Judge: Frank M. Tavelman, Case: 20STCV27054, Date: 2023-03-30 Tentative Ruling

SUBMITTING
ON THE TENTATIVE

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Case Number: 20STCV27054    Hearing Date: March 30, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY ADJUDICATION

ALLEGATIONS: 

Giuseppe Loche and Carmen Loche ("Plaintiffs") filed suit against the City of Burbank ("Defendant"), alleging that Defendant caused the city sewage collecting system to back flow on to Plaintiffs' property in multiple instances (2017, 2018 and early 2019). On July 17, 2020, Plaintiffs filed a Complaint alleging five causes of action: (1) Inverse Condemnation, (2) Nuisance, (3) Trespass, (4) Negligence, and (5) Dangerous Condition on Public Property.

HISTORY: 

On November 22, 2022, Burbank filed its motion for summary adjudication and request for judicial notice. On March 10, 2023, Plaintiffs filed their reply, and on March 16th Burbank filed its reply and evidentiary objections.

RELIEF REQUESTED:

Burbank moves for summary adjudication as to each cause of action. Burbank also moves for summary adjudication as to the issues of equitable tolling, design immunity, and discretionary immunity.

EVIDENTIARY OBJECTIONS:

Burbank’s evidentiary objections are SUSTAINED as to Nos. 11, 16, 21, 22, 24, 28, 29, 39, 40, 41, 44, 46, 48, and 59.

Burbank’s evidentiary objections are OVERRULED as to Nos. 1-10, 12-15, 17- 20, 23, 25, 26-27, 30- 38, 42-43, 45, 47, 49, 50- 58, and 60- 67.

REQUESTS FOR JUDICIAL NOTICE:

Burbank requests the Court take judicial notice pursuant to Evid. Code § 452(d) of the following:

1.     February 19, 2019 Complaint, filed in Giuseppe Loche, et al. v. City of Burbank, et al., Case No. 19BBCV00155, Los Angeles Superior Court. (Burbank Exhibit F.)

2.     April 15, 2019 Proofs of Service of Summons to City of Burbank, Burbank Public Works Department, and Jerry Ellegood, filed in Giuseppe Loche, et al. v. City of Burbank, et al., Case No. 19BBCV00155, Los Angeles Superior Court. (Burbank Exhibit G.)

3.     June 17, 2019 Request for Dismissal, filed in Giuseppe Loche, et al. v. City of Burbank, et al., Case No. 19BBCV00155, Los Angeles Superior Court. (Burbank Exhibit I.)

4.     Case Access information from Los Angeles Superior Court website for Giuseppe Loche, et al. v. City of Burbank, et al., Case No. 19BBCV00155, Los Angeles Superior Court. (Burbank Exhibit H.)

The Court grants Burbank’s request; Evidence Code §452(d) permits the Court to take notice of records of the state of California. However, while courts may take judicial notice of court records, the truth of matters asserted in such documents is not subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

ANALYSIS: 

I.                LEGAL STANDARD 

C.C.P. § 437c(f)(1) says that “[a] party may move for summary adjudication as to one or more causes of action within an action …if the party contends that the cause of action has no merit … A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, a claim for damages, or an issue of duty.”¿ (Emphasis added.)¿ The “general policy behind motions for summary judgment or adjudication . . . [is] to promote and protect the administration of justice, and to expedite litigation by the elimination of need less trials.”¿ (Id.)¿ Courts analyze summary adjudication motions “with a view to whether it promotes the evident legislative purpose of section 437c, subdivision (f), to prevent adjudication of issues which fail to completely dispose of a particular cause of action or defense, even where an issue of duty is involved.”¿ (Id.)¿¿ 

¿ 

“[I]n moving for summary [adjudication], a¿defendant . . . has met his burden of showing that the cause of action has no merit if he has shown that one or more elements of the cause of action . . . cannot be established.”¿ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)¿ “From commencement to conclusion, the party moving for summary [adjudication] bears the burden of persuasion that there is no triable issue of material fact.”¿ (Id. at 828.)¿ “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”¿ (Id.)¿ “The party moving for summary [adjudication] bears an initial burden of production to make prima facie showing of the nonexistence of any triable issue of material fact; if he or she carries his or her burden of production, the burden of production then shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists.”¿ (Id.)¿ A party moving for summary judgment or summary adjudication does not have “to conclusively negate an element of the plaintiff’s cause of action.”¿ (Id. at 853.)¿ “[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.”¿ (Id.)¿ For purposes of presenting evidence in connection with a motion for summary adjudication “if it is not set forth in the separate statement, it does not exist.”¿ (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4.)¿ 

II.              MERITS

Inverse Condemnation (First COA) – Denied

To prevail on an inverse condemnation claim, “…there must be an invasion or an appropriation of some valuable property right which the landowner possesses, and the invasion or appropriation must directly and specially affect the landowner to his injury.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1166) The landowner's property must be singled out for singular and unique treatment in contrast to other landowners who could be affected by the proposed public work. (Id.)

