Judge Lee W. Tsao, Case Number: 20NWCV00499, Date: 2023-10-04 Tentative Ruling

Judge: Lee W. Tsao, Case: 20NWCV00499, Date: 2023-10-04 Tentative Ruling

Case Number: 20NWCV00499 Hearing Date: October 18, 2023 Dept: C

south gate investment v. city of south gate

CASE NO.: 20NWCV00499

HEARING: 10/18/23 @ 9:30 AM

SGIG’s Motion for Reconsideration is DENIED.

City of South Gate to give NOTICE.

Plaintiff/Cross-Defendant South Gate Investment Group, Inc. (SGIG) moves for reconsideration of this Court’s July 13, 2023 ruling granting Defendant/Cross-Complainant City of Couth Gate (City)’s Motion for Summary Judgment.

Background

This action for Quiet Title was filed by SGIG against the City. SGIG’s predecessor, California Truck Sales, purchased the property on September 26, 1995. In 1997, the City Supervisor informed California Truck Sales that it would be required to install a wrought-iron fence and poles along its property line. Plaintiff has paid taxes associated with this boundary and relied on the City’s insistence that where the fence was installed was the proper boundary line. In October 2017, the City claimed to have done a survey as to its public rights-of-way. Two years later, in August 2020, the City informed SGIG of its intent to widen the existing sidewalk running along the border. The City informed SGIG that it would demolish the fence and poles in accordance with the correct boundary line.

The City filed a Cross-Complaint for public nuisance, quiet title, interference with easement, ejectment, and declaratory relief against SGIG and AJG Realty.

Legal Standard

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(a).)

Discussion

SGIG argues that this Court did not consider its argument under Civil Code § 3482 that the Improvements were expressly authorized by the City’s municipal codes and therefore cannot create a nuisance. However, in Opposition, SGIG failed to set forth any specific statutory authorization for installing the Improvements in the City’s right of way. “ ‘A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.’ [Citation.]” (Hassell v. San Francisco (1938) 11 Cal.2d 168, 171.) Here, Chapter 5.32 makes SGIG responsible for the improvements along the public right of way, however, it does not allow for improvements to be placed in the right of way. Thus, Civil Code § 3482 does not preclude a finding that the Improvements constitute a nuisance.

SGIG argues that its argument of unclean hands was not considered, however, this argument fails for the same reasons as its other equitable affirmative defenses of laches and equitable estoppel.

Finally, SGIG argues that the Court failed to consider the deposition testimony provided by Mr. Cervantes regarding the site plan/survey map and evidence contrary to the City’s contention that it was widening the sidewalk. The Court considered this evidence as it was included in the Opposition, thus, it is not a new fact under CCP § 1008.

Sanctions

Plaintiff seeks sanctions for improper filing of a motion under CCP § 128.7, however, the Court determines that such sanction is inappropriate because there was reasonable circumstances to request reconsideration given the Court’s lack of direct ruling on Civil Code § 3482.

Accordingly, SGIG’s Motion for Reconsideration is DENIED. The City’s request for sanctions is DENIED.