Order Proposed

Cal. Super. - 6th Dist.September 6, 2018

on 12/31/2018 3:42 PM Reviewed By: A. Nakamoto Envelope: 2323068 18CV334473 Santa Clara - Civil A. NakamotoEFS-OZO ATrORNEv 0R PARTY WITHOUT ATTORNEY: STATE BAR ”10453741 FOR COURT USE ONLY NAME: Alexander Henson FIRM NAME: STREET ADDRESS:P_O. Box 1381 CITY: Carmel Vallev. STATE: CA ZIP CODE: 93924 TELEpHoNE N0; 331 659.41 00 FAx N0.; E-MNL ADDRESS: zancan@aol.com ATrORNEY FOR (name): Plaintiffs SUPERIOR COURT 0F CALIFORNIA. COUNTY 0F SANTA CLARA STREET ADDRESS: 1 91 N. First Street MAILING ADDRESS: CITY AND ZIP CODESan Jose. CA 951 1 3 BRANCH NAME: Downtown CASE NUMBER: PLAINTIFF/PETITIONER: Casey and Amv Burkhan 18CV334473 DEFENDANTIRESPONDENTt Midoeninsula Raional Ooen Space Distrit Jumcw. OFFICER: OTHER: Hon. James L. Stoelker DEPT: PROPOSED ORDER (COVER SHEET) 13 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: Casey Burkhart, Amy Burkhart 2- Title of the proposed order: ORDER OVERRULING DEMURRER 3. The proceeding to which the proposed order relates is: a. Description of proceeding: Demurrer b. Date and time: December 18. 2018. 9:00 a.m. °- Place: Department 13, Santa Clara County Superior Court, 191 N. Fid Street, San Jose, CA 93924 4. The proposed order was sewed on the other parties in the case. / / Alexander Henson > I z (TYPE OR PRINT NAME) ' (SIGNATURE OF PARTY OR ATTORNEY) \ Page 1 of 2 Form Adopted for Mandatory Use PROPOSED ORDER (COVER SHEET) Cal. Rules of Court, Judicial Council of California _ I . rules 2.252. 3.1312 EFs-azMRev. February1,zo17] (Electronic Flllng) www,couns.ca.gov EFS-020 CASE NAME: CASE NUMBER: BURKHART V. MIDPENINSULA REGIONAL OPEN SPACE DISTRICT PROOF OF ELECTRONIC SERVICE PROPOSED ORDER 1. I am at least 18 years old and not a party to this action. a- My residence or business address is (specific: 37 Poppy Road, Carmel Valley, CA 93924 b. My electronic service address is (specify): zancan©aoLcom 2_ I 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 party or parties represented should also be stated): Shannon Denatale Boyd on behalf of Midpeninsula Regional Open Space District b. To (electronic service address ofperson served): sbovd@ooolaw.com c. On (date): December 31.2018 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 31. 2018 Alexander Henson ’WA ; Z ){k (TYPE 0R PRINT NAME 0F DECLARANT) l/ (SIGNATUREfiPDECLARANT) EFsozo [Rem February 1. 2017] pROPOSED ORDER (COVER SHEET) Pagezorz (Electronic Filing) For your protection and privacy, please press the Clear _ r r V r r V I This Form button after you have printed the form. I Print this form} I save this form I zCIQar this form 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Alexander T. Henson, SB#53741 P.O. Box 1381 Carmel Valley, CA 93924 Phone (83 1)659-4100 Email: zancan@aol.com STATE OF CALIFORNIA SUPERIOR COURT IN AND FOR THE COUNTY OF SANTA CLARA CASEY BURKHART, AMY BURKHART , Case N0.: 18CV334473 Plaintiffs, VS. ORDER OVERRULING DEMURRER MIDPENINSULA REGIONAL OPEN SPACE Date: December 18» 2018 DISTRICT, Time: 9:00am. Defendant Dept: 13 The demurrer of Defendant came on regularly for hearing on the day and time set out above, the Honorable James L. Stoelker, Judge of the Santa Clara County Superior Court presiding. The Court, having posted a tentative decision overruling the demurrer, and having received n0 request for further hearing contesting the tentative ruling, does herby adopt and affirm overruling the demurrer for the reasons set forth below. 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. 1:15-224.) According to Plaintiffs, in 1928, the former ORDER OVERRULING DEMURRER - 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 owner of Stevens Canyon Ranch and the former owner of their property executed a water-rights agreement. (Compl. at p. 226-15 & 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 t0 the adjacent propeny 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 201 7, a landslide obstructed the spring and damaged the pipeline. (Compl. at p. 2: l 8-21 .) 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. 425-6.) 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. 323-12.) Plaintiffs seek an injunction requiring Defendant to supply spring or well water in accordance with the water-rights agreement and damages t0 compensate them for the cost of the water deliveries they have had to 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. l Although Plaintiffs do not clearly denominate counts in the body of their complaint, the caption thereupon states the complaint is “for breach of easement, damages, and injunctive relief.” (Compl. at p. 1:10-12.) ORDER OVERRULING DEMURRER - 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 II. Request for Judicial Notice In support of Defendant’s demurrer, it requests judicial notice of several sections of the Santa Clara County Code of Ordinances (the “County Code”). Defendant states the provisions are subject t0 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 0f the County Code are subject to judicial notice under Evidence Code section 452, subdivision (b), which authorizesjudicial notice of “[r]egulations and legislative enactments issued by or under the authority ofthe 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 GRANTED. III. 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, 41 5, 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 ofthe factual basis ofthe claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) Thus, a demurrer 0n the ground of failure t0 state facts sufficient to constitute a cause 0f action tests whether the plaintiff alleges each ultimate fact essential t0 his ORDER OVERRULING DEMURRER - 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 or her cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.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 0f 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 ofpresentation 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 t0 demurrer on the ground of failure to state facts sufficient to constitute a cause of action. (State ofCalifornia v. Super. Ct. (2004) 32 Cal.