Burbank’s Arguments

Burbank argues that Plaintiffs’ inverse condemnation claim fails as a matter of law because it is barred by the Statute of Limitations (“SOL”). The SOL on a claim for inverse condemnation is three years. (C.C.P. § 338(j).) Burbank argues the date of accrual for the action is whenever the taking is “stabilized”. Burbank cites to Lyles v. State of California (2007) 153 Cal.App.4th 281, where the court explained stabilization occurs when the damage becomes sufficiently appreciable to a reasonable man. Burbank argues Plaintiffs’ claim stabilized as of the first backflow incident on February 17, 2017.

Burbank’s argument primarily relies on Pacific Shores Property Owners Assn. v. Dept. of Fish and Wildlife (2016) 244 Cal.App.4th 12 (“Pacific Shores”). In Pacific Shores plaintiffs were the owners of a subdivision which was subject to flooding when a nearby lagoon rose above a certain level. Plaintiffs in Pacific Shores argued this flooding of the subdivision constituted an inverse condemnation. The parties in Pacific Shores disagreed when the inverse condemnation claim accrued. The trial court ruled plaintiffs were within the three-year window to file because they had filed their claim in 2007, only two years after the Department of Fish and Wildlife (“The Department”) had adopted a management plan which included procedures for flooding of the lagoon. (Pacific Shores supra, at 35.)  The trial court reasoned the adoption of the management plan indicated the stabilization of the taking. (Id.) The Department contended stabilization of the claim had occurred much earlier, as the Department had allowed the flooding of the lagoon each year since 1987. (Id.) In reviewing the decision, the Court of Appeal relied primarily on Federal interpretation of the stabilization doctrine. (Id. at 36-40.) The court stated “‘[T]he touchstone for any stabilization analysis is determining when the environmental damage has made such substantial inroads into the property that the permanent nature of the taking is evident and the extent of the damage is foreseeable.’” (Id. at 36-37 citing Boling v. U.S. (Fed. Cir. 2000) 220 F.3d 1365, 1372.) The Court of Appeal reasoned that even though the flooding occurred yearly, the Department had only operated on a series of emergency permits which did not constitute a permanent taking. (Id. at 40.) Only after the adoption of the 2005 management plan did the Departments taking become noticeably permanent and thereby stabilize. (Id.)

Here, Burbank argues Plaintiffs’ claim stabilized as of February 17, 2017. Burbank argues Plaintiffs were immediately aware of the permanent nature of the taking from the initial incident. As evidence of this awareness Burbank points to Plaintiffs calling 911 once they noticed the backflow and the listing of severe property damage on their March 17, 2017 tort claim. (SS Nos. 7, Clark Decl. ¶ 2, Ex. A; Clark Decl. ¶ 3, Ex. B; Clark Decl. ¶ 4, Ex. C.) Burbank also argues the additional backflows occurring from December 2018 to March of 2019 constitute the same permanent taking. Burbank argues Plaintiffs’ July 17, 2020 filing is outside of the three-year SOL because stabilization occurred in February of 2017.

Burbank analogizes to Bookout v. State of California (2010) 186 Cal.App.4th 1478 (“Bookout”). In Bookout, plaintiff claimed inverse condemnation arising from the erosion of property by flooding. One of the primary causes of flooding in Bookout was the insufficiency of a junction box installed in 1977. (Bookout supra, 186 Cal.App.4th 1478 at 1481.) The court found plaintiff’s filing of his claim in 2006 was barred by the three-year SOL because he was aware of the flooding and made formal complaints as early as 2002. Like Plaintiffs in this case, plaintiff in Bookout contended the taking had not stabilized because the flooding was ongoing and the system which allowed the flooding changed overtime. (Bookout supra, at 1485.) The court in Bookout found plaintiff did not evidence sufficient changes to the system to negate the consistent and static nature of the flooding. (Id.) The court also determined plaintiff had known about the consistent flooding since his official complaint in 2002. (Id.)

Here, Burbank argues no significant changes have occurred which would negate the permanent nature of the taking. 

Plaintiffs’ Arguments

Plaintiffs argue their 2017 claim is not barred by the three-year SOL. Plaintiffs agree stabilization is determinative of when their claim accrues. However, Plaintiffs do not believe the backflow stabilized in time to bar their claim for inverse condemnation. In support of their argument Plaintiffs cite Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848 (“Lee”). Lee concerned a demurrer to an action for inverse condemnation on grounds that it was barred by SOL. The trial court sustained the demurrer without leave to amend. The Court of Appeals reversed, as it found that plaintiff’s inverse condemnation claimed had not stabilized. The damage to the property in Lee stemmed from construction of a public rail line that undermined the plumbing infrastructure and caused water to enter plaintiffs’ property.

Plaintiffs also cite to Stonewall Ins. Co. v. City of Palos Verdes Estates (1996) 46 Cal.App.4th 1810 (“Stonewall”). In Stonewall plaintiffs asserted that a continuous and repeated course of conduct from the City of Palos Verdes caused his property to be useless. (Stonewall supra, 46 Cal.App.4th 1810, at 1823.) Plaintiffs in Stonewall filed their claim when the damage was relatively minor erosion, however a landslide later completely destroyed the property. (Id.) The trial court ruled the claim was barred by the SOL. (Id. at 1843.) The Court of Appeal found that the city’s “ongoing periodic design, maintenance and mitigation activities” evidenced the taking was not stabilized. (Id.)

