2012-00117033-CU-EI

Carolyn Benge vs. Sacramento County

Nature of Proceeding: Motion for Summary Adjudication
Filed By: Franck, Herman

*** Judge Cadei discloses that his wife, Toni J. Moore, is the Executive Director
of the First 5 Sacramento Commission, an entity which is part of the County of
Sacramento. First 5 California and 58 First 5 County Commissions were created
by statewide voter initiative passed in 1998. First 5 is separately funded out of
special tobacco tax proceeds and is directed to support programs for children.
As such the Commission is not dependent on the general funds of Sacramento
County for its operations. The Board of Supervisors of Sacramento County
does review and approve its yearly budgets and long-term plans. ***

This matter was originally set for hearing on 4/9/2013 but was after oral argument
continued to 7/16/2013 to permit further briefing, which was received from both parties
in early July 2013. The hearing was thereafter continued to 9/23/2013 so this motion
could be heard simultaneously with another defendant’s demurrer to the Third
Amended Complaint. When further briefing was requested in connection with that
demurrer, the present motion was continued again to 10/23/2013. The Court has
considered the further briefing submitted by the parties and now issues the following
tentative ruling.

Plaintiffs’ motion for summary adjudication as against defendant Evans is DENIED, as
follows.

Moving counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4)
and with Rule 3.1350(g), which explicitly requires all evidence exceeding 25 pages to
be included in a single volume of evidence with a table of contents.

Defendant Evans’ counsel is admonished for failing to comply with CRC Rules 2.111
(3), 3.1110(b)(3)-(4) and 3.1350(f), (h).

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

This litigation arises out of a dispute over real property. The Third Amended
Complaint (“3AC”) filed after this motion was filed alleges causes of action for inverse
condemnation, trespass, negligence, intentional infliction of emotional distress,
reformation of deed and both declaratory and injunctive relief.

Plaintiffs now move for summary adjudication of defendant Evans’ Third and Fourth
Affirmative Defenses (in his Answer to the First Amended Complaint) which,
respectively, allege that there was oral agreement between the parties relating to the
real property at issue and that plaintiff’s claims in the SAC are barred by the
assumption of risk doctrine. Plaintiffs also seek summary adjudication of defendant
Evans’ legal duty to comply with the conditions stated on the plan map he filed with the
Planning Department for the County of Sacramento. As support for summary
adjudication of these three issues, plaintiffs offer a total of fifteen Undisputed Material
Facts (“UMF”) with four in support of the first issue, six in support of the second issue
and five in support of the last. (For unknown reasons, plaintiffs did not identify each
set of UMF with successive numbers (i.e., 1-15) but instead started each of the three different issues with “UMF 1.”)

Defendant Evans filed a memorandum of points & authorities in opposition but it does
little more than argue that plaintiffs’ motion is “premature” because more discovery
needs to be completed. Although Code of Civil Procedure §437c(h) permits a party
opposing a summary judgment/adjudication motion to obtain a continuance, defendant
Evans has failed to make a proper, timely request. Defendant Evans failed to submit a
valid declaration establishing not only that there likely exists evidence which would
support an opposition to the present motion but also that such discovery could not
have reasonably been completed prior to the opposition’s due date. Accordingly, this
Court exercises its discretion and denies a continuance of this motion. (See, e.g.,
Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 251, 255-256; Combs v. Skyriver
Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) The Court also notes that
defendant Evans failed to make a request for continuance “as soon as possible,” as
recommended by Weil & Brown. (Weil & Brown, Civil Procedure Before Trial, Ch.
10:207.6.)

Although the opposition papers also request leave to amend defendant Evans’ answer
to complaint, he has to date failed to file and serve a noticed motion for leave even
though the present motion has been pending for over nine (9) months. Similarly, while
he was presumptively free to file a new answer in response to the 3AC filed by
plaintiffs in May 2013, defendant Evans has not yet done so.

On 7/3/2013, defendant Evans filed an amended separate statement pursuant to the
Court’s 4/9/2013 ruling after oral argument. The Court notes that the amended
separate statement does not respond to any of the UMF offered by plaintiffs but rather
purports only to present seven (7) Additional Material Facts (“AMF”) claimed by
defendant Evans to preclude summary adjudication of the three (3) issues presented
rd th
by the moving papers (i.e., 3 and 4 Affirmative Defenses plus a duty to comply with
the plan map’s conditions). All of these AMF cite the declarations of defendant Evans
and/or John Quiel as evidentiary support. The amended separate statement fails to
include any citation to the relevant page and line numbers of the supporting evidence
as expressly required by CRC Rule 3.1350(f).

Plaintiffs’ objections (found on Page 1 of Reply Brief filed 4/2/2013) to the Nelson
Declaration (filed 3/27/2013) do not comply with the required format specified in CRC
Rule 3.1354(b) but are nevertheless sustained.

Plaintiffs’ objection (filed 7/9/2013) to defendant Evans’ amended separate statement
along with the declarations of both defendant Evans and John Quiel on the ground
these documents were not timely filed is overruled.

