Judge: William A. Crowfoot, Case: 20STCV11902, Date: 2022-12-08 Tentative Ruling

Case Number: 20STCV11902    Hearing Date: December 8, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 24, 2020, plaintiffs Kenneth Fountain and April Fountain (collectively, “Plaintiffs”) filed this action against defendant City of Compton (“Defendant”) asserting causes of action for (1) negligence and (2) trespass.  Plaintiffs allege that on or about August 29, 2019, they left their house at 6:30 a.m. and when they returned around 8:00 p.m., they were greeted with a foul stench emanating from their basement.  (Compl., ¶¶ 8-9.)  Plaintiffs discovered that raw sewage had spilled into their basement because due to the condition of Defendant’s pipes, the sewage had built up and overflowed the manholes and intruded into the basement of their property.  (Compl., ¶ 12.) 

On November 14, 2022, Defendant filed this motion to strike the second cause of action for trespass from Plaintiffs’ Complaint.  On November 23, 2022, Plaintiffs filed an opposition brief.  On December 1, 2022, Defendant filed a reply brief.  Trial is currently scheduled for January 18, 2023. 

The Court preliminarily notes that this “motion to strike” should have been brought as a motion for judgment on the pleadings and will be treated as one.  (Pierson v. Sharp Memorial Hosp., Inc. (1989) 216 Cal.App.3d 340, 342-343.) 

II.          LEGAL STANDARD

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.  [Citations.]”  (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.)  The court must assume the truth of all properly pleaded material facts and allegations, but not contentions or conclusions of fact or law.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738.) 

III.        DISCUSSION

Defendant argues that Plaintiffs’ second cause of action for trespass fails because there is no statute authorizing a private cause of action for common trespass against a public entity.  “[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ . . . and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.”  (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.) 

In opposition, Plaintiffs contend that this motion to strike is untimely and should be denied because it was filed more than 30 days after service of the complaint.  This is not accurate.  This Court has the authority to hear this “motion to strike” as a motion for judgment on the pleadings.  (Pierson v. Sharp Memorial Hosp., Inc. (1989) 216 Cal.App.3d 340, 342-343.) 

Plaintiffs also argue that this motion should be denied on its merits because in Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 357, the court found that the defendant city committed an act of trespass (but not necessarily a taking under eminent domain law) when it enlarged a ditch on the plaintiff’s property without consent or permission.  (Id. at pp. 363-364.) 

In its reply brief, Defendant argues that Frustuck and Cobbs are inapposite because the plaintiffs in those actions sued the public entities for inverse condemnation.  More importantly, Defendant points out that Plaintiffs have not provided a statute authorizing a claim for trespass against a public entity. 

Accordingly, Plaintiffs’ second cause of action for trespass fails to state a claim against Defendant.  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 [“To state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.”]) 

IV.         CONCLUSION

Defendant’s motion to strike is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.