Case Name: 12389 Stonebrook LLC v. Wilkerson
Case No.: 2017-1-CV-318144

This is a property dispute between neighbors. According to the allegations of the first amended complaint (“FAC”), on June 30, 1977, the Town of Los Altos Hills (“Town”) approved a tentative map subdividing a certain parcel of real property into two contiguous parcels. (See FAC, ¶ 9.) In the approved checklist, the Town Planning Commission at its meeting of June 8, 1977, recommended approval of the request to subdivide the parcels with the condition that, among others, the owner “[c]onnect the existing residence, cottage and proposed residence to the existing sanitary sewer system prior to final inspection….” (See FAC, ¶ 9, exh. C.) A sewer line was installed on defendant Sonja Wilkerson’s (“Defendant”) property, where the existing residence and cottage were connected. (See FAC, ¶ 9.) A “stub out” was provided on plaintiff 12389 Stonebrook LLC’s (“Plaintiff”) property. (Id.) However, although the prior owner of Plaintiff’s property was allowed to connect his RV to the stub out, Defendant refused and continues to refuse Plaintiff to connect to the stub out. (See FAC, ¶¶ 10-11.) There is no recorded easement for the sewer line to Plaintiff’s property; however, Plaintiff contends that does not modify the legal effect of the approved checklist which it presumes was eventually approved by Town. (See FAC, ¶ 11.) Pursuant to Civil Code section 1001, subdivision (a), Plaintiff seeks a declaration that it has acquired an easement to provide utility services to its property through eminent domain. On December 21, 2017, Plaintiff filed the FAC against Defendant, asserting causes of action for:

1) Declaratory relief;
2) Eminent domain; and,
3) Quiet title.

Defendant moves to specially strike the FAC, or, in the alternative, demurs to the FAC.

Defendant’s special motion to strike pursuant to Code of Civil Procedure section 425.16

In Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, the California Supreme Court established the trial court’s duty in ruling on an anti-SLAPP motion to strike:

Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds [that defendant has made its threshold showing], it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’

(Id. at 67.)

“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘stated and substantiated a legally sufficient claim.’” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1123.) “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” (Id. at 88-89, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Id. at 89.)

In her motion to specially strike the FAC, Defendant argues that “[t]he Complaint is a ‘textbook example’ of the Strategic Lawsuit Against Public Participation (‘SLAPP’) suit and should be stricken to this Special Motion to Strike.” (Def.’s memorandum of points and authorities in support of special motion to strike the FAC, or in the alternative, to demur to the FAC (“Def.’s memo”), p.3:18-21.) Although the above language was stricken after meet and confer, the FAC has the same purpose, i.e., to punish the Defendant for objecting to Plaintiff connecting directly to Defendant’s sewer line and overriding the terms of the Permit.” (Id. at p.3:21-25.) Defendant continues: “The Complaint and FAC filed herein fall squarely within the terms of section 425.16 and should be stricken entirely.” (Id. at p.4:23-24.) Defendant’s motion apparently relies on the allegations of the initial complaint, specifically:

“During the planning process, due to Defendant’s objection to the use of the existing sewer line, Plaintiff was forced to file a plan and obtain approval from the Town of Los Altos Hills based on construction of a new sewer line.” Complaint, 6:19-22 (emphasis added).

(Def.’s memo, p.3:13-17; see also id. at p.1:26-27, 2:1-7 (stating “[i]n its verified Complaint, Plaintiff asserts that Defendant and her husband, Glenn Wilkerson, spoke out at public meetings in opposition to Plaintiff’s site development application”; also stating that “Plaintiff alleges that because of Defendant’s opposition, the Town Planning Staff would not approve Plaintiff’s demand that it be allowed to attach directly to the sewer line that connects Defendant’s home to the public sewer system”); id. at p.2:12-23 (stating “Plaintiff alleges in the Complaint and the First Amended Complaint (‘FAC’) that the Town denied its request to connect to Defendant’s sewer line because of Defendant’s opposition thereto”; also stating that “[a]lthough Plaintiff filed its FAC as a result of a meet and confer letter, the gravamen of the suit remains the same, i.e., Plaintiff is angry that Defendant and her spouse spoke out in opposition to Plaintiff’s development application… Plaintiff seeks to punish the Defendant 18 months after the Permit became final and requests a court order to override the decision of the Town Planning Staff and modify the Permit”).)

