Judge: Stephen P. Pfahler, Case: 19STCV01865, Date: 2023-09-11 Tentative Ruling

Case Number: 19STCV01865    Hearing Date: October 12, 2023    Dept: F49

Dept. F-49

Date: 10-12-23 c/f 9-26-23

Case # 19STCV01865

Trial Date: 10-30-23 (Liability Phase) c/f 1-30-23 c/f 5-23-22

SUMMARY ADJUDICATION/SUMMARY ADJUDICATION

MOVING PARTY: Defendant/Cross-Complainant, City of Santa Clarita

RESPONDING PARTY: Plaintiff, Manuel Santana, et al.

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication on the First Amended Complaint of Manuel Santana

SUMMARY OF ACTION

On an unspecified date in 1989, Plaintiff Manuel Santana purchased certain property at 24522 Spruce Street in Santa Clarita. The property is identified as “The Historical Jailhouse,” a 1906 constructed facility representing the first jailhouse for the Santa Clarita Valley. Following the purchase, Santana created The Manuel Santana Family Trust of 1992.

According to Plaintiffs, the City of Santa Clarita recognized the “historical significance” of the structure by the structure on December 6, 2007, thereby rendering it immune from demolition or alteration. Prior, concurrent or following the historical designation, in 2007, the City of Santa Clarita also unveiled its plan to construct a new library “directly adjacent” to “The Historical Jailhouse.” The City purchased all surrounding properties, and offered Plaintiffs $300,000 for the property as well. Plaintiffs rejected the offer.

Project planning and construction began in 2009. A third party identified as Seward was designated as the entity responsible “to oversee protection of the site.” According to Plaintiffs, the parties responsible for the development of the site failed to adhere to the “Seward Plan,” thereby allowing “hazardous substances and water moisture to emanate inside the building.”

Plaintiffs allege that the parties agreed to a five-year statute of limitations for the filing of a claim from March 22, 2013. Notwithstanding the 2013, Plaintiffs allege the timely filing of their administrative claim on March 19, 2019 [First Amend. Compl., ¶¶ 33-34]. The claim was rejected by the City of Santa Clarita.

On January 18, 2019 and May 29, 2019, Plaintiffs filed a complaint and first amended complaint for Negligence, Gross Negligence, Strict Liability, Absolute Liability, Trespass, Nuisance, Unjust Enrichment, and Battery. On August 29, 2019, the action was transferred to Department 49 from Department 4A. On September 11, 2019, the court granted the ex parte motion dismissing the claims for attorney fees and punitive damages against the City of Santa Clarita, and extended the time for the filing of a responsive pleading.

On October 15, 2019, City of Santa Clarita answered and filed its cross-complaint for Breach of Contract, Contractual Indemnity, Equitable Indemnity, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Apportionment of Fault (Declaratory Relief), Equitable Contribution, and Indemnity Pursuant to Code of Civil Procedure section 1021.6. City of Santa Clarita named R.C. Becker and Son, Inc. Tobo Construction, Inc., Mt. Hawley Insurance Co., and Landmark American Ins. Co. The insurance defendants are only named in the third, fourth, sixth, seventh and eight causes of action for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Apportionment of Fault (Declaratory Relief), Equitable Contribution, and Indemnity Pursuant to Code of Civil Procedure section 1021.6.

City of Santa Clarita specifically alleges that defendant contractors R.C. Becker and Son, Inc. and Tobo Construction, Inc. entered into “Redevelopment Agency Agreement for Capital Improvement Project” agreements. Article V and VIII requires cross-defendants indemnify the City of Santa Clarita against any all claims arising from the project, and require the procurement of an insurance policy designating City of Santa Clarita as an additional insured. On June 1, 2010, Cross-Defendant Ironshore Insurance Co. issued a Certificate of Liability Insurance for R.C. Becker. On December 24, 2010, Cross-Defendant Mt. Hawley Ins. Co. issued a Certificate of Liability Insurance for its insured, Tobo Construction, Inc. On June 17, 2011, Cross-Defendant Landmark Ins. Co. issued a Certificate of Liability Insurance for Tobo Construction, Inc. Defendant Valley Forge Insurance Company is an alleged insurer of R.C. Becker.

