OrderCal. Super. - 6th Dist.May 11, 2018on 12/17/2018 2:48 PM Reviewed By: A. Nakamoto Envelope: 2285122 18CV328188 Santa Clara - Civil A. Nakamoto EFS-OZO ATTORNEY 0R PARTY vmmouT ATTORNEY: STATE BAR N0: 13291 1 FOR coum- U55 ONLy NAME: William R. Garrett FIRM NAME: Hanna & Van Atta STREET ADDRESS: 525 University Ave., Suite 600 CITY: Palo Alto STATE: CA ZIP CODE: 94301 TELEPHONE No.2 (650) 321-5700 FAX No; (650) 321-5639 E-MAIL ADDRESS: bgarrett@hanvan.com ATTORNEY FOR(name): plaintiff J. Cyril Johnson Family Limited Partnership SUPERIOR COURT 0F CALIFORNIA, COUNTY 0F Santa Clara STREETADDRESS: 191 N. First Street MAILING ADDRESS: 191 N. First Street CITY ANDZIP CODE: San Jose, CA 951 13 BRANCH NAME: Civil CASE NUMBER: PLAINTIFF/PETITIONER: J. Cyril Johnson Family Limited Partnership 18CV328188 DEFENDANT/RESPONDENT: City of Mountain View, et aL JUDICIALOFHCER: OTHER: Hon. Theodore C. Zayner DEPT: PROPOSED ORDER (COVER SHEET) 6 NOTE: This cover sheet is to be used to electronically file and submit to the court a proposed order. The proposed order sent electronically to the court must be in PDF format and must be attached to this cover sheet. In addition, a version of the proposed order in an editable word-processing format must be sent to the court at the same time as this cover sheet and the attached proposed order in PDF format are filed. 1- Name of the party submitting the proposed order: J. Cyril Johnson Family Limited Partnership 2- Title of the proposed order: [Proposed] Order re Demurrer 3‘ The proceeding to which the proposed order relates is: a. Description of proceeding: Hearing re demurrer b. Date and time: 12/13/18 @ 9:00am c. Place: Department 6 4. The proposed orderwas sewed onthe other partiesinthe case which appeared for the hearing and they have approved the form of the proposed Order. ' 2 77;" f , V , VWIiam R.Garrett ’ J ( "/Lga‘sz-C%A (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY) Page 1 0f 2 Form Adoplad Yor Mandatory Use PROPOSED ORDER (COVER SHEET) Cal. Rules ol Court, Judicial Councll of California . . . rulesz.252.3.1312 EFs-ozo[Rev.Febmary 1,2017} (Electronlc Flllng) wwwuns’cagov EFS-OZO CASE NAME: CASE NUMBER: J. Cyril Johnson Family Limited Partnership v City of Mountain View, et al. 18CV328188 PROOF OF ELECTRONIC SERVICE PROPOSED ORDER 1. | am at least 18 years old and not a party to this action. a: My residence or business address is (specify): Hanna 8. Van Atta, 525 University Ave., Suite 600. Palo Alto, CA 94301 b. My electronic service address is (specify): ahernes@hanvan.com 2, | electronically served the Proposed Order (Cover Sheet) with a proposed order in PDF format attached, and a proposed order in an editable word-processing format as follows: a. On (name ofperson served) (If the person served is an attorney, the pan‘y or panies represented should also be stated): Amin AI-Sarraf, Esq. (attorney for defendant City of Mountain View) Jessica Takano, Esq. (attorney for defendant San Antonio Center, LLC) Honorable Theodore Zayner (Dept. 6, Santa Clara County Superior Court) b. To (electronic service address ofperson served): aalsarraf@g|asen~eil.com; jtakano@donahue.com; c. 0n (date): December 17, 2018 Department6@ scscourt ' org E] Electronic service of the Proposed Order (Cover Sheet) with the attached proposed order in PDF format and service of the proposed order in an editable word-processing format on additional persons are described in an attachment. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: December 17. 