Peter Jorgenson et al vs City of Goleta

Case Number

23CV02328

Case Type

Hearing Date / Time

Fri, 12/08/2023 - 10:00

Nature of Proceedings

CMC; Demurrer

Tentative Ruling

For all reasons discussed herein, the demurrer of defendant the City of Goleta is sustained with leave to amend. Plaintiffs shall file and serve their second amended complaint on or before December 18, 2023, in accordance with this ruling. To the extent a second amended complaint is not filed and served by plaintiffs on or before December 18, 2023, defendant shall file and serve its answer to plaintiffs’ first amended complaint on or before December 28, 2023.

Background:

Plaintiffs Peter Jorgensen and Andrea Jorgensen (collectively, plaintiffs) filed their operative first amended complaint (FAC) in this matter on July 26, 2023. As alleged in the FAC:

In 2018, plaintiffs purchased a home located at 5575 Somerset Drive in Goleta, California (the property). The City of Goleta (the City) has owned the land adjacent to the property since 2002. A portion of the land adjacent to the property and owned by the City includes the creek bed for San Jose Creek (the creek). The Santa Barbara County Flood Control District (the District) holds an easement over the portion of the property owned by the City that includes the creek. The City and the District work cooperatively to maintain the creek so that it will not flood adjacent properties or cause erosion of adjacent properties. The flood control work is for the benefit of the land owned by the City and the adjacent private property.

Heavy rains in 2018-2019 caused the creek to erode the bank on City owned property causing significant damage. In early 2019, plaintiffs warned the City about the erosion and the collapse of the bank adjacent to plaintiffs’ property.

Erosion from rains in 2019-2020 and 2020-2021 took a significant portion of the bank adjacent to the property and left a portion of plaintiffs’ fence hanging in mid-air. Through 2019, 2020, and 2021, plaintiffs tried to get the City to take action. Despite dozens of calls and emails, photos of the collapse, and discussions with City staff, the City has taken no action to stop the erosion.

After an investigation, plaintiffs discovered that the City and the District had installed rock revetment along the banks of the creek to armor against erosion for the benefit of City storm drains, adjacent properties, and public utility facilities. Plaintiffs discovered that although the rock revetment armored the banks of the creek upstream and downstream from the property, there was a “hole” in the rock revetment which caused flows from stormwater to jet past the rock revetment upstream and which focused the weight of the flowing water at the bank adjacent to the property, causing excessive erosion.

In 2022, the District added rock revetment to the area of the creek adjacent to the property, filling the hole between the upstream and downstream rock revetment. However, the City failed to take any action to correct the erosion outside of the District’s easement. Therefore, the property continued to erode away.

Rainfall in the 2022-2023 season caused more damage. Since 2018, approximately ten feet of land has eroded away on the bank of the creek, taking land owned by plaintiffs.

The City’s General Plan anticipated erosion of the property. The City has prepared a Project Initiation Document stating that the creek should be stabilized and prepared a “Creek and Watershed Maintenance Plan” which includes erosion control for the property. No action has been taken to begin substantive work on the plan. Plaintiffs requested all public records in connection with the erosion, the City’s responsibility for maintenance of the creek, and any actions the City has taken or plans to take in connection with the problem. The records revealed that the City has received plaintiffs’ requests for help, has discussed the problem internally and with the District, and has created plans and budgets to correct the problem. The City failed and refused to take any action from 2019 through the present.

In the FAC, plaintiffs allege four causes of action against the City: (1) private continuing nuisance; (2) trespass; (3) taking of property without compensation; and (4) declaratory relief.

The City has filed a special and general demurrer to the second cause of action for trespass alleged in the FAC on the grounds that the cause of action is uncertain and that plaintiffs have failed to allege a statutory duty or other basis for the claim. Plaintiffs oppose the demurrer.

Analysis:

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]’ [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane); accord, Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane, supra, 19 Cal.4th at p. 38.)

