Judge: Peter Wilson, Case: 2022-01274513, Date: 2023-07-27 Tentative Ruling
Demurrer
Defendant Yorba Linda Water District generally and specially demurrers to the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th causes of action on the grounds that the facts alleged are not sufficient to constitute a cause of action, and uncertainty.
Legal Standard for Demurrer. A general demurrer challenges the legal sufficiency of a complaint on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ultimate facts that, as a whole, apprise defendant of the factual basis of the claim. (Code Civ. Proc. §425.10(a)(1); Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1284.)
A demurrer on the ground of uncertainty is disfavored and should be sustained only when the complaint is so incomprehensible that the defendant cannot reasonably respond since ambiguities may be clarified in discovery. (Lickiss v. Financial indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) When the allegations in a complaint are sufficiently specific to apprise defendant of the issues to be met, the demurrer should be overruled on this ground. (Kurtz, Richards, Wilson & Co. v. Insurance Communicators Mktg. Corp. (1993) 12 Cal.App.4th 1249, 1259.) Uncertain allegations should be liberally construed in testing a complaint for adequacy against a demurrer, particularly when the facts that are uncertain are presumptively within defendant’s knowledge. (Childs v. State (1983) 144 Cal.App.3d 155, 160.) The particularity requirement in a pleading depends on the extent to which defendant, in fairness, needs detailed information the plaintiff can conveniently provide, while less particularity is required when defendant is assumed to have the knowledge. (Doheny Park Terrance Homeowners Ass’n, Inc. v. Truck Ins. Exch. (2005) 132 Cal.App.4th 1076, 1099.)
In ruling on a demurrer, the court is guided by the following long-settled rules: The court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. The court may also consider matters which may be judicially noticed. Further, the court gives the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
When a complaint makes both general allegations and specific allegations, and a conflict or inconsistency exists between them, the specific allegations control over the inconsistent general allegations and may render the complaint defective even though the general allegations standing alone might have been sufficient. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-1236; Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 619.)
The Demurrer to the 6th and 7th COAs are SUSTAINED Without Leave to Amend.
Plaintiffs “withdraw” the 6th and 7th COA for intentional and negligent misrepresentation and do not oppose the demurrers to these causes of action. Additionally, the allegations of misrepresentations were not included in the Notice of Claim. Therefore, the demurrers to the 6th and 7th COAs are sustained without leave to amend.
The Demurrers to the 1st, 3rd, and 4th COAs are OVERRULED.
Defendant contends that the FAC is a sham pleading because it omits the allegations regarding “verbal approval” of the sewer extension and sewer lateral pipe and adds new allegations of asbestos and Barbre’s misrepresentations.
There are indeed differences in the specific allegations, but they do not in the context of a demurrer rise to the level of invoking the sham pleading doctrine. The omission of the verbal approval of the sewer extension and sewer lateral pipe alleged in the Complaint is not entirely inconsistent with the allegations in the FAC. In both the Complaint and FAC, Plaintiffs allege they did not know a permit was required. The verbal approval by Hipolito allegedly explains why Plaintiffs did not know a permit was needed and omitting this explanation does not render the FAC a sham pleading. Although the FAC omits the reason why (i.e. verbal approval), it still alleges Plaintiffs did not realize permits were needed for the sewer extension and sewer lateral pipe, that the sewer extension and lateral pipe were installed without proper permits, and that Defendant rendered the extension and lateral pipe unusable. ROA 41, FAC, ¶¶23-28.
The demurrer questions Plaintiffs’ credibility in not knowing permits were required but the credibility of Plaintiffs’ allegations is not relevant on a demurrer.
Importantly, Defendant does not address all the allegations in the FAC. The FAC alleges the Subject Property was damaged due to burying the old water line with concrete instead of refilling the soil and compacting it. Plaintiffs allege this will “continuously cause the cracking the asphalt surface over Grandview Avenue, including portions of traversing the Subject Property”. ROA 41, FAC, ¶19. Plaintiffs also allege the Subject Property continues to sustain damage as a result of the removed asphalt surface, subjacent support, and damage to the hardscape and landscaping. ROA 41, FAC, ¶17. These allegations are consistent with the allegations in the Complaint and the Notice of Claim, and merely provide additional factual details regarding the cause of the asphalt cracks.
