep, James T. Anwyl and Lynn A. Garcia for Defendant and Respondent.
OPINION
RAYE, P. J.—In 2007 a fire spread from defendant Lambirth Trucking Company‘s (Lambirth) storage site to plaintiff Vincent E. Scholes‘s property. Scholes‘s third amended complaint alleged negligent trespass, intentional trespass, and strict liability against Lambirth. Lambirth demurred to the third amended complaint, arguing it was barrеd by the statute of limitations and failed to state a viable claim for intentional trespass or strict liability. The trial court sustained the demurrer without leave to amend. Proceeding in propria persona, Scholes appeals, arguing the trial court erred in finding his claims
FACTUAL AND PROCEDURAL BACKGROUND
The Fire
Since 2003, Lambirth has operated a soil amendment and enhancement company adjacent to Scholes‘s real property. Lambirth‘s company grinds wood products and stores wood chips, sawdust, and rice hulls, the remnants of which have blown onto Scholes‘s property.
On May 12, 2007, a fire broke out at Lambirth‘s operation. In the aftermath, Scholes complained to Lambirth about wood chips and rice hulls piling up on his property. In addition, local authorities warned Lambirth of the hazards presented by such storage. In response, Lambirth began removing wood chips and rice hulls from Scholes‘s property. Subsequently, on May 21, 2007, another fire broke out on Lambirth‘s property and spread to Scholes‘s property.
Original Complaint
Scholes filed his original complaint on May 21, 2010, three years after the fire. The complaint named as defendants “Lamberth [sic] Trucking Company” and its insurer Financial Pacific Insurance Company (Financial Pacific) and stated it was for a “dispute compensation on insurance claim.” Scholes alleged “[d]efendants have accepted liability, dispute amount of damages from fire.” The complaint alleged Scholes lost use of his property and suffered general and property damages.
First Amended Complaint
On January 24, 2011, Scholes filed a first amended complaint against Lambirth and Financial Pacific for damages to property and loss of crops. In his complaint, Scholes sought compensation for property lost in the fire, loss of crops, and loss of use of property. Scholes did not assert any additional causes of action in the form complaint.
Lambirth and Financial Paсific filed a motion for judgment on the pleadings, arguing Scholes failed to state facts sufficient to state a cause of action. The trial court granted the motion with leave to amend.
Second Amended Complaint
Scholes filed a second amended complaint on August 9, 2011, against “John Lambirth Trucking,” Financial Pacific, and Financial Pacific‘s officers
Lambirth demurred to the second amended complaint, arguing it was barred by the statute of limitations. The trial court sustained the demurrer with leave to amend the first cause of action.
Third Amended Complaint
Subsequently, on November 10, 2011, Scholes filed a third amended complaint alleging three causes of action: negligent trespass, intentional trespass, and strict liability (trespass through unnatural activity). The complaint stated that in 2003, Lambirth began operating a soil amendment and enhancement business adjacent to Scholes‘s property on which it stored wood chips, sawdust, rice hulls, and other combustible material. The storage of combustible materials violated
According to the complaint, on May 12, 2007, after the fire on Lambirth‘s property, fire authorities warned Lambirth of the hazards presented by its storage. Nineteen days later, on Mаy 21, 2007, “a fire erupted at the storage site of said combustible materials of Defendant which Defendant failed to either control or suppress due to inadequate water supplies and other fire suppression equipment and inadequate manpower for such purposes which fire spread to the realty of Plaintiff and destroyed personal property, growing crops, and other growth,” “motor vehicles,” “other mechanical equipment,” and “damaged and destroyed a walnut orchard.” Scholes requested triple damages under
Lambirth filed a demurrer to the third amended complaint arguing it was barred by the statute of limitations and failed to state a viable claim for intentional trespass or strict liability. In response, Scholes asserted a three-year statute of limitations applied to his cause of action for trespass and the third amended complaint related back to the original complaint.
DISCUSSION
I.
The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. We give the complaint a reasonable interpretation and read it as a whole with all parts considered in their context. A general demurrer admits the truth of all material factual allegations. We are not concerned with the plaintiff‘s ability to prove the allegations or with any possible difficulties in making such proof. We are not bound by the construction placed by the trial court on the pleadings; instead, we make our own independent judgment. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824 [84 Cal.Rptr.2d 144].)
Where the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff can cure the defect with an amendment. If we find that an amendment could cure the defect, we must find the court abused its discretion and reverse. If not, the court has not abusеd its discretion. The plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153 [121 Cal.Rptr.3d 819].)
II.
