Case Name: J. Cyril Johnson Family L.P. v. City of Mountain View, et al.
Case No.: 18CV328188

I. Background

This lawsuit arises from a dispute over the development of a shopping center in Mountain View, California. Plaintiff J. Cyril Johnson Family Limited Partnership (the “Johnson Family Partnership”) owns one of the parcels upon which the shopping center was built and alleges several entities, with approval from defendant the City of Mountain View, developed the shopping center as it now stands without its consent.

In 1962, the owners of 13 contiguous parcels of real property executed and recorded a Reciprocal Parking Agreement (the “Original Agreement”) for the purpose of developing a shopping center—now known as San Antonio Center—on the land bounded by West El Camino Real, San Antonio Road, California Street, and Showers Drive. (Compl., ¶¶ 24–32 & Ex. A [Original Agreement].)
J. Cyril Johnson Investment Corporation (owned by its namesake) and Valley Title Company owned two of these parcels of land, namely parcels 12 and 13. (Compl., ¶¶ 22–23 & Ex. A at pp. 4–5.) Valley Title Company held title to parcel 13 in escrow for Mr. Johnson and his business partner; it transferred title to them in 1975. (Compl., ¶ 23.) The Johnson Family Partnership alleges it owns parcel 13 as the successor of Mr. Johnson and his business partner. (Compl., ¶ 4.)

The Johnson Family Partnership also alleges it has the right to review and consent to proposed changes to the design and composition of the shopping center. (Compl., ¶ 40.) The Original Agreement included an illustrated development plan. (Compl., Ex. A.) The landowners agreed not to modify the parking lots, thoroughfares, and storefronts that were originally constructed in conformity with that development plan without first obtaining written consent from several of the other owners, including Mr. Johnson and his company. (Compl., ¶¶ 42–43 & Ex. A at pp. 6–8.) According to the Johnson Family Partnership, it is now entitled to exercise these consent rights as the successor to Mr. Johnson, but has been denied the opportunity to do so. (Compl., ¶ 40.)
In 2011, a real estate developer that had acquired several of the constituent parcels—Merlone Geier Partners —began the process of obtaining zoning and building approval from the City of Mountain View for two phases of redevelopment at the shopping center. (Compl., ¶¶ 50–60.) During this process, and as required by the City of Mountain View, Merlone Geier Partners procured and recorded three separate amendments to the Original Agreement. (Compl., ¶¶ 50–60 & Exs. B–D.)

The Johnson Family Partnership alleges Merlone Geier Partners and other new landowners, particularly defendants San Antonio Center, LLC, San Antonio Center II, LLC, Machado-San Antonio Partners, LLC, FR San Antonio Center, LLC, Federal Realty Partners, Inc., and Federal Realty Partners L.P., (collectively, “Developers”), amended the Original Agreement without its knowledge or consent and deprived it of its right to review and consent to any proposed redevelopment. (Compl., ¶¶ 49, 58, 63–68.) It also alleges the City of Mountain View negligently approved of the redevelopment without obtaining a title report or addressing inconsistencies in the paperwork presented to it for approval. (Compl., ¶¶ 59–62.)

The Johnson Family Partnership asserts causes of action against Developers and the City of Mountain View (the “City”) for: (1) quiet title (against Developers); (2) declaratory relief (against Developers and the City); (3) injunctive relief (against Developers and the City); (4) slander of title (against Developers); (5) breach of contract (against Developers); (6) fraud (against Developers); (7) contractual interference (against Developers); and (8) negligence (against the City). It seeks equitable relief as well as compensatory and punitive damages.

Currently before the Court is the City’s demurrer to the complaint and each claim asserted against it therein.

II. Demurrer

The City demurs to the complaint as well as the second, third, and eighth causes of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.

A. Uncertainty

A demurrer on the ground of uncertainty tests whether a pleading is ambiguous, uncertain, or unintelligible. (See Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.)

The City argues the entire complaint is uncertain because the Johnson Family Partnership does not “allege with ‘clearness’ or ‘precision’ that it, in fact, owns Parcel Thirteen.” (Mem. of Pts. & Auth. at p. 16:3–4.) The City’s apparent position is not that the pleading is uncertain, ambiguous, or unintelligible within the meaning of the statute, but rather that the Johnson Family Partnership must allege evidentiary facts about how it acquired title to parcel 13.

