Judge: Armen Tamzarian, Case: 22STCV35215, Date: 2024-08-12 Tentative Ruling
Case Number: 22STCV35215 Hearing Date: August 12, 2024 Dept: 52
Defendant
City of Beverly Hills’ Motion for Summary Judgment
Defendant
City of Beverly Hills moves for summary judgment of this action by plaintiff Margaret
K. Vodrey. In the alternative, defendant
moves for summary adjudication of plaintiff’s second and third causes of
action.
Legal
Standard for Summary Judgment
A defendant moving
for summary judgment must show “that one or more elements of the cause of
action… cannot be established, or that there is a complete defense to the cause
of action.” (CCP § 437c(p)(2).) Once the defendant does so, the burden shifts
to the plaintiff to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 849.) Courts use a
three-step analysis: “(1) identify the issues framed by the pleadings; (2)
determine whether the moving party has negated the opponent’s claims; and (3)
determine whether the opposition has demonstrated the existence of a triable,
material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294.) Courts
“liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that
party.” (Dore v. Arnold Worldwide,
Inc. (2006) 39 Cal.4th 384, 389.)
Statute of Limitations
Defendant moves for summary
judgment on the grounds that the statute of limitations bars all causes of
action. Defendant argues plaintiff was
on inquiry notice of the potential instability of the hillside on their
property since 1997. But plaintiff’s
claims arise from alleged damages caused by a landslide in 2021. The California Supreme Court has held that “a
cause of action for destruction of [a property’s] lateral support emanates not
from the excavation standing alone, but from the subsidence.” (Bellman
v. Contra Costa County (1960) 54
Cal.2d 363, 369.) “[A] new and separate
cause of action arises with each new subsidence, with any applicable
limitations statute running separately for each separate subsidence.” (Ibid.)
Similarly, Leaf v. City of San Mateo (1980)
104 Cal.App.3d 398, 407 noted a prior “case specifically dealing with
consequential damages resulting from underground trespass, held that a cause of
action accrues when the surface damage is ‘sufficiently appreciable to a
reasonable man.’ ” Defendant’s papers
quote the general rule stated in Leaf: “The traditional rule in tort
cases is that the statute of limitations begins to run upon the occurrence of
the last fact essential to the cause of action.” (Id. at p. 406.)
Here, the last fact essential to the cause of action
was the landslide that damaged plaintiff’s property. Plaintiff was not required to sue decades
before the landslide occurred because she purportedly had inquiry notice that the
land was unstable and might subside in the future.
Second Cause of Action: Dangerous
Condition of Public Property
Defendant
is entitled to summary adjudication of this cause of action. Plaintiff does not oppose the motion as to
this cause of action but instead argues it is “moot, because Plaintiff is
dismissing” the claim. (Opp., p. 1, fn.
2.) Plaintiff has not filed a request
for dismissal of the second cause of action.
A plaintiff who does not oppose a defendant’s motion for summary
judgment cannot “avoid” summary judgment “by the stratagem of filing a last
minute request for dismissal without prejudice.” (Cravens v. State Bd. of Equalization
(1997) 52 Cal.App.4th 253, 257.)
Third Cause of Action: Nuisance
Triable issues of material fact preclude summary
adjudication of this cause of action. Nuisance is “a
nontrespassory interference with the private use and enjoyment of land.” (San Diego Gas & Electric Co. v.
Superior Court (1996) 13 Cal.4th 893, 937.)
It requires “interference with the plaintiff’s use and enjoyment of [his
or her] property.” (Ibid.) The invasion must be “substantial” and
“ ‘unreasonable.’ ” (Id.
at p. 938.) “The primary test for
determining whether the invasion is unreasonable is whether the gravity of the
harm outweighs the social utility of the defendant’s conduct, taking a number
of factors into account.” (Ibid.) “[T]he standard is objective: the question is
not whether the particular plaintiff found the invasion unreasonable, but
‘whether reasonable persons generally, looking at the whole situation
impartially and objectively, would consider it unreasonable.’ ” (Ibid.) Generally, “this is a question of fact:
‘Fundamentally, the unreasonableness of intentional invasions is a problem of
relative values to be determined by the trier of fact in each case in the light
of all the circumstances of that case.’ ”
(Id. at pp. 938-939.)
Defendant does not
meet its initial burden of showing it is entitled to summary adjudication of
this cause of action. Defendant argues
any interference with plaintiff’s use and enjoyment of her land was
insubstantial. Defendant relies on fact
No. 69, which states, “The east-facing hillside from which debris slid down to the
Road was not accessible or useable by Plaintiff.” In support, defendant cites the following
portion of plaintiff’s deposition testimony: “Well, the hillside” where the
landslide occurred “is quite a slope. If
you go to the left of that, it’s not near as hilly, and we put in a few small
pine trees there, which you can tell the difference between the large ones and
the small ones.” (Ex. C, Vodrey Depo, 24:24-25:2.) That a hillside is “quite a slope” does not necessarily
mean it is not accessible or useable.
Defendant also
contends, “The landslide did not damage the Property.” (UMF No. 70.) In support, defendant cites this testimony:
“Q. And the sloughing or the landslide didn’t actually damage your home, did
it? A. No.” (Ex. C, Vodrey Depo., 54:17-19.) As plaintiff argues, this evidence does not
support defendant’s assertion because it conflates “the Property” with the
“home” or structure on it.
Assuming defendant
met its initial burden, plaintiff presents evidence establishing triable issues
of material fact. Physical property
damage is not required for nuisance. “[M]ere
apprehension of injury from a dangerous condition may constitute a nuisance
where it interferes with the comfortable enjoyment of property.” (McIvor v. Mercer-Fraser Co. (1946) 76
Cal.App.2d 247, 254.)
Plaintiff presents
evidence of an objective apprehension of injury from a dangerous
condition. After the landslide in 2021,
defendant sent her a letter stating, “A slope on your property has failed …
which results in a public health and safety hazard.” (Vodrey Decl., Ex. A.) Defendant later sent a letter stating a City
inspector “observed that a portion of your slope was, once again, encroaching
onto public property. … Also, a concern exists that your tree could
enter public property and severely injure or kill any persons that happen to be
in its path.” (Id., Ex. C.) The letter further stated, “[P]lease have
your engineer immediately consult with the Division
about required actions with permits and City approvals to install protective
measures as soon as possible to prevent further damage to your property and
public property.” (Ibid.) Moreover, plaintiff testifies, “I lost sleep
and suffered anxiety because I worried that the Slope would fail again and the
tree would fall and kill somebody. I’m
afraid to live on my own property. I
cannot sleep whenever it rains and have recurring nightmares about my house
falling down the Slope.” (Vodrey Decl.,
¶ 17.)
On this record, the
court cannot conclude that as a matter of law, the interference with
plaintiff’s property was insubstantial or the harm to plaintiff does not
outweigh the social utility of defendant’s conduct. A reasonable trier of fact could find the
interference was substantial and the gravity of the harm outweighs the social
utility of defendant’s conduct.
Disposition
Defendant City of Beverly Hills’
motion for summary judgment is denied.
Defendant’s motion for summary adjudication of the second cause of
action is granted. Defendant’s
motion for summary adjudication of the third cause of action is denied.