Keller vs. Etheridge

protection claimed. Alternatively, Plaintiff may serve a statement within 20 days explaining that no document is being withheld based on privilege. For clarity, Plaintiff’s non-privilege objections are OVERRULED.

Re sanctions: Defendant seeks monetary sanctions of $17,850.00, consisting of 17 hours at an hourly rate of $1,050.00. (Grant Cofer Decl., ¶ 8.) The request appears excessive in light of the issues raised.

The court finds the just and reasonable amount of fees to award here is $2,100.00. (Code Civ. Proc., §§ 2030.300, 2031.310.)

In sum:

Consistent with this ruling, Plaintiff SHALL within 20 days:

(A) serve a further response to Defendant’s Form Interrogatory (Set One), No. 52; (B) serve a privilege log/statement concerning Defendant’s RFP (Set One), No. 33; and (C) pay Defendant Staffpay a total of $1,200.00 in monetary sanctions.

Defendant Staffpay to give notice.

11 Keller vs. Etheridge Demurrer (re First Amended Complaint)

The court OVERRULES the general demurrer filed by Defendants KEVIN M. ETHERIDGE (individually) and KEVIN M. ETHERIDGE and CARALI S. ETHERIDGE, Trustees of the ETHERIDGE LIVING TRUST DATED September 1, 2020 to the third cause of action (nuisance) in the First Amended Complaint (FAC) filed by Plaintiffs ERIC KELLER and TRACY KELLER.

Defendants argue that Plaintiffs have not cured the defects identified in the court’s prior ruling on Defendants’ motion for judgment on the pleadings (MJOP) and instead, Plaintiffs continue to plead a time-barred permanent nuisance claim.

The court previously granted Defendants’ MJOP with leave to amend, finding Plaintiffs’ nuisance claim to be timebarred. The court ruled in relevant part:

It is undisputed that an action for nuisance must be filed within three years. (Code Civ. Proc., § 338(b).)

“When a trespass is of a permanent nature, the cause of action accrues when the trespass is first committed.” (Field-Escandon v. Demann (1988) 204 Cal.App.3d 228, 233; accord KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167.) For continuing nuisances, on the other hand, the statute of limitations period does not run while the nuisance persists and continues to cause harm. (Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 829.) “[T]he two primary characteristics of a continuing nuisance or trespass are: (1) the nuisance[] is abatable, and/or (2) the damages from the nuisance[] may vary over time.” (Spar v.

Pacific Bell (1991) 235 Cal.App.3d 1480, 1485.) “If a nuisance is permanent, then in the ordinary course the plaintiff must ‘bring one action for all past, present and future damage within three years after the permanent nuisance is erected. [Citations.] . . . Damages are not dependent upon any subsequent use of the property but are complete when the nuisance comes into existence. [Citation.]’ [Citation.]” (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 675-676.)

Infrastructure such as sewer lines and telephone conduits and wires generally constitute permanent nuisances. (See, e.g., Field-Escandon v. Demann, supra, 204 Cal.App.3d at p. 234 [re 25-year-old sewer line]; Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1486 [re 25-year-old telephone conduit, wires, and manhole intended to be serviceable for at least 100 years, regardless of the fact the telephone company removed the structures prior to trial].) In Field-Escandon v. Demann, the court upheld summary judgment based on the statute of limitations where the alleged nuisance was a sewer line that had been installed 25 years earlier, despite the fact the plaintiffs learned of the

sewer within the limitations period. (Field-Escandon v. Demann, supra, 204 Cal.App.3d at p. 234.)

(5/8/26 Minute Order [ROA 216].)

The court did not consider Plaintiffs’ argument at the hearing that the sewer line is broken, noting the allegations in the complaint challenge only the existence of the sewer line, not any continuing nuisance due to potential harm from a damaged sewer line. (Ibid.)

The FAC here addresses the defects identified by the court’s previous ruling. The FAC now alleges that the sewer line suffers from leakage, due to the line’s being “rotten in certain places wherein the cast iron [has] deteriorated completed.” (See FAC ¶¶ 31, 54-56.) Despite Defendants’ argument to the contrary, Plaintiffs need not allege with specificity the exact location and/or time of each sewage leak—only sufficient facts, in “ordinary and concise language” (Code Civ. Proc., § 425.10(a)(1)), “to acquaint a defendant with the nature, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)

As Plaintiffs note, California has a general liberal pleading standard on demurrer.

Unlike the situations in Field-Escandon v. Demann and Spar v. Pacific Bell where the plaintiffs argued the existence of the permanent structure itself constituted a trespass, Plaintiffs’ claim here is now based in part on the continuing intrusion of sewage created by a deteriorating sewer line. Even if the intrusion created by the existence and location of the sewer line itself cannot be challenged, the deteriorating condition of that line has allegedly created a separate and continuing nuisance, which Plaintiffs may challenge.

This situation appears analogous to Baker v. Burbank- Glendale-Pasadena Airport Authority, where the plaintiffs challenged the continuing noise, smoke, and vibration intrusions created by airport operations. (See Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862 [concluding the plaintiffs could elect whether to

treat the airport noise and vibrations to be a continuing or permanent nuisance].) The Baker plaintiffs brought suit against a neighboring airport authority for noise, smoke, and vibrations from the airport’s continuing operations. (Id. at 868-870.) The trial court found the claim to be time- barred, having concluded the claim for nuisance had accrued when the airport was acquired by a public entity. (See id. at 868.) The appellate court disagreed, finding the continuing airport operations to be “the quintessential continuing nuisance. Although federal law precluding interference in any way with flight patterns and schedules as an element of permanency to an otherwise continuing problem, it does not mandate that the overall nuisance is a permanent one.” (Id. at 873.) The court found particularly compelling that the airport operator had a separate duty to reduce noise. (Id. at 873.)

To the extent Defendants argue that the requested injunctive relief to cap and re-route the sewer line confirms the “true nature” of Plaintiffs’ claim as challenging the existence of the sewer line itself, the court does not find this argument compelling. The FAC alleges that repairing the existing sewer line would require “a complete overhaul of the sewer system” that would cause harm to Plaintiffs’ pool, slope, hardscape, and landscaping. (See FAC ¶¶ 33, 37.) These alleged facts support Plaintiffs’ electing to pursue a remedy that does not further interfere with their property.

In sum, the demurrer is OVERRULED.

Defendants SHALL file and serve an answer to the First Amended Complaint within 10 days. (Cal. Rules of Ct., rule 3.1320(g).)

Plaintiffs to give notice.

12 Orange County Demurrer (re Second Amended Cross-Complaint) Sanitation District vs. Jackson The court SUSTAINS, without leave to amend, Cross- Defendant CITY OF HUNTINGTON BEACH (the City) general demur to the second, third, fourth and fifth causes of

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