2018 k ,2 (‘ ;\ ‘7 ~ L ' \ \ Alina M. Hernes ’ J ,vakgjg‘kqvj/ 1) (TYPE 0R PRINT NAME 0F DECLARANT) (SIGNATURE 0F DECLARANT) ‘ :7) EFS-OZO [Rev. February 1, 2017] PROPOSED ORDER (COVER SHEET) Page 2 DfZ (Electronic Filing) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 J. CYRIL JOHNSON FAMILY LP v CITY OF MOUNTAIN VIEW, ET AL. SANTA CLARA COUNTY SUPERIOR COURT; CASE NO. 18CV328 1 88 PROOF OF SERVICE BY MAIL CCP SECTION 1013(1) I am employed by the law firm of Hanna & Van Atta in the County of Santa Clara, California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 525 University Avenue, Suite 600, Palo Alto, California 94301-1921. On the date set forth belowl served the following documents: [PROPOSED] ORDER RE: DEMURRER on the parties in this action, by the following delivery method(s): El E K4 JCJ FLP V MERLONE GEIER, ET AL. - PROOF OF SERVICE FACSIMILE - by transmitting Via facsimile the document(s) listed above to the fax number(s) set forth below 0n this date before 5:00 p.m. ELECTRONIC MAIL - by submitting Via electronic mail the document(s) listed above t0 the e-mail address(es) set forth below. MAIL - by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Palo Alto, California addressed as set forth below. OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid, and depositing in a collection box for next day delivery t0 at the address(es) set forth below Via Federal Express. PERSONAL DELIVERY - by personally delivering the document(s) listed above t0 the person(s) at the address(es) set forth below. Amin Al-Sarraf, Esq. Counsel for defendants Merlone Glaser Weil Geier IX, LLC; MGP IX REIT, 10250 Constellation Blvd., 19th Floor LLC; MGP IX SAC II, LLC; MGP Los Angeles, CA 90067 IX SAC H PROPERTIES, LLC; 310.553.3000 (office) MGP IX PROPERTIES, LLC 3 10.282.6286 (office - direct) 3 10.785.3586 (fax) aalsarraf@ glaserwei1.com Peter C. Sheridan, Esq. Counsel for defendants City of Glaser Weil Mountain View 10250 Constellation B1Vd., 19th Floor Los Angeles, CA 90067 3 10.553.3000 (office) 3 10.282.6286 (office - direct) 3 10.785.3586 (fax) psheridan@glaserweil.com l law 0Eces 01' Hanna & Van Atta PALO ALTO, CA 94301 (63)) 321-5700 515 Ummm A\'£NUE,SUnE600 \Oooflm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John C. Kirke, Esq. Counsel for defendant San Antonio Jessica Takano, Esq. Center, LLC Donahue Fitzgerald LLP 1999 Harrison Street 25th Floor Oakland, California 946 1 2 510.251.7166 (office) jkirke@donahue.com jtakan0@d0nahue.com Allison J. Law, Esq. Counsel for defendants San Antonio Daniel L. Goodkin, Esq. Center II, LLC; FR San Antonio Goodkin & Lynch LLP Center, LLC; Federal Realty 1800 Century Park East, 10th Floor Partners LP; Federal Realty Los Angeles, CA 90067 Partners, Inc. (3 10) 5 52-3322 ext. 2020 (office) (310) 943-1589 (fax) alaw@,qoodkinlvnch.com dgoodkin@goodkinlvnch.com Stephen D. Pahl, Esq. Counsel for defendant Machado - Sonia S. Shah, Esq. San Antonio Partners, LLC Pahl & McCay 225 West Santa Clara Street, Suite 1500 San Jose, CA 95113-1752 408.286.5100 (office) 408.286.5722 (fax) spahl@pahl-mccay.com sshathpahl-mccay.com I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 17, 201 8, at Palo Alto, California. K ikSLWQKX \~,\ ~31 * Alina M. Hernes ' 3 ii Law 0mm; 0f JCJ FLP v MERLONE GEIER, ET AL. - PROOF 0F SERVICE muil'éllivvéfiéflm PAmALTO,CA 94301 (650)321-5700 \OOOQQU‘I-bwwr-t NNNNNNNNNHp-MHHy-Ar-AHr-‘H OOQQU‘I-PUJNHOKOOONQU‘I$UJNHO WILLIAM R. GARRETT (SBN 13291 1) HANNA & VAN ATTA 525 University Avenue, Suite 600 Palo Alto, CA 94301 Phone: (650) 321-5700 Fax: (650) 321-5639 Attorneys for Plaintiff J. Cyril Johnson Family Limited Partnership SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA J. CYRIL JOHNSON FAMILY LIMITED PARTNERSHIP, Plaintiff, V. MERLONE GEIER IX, LLC; MGP IX REIT, LLC; MGP IX SAC II, LLC; MGP IX SAC II PROPERTIES, LLC; MGP IX PROPERTIES, LLC; FEDERAL REALTY PARTNERS, INC; FEDERAL REALTY PARTNERS L.P.; FR SAN ANTONIO CENTER, LLC; MACHADO - SAN ANTONIO PARTNERS, LLC; SAN ANTONIO CENTER, LLC; CITY