Coralee Beveridge, et al. v. City of Goleta, et al.
Case No: 16CV05826
Hearing Date: Mon Apr 22, 2019 9:30

Nature of Proceedings: Motion Leave to File Second Amended Answers to Complaint

Coralee Beveridge, et al., v. City of Goleta, et al., #16CV05826, Judge Sterne

Hearing Date: April 22, 2019

Matter:

County of Santa Barbara and County of Santa Barbara Flood Control & Water Conservation District’s Motion for Leave to File Second Amended Answers to Complaint

Attorneys:

For Plaintiffs: Michael D. McLachlan (Hermosa Beach)

For Defendant City of Goleta: James N. Procter (Procter, Shyer & Winter – Camarillo)

For Defendant County of Santa Barbara: Lisa A. Rothstein, Sr. Deputy County Counsel

Tentative Ruling: The court grants defendants County of Santa Barbara and County of Santa Barbara Flood Control & Water Conservation District’s motion for leave to file second amended answers to complaint.

Background: On December 27, 2016, plaintiffs Coralee and Kyle Beveridge filed their complaint for 1) inverse condemnation, 2) negligence (Gov’t Code § 815.6), 3) dangerous condition of public property, 4) negligence, 5) nuisance, and 6) trespass. Defendants are City of Goleta, County of Santa Barbara, County of Santa Barbara Flood Control & Water Conservation District, The Stow Company, and La Patera Cattle Company. All but the fourth cause of action are asserted against County, Flood Control, and Goleta. Plaintiffs sought damages for personal injuries and property damage. However, in a stipulation of all parties entered on December 18, 2018, plaintiffs stipulated that they will not seek relief relating to personal injuries and will only seek relief relating to property damage arising from a March 11-12, 2016 storm flood intrusion into their home. On March 5, 2019, plaintiffs filed a request for dismissal of all causes of action by Kyle Beveridge and the court entered the dismissal.

On March 11, 2019, the court granted County of Santa Barbara and County of Santa Barbara Flood Control & Water Conservation District’s and City of Goleta’s motions for summary adjudication as to the second cause of action only.

On December 12, 2018, by stipulation, the court vacated its mandatory settlement conference in favor of private mediation. On April 2, 2019, by stipulation, the court continued the trial date to September 16, 2019.

County’s Motion for Leave: Defendants County of Santa Barbara and County of Santa Barbara Flood Control & Water Conservation District (collectively “County”) move for leave to file second amended answers to the complaint. County proposes to add one statute of limitation to its 19th affirmative defense—CCP § 337.15. (County previously included a nonexclusive list of limitation statutes consisting of CCP §§ 318, 319, and 338.) Plaintiff opposes the motion.

1. Substance of Amendment: CCP § 337.15(a) provides:

No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following:

(1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property.

(2) Injury to property, real or personal, arising out of any such latent deficiency.

For purposes of this section, “‘latent deficiency’ means a deficiency which is not apparent by reasonable inspection.’” CCP § 337.15(b). It is a statute of repose. Inco Dev. Corp. v. Superior Court, 131 Cal.App.4th 1014, 1021 (2005). It is not “subject to ‘equitable tolling.’” Gundogdu v. King Mai, Inc., 171 Cal.App.4th 310, 314 (2009). “[R]egardless of whatever tolling rules might otherwise apply within the 10–year period, the Legislature intended no such extension of the ‘absolute’ 10–year limit itself.” Lantzy v. Centex Homes, 31 Cal.4th 363, 377-378 (2003) [citation omitted].

1. Standards for Leave to Amend: A court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading….” CCP § 473(a). A court may allow an amendment to a pleading in the furtherance of justice at any time. CCP § 576. Courts exercise their discretion to allow amendments liberally. Nestle v. Santa Monica, 6 Cal.3d 920, 939 (1972). “[I]t is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case. If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court, 172 Cal.App.2d 527, 530 (1959) [citations omitted].

