Judge Cynthia A Freeland, Case Number: 37-2023-00053730-CU-EI-NC, Date: 2024-06-14 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00053730-CU-EI-NC, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 13, 2024

06/14/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Eminent domain/Inverse condemnation Demurrer / Motion to Strike 37-2023-00053730-CU-EI-NC JONES V. OLIVENHAIN MUNICIPAL WATER DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/02/2024

Defendant Olivenhain Municipal Water District ('Defendant')'s demurrer to Plaintiffs Stanley D. Jones as Trustee of the Stanley D. Jones Revocable Trust et al. (collectively, 'Plaintiffs')'s Complaint is sustained.

Plaintiffs' request for judicial notice is granted. See Cal. Evid. Code � 452(d). However, while the court takes judicial notice of the existence of the records in The Hillside Patio Homes Association v. City of Carlsbad et al., San Diego County Superior Court Case No. 37-2021-00043624-CU-NP-NC (the 'Hillside Patio Action'), it does not take judicial notice of the truth of the matters asserted in those documents.

See Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun v. Superior Court (2013) 218 Cal. App. 4th 577, 597. Moreover, while the records' existence, content, and authenticity are judicially noticeable, the truth of the matters contained therein are not directly relevant to the disposition of the pending demurrer, i.e., determining the legal sufficiency of the Complaint.

A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

Initially, to the extent Defendant demurs to the first cause of action on the grounds of uncertainty, the demurrer is overruled as Defendant has failed to demonstrate that the cause of action is so incomprehensible that it cannot reasonably respond. See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135. To the extent Defendant believes that the Complaint is in any way ambiguous, such ambiguities can be clarified during discovery. See Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616. The court now turns to Defendant's remaining arguments.

The demurrer to the first cause of action for inverse condemnation is sustained. Article 1, � 19(a) of the California Constitution provides, in relevant part, that '[p]rivate property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, Calendar No.: Event ID: TENTATIVE RULINGS

3082817 CASE NUMBER: CASE TITLE: JONES V. OLIVENHAIN MUNICIPAL WATER DISTRICT [IMAGED] 37-2023-00053730-CU-EI-NC or into court for, the owner.' Cal. Const. Art. 1, � 19(a). 'To state a cause of action for inverse condemnation, the property owner must show there was an invasion or appropriation (a 'taking' or 'damaging') of some valuable property right which the property owner possesses by a public entity and the invasion or appropriation directly and specially affected the property owner to his injury.' City of Los Angeles v. Sup. Ct. (2011) 194 Cal. App. 4th 210, 221. 'Property is 'taken or damaged' within the meaning of article 1, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.' Weiss v. People ex rel. Dept. of Transportation (2018) 20 Cal. App. 5th 1156, 1174 (quoting Boxer v. City of Beverly Hills (2016) 246 Cal. Ap. 4th 1212, 1218; Oliver v. AT&T Wireless Services (1999) 76 Cal. App. 4th 521, 530) (emphasis in original).

The court finds that the Complaint, as presently pled, fails to state facts sufficient to constitute a cause of action for inverse condemnation. The Complaint alleges that Plaintiffs own various properties in Carlsbad, CA. See Complaint, �� 1, 9. At all relevant times, Defendant authorized, and empowered to plan, seek and obtain, fund, acquire, construct, maintain, repair, replace, manage, and control, among other things, water mains and pipes to Plaintiffs' properties. Ibid., � 8. Indeed, Defendant had an easement to construct, maintain, repair, replace, manage, and control the water mains and pipes as well as their requisite attendant component parts. However, Defendant failed and continues to fail to maintain, adequately repair or replace, manage, and/or control the water mains and pipes as well as the slopes and embankments running immediately below, above, and contiguous to Plaintiffs' properties.

Ibid., � 9. As a result, the water mains, lines, related and/or unrelated pipes and water supply lines, joints, valves, connections, and other liquid transport or transference systems located at or near Plaintiffs' properties separated and/or leaked. This caused extensive and ongoing damage to Plaintiffs' properties. Plaintiffs are informed and believe that the pipe separation was caused by, among other things, the age of the pipes and the resultant corrosion, decay, degradation, and weakness, as well as the design and/or manufacture of the pipes and the manner of installation and placement of the pipes.

Ibid., � 10. The Complaint further alleges that Defendant's failure to properly maintain, repair, and/or replace the pipes led to the ongoing damage to Plaintiffs' properties. Ibid., �� 11, 15. Plaintiffs contend that the damage to their respective properties constitutes, in essence, a taking to which Defendant has not provided compensation. Ibid., �� 12-13.

The foregoing is insufficient to state a cause of action for inverse condemnation. The court agrees with Defendant that the gravamen of the Complaint, as presently pled, sounds in negligence. However, to prevail on an inverse condemnation claim, it is insufficient for Plaintiffs to allege that Defendant was negligent in maintaining the water mains and pipes. See Arreola v. County of Monterey (2002) 99 Cal. App. 4th 722, 742. California courts have made clear that where damage results from the negligence of a public entity's employees, and not from a policy decision, there is no taking. See Paterno v. State of California (1999) 74 Cal. App. 4th 68, 87. Put differently, '[i]t has been definitely held that a property owner may not recover in an inverse condemnation proceeding for damages caused by acts of carelessness or neglect on the part of a public agency.' Sheffet v. County of Los Angeles (1970) 3 Cal. App. 3d 720, 733-739. Toward that end, 'it is the plan of maintenance which must be unreasonable to establish a taking. Poor execution of a maintenance plan does not result in a taking.' Paterno, 74 Cal. App. 4th at 87. See also Hayashi v. Alameda County Flood Control (1959) 167 Cal. App. 2d 584; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal. App. 4th 848. In this case, Plaintiffs have not alleged that their damages resulted from a deliberate plan or policy decision on Defendant's part or any inherent dangers in the design or construction of the subject water system; rather, the Complaint alleges that Defendant failed to properly maintain and/or repair the water mains and pipes at or near Plaintiffs' properties. Vaguely and generally pleading that Defendant: (1) was 'generally authorized and empowered to plan'; (2) 'had an easement to construct'; (3) engaged in certain conduct 'from the inception of its work of public improvement'; and (4) 'failed to properly engineer, construct, maintain, repair and adequately manage and control . . . said work of public improvement', without more, constitutes conclusory allegations that are insufficient to state an inverse condemnation claim. See Calendar No.: Event ID: TENTATIVE RULINGS

3082817 CASE NUMBER: CASE TITLE: JONES V. OLIVENHAIN MUNICIPAL WATER DISTRICT [IMAGED] 37-2023-00053730-CU-EI-NC Complaint, �� 8-9, 14-15 Accordingly, the court sustains the demurrer to the first cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

In light of the foregoing, the court sustains the demurrer with leave to amend. Plaintiffs shall file and serve a first amended complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, June 14, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of June 14, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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