Case Name: Jennifer Blomquist and Michael Blomquist v. Santa Clara County, et al.
Case No.: 2016-CV-304201

Demurrers to the First Amended Verified Petition for Writ of Mandate by Respondents Santa Clara County, Larry Stone, Kirk Girard, Mike Wasserman, Robert Eastwood, Bill Shoe, Darrell Wong, Carolyn Walsh, Mac Bala, Mark Ruffing, Michael Rossi, Shelly Theis, and Darrin Lee and Real Party In Interest San Jose Water Company

Factual and Procedural Background

This action arises from the installation of a new water tank located adjacent to the property of petitioners Jennifer Blomquist and Micheal Blomquist (collectively, “Petitioners”). Petitioners allege that approval of the new water tank constitutes a takings per se and has diminished the value of their property. (See First Amended Verified Petition for Writ of Mandate [“First Amended Petition”] at p. 2.) Petitioners claim that respondents failed to follow Constitutional due process or basic ministerial tasks in approving the new water tank and other projects impacting their property. (Id. at p. 18.)

On January 30, 2017, Petitioners filed a First Amended Petition, now the operative pleading.

The following motions are presently before the Court: (1) a demurrer to the First Amended Petition by respondents Santa Clara County, Larry Stone, Kirk Girard, Mike Wasserman, Robert Eastwood, Bill Shoe, Darrell Wong, Carolyn Walsh, Mac Bala, Mark Ruffing, Michael Rossi, Shelly Theis, and Darrin Lee (collectively, “Respondents”); and (2) a demurrer to the First Amended Petition by real party in interest San Jose Water Company (“SJW”).

Respondents’ Demurrer to the First Amended Petition

Untimely Opposition

Petitioners filed written opposition and a request for judicial notice, on April 4, 2017. The opposition to the demurrers was untimely. Code of Civil Procedure 1005, subdivision (b) requires all opposing papers to be filed and served at least nine court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing. (Cal. Rules of Court, rule 3.1300(d).) If the Court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate. (Ibid.)

Here, the demurrers are scheduled for hearing on April 13, 2017. Thus, any opposition papers must be filed and served no later than March 30, 2017. Petitioners untimely filed and served their opposition on April 4, 2017. Nevertheless, the moving parties did not suffer any prejudice from this untimely opposition as they were able to timely file and serve reply papers addressing the opposition. Thus, the Court will consider the merits of the April 4, 2017 opposition. Petitioners are admonished to comply court rules and procedures with respect to future filings.

SJW filed reply papers. Thereafter, on April 7, 2017 Petitioners filed a sur-reply. The Court declines to consider the sur-reply as Petitioners were not authorized to file it.

However, on April 11, 2017, Petitioners filed yet another pleading in opposition, an opposing memorandum to the demurrers. As noted above, Code of Civil Procedure section 1005, subdivision (b) requires all opposing papers to be filed and served at least nine court days before the hearing. Thus, any opposition was required to be filed and served no later than March 30, 2017. Here, Petitioners filed and served another untimely opposing memorandum a mere two days before the hearing on the motions. Furthermore, Petitioners are not exempt from compliance with the Code of Civil Procedure by virtue of their self-representation status. Under the law, a party may choose to act as his or her own attorney. (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898; Gray v. Justice’s Court (1937) 18 Cal.App.2d 420, 423.) “[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].)

Therefore, the Court in its discretion declines to consider the second untimely opposing memorandum filed April 11, 2017 in addressing the demurrers. The Court finds that Respondents are prejudiced by this late filing, as they have had no reasonable opportunity to reply to these papers.

Request for Judicial Notice

In opposition, Petitioners request judicial notice of a number of documents including declarations, emails, and complaints from other actions. (See Exhibits A through M.) “Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)
Here, Petitioners fail to explain how any of these exhibits are relevant to addressing issues raised by the demurrers. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [a court may decline to judicially notice material that has no bearing on the limited legal question at hand], overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1273-1276.)

Therefore, the request for judicial notice is DENIED.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) “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.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Analysis

Respondents demur to the First Amended Petition on the grounds of uncertainty and failure to state a cause of action. (See Code Civ. Proc., § 430.10, subds. (e), (f). More specifically, Respondents argue that: (1) the First Amended Petition is uncertain and violates California Rules of Court, rule 2.112 ; (2) public entities and their employees are immune from liability for injuries caused by the issuance, denial, suspension, or revocation of any permit, and the decision to or refusal to prosecute a public nuisance action; (3) Petitioners fail to state a claim against Respondents’ counsel; and (4) Petitioners fail to comply with the Government Claims Act (see J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1219 [the failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against the public entity]).

In opposition, Petitioners did not file a written memorandum of points and authorities addressing the arguments raised on demurrer. Rather, petitioner Michael Blomquist submitted his own declaration under penalty of perjury. However, courts cannot accept declarations on demurrer which consider only the pleaded facts of the complaint and any judicially noticed documents. (See Blank, supra, 39 Cal.3d at p. 318; see also Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [court cannot consider substance of declarations for purposes of demurrer].) Even if the Court were to consider the declaration, it fails to address any of the arguments or legal authorities raised on demurrer. Instead, the declaration refers to a meet and confer conference call with counsel for Respondents and SJW as well as statements made by Respondents’ counsel to the Court. None of these points are sufficient to overcome the arguments raised on demurrer which appear to be well-taken.

Therefore, Respondents’ demurrer to the First Amended Petition is SUSTAINED WITHOUT LEAVE TO AMEND on the grounds of uncertainty and failure to state a cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (Goodman) [plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading]; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (Hendy) [“the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”].)

SJW’s Demurrer to the First Amended Petition

SJW demurs to the First Amended Petition on the ground that it is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) As stated above, the declaration filed in opposition fails to substantively address the arguments raised on demurrer which appear to be well-taken.

Therefore, SJW’s demurrer to the First Amended Petition is SUSTAINED WITHOUT LEAVE TO AMEND on the ground of uncertainty. (See Goodman, supra, 18 Cal.3d at p. 349 [plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading]; see also Hendy, supra, 54 Cal.3d at p. 742 [“the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”].)

After Respondents have served notice of entry of the written order on the Petitioners, Respondents shall submit a proposed judgment either approved as to form or with a showing of compliance with Rules of Court, Rule 3.1312.

The Court will prepare the Order.