Case Name: City of Morgan Hill v Aviles
Case No: 114CV266156

Plaintiff and Cross-Defendant, The City of Morgan Hill, brings this Motion to Sever and Separate for Trial the 8th (Trespass), 9th (Nuisance) and 12th (Declaratory Relief) causes of action of Defendant and Cross-Complainant William Aviles’ Cross-Complaint. No trial date has been set. The City of Morgan Hill essentially argues the foregoing causes of action pertain to “construction defect” claims relating to a road the City of Morgan Hill build in connection with the Butterfield Project. And, causes of related thereto should be tried separate and apart from the City’s Public Nuisance claim involving an allegedly illegally built residential dwelling (Pool House issue) and the disputes relating to property transactions between the City of Morgan Hill and Aviles, discussed below.

William Aviles opposes the motion.

I. Brief Factual and Procedural Background

On June 5, 2014, The City of Morgan Hill filed a complaint against William Aviles (“Aviles”) for Public Nuisance. The complaint alleges that Aviles’ property was improved with a storage/workshop building, a Pool House and a reconstructed gas station as of July, 2011 and before that date. (Complaint para.5) On or about July 30, 2011, a fire destroyed the Pool House. On or about January 2013, Avila constructed a two story residential unit where the Pool House once stood allegedly in violation of various zoning and building codes. The City of Morgan Hill claims this structure is a public nuisance and seeks abatement. (Complaint paras 7-33)

In connection with its complaint, the City of Morgan Hill recorded a lis pendens on the Aviles property.
On July 10, 2014, Aviles filed a cross-complaint against the City of Morgan Hill. He filed a Second Amended Cross-Complaint (SACC) on August 9, 2014 alleging 12 causes of action for: 1) Breach of Contract; 2) Specific Performance; 3) Unjust Enrichment;
4) Promissory Estoppel; 5) Equitable Estoppel; 6) Negligent Misrepresentation; 7) Intentional Misrepresentation of Fact; 8) Trespass; 9) Nuisance; 10) Declaratory Relief; 11) Declaratory Relief and 12) Declaratory Relief.

The SACC recounts various interactions Aviles has had with the City of Morgan Hill involving an Eminent Domain proceeding, Aviles’ separate attempt to purchase adjacent property from the City of Morgan Hill, and Aviles’ claim that when the City of Morgan Hill constructed a road in connection with the Butterfield Project, it did so before it was legally authorized to do so and damaged his property. The SACC describes a Settlement Agreement dated June 21, 2011 and amendments dated December 14, 2012 and July 25, 2013 wherein Aviles and the City of Morgan Hill attempted to resolve disputes relating to various encroachments and facilitate the purchase/ exchange of property. (Second Amended Cross-Complaint paras 3-8)

In the SACC, Aviles alleges escrow relating to the purchase of the adjacent property cannot close because of the Pool House litigation and lis pendens the City of Morgan Hill filed. (SACC para 9) The cross-complaint also alleges the City of Morgan Hill released any claim it has against Aviles related to construction of the Pool House in the Settlement Agreements (SACC paras 10-15). The cross-complaint also asserts the City built the Butterfield Project without obtaining possession and ownership of the Project Parcel beforehand. Aviles also claims the City failed to design and build the road properly causing a nuisance on the Aviles property. (SACC paras 24-35) The foregoing allegations are incorporated into each of the 12 causes of action.

The City contends the 8th, 9th and 12th causes of action in the Second Amended Cross-Complaint are unrelated to the Complaint for Public Nuisance or the other causes of action in the Second Amended Cross-Complaint. The City seeks to sever these causes of action because they will unnecessarily delay trial of the remaining case causing significant prejudice to the City to try its cause of action for Public Nuisance in a timely manner.

II. Legal Analysis

CCP Section 1048 (b) provides, in relevant part, “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause(s) of action…”
The Court does not find that severing the 8th, 9th and 12th causes of action will be conducive to expedition and economy.

To begin with, there are overlapping issues that touch all of the causes of action which will necessitate many of the same witnesses and evidence. It makes no sense to separately depose plaintiff or defendant on parsed out causes of actions in the second amended cross-complaint or conduct separate discovery thereon.

Second, neither the Trespass nor Nuisance claims assert strictly “Construction Defect” type theories. Both the Trespass and Nuisance claims allege the City began the public project prior to obtaining proper approvals and prior to owning the land necessary to begin the Butterfield Project and seek damages thereon. (SACC paras 88-93; 99) The 12th cause of action for Declaratory Relief makes this same assertion (SACC paras.115, 118). The Court will not split these causes of action and separately try them because they allege two different theories.
Third, the City presented no competent evidence demonstrating how first trying 9 causes of action of the cross-complaint (and parts of 3 others) in addition to the single nuisance claim of the Complaint is going save time, money and judicial resources.

The history behind the various disputes between Aviles and the City of Morgan spans several years and encompasses clashes over Aviles’ Pool House, the replacement dwelling, encroachments on City property, Aviles’ purchase of adjacent property from the City of Morgan Hill, an Eminent Domain proceeding, Settlement Agreements drafted in an attempt to resolve some or all of those disputes; the building of the Butterfield Project and whether that Project harmed Aviles in some way. There are numerous legal issues the Court must decide in addition to numerous factual issues the jury must decide that touch upon the foregoing history. It will take some time to try these complicated issues and precious resources will be expended in the effort. It would be a waste of extremely limited judicial and staff resources to require a separate trial on only the “construction defect” theories when a separate judge will likely have to re-learn the history of the case and a separate jury will need to decide issues thereon.

On the contrary, efficiencies would be served having one judge and one jury decide the “construction defect” type theories along with the other issues related to the ongoing disputes between Aviles and the City of Morgan Hill.

Although the Settlement Agreements refer to the Butterfield Project, the Court is not convinced the “construction defect” related claims require interpretation of the Settlement Agreement and Amendments thereto based solely on a review of the 8th, 9th and 12th causes of action asserted in the SACC. However, if they do, that is a separate compelling reason not to sever the 8th, 9th and 12th causes of action from the rest of the lawsuit.

The Court declines to consider the City of Morgan Hill’s request under CCP 598 as it was only asserted in the reply papers and not set forth in the Notice of Motion. However, the parties may wish meet and confer on the order of evidence and claims as this case moves nearer to trial. No trial date has been set as of yet.