Plaintiffs argue their claim has not stabilized because of constantly changing conditions with the sewer system. Plaintiffs argue the evidence shows new connections have increased flow through the sewer system. (OSS Nos. 70, Pranata Decl., Ex. 1 pg. 10, 11, 21, 24-25, 27, 28, 31-35, Jakubowski Decl., Ex. 52.) Plaintiffs also argue Burbank has elected to operate existing pipes at more than half capacity, a decision which has allowed for overflows during storm events. (OSS No. 53, Jakubowski Decl., Ex. 46 pg. 2, Ex. 47 pg. 1 & 10, Loche Decl., ¶¶ 38, 40, 62, Ex. 26;  OSS No 54, Loche Decl., ¶ 48; OSS No. 68, See Loche Decl., ¶¶ 33, 35-37, 59, 62-63, 65, 68, Jakubowski Decl., Ex. 46 pg. 2, Ex. 47, Ex. 51 pg. 1; Pranata Decl., Ex. 1 pg. 46; OSS No. 70, Pranata Decl., Ex. 1, pgs. 24- 25, 31-32; OSS No. 71 Pranata Decl., Ex. 1 pgs. 10, 11, 21, 24-25, 27, 28, 31-35, Jakubowski Decl., Ex. 52.)

Plaintiffs also argue that Pacific Shores supports their position. Plaintiff quotes “"[a]ny promises by the government to mitigate damages caused by a continuous physical process delays a property owner's takings claim when the owner demonstrates that predictability [and permanence] of the extent of damage to the [plaintiffs’] land was made justifiably uncertain by the [government's] mitigation efforts.” (Pacific Shores supra, 244 Cal.App.4th 12 at 37.) Plaintiffs argue Burbank was actively cooperating with them to resolve the backflow issue until January 18, 2019. (OSS No. 47, Loche Decl. ¶¶ 17-34, Exs. 5-16.) Plaintiffs argue this cooperation constitutes a promise to mitigate damages under Pacific Shores. Plaintiffs further argue permanent damage was only apparent after Burbank took no action to prevent further flowage incidents. (OSS No. 11, Clark Decl. ¶ 2, Ex. A.) Plaintiff argues stabilization requires damage to be reasonably foreseeable. (Pacific Shores supra, 244 Cal.App.4th 12 at 36.) Plaintiff argues the full scope and damage of Burbank’s taking could not be foreseen as of the initial backflow incident.

Plaintiffs also argue that Bookout is distinguishable. Plaintiff argues that Bookout reflected 30 years of consistent flooding, whereas here there are a handful of overflow incidents. Plaintiffs argue that there is a longstanding pattern for Burbank to maintain and operate a functional sewer system on the property. (OSS No. 35, Loche Decl., ¶ 6) Plaintiff argues it was only after a period of time that it became clear Burbank intended to adopt an ongoing policy not to maintain and operate the system to prevent overflows. (OSS No. 43, Jakubowski Decl., Ex. 46 p. 2; Ex. 51 p. 1.)

Analysis 

As a preliminary matter, the Court addresses Burbank’s dispute of Plaintiffs’ evidence of changed conditions. Plaintiffs offer as evidence Exhibit 1 to Daniel Prenata’s declaration. Exhibit 1 contains excerpts from Steven Walker’s deposition.  Mr. Walker is the Assistant Public Works Director for the City of Burbank. Burbank claims Plaintiffs’ submission is in violation of CRC rule 3.1350(f)(3) for failure to reference correct page numbers. Upon review the Court finds that the page numbers in Plaintiffs’ exhibit refer to the pages presented here and not the original page numbers of the deposition. Further, no lines from the deposition have been cited. The Court finds this is a violation of the CRC rules but does not find it fatal to Plaintiffs’ presentation of evidence.  Plaintiff is admonished to comply with the Rules of Court in any subsequent filings.

The Court finds Plaintiffs’ claim for inverse condemnation is not barred by the SOL. Burbank argues in reply that Pacific Shores requires no additional flooding incidents. While this is true, Pacific Shores does state that the SOL runs once it is clear that the process resulted in a permanent taking. Plaintiffs’ awareness of the permanent nature of the damage is a question of fact to which the parties both provide evidence. Burbank contends that Plaintiffs’ 911 call for assistance indicates they were aware of the permanent nature of the incursion as of the first backflow. Plaintiffs counter that they did not realize the permanent nature of the damage upon initial incident. Plaintiffs use the additional backflow incidents in conjunction with their engagement in the civil petition process as evidence that they were not aware the taking was permanent. The Court finds Burbank has not demonstrated there is no triable issue of fact on this matter.

