Judge: Peter A. Hernandez, Case: 24STCV30202, Date: 2025-03-24 Tentative Ruling

Case Number: 24STCV30202    Hearing Date: March 24, 2025    Dept: 34

Defendant Torrance Unified School District’s Demurrer to Plaintiffs’ Complaint is OVERRULED, in part, as to the second and third causes of action and SUSTAINED, in part, as to the first and fourth causes of action.

 

The court will inquire at the hearing whether leave to amend should be granted.

 

Background

 

            On November 15, 2024, Plaintiffs Mark Kisiler and Jennifer Kisiler (“Plaintiffs”) filed a complaint against Defendants The People of The State of California acting by and through the Department of Transportation, County of Los Angeles, Los Angeles County Flood Control District, Torrance Unified School District, City of Torrance, and Clarke Contracting Corporation (“Defendants”) arising from damaged caused by Defendants to Plaintiffs’ residence from the failure of a drainage channel alleging causes of action for:

 

1.         Inverse Condemnation;

2.         Private Nuisance;

3.         Public Nuisance; and

4.         Trespass.

 

On January 13, 2025, Defendant Clarke Contracting Corporation filed an answer to Plaintiffs’ complaint and a cross-complaint.

 

On February 10, 2025, Defendant City of Torrance filed an answer to Plaintiffs’ complaint and a cross-complaint.

 

On February 10, 2025, Defendant Torrance Unified School District filed this Demurrer to Plaintiffs’ complaint. On February 27, 2025, Plaintiffs filed an opposition. On March 5, 2025, Defendant Torrance Unified School District filed a reply.

 

On February 10, 2025, Defendants County of Los Angeles and Los Angeles County Flood Control District filed individual answers to Plaintiffs’ complaint.

 

On February 11, 2025, at the request of Plaintiff, the court dismissed Defendant The People of The State of California acting by and through the Department of Transportation without prejudice from the complaint.

 

On March 5, 2025, at the request of Cross-Complainant City of Torrance, the court dismissed Defendant The People of The State of California without prejudice from the cross-complaint.

 

            On March 12, 2025, the court found cases 24STCV30202 and 25STCV06429 related, assigning case 24STCV30202 is the lead case.

 

Legal Standard

 

            “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

 

            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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pled or implied factual allegations. (Ibid.) 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).

 

Discussion

 

Defendant Torrance Unified School District (“TUSD”) demurs to all four causes of action in Plaintiffs’ complaint pursuant to Code of Civil Procedure section 430.10, subdivision (e), on the grounds that they do not state facts sufficient to constitute causes of action.

 

Plaintiffs own and reside in real property located at 4798 Calle Mayor, Torrance, CA (“Subject Property”). (Complaint, ¶ 1.) Plaintiffs allege that the Subject Property is adjacent to a drainage channel that was designed to provide lateral support to the Subject Property (Id., ¶ 17.) On February 1, 2024, the drainage channel failed and Plaintiffs allege that the Subject Property lost lateral support, water infiltrated the property, and caused damage. (Id., ¶ 19.) Subsequently, Defendants made repairs to the drainage channel. (Id., ¶ 20.) However, Plaintiffs allege that the damage continues to worsen. (Id., ¶ 21.)

 

Objections

 

            The court overrules Plaintiffs’ objection to TUSD’s reply. The court will consider the reply and surreply filed by Plaintiffs. 

 

1st Cause of Action – Inverse Condemnation

 

“Article I, section 19…of the California Constitution requires that just compensation be paid when private property is taken or damaged for public use. Therefore, a public entity may be liable in an inverse condemnation action for any physical injury to real property proximately caused by a public improvement as deliberately designed and constructed, whether or not that injury was foreseeable, and in the absence of fault by the public entity.” (Souza v. Silver Dev. Co. (1985) 164 Cal.App.3d 165, 170.) “To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation¿of¿a public project or improvement which proximately caused injury to plaintiff’s¿property.” (Pacific Shores Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 43.) “The necessary finding is that the wrongful act be part¿of¿the deliberate design, construction, or maintenance¿of¿the public improvement.” (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 742.)   