On March 12, 2019, City of Santa Clarita tendered its indemnity claim and/or defenses to the cross-defendant contractors. On August 28, 2019, Mt. Hawley Ins. Co. denied the claim. On December 19, 2019, Valley Forge denied the claim. R.C. Becker and Son, Inc. provided no response.

Landmark American Ins. Co. answered the cross-complaint on December 3, 2019.

On July 2, 2020, City of Santa Clarita filed its first amended cross-complaint Breach of Contract, Contractual Indemnity, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Equitable Indemnity, Apportionment of Fault (Declaratory Relief), Equitable Contribution, and Indemnity Pursuant to Code of Civil Procedure section 1021.6.

On January 13, 2021, R.C. Becker and Son, Inc. answered the first amended cross-complaint from City of Santa Clarita, and filed a cross-complaint for Implied Indemnity, Comparative Indemnity, Contribution, and Declaratory Relief on January 15, 2021. On February 3, 2021, the court overruled the demurrer of Landmark American Insurance Company to the Cross-Complaint of City of Santa Clarita. On March 5, 2021, Tobo Construction, Inc. answered the City of Santa Clarita cross-complaint, and filed a cross-complaint for Express Indemnity, Equitable Indemnity, Contribution, and Declaratory Relief.

On October 12, 2022, Department 51 granted the unopposed motion of R.C. Becker and Son, Inc. on the first amended complaint of Manuel Santana. On September 11 and 18, 2023, the court denied the motions for summary adjudication brought by Becker and Tobo on the City of Santa Clarita first amended cross-complaint.

RULING: Granted.

Request for Judicial Notice: Granted.

The court takes judicial notice of the filed pleadings, but cannot take judicial notice of the truth of any matters asserted within the requested items. The court also takes judicial notice of the existence of Conformance Review for its existence, but again declines to consider the truth of any factual conclusions.

Evidentiary Objections: Overruled (including not relied upon under Code of Civil Procedure section 437c, subd. (q) on numbers 2-13)

Defendant City of Santa Clarita (Santa Clarita) moves for summary judgment/adjudication on the first amended complaint of Manuel Santa for Negligence, Gross Negligence, Strict Liability, Absolute Liability, Trespass, Nuisance, Unjust Enrichment, and Battery. Santa Clarita presents multiple grounds, including: lack of a statutory basis, lack of a valid cause of action, lack of facts in support of the pled cause of action, and statute of limitations. Santana in opposition contends a statutory basis exists for certain claims, certain claims are properly pled independent causes of action, and no causes of action are barred by the statute of limitations. Plaintiff alternatively moves for leave to amend. City of Santa Clarita in reply opens with Plaintiff’s concession to the lack of any statutorily pled basis for relief in the operative complaint, and lack of the ability to bring claims for gross negligence, strict liability, absolute liability, and battery against the City of Santa Clarita. City of Santa Clarita challenges any request to treat the motion as one for judgment on the pleadings in that Plaintiff should be denied leave to add new causes of action one month before trial. The settlement agreement establishes the parameters of the subject claim. City of Santa Clarita next emphasizes the statute of limitations bar. City of Santa Clarita finally characterizes the nuisance claim as one of a permanent nature, rather than continuous, thereby barring this claim on the statute of limitations.

R.C. Becker in an amicus reply contends Plaintiff remains precluded from asserting any personal injury claims as part of the original settlement agreement. Becker notes the prior grant of the unopposed motion for summary adjudication on October 12, 2022 (Department 51).

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)”  (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

The court addresses the background leading to the subject complaint. On November 27, 2012, plaintiff Manuel Santana filed a complaint for inverse condemnation, violation of 42 U.S.C. § 1983, negligence, trespass to chattels, and civil conspiracy (BC496346). [Req. Jud. Not., Ex. 4.] City of Santa Clarita, R.C. Becker & Son, Inc., The Redevelopment Agency of the City of Santa Clarita, City Council of Santa Clarita, and Tobo Construction, Inc. were the named parties to the complaint. Becker was only a named defendant in the negligence, trespass to chattels and civil conspiracy causes of action. The government entities were only named in the inverse condemnation, violation of 42 U.S.C. § 1983, and civil conspiracy causes of action. The case settled [Declaration of Gina Giovacchini, Ex. 3], and the court dismissed the action subject to enforcement of the settlement agreement under Code of Civil Procedure section 664.6 on November 12, 2014. Plaintiff filed a Request for Dismissal on the entire complaint with prejudice on March 5, 2015.

