Cynthia Schwarting et al vs. Kyle Kwong, et.al.

9:00 21CV3900666 Eric Hartman et.al. vs Defendant moves this court to award attorney fees and costs. Defendant was the 10 Koshy George prevailing party. Defendant’s motion is GRANTED. Court seeks oral argument regarding amount of sanctions.

9:01 22CV397160 John Lam, et.al. vs Plaintiff’s attorney moves to withdraw as counsel. There is no opposition filed. 1 The Signature Plaintiff’s attorney’s motion is GRANTED. Motors, LLC

9:01 23CV423813 Absolute Resolutions Defendant moves this court for exemption from wage garnishment. No opposition 2 Investments, LLC vs was filed. Defendant claims that he needs all of his income to support his spouse Azim Uddin and his son. This court agrees. Defendant’s motion is GRANTED.

assignee had responded to the issues... [i]n considering this evidence, the court violated assignee’s due process rights”); see also Maleti v. Wickers (2022) 82 Cal.App.5th 181, 228 (Sixth District stating that “[t]he general rule of motion practice... is that new evidence is not permitted with reply papers”); see also Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (stating same); see also Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210 (stating same); see also City of Rocklin v. Legacy Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 730 (stating same).) These issues are also more properly the subject of a motion for summary judgment. Defendants’ motion for judgment on the pleadings is DENIED in its entirety.

Plaintiff shall prepare and submit a proposed final order consistent with this tentative ruling. Calendar Line 6

Case Name: Schwarting, et al. v. Kwong, et al. Case No.: 25CV474549

City’s demurrer to the fifth cause of action for inverse condemnation

“A successful inverse condemnation claimant must prove that a public entity has taken or damaged its property for a public use.” (Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 602.) “To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff’s property.” (City of Pasadena v. Super. Ct. (Mercury Casualty Co.) (2014) 228 Cal.App.4th 1228, 1233.) “[A] public improvement for the purposes of an inverse condemnation claim involves (1) a deliberate action by the state (2) taken in furtherance of public purposes.” (Id. at p.1234.) “There is no ‘deliberate governmental action’ when the purported public improvement is neither an ‘instrumentalit[y] of the state nor... controlled by the state.’” (Id.)

Here, the complaint alleges neither a taking nor the damaging of property for a public use, nor a deliberate governmental action.

Rather, the complaint plainly alleges that “Defendant Kwong, and/or his agents... commenced and undertook significant construction, grading, and excavation work on the Adjacent Property, directly abutting the property line of the Subject Property... failed to obtain the required permits and pass necessary inspections for such work... [and d]espite being put on notice of the damage and danger their work had created, and despite a prior mediation attempt, Defendant Kwong has failed and refused to take the necessary steps to stabilize the land, repair the damage they caused, or otherwise abate the dangerous condition.” (Complaint, ¶¶ 11-16.)

The sole allegations regarding demurring defendant City of Mountain View (“City”) is that it “was notified of the hazardous condition through multiple complaints made by Plaintiffs to its Building Department... [to which it] stated that it ‘can’t do anything’ to compel Defendants to act unless and until further physical damage to a utility line occurs.” (Complaint, ¶ 17.) Plainly, the complaint alleges facts that establish that City is not liable for a cause of action for inverse condemnation. In opposition, plaintiffs Cyntia Jehning Schwarting (“Schwarting”) and Meredith Clancy (“Clancy”) (collectively, “Plaintiffs”) do not show in what manner they could possibly amend the complaint so as to state a viable cause of action. (See Goodman v.

Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”).) City’s demurrer to the fifth cause of action for inverse condemnation is SUSTAINED without leave to amend.

Demurrer to the second cause of action for private nuisance

As to the second cause of action for private nuisance, City argues that a private nuisance cause of action may not be pled against a public entity and that the second cause of action fails to allege facts supporting the elements of a private nuisance cause of action. As to whether a private nuisance cause of action may be asserted against a public entity, City is incorrect: “In Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, at page 937..., our Supreme Court concluded that ‘section 815 of the Government Code does not bar nuisance actions against public entities to the extent such actions are founded on section 3479 of the Civil Code or other statutory provisions that may be applicable.’” (Pfleger v.

Super. Ct. (City of Pacifica) (1985) 172 Cal.App.3d 421, 429; see also Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 384 (stating same); see also Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 159, fn. 2 (stating that “Government Code section 815, which limits government tort liability, does not bar nuisance actions against public entities to the extent such actions satisfy the requirements of Civil Code section 3479”).) However, “a governmental entity may not be held liable for failing to abate a nuisance existing on private property.” (Washington v.