           

            TUSD argues that Plaintiffs fail to allege any facts that TUSD substantially participated in the planning, approval, construction, or operation of the drainage channel as required to state a claim for inverse condemnation. (Demurrer, at p. 9.) TUSD also argues that Plaintiffs do not allege facts showing that TUSD has any responsibility for the control and disposal of stormwater. (Ibid.)

 

            In opposition, Plaintiffs argue that the complaint alleges that the drainage channel is on TUSD’s property, that TUSD “owned, designed, constructed, and/or maintained” the drainage channel, and that the drainage channel was “deliberately design, constructed, maintained, and operated” as to result in its failure. (Opp., at p. 7.) Lastly, Plaintiffs note that the complaint alleges that TUSD omissions “to monitor, to maintain, to clear, and to repair” the drainage channel substantially contributed to the damage caused to the Subject Property. (Ibid.)

 

            In reply, TUSD argues that Plaintiffs fail to state a cause of action for inverse condemnation as Plaintiffs’ claim is premised on damage caused by TUSD’s negligent failure to maintain or repair the drainage channel. (Reply, at pp. 3-4 [relying on Hayashi v. Alameda County Flood Control and Water Conservation District (1959) 167 Cal.App.2d 584, 591].)

 

            “The most recent cases have made a distinction between negligence which occurs when a public agency is carrying out a deliberate plan with regard to the construction of public works, and negligence resulting in damage growing out of the operation and maintenance of public works. These cases hold that the damage resulting from the former type of negligence is compensable under article I, section 14, whereas damages resulting from the second type of negligence are not recoverable in an inverse condemnation proceeding, but are recoverable, if at all, only in a negligence action. It has been definitely held that a property owner may not recover in an inverse condemnation proceeding for damages caused by acts of carelessness or neglect on the part of a public agency.” (Hayashi v. Alameda County Flood Control and Water Conservation District (1959) 167 Cal.App.2d 584, 591-92.) 

 

            The court finds that Plaintiffs fail to allege sufficient facts to constitute a cause of action for inverse condemnation against TUSD. Plaintiffs allege that TUSD owns the property where the drainage channel is located. (Complaint, ¶ 16.) However, Plaintiffs do not allege that TUSD substantially participated in the planning, approval, construction, or operation¿of the drainage channel as to provide liability. The allegations made as to TUSD indicate that the damage occurred in part due to TUSD’s negligent operation and maintenance of the drainage channel. Plaintiffs’ allegations regarding TUSD’s alleged maintenance or operation of the drainage channel are insufficient to suggest that TUSD had a deliberate plan as to the construction of the public work at issue here. (Hayashi, supra, 167 Cal.App.2d at 591-92.)

 

In the surreply, Plaintiffs rely on Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 606 to distinguish Hayashi, supra, 167 Cal.App.2d. However, the court does not find Plaintiffs’ argument persuasive as Pacific Bell held that “any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed is compensable . . . whether foreseeable or not.” (citation omitted). Damage caused by the public improvement as deliberately conceived, altered or maintained may be recovered under inverse condemnation (citation omitted) and the presence or absence of fault by the public entity ordinarily is irrelevant. (citation omitted). (Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 602.) “However, the deliberateness requirement is satisfied by a public improvement that as designed and constructed presents inherent risks of damage to private property, and the inherent risks materialize and cause damage. (citation omitted)” (Id., at 607.) Pacific Bell does not provide authority regarding the sufficiency of allegations of negligent operation or maintenance to constitute a cause of action for inverse condemnation.

           

Accordingly, the demurrer is sustained as to the first cause of action.

 

2nd Cause of Action – Private Nuisance

 

            To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but 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.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.) 

 

            TUSD argues that Plaintiffs fail to allege that the interference with Plaintiffs’ use and enjoyment of the Subject Property was either substantial or unreasonable. (Demurrer, at p. 10.) TUSD also argues that TUSD would be immune from any liability under Government Code section 830.6 because the complaint alleges that the drainage channel failed because of the manner that Defendants designed and constructed it. (Id., at pp. 10-11.)