OF MOUNTAIN VIEW; and DOES 1 through 50, inclusive, Defendants. And related cross-action Case No.2 18CV328 1 88 [PROPOSED] ORDER RE: DEMURRER The demurrer by City 0f Mountain View came 0n for hearing before the Honorable Theodore C. Zayner 0n December 13, 2018 at 9:00 am. in Department 6. William R. Garrett personally appeared on behalf 0f plaintiff, J. Cyril Johnson Family Limited Partnership; Amin Al-Sarraf personally appeared 0n behalf of defendant, City of Mountain View; and Jessica Takano appeared by telephone on behalf of San Antonio Center, LLC. The matter -1- ORDER RE: DEMURRER Filed January 4, 2019 County of Santa Clara Superior Court of CA Clerk of the Court 18CV328188 By: afloresca Signed: 1/4/2019 11:39 AM \OOOQONKJI-PUJNp-d N N N [\J [\J-N [\) N N >-A p-A r-A >-t r-A r-t >4 p-A >-‘ 2-4 OOQONU‘l-bUJNF-‘OWOONQUI-lkwNHO having been submitted following oral argument of counsel, the Court finds and orders as follows. I. Background This lawsuit arises from a dispute over the development 0f a shopping center in Mountain View, California. Plaintiff J. Cyril Johnson Family Limited Partnership (the “Johnson Family Partnership”) owns one of the parcels upon which the shopping center was built and alleges several entities, with approval from defendant the City 0f Mountain View, developed the shopping center as it now stands without its consent. In 1962, the owners of 13 contiguous parcels of real property executed and recorded a Reciprocal Parking Agreement (the “Original Agreement”) for the purpose of developing a shopping center-now known as San Antonio Center-on the land bounded by West E1 Camino Real, San Antonio Road, California Street, and Showers Drive. (C0mp1., 1H] 24-32 & Ex. A [Original Agreement].) J. Cyril Johnson Investment Corporation (owned by its namesake) and Valley Title Company owned two of these parcels of land, namely parcels 12 and 13.1 (Comp1., 1H] 22-23 & EX. A at pp. 4-5.) Valley Title Company held title to parcel 13 in escrow for Mr. Johnson and his business partner; it transferred title to them in 1975. (Compl., 1] 23.) The Johnson Family Partnership alleges it owns parcel 13 as the successor 0f Mr. Johnson and his business partner. (Comp1., 11 4.) The Johnson Family Partnership also alleges it has the right to review and consent to proposed changes to the design and composition of the shopping center. (Compl., fl 40.) The Original Agreement included an illustrated development plan. (Comp1., EX. A.) The landowners agreed not t0 modify the parking lots, thoroughfares, and storefronts that were originally constructed in conformity with that development plan without first obtaining written consent from several 0f the other owners, including Mr. Johnson and his company? I Mr. Johnson also had the right to use several parcels he did not own, namely parcels 8-1 1. (Compl., Ex. A at p. 4.) 2 The Original Agreement specifically stated “Johnson”-defined as “J. Cyril Johnson Investment Corporation, a corporation, and J. Cyril Johnson”~-had to consent to development modifications. (Compl., Ex. A at p. 1.) _2_ ORDER RE: DEMURRER \OOONQUl-PUJNH NNNNNNNNNHHHHHHHr-dt-AH OOQONM-PWNHOOOOQQU‘ILUJNF-‘O (Compl., 1N 42-43 & EX. A at pp. 6-8.) According to the Johnson Family Partnership, it is now entitled to exercise these consent rights as the successor t0 Mr. Johnson, but has been denied the opportunity to do so. (Compl., fl 40.) In 201 1, a real estate developer that had acquired several 0f the constituent parcels- Merlone Geier Partners3-began the process 0f obtaining zoning and building approval from the City of Mountain View for two phases 0f redevelopment at the shopping center. (Compl., fl 50-60.) During this process, and as required by the City of Mountain View, Merlone Geier Partners procured and