Burbank argues Plaintiffs’ citation to Lee is inapposite, as here there is no ongoing construction preventing the permanent nature of the damage from being realized. Further, Burbank argues the evidence supports the design of the sewer system has not changed since 1931. (Pranata Decl. Ex. 1, p. 49.) While this case is not directly analogous to Lee, the Court finds the allegations of additional flow into the system and additional backflow incidents could sustain a finding that Plaintiffs were not aware of the permanent taking. That the design of the sewer system has not changed does not speak to the other considerations of sewer management Burbank undertakes.

The Court does not find the mitigation argument as per Pacific Shores to be compelling. Burbank argues the discussion of mitigation in Pacific Shores is in reference to another case, Banks v. U.S. (Fed.Cir.2003) 314 F.3d 1304.  Burbank argues Banks concerned permanent and affirmative attempts at mitigation which are unlike the instant case. Here, upon the initial incursion, city employees responded to the property and took mitigating action. Plaintiffs and the City then engaged in a long period in which they engaged in good faith efforts to resolve the backflow incident through administrative claim procedures. Plaintiffs’ February 2017 administrative claim was never formally rejected. (OSS No. 10, Clark Decl. ¶ 2, Ex. A.) The evidence indicates a cleanup attempt by Burbank and an attempt to resolve Plaintiffs’ administrative claim, but this does not equate to the type of mitigation contemplated in Banks.

Burbank argues Plaintiffs are attempting to miscategorized Bookout, stating that the Appellate Court in Bookout affirmed stabilization of an earlier claim even though plaintiff made later complaints. The Court finds the history of the sewer system at the property is not one of consistent and static backflows. Plaintiffs produce evidence of additions to the sewer system which continue to increase the flow. The Court finds this evidence compelling as to the changes which negate the consistent and static nature of the incursion as per Bookout. Unlike the plaintiff in Bookout, Plaintiffs only experienced a handful of backflow incidents. The evidence indicates that the backflows at Plaintiffs’ property were not in keeping with Burbank’s usual maintenance of the sewer system. The Court finds Plaintiffs have appropriately distinguished Bookout.

The Court finds the evidence supports that the cause of action did not stabilize upon the February 17, 2017 incursion. As such, the Court DENIES the motion for summary adjudication as to the cause of action for inverse condemnation.

Nuisance (Second COA) – Denied

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage;” (3) “the 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, italics, brackets, and quotation marks omitted.)

Burbank’s SOL Arguments

Burbank argues that Plaintiffs’ nuisance claim is also time barred. Government Code § 945.6(a)(1) provides a suit against a public entity must be filed no later than six months after a claim has been rejected. Government Code § 945.6(a)(2) extends this filing time to two years if written notice or rejection is not provided.

Burbank argues there is a key distinction between permanent and continuing nuisance. “Where a nuisance is of such a character that it will presumably continue indefinitely, it is considered permanent, and the limitations period runs from the time the nuisance is created. (Citation.) Where, however, a nuisance may be discontinued at any time, it is considered continuing in character. (Citation.) A person injured by a continuous nuisance may bring successive actions, even though an action based on the original wrong may be barred. (Citation.)” (Bookout supra 186 Cal.App.4th 1478, at 1489.)

Burbank argues the backflows are a permanent nuisance. Burbank argues the facts show the sewer system has been a permanent fixture for more than 75 years. (SS No. 4, Declaration of Daniel Rynn ¶10, Ex. J.) Burbank further argues the Complaint alleges the backflows are caused by a design flaw and will continue indefinitely (Compl. ¶¶ 15, 51-54, 57, 60.) Burbank cites Bookout in contending that solid structures producing continuous damage are “unquestionably permanent” (Bookout supra 186 Cal.App.4th 1478, at 1489.)

Plaintiffs did not receive formal response to their tort claim. (OSS No. 10, Clark Decl. ¶ 2, Ex. A, Compl. ¶ 21.) As such, Burbank argues Plaintiffs had two years from the initial backflow to file their nuisance claim. Burbank argues Plaintiffs’ failure to file by February 17, 2019 bars their claim for nuisance.

Plaintiffs’ SOL Arguments

Plaintiffs argue the backflows are a continuing nuisance.

Continuing nuisances are essentially a series of successive injuries, and the statute of limitations begins anew with each injury (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 592.) To determine whether a continuous nuisance exists, the court must look to whether (1) the offensive activity is currently continuing, which indicates that the nuisance is continuing, (2) if the impact of the condition will vary over time, indicating a continuing nuisance, or (3) if the nuisance can be abated at any time, in a reasonable manner and for reasonable cost, and is feasible by comparison of the benefits and detriments to be gained by abatement. (Id. at p. 594.)

Plaintiffs note that the Starrh court held a finding on 2 of the 3 factors to be sufficient to constitute a continuous trespass.

Plaintiffs argue that the sewage backups were a continuous occurrence and that each backup caused new damage to the property. (OSS Facts 11, Clark Decl. ¶ 2, Ex. A; OSS No. 80, Loche Decl., ¶¶ 8, 28, 36, 39, 40, 65, Ex. 14, Jakubowski Decl., Ex. 46 pg. 2, Ex. 47, Ex. 51, pg. 1.) Plaintiffs argue Burbank could have installed a backflow device and could pay for reasonable repair costs. (OSS, No. 61, Loche Decl., ¶ 61, 79, Ex. 25.) Plaintiffs argue this satisfies Starrh’s requirement that abatement is possible.

