Judge: Armen Tamzarian, Case: 22STCV34822, Date: 2023-04-06 Tentative Ruling
Case Number: 22STCV34822 Hearing Date: April 6, 2023 Dept: 52
I. Demurrer
Defendants
County of Los Angeles and Los Angeles County Flood Control District demur to
all four causes of action alleged in the first amended complaint by plaintiff
Perry Lazar, as an individual and as trustee of the Plone Trust.
First Three Causes of Action: Sovereign Immunity
Plaintiff’s
first cause of action for negligence, second cause of action for “violation of
statutes,” and third cause of action for negligent hiring fail due to sovereign
immunity. “[A]ll government tort
liability must be based on statute.”
(County of San Bernardino v. Superior Court (2022) 77
Cal.App.5th 1100, 1107.) “ ‘[S]overeign
immunity is the rule in California; governmental liability is limited to
exceptions specifically set forth by statute.’ ” (Id. at p. 1108.)
Plaintiff argues defendants are
liable under Government Code section 815.2(a), which provides, “A public entity
is liable for injury proximately caused by an act or omission of an employee of
the public entity within the scope of his employment if the act or omission
would, apart from this section, have given rise to a cause of action against
that employee.” This statute codifies
public entities’ vicarious liability under the “doctrine of respondeat
superior.” (Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 209.) Defendants can thus only liable if their
individual employees would be liable. “[A]
public employee is liable for injury caused by his act or omission to the same
extent as a private person.” (Gov. Code,
§ 820(a).)
The first amended complaint does
not allege facts that would constitute a cause of action for negligence against
defendants’ employees. For negligence, a
public entity employer can only be liable if its
employees breached a common law duty of care to the plaintiff. (Hoff v. Vacaville Unified School Dist. (1998)
19 Cal.4th 925, 933.)
The first amended complaint does
not allege defendants’ employees breached any duties owed to plaintiff. The gravamen of the first two causes of
action is that between 1966 and 1980, defendants negligently created a parcel
of real property, parcel 36, without following the required procedures. (FAC, ¶¶ 11-16, 19-24, 26.) Plaintiff purchased parcel 36 in 2004. He alleges that due to defendants’ negligence
in creating the parcel decades before he purchased it, he has suffered various
harms including a cloud on title. (FAC,
¶¶ 16, 24, 26.) Plaintiff cites no
authority that public employees owe a duty to all future purchasers of land to
comply with these required procedures, such as “to accept as a dedication a
proper parcel or divide the property by way of a parcel map approved and
reviewed by the county engineer.” (FAC,
¶ 12.) None of the breaches of duty
plaintiff alleges would suffice for a claim of negligence against defendants’
individual employees. Defendants
therefore cannot be vicariously liable.
With respect to the second cause of
action for “violation of statutes,” none of the included statutes permit a
private right of action or an exception to the general rule of sovereign
immunity. Plaintiff instead argues the
statutes serve as a basis for negligence per se—meaning he claims tort
liability. The analysis for the first
cause of action for negligence thus applies equally to the second cause of
action.
Plaintiff’s third cause of action
alleges negligent hiring and supervision of several individually identified
employees. (FAC, ¶ 26.) “[N]o statute provides” for a public entity’s
“direct liability” for negligent hiring.
(C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 869.) And without “a
special relationship,” such as that between schools and students, a public
entity’s employees have “no individual liability to third parties for negligent
hiring, retention or supervision.” (Id.
at p. 877.) Plaintiff does not allege
facts showing any special relationship with defendants or their employees. He therefore fails to allege sufficient facts
for negligent hiring and supervision.
Fourth Cause of Action for Trespass
Defendants contend plaintiff’s
fourth cause of action for trespass is untimely. Plaintiff alleges sufficient facts to invoke
the continuing trespass theory, an exception to the statute of
limitations. “The continuing
nuisance or trespass theory allows for deferral of the starting date of the
statute of limitations.” (Chevron U.S.A. Inc. v. Superior Court (1994)
44 Cal.App.4th 1009, 1017.) Under the “ ‘abatability
test’ [citation], a trespass or nuisance is continuing if it ‘can be remedied
at a reasonable cost by reasonable means.’ ”
(Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 609 (Madani).)