recorded three separate amendments t0 the Original Agreement. (Comp1., 1H] 50-60 & Exs. B-D.) The Johnson Family Partnership alleges Merlone Geier Partners and other new landowners, particularly defendants San Antonio Center, LLC, San Antonio Center II, LLC, Machado-San Antonio Partners, LLC, FR San Antonio Center, LLC, Federal Realty Partners, Inc., and Federal Realty Partners L.P., (collectively, “Developers”), amended the Original Agreement without its knowledge 0r consent and deprived it of its right to review and consent t0 any proposed redevelopment.4 (Compl., 1H] 49, 58, 63-68.) It also alleges the City 0f Mountain View negligently approved 0f the redevelopment without obtaining a title report or addressing inconsistencies in the paperwork presented to it for approval. (Compl., 1H] 59- 62.) The Johnson Family Partnership asserts causes of action against Developers and the City of Mountain View (the “City”) for: (1) quiet title (against Developers); (2) declaratory relief (against Developers and the City); (3) injunctive relief (against Developers and the City); (4) slander 0f title (against Developers); (5) breach 0f contract (against Developers); (6) fraud (against Developers); (7) contractual interference (against Developers); and 3 Merlone Geier Partners acted through a number of entities that are named as defendants in this action, particularly: (1) Merlone Geier IX, LLC; (2) MGP IX REIT, LLC; (3) MGP IX SAC II, LLC; (4) MGP IX SAC II Properties, LLC; and (5) MGP IX Properties, LLC. These entities are collectively referred to as Merlone Geier Partners; the partnership itself is not named as a defendant. 4 The Johnson Family Partnership did not sign the first amended agreement (the “First Amendment”) or any of the amendments that followed. Additionally, the First Amendment does not mention the owner of parcel 13 despite the fact that it otherwise contains detailed recitals about transfers 0f the constituent parcels during the intervening 30 years and ownership ofboth fee simple and leasehold interests in those parcels. (Comp1., Ex. B at p. 2.) ORDER RE: DEMURRER \OOOflQM-war-A NNNNNNNNNHr-dwr-Ap-Ar-Ir-dt-At-AH OOQQU‘I-hWNv-‘OKOOOQONM-PWNHO (8) negligence (against the City). It seeks equitable relief as well as compensatory and punitive damages. Currently before the Court is the City’s demurrer to the complaint and each claim asserted against it therein. II. Demurrer The City demurs to the complaint as well as the second, third, and eighth causes 0f action 0n the grounds of uncertainty and failure t0 state facts sufficient t0 constitute a cause 0f action.5 A. Uncertainty A demurrer 0n the ground 0f uncertainty tests whether a pleading is ambiguous, uncertain, or unintelligible. (See Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Ca1.App.4th 1125, 1135.) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Ca1.App.2d 143, 145-46.) The City argues the entire complaint is uncertain because the Johnson Family Partnership does not “allege with ‘clearness’ or ‘precision’ that it, in fact, owns Parcel Thirteen.” (Mem. of Pts. & Auth. at p. 1623-4.) The City’s apparent position is not that the pleading is uncertain, ambiguous, or unintelligible within the meaning of the statute, but rather that the Johnson Family Partnership must allege evidentiary facts about how it acquired title t0 parcel 13. 