Case Name: Hector Rivera, et al. v. City Of Sunnyvale; Casa De Amigos Mobile Home Park
Case No.: 2013-1-CV-240935

This action was originally brought by Plaintiffs Hector Rivera and Ramon Rivera, tenants and homeowners in a mobile home park, alleging among other things negligence and dangerous condition of public property against Defendants City of Sunnyvale (“City”) and Casa De Amigos Mobilehome Park (“Casa”). Both Defendants filed cross-complaints against the other. Plaintiffs subsequently settled with both Defendants and dismissed their operative First Amended Complaint, leaving only the cross-complaints. Currently before the Court is the City’s demurrer to Casa’s operative Third Amended Cross-Complaint (“TAXC”) and motion to strike portions of the TAXC, continued from October 31, 2017 by stipulation and order.

Request for Judicial Notice
In support of its demurrer and motion to strike the City has submitted a request for judicial notice of four documents, attached as exhibits 1-4 to the request. Exhibit 1 is a copy of the May 25, 2017 Order of the Court (Hon. Pierce) on the City’s previous demurrer and motion to strike portions of Casa’s Second Amended Cross-Complaint (“SAXC”). That Order, among other things, sustained the City’s demurrer to Casa’s second cross-claim for indemnification and third cross-claim for apportionment of fault without leave to amend. Exhibit 2 is a copy of Casa’s original cross-complaint filed August 6, 2013. Exhibit 3 is a copy of Casa’s First Amended Cross-Complaint (“FAXC”) filed March 6, 2014. Exhibit 4 is a copy of a print-out of the Court’s docket for this case.

Notice of all four documents is GRANTED pursuant to Evidence Code §452(d) (court records) only. Only the Court’s prior order (exhibit 1) is noticed as to its contents and legal effect.

Demurrer and Motion to Strike
In reviewing a demurrer or motion to strike the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (internal quotations omitted.) Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 [rejecting allegation contradicted by judicially noticed facts]. See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice §3(3) [“It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.”])

As an initial matter, the City’s motion to strike the TACC’s purported second and third causes of action for indemnification and apportionment of fault, which Casa has continued to allege in defiance of the Court’s judicially noticed prior order, is GRANTED WITHOUT LEAVE TO AMEND pursuant to CCP §436(b).

The Court’s May 25, 2017 order on the prior demurrer expressly stated in pertinent part that “[b]ecause Casa does not dispute that it failed to comply with the claim filing requirements for the claims asserted in the second and third causes of action, and those claims do not fall under the defensive cross-complaint exception articulated in Krainock, the demurrer to the second and third causes of action is SUSTAINED, without leave to amend.” (May 25, 2017 Order at 10:11-14.) The Court further expressly ruled that Casa’s opposition to that demurrer had failed to “articulate how the second and third causes of action can be amended so as to correct the identified deficiency.” (Id., at footnote 2. See Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8 [“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”] See also Drum v. San Fernando Valley Bar Ass’n. (2010) 182 Cal.App.4th 247, 253 [citing Medina].)

The suggestion by Casa in its current opposition that determining whether the plain terms of the prior order mean what they say is for it to decide is plainly incorrect and unreasonable. Nor can defiance of the Court’s order be explained by Casa’s professed desire to preserve the issue for appeal. Had Casa filed a timely appeal of the portion of the prior order sustaining the demurrer without leave to amend while filing a TACC that complied with the prior order by removing the second and third causes of action, the Court of Appeal could have reviewed the superseded pleading. “‘Upon an appeal’ from an appealable order or judgment, ‘the reviewing court may review … any intermediate ruling, proceeding, order or decision …’ [citations], but it may not review an earlier appealable ruling.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1370-1371, fn. Omitted.) Instead, Casa both deliberately disobeyed the Court’s order and arguably failed to preserve the issue.

1) Demurrer to the TACC
The Court having now confirmed for the second time its striking of the second and third causes of action (first by prior demurrer, now by motion to strike), the demurrer to those claims is MOOT. What remains for consideration is the City’s demurrer to the TACC’s first cross-claim for Declaratory Relief and sixth cross-claim for Dangerous Condition of Public Property.

First cross-claim for Declaratory Relief: The City’s demurrer to this cause of action on the ground that it fails to state sufficient facts is, again, OVERRULED.

