Sheba Lux vs Montecito Water District

Case Number

23CV02417

Case Type

Hearing Date / Time

Fri, 03/01/2024 - 10:00

Nature of Proceedings

CMC; OSC: Sanctions; Demurrer and Motion to Strike

Tentative Ruling

1. For all reasons discussed herein, defendant Montecito Water District’s demurrer to plaintiff’s first amended complaint is granted as follows:

            a. The demurrer to the first, third, fourth, fifth, sixth, seventh, and eighth causes of action is sustained with leave to amend.

            b. Plaintiff shall file and serve her second amended complaint no later than March 22, 2023.

            c. Plaintiff may remove causes of action but may not add any new causes of action without first following the proper procedure for doing so.

2. Defendant’s motion to strike portions of plaintiff’s first amended complaint is taken off-calendar as moot.

Background:

On June 7, 202, plaintiff Sheba Lux, trustee of the Sheba Lux Trust dated December 23, 2014 (“Lux”) filed her original complaint in this matter alleging one cause of action against Montecito Water District (“MWD”) for general negligence.

On October 4, 2023, Lux filed the operative first amended complaint (“FAC”), which contains causes of action for: (1) negligence; (2) inverse condemnation; (3) dangerous condition of public property; (4) failure to warn of dangerous condition on public property; (5) public nuisance; (6) private nuisance; (7) premises liability; and (8) trespass.

As alleged in the FAC:

Lux is the owner of residential real property located at 614 Cowles Road, Montecito. (FAC, ¶ 1.) “This case arises from Defendants’ willful and repeated disregard for public safety in failing to manage the risks associated with the operation of Defendant MWD’s water distribution facilities and equipment.” (FAC, ¶ 7.) “Specifically, Defendants abdicated their responsibility for assessing the effectiveness of their risk management and maintenance practices to prevent leaks in the water utility distribution system to the fire hydrants that it either controlled or to which it was provided access, and for ignoring the foreseeable damage such leaks can and did cause.” (FAC, ¶ 8.)

“Defendants failed to establish and/or adhere to a well-defined and documented risk policy/standard in connection with the regular inspection, maintenance and repair of Defendant MWD’S fire hydrants and the utility distribution system servicing said fire hydrants and, specifically, the underground components and supply lines to said fire hydrant which is located by Plaintiff s Residence.” (FAC, ¶ 9.)

 As a result of, among other things, MWD’s failure to property inspect, maintain, and repair MWD’s fire hydrant system, “the underground supply line and/or water distribution components below the fire hydrant located closest to Plaintiffs Residence separated, broke apart or otherwise failed thereby causing an underground water leak that spread towards Plaintiff’s Residence and the homes and structures of other residents in the area.” (FAC, ¶ 13.)

Lux alleges property damage from the water leak.

Relevant to the present demurrer and motion to strike, the eight causes of action are alleged as to “all defendants.” MWD is the only currently named plaintiff along with Does 1-10.

MWD demurs to the first, third, fourth, fifth, sixth, seventh, and eighth causes of action on the grounds that each of them fails to state a cause of action against MWD. MWD argues that the causes of action are uncertain, vague, ambiguous, and unintelligible. Additionally, MWD moves to strike several portions of the FAC.

Lux opposes both the demurrer and motion to strike.

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. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“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.)

A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.) As such, the court will disregard the factual arguments contained in the demurrer.

With respect to a public entity, and their employees, there are specific pleading requirements. A public entity has no liability for any injury to any person except as provided by statute. (Gov. Code, § 815; Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1089.) Claims based upon statutory liability cannot be generally alleged, but must be particularly pled to allege facts demonstrating the right to recover under the statute. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

MWD tends to argue its demurrer, in large part, as if it were a motion for summary judgment. MWD argues about the evidence that is lacking, lack of notice, and other things that are irrelevant in ruling on a demurrer. However, disregarding MWD’s several arguments regarding the overall merits of the case, and properly focusing on defects that appear on the face of the FAC, the demurrer must be sustained.

“[I]n California all government tort liability is dependent on the existence of an authorizing statute or “ ‘enactment’ ” [citations], 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. [Citation.] Duty cannot be alleged simply by stating “ ‘defendant had a duty under the law’ ”; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or “ ‘enactment,’ ” the statute or “ ‘enactment’ ” claimed to establish the duty must at the very least be identified.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Lux has failed to identify any statute that would establish a mandatory duty by MWD, or any statute authorizing an action, as to the first, third, fourth, fifth, sixth, seventh, and eighth causes of action. Lux’s argument, that the causes of action should remain because she intends to name and add additional defendants, is not a valid argument in opposing the demurrer. As stated above, MWD is currently the only named defendant and the causes of action are alleged as against it. Lux must set forth sufficient, particular, allegations, including identifying any statutes imposing duties on MWD.

The demurrer will be sustained with leave to amend. “The plaintiff may not amend the complaint to add new causes of action without having obtained permission to do so . . .” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Plaintiff may remove causes of action but may not add any new causes of action without first following the proper procedure for doing so.

1. Motion to Strike

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, italics added.) As with demurrers, “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” [Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 CA4th 1253, 1255.)

As Lux is being given leave to amend her complaint, the motion to strike will be taken off calendar as moot.