5 The City also states it is joining in and incorporating by reference the demurrers and motions to strike previously filed by the other defendants, which were heard by the Court on December 4, 2018. (Mem. of Pts. & Auth. at p. 8:7-8.) This statement is problematic in light of the content requirements and page limits for supporting memorandums of points and authorities. (See Cal. Rules of Court, rule 3.1 1 13.) More significantly, because the claims asserted against the City and the factual bases for those claims are materially different from those relative to the other defendants, it is fundamentally unclear how the arguments previously advanced by them support the conclusion that no claim has been stated against the City. Ultimately, the Court overruled the previous demurrers and denied the previous motions t0 strike. And so, the arguments the City incorporates by reference are unavailing for the reasons previously articulated by the Court in its order on those matters. -4- ORDER RE: DEMURRER \OOOQONU‘I-P-UJNr-A NNNNNNNNNb-IHr-‘r-Ar-‘r-Ar-Ar-‘r-AH OONQU‘I-PUJNHOGOOQONUI-DUJNHO This argument is unavailing for several reasons. First, the City’s argument concerns whether the Johnson Family Partnership must allege more facts With particularity as distinct from whether the facts alleged are ambiguous or unintelligible. It can undoubtedly be ascertained from the pleading that the Johnson Family Partnership is alleging it owns parcel 13, and so there is no basis for concluding the complaint is ambiguous in that regard. Second, the City provides no legal to authority t0 support the proposition that a plaintiff must allege evidentiary facts about title to real property. As a general rule, a plaintiff need not allege “‘each evidentiary fact that might eventually form part of the plaintiff s proof. . ..’ [Citation.]” (Ferrick v. Santa Clara University (2014) 231 Ca1.App.4th 1337, 1341.) Accordingly, the City’s argument is contrary to fundamental principles 0f pleading. Based on the foregoing, the City does not demonstrate the complaint or any claim asserted against it therein is uncertain. Accordingly, its demurrer on the ground of uncertainty is OVERRULED. B. Failure t0 State Sufficient Facts In general, “a complaint must contain ‘ [a] statement of the facts constituting the cause of action, in ordinary and concise language.” (Davaloo v. State Farm Insurance C0. (2005) 135 Ca1.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(l).) “This fact- pleading requirement obligates the plaintiff t0 allege ultimate facts that as a whole apprise[ ] the adversary 0f the factual basis of the claim.” (Davaloo, supra, 135 Ca1.App.4th at p. 415 [internal quotation marks and citations omitted].) Thus, a demurrer 0n the ground 0f failure to state facts sufficient to constitute a cause 0f action tests whether the plaintiff alleges each ultimate fact essential to his or her cause of action. (See CA. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, citing Code Civ. Proc., § 430.10, subd. (6).) The City advances distinct arguments concerning the sufficiency of the facts alleged in the second, third, and eighth causes of action, each of which is addressed below.6 6 The City also addresses these claims collectively and argues they are barred by the applicable statutes of limitations. The Court does not separately discuss this argument below because it is nearly word-for-word identical to the argument previously advanced by Merlone Geier Partners and rejected by the Court. The City’s argument suffers from the very same deficiencies previously identified by the Court in the order on Merlone _5_ ORDER RE: DEMURRER OOOOQQUl-D-UJNt-t NNNNNNNNNHHHHHHr-AHHr-A OOQQLA¢MNHO©OONONM$WNH 1. Second Cause of Action The second cause of action is for declaratory relief. A party may seek declaratory relief “in cases of actual controversy relating to the legal rights and duties of the respective parties. . ..” (Code Civ. Proc., § 1060.) To state a claim for declaratory relief, a plaintiff must simply allege facts showing there is an actual controversy; he 0r she need not allege facts showing entitlement to a favorable declaration. (Centex Homes v. St. Paul Fire and Marine Insurance