On January 30, 2014, Plaintiff executed a settlement agreement with all Defendants. Section 1.1 provides for a complete “release and forever discharge of Defendants from any and all past, present, or future claims, demands, obligations, actions, causes of actions …rights, damages, costs, losses of services, expenses and compensation of every nature whatsoever based on tort, contract or other theory of recovery, which Plaintiffs now have or which may hereinafter accrue or otherwise be acquired on account of, or may in any way grow out of, or which are the subject of the Complaint (and all related pleadings), including without limitation, any and all known or unknown claims … that may resulted or may result from the alleged actor omissions of the Defendant. Notwithstanding the foregoing terms, the releases in this Agreement are subject to the agreement between plaintiffs and the City of Santa Clarita referenced in Section 2.0, below.”

Section 2.0 provides that “Plaintiffs and the CITY OF SANTA CLARITA shall continue to negotiate additional matters which, if eventually agreed to, will be the subject of a separate writing and will be a condition (sic) Plaintiffs’ release of the City Defendants.” [Giovacchini Decl., Ex. 3: Deposition Transcript, Ex. 45.]

Plaintiffs and the government entity defendants executed a second agreement on October 14, and November 5, 2014. [Id., Ex. 46.] Section 1b of the separate agreement provides Plaintiffs a five year window from March 22, 2013, to bring any new claims otherwise barred by the prior settlement agreement arising from the “performance of all grading and landscaping work in regard to the Library project based upon proof that (a) the grading and landscaping work for the Library was not performed in compliance with the Seward Grading Plan, and (b) the Jailhouse property suffers a loss or damage as a result.”

The operative complaint arises from the failure to conform to the Seward engineering plan and subsequent water damage. The claims against City of Santa Clarita arise from grading and drainage issues allegedly due to the failure to follow the agreed upon engineering plan.

Government Statutory Basis

Again, the operative complaint alleges claims for Negligence, Gross Negligence, Strict Liability, Absolute Liability, Trespass, Nuisance, Unjust Enrichment, and Battery. City of Santa Clarita challenges the lack of a statutory basis for the Negligence, Strict Liability, Trespass, Nuisance, Unjust Enrichment, and Battery. The allegations consist of a terse statement identifying the claims as “common law” rather than statutorily supported. Santana maintains statutory support exists through the tortious acts of Santa Clarita independent contractors performing work on behalf of the city.

“Except as otherwise provided by statute: (a) 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, subd. (a).) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) The California Supreme Court allows for a finding of vicarious liability based on claims arising from negligence. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868–869.) A claim against a government entity must rely on a direct, statutory claim of liability. (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 253-256.)

The first amended complaint in fact lacks a single identifying statute. Santana maintains City of Santa Clarita remains liable as a party responsible for directing the construction and failing to adhere to the construction specifications. Santana relies on a general argument of liability via the work of the contractors Tobo and Becker. “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.” (Gov. Code, § 815.4.)

The argument while providing the basis for liability insufficiently addresses the underlying lack of statutory foundation for the causes of action. “We conclude that a direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained.” (de Villers v. County of San Diego, supra, 156 Cal.App.4th at pp. 255-256.)

Notwithstanding, Santana alternatively seeks to establish a duty of care via a dangerous condition on public property claim. “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.) “‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)

Santana maintains allegations in the operative complaint allege the release of hazardous and toxic substances thereby causing damage. Santana also adds in an argument for mandatory duty. “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Gov. Code, § 815.6.) Santana tethers the claim to the designation of the site as a historical resource, thereby imposing a duty of care. Plaintiff cites to Public Resources for definitions, as well as a section identified as Public Resources Code section 15064.5, but no such section appears to exist in the Public Resources Code. [Opposition, 7:22-23.] As for the reliance of a definition of a public resource, the court accepts the definition, but finds no imposition of a mandatory duty to protect the resource simply based on designation. (Pub. Resources Code, § 21084.1.)

