Judge Deirdre Hill, Case 22TRCV01201 2023-02-24 Tentative Ruling

ALERT

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The demurrer is OVERRULED as to the 1^st, 2^nd, and 3^rd causes of action in the complaint. The motion to strike is DENIED. Defendant is ordered to file an answer within 20 days.

On November 14, 2022, plaintiffs Alameda Construction Services, Inc. and ACS Investments LLC filed a complaint against California Water Service Company for (1) continuing nuisance, (2) continuing trespass, (3) negligence, and (4) declaratory relief.

On December 21, 2022, California Water Service Company filed a cross-complaint for (1) negligence, (2) interference with easement, (3) declaratory relief, (4) equitable easement, and (5) prescriptive easement.

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

“The court may, upon a motion . . ., or at any time in its discretion, and upon terms it deems proper: (a) Strike any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP §436(b).

CCP §431.10 states: “(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Defendant Cal Water demurs to the 1^st through 3^rd causes of action in the complaint on the ground that they fail to allege sufficient facts to constitute a cause of action.

The complaint alleges that plaintiff ACI acquired the property at 10 Toprail Lane, Rancho Palos Verdes on October 17, 2018 and continuously owned the property from October 17, 2018 until December 23, 2020. ACI sold the property to plaintiff ACS. ACS has continuously owned the property from December 23, 2020 to the present. Complaint, ¶7. In around the summer 2021, plaintiffs began construction of a single-family residence on the property. In connection with this development, in October 2021, it became necessary to excavate near the western boundary of the property adjacent to Toprail Lane for the construction of a driveway for the residence being constructed on the property. Id., ¶8. Prior to performing this excavation, plaintiffs contacted Dig Alert to determine if there were any underground obstructions in the area of the planned excavation. Dig Alert advised that there was a water pipeline owned and operated by defendant Cal Water located in an easement held by Cal Water in Toprail Lane and not on the property or the planned excavation area. Id., ¶9. As a result, plaintiffs believed that there were no underground obstructions in the planned excavation area and began to dig in and conduct construction activities in the area. However, when excavating in the area in October 2021, plaintiffs encountered a water pipeline on the property in the excavation area and struck the pipeline causing a significant water release. Prior to encountering the pipeline, plaintiffs were not aware of the presence of the pipeline on the property. The presence of the pipeline on the property was not discernible or discoverable from surface observation and could only be discovered through excavation. Id., ¶10.

The complaint further alleges that plaintiffs notified Cal Water of the incident and Cal Water advised plaintiffs that it would fix the pipeline rupture and remediate all damages resulting from the pipeline release at Cal Water’s sole cost and expense. Cal Water provided a temporary inadequate patch for the pipeline rupture. However, Cal Water refused to remediate or compensate plaintiffs for all damages caused by the pipeline rupture. As a result of Cal Water’s acts and omissions, plaintiffs incurred costs and suffered damage. Id., ¶11. Despite its wrongful occupation and presence on the property, Cal Water has refused to honor plaintiffs’ requests that Cal Water remove the pipeline from the property. The unlawful continued presence of the pipeline on the property has delayed and continues to delay ACS’ ability to construct the driveway on the property required to obtain an occupancy permit for the residence constructed by plaintiffs. Id., ¶12.

The elements of a claim for private nuisance are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage. Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262-263 (citations omitted). See also CACI 2021, which includes that plaintiff did not consent to defendant’s conduct.