On appeal, a party challenging an order has the burden to show error by providing an adequate record and making coherent legal arguments, supported by authority, or the claims will be deemed forfeited. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [34 Cal.Rptr.2d 558, 882 P.2d 249]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575 [224 Cal.Rptr. 664, 715 P.2d 624]; In re S.C. (2006) 138 Cal.App.4th 396, 408 [41 Cal.Rptr.3d 453].) The rules of appellate procedure apply to Scholes even though he is representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [285 Cal.Rptr. 501].) A party may choose tо act as his or her own attorney. We treat such a party like any other party, and he or she “‘is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [19 Cal.Rptr.3d 416].)
In his third amended complaint, Scholes alleged three causes of action: negligent trespass, intentional trespass, and unnatural activity trespass. All three causes of action stemmed from damage caused by the fire on May 21, 2007.
The negligence cause of action alleged Lambirth stored cоmbustible material on its land over the repeated objections of Scholes, and despite the warnings of fire authorities. After the fire erupted, Lambirth failed to control or suppress it due to inadequate water supplies and other fire suppression equipment which resulted in damage to Scholes‘s property in the amount of $204,277.82. Lambirth‘s act violated
In his intentional trespass cause of action, Scholes alleged Lambirth‘s storage of combustible materials and its failure to mitigate the risk of fire was the “equivalent of a conscious disregard of said risk and therefore rendered said conduct of defendant willful.” In his final cause of action for strict liability (unnatural activity trespass) Scholes alleges simply: “The accumulation and storage of said combustible materials was unnatural and was done and performed by Defendant [who] is strictly liable under the common-law doctrine of Wintergreen v. Winterbottom for said damages.”2
IV.
Lambirth argues
According to Lambirth, the two-year limitations period applies to actions in which the damage to a plaintiff‘s property is consequential only and arises from a defendant‘s lawful act not done on a plaintiff‘s property, but committed elsewhere “and causing as a consequence thereof some injury to plaintiff‘s property not arising from an entry thereon by the defendant or his agencies.” (Porter v. City of Los Angeles (1920) 182 Cal. 515, 518 [189 P. 105].) Lambirth argues the Supreme Court has held that the three-year period allowed for maintenance of an action for trespass on real property,
Lambirth is mistaken. In Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301, 1305–1306 [58 Cal.Rptr.2d 303] (Elton), the appellate court reviewed the history of the distinction bеtween direct and consequential damages in determining whether a trespass had occurred. Although older cases, including Crim and Denari, concluded a consequential trespass was not a trespass within the meaning of
The Elton court concluded: “Thus, we need not decide whether the damages to the plaintiffs’ property were an indirect consequence of the defendant‘s act of lighting the fire or a direct result of the defendant‘s negligence in allowing the fire to escape, or whether the common law would classify an action to recover compensation for such damages as an action for trespass or on the case. [Citation.] The distinction between direct and consequential damages having been abandoned, the possibility that the damages may have been only an indirect consequence of the fire does not prevent the escape of that fire from constituting a trespass.” (Elton, supra, 50 Cal.App.4th at p. 1306.)
V.
Therefore, the three-year statute of limitations under
Unless an amended complaint relates back to a timely filed original complaint, it will be barred by the statute of limitations. (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 150 [216 Cal.Rptr. 405, 702 P.2d 563].) Under the relation-back doctrine, in order to avoid the statute of limitations, the amended complaint must rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original
A complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language. (
The relation-back doctrine requires us to compare the factual allegations in the original and amended complaints. (Davaloo, supra, 135 Cal.App.4th at p. 416.) “Just as a plaintiff who changes the essential facts upon which recovery is sought is not entitled to the benefits of the relation-back doctrine, so too a plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint: Going from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set.” (Ibid.)
Here, Sсholes‘s original complaint alleges a cause of action for “[d]ispute compensation on insurance claim.” The relief sought is “compensation for property loss.” Finally, the complaint alleges “[d]efendants have accepted liability, dispute amount of damages from fire.” Nothing else is listed in or attached to the original complaint.
The original complaint, devoid of factual allegations, fails to meet
In determining whether the amended complaint alleges facts that are sufficiently similar to those allеged in the original complaint, we consider whether the defendant had adequate notice of the claim based on the original pleading. The policy behind statutes of limitations is to put a defendant on notice of the need to defend against a claim in time to prepare an adequate defense. This requirement is met when recovery under an amended complaint is sought on the same basic set of facts as the original pleading. (Pointe San Diego Residential Community L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277 [125 Cal.Rptr.3d 540] (Pointe San Diego); Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670, 1678 [43 Cal.Rptr.2d 214].)