The lack of any underlying mandatory duty, withput any specific mandate for a particular kind of protection, in and of itself undercuts any argument for a statutorily based claim based on a form of breach of a mandatory duty. (de Villers v. County of San Diego, supra, 156 Cal.App.4th at pp. 260-263.) The court therefore finds no alternative basis of recovery without statutory foundation on this basis as well.

On nuisance, Santana acknowledges the lack of statutory support, but cites to the case law regarding the finding of Civil Code section 3479 as supporting a claim for public nuisance against a government entity. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 933.) The California Supreme Court indisputably allows a claim of nuisance notwithstanding the lack of a statutory designation. Santana also offers argument under contract liability, but it’s not clear which, if any, causes of action arise from contract liability. (Gov. Code, § 814.) While the court finds no statutory basis of liability for all pled causes of action against City of Santa Clarita, the court finds the singular exception for nuisance harmonizes with the authority cited against the other non-statutorily supported claims.

The court therefore finds a valid basis for a grant of summary adjudication on all other non-statutorily pled causes of action, including Negligence, Gross Negligence, Strict Liability, Absolute Liability, Trespass, Unjust Enrichment, and Battery, due to the lack of a statutory basis for relief. Plaintiff perhaps foresaw this ruling, and anticipatorily requested leave to amend. The court considers the standard for conversion of the motion for summary judgment into one for judgment on the pleadings.

“‘[I]if summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend the complaint before entry of judgment.’ ... Denial of leave to amend a complaint is an abuse of discretion unless the complaint shows on its face that it is incapable of amendment to state a viable cause of action.” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1384.)

The cannot reject denial on the basis of prejudice, even with the first phase of the trial set for October 30, 2023. (Ibid.) The court therefore considers the individual arguments as to the causes of action for purposes of determining legal viability, if leave to amend were granted.

Gross Negligence

Santa Clarita challenges the existence of an independent cause of action for gross negligence. The opposition lacks any apparent argument against this portion of the motion. The court finds no statutorily independent basis for the claim, as well. (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1014-1015.) The court therefore finds additional support for the motion for summary adjudication, and no support for the alternative motion for judgment on the pleadings with leave to amend.

Strict Liability and Absolute Liability

Santa Clarita challenges “absolute liability” as a non-existent cause of action, and lack of facts supporting a claim for strict liability. Santana seeks to allege a claim for strict liability based on alleged ultrahazardous activity thereby causing property damage. Neither party addresses the standard of ultrahazardous activity. The court therefore cannot make any determination of whether the construction activities constituted an ultrahazardous activity as a matter of law. (Edwards v. Post Transportation Co. (1991) 228 Cal.App.3d 980, 983.) Santana otherwise again offers no opposition to this subject portion of the motion. Given the lack of any allegations of the actual undertaking of ultrahazardous activities by Santa Clarita, and no articulated statutory basis for the subject cause of action, the motion for summary adjudication again finds support, and no basis for relief under the alternative motion for judgment on the pleadings without prejudice/with leave to amend.

Unjust Enrichment

Santa Clarita challenges the existence of an independent cause of action for unjust enrichment. The opposition lacks any apparent argument against this portion of the motion. “Unjust enrichment is not a cause of action, just a restitution claim.” (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1307.) The motion for summary adjudication remains supported. The alternative motion for judgment on the pleadings will be denied with prejudice/without leave to amend.

Battery

Santa Clarita maintains the cause of action “has already been dismissed” in that the prior settlement agreement barred any further personal injury causes of action. Santa Clarita also specifically relies on the lack of any evidence of an actual battery. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) The unopposed motion for summary adjudication remains granted, with no alternative relief under the motion for judgment on the pleadings.