When the proposed amendment fails to state facts sufficient to constitute a cause of action or defense, it is proper to deny leave to amend. Foxborough v. Van Atta, 26 Cal.App.4th 217, 230 (1994). “That rule would find its most appropriate application, however, in cases in which the insufficiency of the proposed amendment is established by controlling precedent and where the insufficiency could not be cured by further appropriate amendment.” Cal. Casualty Gen. Ins. Co. v. Superior Court, 173 Cal.App.3d 274, 280-281 (1985), (disapproved on other grounds in Kransco v. Am. Empire Surplus Lines Ins. Co., 23 Cal.4th 390 (2000)).

2. Applicability of CCP § 337.15: Plaintiff argues that CCP § 337.15 does not apply because of subdivision (e), which reads: “The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement, at the time any deficiency in the improvement constitutes the proximate cause for which it is proposed to bring an action.” Plaintiff says County’s easement constitutes possession or control of the storm drain system.

That easement was addressed in County’s motion for summary judgment/adjudication. The facts before the court at that time were: A concrete box inlet to that system lies north of the Goleta boundary on the opposite side of Cathedral Oaks Road from plaintiffs’ residence. [County’s Undisputed Material Facts (CUF) #9] The inlet is located on a nonexclusive easement, held by the County and Flood Control since 1964. [CUF #10] The facts known to the court do not conclusively establish that CCP § 337.15 does not apply.

First, the evidence does not suggest one way or the other if the entire storm drain system is in County’s easement or is otherwise under its ownership or control. The evidence also indicated that the inlet on the easement was installed and has been maintained by Goleta. [CUF ##14, 15] The proposed amendment states facts sufficient to constitute the defense. It remains to be seen whether County can prove this defense.

Plaintiff also argues that County forfeited the right to assert the statute of limitation in CCP § 337.15. Plaintiff says “[t]he statute of repose affirmative defense must have been asserted by the County Defendants as their statutory immunity before the summary judgment motion or it is forfeited,” citing Cruey v. Gannett Co., 64 Cal.App.4th 356, 367 (1998). But that is not what the court in Cruey said.

The court stated “the general rule is that a privilege must be pled as an affirmative defense.” Id. Then the court permitted introduction of the defense of privilege in a summary judgment procedure because the opposing party had adequate notice and opportunity to respond. Id. The court says nothing about an issue not raised on summary judgment being forever forfeited. The same is true of another case plaintiff cites, Superior Dispatch, Inc. v. Ins. Corp. of New York, 181 Cal.App.4th 175, 193 n11 (2010).

Here the lack of County’s summary judgment motion’s success prompted the amendment. Nothing in the summary judgment process precludes the amendment.

3. Prejudice: Plaintiff contends the court should not permit the amendment because it will unduly prejudice plaintiff. A “long unexcused delay is sufficient to uphold a trial judge’s decision to deny the opportunity to amend pleadings, particularly where the new amendment would interject a new issue which requires further discovery.” Green v. Rancho Santa Margarita Mortgage Co., 28 Cal.App.4th 686, 692 (1994). The liberal policy of permitting amendments should be applied only where no prejudice is shown to the adverse party. Magpali v. Farmers Group, 48 Cal.App.4th 471, 487 (1996) (“Magpali”).

In Magpali, the amendment was proposed on the eve of trial, nearly two years after the complaint was originally filed. Magpali did not give an explanation for leaving the claim out of the original complaint or the delay in requesting leave to amend. Id. at 486. “Prejudice to Farmers was clearly shown because in preparing for trial on claims of breach of contract, misrepresentation, and intentional infliction of emotional distress, it had not discovered or deposed many of the witnesses who would support the new allegations, and had not marshaled evidence to oppose the contention that a systemwide discriminatory policy existed.” Id. at 486-487.

The design issue came into focus during the summary adjudication proceedings. The trial in this case has been continued to September 16. The stipulation and order continuing the trial date provided that “all related dates, including discovery cut-off, motion cut-off, and expert witness exchange, shall be tied to the new continued trial date as if the continued trial date was the initial trial date under the Code of Civil Procedure.” There is ample time to conduct discovery and prepare for trial.

The court concludes that there has been no undue delay and the amendment to the answers will not unduly prejudice plaintiff.

4. Order: The grants the motion of defendants County of Santa Barbara and County of Santa BarbaraFlood Control & Water Conservation District for leave to file second amended answers to complaint.