Case Number: BC533572 Hearing Date: June 09, 2014 Dept: 56

Case Name: SHORP, et al. v. City of Beverly Hills
Case No.: BC533572
Matters: Demurrer and Motion to Strike

Tentative Ruling: Demurrer is sustained; Motion to strike is moot.

This is an inverse condemnation action by homeowners who are members of SHORP (Spaulding Homeowners Overlooking Roxbury Park), against the City of Beverly Hills. Plaintiffs’ back yards are adjacent to Roxbury Park and formerly had unobstructed views of the Hollywood Hills and Santa Monica Mountains. Plaintiffs allege that the City planted redwood trees in the park in 1989, and the trees are obstructing their views. Plaintiffs’ operative pleading is the first amended complaint filed on 3/20/14, which alleges one cause of action for inverse condemnation pursuant to Cal. Const. Art. I, §19.

Defendant demurs and moves to strike the FAC. It requests judicial notice of photographs and landscaping plans for Roxbury Park. The RJN is granted, although the court has considered the materials only as context for the dispute and not as establishing any independent facts.

The City demurs on the ground that Plaintiffs have not alleged cognizable injuries that would support an inverse condemnation claim. This has merit.

Inverse condemnation is an action to recover damages for injury to property by a public agency with power to condemn. The first element of the claim is establishing an injury to a cognizable property right. San Diego Gas v. Superior Ct. (1996) 13 Cal.4th 893, 940. As the Supreme Court recently held in Regency Outdoor v. City of Los Angeles (2006) 39 Cal.4th 507, 516, “An inverse condemnation plaintiff does not establish that its property has been ‘taken’ or ‘damaged’ merely by showing that government action has somewhat decreased the market value of the property.”

In San Diego Gas, supra 13 Cal.4th at 940, the court held that the plaintiffs could not state an inverse condemnation claim for an intangible intrusion caused by electromagnetic fields from power lines. In our case, Plaintiffs allege that they have suffered an injury from impairment of their panoramic views from the trees in Roxbury Park, but no California court has recognized an inverse condemnation claim based upon such an injury. Indeed, in Regency Outdoor, supra 39 Cal.4th at 518-22, the court decisively rejected a similar inverse condemnation claim based upon trees that impaired the visibility of roadside billboards.

Plaintiffs also allege that they have suffered injury from the increased risk of fire from the trees in Roxbury Park, but this kind of speculative injury has also been rejected. In San Diego Gas, supra 13 Cal.4th at 943, the court held that the plaintiffs could not base an inverse condemnation claim on the risk of future injury that might result from exposure to electromagnetic fields. Courts of Appeal have also rejected inverse condemnation claims based upon the kind of speculative injury that Plaintiffs have alleged here. See Thousand Trails v. California Reclamation Dist. (2004) 124 Cal.App.4th 450, 465 (“a cause of action does not exist for inverse condemnation premised upon a risk of future flooding”); Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1261 (same).

Plaintiffs have therefore failed to allege cognizable injuries that would support an inverse condemnation claim, and the demurrer is sustained on that ground. It is not necessary to address the parties’ arguments regarding the statute of limitations. The demurrer having been sustained, the motion to strike is moot.

It does not appear Plaintiffs can allege facts that would support a viable cause of action, and the court is therefore prepared to sustain the demurrer without leave to amend. See Long v. Century Indemnity (2008) 163 Cal.App.4th 1460, 1468; Vaillette v. Fireman’s Fund (1993) 18 Cal.App.4th 680, 685. If Plaintiffs believe that they can allege a viable cause of action, counsel should address this at the hearing.