Scholes v. Lambirth Trucking Co.

• Decision Date: 07 March 2017
• Docket Number: C070770
• Court: California Court of Appeals Court of Appeals
• Parties: Vincent E. SCHOLES, Plaintiff and Appellant, v. LAMBIRTH TRUCKING COMPANY, Defendant and Respondent.

10 Cal.App.5th 590

216 Cal.Rptr.3d 794

Vincent E. SCHOLES, Plaintiff and Appellant,

v.LAMBIRTH TRUCKING COMPANY, Defendant and Respondent.

C070770

Court of Appeal, Third District, California.

Filed March 7, 2017

Vincent E. Scholes, in pro. per., for Plaintiff and Appellant.

Anwyl, Scoffield & Steep, James T. Anwyl and Lynn A. Garcia for Defendant and Respondent.

RAYE, P. J.

In 2007 a fire spread from defendant Lambirth Trucking Company's (Lambirth) storage site to plaintiff Vincent Scholes' property. Scholes' third amended complaint alleged negligent trespass, intentional trespass, and strict liability against Lambirth. Lambirth demurred 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. The trial court sustained the demurrer without leave to amend. Proceeding in pro per, Scholes appeals, arguing the trial court erred in finding his claims barred by the statute of limitations and by failing to grant Scholes leave to amend. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Fire

Since 2003, Lambirth has operated a soil amendment and enhancement company adjacent to Scholes' real property. Lambirth's company grinds wood products and stores wood chips, sawdust, and rice hulls, the remnants of which have blown onto Scholes' 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' property. Subsequently, on May 21, 2007, another fire broke out on Lambirth's property and spread to Scholes' 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 Pacific 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 and directors. The second amended complaint alleged a cause of action against Lambirth for trespass, stating Lambirth provided no structures to contain the wood chips and rice hulls on its property, allowed wood chips and rice hulls to trespass on Scholes' property, and provided no water source to suppress "any fire that may ignite in or by said flammable materials." According to the complaint, "But for the flammable materials from [Lambirth's] business operation that said defendant allowed to encroach and trespass upon [Scholes'] real property, there would have been no fuel to ignite [Scholes'] personal property stored upon the real property on May 21, 2007." In October 2011 Scholes agreed to dismiss with prejudice his action against Financial Pacific and its officers and directors.

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' property on which it stored wood chips, sawdust, rice hulls, and other combustible material. The storage of combustible materials violated Civil Code section 1014 and was "unnatural."

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 May 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 Civil Code section 3346 and Code of Civil Procedure section 733 for the damage to the walnut orchard.¹

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.

The trial court sustained the demurrer without leave to amend and dismissed the action. Following entry of judgment, Scholes filed a timely appeal.

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 abused 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 to 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.)

III.

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 combustible 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' property in the amount of $204,277.82. Lambirth's act violated Civil Code section 1014. Scholes requested triple damages under Civil Code section 3346.

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 such it is strictly liable under the common-law doctrine of Wintergreen v. Winterbottom for said damages."²

IV.

Lambirth argues section 339, subdivision (1) sets forth the applicable statute of limitations: "Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code." Lambirth contends the statute of limitations for trespass, three years pursuant to section 338, subdivision (b), does not apply.

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...