This argument is unavailing for several reasons. First, the City’s argument concerns whether the Johnson Family Partnership must allege more facts with particularity as distinct from whether the facts alleged are ambiguous or unintelligible. It can undoubtedly be ascertained from the pleading that the Johnson Family Partnership is alleging it owns parcel 13, and so there is no basis for concluding the complaint is ambiguous in that regard. Second, the City provides no legal to authority to support the proposition that a plaintiff must allege evidentiary facts about title to real property. As a general rule, a plaintiff need not allege “‘each evidentiary fact that might eventually form part of the plaintiff’s proof….’ [Citation.]” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) Accordingly, the City’s argument is contrary to fundamental principles of pleading.

Based on the foregoing, the City does not demonstrate the complaint or any claim asserted against it therein is uncertain. Accordingly, its demurrer on the ground of uncertainty is OVERRULED.

B. Failure to State Sufficient Facts

In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) Thus, a demurrer on the ground of failure to state facts sufficient to constitute a cause of action tests whether the plaintiff alleges each ultimate fact essential to his or her cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, citing Code Civ. Proc., § 430.10, subd. (e).)

The City advances distinct arguments concerning the sufficiency of the facts alleged in the second, third, and eighth causes of action, each of which is addressed below.

1. Second Cause of Action

The second cause of action is for declaratory relief.

A party may seek declaratory relief “in cases of actual controversy relating to the legal rights and duties of the respective parties….” (Code Civ. Proc., § 1060.) To state a claim for declaratory relief, a plaintiff must simply allege facts showing there is an actual controversy; he or she need not allege facts showing entitlement to a favorable declaration. (Centex Homes v. St. Paul Fire and Marine Insurance Co. (2015) 237 Cal.App.4th 23, 29.) “Strictly speaking, therefore, a demurrer is not the appropriate weapon with which to attack the merits of a claim for declaratory relief.” (Siciliano v. Fireman’s Fund Insurance Co. (1976) 62 Cal.App.3d 745, 755.)

Nevertheless, the City argues there is no controversy alleged with respect to it. Its supporting reasoning is not a model of clarity. It asserts there is no controversy because it complied with two distinct conditions of approval for Developers’ zoning permit that its City Council adopted. Condition No. 11 states:

Owners shall sign and be a party to an agreement (or amendment of an existing agreement), subject to the City’s approval and recorded to run with the land, which provides for easements, covenants, and conditions relating to applicable parking, vehicle access, pedestrian access, utility use, surface stormwater drainage, and other uses between the subject properties and the existing San Antonio Center properties east of the project. The agreement, together with all attachments, must be submitted to and approved by the Community Development Department and the City Attorney’s Office prior to approval of the parcel map.

(Compl., ¶ 53.)

Condition No. 31 states: “All above-grade and at-grade parking shall be accessible to other properties in the San Antonio Shopping Center in accordance with the existing Reciprocal Parking Agreement as stated in the San Antonio Center Precise Plan.” (Compl., ¶ 56.)

The City states asserts because it approved of the amendments to the Original Agreement, it complied with Condition No. 11. It also states there is no allegation that it failed to comply with Condition No. 31. The problem with its argument is that it is fundamentally unclear how that shows there is no controversy alleged. The City does not clearly tether its argument to the allegations in the pleading. Its argument, in fact, appears to be based on a misapprehension of the complaint. Contrary to what the City appears to assume, the Johnson Family Partnership is not alleging there is a dispute because it failed to approve Developers’ application. The Johnson Family Partnership alleges there is a controversy specifically because the City improperly approved of the amendments without adequate investigation and despite facial defects and inconsistencies in the application. (Compl., ¶¶ 50–62.) Thus, the City’s argument is inapt.

In conclusion, the City does not demonstrate no controversy has been alleged sufficient to state a claim for declaratory relief. The demurrer to the second cause of action is therefore OVERRULED.

2. Third Cause of Action

The City argues the Court should sustain the demurrer to the third cause of action for injunctive relief because the Johnson Family Partnership does not allege facts to support its claim for such relief.

An injunction is an equitable remedy. (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 647.) “To properly plead facts for injunctive relief, the complaint must plead (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) ‘[t]he grounds for equitable relief of this kind, i.e., a showing of inadequacy of the remedy at law.’ [Citation.]” (Ibid.)
The City asserts the complaint contains no allegation that a legal remedy is inadequate as necessary to support a claim for injunctive relief. The City is correct that the Johnson Family Partnership does not allege there is no adequate remedy at law. In opposition, the Johnson Family Partnership does not dispute this fact or argue that the facts alleged otherwise show there is no adequate legal remedy despite the absence of an explicit allegation of that ultimate fact.
Instead, the Johnson Family Partnership argues it alleges entitlement to mandamus relief. This argument is not actually responsive to the argument advanced by the City and is not otherwise persuasive.
Although not clearly articulated by the Johnson Family Partnership here, it appears to be arguing it adequately pleads entitlement to a traditional writ of mandate under Code of Civil Procedure section 1085. That statute authorizes a court to issue a writ of mandate to compel a local official to perform a ministerial duty, which is “an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists.” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128–29.) A court may issue the writ if there is: “(1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty.” (Id. at p. 129.)