In general, a demurrer is not an appropriate method for testing the merits of a declaratory relief action because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff’s interest. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 752.) When a complaint sets forth facts showing the existence of an actual controversy between the parties relating to their respective legal rights and duties and requests that these rights and duties be adjudged, the plaintiff has stated a legally sufficient complaint for declaratory relief. It is an abuse of discretion for a judge to sustain a demurrer to such a complaint and to dismiss the action, even if the judge concludes that the plaintiff is not entitled to a favorable declaration. (Id. at 756. See also 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 877, p. 294.)

The City’s own request for judicial notice establishes that its prior demurrer to the first cross-claim was overruled. Repeaedt demurrers on grounds previously overruled are treated as requests from a party for the trial court to reconsider an earlier interim order and are not permitted unless they comply with CCP §§ 437c or 1008. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104, 1108; Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.) The fact that the first cross-claim as alleged in the TAXC includes allegations from Casa’s eliminated indemnity and apportionment cross-claims does not compel a finding that it fails to state sufficient facts. Also the decision in Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, cited by the City, is distinguishable in that Casa’s declaratory relief cross-claim is not “wholly derivative” of the Government Claims Act in the same manner that the declaratory relief claim in Ball was wholly derivative (in fact a duplication of) a California Legal Remedies Act claim.

Sixth cross-claim for Dangerous Condition of Public Property:
The City’s demurrer to the sixth cross-claim on the ground that it fails to state sufficient facts is SUSTAINED WITHOUT FURTHER LEAVE TO AMEND.

It is undisputed that Casa submitted a claim to the City on March 24, 2011 asserting that a purported defect in the City’s “Persian Main” sewer had caused damage to Casa’s private sewer system on November 29, 2010. (See TAXC at 38 and exhibit D to the TAXC. The March 24, 2011 date established by exhibit D controls over any contrary allegation in the TAXC.) The only injury described in the claim is that the City’s purported failure to “repair the sag” in the Persian Main sewer had resulted in “a sewer back up” on more than one occasion. No mention of any injury related to “standing sewage” is mentioned in the claim and Casa cannot now argue that the March 24, 2011 claim satisfies the pre-litigation claim filing requirement for such an injury. The City never formally rejected the March 24, 2011 claim wholly or in part, so as a matter of law Casa had two years to file suit on the claim running from November 29, 2010, the date of the injury. (See Gov. Code § 945.6(b).) Accordingly, a claim for dangerous condition of public property based on a “sag” in the Persian Main had to be filed by November 29, 2012. Casa’s original cross-complaint (exhibit 2 to the City’s request for judicial notice) was filed on August 6, 2013 and failed to allege any claim for dangerous condition of public property or even mention any “sag” of the Persian Main. Casa’s FAXC (exhibit 3 to the request) filed March 6, 2014 also did not allege any cross-claim for dangerous condition of public property based on a Persian Main defect, although the FAXC did refer to such as “sag.” The dangerous condition of public property claim was first alleged in the SAXC, deemed filed on January 31, 2017, more than four years after the two-year limitations period on the claim set forth in exhibit D had expired. This was (in part) the basis for the City’s prior demurrer to the claim.

The Court’s prior order sustained the demurrer to this claim with leave to amend, specifically to afford Casa an opportunity to add allegations supporting its argument in opposition that failure to comply with Government Claims Act Filing requirements for this cause of action could be excused by equitable estoppel and/or tolling. “When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641, emphasis added.)

Regarding equitable estoppel, while it normally presents a question of fact, “where the complaint pleads undisputed facts establishing that equitable estoppel does not apply, the issue may be resolved on demurrer.” (Sofranek v. Merced County (2007) 146 Cal.App.4th 1238, 1251. See also May v. City of Milpitas (2013) 217 Cal.App.4th 1307 [affirming trial court order sustaining demurrer without leave to amend despite assertion of equitable estoppel].) “A public agency is subject to estoppel from the assertion of either the time limits for filing tort claims, or the statute of limitations on a cause of action. Estoppel generally involves misrepresented or concealed facts. . . . [cited cases] reflect the black-letter principle that (in the absence of a confidential relationship) where the material facts are known to all parties and the pertinent provisions of law are equally accessible to them, a party’s inaccurate statement of the law or failure to remind the other party about a statute of limitations cannot give rise to an estoppel. Some cases assert that this simply amounts to a ‘mutual mistake of law’ and others remark that the estoppel elements of ignorance and reasonable reliance are absent. The invocation of estoppel is particularly inappropriate where the party seeking it was represented by counsel at the time of the misrepresentation of law.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1496-1497, emphasis in original, internal citations omitted. See also May v. City of Milpitas, supra, 217 Cal.App.4th at 1339 [The law particularly disfavors estoppels where the party attempting to raise the estoppel is represented by an attorney, as attorneys are charged with knowledge of the law in California].)