Defendant is correct that the asbestos allegations are new in the FAC, but they are not inconsistent with the Complaint and do not render the FAC a sham pleading.
More persuasive is Defendant’s argument that the asbestos allegations were not contained in the Notice of Claim (ROA 41, Ex. C), and as such, Plaintiffs may not rely on such allegations now as a basis for claims against Defendant.
Plaintiffs contend that they were merely required to provide a general description of the injury and identify the relevant individuals involved, which they did. ROA 68, Opp., p. 15 fn. 8. Plaintiffs argue the allegations about asbestos are “merely a factual detail that relates to the scope of damage as originally set forth in the Notice of Claim.” Ibid.
The Court disagrees. The Notice of Claim makes no mention of asbestos in the old water line. Under Gov’t Code § 945.4 “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and acted upon by the board, or has been deemed to have been rejected by the board …” Gov’t Code § 910(d) requires a “general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of the presentation of the claim”.
To these ends, a claim filed in anticipation of litigation must set forth all the legal and factual bases that will be asserted in any subsequent lawsuit: “ ' ”If a plaintiff relies on more than one theory of recovery against the [governmental agency], each cause of action must have been reflected in a timely claim. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer [summary judgment] if it alleges a factual basis for recovery which is not fairly reflected in the written claim.“ [Citations.]' ”
(Doe 1 v. City of Murrieta (2002) 102 Cal. App. 4th 899, 920–21, 126 Cal. Rptr. 2d 213, disapproved of on a different matter by Brown v. USA Taekwondo (2021) 11 Cal. 5th 204, 483 P.3d 159.) Thus, summary judgment on a breach of contract cause of action was affirmed in Doe 1 because the government claim alleged personal injuries as a result of sexual contact and related acts, which did not adequately provide notice of any potential contract claim. (Doe 1, 102 Cal.App.4th at 920-021.)
Here, the theory of liability in the Notice of Claim and the Complaint due to the old main water line is based on physical damages to the Subject Property, i.e. removal of asphalt surface, subjacent support and damage to hardscaping and landscaping. See ROA 2, Complaint, ¶20; ROA 41, Ex. C, p. 2. The FAC implies that the value of the Subject Property has been negatively affected because Plaintiffs would have to disclose the presence of the buried asbestos pipe if they were to sell the Subject Property. ROA 41, FAC, ¶22. There is nothing in the Notice of Claim that would alert Defendant to damages or loss related to asbestos or asbestos contamination in the old water line. The allegations in the Notice of Claim fails to put Defendant on notice of this potential injury, damage or loss.
Nevertheless, as the asbestos allegations do not stand alone, the demurrer to the 1st , 3rd, and 4th COAs is OVERRULED. As indicated, Defendant does not challenge the allegations of damage caused by removal of asphalt surface, subjacent support, damage to the hardscape or landscape, and burying the old water line in concrete instead of refilling and compacting the soil. Nor does Defendant challenge the allegations that it went into non-easement areas. See ROA 41, FAC, ¶¶47, 48, 50, 63. These allegations may support inverse condemnation, trespass to land and nuisance.
The Demurrer to the 5th COA is OVERRULED. There is no argument in support of the demurrer to the 5th COA.
The Demurrer to the 2nd COA is SUSTAINED with 15 Days Leave to Amend. As Plaintiffs admit the sewer extension and lateral pipe were not properly permitted (ROA 41, FAC, ¶23), they do not have the right to own and possess the sewer extension and lateral pipe and interfere with Defendant’s utility easement. Therefore, Defendant’s actions in rendering the sewer extension and lateral pipe unusable were not wrongful. See ROA 49, pp. 11-13 [authorities cited and not challenged by Plaintiffs].