Plaintiffs’ written objections (filed 7/9/2013) to the declarations of both defendant
Evans and John Quiel do not comply with the required format specified in CRC Rule
3.1354(b) in that they fail to quote or set forth the objectionable material and are
overruled.

Defendant Evans filed no written objections to evidence.

The Court finds that plaintiffs’ moving papers are sufficient to meet their initial burden
of production under Code of Civil Procedure §437c(p)(1) and the Court notes that
defendant Evans’ opposition nowhere argues otherwise. Thus, plaintiffs have
successfully shifted to defendant Evans the burden of producing admissible evidence
which demonstrates the existence of at least one triable issue of material fact with
respect to each of the three issues sought to be summarily adjudicated here.

Because all of plaintiffs’ objections to defendant’s evidence have been overruled,
defendant’s evidence in opposition to this summary adjudication motion must be
construed liberally while the evidence offered in support is construed narrowly. (See,
e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of
California (1999) 75 Cal.App.4th 903.) This Court holds that the evidence offered by
defendant in support of his seven (7) AMF are sufficient to establish the existence of at
least one triable issue of material fact which precludes judgment as a matter of law in
favor of plaintiffs and against defendant Evans on each of the three (3) issues
presented in the notice of motion.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, counsel for
defendant Evans to prepare an order which conforms to Code of Civil Procedure
§437c(g).

Item 16 2012-00117033-CU-EI

Carolyn Benge vs. Sacramento County

Nature of Proceeding: Hearing on Demurrer to Third Amended Complaint

Filed By: O’Dea, Gregory P.

*** Judge Cadei discloses that his wife, Toni J. Moore, is the Executive Director
of the First 5 Sacramento Commission, an entity which is part of the County of
Sacramento. First 5 California and 58 First 5 County Commissions were created
by statewide voter initiative passed in 1998. First 5 is separately funded out of
special tobacco tax proceeds and is directed to support programs for children.
As such the Commission is not dependent on the general funds of Sacramento
County for its operations. The Board of Supervisors of Sacramento County
does review and approve its yearly budgets and long-term plans. ***

The County’s demurrer to the third amended complaint of Plaintiff Carolyn Benge and
Carolyn Benge as Trustor and Trustee of the Carolyn Benge Family Trust Dated April
14, 1996 (collectively “Benge”) is OVERRULED.

Benge alleges that she is the owner of real property. She alleges that the County and
others violated her property rights in connection with various parties’ noncompliance
with two conditions stated in a parcel map (the ”Parcel Map”) affecting an adjacent lot.
The conditions in question, i.e., Condition Nos. 7 and 8, contemplate that, upon sale of
parcels to the immediate south of Benge’s property, a private street maintenance
agreement would be reached and private road easements would be provided to certain
of the parcels:

7. A private street maintenance agreement is to be concurrently entered
into upon the purchase of each parcel.

8. Private road easements for access to Parcel B & C are to be provided
with the sale of said Parcels.
Benge alleges that the individual who developed the parcels to the south, Defendant
Michael Evans (“Evans”), failed to comply with Condition Nos. 7 and 8 when he sold
the parcels and, therefore, new owners have been using her driveway to access their
property. (The driveway consists partly of Benge’s property and partly of the property
formerly owned by Evans and currently owned by Co-Defendant Mark Girdlestone.)
Benge further alleges that, despite her requests that the County enforce Conditions 7
and 8 of the Parcel Map, the County has failed to take corrective action. She also
alleges that the County granted a permit to a neighbor to build a pool and fence that
preclude construction of a right of way in that area. And she alleges that, at some time
after the Parcel Map was created, the County “dropped” or modified Conditions 7 and
8 and thus induced others to trespass onto her property.

Benge has pleaded a cause of action against the County for Inverse Condemnation.
The court sustained the County ‘s demurrers to this cause of action as stated in
Benge’s previous pleadings. The County now demurs to the cause of action against it
on grounds that the allegations fail to state facts sufficient to state any cause of action.

The court directed the parties to submit supplemental briefs on the question whether
Benge’s allegations that the County (1) dropped the conditions from the parcel map
and (2) issued a permit for constriction of a pool and fence on a neighbor’s property
could be construed to state a regulatory taking. Neither party has cited a case that is a
close factual analog to the case at bar. Nor has the County cited an authority
establishing that, as a matter of law, a public entity’s approval of parcel maps or
issuance of construction permits to neighboring properties are outside the scope of the
regulatory acts that can support a regulatory inverse condemnation cause of action.

A regulatory taking supporting an inverse condemnation cause of action occurs when
“an intangible intrusion into the property has occurred which has caused no damage to
property itself but places a burden on the property that is direct, substantial, and
peculiar to the property itself. (Oliver v. AT&T Wireless Svcs. (1999) 76 Cal.App.4th
521, 530 [emphasis in original].) Liberally construed, Benge’s allegations establish
that the County participated in course of conduct that helped divert traffic onto, and
diminish the value of, Benge’s property. The court is not persuaded that these
allegations cannot state a regulatory taking as matter of law. Accordingly, the court
overrules the County’s demurrer.

The County is directed to file and serve its answer no later than November 1, 2013.

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