Judge: Ronald F. Frank, Case: 23TRCV03160, Date: 2024-03-12 Tentative Ruling
Case Number: 23TRCV03160 Hearing Date: March 12, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: March 12, 2024¿¿
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CASE NUMBER: 23TRCV03160
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CASE NAME: Conjunction
junction, LLC v. Gordon Leaon, et al.
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MOVING PARTY: Defendants, Gordon Leon, Michael Barth, Jim Knight,
Colleen Miller
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RESPONDING PARTY: Plaintiff,
Conjunction Junction, LLC.
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TRIAL DATE: None set.
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MOTION:¿ (1) Demurrer¿
(2)
Motion to Strike
(3)
Motion for Protective Order
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Tentative Rulings: (1) ARGUE. The City Council Resolutions in Defendant’s
RFJN are key to whether the 6-month statute of limitations bars this entire
action. The Court will take argument on
Plaintiff’s objections to the City Council Resolution which appears to
demonstrate that the City established the ACLAD by Resolution, not by Petition,
and that a Plan of Control was adopted over four decades ago regardless of
whether the actual document can now be found
I. BACKGROUND¿¿
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A. Factual¿¿
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On September 25, 2023,
Plaintiff, Conjunction Junction, LLC (“Plaintiff”) filed a Complaint against
Defendants, Gordon Leon, Michael Barth, Sandy Marshall, Jim Knight, Scott
Kerwin, Colleen Miller, collectively dba ACLAD dba Abalone Cove Landslide
Abatement District, and DOES 1 through 100. On January 12, 2024, Plaintiff
filed a First Amended Complaint (“FAC”) alleging causes of action for: (1)
Declaratory Relief; (2) Fraud – Concealment; (3) Fraud – Intentional
Misrepresentation; (4) Fraud – Negligent Misrepresentation; (5) Constructive
Trust; and (6) Violation of 42 U.S.C. § 1983
Plaintiff’s FAC is
based on the assertion that Abalone Cove Landslide Abatement District (“ACLAD”)
was not properly formed, but acted as if it were a quasi-governmental agency.
Defendants now demur, amongst other things, asserting Plaintiff is incorrect,
and that City and Board resolutions clearly establish that not only did the
City order the formation of ACLAS but also that all procedural requirements for
the formation of ACLAD were met – including the adoption of the plan of control
and initial budget. Defendants contend the City and Board resolutions establish
that ACLAD was formed in 1981, over 42 years ago. However, Plaintiff still
brings these causes of action against the current board members of ACLAD. Plaintiff
contends that it owns property located at at APN 757201602422000
(“Plaintiff’s Property.”) (FAC, ¶ 45.) Plaintiff alleges at the time of
purchasing Plaintiff’s property, the prior owners executed an assignment of any
claims associated with Plaintiff’s Property against third parties in favor of
Plaintiff. Each year, Plaintiff notes that ACLAD issued assessment notices to
Plaintiff and Plaintiff’s predecessors in interest in Plaintiff’s Property,
each of which were paid. (FAC, ¶ 47.) Plaintiff notes the 2022 assessment
totaled $4,808.99, and the 2023 assessment totaled $5,976.60. (FAC, ¶¶ 49-50.)
Plaintiff also asserts ACLAD has taken easements over properties throughout the
region, including on Plaintiff’s Property. (FAC, ¶ 51.) Plaintiff’s FAC is
based on the allegation that ACLAD was never actually formed into a
governmental entity, that exhaustion of administrative remedies do not need to
be exhausted, and thus, Plaintiff claims entitlement to damages measured by the
assessments ACLAD incurred throughout the years.
Defendants Gordon Leon,
Michael Barth, Jim Knight, and Colleen Miller (“Defendants”) now file a
Demurrer and Motion to Strike portions of the FAC. Moving Defendants also file
a Motion for Protective Order to Stay all Discovery Pending Resolution of the
pleading issues raised by Defendants’ Demurrer and Motion to Strike.
B. Procedural¿¿
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On February 14, 2024, Moving Defendants filed their
Demurrer and Motion to Strike. On February 27, 2024, Plaintiff filed opposition
briefs. On March 5, 2024, Moving Defendants filed reply briefs.
Additionally, on December 14, 2023, Moving Defendants
filed a Motion to for Protective Order and Stay pending resolution of the
Defendants’ Demurrer and Motion to Strike. On January 17, 2024, Plaintiff filed
an opposition. On March 5, 2024, Moving Defendants filed a reply brief.
II. REQUEST FOR JUDICIAL
NOTICE
Along with Moving Defendants’
motions, they have requested this Court take judicial notice of the following
documents:
1. Document
No. 1 - a true and correct certified
copy of the City Council of the City of Rancho Palos Verdes’s Resolution No.
81-4. This Resolution was passed, approved and adopted on January 27, 1981.
2. Document
No. 2 - a true and correct certified
copy of ACLAD’s Resolution No. 81-7 entitled: “A Resolution Of The Board Of
Directors Of The Abalone Cove Landslide Abatement District, Being A Resolution
Of Intention To Order Certain Work To Be Done And Certain Acquisitions To Be
Made In Connection With The Abatement Of A Landslide.” This Resolution was
passed, approved and adopted on March 30, 1981.
3. Document
No. 3 - a true and correct certified
copy of ACLAD’s Resolution No. 81-12 entitled: “A Resolution Of The Board Of
Directors Of The Abalone Cove Landslide Abatement District Ordering The
Acquisition And Construction Of Certain Public Facilities And Confirming A Diagram
And Assessment.” This Resolution was passed, approved and adopted on June 9,
1981
4. Document
No. 4 - a true and correct certified
copy of ACLAD’s Minutes of Regular Meeting, March 30, 1981.
