Judge: H. Jay Ford, III, Case: 24SMCV02350, Date: 2025-03-18 Tentative Ruling

Case Number: 24SMCV02350    Hearing Date: March 18, 2025    Dept: O

 Case Name:  Howell v. State of California Department of Transportation

SUBJECT:                 DEMURRER TO FAC WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant State of California Department of Transportation

RESP. PARTY:         Plaintiff William P. Howell

TENTATIVE RULING

            Defendant State of California Department of Transportation Demurrer to Plaintiff William P. Howell’s First Amended Complaint is OVERRULED. Plaintiff pleads all the necessary facts to allege the causes of action within the FAC.

REASONING

As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

I.                   Demurrer to 2^nd cause of action for Negligence (Gov. Code § 835.) —OVERRULED

Defendant State of California Department of Transportation (“Caltrans”) Demurs to the 2^nd cause of action for Negligence pursuant to Gov. Code, § 835 within Plaintiff William P. Howell’s (“Howell) FAC.

In order to plead a Negligence claim under Gov. Code, § 835 a Plaintiff must plead a dangerous condition exists on a property meaning “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)

Gov. Code § 835 supplies the other necessary allegations:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property [1] if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

[4] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov. Code, § 835, emphasis added)

Caltrans argues that the allegations within the negligence cause of action are not plead with particularity and thus fail. The Court does not agree. Negligence does not have a heightened factual pleading requirement as a fraud claim does. Additionally, Howell alleges specifics regarding Caltrans alleged faulty crib wall construction including the following:

1.     “[t]he design and construction of the Crib Wall did not meet the Building Code requirements of the County of Los Angeles Geotechnical and Materials Engineering Division (“GMED”), nor of the County of Los Angeles Department of Building and Safety, nor of the Los Angeles County Fire Department” (FAC ¶ 17);

2.     “Caltrans was aware, or should have been aware, of this history of failures at the time it elected to construct the crib wall instead of an alternative form of support” (FAC ¶ 18); and that

3.     “because the crib wall was constructed over a 72-inch culvert pipe, special engineering would have been required to protect both the pipe … and the crib wall from erosion of the foundation …” but “Caltrans failed to account or plan for those considerations or perform the necessary engineering” (FAC ¶ 19).

Caltrans argues Howell does not plead causation and damages. Howell alleges the crib wall is on Howell’s property, and thus it follows that damage to the crib wall is damage to Howell’s property, plus, part of the crib wall is outside of the Catrans right of way. (See FAC, ¶¶ 15–16.) Howell alleges, “Gold Coast [engineering geologic and geotechnical consultant] examined the condition of the Crib Wall on the Howell Property and concluded that the wall was not built to code and is now showing extreme signs of degradation. That includes visible evidence of bowing, bulging, and cracking, in addition to a significant tree growing out of it along with other hazardous vegetation emerging from it.” (FAC, ¶ 22.) Further, the FAC alleges additional damages in the form of funds expended to investigate the stability of the crib wall, and diminished value of the Howell property because of required disclosures regarding the wall. (See FAC, ¶ 29.)

Additionally, the allegations of the crib wall degradation constitute a dangerous condition under Gov. Code, § 830. (See Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 131 [“A dangerous condition exists when public property ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,’ or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users”].)

Thus, Howell alleges all the necessary elements of a Negligence claim pursuant to Gov. Code, § 835. Caltrans Demurrer to the 2^nd cause of action is OVERRULED.

II.             Demurrer to the 3^rd cause of action for Private Nuisance and 4^th cause of action for Public Nuisance—OVERRULED

The elements of a private nuisance claim are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, 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.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176. reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).)

A nuisance includes: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

“Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” (Civ. Code, § 3482.) “[A]lthough an activity authorized by statute cannot be a nuisance, the Manner in which the activity is performed may constitute a nuisance.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 129.)

