Judge: Richard S. Whitney, Case: 37-2023-00002597-CU-EI-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 11, 2023

10/13/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Eminent domain/Inverse condemnation Demurrer / Motion to Strike 37-2023-00002597-CU-EI-CTL CARTER VS LA MESA SPRING VALLEY UNIFIED SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT is SUSTAINED, in part, and OVERRULED, in part.

Defendant La Mesa-Spring Valley Schools' ('Defendant') demurrer to Plaintiff TOMMIE CARTER's ('Plaintiff') complaint is based on the assertion that the applicable statutes of limitation bar the claims and that the complaint was not timely filed within six months of Defendant's rejection of the tort claim filed by Plaintiff. Defendant's requests for judicial notice are granted, to the extent permissible.

When considering a demurrer, '[t]he pleading must be read as if it contained all matters of which the court could properly take judicial notice even in the face of allegations in the pleading to the contrary.' (Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 47.) 'We 'accept as true not only those facts alleged in the complaint but also facts that may be implied or inferred from those expressly alleged.'' (Munoz v. Patel (2022) 81 Cal.App.5th 761, 771.) ' ' 'Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' ' ' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) 'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.

[Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.' (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232 [Citation and quotes omitted].) 'This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense.' (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) Under the Government Claims Act ('Act'), 'no person may sue a public entity or public employee for damages unless such person has presented a timely written claim to the public entity, which the public entity has then rejected.' (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1486 fn. 14.) Under Government Code section 945.6, Plaintiff had six months from the personal delivery or deposit in the mail of the notice of rejection, which must be done according to Government Code section 913, to file this action. (Gov. Code, § 945.6.) The Court may not take judicial notice of factual assertions in certain documents, such as a declaration, but may do so as to the fact certain documents, such as a declaration, exist or the legal effect of them.

(See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057.) Defendant asks the Court to take judicial notice of the rejection notice letter from Defendant, which is dated July 19, 2022. The Court grants judicial notice of the document for purposes of its existence and legal effect, but Calendar No.: Event ID:  TENTATIVE RULINGS

2958428 CASE NUMBER: CASE TITLE:  CARTER VS LA MESA SPRING VALLEY UNIFIED SCHOOL  37-2023-00002597-CU-EI-CTL it cannot do so as to the date the letter was mailed. The letter includes the language 'CERTIFIED MAIL RETURN RECEIPT REQUESTED' but the letter itself does not indicate the date the letter was mailed such that the Court could conclude, based on judicially noticeable information, that the filing of this action, on January 20, 2023, occurred more than six months after the rejection notice. Further, Plaintiff alleges the San Diego County Schools Joint Power Authority ('JPA') informed Plaintiff of the rejection of his claim on September 20, 2022. In short, the Court cannot conclude, as a matter of law, Plaintiff's complaint was untimely filed under Government Code section 945.6.

Defendant also asserts laches. 'Laches may bar relief in equity to those who neglect their rights, where such neglect operates to the detriment of others.' (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1417.) 'More generally, 'laches is not technical and arbitrary and is not designed to punish a plaintiff. It can only be invoked where a refusal would be to permit an unwarranted injustice. Whether or not the doctrine applies depends upon the circumstances of each case.'' (Id. at 1418.) The Court does not believe this is a case that warrants application of laches given the continuous nature of the damages, Defendant's awareness of the issue, and Plaintiff's efforts to address the issue at different times. (Complaint, ¶¶ 10, 16, and 37.) Given the allegations that Defendant has been aware of the issue since 2015, the Court cannot conclude Plaintiff acted so unreasonable in delaying the bringing of this action that the Court should apply the doctrine of laches to dismiss the action. (Complaint, ¶ 53.) Defendant also argues that Government Code section 911.2(a) bars the claims. 'A claim relating to a cause of action ... for injury to person or to personal property ... shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.' (Gov. Code, § 911.2(a).) '[F]ailure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.' (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) [A] plaintiff need not allege strict compliance with the statutory claim presentation requirement. Courts have long recognized that '[a] claim that fails to substantially comply with sections 910 and 910.2, may still be considered a 'claim as presented' if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved.' (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 769, 115 Cal.Rptr.2d 705, fn. omitted.) Finally, a plaintiff may arguably be able to satisfy the claim presentation requirement by alleging an appropriate excuse, such as equitable estoppel. (See Ard v. County of Contra Costa (2001) 93 Cal.App.4th 339, 346–347, 112 Cal.Rptr.2d 886.) (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1245.) Plaintiff asserts that he put Defendant on notice of his claim by consistently communicating between his Homeowners Association and Defendant to resolve the flooding since around December 5, 2015. While Plaintiff alleges Defendant was 'aware of the ongoing issue since on or about December 2015,' Plaintiff does not allege he contacted Defendant. (Complaint, ¶ 53.) It appears that the first contact Plaintiff attempted to make with Defendant was '[o]n or about June 3, 2022' when he 'submitted a claim against the District in accordance with the District's administrative proceedings.' (Complaint, ¶ 16.) The Court finds Plaintiff has not alleged facts to support he put Defendant on notice that he was attempting to file a valid claim and that litigation would result if the matter were not resolved until June 3, 2022, long after the running of the applicable statutes of limitation as to some of the causes of actions, as discussed below.

