KYNA LIM VS. CITY OF MENLO PARK

July 26, 2026 LAW AND MOTION CALENDAR PAGE 9 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 24-CIV-03420 KYNA LIM VS. CITY OF MENLO PARK LINE 4

KYNA LIM PRO PER CITY OF MENLO PARK NICHOLAS SYREN

DEFENDANT CITY OF MENLO PARK’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT

TENTATIVE RULING:

Initially, the Court notes that Defendant has not provided the address for the hearing. Department 11 is located at 800 North Humboldt Street, San Mateo, CA 94401, Courtroom G. (See Cal. Rules of Court, rule 3.1110 [the Notice “must specify” the location of the hearing].)

The Court further notes that Plaintiff’s proof of service of the opposing papers includes her declaration that she served the papers herself, which violates Code of Civil Procedure section 1013a, subdivision (1).

The Court finds that these errors caused no prejudice and/or the defects have been waived. But Plaintiff is cautioned that in the future, not to sign proofs of service herself.

Defendant’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff’s Request for Judicial Notice (“RJN”) is discussed below.

Background

Per the allegations of the Second Amended Complaint (“SAC”), Defendant failed to maintain its tree (the “Tree”) that was adjacent to her property, damaging her water and sewer lines and her foundation, resulting in economic and health-related damages. Plaintiff repeatedly reported the issues with the Tree to another city, believing it to be the responsible party. Plaintiff was redirected to Defendant in October 2023, but Defendant initially denied responsibility and told her that the Tree was not in its database. Only after Plaintiff provided mapping data did Defendant acknowledge its responsibility for the Tree and sidewalk, and order emergency removal of the Tree due to its poor structure and conflict with utilities.

Defendant demurs generally to the SAC, and to each of its causes of action.

Legal Standard

A general demurrer under Section 430.10(e) of the Code of Civil Procedure for failure to state a cause of action challenges defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 C3d 311, 318.

“It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which plaintiff can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A (citations omitted).

July 26, 2026 LAW AND MOTION CALENDAR PAGE 10 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law).” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A (citations omitted).

Discussion

Defendant asserts that the allegations of the SAC establish that each of its causes of action is time-barred.

According to the SAC, in 2015, Plaintiff experienced root intrusion into her lateral sewer pipe which she had to hire a plumber to clear. While the SAC characterizes the root intrusion as involving “only small, hair-like roots” (SAC, 25:27; see also 125:5, & p.131 in Exh. V-1), the inspection transcript which Plaintiff includes and is considered part of the SAC, shows much more substantial intrusion at that time (id., pp.131-33, in Exh. V-1). The plumbers’ comments as the camera moves through the pipe pass from “one small root intrusion” at 36 feet, through, “As we travel back.

There’s going to be more and more roots in there,” to, “As you can see, it’s completely closing the pipe,” to, “here’s the last and final root intrusion point. There it is, the big guy, Alright, quite a bit of it,” to at 21 feet, “More and as you can see, there’s barely room for anything.” (Id., pp.131-33, in Exh. V-1.) Moreover, the portion that Plaintiff quotes for the assertion that the sewer line was “nice and healthy” refers only to “the rest of the pipe.” (Id., p.132, in Exh. V-1.)

Further, in 2015, Plaintiff was sufficiently concerned that the Tree might be the source of the problems that she asked the adjoining city, Redwood City, to remove it. Redwood City advised her that she needed to establish that the Tree was causing the problems she described before they would abate it. However, the SAC does not allege that Plaintiff applied for a public tree removal permit, nor filed a claim under the Government Claims Act with Redwood City, nor with Defendant, at any time before October 2023.

The SAC alleges that Plaintiff first contacted Defendant in October 2023. At that time, Defendant initially denied ownership, but before the end of the month realized that it did own the Tree, and removed it. Plaintiff submitted her claim under the Government Claims Act to Defendant on November 2, 2023, and filed the instant action on June 4, 2024.

The Effect of the Contradiction of the Allegations of the SAC by Its Exhibit

Where a pleading includes a general allegation, such as an allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the general allegation and the specific allegations. To handle these contradictions, California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation. Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-36 (citations omitted).)

Further, in ruling on demurrer, “facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.” (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627 (citation omitted).)

July 26, 2026 LAW AND MOTION CALENDAR PAGE 11 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

Statutes of Limitation

“A claim relating to a cause of action ... for injury to person or to personal property ... shall be presented ... not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).)

Further, the statute of limitations for “[a]n action for trespass upon or injury to real property” is “[w]ithin three years.” (Code Civ. Proc., § 338, subd. (b).)