Defendants argue this rule does not
apply because the alleged trespass includes a “cement channel and attached
fence [that] cross several blocks,” and plaintiff cannot show “a cement channel
can be moved ‘at a reasonable cost’ and ‘by reasonable means.’ ” (Reply, pp. 6-7.) But the first amended complaint also alleges
defendants trespassed by building a fence on plaintiff’s property. “County has fenced in all of lot 84 and
beyond said lot without permission or authority onto Lazar’s property
preventing access to Lazar’s property.”
(FAC, ¶ 29.)
Madani held that a fence estimated to “cost
approximately $5,000 to $6,000 to move” constituted a continuing trespass. (Madani, supra, 45 Cal.App.5th at p.
609.) Likewise, when liberally construed
and drawing inferences favoring plaintiff, the first amended complaint alleges
defendants’ fence constitutes a continuing trespass.
Disposition
Defendants
County of Los Angeles and Los Angeles County Flood Control District’s demurrer
to the first, second, and third causes of action is sustained with 20 days’ leave to amend. Defendants’ demurrer to the fourth cause of
action is overruled.
II. Motion to Strike
Defendants County of Los Angeles
and Los Angeles County Flood Control District move to strike three portions of
the first amended complaint alleging plaintiff’s
“other damages.” Courts may strike a “demand for judgment requesting relief not
supported by the allegations of the complaint.”
(Code Civ. Proc., § 431.10, subd. (b)(3).)
First, defendants move
to strike the entire paragraph 11(g): “Other damage: Lack of access to
property, costs in legalizing/legitimizing Parcel 36, loss of sale of property,
loss of value, payment of maintenance and taxes, cost of defending property
rights, unjust enrichment, fees and costs, and any other relief the court deems
proper.” Defendants fail to show that
plaintiff can recover none of these “other damages.” As discussed above, plaintiff alleges
sufficient facts to constitute a cause of action for trespass. He can recover at least some of these “other
damages” for trespass.
Second, defendants move to strike
the language “payment of … taxes.” They
contend plaintiff cannot recover damages for payment of taxes because that
remedy is exclusive to a cause of action for a tax refund, which he did not
allege. Plaintiff concedes that is the law
in general, but argues he does not seek a tax refund and instead seeks various
damages for negligent creation of the subject parcel. Alleging damages in the form of “payment of …
taxes” means plaintiff was damaged because he paid taxes. Any damages would be the amount he paid in
taxes over what he should have paid. To
recover that would be a tax refund. That
he also seeks other damages does not mean he can recover damages for “payment
of … taxes.”
In the section on unjust
enrichment, plaintiff’s opposition argues he “has been taxed for property which
is allegedly held by an agent of the State of California and is not taxable
pursuant to the Constitution of the State of California. California Constitution Article XIII, §3. Thus, Lazar’s damages in the payment of taxes
and maintenance of property that he does not own due to the negligent acts of
the defendants.” (Opp., p. 9.) This argument amounts to saying defendants’
negligence resulted in him paying too much in taxes. His exclusive remedy for that specific
portion of his damages is an action for a tax refund.
Third, defendants move to strike
the language “unjust enrichment” from paragraph 11(g). They argue “unjust enrichment is not a
standalone cause of action.” (Motion, p.
12.) That is true. “Unjust enrichment is ‘ “a general principle,
underlying various legal doctrines and remedies,” ’ rather than a remedy
itself.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779,
793.) It is “synonymous with
restitution.” (Durell v. Sharp Healthcare (2010)
183 Cal.App.4th 1350, 1370.)
Disposition
Defendants’
motion to strike is granted in part with 20
days’ leave to amend. The court hereby
strikes the following language from the first amended complaint: “and taxes”
and “unjust enrichment.” (Page 3, ¶
11.g.)