“The department shall have full possession and control of all state highways and all property and rights in property acquired for state highway purposes. The department is authorized and directed to lay out and construct all state highways between the termini designated by law and on the locations and determined by the commission.” (Sts. & Hy. Code § 90.) The term “highway” includes bridges, culverts, curbs, drains, and all works incidental to highway construction, improvement, and maintenance. (Sts. & Hy. Code § 23.)

“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.” (Civ. Code, § 3480.) Plaintiff must allege facts to show that “the operation of defendant's business constitutes a public nuisance.” (Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 724.) A nuisance is defined as:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

(Civ. Code, § 3479.)

Additionally, If the plaintiff is a private person, as the case here, they must also allege that the public nuisance caused them special injury different in kind from that suffered by the general public. (See “[a] private person may maintain an action for a public nuisance, if it is specially injurious to himself [or herself], but not otherwise.” (Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 324; see also Civ. Code, § 3493 [“A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise”].)

“The public nuisance doctrine is aimed at the protection and redress of community interests.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.)

Caltrans argues that both nuisance claims are barred by Civ. Code § 3479, but again this argument fails at this stage. The Court must accept all allegation as true in the pleading stage, and Howell alleges that Caltrans has obstructed Howell’s use and enjoyment of his property by choosing to construct a crib wall to save money, failing to properly engineer and design the crib wall, and building it in a defective manner. (See FAC ¶¶ 17–21.) Although Caltrans does have a general authority to build highways under Sts. & Hy. Code § 90, the statute does not give Caltrans the authority to build said highways in a negligent or defective fashion which could create a nuisance. (See Venuto, supra, 22 Cal.App.3d at p. 129.) At this stage the Court cannot say whether or not the crib wall was defectively constructed, and thus Caltrans argument fails that Civ. Code § 3479 bars both nuisance claims as a matter of law.

Caltrans argues that Howell’s nuisance claims are not ripe, but this argument is not persuasive. Howell does allege the possibility of future damages, but Howell also alleges damages that have occurred due to the alleged negligent construction of the crib wall. (See, e.g. FAC ¶ 22 [“the wall was not built to code and is now showing extreme signs of degradation. That includes visible evidence of bowing, bulging, and cracking, in addition to a significant tree growing out of it along with other hazardous vegetation emerging from it”]; FAC ¶ 29 [“Caltrans’ conduct with respect to the Crib Wall has caused, and will continue to cause, severe damages to Howell. Howell has already expended significant funds to investigate the problems and how to fix them, and the cost to repair and remediate the problems will be even more significant”].) Thus, Howell has alleged present damages, and the nuisance claims are ripe.

            Caltrans argues the nuisance claims are identical to the negligence claim and thus is a proper basis for a demurrer, however, this argument fails as well. (See, e.g., Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal. App. 4th 858, 890) [that a cause of action mirrors another and is duplicative is “not a ground on which a demurrer may be sustained”; it is a “waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness”]; see also Civ. Proc. Code § 430.10; Civ. Proc. Code § 3537.) Pleading of alternative theories of recovery is permitted in the early stages of litigation. (See Gebert v. Yank (1985)  172 Cal. App. 3d 544, 554 [“Pleading of alternative theories of relief on the same set of facts is, of course, quite proper where there is a legally recognized basis for recovery in both contract and tort”]; Mendoza v. Continental Sales Co. (2006) 140 Cal. App. 4th 1395, 1402 [“When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations”].)

III.           Demurrer to all causes of action based on the causes of action being outside the scope of the government claim—OVERRULED

Public entities, such as the State of California “subject to a procedural condition precedent; that is to say, the timely filing of a written claim with the proper officer or body is an element of a valid cause of action against a public entity.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374; see CA GOVT §§ 900.4, 905.) “The failure to timely present a proper claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. (Gong, supra, 226 Cal.App.4th at p. 374.) “If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer.” (Id.) If a plaintiff alleges compliance with the claims presentation requirement, but the public records do not reflect compliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Id. at p. 376.) Failure to comply with the Government Claims Act prior to bringing suit bars the claim against the public entity (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 247.)