Specifically as to the fifth cause of action for inverse condemnation, the statute of limitations is three years from accrual. (Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607 (citing Code Civ. Proc., § 338, subd. (j)).)

Accrual of a tort cause of action occurs once the tort has caused any amount of appreciable harm, even if the full extent of the harm is uncertain or will increase with time. (Davies v. Krasna (1975) 14 Cal.3d 502, 514 (overruled on other grounds, recognizing exemption of trade secrets from the appreciable harm requirement); Lyles v. State of California (2007) 153 Cal.App.4th 281, 286 (Lyles) (“A cause of action for inverse condemnation alleging property damage accrues... when the damage is sufficiently appreciable to a reasonable [person].” (internal quotation and citation omitted)).)

Defendant asserts that Plaintiff’s causes of action accrued in 2015, when the harm that she then realized prompted her to seek removal of the Tree. Plaintiff invokes the delayed discovery rule to argue that she actually was first appreciably harmed in 2023.

The Court of Appeal explains the delayed discovery rule, discussing it in the context of inverse condemnation: A cause of action for inverse condemnation alleging property damage accrues not necessarily on the date of the “taking,” but, rather, “when the damage is sufficiently appreciable to a reasonable man.” (Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717, 119 Cal.Rptr. 625, 532 P.2d 489; see also Oakes v. McCarthy (1968) 267 Cal.App.2d 231, 254–256, 73 Cal.Rptr. 127 [statute runs from the time that noticeable damage occurs and reasonable notice is equated to knowledge].)

Here, the “taking” or damage occurred in February 1998 and plaintiffs knew about such at the time it happened. That plaintiffs believed that the damage resulted from natural causes does not affect these facts. Thus, plaintiffs’ damage was “sufficiently appreciable to a reasonable man” in February 1998. Since plaintiffs did not file this action until June 2004, this action is barred by the statute of limitations.

Plaintiffs contend that we should apply the discovery rule in lieu of the standard articulated in Mehl and Oakes. Plaintiffs continue that, if the discovery rule is applied, the statute of limitations does not begin until the time in 2003 when they learned that State might be responsible for the storm damage. They reason that they did not know that the damage was caused by wrongdoing until that time. But a discovery-rule analysis leads to the same conclusion. 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.

However, this rule has an important exception, referred to as the discovery rule that “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” But the rule is not so broad as to delay accrual indefinitely until the plaintiff stumbles upon a claim. Rather, the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least suspects

July 26, 2026 LAW AND MOTION CALENDAR PAGE 12 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ that someone has done something wrong to him, “wrong” being used, not in any technical sense, but rather in accordance with a lay understanding. Thus, under the discovery rule, the plaintiff need not be aware of the specific facts or legal theory necessary to establish the claim. He or she need not even know the identity of the wrongdoer. Rather, the plaintiff need only be aware of his or her injury and have knowledge of sufficient facts to place him or her on actual or inquiry notice that the injury has a negligent cause.

The Supreme Court has recently restated the rule: “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ [Citations.] ... [¶] ... [¶] ... In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Lyles, supra, 153 Cal.App.4th 281, 286-87 (multiple citations omitted) (emphasis added).)

Here, the SAC shows that the damage of which the SAC complains was sufficiently appreciable to a reasonable person in 2015, even though the full extent of the harm (or the specific tree that caused it) may have been uncertain or increased with time. Plaintiff knew of the damage, and that she was uncertain as to its source does not affect these facts. Plaintiff reasons that she did not know that the damage was caused by the Tree or by Defendant until 2023, but she suspected a factual basis for her claims, even if she lacked certainty as to the tree that cause the damage or who owned it.

Thus, in 2015 she was required to conduct a reasonable investigation, and is charged with knowledge of the information that would have been revealed thereby. However, Plaintiff did not even promptly pursue claims against the only identified wrongdoer, Redwood City. Regardless whether Plaintiff’s confusion as to whether Redwood City or Menlo Park owned the Tree was at first reasonable, Plaintiff nonetheless was required timely take action. Further, she could have filed a claim and brought suit against Redwood City and Does, and later named Defendant as a Doe defendant.

Instead, she essentially accepted opinions denying responsibility unhappily, but without investigating further. Though she appears in propria persona, Plaintiff is held to the same standards as is an attorney. (Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984–85 (“[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.”))

Equitable Estoppel

As to equitable estoppel, Defendant persuasively asserts that an affirmative act during a relevant time period is a required element, which is not clearly alleged. Here again, even if Plaintiff’s confusion as to whether Redwood City or Menlo Park owned the Tree was at first reasonable, Plaintiff nonetheless was required timely to file a claim under the Government Claims Act, even if with the wrong entity.

