Minute OrderCal. Super. - 6th Dist.September 6, 2018SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Casey Burkhart et al vs Midpeninsula Regional Open Hearing Start Time; 9:00 AM Space District 18CV334473 Hearing Type: Hearing: Demurrer Date of Hearing: 12/18/2018 Comments: Heard By: Stoelker, James L Location: Department 13 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Robert Gutierrez Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. No one called to contest the Tentative Ruling. The tentative ruling is adopted. See below for ruling. Case Name: Casey Burkhart, et al. v. Midpeninsula Regional Open Space District Case No.2 18CV334473 I. Background This action arises from a dispute over water rights. Casey and Amy Burkhart (collectively, Plaintiffs ) own and reside on land adjacent to land owned by defendant Midpeninsula Regional Open Space District ( Defendant ), namely Stevens Canyon Ranch. (Compl. at pp. 1:15 2:4.) According to Plaintiffs, in 1928, the former owner of Stevens Canyon Ranch and the former owner of their property executed a water-rights agreement. (Compl. at p. 2:6 15 & Ex. A.) These former owners agreed a water pipeline would be constructed across Stevens Canyon Ranch and water would be supplied from a well or spring thereon to the adjacent property for $1.00 per month. (Compl. at p. 2:12 15.) In accordance with this agreement, Defendant historically provided Plaintiffs with sufficient water for domestic use. (Compl. at p. 2:17 19.) In February 2017, a landslide obstructed the spring and damaged the pipeline. (Compl. at p. 2:18 21.) As a result, Plaintiffs had to rely on a delivery service that trucks 3,600 gallons of water to their property at a time. (Compl. at p. 4:5 6.) Defendant paid for Plaintiffs water deliveries for a year, but has refused since March 1, 2018, to provide them with water through any means, including through the pipeline, even though the spring is no longer obstructed and began to flow again. (Compl. at pp. 2:19 24, 4:5 8.) Plaintiffs allege Defendant s refusal to do so violates the water-rights agreement. (Compl. at p. 3:3 12.) Plaintiffs seek an injunction requiring Defendant to supply spring or well water in accordance with the water- rights agreement and damages to compensate them for the cost of the water deliveries they have had to Printed: 12/18/2018 12/18/201 8 Hearing: Demurrer - 18CV334473 Page 1 ofS SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER purchase as a result of its breach. (Compl. at p. 5:2 10.) Currently before the Court is Defendant s demurrer to the complaint, which is accompanied by a request for judicial notice. ||. Request for Judicial Notice In support of Defendant s demurrer, it requestsjudicial notice of several sections of the Santa Clara County Code of Ordinances (the County Code ). Defendant states the provisions are subject to judicial notice pursuant to Evidence Code section 452, subdivision (d), which authorizes judicial notice of court records. But that particular subdivision is inapplicable because the County Code is not a court record. In actuality, the provisions of the County Code are subject to judicial notice under Evidence Code section 452, subdivision (b), which authorizes judicial notice of [r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (See, e.g., Weisner v. Santa Cruz Cty. Civil Service Com. (2016) 248 Cal.App.4th 340, 344, fn. 1.) Defendant s request forjudicial notice is therefore G RANTED. |||. Demurrer Defendant demurs to the complaint on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subd. (e).) 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 Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., 425.10, subd. (a)(l).) This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim. (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) Thus, a demurrer on the ground of failure to state facts sufficient to constitute a cause of action tests whether the plaintiff alleges each ultimate fact essential to his or her cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Ca|.4th 861, 872, citing Code Civ. Proc., 430.10, subd. (e).) Defendant argues the complaint is subject to demurrer on this ground because Plaintiffs do not allege (1) timely compliance with the claim presentation requirement of the Government Claims Act and (2) all of the essential elements of their claim. A. Claim Presentation Requirement Before filing a civil action for damages against a public entity, a plaintiff must present an administrative claim to the entity that sets forth, among other things, [a] general description of 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 of action. (State of California v. Super. Ct. (2004) 32 Ca|.4th 1234, 1243; accord Nasrawi v. Buck Consultants, LLC (2014) 231 Cal.App.4th 328, 338.) Plaintiffs allege they presented an administrative claim to Defendant on July 30, 2018, and that it rejected the claim on August 15, 2018. (Compl. at p. 4:16 18.) Defendant argues Plaintiffs untimely presented this claim more than a year after their cause of action accrued. An administrative claim for personal injury and