Here, we find the lack of facts in the present case in stark contrast to the facts found sufficient in Pointe San Diego to invoke the relation-back doctrine. In Pointe San Diego, plaintiffs brought a malpractice action against a law firm in a complex multiparty real estate litigation that resulted in multiple appeals. (Pointe San Diego, supra, 195 Cal.App.4th at pp. 269–270.) The trial court sustained the law firm‘s demurrer without leave to amend on the plaintiffs’ fourth amended complaint, finding the claims barred by the statute of limitations and the relation-back doctrine inapplicable. (Id. at p. 273.)
The appellate court reversed. The court noted the original complaint named the plaintiffs and the law firm. It was a form complaint with the box marked ” ‘General Negligence’ ” checked and with an attachment alleging the law firm was the legal (proximate) cause of damage to the plaintiffs and by ” ‘the following acts or omissions to act, defendants negligently caused the damage to plaintiff.’ ” (Pointe San Diego, supra, 195 Cal.App.4th at p. 277.) In the description of reasons for liability section, the plaintiffs stated their attorneys failed to usе due care in the handling of the underlying lawsuit. (Ibid.) The court found, because there was a single litigation matter in which the law firm had represented the plaintiffs, the firm was put on notice that the professional negligence claim was based on its representation of the plaintiffs “and of the need to gather and preserve evidence relating to this representation.” (Id. at p. 278.)
In finding the amended complaint related back to the original complaint, the Pointe San Diego court distinguished Davaloo. In Davaloo, two plaintiffs filed identically worded complaints against State Farm, alleging breach of contract and bad faith causes of action relating to property damage from the Northridge earthquake. The complaints stated in general terms that the plaintiffs had suffered insured losses as a result of the earthquake and had timely contacted the insurer regarding damages. Aside from the caption, the complaints did not mention the defendants or plaintiffs by name and did not provide any information about the insurance policies or the claims being made by the plaintiffs. (Davaloo, supra, 135 Cal.App.4th at pp. 411–412; Pointe San Diego, supra, 195 Cal.App.4th at p. 280.) The Davaloo court found the relation-back doctrine was inapplicable because of the complete lack of factual allegations. Even after liberally construing the pleadings, the court explained “the body of each of the original complaints at bottom alleges nothing more than the Northridge earthquake caused harm to a resident or residents of Los Angeles County. Such an allegation falls far short of apprising State Farm of the factual basis of their claim.” (Davaloo, supra, 135 Cal.App.4th at p. 417.)
The court in Pointe San Diego agreed with the reasoning of Davaloo: “If an original complaint lacks facts sufficient to provide notice to the defendant of the essential nature of the claim, it would defеat this policy to permit the plaintiff to remedy this error by filing a new amended complaint beyond the limitations period. In Davaloo, State Farm could not have known what facts it needed to gather and preserve during the one-year limitations period. State Farm had no information about the insureds, their property, the claimed damages, the nature of their bad faith claims, or any of the relevant conduct or activities undertaken by State Farm.” (Pointe San Diego, supra, 195 Cal.App.4th at pp. 280–281.) It distinguished Davaloo, noting that in its case, the original complaint placed the law firm on notice of the identity of the plaintiffs and the nature of their claims, referring to the specific litigation and alleging a failure to use due care in handling the litigation. (Ibid.)
VI.
For the first time on appeal, Scholes argues the first cause of action for negligence is for “damage to treеs” under
However, we previously held that
In Gould a construction company negligently set and maintained fires on a highway it was constructing. An uncontrolled fire burned extensive areas, including timber, trees, and land of the plaintiff. After defendant‘s liability was established, the trial court refused to award double damagеs. We affirmed the judgment, holding
Instead we found that Health and Safety Code sections 13007 and 13008, which cover liability in relation to fires, applied. Section 13007 states: “Any person who personally or through another willfully, negligently, or in violation of law, sets fire to, allows fire to be set to, or allows 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 рroperty for any damages to the property caused by the fire.” Section 13008 states: “Any person who allows any fire burning upon his property to escape to the property of another, whether privately or publicly owned, without exercising due diligence to control such fire, is liable to the owner of such property for the damages to the property caused by the fire.”
Finally, we also distinguished the legislative purpose behind
As Scholes points out, the court in Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 459–463 [102 Cal.Rptr.3d 32] disagreed with our analysis in Gould and found that
VII.
Finally, Scholes must demonstrate both a reasonable probability that the third amended complaint can be amended, and the manner in which it may be
DISPOSITION
The judgment is affirmed. Lambirth shall recover costs on appeal.
Blease, J., and Robie, J., concurred.
Appellant‘s petition for review by the Supreme Court was granted June 21, 2017, S241825. Chin, J., and Corrigan, J., did not participate therein.