“The claim, however, need not specify each particular act or omission later proven to have caused the injury. A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an “entirely different set of facts. Only where there has been a “complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,” have courts generally found the complaint barred. Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Id., at p. 447, citations omitted.)

“A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: (a) The name and post office address of the claimant. (b) The post office address to which the person presenting the claim desires notices to be sent. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.” (CA GOVT., § 910.)

Caltrans argues that although Howell has indeed filed a government claim, that government claim is legally insufficient since it differs from the FAC. However, the Court does not agree with this argument. First, Caltrans does not dispute that Howell filed a government claim prior to filing the Complaint here. Howell filed a notice of errata on 3-10-25 attaching the exhibits to the e-filed FAC that Defendant received upon FAC service. Second, the government claim sufficiently puts Caltrans on notice of Howell’s claims. (See FAC, ¶ 31, Ex. 3.). Caltrans does not dispute that the attached government claim to the FAC is not in fact the government claim that Howell filed, and the Court must treat all allegations as true at this stage. The government claim states the incident date of 3-13-23 when Howell allegedly learned of the crib wall issue, that ““[t]he design, construction and maintenance of the crib wall were defective, defects that are now visible,” “[t]he state designed, constructed and maintained the crib wall and is thus responsible for the damage associated with that work,” and that Caltrans was the responsible agency.  (See 3-10-25 Notice of Errata Re: the FAC, Ex. 3.).

The FAC is based on the same set of facts as the government claim—that Caltrans allegedly build a defective crib wall and did not properly maintain the wall, causing damage to Howell’s real property. The FAC adds more specific facts regarding the alleged crib wall issue, but the FAC is based on the same fundamental set of facts as the government claim and thus the claim reflects the facts plead in the FAC. Therefore, Caltrans was effectively put on notice by Howells government claim.

Caltrans’ Demurrer to the FAC due to lack of a proper government claim filing is OVERRULED.

IV.           Demurrer to 1^st cause of action for Inverse Condemnation—OVERRULED

The authority for prosecution of an inverse condemnation proceeding derives from article I, section 19 of the California Constitution (formerly art. I., § 14) which requires that just compensation be paid when private property is ‘taken or damaged for public use.’” (Ullery v. Cnty. 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 deliberately designed and constructed, whether or not the injury was foreseeable and in the absence of fault by the public entity.” (Ibid.) This is true where the plaintiff has suffered damages, “however minimal.” (City of Los Angeles v. Ricards (1973) 10 Cal. 3d 385, 391.) “When property is damaged, or a physical invasion has taken place, an inverse condemnation action may be brought immediately because an irrevocable taking has already occurred.” Jefferson St. Ventures, LLC v. City of Indio (2015) 236 Cal. App. 4th 1175, 1193.)

Essentially, the elements of an inverse condemnation cause of action are: (1) a public entity, (2) taking or damaging of property, and (3) for a public use. (See Simple Avo Paradise Ranch, LLC v. Southern California Edison Company (2024) 102 Cal.App.5th 281, 299, review denied (Aug. 28, 2024); see also City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, 221 [“In other words, in inverse condemnation, the government is obligated to pay for property taken or damaged for “ ‘public use’ ” or damaged in the construction of “public improvements.”].)

Howell alleges there is significant damage to the Caltrans constructed crib wall, and, by extension, to Howell’s property both because the crib wall is situated on the Howell property and because it has diminished Howell’s property values. (See FAC, ¶¶ 22–23, 29.) Howell alleges the damage to his property was caused by the public entity Caltrans, and its construction of a crib wall meant for public use. (FAC, ¶¶ 14–29.) Howell alleges damages to his property by alleging that the crib wall deterioration on his property has caused a reduction in property value, plus Howell has spent money trying to rectify the crib wall issues privately also causing damage (FAC, ¶ 29.) Thus, Howell has properly alleged a cause of action for inverse condemnation and Caltrans arguments that Howell has not properly stated a claim fail.