Continuing Trespass

Plaintiff has labeled only her third cause of action as “continuing” (trespass), but the labels do not concern the Court in ruling on demurrer. The Court examines whether the factual allegations of the SAC might support causes of action for both continuing nuisance and continuing trespass.

July 26, 2026 LAW AND MOTION CALENDAR PAGE 13 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

Then: For permanent encroachments, the three-year statute of limitations begins to run on the date the encroachment began, and bars all claims brought after its passage. For continuing encroachments, a plaintiff may assert a claim even if the encroachment began outside the limitations period, but is limited to recovering damages incurred in the preceding three- year period. (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 605 (Madani).)

The Court determines that the factual allegations of the SAC support a cause of action for permanent, not continuous, trespass or nuisance, and thus are time-barred. As Defendant notes:

the SAC repeatedly alleges that the sewer lateral perforation and associated leaking has permanently diminished the value of Plaintiff’s property. See, e.g., SAC at 55:16-26; 80:18-19; 84:3-4; 98:6; 123:23-25. Such allegations are a direct, binding admission that the trespass—i.e., the root perforation of the sewer lateral and associated leakage is not abatable—since if it was, the measure of damages would be the abatement cost rather than the diminution in value.

(Reply, 9:24-10:1.)

Moreover, the SAC frames Plaintiff’s damages as “stigma” damages, which is the very term that the Court of Appeal uses in explaining (with reference to a federal Court applying California law) that such damages flow from a permanent rather than continuous trespass or nuisance:

the district court noted [that] diminution in value damages, caused by stigma associated with a property with a history of contamination, would likely have been recoverable had its claim for permanent trespass and nuisance not been barred by the statute of limitations. ... [T]he weight of California courts which have spoken to this issue have rejected attempts to recover such damages under continuing trespass or continuing nuisance theories. It is easy to see why. The principal assumption underlying continuing trespass and continuing nuisance theories is that the activity causing the injury can be abated.

Thus, the damages are distinct from those arising from conduct constituting permanent trespass and permanent nuisance. To accept [the plaintiff’s] reasoning would permit parties seeking recovery for time-barred permanent trespass and permanent nuisance claims to avoid the statute of limitations simply by recharacterizing them as continuing trespass and continuing nuisance claims. The Court cannot permit the statute of limitations to be eviscerated in this fashion. (Santa Fe Partnership v. ARCO (1996) 46 Cal.App.4th 967, 979-980 (quoting F.D.I.C. v.

Jackson-Shaw Partners No. 46 Ltd. (N.D.Cal. 1994) 850 F.Supp. 839) (emphasis added).)

July 26, 2026 LAW AND MOTION CALENDAR PAGE 14 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

Finding that its causes of action are time-barred, the Court SUSTAINS the Demurrer to the SAC, WITHOUT LEAVE TO AMEND as further described below. Accordingly, the other grounds asserted need not be reached.

Plaintiff’s Request for Judicial Notice

In light of the Court’s findings supra, Plaintiff’s RJN need not be reached. Nonetheless, regarding Plaintiff’s Exhibit A, the request is GRANTED as to the requested portions of the Menlo Park Municipal Code.

Regarding Exhibits D, the request is GRANTED as to Exhibit D-1. There is no Exhibit D-2. The request is DENIED as to Exhibit D-3, which is not file-stamped and thus does not appear in the Court’s records. The request is GRANTED as to Exhibit D-4, and DENIED as to Exhibit D-5. However, judicial notice of Exhibits D-1 and D-4 is limited to their existence, content, and authenticity, and does not extend to the truth of the factual matters contained therein. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

As to Exhibits B, C, and E, the request is DENIED.

Leave to Amend

“It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action... But the court should deny leave to amend where the facts are not in dispute and no liability exists under substantive law... It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A (citations omitted).

While opposing the demurrer and repeatedly asking for leave to amend, Plaintiff has failed to identify any facts that Plaintiff contends Plaintiff could allege and that would cure the legal defects in the Second Amendment Complaint. This lawsuit is more than two years old and based on the facts Plaintiff has already alleged it seems highly unlikely that she will be able to plead around the very untimely nature of the lawsuit. Accordingly, leave to amend is tentatively DENIED as futile.

However, if Plaintiff believes it is possible to address the deficiencies identified in this tentative, Plaintiff must contest the tentative and appear to explain in reasonable detail what facts Plaintiff can allege to cure. If Plaintiff does, the Court will consider those facts and reconsider granting leave.

Any party who contests a tentative ruling must email Dept.11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.

Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a

July 26, 2026 LAW AND MOTION CALENDAR PAGE 15 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be efiled only, do not email or mail a hard copy to the Court.