Plaintiff also asserts Defendant should be equitably estopped from raising the statute of limitations as a defense. 'The doctrine 'ordinarily will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy.

[Citations.]'' (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315 [Citation omitted].) Calendar No.: Event ID:  TENTATIVE RULINGS

2958428 CASE NUMBER: CASE TITLE:  CARTER VS LA MESA SPRING VALLEY UNIFIED SCHOOL  37-2023-00002597-CU-EI-CTL Generally speaking, four elements must be present in order to apply the doctrine ...: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.

(Ventura29 LLC v. City of San Buenaventura (2023) 87 Cal.App.5th 1028, 1042 [Citations and quotes omitted].) Plaintiff does not argue nor allege facts to support that Defendant intended Plaintiff to act upon its conduct nor that Plaintiff was ignorant of the facts. Equitable estoppel does not apply.

Plaintiff also asserts that the claim for inverse condemnation could not accrue for purposes of the statute of limitation until the situation stabilized, citing Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471. In Aaron the court noted that while the homeowners were annoyed by noise from airplanes in 1962, 'the cause of action did not accrue at the point the homeowners first became annoyed. As pointed out in Jensen some annoyance must be borne without compensation.' (Id. at 492.) 'A cause of action for inverse condemnation alleging property damage accrues not necessarily on the date of the 'taking,' but, rather, 'when the damage is sufficiently appreciable to a reasonable man.'' (Lyles v. State of California (2007) 153 Cal.App.4th 281, 286.) Here, Plaintiff alleges that '[o]n or about July 23, 2021, the new Homeowners Association, McMillin's Sweetwater, hired Pacific Construction Analytics ('PCA') to investigate the water flow drainage issues' and that the 'PCA report showed that Plaintiff's property suffered damage caused by the overflow of the drainage channel.' (Complaint, ¶¶ 11-12.) The complaint does not affirmatively state when it was that Plaintiff's property experienced appreciable harm. It would appear it was sufficiently appreciable by July 23, 2021. However, for purpose of demurrer based on the statute of limitations, the point at which appreciable damage occurred does not 'clearly and affirmatively appear on the face of the complaint.' Therefore, the Court cannot conclude the statute of limitations had run nor that the claim submitted to Defendant was untimely. The demurrer is overruled as to inverse condemnation.

As to private nuisance, Plaintiff acknowledges that the damage 'has been ongoing since on or about December 2015....' Plaintiff does not provide adequate argument as to how the statute of limitations had not run before the claim was supposed to be submitted or this action was filed, as discussed above. The Court finds the claim is untimely based on the statute of limitations and the failure to timely submit a claim to Defendant. The demurer is sustained as to private nuisance.

As to trespass, Plaintiff asserts the trespass was continuing such that the statute of limitations did not run until the last rain fall when water overflowed from the drainage ditch onto Plaintiff's property, citing Polin v. Chung Cho (1970) 8 Cal.App.3d 673. Defendant contests such analysis, citing Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478. In Bookout the court stated: The cases distinguish between permanent and continuous nuisance or trespass. Where a nuisance is of such a character that it will presumably continue indefinitely, it is considered permanent and the limitations period runs from the time the nuisance is created. (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107, 162 P.2d 625.) Where, however, a nuisance may be discontinued at any time, it is considered continuing in character. (Ibid.) A person injured by a continuous nuisance may bring successive actions, even though an action based on the original wrong may be barred. (Id. at pp.

107–108, 162 P.2d 625.) (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1489.) In Polin the court stated: But in California the courts have adopted the doctrine of a 'permanent trespass.' The most persuasive reason for deeming a condition 'permanent' is that plaintiff is not put to a succession of lawsuits, but may recover future damages in one lawsuit on the premise that the condition will exist forever. The rule being for the benefit of plaintiff, plaintiff should not be compelled to treat a condition as 'permanent' when plaintiff prefers not to so treat it.

Calendar No.: Event ID:  TENTATIVE RULINGS

2958428 CASE NUMBER: CASE TITLE:  CARTER VS LA MESA SPRING VALLEY UNIFIED SCHOOL  37-2023-00002597-CU-EI-CTL (Polin v. Chung Cho (1970) 8 Cal.App.3d 673, 677.) '[I]n doubtful cases the plaintiff should have an election to treat the nuisance [or trespass] as either permanent or not.' (Id. at 678 [Citation omitted].) Polin involves allegations 'that in 1964 defendants 'diverted a stream and storm drain from defendants' adjoining property onto plaintiffs' said property' by bulldozing a ditch on plaintiffs' property. The result, allege plaintiffs, is that plaintiffs' land suffered erosion 'during and after each rain since the said diversion was made.'' (Polin, supra, 8 Cal.App.3d at 676 [Citation omitted].) The court stated: From what little information the trial court had, the ditch or channel could not have been found to be of the same permanency as a completed railroad or building. Moreover, the declarations did not negate plaintiffs' allegation that their land has been, and is being, eroded by reason of rain falling subsequent to March 22, 1964, and being carried in the new ditch or channel. We therefore conclude that plaintiffs have pleaded a cause of action based on injury to real property (without regard to the trespass), but that if the cause of action must be deemed to be based upon a trespass, the trespass alleged is continuing in nature.

(Id. at 679.) Here, Plaintiff alleges that there is 'a drainage ditch' behind his property and that '[a]t some point since 1977, the District altered the channel to achieve its current form. Plaintiff upon information and belief believes this was done to upgrade and/or fix Loma's runoff water drainage system.' (Complaint, ¶ 7.) Defendant asserts this case is similar to Bookout, which involved an iron culvert pipe underneath raised a rail bed, because they both involve permanent structures. Defendant states '[t]he brow ditch is a permanent concrete structure that has not been altered (nor is it alleged that it has been altered) since it was installed prior to 2015.' Such facts are not alleged nor is there judicially noticeable information before the Court that such facts are beyond dispute. Therefore, the Court cannot conclude that the ditch was altered in such a way that constitutes a permanent structure.

Moreover, Plaintiff alleges '[t]he PCA report showed that Plaintiff's property suffered damage caused by the overflow of the drainage channel.' (Complaint, ¶ 13 [Emphasis added].) Plaintiff alleges '[t]he PCA report showed that various areas of the school property drain into the upper ditch, and that, in heavy rains, the water runs off Loma property, hits a turn in the upper ditch, and causes spillage. This spillage is further exacerbated by the District's failure to remove tree debris in the upper ditch.' (Complaint, ¶ 13 [Emphasis added].) The allegations support that the trespass was not necessarily permanent. The Court concludes that this case, for purposes of demurrer, is a 'doubtful' case such that Plaintiff should be permitted to proceed as if this case involves a continuing trespass. The demurrer is denied as to the trespass cause of action.

As with the cause of action for private nuisance, Plaintiff does not provide adequate argument as to how the statute of limitations had not run on the negligence claim before the claim was supposed to be submitted or this action filed, as discussed above. The Court finds the negligence claim is untimely based on the statute of limitations and the failure to timely submit a claim to Defendant. The demurer is sustained as to negligence.

Finally, Defendant's demurrer as to declaratory relief is based on the arguments analyzed above which fail as to inverse condemnation and trespass. Therefore, the demurrer is overruled as to declaratory relief as a controversy remains as to inverse condemnation and trespass.

The demurrer is sustained as to the private nuisance and negligence causes of action. The demurrer is overruled as to the inverse condemnation, trespass, and declaratory relief causes of action. 'Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion [...] Liberality in permitting amendment is the rule....' (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-04.) The face of the complaint does not indicate amendment is impossible and this is Plaintiff's original complaint. Therefore, the Court grants ten (10) days leave to amend.

Calendar No.: Event ID:  TENTATIVE RULINGS

2958428 CASE NUMBER: CASE TITLE:  CARTER VS LA MESA SPRING VALLEY UNIFIED SCHOOL  37-2023-00002597-CU-EI-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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