Judge: Maurice A. Leiter, Case: 20STCP03193, Date: 2022-10-13 Tentative Ruling

Case Number: 20STCP03193    Hearing Date: October 13, 2022    Dept: 54

Hearing Date: October 13, 2022

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Cross-Complaint

Moving Party: Cross-Defendant City of Redondo Beach

Responding Party: Cross-Complainants 9300 Wilshire, LLC, et al.

T/R:     CROSS-DEFENDANT’S DEMURRER TO THE THIRD CAUSE OF ACTION IS SUSTAINED WITH LEAVE TO AMEND.

CROSS-DEFENDANT’S DEMURRER TO THE REMAINING CAUSES OF ACTION IS OVERRULED.

CROSS-COMPLAINANTS TO FILE AND SERVE A SECOND AMENDED CROSS-COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. CROSS-DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

CROSS-DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            This action began as a petition for writ of mandate filed by the cities of Redondo Beach and Hermosa Beach against the California State Water Resources Control Board. The Water Board adopted an “OTC” Policy, “which requires that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impacts.” The deadline for compliance with the OTC Policy for offending power plants was December 31, 2020. The Water Board extended this deadline to December 31, 2023. The cities alleged this extension violated CEQA. The CEQA issue was resolved by another court.

            On April 15, 2022, Cross-Complainants 9300 Wilshire, LLC, et al. filed a first amended cross-complaint against Cross-Defendant City of Redondo Beach, asserting causes of action for inverse condemnation, and equal protection and due process violations. Cross-Complainants own land and an offending power plant. Cross-Complainants allege that the OTC Policy and the City’s plan to turn the land into a park is a taking, requiring the City pay Cross-Complainants.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Standing, Ripeness, and Statute of Limitations

            The City demurs to the FACC on the grounds that Cross-Complainants do not have standing, the claims are barred by the statute of limitations, and the claims are not ripe. These arguments are based on a strained reading of the cross-complaint. For example, the City makes an illogical argument that the allegation that Cross-Complainants are the owners of the subject property is insufficient to establish standing. Similarly, the City asserts that the claims are both barred by the statute of limitations (filed too late) and unripe (filed too early). The City has not shown that the demurrer should be sustained on these bases.

B. First and Second Causes of Action for Inverse Condemnation

Regulatory inverse condemnation occurs when (1) the government causes the owner to “suffer permanent physical invasion of property”; or (2) regulations deprive the owner of “all economically beneficial use” of the property.

The City asserts that Cross-Complainants have failed to allege that the City caused Cross-Complainants to suffer permanent physical invasion or deprived Cross-Complainants of all economically beneficial use of the property. Cross-Complainants allege that the required closure of the power plant and conversion to public space will deprive Cross-Complainants of all economically beneficial use. (FACC ¶ 53.) This is sufficient to allege regulatory taking.

Cross-Defendant’s demurrer to the first cause of action is OVERRULED.

C. Third Cause of Action for Denial of Equal Protection

To establish a claim for denial of equal protection, the plaintiff must allege that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Kimco Staffing Servs., Inc. v. State (2015) 236 Cal.App.4th 875, 884-85.) 

The City asserts that Cross-Complainants have failed to allege the state has adopted a classification that affects two or more similarly-situated groups in an unequal manner. Cross-Complainants contend that the similarly situated group being treated differently is “all other parcels within the City.” This is so overbroad that it is meaningless. This cause of action fails.

The demurrer to the third cause of action is SUSTAINED.

D. Fourth Cause of Action for Denial of Due Process

“Substantive due process protects against arbitrary government action.” (Las Lomas Land Co., LLC, supra, 177 Cal.App.4th at 855.) “A substantive due process violation requires more than ‘ordinary government error’ . . . [it] requires some form of outrageous or egregious conduct constituting ‘a true abuse of power.’” (Id. at 855-56.) “[S]ubstantive due process prevents ‘governmental power from being used for purposes of oppression’ . . . .” (Id. at 856.)  

The City argues that Cross-Complainants will be unable to prove that the City’s actions are arbitrary. In opposition, Cross-Complainants emphasize that they have alleged that the City’s actions are arbitrary. This is not suitable for determination on demurrer. Cross-Complainants have alleged a due process claim.

The demurrer to the fourth cause of action is OVERRULED.

E. Fifth Cause of Action for Declaratory Relief

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) As stated, Cross-Complainants have alleged an actual controversy involving justiciable questions relating to the party’s rights or obligations.

The demurrer to the fifth cause of action is OVERRULED.