Co. (2015) 237 Cal.App.4th 23, 29.) “Strictly speaking, therefore, a demurrer is not the appropriate weapon with which to attack the merits of a claim for declaratory relief.” (Siciliano v. Fireman ’s Fund Insurance C0. (1976) 62 Cal.App.3d 745, 755.) Nevertheless, the City argues there is no controversy alleged With respect t0 it. Its supporting reasoning is not a model 0f clarity.7 It asserts there is n0 controversy because it complied with two distinct conditions 0f approval for Developers’ zoning permit that its City Council adopted. Condition No. 11 states: Owners shall sign and be a party to an agreement (or amendment 0f an existing agreement), subject to the City’s approval and recorded to run With the land, which provides for easements, covenants, and conditions relating to applicable parking, vehicle access, pedestrian access, utility use, surface stormwater drainage, and other uses between the subject properties and the existing San Antonio Center properties east 0f the proj ect. The agreement, together with all attachments, must be submitted to and approved by the Community Development Department and the City Attorney’s Office prior t0 approval 0f the parcel map. (Compl., 1] 53.) Geier Partners’ demurrer. Accordingly, the Court does not restate its reasoning here and concludes the argument as advanced by the City does not justify sustaining the demurrer for the reasons previously articulated. 7 For example, in one instance, instead of providing an explanation for its conclusion that “n0 controversy could possibly exist. . .,” the City simply italicizes words for emphasis in a manner that does not actually make clear what its reasoning or legal argument is. (Mem. of Pts. & Auth. at p. 1123-7.) -6- ORDER RE: DEMURRER p-A NNNNNNNNNHHr-‘r-AHp-Ap-Ar-dr-At-A OOQONUIAUJNt-‘OKOOONONUI-RUJNr-‘O \OOOVONUIAUJN Condition N0. 31 states: “All above-grade and at-grade parking shall be accessible to other properties in the San Antonio Shopping Center in accordance with the existing Reciprocal Parking Agreement as stated in the San Antonio Center Precise Plan.” (Comp1., 1] 56.) The City states asserts because it approved 0f the amendments to the Original Agreement, it complied with Condition N0. 11. It also states there is no allegation that it failed to comply with Condition N0. 3 1. The problem with its argument is that it is fundamentally unclear how that shows there is no controversy alleged. The City does not clearly tether its argument t0 the allegations in the pleading. Its argument, in fact, appears t0 be based 0n a misapprehension of the complaint. Contrary t0 What the City appears to assume, the Johnson Family Partnership is not alleging there is a dispute because it failed t0 approve Developers’ application. The Johnson Family Partnership alleges there is a controversy specifically because the City improperly approved of the amendments without adequate investigation and despite facial defects and inconsistencies in the application. (Compl., W 50~62.) Thus, the City’s argument is inapt. In conclusion, the City does not demonstrate no controversy has been alleged sufficient t0 state a claim for declaratory relief. The demurrer to the second cause 0f action is therefore OVERRULED. 2. Third Cause 0f Action The City argues the Court should sustain the demurrer to the third cause of action for injunctive relief because the Johnson Family Partnership does not allege facts to support its claim for such relief. An injunction is an equitable remedy. (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 647.) “T0 properly plead facts for injunctive relief, the complaint must plead (1) the elements 0f a cause of action involving the wrongful act sought to be enjoined and (2) ‘[t]he grounds for equitable relief 0f this kind, i.e., a showing of inadequacy of the remedy at law.’ [Citation.]” (Ibid) ORDER RE: DEMURRER \OOONQUI-bWNr-n NNNNNNNNNI-‘Ht-Ar-At-dt-‘r-‘r-Ih-‘H WQCNm-bWNHOQOOflmUI-PWNHO The City asserts the complaint contains no allegation that a legal remedy is inadequate as necessary t0 support a claim for injunctive relief. The City is correct that the Johnson Family Partnership does not allege there is no adequate remedy at law. In opposition, the Johnson Family Partnership does not dispute this fact or argue that the facts alleged otherwise show there is no adequate legal remedy despite the absence of an explicit allegation of that ultimate fact. Instead, the Johnson Family Partnership argues it alleges entitlement to mandamus relief. This argument is not actually responsive to the argument advanced by the City and is not otherwise persuasive. Although not clearly articulated by the Johnson Family Pafinership here, it appears to be arguing it adequately pleads entitlement to a traditional writ of mandates under Code of Civil Procedure section 1085.9 That statute authorizes a court to issue a writ 0f mandate t0 compel a local official to perform a ministerial duty, which is “an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists.” (Alliancefor a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 128-29.) A court may issue the writ if there is: “(1) a clear, present, ministerial duty on the part of the respondent and (2) a correlative clear, present, and beneficial right in the petitioner t0 the performance of that duty.” (Id. at p. 129.) Code of Civil Procedure section 1086 states the writ “must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” “Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner.” (Flores v. Dept. ofCorrectz'ons & Rehabilitation (2014) 224 Cal.App.4th 199, 206 [internal quotation marks and citation omitted] .) 8 “The writ of mandamus may be denominated a writ of mandate.” (Code Civ. Proc., § 1084.) 9 Under other circumstances, a court may issue a writ of administrative mandate under Code 0f Civil Procedure section 1094.5. (See Excelsior College v. Bd. ofRegisteredNursing (2006) 136 Cal.App.4th 1218, 1237-39 [discussing traditional and administrative writs of mandate].) -8- ORDER RE: DEMURRER \OOONQU‘IhUJNn-A NNNNNNNNNHb-tr-‘r-thfly-Ap-‘HHW OONONLh-bUJNF-‘OCOOQQUIQWNHO The Johnson Family Partnership clearly is not seeking a writ of mandate. In addition to the fact that it has not filed a verified petition for a writ 0f mandate (see Code Civ. Proc., § 1086), it specifically asks for an injunction and not a writ (Compl., 1] 90). Additionally, because the issuance 0f a writ of mandate, like the issuance 0f an injunction, depends on the unavailability 0f an adequate legal remedy, the Johnson Family Partnership also fails to allege facts showing entitlement to a writ of mandate for the same reasons articulated above. Consequently, its argument is not persuasive. Based on the foregoing, the demurrer t0 the third cause of action is sustainable. “If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.” (City ofStockfon v. Super. Ct. (2007) 42 Ca1.4th 730, 747.) Here, the cause 0f action for injunctive relief is incapable 0f amendment because “it is not actually a cause 0f action.” (Allen v. City ofSacramento (2015) 234 Cal.App.4th 41, 65.) With that said, the Johnson Family Partnership may obtain an injunction if it is otherwise entitled to that remedy. (See ibid.) Accordingly, although the Johnson Family Partnership may not amend this particular claim in the form in which it is pleaded, it may otherwise allege new facts elsewhere in the pleading to support a prayer for injunctive relief. Accordingly, the demurrer t0 the third cause 0f action is SUSTAINED With 10 days’ leave to amend consistent With the limitation herein. 