2013-00144762-CL-MC

James M Shea vs. City of Citrus Heights

Nature of Proceeding:      Hearing on Demurrer

Filed By:    O’Dea, Gregory P.

***  If oral argument is requested, the parties must at the time oral argument is
requested notify the clerk and opposing counsel of the causes of action that will
be addressed at the hearing.  Counsel are also reminded that pursuant to local
court rules, only limited oral argument is permitted on law and motion matters.
***

Defendant City of Citrus Height’s (“City”) Demurrer to Plaintiff’s complaint is ruled upon
as follows.

The parties’ requests for judicial notice are granted.  In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
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(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4   543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

In this action, Plaintiff alleges that his property was damaged when the storm drains
that were inadequately installed, designed or maintained by the City backed up and  overflowed.  Plaintiff alleges causes of action for negligence, trespass and inverse
condemnation.

Negligence and Trespass

The City demurs to these causes of action on the grounds that pursuant to Gov’t Code
section 815(a), a public entity cannot be liable for common law tort actions and Plaintiff
has not alleged a statutory basis for liability.

In opposition, Plaintiff argues that the City may be liable pursuant to Gov’t Code
section 835.  Gov’t Code section 835 provides that a public entity may be liable for
injury caused by dangerous condition of property “if the plaintiff establishes that the
property was in a dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous condition created
a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within
the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under
Section 835.2 a sufficient time prior to the injury to have taken measures to protect
against the dangerous condition.”

(Gov’t Code section 835.)

Although the facts alleged support a claim for dangerous condition of public property
under Government Code section 835 and 835.2, the Court is requiring plaintiff to
allege the statutory grounds for the liability in the Amended Complaint. Because
liability here against the County is strictly statutory, Plaintiff cannot state a claim for
common law negligence or trespass. However, he may amend to allege a cause of
action for dangerous condition of public property pursuant to Government Code
section 835 and 835.2.

Accordingly, the demurrer is SUSTAINED with leave to amend.

Inverse Condemnation

The City demurs to this cause of action on the grounds that allegations of inadequate
maintenance of the storm drains do not state a cause of action for inverse
condemnation and Plaintiff has failed to allege facts that the storm drains were
designed or constructed in such a way as to constitute a taking of property.  (Tilton v.
Reclamation Dist. No. 800 (2006) 142 Cal. App. 4th 848, 858 [“although there may be
liability in inverse condemnation where levee failures are integrally connected with a
flawed plan for those levees and/or flawed construction, there is no such liability where
similar failures are the result of negligent or inadequate operation and maintenance.”].)

“[I]n order to prove the type of governmental conduct that will support liability in inverse
condemnation it is enough to show that the entity was aware of the risk posed by its
public improvement and deliberately chose a course of action–or inaction–in the face
of that known risk.”  (Arreola v. County of Monterey (2002) 99 Cal. App. 4th 722, 744;
see also Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 607.)
The demurrer is SUSTAINED with leave to amend.  Here, Plaintiff merely alleges that
the City “inadequately installed, designed or maintained” the storm drains.  (Complaint,
paras. 11, 18.)  He does not allege that the City deliberately chose to take a certain
action (or inaction) in the fact of the known risk.

Leave to amend is granted as the Court is not convinced that Plaintiff will be unable to
cure the defects noted in the demurrer.

Where leave to amend is granted, Plaintiff may file and serve a first amended
complaint (“FAC”) by no later than December 12, 2013.  Response to be filed and
served within 10 days thereafter, 15 days if the SAC is served by mail. (Although not
required by any statute or rule of court, Plaintiff is requested to attach a copy of the
instant minute order to the SAC to facilitate the filing of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

The City is admonished for failing to comply with CRC 3.1320(a).

Although the notice of motion provided notice of the Court’s tentative ruling system as
required by Local Rule 1.06, the notice does not comply with the current rule.  Moving
counsel is directed to review the Local Rules, effective January 1, 2013.