5. Document
No. 5 - a true and correct printout of
background information for GHAD recognizing ACLAD as the first GHAD pursuant to
the Beverly Act of 1979, which was obtained by accessing
https://www.conservation.ca.gov/cgs/Pages/GHAD.aspx, which is made publicly
available.
The
Court tentative grants Moving Defendants’ request and tentatively overrules Plaintiff’s
objections, but will take oral argument as to the objections, especially the
objections to Resolution 81-12.
Plaintiff, in filing its
opposition, has also requested this Court take judicial notice of the
following:
1.
Exhibit A - Minutes from the March 23, 2023 Special
Meeting of ACLAD; and
2.
Opposition Exhibit B – Minutes from the
November 2023 Meeting of ACLAD
The Court will allow oral argument
as to defense objections to these items and as to whether a continuance of the hearing
should be ordered to allow Plaintiff to obtain and file certified copies
supported by a proper declaration establishing the foundation for these meeting
minutes.
III. ANALYSIS¿
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A. Demurrer¿¿¿
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Legal Standard
A demurrer can be used only to challenge
defects that appear on the face of the pleading under attack or from matters
outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
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A pleading is uncertain if it is
ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer
for uncertainty may lie if the failure to label the parties and claims renders
the complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
Statute
of Limitations
First, Defendants argue that
Plaintiff’s claims against Defendants are time-barred under Code of Civil
Procedure section 349.1. Pursuant to section 349.1, “[t]he validity of any acts
or proceedings taken under color of law for the formation, organization,
incorporation, dissolution, consolidation, change of organization or
reorganization or, or for any change in the territorial boundaries of, any
city, county, city and county, special district, public corporation or other
public entity, or improvement district within any of the foregoing, shall not
be contested in any action unless such action shall have been brought within
six months from the date of completion of said acts or proceedings. Unless an
action is commenced within said period all said acts or proceeding shall be
held valid and in every respect legal and incontestable.” Here, Defendants
argue that ACLAD was formed in January 1981, and was the first Geologic Hazard
Abatement District formed after the Beverly Act of 1979.
In opposition, Plaintiff argues that this appears to be an issue
of first impression in California, but recommends this Court uses the analysis
of void versus voidable acts. While this very issue may be one of first
impression, the Court does not feel the need to use contract interpretation
where this is a case law more analogous to it: Las Tunas Beach
Geologic Hazard Abatement Dist. v. Superior Court (1995) 38 Cal.App.4th
1002 (“Las Tunas”). Although this case involved the Validating Act
rather than Section 349.1, the Second District Court of Appeal in Las Tunas
indicated in footnote 9 the similarity between the Validating Act’s statute of
limitations and the SOL found in Code of Civil Procedure § 349.1. In Las
Tunas, the City of Malibu had adopted a resolution forming a Geologic
Hazard Abatement District (“GHAD”), similar to the GHAD – ACLAD -- in the
present case. The City of Malibu’s resolution in Las Tunas contained
various conditions including a condition allowing the city to dissolve the GHAD
if it found the GHAD’s abatement plan was infeasible or did not serve the
purpose of state law. In 1993, the City of Malibu sought dissolution under that
condition and the GHAD objected, seeking declaratory relief and injunctive
relief to prevent its dissolution. The City argued that the District’s action
was time-barred pursuant to the Validity Act, which included a statute of
limitations provision which stated, in pertinent part: “Any action or
proceeding contesting the validity of any action or proceeding heretofore taken
under any law, or under color of any law, for the formation,…of any public
body,…shall be commenced within six months of the effective date of this act;
otherwise each and all of such matters shall be held to be valid in every
respect legal and incontestable.” However, the Court found that the suit there
was not time barred because the causes of action for declaratory and injunctive
relief did not contest the validity of the FORMATION of the action, but rather
resisted the City’s attempt to DISSOLVE the District.
In
making this determination, the Las Tunas Court drew attention to the
similarity between the Validity Act and Code of Civil Procedure section 349.1.
The Court also clarified its reasoning as to ruling in favor of the district as
to the statute of limitations issue, noting that “the District is not
challenging its own validity. Rather, it is the City which is now attacking the
validity of the District by arguing the conditions of formation are not
severable from the rest of the formation resolution and if the formation conditions
are invalid so is the entire formation resolution. It is the challenge by the
City to the validity of the formation of the District which is time barred.
Under the Validating Act, the City had six months to bring an action contesting
the validity of the formation of the District. Having failed to bring such an
action during the period, the City cannot now challenge the District’s status
as a legally organized entity.” (Las Tunas, supra, 38 Cal.App.4th at 1015.)
Plaintiff’s
opposition cites to meeting minute from March 23, 2023 and November 2023 which
Plaintiff represents are confessions of invalidity in the formation of ACLAD.
The Court does not read the minutes the way Plaintiff argues them. In
Defendants’ exhibits, they have attached documentation from 1981, noting
resolution 81-12 had “adopted a certain Plan of Control” on June 9, 1981. This documentation
tends to show that ACLAD had been formed by that time. Even if ACLAD has not
been able to locate the documents from four decades ago, it does not mean that
the statute of limitations set by section 349.1 is tolled until November 2023. If Resolution 81-12 is accepted as proof of the
District’s formation, Plaintiff’s suit would be time-barred regardless of the statements
made in the recent meeting minutes.