County of Contra Costa (1995) 38 Cal.App.4th 890, 900.)

In Washington, supra, “[t]he property here was privately owned and the alleged nuisance also was private,” and the court stated that “Plaintiffs can recover on these theories, therefore, only if they can show the existence of some overriding mandatory statutory duty... [w]e have found that they cannot.” (Id.) Here, as in Washington, this involves a dispute between two neighboring owners of private property. The complaint alleges that Kwong created a pit through excavation work at 134 Beatrice Street in Mountain View, which directly abutted the property line at 156 Beatrice Street, and “[a]s a direct and proximate result of Defendants’ wrongful conduct, the lateral and subjacent support for the Subject Property was removed, creating a sheer, vertical and unsupported cliff of earth along the property line... [that] has caused soil, earth, and rock on the Subject Property to subside, collapse, and slide into the excavation pit below,” and that it is this condition that constitutes the alleged private nuisance. (Complaint, ¶¶ 9-16, 26-28 (stating that the alleged nuisance that is the subject of the second cause of action is “the large, unstable, and hazardous excavation pit which has removed support for and caused ongoing damage to the Subject Property”).)

The complaint alleges no facts supporting a cause of action for private nuisance against City. In opposition, Plaintiffs argue that they “can amend to identify the statutory and regulatory basis for the City’s duty in connection with its oversight, permitting, and enforcement role over the excavation.” (Opposition, p.8:2-4.) However, Plaintiff fails to identify any such statute in their opposition and thus do not show in what manner they could possibly amend the complaint so as to state a viable cause of action. (See Goodman v.

Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”); see also City of Los Angeles v. Super. Ct. (Wong) (2021) 62 Cal.App.5th 129, 138 (stating that “statutory causes of action must be pleaded with particularity... [t]hus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity”); see also Covenant Care, Inc. v.

Super. Ct. (Inclan) (2004) 32 Cal.4th 771, 790 (stating that “statutory causes of action must be pleaded with particularity”).) City’s demurrer to the second cause of action is SUSTAINED without leave to amend on this basis.

Additionally, City argues that Plaintiffs have not presented a government claim with regards to the assertion of a private nuisance. City’s request for judicial notice is GRANTED. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 (stating that “the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity’s records do not show compliance... with the claims presentation requirement”).) As City argues, Government Code section 945.4 states that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board....” (Gov.

Code § 945.4.) In opposition, Plaintiffs argue that even though they have not presented a claim, “the claims statutes apply only to actions for money or damages,” and the second cause of action seeks injunctive relief which does not require the presentation of a claim. However, the second cause of action expressly alleges that it seeks “damages, including costs of repair, diminution in property value, and general damages for the loss of enjoyment, annoyance, discomfort, and emotional distress they have endured and will continue to endure.” (Complaint, ¶ 29.) “Unless a specific exception applies, ‘[a] suit for ‘money or damages’ includes all actions where the plaintiff is seeking monetary relief, regardless whether the action is founded in ‘tort, contract or some other theory.’” (Lozada v.

City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1152 (also stating that “[t]he claim filing requirement has been held applicable to claims arising out of negligence, nuisance, breach of statutory duties, intentional wrongs and contract”).)

Plaintiffs alternatively argue that the nuisance is a continuing nuisance for which Plaintiffs may bring successive actions until the nuisance is abated, and thus Plaintiffs may still present a claim, and they have substantially complied with the claims requirements. However, Plaintiffs fundamentally misunderstand the claims presentation requirements. “The Government Claims Act (§ 810 et seq.) ‘establishes certain conditions precedent to the filing of a lawsuit against a public entity.’” (Le Mere v.

Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 246; see also Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118 (stating same).) “[A] plaintiff must timely file a claim for money or damages with the public entity... [t]he failure to do so bars the plaintiff from bringing suit against that entity.” (Le Mere, supra, 35 Cal.App.5th at p.246; see also Willis, supra, 48 Cal.App.5th at p.1118 (stating same).) “Accrual for purposes of the Act is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.” (Willis, supra, 48 Cal.App.5th at p.1118.) “Timely claim presentation is not merely a procedural requirement, but is a condition precedent to the claimant’s ability to maintain an action against the public entity.” (Le Mere, supra, 35 Cal.App.5th at p.246; see also Willis, supra, 48 Cal.App.5th at p.1118 (stating same); see also Harland, supra, 120 Cal.App.5th at p.1171 (stating that “[s]atisfying the Act’s claim presentation requirements is a condition precedent to a tort action”).) “Only after the public entity’s board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity.” (Le Mere, supra, 35 Cal.App.5th at p.246; see also Willis, supra, 48 Cal.App.5th at p.1118; see also Harland, supra, 120 Cal.App.5th at p.1168 (stating that “the claimant cannot sue the public entity unless and until they have complied with the first requirement, and that entity has either outright denied the claim or failed to act upon the claim within 45 days”).) “The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity.” (Le Mere, supra, 35 Cal.App.5th at p.246; see also City of San Jose v.