A party may object by special demurrer on the grounds that the pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “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 (Khoury).) In addition, a special demurrer on the grounds of uncertainty must “point[] out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

In the second cause of action for trespass, plaintiffs allege that the City’s decision to install the rock revetment and to maintain the creek were discretionary. Plaintiffs further and effectively allege that the City’s installation of the revetment and maintenance of the creek were performed in a negligent manner and not in accordance with industry standards because the installation of the rock revetment and the failure to properly maintain the creek in the vicinity of the property has, in combination, resulted in erosion of the property making portions of it unusable and unstable.

Though the City contends that the FAC is uncertain, the City does not specifically point out where the FAC is ambiguous, uncertain or unintelligible. Therefore, the special demurrer of the City is insufficient.

In addition, plaintiffs allege specific facts regarding the rock revetment and the City’s purported actions in maintaining the creek that plaintiffs allege caused a trespass onto the property. “Even as against a special demurrer a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) Here, as plaintiffs have identified specific factual allegations to the second cause of action for trespass alleged in the FAC, plaintiffs have set forth the essential facts in a manner sufficient to permit the City to determine the issues and the nature of the claim directed against it, and to reasonably respond to the FAC. (See Khoury, supra, 14 Cal.App.4th at p. 616.) For this and all reasons stated above, the court will overrule the City’s special demurrer to the second cause of action for trespass alleged in the FAC.

The City generally demurs to the second cause of action alleged in the FAC on the grounds that plaintiffs have failed to allege a mandatory statutory duty. Because plaintiffs have failed to allege facts sufficient to show a mandatory duty to act by the City with regard to the creek, the City argues, the FAC fails to state facts sufficient to state a cause of action against the City for trespass.

Plaintiffs contend that the City’s “mandatory duty” argument does not apply here because plaintiffs have not alleged that a statute required the work be done by the City and that the City voluntarily undertook modifications to the creek by exercising its discretionary authority. Because the City exercised its discretionary authority in a negligent manner, plaintiffs argue, the City’s conduct is not subject to statutory immunity.

Under Government Code section 810 et seq. (the Government Claims Act or Act), “public entity liability is statutory in nature.” (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809.) The Act provides that “[e]xcept as otherwise provided by statute [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).) In addition, the liability of a public entity “is subject to any immunity of the public entity provided by statute, … and is subject to any defenses that would be available to the public entity if it were a private person.” (Gov. Code, § 815, subd. (b).) Under the Act, a public entity includes a city. (Gov. Code, § 811.2.)

“The Act governs … all noncontractual bases of compensable damage or injury that might be actionable between private persons [citation]. It establishes the basic rules that public entities are immune from liability except as provided by statute [citations], that public employees are liable for their torts except as otherwise provided by statute [citation], that public entities are vicariously liable for the torts of their employees [citation], and that public entities are immune where their employees are immune, except as otherwise provided by statute [citation].” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980, original italics (Caldwell).)

There are no facts alleged in the FAC that demonstrate the statutory basis upon which plaintiffs seek to hold the City liable in connection with the maintenance of the creek adjacent to the property or the installation of the revetment. (See, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 652 [under the Act, “a tort action cannot be maintained against a government entity unless the claim is premised on a statute providing for that liability”]; Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776, 798 [“public entity tort liability is exclusively statutory”]; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 864 [failure to plead existence of a mandatory duty].) In addition, plaintiffs appear to concede that they do not allege a theory of liability based on any breach by the City or its employees of a mandatory duty established by statute. (See Opp. at p. 3, ll. 17-18 [“the entire ‘mandatory duty’ argument … is not applicable to the facts of this case”].)

In addition, there are no facts alleged that demonstrate an act or omission by an employee of the City that “would have given rise to a cause of action against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a); see also M.P. v. City of Sacramento (2009) 177 Cal.App.4th 121, 128-129 [discussing public entity’s liability for the torts of its employees committed within the scope of the employment].)
 

Though plaintiffs do not allege any claims against an employee of the City and do not expressly allege that the City is vicariously liable for an act or omission of its employee, in the FAC and their opposition to the City’s demurrer, plaintiffs cite McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 (McCorkle) to support their contention that the City is liable for purportedly negligent conduct in maintaining the creek and installing the rock revetment. McCorkle involved a tort claim against a police officer who undertook an investigation of a motor vehicle collision involving the plaintiff in that case. During the police officer’s investigation, plaintiff followed the officer into the intersection where the collision had occurred and was struck by another vehicle. (McCorkle, supra, 70 Cal.2d at pp. 259-260.) The evidence referenced by the court included that the officer had instructed the plaintiff to follow the officer into the intersection, that the officer did not tell plaintiff to return to the corner of the intersection after plaintiff showed the officer skid marks from the collision, and that the officer did not use flares and did not interrupt the sequence of traffic signals while the officer and plaintiff were in the intersection. (Ibid.)