Here, Casa was at all relevant times represented by counsel and the undisputed facts show that equitable estoppel does not apply. There are no allegations, let alone specific allegations, that the City misrepresented or concealed facts related to March 24, 2011 claim. There was and is no confidential relationship between the City and Casa and, even assuming that the City made any inaccurate statement of law or failed to remind Casa that the time to file suit on its March 24, 2011 claim was running out, such action or inaction could not give rise to estoppel.

As for equitable tolling, it applies “occasionally and in special situations” “to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” (Addison v. State of California (1978) 21 Cal.3d 313, 319; see also McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) Equitable tolling “halts the running of the limitations period so long as the plaintiff uses reasonable care and diligence in attempting to learn the facts that would disclose the defendant’s fraud or other misconduct.” [Citation.] The doctrine “focuses primarily on the plaintiff’s excusable ignorance of the limitations period. [Citation.] [It] is not available to avoid the consequences of one’s own negligence.” (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460-461, Court’s emphasis.) Equitable tolling requires “a showing of three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.’ [Citations.]” (McDonald, supra, 45 Cal.4th at p. 102.)

Casa has also failed to demonstrate equitable tolling. Contrary to Casa’s assertions, neither the April 25, 2011 correspondence from the City Attorney’s office asking Casa to provide documents nor the May 27, 2011 correspondence asking if Casa intended to respond to the request for documentation (both attached as exhibit E to the TAXC) can reasonably be interpreted as “settlement negotiations” that could or did toll the limitations period for Casa’s March 24, 2011 claim. Casa’s counsel could not have reasonably believed otherwise. The facts here do not resemble those in the decisions cited by Casa such as Sumrall v. City of Cypress (1968) 258 Cal.App.3d 565 (where defendants expressly requested that plaintiff delay filing a complaint); Potstada v. City of Oakland (1973) 30 Cal.App.3d 1022 (where formal negotiations resulting in lowered settlement demands were deemed to toll the limitations period), or Nicolson-Brown, Inc. v. City of San Jose (1976) 62 Cal.App.3d 526 (where formal negotiations that lasted more than 21 months and resulted in a written agreement settling some issues before a lawsuit was filed were found to have tolled the limitations period).

Casa has not alleged any mutual conduct by the parties, or any unilateral action by the City, occurring after its March 24, 2011 claim was filed that could have created a reasonable and good faith belief that the two-year limitations period applicable to the claim that a “sag” in the Persian Man Sewer caused a sewer back up was tolled, nor has it alleged facts demonstrating it had any excusable ignorance of the two-year limitations period.

2) Motion to Strike portions of the TACC
As noted above, the motion to strike the TACC’s second and third causes of action in their entirety is GRANTED without leave to amend pursuant to CCP §436(b).

The remaining portion of the City’s motion to strike targets certain “introductory paragraphs” and portions of Fourth and Fifth causes of action that the City claims “include allegations regarding sources of damage other than that described in the single viable July 30, 2013 GCA claim,” on the basis that “such allegations are irrelevant and improper.” (See City’s Notice of Motion at 2:14-16 and “Appendix A” listing specific paragraphs.)

This portion of the City’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND as to paragraphs 40-46, 54, 90-94, 103, 104 and 105 as any claim Casa may have had at one time based on the March 24, 2011 claim is now time-barred and Casa has failed to demonstrate that equitable estoppel or tolling applies to preserve it. In all other respects the motion is DENIED as the City has not shown that the targeted allegations (many of which provide background information about this litigation or refer to property damage allegedly caused by roots rather than a sewer line) are irrelevant or improper. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683 [“[W]e have no intention of creating a procedural ‘line item veto’ for the civil defendant.”])