Super. Ct. (Lands Unlimited) (1974) 12 Cal.3d 447, 454 (California Supreme Court stating that “[c]ompliance with the claims statutes is mandatory... and failure to file a claim is fatal to the cause of action... [t]he claims statutes provisions apply to actions brought both for nuisance and for inverse condemnation”).) “[T]he timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action.” (Willis, supra, 48 Cal.App.5th at p.1119.) “Thus, a complaint failing to allege facts demonstrating timely presentation of a claim or that such presentation was excused is subject to a general demurrer for not stating facts sufficient to constitute a cause of action.” (Id.; see also Harland, supra, 120 Cal.App.5th at p.1171 (stating that “[f]ailing to comply with the claim presentation requirements subjects a complaint to a general demurrer for failure to state a claim”).) “The claim presentation requirements ensure public entities get sufficient information to investigate claims without the expense of litigation.” (Harland, supra, 120 Cal.App.5th at p.1171, citing City of Stockton v.

Super. Ct. (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730, 746.) “Suing a public entity before presenting it with a claim defeats this function.” (Id.) “Plaintiffs must satisfy the claim presentation requirements even if the entity had actual knowledge of the circumstances surrounding the claim.” (Harland, supra, 120 Cal.App.5th at p.1171; see also City of San Jose, supra, 12 Cal.3d at p.455 (California Supreme Court stating that “the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation... [i]t is well-settled that claims statutes must be satisfied even in face of the public entity’s actual knowledge of the circumstances surrounding the claim... [s]uch knowledge -- standing alone -- constitutes neither substantial compliance nor basis for estoppel”).)

Here, judicially noticeable facts establish that Plaintiffs have yet to file a government claim for the alleged nuisance, and in opposition, Plaintiffs argue that “Plaintiffs may still present a claim.” However, that ignores Government Code section 954.4’s express prohibition against a suit absent the presentation of a claim to the public entity, as well as the body of case authority. (See Le Mere, supra, 35 Cal.App.5th at p.246 (stating that “[t]he failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity”); see also J.J. v.

County of San Diego (2014) 223 Cal.App.4th 1214, 1219 (stating same); see also City of San Jose, supra, 12 Cal.3d at p. 454 (California Supreme Court stating that “[c]ompliance with the claims statutes is mandatory... and failure to file a claim is fatal to the cause of action... [t]he claims statutes provisions apply to actions brought both for nuisance and for inverse condemnation”); see also Willis, supra, 48 Cal.App.5th at p.1119; see also Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1231 (stating that “[t]he failure to timely file a proper government claim is fatal to the maintenance of a civil action against a public entity”).)

For this additional and separate reason, City’s demurrer to the second cause of action is SUSTAINED without leave to amend.

As to Plaintiffs’ assertion that “Plaintiffs gave the city written notice of the hazard several times through complaints to its Building Department before suit,” and that they have substantially complied with the claims statute, paragraph 17 merely alleges that City “was notified of the hazardous condition through multiple complaints made by Plaintiffs to its Building Department.” (Complaint, ¶ 17.) Here, the alleged written notice of the hazard does not mention the claim or a lawsuit against City for money or damages; instead, the complaint alleges merely that City was notified of the hazardous condition.

Thus, the complaint fails to allege facts demonstrating that it substantially complied with the claims statute; rather, the complaint only alleges City’s actual knowledge of circumstances surrounding the cause of action, not information that enables City to investigate claims properly and to settle them, if appropriate, without the expense of litigation. (See Harland, supra, 120 Cal.App.5th at pp.1168, 1171 (stating “Plaintiffs must satisfy the claim presentation requirements even if the entity had actual knowledge of the circumstances surrounding the claim... [t]he aim of the Act is to give public entities enough information to enable them to investigate claims properly and to settle them, if appropriate, without the expense of litigation”); see also Wood v.

Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1117-1119 (finding that the plaintiff’s letters did not constitute substantial compliance as a matter of law where there was no indication that a monetary claim was being asserted, stating that “[t]he principle [sic] purposes of the claims statute are to give notice to the municipality in order that it be afforded a timely opportunity to investigate the claim and determine the facts; and to avoid unnecessary lawsuits by giving the municipality the opportunity to settle meritorious claims without going through an avoidable trial... [under] the test of substantial compliance... the court must ask whether sufficient information is disclosed on the face of the filed claim ‘to reasonably enable the public entity to make an adequate investigation of the merits of the claim and settle it without the expense of a lawsuit’... [as there was a] failure to indicate that a monetary claim was being asserted... we conclude that, as a matter of law, there was no substantial compliance with the claims statute”).)

Plaintiffs’ assertion regarding substantial compliance is without merit.

Demurrer to the sixth cause of action for violation of a mandatory duty

As to the sixth cause of action for violation of a mandatory duty, City again argues that it cannot state facts sufficient to constitute a cause of action against it as Plaintiffs have failed to present a government claim. For identical reasons, Plaintiffs’ failure to timely file a proper government claim is fatal to the maintenance of a civil action against City, a public entity. (See Le Mere, supra, 35 Cal.App.5th at p.246 (stating that “[t]he failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity”); see also J.J., supra, 223 Cal.App.4th at p.1219 (stating same); see also City of San Jose, supra, 12 Cal.3d at p. 454 (California Supreme Court stating that “[c]ompliance with the claims statutes is mandatory... and failure to file a claim is fatal to the cause of action”); see also Willis, supra, 48 Cal.App.5th at p.1119 (stating that “the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action”); see also Hernandez v.

City of Stockton (2023) 90 Cal.App.5th 1222, 1231 (stating that “[t]he failure to timely file a proper government claim is fatal to the maintenance of a civil action against a public entity”).) City’s demurrer to the sixth cause of action is SUSTAINED without leave to amend on this basis.

Moreover, the sixth cause of action cites to Government Code section 815.6, the general statutory provision that states that “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Gov. Code § 815.6.)

The California Supreme Court has stated that in order to state a cause of action against a public entity for violation of a mandatory duty, it must allege facts supporting that “ (1) a mandatory duty is imposed by an enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury.” (State Dept. of State Hospitals v. Super. Ct. (Novoa) (2015) 61 Cal.4th 339, 348; see also State of California v. Super. Ct. (Perry) (1984) 150 Cal.App.3d 848, 854 (stating that “Government Code section 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty...; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability...; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered”).)

Further, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (City of Los Angeles v. Super. Ct. (Wong) (2021) 62 Cal.App.5th 129, 138 (also stating that “statutory causes of action must be pleaded with particularity”); see also Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal.4th 771, 790 (stating that “statutory causes of action must be pleaded with particularity”); see also Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 (stating that “in California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’... and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty”).)

Here, the sixth cause of action fails to identify any “enactment,” much less a duty imposed by an enactment, the articulation of how the duty was designed to protect against the kind of injury allegedly suffered, or how the breach of the duty imposed by the enactment caused Plaintiffs’ injury. “Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged.

Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Searcy, supra, 177 Cal.App.3d at p.802 (also stating that a failure to identify the enactment “places nothing in issue”).) Amazingly, Plaintiffs concede that “[t]he enactment claimed to create a mandatory duty ‘must at the very least be identified’” (Opposition, p.6:18-19, citing Searcy, supra, 177 Cal.App.3d at p.802), but then fail to identify any enactment in their opposition. (See Glendale Redevelopment Agency v.

Parks (1993) 18 Cal.App.4th 1409, 1424 (stating that “by failing to address the statute... appellants impliedly concede... [the] point”); see also Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 (stating that the plaintiff’s “failure to address the threshold question of intent effectively concedes that issue”).) Again, as stated by the California Supreme Court and the Sixth District, “Plaintiff[s] must show in what manner [they] can amend [their] complaint and how that amendment will change the legal effect of [their] pleading.” (Cooper v.

Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended”); see also Apple Inc. v. Super. Ct. (The Police Retirement System of St. Louis) (2017) 18 Cal.App.5th 222, 258 (Sixth District stating that “[i]t is generally the plaintiff’s burden to ‘show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading’”); see also Align Technology, Inc. v.

Tran (2009) 179 Cal.App.4th 949, 971 (Sixth District stating that “the plaintiff bears the burden of showing ‘in what manner [it] can amend [its] complaint and how that amendment will change the legal effect of [its] pleading’”).) For this additional and separate reason, City’s demurrer to the sixth cause of action is SUSTAINED without leave to amend.

City shall prepare and submit a proposed final order consistent with this tentative ruling.

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