Judge: Peter A. Hernandez, Case: 22PSCV00407, Date: 2022-10-17 Tentative Ruling

Case Number: 22PSCV00407    Hearing Date: October 17, 2022    Dept: O

Defendant City of Pomona’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested and will require an offer of proof if so.

Background[1]  

Plaintiff William R. Lenney, Jr. (“Plaintiff”) alleges as follows:

Plaintiff was forced to comply with an M1 change of zoning for the property located at 971 West Second Street in Pomona (“subject property”) in 2010. The new homeowner, however, was allowed to place a single-family residence modular structure on a raised foundation without proper zoning compliance.

On April 25, 2022, Plaintiff filed a complaint against City and Does 1-100.

A Case Management Conference is set for October 17, 2022.

Legal Standard

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

City demurs to Plaintiff’s complaint, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

Request for Judicial Notice

The court rules on City’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., granted deed recorded March 6, 2017) and Denied as to Exhibit B (i.e., property profile from First American).

Merits

City demurs on the basis that Plaintiff lacks standing. “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.) Code of Civil Procedure § 367 provides that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”

In this case, the dispute involves a property located at 971 West Second Street in Pomona (“Property”). Judicially noticeable records, however, reflect that on March 6, 2017, a grant deed was recorded wherein Plaintiff granted the Property to Irvin Olivares. (RJN, Exh. A.)

Plaintiff, then, does not have a current interest in the Property. Plaintiff acknowledges as much by his statements that “CAUSE OF ACTION FRAUD DUE TO A DUEL ZONING COMPLIANCE STANDARD IN WHICH PLAINTIFF WAS FORCED TO COMPLY WITH M1 CHANGE OF ZONING. . . WHILE THE NEW HOMEOWNER WAS ALLOWED TO PLACE A SINGLE FAMILY RESIDENCE MODULAR STRUCTURE ON A RAISED FOUNDATION WITHOUT PROPER ZONING COMPLIANCE (FRAUD DUAL STANDARD OF ZONING COMPLIANCE)” (Complaint, ¶ 15 [emphasis added]) and that “[w]hen I realized that the city had allowed a modular house on a raised Foundation with no due process variance Etc this was a blatant disregard for the prior owners legal rights in property and prompted by claim . . .” (Id., “Response to City of Pomona Third party administrator” [emphasis added].) City’s demurrer is sustained on this basis.

City also demurs on the basis that Plaintiff’s complaint is time-barred. Plaintiff’s complaint asserts only a single cause of action for fraud. With that said, Plaintiff has attached a letter dated March 15, 2021 from attorney Kevin Abbott which references causes of action for abuse of process, intentional or negligent infliction of emotional distress, intentional interference with prospective economic relations, inverse condemnation, conspiracy and nuisance. (As an aside, City’s uncertainty argument is well-taken, inasmuch as it is unclear what causes of action are being asserted, and the demurrer is sustained on this basis).

The statute of limitations for the above causes of action are as follows: fraud (3 years—Code of Civil Procedure § 338, subdivision (d); abuse of process (2 years— Code of Civil Procedure § 335.1); intentional/negligent infliction of emotional distress (2 years—Code of Civil Procedure § 335.1); intentional interference with prospective economic relations (2 years—Code of Civil Procedure § 339); inverse condemnation (3 years-- Code of Civil Procedure § 338, subdivision (j)) and nuisance (3 years-- Code of Civil Procedure § 338, subdivision (b)). Further, “[t]here existing no cause of action for conspiracy in and of itself, the statute of limitations is determined by the nature of the action in which the conspiracy is alleged.” (Agnew v. Parks (1959) 172 Cal.App.2d 756, 765.)

Plaintiff’s cause(s) of action arise from a purported zoning change (Complaint, ¶ 15), which Plaintiff knew of two weeks after September 3, 2010, as pled in Plaintiff’s attached “Response to City of Pomona Third party administrator.” City’s demurrer is also sustained on this basis.

City also demurs on the basis that Plaintiff’s complaint fails to state facts sufficient to constitute a cause of action. “[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 [citations omitted].) Plaintiff has not pled any statutory basis for liability. City’s demurrer is also sustained on this basis.