However, the allegation regarding Defendant’s objection to the use of the existing sewer line, quoted in Defendant’s supporting memorandum from the initial complaint, is neither alleged nor referenced in the FAC. Defendant nevertheless asserts that the FAC arises from protected activity because “the gravamen of the suit remains the same, i.e., Plaintiff is angry that Defendant and her spouse spoke out in opposition to Plaintiff’s development application.” Without reference to the previously alleged protected activity, the FAC cannot arise from protected activity.

“An amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) “The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment.” (Id.) “Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint.” (Id., citing State Compensation Ins. Fund v. Super. Ct. (Onvoi Business Solutions, Inc.) (2010) 184 Cal.App.4th 1124, 1130-1131.) “[A]n amended complaint render[s] moot an anti-SLAPP motion directed to a prior complaint.” (Id. at pp.477-479 (also noting that “[w]e acknowledge the anti-SLAPP motion was filed less than two hours after the first amended complaint was filed, but this does not change the fact there was no pending anti-SLAPP motion at the time of the amendment… [a]ccordingly, the anti-SLAPP motion in this case, directed to a superseded complaint, was moot from the start”; also stating “any allegations of protected activity were removed from the lawsuit before the anti-SLAPP motion was filed… [t]hus, at the time the motion was filed, there were no causes of action arising from protected activity to strike”).) As in JKC3H8, supra, the special motion to strike is moot and is thus DENIED as there are no causes of action arising from protected activity to strike.

As the Court did not rely on Defendant’s evidence to which Plaintiff objects, it is unnecessary to rule on Plaintiff’s objections.

Defendant’s demurrer to the FAC

Defendant demurs to the FAC on the grounds that there is a defect of parties in that Town is an indispensable party that is not joined and that Plaintiff has failed to exhaust its administrative remedies by appealing the decision of the Town Planning Director.

As Plaintiff states in opposition, Civil Code section 1001 states:

…
(b) Any owner of real property may acquire by eminent domain an appurtenant easement to provide utility service [such as sewer] to the owner’s property;

(c) In lieu of the requirements of Section 1240.030 of the Code of Civil Procedure, the power of eminent domain may be exercise to acquire an appurtenant easement under this section only if all of the following are established:

(1) There is a great necessity for the taking.
(2) The location of the easement affords the most reasonable service to the property to which it is appurtenant, consistent with the least damage to the burdened property.

(Civ. Code § 1001, subds. (b), (c).)

As Plaintiff argues, section 1001 does not concern the administrative decision of Town. Rather, it concerns a private property owner’s acquisition of an appurtenant easement by eminent domain. In such a situation, the court has the power to determine the right to possession of the property and enforce any orders for possession. (See Code Civ. Proc. §§ 1230.050, 1250.010.) Therefore, Town is not an indispensable party and Plaintiff has not failed to exhaust its administrative remedies by failing to appeal the decision of the Town Planning Director. As to the declarations regarding the Town’s position on shared sewer laterals, although it may be unlikely that Plaintiff will be able to demonstrate that there is a great necessity for the taking, the location of the easement is the most reasonable service to Plaintiff’s property with the least damage to Defendant’s property, or that the hardship to the Plaintiff if the taking is not permitted clearly outweighs the hardship to Defendant, on demurrer, the Court must “accept as true all facts that may be implied or reasonably inferred from those expressly alleged.” (Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658; see also Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 994 (stating that “[t]he facts alleged in the pleading are deemed to be true”).) There are certain requirements for a complaint seeking the acquisition of property by eminent domain (see Code Civ. Proc. § 1250.310); however, the failure to comply with these requirements was not a ground for Defendant’s demurrer. Defendant’s demurrer in the alternative is OVERRULED.

The Court will prepare the order.