Plaintiffs also argue the sewer system is not a permanent structure. "The classic example of a continuing nuisance is an ongoing or repeated disturbance, such as the one before us today, caused by noise, vibration or foul odor." Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869. Plaintiffs argue Burbank has operated the sewer system for 26 years without a backflow incident. (OSS No. 35, Loche Decl., ¶ 6.) Plaintiffs further argue that Burbank has continued to make changes to the sewer system through improvement projects and the addition of new developments. (OSS No. 70, Pranata Decl., Ex. 1 pg. 10, 11, 21, 24-25, 27, 28, 31-35; See Jakubowski Decl., Ex. 52.)

SOL Analysis

Starrh concerned an action brought by cotton growers against an oil company that operated on adjacent land. (Starrh supra, 153 Cal.App.4th 583, at 589.) Plaintiffs in Starrh alleged the subsurface migration of oil field water into their land constituted a trespass. (Id.) The parties in Starrh disagreed as to whether this contamination was a permanent or continuous trespass for purposes of the SOL. (Id. at 596.) The Court in Starrh felt the determination of permanent or continuous nuisance rested on whether defendant would continue to allow contamination to occur. (Id.) The Starrh court distinguished the case of Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087. The Starrh court held that Mangini only addressed the narrow case is which the property owner may pursue a nuisance action without presenting evidence that the injury is capable of reasonably being abated. Starrh ultimately held that the groundwater contamination was permanent because the contamination would continue even if defendant ceased its activity. The Starrh court also found the action was reasonably abatable.

Burbank argues that the sewer system present at Plaintiffs’ home is a permanent structure of the type described in Bookout. In determining the permanent nature of the nuisance, the Court finds the ruling in Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 instructive. “The distinction to be drawn is between encroachments of a permanent nature erected upon one's lands, and a complaint made, not of the location of the offending structures, but of the continuing use of such structures.  The former are permanent, the latter is not.” (Baker supra, 39 Cal.3d 862, at 870.) “Moreover, we should be particularly cautious not to enlarge the category of permanent nuisances beyond those structures or conditions that truly are permanent. Where some means of abatement exists, there is little or no incentive to make remedial efforts once the nuisance is classified as permanent. Such a result is at odds with tort law's philosophy of encouraging innovation and repair to decrease future harm.” (Id. at 872.)

Here, the nuisance complained of is not the physical structure of the sewer pipes under Plaintiffs’ land, but rather the incursion of sewage from them. Plaintiffs argue that these incursions could have been abated at any time by installation of a backup valve. As Baker makes clear, such incursions are continuing nuisances.

Plaintiffs have met at least two of the three Starrh factors. Plaintiffs have shown, through evidence of further incursions, that the incursions were of a continuing nature. Additionally, Plaintiffs have shown possibility of abatement via installation of a backup valve was reasonable. As such, the Court finds the nuisance is continuing and Plaintiffs claims regarding the 2017 incursion are not time barred.

Burbank’s Design Immunity Arguments

Burbank argues it is immune from Plaintiffs’ claim of nuisance under Government Code § 830.6.

Burbank argues there is a causal relationship between the plan or design and the accident. In support of this argument, Burbank points to the facts 11, 12, and 14 of their separate statement. These facts are all sourced from the Plaintiffs’ complaint and refer to Plaintiffs claim that the City’s design/maintenance caused the backflow incidents.

Burbank argues there was discretionary approval of the plan or design prior to construction. Burbank submits the declaration of Chief Assistant Public Works Director Daniel Rynn. Rynn further states that the sewer plans were “…designed, drafted, and checked by qualified engineers within the City of Burbank’s Public Work’s Department and were ultimately approved by City Engineer H.I. Stites in 1931.” (Rynn Decl. ¶ 12.) Rynn further states he believes the plans to be reasonable based on his extensive experience as a civil engineer and his work on public improvement projects. (Id.) 

Plaintiffs’ Design Immunity Arguments

Plaintiffs concede Burbank would normally be entitled to design immunity but argue that changed conditions destroy immunity in this case.

Plaintiffs claim Burbank has lost design immunity because its approval of additional connections to the sewer system constitutes changed conditions. (OSS No. 71, Pranata Decl., Ex. 1 pgs. 10, 11, 21, 24-25, 27, 28, 31-35, See Jakubowski Decl., Ex. 52.)  Plaintiffs also claim defendant was clearly on notice that the sewer system was no longer operating at a level to direct sewage away from the Subject Property. (Jakubowski Decl., Ex. 46 pg. 2, Ex. 47 pg. 1 & 10, Loche Decl., ¶¶ 38, 40, 62, Ex. 26) Plaintiffs argue Burbank also had notice that during storm events, the sewer system was operating at overflow levels. (OSS No. 54, Jakubowski Decl., ¶¶ 5-8, Exs. 44-47 and 51.)