Defendant Cal Water argues that plaintiffs cannot meet the element of no consent because it was operating its pipeline within its easement and its operations are pursuant to statute. Defendant explains that it provides public water services to the Rancho Palos Verdes community and that the pipeline at issue has been part of the area’s water system since at least 1934, when Cal Water’s predecessor, Palos Verdes Water Company, was granted an easement 16.5 feet in width for the purpose of laying and maintaining water pipes, with the right to lay, construct, maintain, replace, enlarge, and repair water pipes and connections, with valves, fittings and water meters. See Request for Judicial Notice, Exh. E (Water Line Easement, recorded August 27, 1934). Cal Water succeeded to the interests of Palos Verdes Water Company in 1970. See RJN, Exh. G. (CPUC Decision No. 77219 approving Cal Water’s purchase of all stock of Palos Verdes Water Company). Defendant contends that when plaintiffs acquired the property in 2018, they had actual knowledge and constructive notice of Cal Water’s record easement, as it is identified in the chain of title for the property. See RJN, Exh. F (Title Guarantee). Defendant also asserts that DigAlert does not identify specific pipeline locations and likewise does not identify the existence of easements. See Gov. Code §§4216.2-4216.9. Thus, defendant contends, it operates its pipeline with plaintiffs’ consent (via a recorded easement).

Further, defendant argues, it operates its pipeline pursuant to express statutory authority, and thus, it is immune from nuisance claims. See Public Utilities Code §216 and Civil Code §3482 (“Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”).

In opposition, plaintiffs argue that defendant’s assertion that the allegations are false is improper. Plaintiffs contend that the recorded documents regarding the subject easement establishes only the metes and bounds of the property wherein Cal Water has a right to locate and operate a pipeline, but that they do not and cannot establish the actual physical location of the pipeline or any object in the physical world. Thus, plaintiffs argue, the allegations are sufficient that the pipeline is located outside of the easement area, which are deemed true on demurrer.

The court finds that the allegations are sufficient to meet the elements. As to whether the documents show that the pipeline is located within the easement area, the court cannot ascertain without further evidence. As to whether defendant has immunity, it can raise as an affirmative defense.

“’Trespass is an unlawful interference with possession of property.’ The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000).” Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5^th 245, 262 (citations omitted).

Defendant makes the same argument that it is operating its pipeline within its easement and that the pipeline is located on plaintiffs’ property with approval via an express and recorded easement.

In opposition, plaintiffs argue that the allegations meet the elements and reiterate their allegation that defendant placed a pipeline outside of an alleged easement area, and that the pipeline encroaches on plaintiffs’ property and there is no legal right or basis for Cal Water’s placement of the pipeline where it is located.

The court finds that the allegations are sufficient to meet the elements. As stated above, reference to the judicially-noticed documents without more does not clearly show that the pipeline was within the alleged easement area.

Defendant argues that it operates its pipeline pursuant to a recorded easement and therefore did not act negligently. Defendant further contends that defendant’s actions were not a substantial factor in causing plaintiffs’ damages because they violated Gov. Code §4216.2.

As stated above, reference to the judicially-noticed documents are insufficient to determine whether the pipeline falls within the easement without further evidence. As to whether plaintiffs caused or contributed to their alleged damage, it does not appear on the face of the pleading and such is the subject of an affirmative defense.

Defendant requests that the court strike “injunctive relief” allegations as improper, including paras. 22, 23, 29, and 35 and prayer at 3.

Defendant argues that plaintiffs are not entitled to injunctive relief because a public use cannot be enjoined. Defendant contends that Cal Water’s decades-long use of the land and facilities to deliver water to the community is a necessary public use that cannot be enjoined and plaintiffs cannot force Cal Water to relocate its public facilities. Defendant cites to Kachadoorian v. Calwa County Water Dist. (1979) 96 Cal. App. 3d 741, 748-49, which states that “[w]here a public utility subjects a landowner’s property to a public use and the necessity of maintaining the use has been established, the landowner is not entitled to quiet title or to injunctive relief; rather, his remedy is by way of damages in the nature of inverse condemnation.” Further, even if plaintiffs were successful in their claims, defendant asserts, monetary damages are adequate and the only proper remedy.

In opposition, plaintiffs argue that they are entitled to seek damages and injunctive relief. Further, plaintiffs contend, defendant has provided no evidence that the pipeline serves a public purpose or the necessity of maintaining the use, which the court notes would be improper at the pleading stage.

Plaintiffs can plead both remedies. Further, in Kachadoorian, supra, the trial court had entered judgment quieting title. This case is inapplicable to the extent this is the pleading stage and the “necessity of maintaining the use has” not yet been established.