The court in McCorkle found that Government Code section 820.2 “did not clothe [the officer] with immunity from the consequences of his negligence in conducting [the investigation].” (McCorkle, supra, 70 Cal.2d at p. 261.) Because plaintiff’s injury resulted from the officer’s negligence after the officer had exercised his discretion to undertake the investigation, statutory immunity did not apply under the facts of that case. (Id. at p. 262.)

Under the Act, a public employee is liable for any injury caused that employee’s act or omission “to the same extent as a private person,” except as provided by statute. (Gov. Code, § 820, subd. (a).) However, and subject to exception, “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (Gov. Code, § 820.2.) The discretionary immunity granted to public employees under Government Code section 820.2 is applicable to public entities under Government Code section 815.2, subdivision (b).

For reasons further discussed above, to the extent a public employee makes a discretionary decision to undertake an act but is negligent in performing the act, statutory immunity does not apply. (See also Barner v. Leeds (2000) 24 Cal.4th 676, 686 [once a public employee exercises discretion to provide professional services, that employee “is not immune for the negligent performance of professional duties that do not amount to policy or planning decisions”].)

Based on the arguments advanced by plaintiffs, it is the court’s understanding that plaintiffs intend to pursue a theory of liability based on negligence in performing an act after the City exercised its discretion to undertake the act. However, in the FAC, plaintiffs allege no facts, expressly or by inference, that demonstrate a discretionary decision made by a City employee with respect to the revetment or maintenance of the creek, or that demonstrate negligence following the City’s exercise of discretion.

For example, throughout the FAC, plaintiffs allege that the City has taken no action with respect to the creek maintenance other than drawing up plans. (See FAC, ¶¶ 2, 12, 13, 15.) Further, with respect to the “hole” in the revetment, it can be inferred from the express allegations of the FAC that the revetment was installed in part by the District, and that the District and not the City made repairs to the “hole” resulting from its installation of the revetment. (See, e.g., FAC ¶¶ 3, 4.) There are no facts demonstrating that negligence by the City following an exercise of discretion resulted in the “hole” alleged in the FAC.

In addition, it can be inferred from the express allegations of the FAC that the acts or omissions by the City that plaintiffs allege were undertaken in a negligent manner consist of discretionary planning decisions with respect to the maintenance of the creek, and not ministerial or operational acts implementing those decisions. (See, e.g., FAC, ¶ 13 [describing City plans or projects relating to erosion control for the property].) To the extent the FAC alleges conduct that constitutes the making of basic policy or planning decisions by the City with respect to the maintenance of the creek or erosion control, and not any ministerial or operational implementation of the City’s policy or planning decisions, statutory immunity would apply. (See Johnson v. State (1968) 69 Cal.2d 782, 796-797.)

Moreover, Locklin v. City of Lafayette (1994) 7 Cal.4th 327, is inapplicable to the facts alleged in the FAC. That case involved liability of a public entity for inverse condemnation resulting from an increased volume of surface water into a natural watercourse caused by public improvements on publicly owned land and which affected downstream property. (See Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 337-340.)

For all reasons discussed above, based on the allegations of the FAC including facts that may be inferred from those expressly alleged, it appears at this stage of the proceedings that the cause of action for trespass alleged in the FAC is premised upon purported negligence with respect to the City’s implementation of policy or planning functions regarding the maintenance of the creek or installment of the revetment. Accordingly, statutory immunity would apply to the claim alleged in the second cause of action. (See Caldwell, supra, 10 Cal.4th at pp. 981-984.) Therefore, the court will sustain the demurrer to the second cause of action alleged in the FAC.

As the FAC does not show on its face that it is incapable of amendment, the court will grant plaintiffs leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.) Plaintiffs may amend the second cause of action alleged in the FAC as authorized herein. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)