Plaintiffs further argue design immunity is not a complete defense to their claims. Plaintiffs cite to Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007 which held that § 830.6 design immunity is not intended to apply when the damage is caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident. (Hefner supra, 197 Cal.App.3d 1007 at 1017-1018.) Plaintiffs argue that their allegations speak to both flaw in design and negligence in monitoring, repairing, and managing the sewer system. (Complaint ¶¶ 8-44.)

Design Immunity Analysis

Burbank argues Plaintiffs’ allegations of changed conditions do not negate design immunity. Burbank cites to Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, which in turn relies on Dole Citrus v. State (1997) 60 Cal.App.4th 486. Both Mirzada and Dole hold a plaintiff must show evidence of changed conditions at a specific location to defeat design immunity. These cases concerned a freeway median and a roadside railing respectively. Each court held that evidence of changed conditions was not shown at the specific accident location.

The Court finds Mirzada and Dole do not defeat Plaintiffs argument. Burbank argues the permanent structure connecting Plaintiffs property to the sewer system has not changed since 1941. Plaintiffs present evidence that the sewer system has undergone changes in the form of additional connections which increase the stress upon the sewer system. Plaintiffs argue this increases the burden on the entirety of the sewer system because it is interconnected. As such the increased capacity and operation of the sewer system at Plaintiffs’ property could be said to have physically changed. Further, the evidence in Mirzada clearly showed that the median remained within design capacity despite changed conditions. Here, Burbank has only produced evidence that no changes have been made to the design, not that the alleged increased flow is within the design’s capacity.

The Court finds Plaintiffs have presented evidence sufficient to create a triable issue of fact as to design immunity.

Burbank’s Discretionary Immunity Arguments

Burbank argues Government Code §§ 815.2 and 820.2 provides immunity for the discretionary acts of its employees. Burbank argues the challenged acts of design, construction, and maintenance of the city sewer system were all reasonable acts that require the exercise of judgment and choice.

Plaintiffs’ Discretionary Immunity Arguments

Plaintiffs argue that discretionary immunity is only intended to apply to those acts or omissions which involve basic policy decisions. Plaintiffs argue Burbank has offered no evidence of any basic policy decision to operate or maintain the sewer main with a flow level that exceeds the capacity of the pipes.

Discretionary Immunity Analysis

C.C.P. § 820.2 provides that “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

The primary case interpreting whether an act of an employee is one within its discretion is Johnson v. State (1968) 69 Cal.2d 782. The California Supreme Court held that the mere existence of a discretionary choice in the act to be performed does not qualify an act under 820.2, as nearly every act by a public employee involves some amount of discretion. (Id. at 788.) Instead, it was held that immunity should only attached to those decisions which involve “basic policy” choice which constitute an exercise of discretion by a coordinate branch of government. (Id. at 793.)

The Court does not find the maintenance of the sewer system to involve a basic policy decision. Burbank has not evidenced discretionary immunity.

Conclusion

The Court finds Plaintiffs nuisance claim is not barred by SOL. The Court also finds Burbank’s evidence of design and discretionary immunity insufficient. As such, the Court DENIES summary adjudication as to the cause of action for nuisance. 

Trespass (Third COA) - Denied

To set forth a cause of action for trespass, Defendants must allege (1) Defendants’ lawful possession or right to possession of real property; (2) Plaintiffs’ wrongful, intentional, reckless, or negligent act of trespass on the property; (3) Defendants did not give permission for the entry or scope of permission was exceeded; and (4) damage to Defendants caused by the trespass. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

Burbank’s arguments as to the trespass cause of action mirror those of its nuisance arguments. Burbank argues that the trespass claim is barred by the SOL under the theory of permanent trespass. The court in Bookout clarified that the permanent and continuing distinctions apply regardless of whether the cause of action is classified as nuisance or trespass. (Bookout supra 186 Cal.App.4th 1478, at 1489.) Burbank presents no other basis on which summary adjudication must be granted. As previously discussed, Plaintiffs have demonstrated the incursions were of a continuing nature. Therefore, the Court finds Plaintiffs’ trespass claim is not time barred.

Burbank also argues design and discretionary immunity with respect to trespass. As previously discussed, the Court finds Plaintiffs have presented evidence sufficient to create a triable issue of fact as to design and discretionary immunity.

As such, the Court DENIES summary adjudication as to the cause of action for trespass. 

Negligence (Fourth COA) - Denied 

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Burbank’s SOL Arguments

Burbank argues that Plaintiffs’ negligence cause of action is outside of the SOL. Burbank cites to Fox v. Ethicon EndoSurgery, Inc. (2005) 35 Cal.4th 797, 806-807 which held, “Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements.” Burbank argues Plaintiffs’ claims for negligence and dangerous condition accrued as of February 2017.

