Judge Richard Y. Lee, Case 30-2021-01232738 2022-12-07 Tentative Ruling

Judge: Richard Y. Lee, Case: 30-2021-01232738, Date: 2022-12-07 Tentative Ruling

Defendant City of Newport Beach (“Defendant”) demurs to the First Amended Complaint (“FAC”) of Plaintiff Ghassem Azadian and Ghassem Azadian, Trustee of the Ghassem Azadian Living Trust, created March 6, 2012 (“Plaintiff”) on the grounds that the fourth and fifth causes of action for public nuisance and seventh cause of action for writ of mandate are barred by laches, consent, failure to exhaust administrative remedies, failure to join indispensable parties, and the applicable statutes of limitations.

Request for Judicial Notice

Defendant requests judicial notice of the following documents:

(A) City of Newport Beach City Council Resolution No. 2019-80;

(B) Chapter 15.80 of the Newport Beach Municipal Code;

(D) Plaintiff’s Complaint;

(E) GIS map for the area surrounding Kings Road;

(F) District Court’s July 14, 2022 Order Granting in Part Motion to Dismiss or, in the Alternative, Motion to Strike Plaintiff’s First Amended Complaint;

(G) Plaintiff’s July 14, 2022 Notice of Waiver of Right to File Amended Complaint; Request to Immediately Remand Case to Superior Court; and

(H) District Court’s July 18, 2022 Order Dismissing Federal Claim with Prejudice and Remanding Action to State Court.

The Request for Judicial Notice is GRANTED as to Exhibits A, B, and C. (Evid. Code, § 452(b), (c).) The Request for Judicial Notice is DENIED as to Exhibits E, F, G, and H, as the material therein is not relevant to the determination of the issues raised here. (State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.) The Request for Judicial Notice is DENIED as to Exhibit D, as the Court need not take judicial notice of the Complaint filed in this action.

Background/Relevant Allegations

Plaintiff resides at 1121 Kings Road, Newport Beach, California. (FAC, ¶ 1.) Defendants Gregory Ira Reed and Carolyn Marie Reed (the “Reed Defendants”) reside at 1113 Kings Road, Newport Beach, California. (FAC, ¶ 3.) There is a sewer easement on Plaintiff’s lot and directly behind it and the sewer line services and starts at the Reed Defendants’ property. (FAC, ¶ 17.) The line services the Reed Defendants’ property, Plaintiff’s property, and two other properties located at 1201 and 1211 Kings Road. (FAC, ¶ 19.) The sewer line is old, corroded, and was designed at a time when homes being serviced had no more than 2-3 bathrooms. (FAC, ¶ 19.) The sewer line has repeatedly backed up into 1211, 1201, and 1121 Kings Road, causing extensive property damage and health risks. (FAC, ¶ 20.)

Plaintiff asserts two causes of action for public nuisance and a cause of action for writ of mandate against Defendant in connection with Defendant’s decision to allow the Reed Defendants to connect to the easement sewer line and continuing to allow use of the easement sewer line despite the fact that it is old, corroded, insufficient to meet the needs of the existing homes, and has repeatedly backed up into 1211, 1201, and 1121 Kings Road on numerous occasions. The FAC alleges that allowing the Reed Defendants to attach to the easement sewer line creates a nuisance to all persons who are attached to the line downstream because the line has already overflowed and damaged downstream homes. (FAC, ¶¶ 110-112.) Plaintiff alleges that his property is the first home downstream from the Reed Defendants and will likely be the first one to suffer from a sewage backup. (FAC, ¶ 117.)

Failure to Exhaust Administrative Remedies

Defendant argues that Plaintiff failed to appeal its decisions related to the building permit process and has therefore failed to exhaust all available administrative remedies, which bars the fourth and seventh causes of action.

“When a statute or lawful regulation establishes a quasi-judicial administrative tribunal to adjudicate remedies, ‘the aggrieved party is generally required to initially resort to that tribunal and to exhaust its appellate procedure.’ [Citation.] ‘ “In the context of administrative proceedings, a controversy is not ripe for adjudication until the administrative process is completed and the agency makes a final decision that results in a direct and immediate impact on the parties.” ’ ” (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156-157.)

Pursuant to the Newport Beach Municipal Code, Chapter 15.80, appeals of orders, decisions, or determinations made under the building code or related rules based on grounds that they have been incorrectly interpreted, do not apply, or an alternate equally good or better form of construction or method of protection or safety exists, must be made within 14 days of the order, decision, or determination being appealed. (See RJN, Ex. B.)

