Peter Jorgensen et al vs City of Goleta

Case Number

23CV02328

Case Type

Hearing Date / Time

Fri, 05/31/2024 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

For all reasons discussed herein, the demurrer of defendant the City of Goleta to the second cause of action alleged in plaintiff’s second amended complaint is sustained without leave to amend. Defendant shall file and serve its answer to plaintiffs’ second amended complaint on or before June 14, 2024.

Background:

On February 16, 2024, with leave of court and pursuant to a subsequent stipulation of the parties, plaintiffs Peter Jorgensen and Andrea Jorgensen (collectively, plaintiffs) filed their operative second amended complaint (the SAC) in this matter alleging four causes of action against defendant the City of Goleta (the City): (1) private continuing nuisance; (2) trespass; (3) taking of property without compensation; and (4) declaratory relief. As alleged in the SAC:

Plaintiffs own a home located at 5575 Somerset Drive in Goleta, California (the property). The City of Goleta (the City) owns a portion of the land adjacent to the property which includes the creek bed for the San Jose Creek (the Creek). The Santa Barbara County Flood Control District (the District) holds an easement over a portion of the property owned by the City which includes the Creek. The City owns the banks of the Creek.

In early 2019, after heavy rains, plaintiffs warned the City for the first time about ongoing erosion and the collapse of the bank of the Creek adjacent to the property. Erosion from rains through 2021 took a significant portion of the Creek bank adjacent to the property and left a portion of plaintiffs’ fence hanging in mid-air. After an investigation, plaintiffs determined that the City had installed rock revetment or riprap (the revetment) along the banks of the Creek. There was a hole in the revetment at the location of the property which caused flowing stormwater to aim at the bank adjacent to the property, causing excessive erosion. In 2019, 2020 and 2021, plaintiffs tried to get the City and its representatives to act but the City refused to take any corrective action to stop the on-going erosion.

In 2022, the District added rock revetment to the Creek area adjacent to the property. The rock revetment added by the City in 2022 filled the hole in the revetment. However, the City failed to take any action to correct the erosion outside of the District’s easement. As a result, the property continued to erode away. Rainfall in 2022 through 2023 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 the erosion of the bed of the Creek which led to the erosion of the property. The City prepared a Project Initiation Document stating that the Creek should be stabilized. The City also prepared a “Creek and Watershed Maintenance Plan” which includes erosion control for the property but no action has been taken to begin substantive work on that plan. Plaintiffs requested all public records regarding the erosion, the City’s responsibility for maintenance of the Creek, and any action the City has taken or plans to take in connection with the problem. These documents reveal 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.

The City has filed a demurrer to the second cause of action for trespass alleged in the SAC on the grounds that the cause of action is uncertain and that plaintiffs have failed to state a cause of action. Plaintiffs oppose the demurrer.

Analysis:

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The complaint subject to demurrer is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “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 Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

The City contends that plaintiffs have failed to allege facts giving rise to any mandatory statutory duty owed by the City. 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 SAC fails to state facts sufficient to state a second cause of action against the City for trespass.

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; see also Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.) Under the Act, “[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).) The liability of a public entity under the Act “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).)

In their opposition to the demurrer of the City, plaintiffs assert that Water Code section 8000 et seq., specifically section 8050, sets out duties and procedures for financing flood control facilities and for stormwater projects. Plaintiffs further assert that the City prepared the General Plan in connection with these Water Code provisions. Because the General Plan includes policies for stormwater projects and erosion control measures specific to the portion of the Creek adjacent to the property and because the City’s actions under its General Plan and adopted in connection with the Water Code were negligent with respect to the installation of the revetment which caused the erosion of the Creek at the property, plaintiffs argue, the SAC includes facts sufficient to state a cause of action for trespass.

“Where a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute.” (Green v. Grimes-Stassforth Stationery Co. (1940) 39 Cal.App.2d 52, 56.) Though in the SAC, plaintiffs generally refer to the provisions of Water Code section 8000 et seq., plaintiffs fail to plead the specific provisions of the Water Code which apply to the City or which impose upon the City any statutory duties or liability with respect to the revetment or the Creek. (See In re Groundwater Cases (2007) 154 Cal.App.4th 659, 689 (Groundwater Cases) [a plaintiff seeking to impose liability under the Act “must specifically identify the statute or regulation alleged to create a mandatory duty”].) Because plaintiffs rely exclusively on the provisions of the Water Code to impose liability on the City, plaintiffs’ failure to specifically plead the relevant provisions of the Water Code that give rise to a mandatory duty owed by the City constitutes a sufficient ground upon which the Court may sustain the demurrer.

Moreover, under Water Code section 8050, cited by plaintiffs in their opposition to the demurrer, the council of every city “in or for which any works are constructed for the purposes specified in this chapter, and for which indebtedness has been incurred under the provisions of [Water Code section 8000 et seq.] may do any of the following: [¶] [m]ake all needed rules and regulations for acquisition, construction, and completion of the works[,] [¶] [a]ppoint all necessary agents, superintendents, and engineers to supervise and construct the works[,] [and] [p]rotect and preserve the rights and interests of the city in respect to the works.” (Wat. Code, § 8050, subds. (a)-(c), italics added.) Assuming without deciding for present purposes that the SAC alleges facts sufficient to show that the City’s General Plan was enacted, or that the City installed the revetment, pursuant to Water Code section 8050 (and the Court presently makes no findings in this regard), the provision cited in the opposition does not include any specific statutory mandates or obligations imposed upon the City to create the General Plan or to implement or correct erosion control measures alleged in the SAC, including the installation of the revetment. (Groundwater Cases, supra, 154 Cal.App.4th at p. 689 [statute at issue must not merely authorize or permit action but must create and impose a mandatory duty phrased in explicit language].) Instead, Water Code section 8050 permits or authorizes the City to undertake any of the acts described in that section. Therefore, the allegations of the SAC do not allege facts showing a mandatory statutory duty under the Water Code as plaintiffs contend.

For all reasons discussed above, plaintiffs have failed to allege facts, with requisite specificity, sufficient to give rise to a mandatory statutory duty or liability imposed upon the City in connection with the Creek or the revetment. Therefore, the court will sustain the demurrer to the second cause of action for trespass alleged in the SAC.

It is plaintiffs’ burden to show a reasonable possibility that the defects discussed herein can be cured by amendment to the SAC. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiffs do not request leave to amend and do not offer any reasoned argument demonstrating in what manner the SAC may be amended to cure the deficiencies discussed herein. Further, in in its Minute Order dated December 8, 2023, the Court sustained the City’s demurrer to the same second cause of action for trespass alleged in the first amended complaint for the same reasons further discussed herein. Though the Court granted plaintiffs leave to amend to allege facts sufficient to demonstrate a mandatory statutory duty imposed on the City with respect to the second cause of action for trespass, plaintiffs have, for all reasons discussed above, failed to do so. For this reason, it appears at this stage of the proceedings that the second cause of action for trespass cannot be cured by an amendment to the SAC. Therefore, the Court will sustain the demurrer without leave to amend.