Code of Civil Procedure section 1086 states the writ “must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” “Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner.” (Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 206 [internal quotation marks and citation omitted].)
The Johnson Family Partnership clearly is not seeking a writ of mandate. In addition to the fact that it has not filed a verified petition for a writ of mandate (see Code Civ. Proc., § 1086), it specifically asks for an injunction and not a writ (Compl., ¶ 90). Additionally, because the issuance of a writ of mandate, like the issuance of an injunction, depends on the unavailability of an adequate legal remedy, the Johnson Family Partnership also fails to allege facts showing entitlement to a writ of mandate for the same reasons articulated above. Consequently, its argument is not persuasive.

Based on the foregoing, the demurrer to the third cause of action is sustainable. “If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.” (City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747.) Here, the cause of action for injunctive relief is incapable of amendment because “it is not actually a cause of action.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.) With that said, the Johnson Family Partnership may obtain an injunction if it is otherwise entitled to that remedy. (See ibid.) Accordingly, although the Johnson Family Partnership may not amend this particular claim in the form in which it is pleaded, it may otherwise allege new facts elsewhere in the pleading to support a prayer for injunctive relief. Accordingly, the demurrer to the third cause of action is SUSTAINED with 10 days’ leave to amend consistent with the limitation herein.

3. Eighth Cause of Action

The eighth cause of action is for negligence. The City argues this claim is subject to demurrer because the Johnson Family Partnership does not identify a statutory basis for its claim and allege compliance with the claim presentation requirement of the Government Tort Claims Act. In opposition, the Johnson Family Partnership essentially concedes these arguments are meritorious and seeks leave to assert an inverse condemnation claim. (Opp. at p. 6:15–22.)

It is true that a public entity can only be held liable to the extent “provided by statute.” (Gov. Code, § 815.) In other words, a claim against a public entity must be based on a statutory duty and not a common law duty. (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 895–96.) Statutory claims must be pleaded with particularity, and so a plaintiff must specifically allege the statute upon which his or her claim against a public entity is based. (Ibid., citing Brenneman v. State of California (1989) 208 Cal.App.3d 812, 816–17.) As the Johnson Family Partnership concedes, it does not identify the statutory duty upon which its claim against the City is based. Accordingly, the allegations in the eighth cause of action are deficient.

The City is also correct that before filing a civil action for damages against a public entity, a plaintiff must present an administrative claim to the entity that sets forth, among other things, “[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (Gov. Code, §§ 910, 945.4.) If a plaintiff does not allege facts showing compliance or an excuse for noncompliance with the claim presentation requirement, his or her cause of action is subject to demurrer on the ground of failure to state facts sufficient to constitute a cause of action. (State of California v. Super. Ct. (2004) 32 Cal.4th 1234, 1243; accord Nasrawi v. Buck Consultants, LLC (2014) 231 Cal.App.4th 328, 338.) The Johnson Family Partnership does not allege it complied with the claim presentation requirement. It appears to concede both that it did not do so and cannot timely do so at this juncture. (See Gov. Code, § 911.2 [time for presenting claim].) Thus, the demurrer is sustainable on this additional basis.

In opposition, the Johnson Family Partnership seeks leave to amend the complaint to assert a claim for inverse condemnation instead of negligence. Here, there is no basis for concluding the Johnson Family Partnership cannot possibly state a claim for inverse condemnation. (See City of Stockton, supra, 42 Cal.4th at p. 747.) Indeed, as it points out, such claims are not subject to the claim presentation requirement discussed above. (Patrick Media Group, Inc. v. Cal. Coastal Com. (1991) 9 Cal.App.4th 592, 607, citing Gov. Code, § 905.1.) Consequently, leave to amend is warranted.
In conclusion, the City’s demurrer to the eighth cause of action is SUSTAINED with 10 days’ leave to amend.

4. Entire Complaint

The City’s demurrer is also directed to the entire complaint as a whole. A demurrer to a complaint as a whole is sustainable “only if no count of the complaint states facts sufficient to entitle [the plaintiff] to relief on any theory.” (Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 29.) As reflected above, the demurrer is not sustainable with respect to the second cause of action. Consequently, the demurrer to the entire complaint is OVERRULED.