Burbank further argues that equitable estoppel and equitable tolling defenses are not available to Plaintiffs. Burbank argues there is no evidence to suggest they induced Plaintiffs not to file suit in discussing the administrative claim. (SS No. 20, Clark Decl. ¶ 7, Ex. F and RJN Item No. 1, Clark Decl. ¶ 8, Ex. G and RJN, Item No. 2, Clark Decl. ¶ 9, Ex. H and RJN, Item No. 4, Clark Decl. ¶ 3, Ex., Clark Decl. ¶ 6, Ex. F.) Burbank argues that Plaintiffs in fact served a previous lawsuit regarding sewage backup on the City in 2019 (SS. No. 15, Clark Decl. ¶ 7, Ex. F and Request for Judicial Notice (“RJN”), Item No. 1.). 

Burbank further argues there is no evidence the SOL was tolled during the short pendency of the 2019 suit (SS No. 19, Clark Decl. ¶ 10, Ex. I and RJN, Item No. 3.) A “party’s voluntary dismissal without prejudice does not come equipped by law with an automatic tolling or waiver of all relevant limitations periods; instead, such a dismissal includes the very real risk that an applicable statute of limitations will run before the party is in a position to renew the dismissed cause of action.” (Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 445.) This principle equally applies in cases involving the Government Claims Act and statutory deadlines to file lawsuits. (Martell v. Antelope Valley Hosp. Med Ctr. (1998) 67 Cal.App.4th 978, 984.)

Plaintiffs’ SOL Arguments

Plaintiffs argue their claim did not accrue in February 2017 because the last element of their claim had yet to materialize. Plaintiffs cite to Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, stating SOL runs from the occurrence of the last element essential to the cause of action. Plaintiffs argue that each backflow incident created a new violation of Burbank’s duty to maintain the sewer system in a way that did not pose a public health hazard. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1199.)

Plaintiffs also argue the defense of equitable tolling. Plaintiffs argue that their pursuit of the administrative claim serves to toll the SOL. Plaintiffs argue notice was provided to Burbank as of the February 17, 2017 claim filing. Plaintiffs argue they were engaged in good faith efforts to resolve the claims via administrative efforts until January 18, 2019.

SOL Analysis

Plaintiffs’ argument as to the last element doctrine is unclear. Plaintiffs’ argument indicates that each backflow incursion contains all the elements of negligence and wrongful condition. Plaintiffs quote Aryeh supra 55 Cal.4th 1185, “Because each new breach of such an obligation provides all the elements of a claim—wrongdoing, harm, and causation [Citation]—each may be treated as an independently actionable wrong with its own time limit for recovery.” By Plaintiffs’ logic, the February 17, 2017 backflow incident would fall outside of the three-year statute of limitations. If Plaintiffs wish to cede their claim of negligence as to the 2017 incident, the Court finds no reason to stop them. Plaintiffs’ claims for the additional two incursions would remain unbarred. The Court finds the February 17, 2017 backflow incident is beyond the SOL.

However, the Court also finds the defense of equitable tolling is available to Plaintiffs.

The Court notes that equitable tolling and equitable estoppel are distinct doctrines. (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 745.) Equitable tolling concerns the point at which the SOL period runs and circumstances in which the SOL may be suspended. (Id.) Equitable estoppel applies after the SOL has run and the circumstances in which a claim may proceed regardless. (Id.) Here, Plaintiffs opposition does not argue equitable estoppel, only equitable tolling.  Plaintiffs argue that all damages solely attributable to the February 17, 2017 backflow are covered by the doctrine of equitable tolling. As such, the Court will address only the equitable tolling arguments.

Equitable tolling applies when three “elements” are present: (1) timely notice, (2) lack of prejudice, to the defendant, and (3) reasonable and good faith conduct on the part of the plaintiff. (Saint Francis Memorial Hospital v. State Department of Public Health (2020) 9 Cal.5th 710, 724.)

Burbank argues in reply that Plaintiffs were required to plead equitable tolling in their Complaint, citing to Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15. In Union Carbide, defendants demurred to plaintiff’s cause of action for fraudulent concealment. (Union Carbide supra, 36 Cal.3d 15, at 25.) The California Supreme Court held that where SOL concerns are present on the face of the complaint, plaintiffs must plead their fraudulent concealment cause of action as excuse for late filing. (Id.) The Court finds Union Carbide inapposite. The Court does not find the pleading requirements for fraudulent concealment claims to apply to the principle of equitable tolling. Burbank provides no thread connecting Union Carbide and equitable tolling.

The Court finds Saint Francis to be instructive. In Saint Francis, the California Supreme Court held that equitable tolling applies where a plaintiff pursues one of several available legal remedies, causing plaintiff to miss the SOL for other remedies it later pursues. (Saint Francis supra, 9 Cal.5th 710, 725.) Here, Plaintiffs have shown that they engaged in a good faith effort to resolve the February 17, 2017 backflow incident via administrative remedy.

The Court finds Plaintiffs have shown the three elements of equitable tolling. Burbank was on notice when Plaintiff filed its administrative claim on February 17, 2017. The Court finds no prejudice to Burbank in application of equitable tolling, nor does Burbank argue prejudice. Plaintiffs argue they were engaged in good faith negotiations with Burbank until January 18, 2019.