The Demurrers Based on Uncertainty over OVERRULED. Although uncertainty is one of grounds for the demurrer, the supporting memorandum does not address this basis.
Motion to Strike
Defendant seeks to strike the following allegations of willful, wanton, malicious and/or oppressive acts, punitive damages and harassment claims and fraudulent conduct:
· Paragraph 43, page 11, lines 2-6;
· Paragraph 53, page 14, lines 12-16;
· Paragraph 69, page 15, lines 8-16;
· Paragraph 78, page 16, lines 17-23;
· Item 2 of the Prayer, page 18, lines 16-17;
· Item 3 of the Prayer, page 18, lines 18-19;
· Item 4 of the Prayer, page 18, line 21;
· Item 5 of the Prayer, page 18, lines 22-23; and
· Item 6 of the Prayer, page 18, lines 24-25.
The Court may properly strike “irrelevant, false or improper matter inserted in any pleading” or any pleading or part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. § 436.)
The Motion is GRANTED as to the Allegations of Punitive Damages. Plaintiffs withdraw and do not oppose striking the request for punitive damages. In addition, as noted above, the Demurrer to the 6th and 7th causes of action is sustained without leave to amend. Accordingly, paragraphs 43, 54, 66 through 78 and 79 through 87 are stricken in their entirety. The Court rejects Plaintiffs’ argument that allegations concerning "willful, wanton, malicious and/or oppressive" conduct should remain. Not only do they automatically exit the complaint upon the granting of the demurrer to the cause of action in which they are asserted, where pled elsewhere in the complaint they are not relevant elements of any remaining cause of action.
Consistent therewith, Item 5 of the prayer (p. 18 lines 22-23), is stricken.
The Motion is GRANTED as to Item 2 in the Prayer. Item 2 in the Prayer seeks damages pursuant to Civil Code § 3336, which provides damages for “the wrongful conversion of personal property”. Since the Court sustained the demurrer to the conversion cause of action, this item of damages is irrelevant, false, or improper and not drawn or filed in conformity with the laws of this state, the court rules or the order of this Court.
The Motion is DENIED as to Item 3 in the Prayer. Plaintiffs seek emotional distress damages based on the 2nd, 3rd and 4th COAs. As the demurrer to the 2nd COA was sustained, the conversion cause of action cannot support emotional distress.
Defendant argues emotional distress damages are not available for property damage based on Erlich v. Menezes (1999) 21 Cal. 4th 543. But Erlich did not consider emotional distress damages based on trespass or nuisance.
Plaintiffs rely on Hensley v. San Diego Gas & Electric Co. (2017) 7 Cal.App.5th 1337 to argue that emotional distress damages may be available for trespass and nuisance based on property damage. In Hensley, plaintiff suffered stress, fear and helplessness, annoyance, discomfort, and loss of enjoyment of his property due to a wildfire that destroyed his home and forced the evaluation of his family. The Hensley court found that plaintiff’s emotional distress may constitute annoyance, discomfort and affect his quiet enjoyment of his property under these circumstances, and thus, a plaintiff may recover for annoyance and discomfort damages based on trespass or nuisance. (Id. at 1341, 1352.)
The Motion is DENIED as to Items 4 and 6 in the Prayer.
Plaintiffs seek prejudgment interest [Item 4] and attorney fees [Item 6]. Plaintiff seeks prejudgment interest based on Civil Code § 3287, which permits prejudgment interest to a person entitled to recover “damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day”. (Civ. Code § 3287(a).) Such prejudgment interest may be recoverable against a public entity. (Civ. Code § 3287(c).) As the alleged property damage may be calculable, the motion to strike the request for prejudgment interest is denied.
As attorney fees may be available under CCP § 1036 for inverse condemnation actions, the motion to strike the request for such fees is denied.
The Court sets a status conference on October 27, 2023 at 9:00 a.m., and the parties are Ordered to file a joint status report not later than October 20, 2023.
Defendant is ordered to give notice.