Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a subrogation claim.  Plaintiff Philadelphia Indemnity Insurance Company alleges that its insured, Gordon Louis Alatorre, incurred damage to his car when it hit a large pothole on Washington Boulevard in the City of Culver City (the “City”).  Plaintiff is suing in subrogation for negligence, dangerous condition of public property and inverse condemnation. 

This hearing is on the City’s demurrer to the third cause of action for inverse condemnation.  The City argues a property damage claim based on negligence does not give rise to a claim for inverse condemnation.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  The City submits the Declaration of Sabira Sherman, which shows the parties complied with the meet and confer requirements of §430.41.    

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

 

DISCUSSION 

The City argues that Plaintiff’s claim for inverse condemnation fails because Plaintiff has alleged only a claim for property damage based on negligence which cannot give rise to a claim for inverse condemnation.  The Court agrees.   

A cause of action for inverse condemnation requires the following elements: (1) plaintiffs owned the real property; (2) the property was taken or damaged; (3) the cause was a public project; and (4) causation.  (See California State Automobile Association Inter-Insurance Bureau v. City of Palo Alto (2006) 138 Cal.App.4th 474, 480.)  The physical damage to private property must be “proximately caused by a public improvement as deliberately designed and constructed.”  (Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568 (emphasis added).)  

Courts have held that deliberate design is not the same as negligent maintenance.  In Hayashi v. Alameda County Flood Control and Water Conservation District (1959)167 Cal.App.2d 584, the Court noted as follows: “The most recent cases have made a distinction between negligence which occurs when a public agency is carrying out a deliberate plan with regard to the construction of public works, and negligence resulting in damage growing out of the operation and maintenance of public works. These cases hold that the damage resulting from the former type of negligence is compensable under article I, section 14, whereas damages resulting from the second type of negligence are not recoverable in an inverse condemnation proceeding, but are recoverable, if at all, only in a negligence action. It 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.”  (Id. at 591-92.)  

Neither “negligent acts committed during the routine day to day operation of the public improvement, nor negligence in the routine operation having no relation to the function of the project as conceived’ gives rise to a claim in inverse condemnation [citations].” (Eli v. State of California (1975) 46 Cal.App.3d 233, 235; Kambish v. Santa Clara Valley Water Conservation District (1960) 185 Cal.App.2d 107, 111.)  

In Tilton v. Reclamation District 800 (2006) 142 Cal.App.4th 848, the plaintiff alleged that their property was damaged by the public entities’ failure to maintain a levee. The court held that the alleged failure to maintain the levee did not constitute inverse condemnation, reasoning that, “although there may be liability in inverse condemnation where levee failures are integrally connected with a flawed plan for those levees and/or flawed construction, there is no such liability where similar failures are the result of negligent or inadequate operation and maintenance.” (Id. at 858.)  

Here, the First Amended Complaint (“FAC”) has established a property damage-only claim based on alleged negligent maintenance, which does not give rise to a claim for inverse condemnation.  (City of Los Angeles v. Superior Ct. (2011) 194 Cal.App.4th 210, 221 (“A party who does nothing more than establish property damage as the result of negligent conduct of public employees or a public entity has not established a right to recover under a claim of inverse condemnation [internal citations omitted].”) 

Plaintiff has not pleaded that the alleged property damage resulted from a deliberate design.  Rather, the pothole which caused damage to the insured’s car was at most the product of negligent maintenance as confirmed by Plaintiff’s allegation that the “public improvement failed to function as intended, i.e., it failed to exist in a condition as intended thereby failing to provide a surface suitable for save [sic] motor vehicle travel..” (FAC, ¶ 35.)  To allege that the road “failed to exist in a condition as intended” is to allege that the road was negligently maintained.   

The FAC is devoid of any allegations that the pothole was within the City’s initial design of the pavement of the subject roadway, the alleged “public improvement.” (FAC, ¶ 33.)  Likewise, the FAC does not contain any allegations that the paved roadway was deliberately altered or deliberately maintained to develop a large pothole.  As there are no allegations that the public improvement of the roadway failed, as designed, altered, or maintained, Plaintiff’s claims lie in the alleged failure of the City to maintain the roadway in a pothole-less condition.  Such an allegation gives rise to a negligence cause of action, not a claim for inverse condemnation. 

Accordingly, the Court sustains the demurrer to the third cause of action for inverse condemnation.   

CONCLUSION 

For the foregoing reasons, the Court sustains the City’s demurrer without leave to amend.   

 

DATED:  August 9, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court