Negligence, Trespass

City of Santa Clarita provides no substantive argument on the merits of the negligence and trespass causes of action for purposes of determining whether Plaintiff can articulate a claim if a statutory duty exists. Nevertheless, in considering the arguments regarding the lack of any ability to allege a claim not arising from direct liability or supervision imposed by an existing duty of care, the court affirms its findings for summary adjudication with no alternative basis of relief in the form of the motion for judgment on the pleading with leave to amend.

Statute of Limitations—Nuisance

Given the lack of challenge to the Gross Negligence, Strict Liability, Absolute Liability, Unjust Enrichment, and Battery, the court assumes based on the substance of the opposition that Santana only challenges the motion as to the Negligence, Trespass, and Nuisance causes of action. With the finding of no statutory basis for the negligence and trespass causes of action, and no basis for conversion of the motion into a motion for judgment on the pleadings with leave to amend, the court only considers the summary adjudication as to the nuisance claim notwithstanding the acknowledgment on the trespass claim in the reply. The court also considers the merits of the nuisance claim due to the established exception to the statutory pleading requirement.

Santa Clarita contends the complaint is barred by the three year statute of limitations in that any and all claims accrue no later than three years from the date of dismissal. Nothing in the five year window of the settlement agreement in any way extended the statute of limitations. Santana in opposition challenge the lack of any showing of a statute of limitations bar. Santana further supports the opposition with a claim of continuing accrual caused by the recurrent harm of the nuisance and trespass, due to regular water incursion.

Santa Clarita depends on deposition testimony whereby Santana testified to not seeing new or additional damage from water intrusion following the settlement. Santa Clarita further offers an argument that Santana cannot present valid evidence of damage. A defendant may satisfy its burden on summary adjudication by pointing to an absence of evidence supporting plaintiff’s claims. (Union Bank (1995) 31 Cal.App.4th 573, 590; see Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th 1577, 1584; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 81-83.) A defendant must do this by providing evidence that a plaintiff does not possess and cannot reasonably obtain needed evidence, rather than simply by arguing that a plaintiff has no evidence. (Aguilar, supra, 25 Cal.4th at pp. 854-855.) The court finds the deposition testimony of Santana fails to definitively establish a lack of facts establishing a basis for continuing nuisance. (Giovacchini Dec., Ex. 3: Deposition of Santana; Declaration of Brandon Gilligan, Ex. 1: Deposition of Santana; Ex. 2: Declaration of Santana.)

Nevertheless, Santa Clarita in reply characterizes the nuisance claim as permanent rather than continuing, due to the reliance on the now completed construction work. “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. (Citation.) Where, however, a nuisance may be discontinued at any time, it is considered continuing in character. (Citation.)” (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1489; Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 [“[I]f a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated”].) The testimony establishes that all improvements installed for the drainage system constitutes a part of the structure itself rather than something readily modified or abatable by operative decision. [Declaration of Brandon Gilligan, Ex. 1: Deposition of Santana; Ex. 3: Declaration of Steven Viani.] (Bookout v. State of California ex rel. Dept. of Transportation, supra, 186 Cal.App.4th at p. 1489.)

The court finds the actual improvements constituting the drainage system created the means for water intrusion, thereby forming the basis for a permanent nuisance, rather than a continuous nuisance. (Ibid.) Recurrent weather patterns bringing rain in no way constitutes operationally ordered continuous conduct, such as scheduling flights or spraying pesticides. The nuisance exists as a result of the allegedly flawed construction execution of the grading plan. The nuisance cause of action is therefore barred under the three year statute of limitations with no extension as a result of the five year window for leave to bring new claims as to the grading plan. (Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1408.)

The court also finds that even if the trespass and negligence causes of action were not barred by the lack of a statutory basis, the negligence and trespass causes of action are also barred by the three year statute of limitations. Consistent with the authority regarding leave to amend on a motion for judgment on the pleadings, the court finds the statute of limitations bar also precludes leave to amend for any and all of the causes of action.

In summary, the motion for summary judgment is GRANTED. The motions for summary adjudication on the lack of statutory liability claims and statute of limitations are MOOT. The motion for judgment on the pleadings with leave to amend is DENIED.

Jury trial on “liability” remains set for October 30, 2023, with the remaining defendants.

Santa Clarita to give notice to all parties.