 

            As to the design immunity, Government Code section 830.6 provides that a public entity is not liable for injury caused by the plan or design of a construction or improvement to public property where the plan or design was approved in advance of the construction or improvement by the legislative body or employee exercising discretionary authority to give such approval. (Gov. Code, § 830.6.)  To establish the affirmative defense of design immunity, a public entity must establish three elements: “(1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.”  (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 69.)  Where a demurrer is based upon an affirmative defense, such as statutory immunity, the demurrer “will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. [Citation.]”  (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.)   

 

Here, Plaintiffs allege that the drainage channel was deliberately designed in a manner that caused the damage that occurred. (Complaint, ¶ 18.)  However, the face of Plaintiffs’

complaint does not allege any other facts that would support a demurrer based on design immunity. There are no allegations regarding discretionary approval or the reasonableness of the plan. Accordingly, the demurrer is overruled on this ground.

 

            Additionally, the court finds that Plaintiffs sufficiently pled a substantial and unreasonable interference with the use and enjoyment of the Subject Property. (Complaint, ¶¶ 21-22 [“Plaintiffs have lost use of, and will continue to be without use of, a substantial portion of the Subject Property… [Plaintiffs have been] annoyed and disturbed…by the aforesaid damage to and loss of use of the Subject Property, by a loss of privacy…, and by foul odors and pests resulting from water standing within the Drainage Channel.”])

 

Accordingly, the demurrer is overruled as to the second cause of action.

 

3rd Cause of Action – Public Nuisance

 

Public nuisances are “substantial and unreasonable” “offenses against, or interferences with, the exercise of rights common to the public.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) 

 

TUSD argues that Plaintiffs’ complaint fails to allege that TUSD’s conduct was a substantial factor in causing the alleged harm. (Demurrer, at p. 11.) TUSD also invokes Government Code section 830.6 to argue for design immunity. (Id., at pp. 11-12.)

 

The court finds that Plaintiffs sufficiently alleged causation of the harm suffered by TUSD’s conduct. Plaintiffs allege that the manner in which TUSD maintained or operated the drainage system was part of the causation of the damages in combination with the acts of the other Defendants. (Complaint, ¶¶ 16, 18, 19, 30, 32.) Moreover, for the reasons discussed above, section 830.6 does not apply here.

 

Accordingly, the demurrer is overruled as to the third cause of action.

 

4th Cause of Action – Trespass

 

To set forth a cause of action for trespass, Defendants must allege (1) Defendants’ lawful possession or right to possession of real property; (2) Plaintiffs’ wrongful, intentional, reckless, or negligent act of trespass on the property; (3) Defendants did not give permission for the entry or scope of permission was exceeded; and (4) damage to Defendants caused by the trespass. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)  

 

TUSD argues that Plaintiffs make conclusory allegations that Defendants’ acts and omissions caused water to enter the Subject Property without alleging that the acts and omissions were intentional, reckless, or negligent. (Demurrer, at p. 12.) TUSD also argues that Government Code section 815(a) provides for immunity from a trespass claim and that Plaintiffs fail to allege any statutory basis for liability. (Ibid.)

 

The Government Claims Act states that “except as otherwise provided by statute, [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  (Gov. Code, § 815.) As the Senate Legislative Committee explained in the comment to Government Code Section 815, “the practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.”  

 

The claim for trespass is a common law tort claim. Accordingly, such claim is barred against TUSD pursuant to the Government Claims Act.  Furthermore, Plaintiffs’ complaint fails to identify any statutory authority to impose liability on TUSD for trespass.

 

Accordingly, the demurrer is sustained as to the third cause of action.

 

Conclusion

 

Defendant Torrance Unified School District’s Demurrer to Plaintiffs’ Complaint is OVERRULED, in part, as to the second and third causes of action and SUSTAINED, in part, as to the first and fourth causes of action.

 

The court will inquire at the hearing whether leave to amend should be granted.