property damage must be presented within six months after accrual; a|| other claims must be presented within a year. (City of Stockton v. Super. Ct. (2007) 42 Ca|.4th 730, 738, citing Gov. Code, 911.2.) For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. (Gov. Code, 901.) In Printed: 12/18/2018 12/18/201 8 Hearing: Demurrer - 18CV334473 Page 2 ofS SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER other words, to calculate the claim presentation deadline, [a court] must determine the date the cause of action accrued under the applicable statute of limitations. (City of Pasadena v. Super. Ct. (2017) 12 Cal.App.5th 1340, 1347.) Defendant construes Plaintiffs claim as a claim for breach of contract and asserts it accrued in February 2017 when the landslide occurred. Defendant does not provide any legal authority or analysis to support its argument. Where a point is merely asserted [] without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion. [Citation.] (People v. Dougherty (1982) 138 Cal.App3d 278, 282; Cal. Rules of Court, rule 3.1113(b); see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784 85.) Nevertheless, the Court will discuss this argument at some length to illustrate the problems therewith. Generally, a cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act. (Lyles v. State of California (2007) 153 Cal.App.4th 281, 286.) Under a contractual theory of liability, the wrong that is an essential element of the claim is the defendant s breach. (Church v. Jamison (2006) 143 Cal.App.4th 1568, 1582.) As a result, a breach of contract claim does not accrue until there has been a breach of the contract. (Id. at p. 1583.) A breach of contract is defined as an unjustified or unexcused failure to perform. (Sackett v. Spindler (1967) 248 Cal.App.2d 220, 227; see also Rest.2d Contracts, 235.) Although Plaintiffs did not receive water through the pipeline after it was damaged in February 2017, it is not apparent that Defendant refused to perform without excuse orjustification at that juncture under the circumstances and because it provided Plaintiffs with water through alternative means until 2018. Accordingly, Defendant does not demonstrate that, based on applicable legal principles, it breached the agreement in February 2017. Even assuming Defendant breached the agreement in February 2017, it is not necessarily clear that the breach was sufficient to trigger the running of the statute of limitations. Courts have held that, when there are ongoing contractual obligationsL] the plaintiff may elect to rely on the contract despite a breach, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract. (Romano v. Rockwell International, Inc. (1996) 14 Ca|.4th 479, 489 90.) Here, it appears Plaintiffs may have elected to rely on the contract despite a breach due to the substitute performance provided by Defendant. Consequently, Plaintiffs claim, perhaps, did not accrue until 2018. |n summary, Defendant s presentation is wholly insufficient to establish that Plaintiffs claim accrued in February 2017. |t follows that Defendant does not demonstrate the administrative claim Plaintiffs presented in July 2018 was untimely. The demurrer, thus, is not sustainable on this basis. B. Essential Elements of Claim Defendant also argues the demurrer is sustainable because Plaintiffs fail to allege the essential elements of their claim. One essential element of Plaintiffs claim is breach of the parties agreement. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) Defendant focuses on this element and argues the facts alleged do not constitute a breach of the water-rights agreement based on its interpretation thereof. |n evaluating this argument, the Court applies the following general principles. When a plaintiff asserts a breach of contract claim based on a written agreement, his or her construction or interpretation of the agreement may and should be pleaded. (Aragon-Haas v. Family Security Insurance Services, Inc. (1991) 231 Cal.App.3d 232, 239.) So long as the pleading does not place a clearly erroneous construction upon the provision of the contract, in passing upon the sufficiency of the complaint, [a court] must accept as correct [a] plaintiff s allegations as to the meaning of the agreement. [Citation.] (|bid.) It is especially improper for a court to sustain a demurrer based on a defendant s interpretation of a contract when extrinsic evidence is necessary to determine whether there is an ambiguity in the agreement and the proper interpretation of the agreement in light of the ambiguity. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 112 19.) Printed: 12/18/2018 12/18/201 8 Hearing: Demurrer - 18CV334473 Page 3 ofS SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER First, Defendant asserts the water-rights agreement only required its predecessor to construct the pipeline in the first instance and does not require it to maintain or repair the pipeline. Defendant s position is not clearly supported by the language of the agreement or a reasonable interpretation thereof. Defendant s predecessor agreed to both lay and construct a water [] line and to supply through said pipe service, domestic water . (Comp|., Ex. A at p. 1.) The agreement does not explicitly allocate responsibility for maintenance or repair of the pipeline. Thus, Defendant s position is not supported by the express language of the agreement. Additionally, it is not otherwise obvious the express language of the agreement, such as the requirement of supplying water, should be interpreted in a manner that excuses Defendant from maintaining or repairing the pipeline. Ordinarily, [t]hat which is necessarily implied in the language of a contract is as much a part of it as that which is expressed. (WaI-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 611.) Unexpressed provisions of a contract may be inferred from the writing. (Id. at p. 612.) Arguably, it is implicit in the promise to supply water that Defendant will secure and maintain the instrumentality necessary to do so. At minimum, it can be inferred that the parties intended for someone to take responsibility for maintaining and repairing the pipeline. But at thisjuncture, it cannot be determined that the responsible party necessarily is someone other than Defendant. Consequently, Defendant does not demonstrate that the promise to supply water in the original agreement should be interpreted as excluding maintenance and repair of the pipeline. Defendant separately argues that, irrespective of the parties agreement, it is Plaintiffs duty to maintain the easement. This argument is not persuasive. First, Defendant s argument is problematic because it is based on the premise that the parties agreement is an easement. Although it appears to suggest that Plaintiffs inartfully characterize the water-rights agreement as an easement in the complaint, that suggestion is not entirely fair and accurate. An easement is an interest in the land of another, which entitles the owner of the easement to a limited use or enjoyment of the other s land. (Burch v. Gombos (2000) 82 Cal.App.4th 352, 362 [internal quotation marks and citations omitted].) Although Plaintiffs state they have an easement, they describe Defendant s obligation to provide water as a servitude. (Compl. at p. 3:4.) More significantly, a court determines the nature, scope, and enforceability of an agreement regarding real property based on legal definitions and standards. (See generally Citizens for Covenant Compliance v. Anderson (1995) 12 Ca|.4th 345, 352 55; see, e.g., B.C.E. Development, Inc. v. Smith (1989) 215 Cal.App.3d 1142, 1145 47.) For example, the characterization of a promise as a covenant or servitude in a deed or contract does not control. (Cebular v. Cooper Arms Homeowners Assn. (2006) 142 Cal.App.4th 106, 118 19; see, e.g., California Packing Corp. v. Grove (1921) 51 Cal.App.253, 254 55.) Thus, even assuming Plaintiffs did characterize the agreement itself as an easement, which characterization Defendant suggests is inaccurate, its argument is inapt because it is based merely on the characterization and not any articulable legal standard for evaluating the nature of the parties agreement. Ultimately, none of the cases Defendant cites in support of its argument about who is responsible for maintaining an easement are analogous because they involve different property rights, circumstances, and agreements than those present here. (See, e.g., Whalen v. Ruiz (1953) 40 Cal.2d 294, 300 02; Reinsch v. City of L.A. (1986) 243 Cal.App.2d 737, 744 45; Herzog v. Grosso (1953) 41 Ca|.2d 219, 221 22; McManus v. Sequoyah Land Associates (1966) 240 Cal.App.2d 348, 356.) Consequently, the authorities Defendant cites do not independently support the conclusion that it has no obligation to maintain or repair the pipeline as a matter of law. Finally, in presenting its arguments about the element of breach, Defendant generally asserts it would be difficult and expensive for it to repair the pipeline. |n support, it relies on a parade of horribles, including a number of state and local water regulations and conservation laws. But it does not tether this argument to any legal standard. Defendant s argument is misguided because the issue of whether it will be, as a matter of fact, difficult and expensive for it to repair the pipeline in accordance with state and local regulations is Printed: 12/18/2018 12/18/201 8 Hearing: Demurrer - 18CV334473 Page 4 ofS SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER immaterial. Although Defendant may be able to establish a defense on that basis at summary judgment or trial, its argument, particularly as presented, does not demonstrate the demurrer is sustainable. For the reasons set forth above, Defendant does not demonstrate the demurrer is sustainable on the basis Plaintiffs fail to allege a breach of the parties agreement. C. Conclusion In conclusion, Defendant does not demonstrate Plaintiffs fail to allege compliance with the claim presentation requirement of the Government Claims Act as well as the essential elements of their claim. Accordingly, the demurrer is OVERRULED. Printed: 12/18/2018 12/18/201 8 Hearing: Demurrer - 18CV334473 Page 5 ofS