3. Eighth Cause 0f Action The eighth cause of action is for negligence. The City argues this claim is subject to demurrer because the Johnson Family Partnership does not identify a statutory basis for its claim and allege compliance With the claim presentation requirement 0f the Government Tort Claims Act. In opposition, the Johnson Family Partnership essentially concedes these arguments are meritorious and seeks leave t0 assert an inverse condemnation claim. (Opp. at p. 6: 1 5-22.) It is true that a public entity can only be held liable to the extent “provided by statute.” (Gov. Code, § 815.) In other words, a claim against a public entity must be based on -9- ORDER RE: DEMURRER \OOONONM-PWNH NNNNNNNNNr-lr-IHp-AHHp-Ar-tr-AH OOflQm-PWNHowooflONU‘I-PWNF-‘o a statutory duty and not a common law duty. (Washington v. County ofContra Costa (1 995) 38 Cal.App.4th 890, 895-96.) Statutory claims must be pleaded With particularity, and so a plaintiff must specifically allege the statute upon which his or her claim against a public entity is based. (Ibid, citing Brenneman v. State ofCaZiform'a (1989) 208 Cal.App.3d 812, 816-17.) As the Johnson Family Partnership concedes, it does not identify the statutory duty upon which its claim against the City is based. Accordingly, the allegations in the eighth cause of action are deficient. The City is also correct that before filing a civil action for damages against a public entity, a plaintiff must present an administrative claim t0 the entity that sets forth, among other things, “[a] general description 0f the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (Gov. Code, §§ 910, 945.4.) If a plaintiff does not allege facts showing compliance or an excuse for noncompliance with the claim presentation requirement, his or her cause of action is subject to demurrer on the ground of failure to state facts sufficient to constitute a cause 0f action. (State ofCalifornia v. Super. Ct. (2004) 32 Ca1.4th 1234, 1243; accord Nasrawi v. Buck Consultants, LLC (2014) 231 Cal.App.4th 328, 338.) The Johnson Family Partnership does not allege it complied with the claim presentation requirement. It appears t0 concede both that it did not d0 so and cannot timely do so at this juncture. (See Gov. Code, § 91 1 .2 [time for presenting claim].) Thus, the demurrer is sustainable on this additional basis. In opposition, the Johnson Family Partnership seeks leave to amend the complaint to assert a claim for inverse condemnation instead 0f negligence. Here, there is no basis for concluding the Johnson Family Partnership cannot possibly state a claim for inverse condemnation. (See City ofStockton, supra, 42 Ca1.4th at p. 747.) Indeed, as it points out, such claims are not subj ect t0 the claim presentation requirement discussed above. (Patrick Media Group, Inc. v. Cal. Coastal Com. (1991) 9 Cal.App.4th 592, 607, citing Gov. Code, § 905.1.) Consequently, leave to amend is warranted. In conclusion, the City’s demurrer to the eighth cause of action is SUSTAINED With 10 days’ leave to amend. -10- ORDER RE: DEMURRER \OOONONU‘I-wat-A NNNNNNNNNr-tr-‘HHr-tr-Ar-Ar-tb-AH OOQONM-PWNHOKOOONQM-hUJNP-‘O 4. Entire Complaint The City’s demurrer is also directed to the entire complaint as a Whole. A demurrer to a complaint as a whole is sustainable “only if no count of the complaint states facts sufficient to entitle [the plaintiffl to relief on any theory.” (Warren v. Atchison, T. & SF. Ry. C0. (1971) 19 Ca1.App.3d 24, 29.) As reflected above, the demurrer is not sustainable with respect t0 the second cause 0f action. Consequently, the demurrer to the entire complaint is OVERRULED. Date: December _, 201 8 Hon. Theodore C. Zayner Judge of the Superior Court -11- ORDER RE: DEMURRER Signed: 1/2/2019 03:40 PM