Under the fourth cause of action, the nuisance alleged in the FAC has been caused by allowing the Reed Defendants to attach to the easement sewer line from a structure that will cause the line to exceed its maximum ability thereby affecting all persons who are attached to the line downstream. (FAC, ¶ 111.) The seventh cause of action seeks review of the City’s decision to allow the Reed Project to attach to the sewer line easement. (FAC, ¶ 141.) The FAC alleges that the City initially required, pursuant to a plan check correction, that all the sewage was to be directed to the sewer main directly under Kings Road but later, in the absence of a public hearing or due process, relieved the Reed Defendants of that requirement and allowed them to attach directly to the easement sewer line. (FAC, ¶¶ 142-143.)

Defendant points to no order, decision, or determination with a certain date relating to the attachment to the easement sewer line from which Plaintiff purportedly should have appealed. The City’s Resolution No. 2019-80, Exhibit A to the RJN, does not reference the attachment to the easement sewer line. Defendant argues that the FAC shows that the decision to allow the Reed Defendants to connect to the sewer easement was made during the building permit or plan check process, but no allegations in the FAC support this argument. Put simply, neither the FAC nor the judicially noticed documents show when or how the decision was made to allow the Reed Defendants to attach to the easement sewer line, or that such decision was made under the building code or related rules. Therefore, the Court finds that Defendant has failed to show that Municipal Code Chapter 15.80 applies to the decision being complained of by Plaintiff.

Thus, the Demurrer to the fourth and seventh causes of action based on failure to exhaust administrative remedies is OVERRULED.

Laches

Defendant argues the fourth, fifth, and seventh causes of action are barred by the affirmative defense of laches. Defendant contends that the FAC shows Plaintiff knew the Reed Defendants would attach to the easement sewer line by December 9, 2019 and was on notice of the existence of the easement, which is recorded against his property, since 2008. Defendant contends that Plaintiff unreasonably delayed in filing his action despite this prior knowledge.

To prevail on laches, the defendant must show (1) unreasonable delay; and (2) “either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.” [Citation.] (Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 282.) “A demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.” (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78–79.)

First, as to the existence of the easement, nothing on the face of the FAC or the judicially noticed documents demonstrates when Plaintiff purchased his property. Therefore, there is no support for Defendant’s assertion that Plaintiff has been on notice of the existence of the easement since 2008. Even if there were such support, Plaintiff is not challenging the existence of the easement itself but, rather, is challenging the increasing burden of the easement throughout the years due to the lack of maintenance of the sewer line in conjunction with an increasing number of bathrooms being serviced by that line, which has allegedly caused repeated backups into the downstream homes.

Second, as to the Reed Defendants’ attachment to the easement sewer line, the FAC does allege that Mike Sinacori, Assistant City Engineer for the City, telephoned Plaintiff on December 9, 2019 and informed him that the City was going to allow the Reed Defendants to attach to the easement sewer line. (FAC, ¶ 53.) The FAC further alleges that in November 2021, Plaintiff learned for the first time that the Reed Defendants intended to connect to the easement sewer line when they had a sewer manhole installed in the rear of their yard to service the sewer line connection. (FAC, ¶ 83.)

These allegations are conflicting and cast doubt over when Plaintiff learned that the Reed Defendants would be connecting to the easement sewer line. However, the issue need not be resolved for purposes of this Demurrer because Defendant has failed to show any prejudice or Plaintiff’s acquiescence in the acts about which he complains. Defendant contends it has been prejudiced by Plaintiff’s delay because there has been substantial work performed on the project. This may be sufficient to support a finding of prejudice with respect to the Reed Defendants, but not to this demurring Defendant.

In light of the above, the Demurrer to the fourth, fifth, and seventh causes of action based on laches is OVERRULED.

Consent and Substantial Number of Persons Affected

Defendant contends the fourth and fifth causes of action are barred by consent. It argues that Plaintiff consented to the easement sewer line by purchasing his property, against which the easement had been recorded. Defendant argues these causes of action also fail because the alleged public nuisance does not affect a substantial number of persons.

The allegations of the FAC show that the alleged nuisance is not the existence of the easement itself, but the development of issues with the easement sewer line backing up and becoming obsolete over time. The Court finds that Plaintiff could not have consented to this development at the time he purchased his home. Moreover, as discussed above, there is nothing on the face of the FAC or the matters judicially noticed showing when Plaintiff purchased his property.

Defendant cites no authority demonstrating that the alleged nuisance to the three downstream homes on the easement sewer cannot is insufficient as a matter of law. Moreover, the allegations of the FAC do not preclude the possibility that additional properties not referenced or listed in the FAC are serviced by the easement sewer line. Thus, on the face of the FAC, the Court cannot conclude that these causes of action fail due to an insufficient number of persons affected by the alleged nuisance.