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 0n July 30, 201 8, and that it rejected the claim on August 15, 2018. (Compl. at p. 4216-] 8.) Defendant argues Plaintiffs untimely presented this claim more than a year afier their cause of action accrued. An administrative claim “for personal injury and property damage must be presented within six months after accrual; all other claims must be presented within a year.” (City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 738, citing Gov. Code, § 91 1.2.) “For the purpose of computing the time limits prescribed by Sections 91 1.2, 91 1.4, 945.6, and 946.6, the date 0f ORDER OVERRULING DEMURRER - 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 the accrual 0f a cause of action t0 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 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 ofPasadena v. Super. Ct. (2017) 12 Ca1.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.2 Defendant does not provide any legal authority 0r 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. Daugherty (1982) 138 Cal.App.3d 278, 282; Cal. Rules of Court, rule 3.1 l 13(b); see also Badie v. Bank ofAmerica (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 ofCalifornia (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 2 There is no dispute Plaintiffs are, in essence, asserting a claim for breach of contract. (See, e.g., Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 338, 349-51.) ORDER OVERRULING DEMURRER - 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 (1 967) 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 201 8. 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 obligations[,] the plaintiff may elect t0 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) l4 Cal.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. In summary, Defendant’s presentation is wholly insufficient t0 establish that Plaintiffs’ claim accrued in February 201 7. It follows that Defendant does not demonstrate the administrative claim Plaintiffs presented in July 201 8 was untimely. The demurrer, thus, is not sustainable on this basis. ORDER OVERRULING DEMURRER - 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 B. Essential Elements 0f 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 0fthe parties’ agreement. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) Defendant focuses 0n this element and argues the facts alleged do not constitute a breach of the water-rights agreement based on its interpretation thereof. In evaluating this argument, the Coun applies the following general principles.3 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. ( 1 991) 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 ofthe complaint, [a court] must accept as correct [a] plaintiff‘s allegations as to the meaning ofthe agreement.’ [Citation.]” (Ibid.) 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, 112-1 9.) 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 3 Defendant does not explicitly acknowledge and it is not especially clear that its argument is, in fact, based on these fundamental pleading principles. ORDER OVERRULING DEMURRER - 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 pipeline. Defendant’s position is not clearly supported by the language ofthe 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. ...” (Compl., Ex. A at p. 1.) The agreement does not explicitly allocate responsibility for maintenance or repair 0fthe 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.” (Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 61 1.) “Unexpressed provisions of a contract may be inferred from the writing.” (Id. at p. 612.) Arguably, it is implicit in the promise t0 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 t0 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. ORDER OVERRULING DEMURRER - 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 First, Defendant’s argument is problematic because it is based on the premise that the parties’ agreement is an easement. Although it appears t0 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 0f 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 Citizensfor Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 352-55; see, e.g., B.C.E. Development, Inc. v. Smith (1989) 215 Cal.App.3d 1 142, 1145-47.) For example, the characterization 0f a promise as a covenant4 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) 5 1 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 4 A covenant is simply a promise to do or refrain from doing something. (See Citizensfor Covenant Compliance, supra, 12 Cal.4th at pp. 352-55; see also Garner, Dict. of Modem Legal Usage (3d ed. 201 1) p. 233.) ORDER OVERRULING DEMURRER - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 rights, circumstances, and agreements than those present here. (See, e.g., Whalen v. Ruiz (1 953) 40 Cal.2d 294, 300-02; Reinsch v. City 0fL.A. (1986) 243 Cal.App.2d 737, 744~45; Herzog v. Grosso (1 953) 41 Cal.2d 2 1 9, 221-22; McManus v. Sequoyah LandAssociates (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 0f breach, Defendant generally asserts it would be difficult and expensive for it to repair the pipeline. In support, it relies on a parade 0f horribles, including a number 0f 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 immaterial. Although Defendant may be able t0 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 t0 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 0f the Government Claims Act as well as the essential elements oftheir claim. Accordingly, the demurrer is OVERRULED. Defendant shall file an answer t0 the Complaint within 20 days from the date this order is filed. ORDER OVERRULING DEMURRER - 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Dated: December 20 1 8_’ Approved as to form / Shannon Defigtale Boyd, Price, Postel, & Parma LLP Hon. James L. Stoelker On behalf of Defendant Midpeninsula Regional Open Space District ORDER OVERRULING DEMURRER - 11