Lastly, Burbank argues Plaintiffs filing a lawsuit in February of 2019 bars the application of equitable tolling. The Court disagrees. Plaintiffs argue that the tolling period persists up until January 18, 2019 at which time they were still engaged in good faith negotiations on their administrative claim. The filing and subsequent voluntary dismissal without prejudice of the 2019 suit has no bearing on the period in which the SOL for the February 17, 2017 incident tolled.

The Court finds Plaintiffs can assert the defense of equitable tolling as to the February 17, 2017 backflow incident.

Burbank’s Statutory Basis Arguments

Burbank further argues that negligence is a common law tort claim which cannot be sustained against a public entity without statutory liability. Burbank points to Government Code §815 which states, “[E]xcept as otherwise provided by statute, public entities are not liable for tortious injuries inflicted by themselves, their employees or any other person.” Burbank also cites to Gibson vs. City of Pasadena (1978) 83 Cal.App.3d 651 to contend that Government Code § 815 abrogates all common law government tort liability. Burbank argues the Complaint contains no allegations of statutory violation for these causes of action. Burbank argues Plaintiffs provided statutes for all their other claims.

Plaintiffs’ Statutory Basis Arguments

Plaintiffs argue they have statutory grounds to pursue these claims. Plaintiff cites to Government Code § 815.6, which sets forth the 'mandatory legal duty' exception to government immunity. Government Code § 815.6 states "[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

To establish a duty owed by the public entity a party must show (1) the existence of an enactment that imposes a mandatory, not discretionary, duty on the public entity; and (2) that the enactment is intended to protect against the particular kind of injury the plaintiff suffered." (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1089.)

To this end, Plaintiffs cite Health & Safety Code, § 5411 which states “[n]o person shall discharge sewage or other waste, or the effluent of treated sewage or other waste, in any manner which will result in contamination, pollution or a nuisance.” Plaintiffs argue that under Health & Safety Code § 5410 “[p]erson” is defined as including “any city, county, district, the state or any department or agency thereof.”

Statutory Basis Analysis

The Court finds Plaintiffs’ argument as to statutory liability persuasive, but not conclusive as to the issue. The Health and Safety Code §§ 5410 & 5411 combine to form a statutory duty binding the city of Burbank to not discharge sewage in a way that results in contamination, pollution or nuisance. The use of shall in § 5411 indicates that this duty is not discretionary but mandatory. (Health & Safety Code §16.)

Burbank argues Plaintiffs did not reference these statutes in their Complaint, Discovery Responses, or Moving Papers. Burbank does not point to any authority that Plaintiffs’ statutory claims must be pled in the Complaint or Discovery Responses to survive a motion for summary adjudication. The Court finds the moving papers do reference statutory violations. As such, Plaintiffs have shown there to be a statutory basis for their claims.

Design and Discretionary Immunity

Burbank also argues design and discretionary immunity with respect to negligence. As previously discussed, the Court finds Plaintiffs have presented evidence sufficient to create a triable issue of fact as to design and discretionary immunity.

Conclusion

The Court finds Plaintiffs’ negligence claim is not time barred by virtue of equitable tolling. The Court also finds Plaintiffs have asserted a statutory basis for their negligence claim. Lastly, the Court finds Burbank’s evidence of design and discretionary immunity insufficient. As such, the Court DENIES summary adjudication as to the cause of action for negligence. 

Dangerous Condition (Fifth COA) - Denied

The elements for a Dangerous Condition cause of action are: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff. (Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921.)

Burbank’s arguments as to the dangerous condition cause of action mirror those of its negligence arguments. Burbank presents no other basis on which summary adjudication must be granted. As previously discussed, Plaintiffs have demonstrated the availability of equitable tolling. Therefore, the Court finds Plaintiffs’ dangerous condition claim is not time barred. Plaintiffs have also demonstrated a statutory basis for their claim. Therefore, the Court finds the claim is not barred as a matter of law.

Burbank also argues design and discretionary immunity with respect to dangerous condition. As previously discussed, the Court finds Plaintiffs have presented evidence sufficient to create a triable issue of fact as to design and discretionary immunity.

As such, the Court DENIES summary adjudication as to the cause of action for dangerous condition.

III.            CONCLUSION

The Court DENIES the motion for summary adjudication as to the cause of action for inverse condemnation.

The Court DENIES the motion for summary adjudication as to the cause of action for nuisance.

The Court DENIES the motion for summary adjudication as to the cause of action for trespass.

The Court DENIES the motion for summary adjudication as to the cause of action for negligence.

The Court DENIES the motion for summary adjudication as to the cause of action for dangerous condition.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The City of Burbank’s Motion for Summary Adjudication came on regularly for hearing on March 24, 2023 and was continued on the Court’s own motion to March 30, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SUMMARY ADJUDICATION AS TO EACH CAUSE OF ACTION IS DENIED.

PLAINTIFF TO GIVE NOTICE, UNLESS ALL PARTIES WAIVE NOTICE.

IT IS SO ORDERED. 

DATE: March 30, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles