Judge: H. Jay Ford, III, Case: 23SMCV00352, Date: 2023-08-08 Tentative Ruling

Case Number: 23SMCV00352    Hearing Date: August 8, 2023    Dept: O

  Case Name:  City of Calabasas v. EMS Solutions, LLC, et al.

SUBJECT:                 DEMURRER TO COMPLAINT

MOVING PARTY:   Defendants EMS Solutions, LLC and Hussain Bhamani

RESP. PARTY:         Plaintiff City of Calabasas

TENTATIVE RULING

            Defendants EMS Solutions, LLC and Hussain Bhamani’s Demurrer to the Complaint is OVERRULED.  Defendants to answer in 20 days.

I.  Affirmative Defenses—OVERRULE

            Defendant demurs to the complaint based on several defenses.  Defendant asserts the 1^st cause for violation of state housing law violations and the 3^rd cause of action for municipal code violations are barred by statute of limitations and laches.  Defendant asserts the entire action qualifies as a taking.

            A “demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred.”  CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.  “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear clearly and affirmatively from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment.” Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.

Defendants’ statute of limitations defense does not clearly and affirmatively bar Plaintiff’s claims based on the face of the complaint and judicially noticeable evidence.  Plaintiff has alleged a continuing nuisance and violation of various Calabasas Municipal Ordinances and Health & Safety Code Sections. 

Where the nuisance involves a use that may be discontinued at any time, it is characterized as a continuing nuisance.  See Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979.  The crucial distinction between a permanent and continuing nuisance is whether the nuisance is abatable—i.e., capable of being remedied at reasonable cost and by reasonable means. Id.; Mangini, supra, 12 Cal.4th at 1093; McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 84.  The status of the nuisance is generally a question of fact.  Shamsian, supra, 107 Cal.App.4th at 980.

In the case of continuing nuisance, the date the original nuisance was created is not determinative for purposes of statute of limitations.  “Every repetition of a continuing nuisance is a separate wrong for which the person injured may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred.  See e.g., Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107-108 (reversing the trial court’s sustaining a demurrer).  Based on the complaint allegations, the nuisance still exists today and has not been remediated. 

For this reason, the statute of limitations applicable to the conditions complained of are not clearly and affirmatively time barred. At best, there is a slight chance that the claims may be time barred.  Such a possibility is insufficient to sustain demurrer based on statute of limitations. 

The same reasoning applies to laches.  “To establish a successful affirmative defense based on laches, a defendant must show that the plaintiff unreasonably delayed in filing suit, together with either the plaintiff's acquiescence in the conduct about which it complains or prejudice to the defendant because of the delay.” City of Hesperia v. Lake Arrowhead Community Services District (July 12, 2023) 2023 WL 4485099, at *12.  Given that the nuisance still exists today, is a continuing nuisance and has been the subject of ongoing attempts to resolve the issues without litigation, the Court cannot say as an issue of law that any delay was unreasonable. 

In addition, it is unclear whether laches can even apply to an action by a government entity seeking to abate a dangerous public nuisance.  “It is clear…that neither the doctrine of estoppel nor any other equitable principle may be invoked against a governmental body where it would operate to defeat the effective operation of a policy adopted to protect the public.”  County of San Diego v. California Water & Tel. Co. (1947) 30 Cal.2d 817, 826.  There is a clear public policy against maintaining nuisances that endanger the public, as embodied by Civil Code section 3479. 

With regard to the claim that Calabasas has committed an unconstitutional taking, there is nothing on the face of the complaint establishing that Plaintiff committed a taking as an issue of law.  There are no allegations of a physical interference or invasion by the government and any claim that there was a regulatory taking requires examination of extrinsic evidence.  Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 124. 

II.  1^st cause of action for violation of Health & Safety Code and 3^rd cause of action for violation of Calabasas Municipal Code

            Plaintiff sufficiently alleges a claim for violation of Health & Safety Code §17920.3 (substandard building).  Plaintiff alleges in detail the ways in which the properties were substandard. See Complaint, ¶23.  Plaintiff alleges Defendants’ predecessors in interest were notified of the violations and refused to comply, despite being informed of their right to choose between demolition and repair.  Id. at ¶12.  Defendants acquired the property at foreclosure sale, assuming liability for the unlawful conditions at the property.  Id. at ¶14.  City alleges that Defendants have refused to bring the property into compliance with the applicable code sections and ordinances, despite the City’s inspection after Defendants’ acquisition and service of notices of violation, etc.  Id. at ¶16.  These allegations state a claim for appointment of a receiver and initiation of legal action pursuant to Health & Safety Code §§17980 and 17980.7 based on Defendants’ maintenance of substandard properties that endanger the public.

            Defendants’ arguments that the notices provided were insufficient or that Plaintiff has denied their requests for permits to remedy the violations are outside the scope of this demurrer.  Nothing on the face of the complaint supports Defendants’ claims that City has not provided proper notice or reviewed their applications for permits in good faith. 

II.  2^nd cause of action for maintenance of a public nuisance

            “Anything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property” is a nuisance.  See CC §3479; Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358–359. A “public nuisance” is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”  See CC §3480; id.

            Plaintiff’s allegations regarding the substandard conditions of the properties sufficiently state a claim for public nuisance.  See Complaint, ¶¶16-23.  Defendants offer no argument as to how the 2^nd cause of action is deficient.  Defendants merely recite applicable case law and conclude without explanation that no claim for public nuisance is stated. 

III.  4^th cause of action for declaratory relief and injunctive relief

            Defendant argues declaratory relief and injunctive relief are not standalone causes of action but equitable remedies.  While that is arguably true of injunctive relief, declaratory relief is a well-recognized standalone cause of action.  See CCP §1060; Childhelp, Inc. v. City of Los Angeles (2023) 91 Cal.App.5^th 224, 235 (“To allege facts sufficient to state a cause of action for declaratory relief, the plaintiff must allege two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.”)  Plaintiff also alleges a justiciable controversy between Plaintiff and Defendants regarding their respective rights and obligations as to the subject properties, including appointment of a receiver over the property.  See Complaint, ¶¶58-62.