Thus, the Demurrer to the fourth and fifth causes of action based on consent and the number of persons affected is OVERRULED.

Three-Year Statute of Limitations

Defendant argues the fifth cause of action is barred by the three-year statute of limitations applicable to nuisance actions brought by a private party. It argues that the three-year statute of limitations applies because this is a permanent nuisance issue, rather than a continuing nuisance.

“[W]here a private citizen sues for damage from a permanent nuisance, the statute of limitations begins to run upon creation of the nuisance. Where a continuing nuisance is alleged, every continuation of the nuisance gives rise to a separate claim for damages caused by the nuisance.” (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1143.) In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-869.) “The salient feature of a continuing trespass or nuisance is that its impact may vary over time.” (Field-Escandon v. Demann (1988) 204 Cal.App.3d 228, 234.)

Here, the FAC alleges that the easement sewer line has become more and more burdensome with the passing of time, as homes on the line have been renovated and upkeep of the line has been insufficient to meet the growing demand. It further alleges that the most recent development by the Reed Defendants will further increase the number of bathrooms serviced by the easement sewer line, which will cause the line to exceed its maximum ability. (FAC, ¶ 111.)

The Court finds that these allegations are more akin to a continuing nuisance rather than a permanent nuisance. The gravamen of Plaintiff’s action is not that the sewer line exists on Plaintiff’s property. Rather, it is the increasing burden of the easement sewer line over time and its repeated backups, which are successive injuries, that is at the heart of Plaintiff’s allegations.

Thus, the Court finds that the three-year statute of limitations does not apply and the Demurrer to the fifth cause of action based on the three-year statute of limitations is OVERRULED.

Failure to Join Indispensable Parties

Defendant argues the fifth cause of action fails to join indispensable parties, i.e., the other property owners whose homes are serviced by the sewer easement line.

Code of Civil Procedure section 389 defines an indispensable party as one that “(1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.”

Here, Plaintiff seeks to have the easement sewer line abandoned and all affected homes having their sewer systems redirected to tie directly into the main sewer line under Kings Road. (FAC, ¶ 125.) The allegations of the FAC make clear that 1201 and 1211 Kings Road are included in the downstream homes and, if Plaintiff’s requested relief is granted, those properties would lose their easement rights and have to redirect their sewer lines to the main line. This relief would unquestionably impact the interests of the owners of 1201 and 1211 Kings Road. Disposition of this action without the participation of those owners may impair or impede their ability to protect their easement interests.

Thus, the Court SUSTAINS the Demurrer to the fifth cause of action for nonjoinder with 20 days’ leave to amend.

90-Day Statute of Limitations

Defendant argues the fifth and seventh causes of action are barred by the 90-day statute of limitations in Government Code section 65009(c).

Government Code section 65009(c) provides that no action or proceeding shall be maintained to attack, review, set aside, void, or annul certain enumerated decisions regarding plans, zoning ordinances, development agreements, or variances or permits, unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision.

Again, Defendant bases this argument on the assertion that the decision to allow the Reeds to attach to the easement was made during the building permit process. Nothing in the FAC or the judicially noticed documents supports this assertion. As with the failure to exhaust administrative remedies argument, neither the FAC nor the judicially noticed documents show when or how the decision was made to allow the Reed Defendants to attach to the easement sewer line. Thus, the FAC does not establish on its face that the statute of limitation under Government Code section 65009(c) has been violated. (See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 [“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.”].)

Therefore, the Demurrer to the fifth and seventh causes of action based on the 90-day statute of limitations in Government Code section 65009(c) is OVERRULED.

No Clear and Present Ministerial Duty

Lastly, Defendant argues the seventh cause of action fails because Plaintiff has not alleged any clear, ministerial duty that was allegedly breached by Defendant.

“Pursuant to Code of Civil Procedure section 1085, subdivision (a), ‘A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.’ ” (Shamsian v. Department of Conservation (2006) 136 Cal.App.4th 621, 639.) “Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [Citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [Citation].” (Id., at p. 640.)

The seventh cause of action seeks review of the City’s decision to allow the Reed Project to attach to the sewer line easement. (FAC, ¶ 141.) However, the FAC fails to identify any clear and present duty on the part of Defendant, or any beneficial right in Plaintiff to the performance of that duty, which relates in any way to the decision to allow the Reed Project to attach to the sewer line easement.

Thus, the Demurrer to the seventh cause of action is SUSTAINED on the ground that Plaintiff has failed to allege a clear and present duty, with 20 days’ leave to amend.

Defendant to give notice.