Judge: Edward B. Moreton, Jr., Case: 20SMCV1196, Date: 2022-10-19 Tentative Ruling

Case Number: 20SMCV1196    Hearing Date: October 19, 2022    Dept: 200

WILLIAM P. HOWELL, Plaintiff, v. SOUTHERN CALIFORNIA EDISON, et al., Defendants. Case No.: 20SMCV01196 Hearing Date: 10/19/22 Trial Date: None [TENTATIVE] RULING RE: DEFENDANT STATE OF CALIFORNIA’S DEMURRER BACKGROUND This is an action for property damage. On August 31, 2020, Plaintiff William Howell filed a complaint against Defendants Southern California Edison (“SCE”), Edison Power Constructors Inc. (“EPC”), Tidwell Excavation Acquisition Co., Inc. (“Tidwell”), and Hampton Tedder Electric Co. (“Hampton”). Plaintiff subsequently filed the first amended complaint adding as a defendant “The People of the State of California, acting by and through the Department of Transportation,” also known as “Caltrans,” but erroneously sued as State of California Department of Transportation. The operative “Third Amended Complaint” (“TAC”) alleges causes of action for: (1) negligence, (2) fraud and concealment, (3) private nuisance, (4) public nuisance, (5) trespass, (6) inverse condemnation against SCE, (7) inverse condemnation against Caltrans, and (8) RICO (18 U.S.C. § 1962(b)). The TAC alleges the following. There is a culvert (the “Culvert”) that runs underneath Topanga Canyon Boulevard where Plaintiff’s property (the “Property”) is located. (TAC, ¶ 3.) The Culvert originally emptied storm water onto an area located above the Property’s driveway (the “Upper Slope”). (TAC, ¶ 3.) A slope protection concrete called shotcrete covered the entire Upper Slope to prevent erosion. (TAC, ¶ 3.) The Culvert directed the storm water through the drainage system underneath Plaintiff’s driveway, before discharging that water through an outlet on another slope below the driveway (the “Lower Slope”), that was also covered with shotcrete to prevent erosion. (TAC, ¶ 3.) The storm water would then flow from the Lower Slope, empty into Dix Creek, and a few yards later into Topanga Creek, which is located on the Property. (TAC, ¶ 3.) On or about September 30, 2019, Defendant EPC, as part of a public works project Defendant SCE enacted and undertook, drilled directly into the Culvert, and then improperly installed a power pole. (TAC, ¶ 4; Figure 1 (p. 4 of the Complaint).) Doing so severely damaged the Culvert and blocked the entire drainage system of which it is part. (TAC, ¶ 4.) On the morning of December 29, 2019, Plaintiff became aware of the damage to his Property caused by the alleged negligent conduct of Defendants SCE, EPC and Caltrans, when 2 water and debris surged underneath the damaged Culvert and its shotcrete, and then flooded the Upper Slope and driveway, causing substantial mudflow. (TAC, ¶ 40.) The strength and power of the backed-up storm water were so great that it blew out areas above and below the shotcrete that surrounded the Upper Slope, then flowed under the driveway and shotcrete of the Lower Slope, leaving large voids and instability. (TAC, ¶ 40.) Defendant State of California now moves for demurrer on three grounds: (1) Plaintiff’s tort causes of action for negligence, private nuisance, public nuisance and trespass are barred for failure to present a timely claim as required under Government Code §§ 905, 911.4 and 945.4, (2) Plaintiff’s claim for negligence fails to state a claim because he fails to state a statutory basis for his claim, and (3) Plaintiff’s seventh cause of action for inverse condemnation fails to state a claim because the alleged wrongdoing was not part of a deliberate plan by the State. This is the third demurrer filed by the State on the same grounds. The State’s previous demurrers were sustained with leave to amend. LEGAL STANDARD A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App.4th 968, 994.) 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law [citations] ….” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show in what manner the plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.) MEET AND CONFER Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve objections raised in the demurrer. (CCP § 430.41). Here, the State’s counsel only avers that he sent Plaintiff a “detailed meet and confer correspondence” on July 25, 2022, to which Plaintiff did not respond. Baggs Decl. ¶¶ 4-5. This does not meet the requirements of the Code. There is no indication the State’s counsel attempted to call or meet in person with Plaintiff to discuss the grounds of the demurrer. In the interest of judicial efficiency, however, the Court will consider the demurrer, although it cautions the parties to abide by their meet and confer obligations. REQUEST FOR JUDICIAL NOTICE State’s Request for Judicial Notice 3 The State requests judicial notice of (1) Plaintiff’s responses to requests for admissions, set one, and (2) Plaintiff’s government claim filed with the State on November 2, 2020. Plaintiff has not filed an objection to the request. The Court may take judicial notice of discovery requests, including requests for admissions. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 (“The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents or allegations contrary to facts which are judicially noticed. Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. In this regard, the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff, and the plaintiff’s answers to interrogatories, as well as to the plaintiff’s response to request for admissions.”) (citations omitted).) The Court may also take judicial notice of official acts of the legislative, executive and judicial departments of any state, including records of a public entity. (Corado v. City of L.A., 2022 Cal. Super. Lexis 21692 at *7 (taking judicial notice of a plaintiff’s government claim form and holding that “[t]he Court may take judicial notice of official acts of the legislative, executive, and judicial departments of any state, including records of a public entity”).) Plaintiff’s government claim form is a record of a public entity. (Id.) On these grounds, the Court GRANTS the State’s request for judicial notice in its entirety. Plaintiff’s Request for Judicial Notice Plaintiff requests judicial notice of declarations from three experts which were filed in conjunction with Plaintiff’s motion for preliminary injunction. Plaintiff argues the Court may take judicial notice of the records under Cal. Evid. Code § 452 because they are “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Defendant objects to the request. Plaintiff uses the substantive opinions in the expert declarations to support various claims in his Opposition. This is not a proper use of judicial notice. Under Cal. Evid. Code § 4352(h), judicial notice may only be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The various opinions stated in the expert reports are not “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. The California Supreme Court has also held that judicial notice of the authenticity and contents does not establish the truth of the recitals therein, nor does it render inadmissible hearsay evidence admissible. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063; see also People v. Long (1970) 7 Cal.App.3d 586, 591 (“While the court takes judicial notice of public records they do not take notice of the truth of the matters stated therein.”).) Here, Plaintiff is seeking to admit the expert opinions for their truth, and not merely to show they were filed and are part of the Court record. For these reasons, the Court DENIES Plaintiff’s request for judicial notice. ANALYSIS Claim Presentation Requirement 4 The State demurs to four causes of action (negligence, private nuisance, public nuisance and trespass) on the ground Plaintiff has not pled compliance with the Government Tort Claims Act (the “Claims Act”). Under the Claims Act, the general rule is that any party with a claim for money or damages against a public entity must first file a claim directly with the entity. A claim is deemed filed at the time of filing with a $25 filing fee or with waiver of that fee. Gov. Code §§ 905.2(d)(1), 911.2(b). If a plaintiff fails to timely file a claim, he must apply for leave to present the claim under Gov. Code §911.4. Under this section, the application must be presented within “a reasonable time not to exceed one year after the accrual of the cause of action.” (Gov. Code § 911.4). If the application for leave is denied, the plaintiff’s next option is to file a petition for relief from the claim requirements within six months of the denial. (Gov. Code § 946.6.) Only if the claim is denied or rejected may the claimant file a lawsuit. (Gov. Code §§ 905, 945.4; City of Ontario v. Superior Court (1993) 12 Cal.App.4th 894.) This provides the public entity with an opportunity to evaluate the claim and make a determination as to whether it will pay on the claim. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474.) Failure to timely file a tort claim renders the complaint subject to demurrer. (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509 (affirming sustained demurrer because minor plaintiff failed to comply with the timing requirements of the Claims Act). A complaint subject to the Claims Act must allege facts showing compliance with the act or allege facts excusing non-compliance. (State v. Superior Court (2004) 32 Cal.4th 1234, 1239.) A plaintiff must comply with the claim presentation requirements even if the entity has actual knowledge of the circumstances surrounding the claim. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455). This Court in its June 8, 2022 Order noted that “a plaintiff is not required to specifically plead (1) the method of service used to present the claims to the [State] or (2) whether [the State] explicitly rejected the claim, or alternatively, was deemed to have rejected the claim by failing to act within the statutory period.” June 8, 2022 Minute Order, pp. 4-5. The Court noted, however, that Plaintiff’s claim was untimely based on the dates plead. Id. at 5. The Second Amended Complaint (“SAC”) alleged that Plaintiff discovered the damage to his property on December 29, 2019. The TAC makes the same allegation. (TAC, ¶ 40.) The TAC also alleges that in January 2020, Plaintiff was “advised of the improperly installed Pole and the subsequent damage”. (TAC, ¶ 41.) Accordingly, the cause of action accrued in either December 2019 or January 2020, and Plaintiff had until June or July 2020 to submit a claim. Plaintiff filed a government tort claim with the State on November 2, 2020, outside of the time period. Ex. A to Rivera Decl. And Plaintiff makes no allegation regarding any application for permission to file a late claim (Gov. Code §911.4(a)(b)) or a petition to the court for relief from the claim filing requirements (Gov Code §946.6). In Opposition, Plaintiff argues he has alleged sufficient facts to meet the claim presentation requirement because he alleged (1) he and his counsel “made repeated and specific written demands of action against Caltrans” before the Complaint naming the State was filed, and (2) Plaintiff made a detailed written demand to the head executives of Caltrans prior to the October 1, 2020 naming of Caltrans. Opp. at 9. None of these facts, however, show Plaintiff timely filed a claim by June or July 2020 or that he applied for permission to file a late claim. Further, there is no indication that the unspecified claims and demands were made to “an office of the Department of General Services,” as required under Gov. Code §915(b)(1). (See also DiCample-Mintz v. County of Santa Clara (2012) 55 Cal. 4th 983, 987 (affirming grant of summary judgment where a claim was not presented to the statutorily designated recipient under section 915). 5 As Plaintiff has been given multiple opportunities to amend and appears not to be able to allege facts showing he filed a timely claim or had leave to file a late claim, the Court SUSTAINS the demurrer as to the first, third, fourth and fifth causes of action against the State without leave to amend. Negligence The State demurs to the negligence cause of action on the ground there is no statutory basis for the cause of action. Gov. Code §815 provides that “[p]ublic entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code §815(a).). “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code §1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183). Since the duty of a governmental agency can only be created by a statute or enactment, the statute or enactment claimed to establish that duty must at the very least be identified. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) Here, Plaintiff has not pointed to any allegation in his TAC that provides a statutory basis for his negligence claim. Opp. at 10. The portion of the Complaint he cites only alleges that the State owes a “non-delegable” and “mandatory” duty of care to Plaintiff, without any citation to a statute. Opp. at 10 (citing TAC, ¶ 67.) Notwithstanding, Plaintiff claims in his Opposition that §§91 and 137 of the Streets and Highways Act (the “SHA”) create a duty on the part of the State. Opp. at 10. Section 91 of SHA states that the “department must improve and maintain the state highways, including all traversable highways which have been adopted or designed as state highways.” Section 137 of SHA states the “department shall determine the kind, quality and extent of all work done under its control …”. Plaintiff has cited no authority – and the Court has found none – holding that SHA creates a statutory basis for a negligent claim. SHA does not expressly state it creates any duty of care on the part of the State that is owed to homeowners like Plaintiff. As the State notes, any such finding would gut the general immunity provided by Gov. Code §815 and create a per se cause of action anytime someone was injured on a state highway. Given Plaintiff was given the opportunity to amend to state a statutory basis for his negligence claim and he has failed to do so, the Court SUSTAINS the demurrer as to Plaintiff’s first cause of action for negligence against the State, without leave to amend. Inverse Condemnation Claim The State demurs to Plaintiff’s seventh cause of action for inverse condemnation on the ground Plaintiff has merely alleged negligent management or maintenance, not a deliberate plan. To successfully plead inverse condemnation, the plaintiff “must prove that a public entity has taken or damaged its property for a public use.” (Pac. Bell. v. City of San Diego (2000) 81 Cal.App.4th 596, 602.) “[A]ny actual physical injury to real property proximately caused by a [public] improvement as deliberately designed and constructed is compensable … whether foreseeable or not. Damage caused by the public improvement as deliberately conceived, altered or maintained may be recovered under inverse condemnation and the presence or absence of fault by the public entity ordinarily is irrelevant.” (Id. (emphasis added); see also Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568 (“There is inverse condemnation liability for any physical injury to real property proximately caused by a public improvement as 6 deliberately designed and constructed, whether or not the injury was foreseeable and in the absence of fault by the public entity.”) (internal citations and quotations omitted).) To succeed on an inverse condemnation action, a plaintiff must ordinarily show that the damage to private property was substantially caused by inherent risks associated with the design, construction, or maintenance of the public improvement. (City of Oroville v. Superior Court (2019) 7 Cal.5th 1091, 1105-1106.) However, “private landowners may establish inverse condemnation liability even where the public improvement as deliberately designed, constructed, and maintained was only one of several concurrent causes—provided the causal nexus between the risks inherent in the public improvement and the harm in question was sufficiently robust to create a pronounced likelihood of damage.” (Id. at 1105-1106.) Here, Plaintiff alleges that the State’s drainage system was deliberately and incorrectly designed to include the following: (1) the “use of stacked stone supporting the corrugated steel piping in the system and the porous nature of the stacked stone that aggravated and facilitated the turbulent flow of water” after heavy rains in December 2019, and (2) the design, construction and maintenance of the Lower Slope, including specifically the “insufficient thickness of the shotcrete,” the failure to enclose the edges and the “lack of supporting re-bar steel reinforcements to keep the protective covering from degrading” during damage caused by a pole installed in the Culvert. (TAC, ¶ 129.) Plaintiff also alleges that the flooding damage was more “severe and substantial” as a “direct, necessary and legal consequence” of the design, construction and maintenance of the drainage system. (TAC, ¶ 132.) On these facts, the Court concludes Plaintiff has sufficiently stated a claim for inverse condemnation. Plaintiff has alleged there was a deliberate design, the design was flawed, and the flawed design was one of several substantial, concurrent causes for his injury. The State’s authorities do not require a different result. In Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, the court found that incidental damage to private property by police officers in the course of pursuing a suspect did not qualify as a basis for an inverse condemnation claim. Unlike here, the property damage for which the plaintiff in Customer Co. sought to recover bore no relation to a “public improvement” or “public work” of any kind. Id. at 383. The State also cites to City of Oroville v. Superior Court. There, the Supreme Court reversed a judgment (issued after a bench trial) finding the city liable for inverse condemnation, concluding the damage (a sewer backup) was caused by the plaintiff’s failure to have a backwater valve and not by the city’s sewer system. 7 Cal.5th at 1111-12. The Court further concluded the city acted reasonably in adopting the sewer design and presuming private property owners would comply with the law by installing and maintaining backwater valve devices to prevent sewage backups into private property. Id. In contrast to Oroville, we are faced with a demurrer (not a bench trial), and in a demurrer, we are required to accept plaintiff’s allegations as true. Here, plaintiff has alleged the drainage system was deliberately designed in such a way that was flawed, and the flawed design concurrently and substantially caused the damage to his property. These facts are sufficient to state a claim for inverse condemnation against the State. Accordingly, the Court OVERRULES the demurrer as to Plaintiff’s seventh cause of action for inverse condemnation against the State. CONCLUSION Defendant State of California’s Demurrer is SUSTAINED IN PART AND OVERRULED IN PART. The Court sustains the demurrer as to Plaintiff’s first, third, fourth 7 and fifth causes of action without leave to amend. The court denies the demurrer as to Plaintiff’s seventh cause of action. Dated: October 13, 2022 __________________________________________ Edward B. Moreton, Jr. Judge of the Superior Court