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Wayne Ferree v. andrew Morse et al

July 31, 2012

WAYNE FERREE, PLAINTIFF AND APPELLANT,
v.
ANDREW MORSE ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. T093725C)

The opinion of the court was delivered by: Raye , P. J.

Ferree v. Morse

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Must a condominium owner plead exclusive ownership of trees rooted in a common area or, as in this case, a 150-year-old pine tree, to state a cause of action against a homeowners association and/or a board member? In a series of demurrers, the trial court repeatedly ruled that plaintiff Wayne Ferree had not pleaded a viable cause of action because he did not plead that he alone owned the pine tree defendants Donner Pines Homeowners Association (Association) and its director, Andrew Morse, chopped down. Defendants avoid the threshold and dispositive issue and attempt to divert our attention to so-called issues of standing and pleading. We conclude the trial court's legal premise was in error because a homeowners association and director's duties to an owner are not contingent upon exclusive ownership of a common area; indeed, by definition, an owner cannot exclusively own a common area. We reverse.

PLEADINGS

We must conduct a de novo review of the sufficiency of the complaint to state a cause of action under any legal theory. (Sui v. Price (2011) 196 Cal.App.4th 933, 938.) We must assume the truth of the factual or implied factual allegations. (Ibid.) "If the complaint does not allege facts sufficient to state a cause of action, a trial court nevertheless abuses its discretion by sustaining a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect can be cured by amendment of the complaint." (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1168 (Windham).)

Plaintiff made three unsuccessful attempts to state a viable cause of action, first against Morse in his capacity as a board member and then against both Morse and the Association. In the initial complaint, plaintiff alleged causes of action for negligence, negligence per se, trespass, wrongful injury to timber, and breach of fiduciary duty against Morse. Factually, plaintiff alleged that at Association meetings in January 2007 and January 2009 the participants agreed that trees would not be removed or destroyed. Without notice to owners, the complaint states, Morse convinced a majority of the board in May 2009 to ignore the owners who wanted to preserve trees in the common area and to pay to have various trees cut down.

The trial court sustained Morse's demurrer to the original complaint with leave to amend. As to the dispositive issue, the court ruled: "[I]t cannot be ascertained whether the tree removed is located on property owned by Plaintiff by virtue of him being a homeowner (in other words, it is part of the common area), or whether Plaintiff has a separate interest in real property located outside the walls of his condominium unit."

Plaintiff then filed a first amended complaint, adding the Association as a defendant. As to Morse, the complaint's allegations were more specific. For example, Morse removed large cottonwood trees "to improve the view of Lake Donner which Morse enjoys from his condominium unit" and to "enhance the fair market value of his condominium unit." Plaintiff further alleged: "Defendant Morse arranged for the pine tree located on Plaintiff's property to be cut down so as to further a personal grudge that he holds for Plaintiff. Defendant Morse has, on numerous prior occasions, through actions and words, expressed dislike for Plaintiff and Plaintiff's wife and engaged in purposeful conduct designed to injure and damage the fair market value of plaintiff's unit, and to injure and damage Plaintiff's use and enjoyment of his unit. Morse further acted so as to humiliate and vex Plaintiff."

Plaintiff also explained that the 150-year-old pine tree defendants removed was integrated into his deck. "When Plaintiff's unit was constructed, the outdoor deck affixed to Plaintiff's unit was specifically designed and built to integrate and accommodate said pine tree which is located on property and/or airspace owned solely by Plaintiff."

In ruling on the demurrer to the first amended complaint, the court ruled again: "As a matter of law, one cannot maintain an action for property which they do not own. The First Amended Complaint does not state that the tree which was removed belonged to Plaintiff and Plaintiff alone, and was on property owned only by Plaintiff. Thus the entire First Amended Complaint is uncertain at best."

The second amended complaint alleges causes of action for negligence and breach of fiduciary duty against the Association and a cause of action against Morse for trespass.*fn1 Paragraph 3 captured the trial court's attention. It reads: "On or about June 12, 2009, Defendants, Andrew Morse and/or the [Association] caused a large pine tree to be cut down and destroyed. The subject pine tree was located on real property which is owned solely by Plaintiff. When Plaintiff's unit was constructed, the outdoor deck affixed to Plaintiff's unit was specifically designed and built to integrate and accommodate [sic] said pine tree which is located on property and/or airspace owned solely by Plaintiff. At no time did Plaintiff ...


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