Orange County Sanitation District vs. Jackson

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

action of the Second Amended Cross-Complaint (SACC) filed by Cross-Complainants DONALD A. ISKIERKA, VIRGINIA L. ISKIERKA, PHILIP J. RIZZO, ANDREA L. RIZZO, HOOMAN K SHAHIDI, NAZANIN GHAFFARIZADEH, BEVERLY K. UERLING, DEREK J. UERLING, MARK GERSON, MYRA GERSON, OLEG VOLF, YANINA GINZBERG, DEAN E. WEST, DEBORA A. WEST, FRANCIS LA PLACA, GAETANO LA PLACA, SHERI LA PLACA, KOZO TERAJIMA, FRANK H. CLARKE III, GERARD F. MCCABE, CATHERINE F. MCCABE, and HELEN J. LOWELL.

The SACC asserts causes of action for 1) declaratory relief 2) equitable indemnity 3) declaratory relief 4) nuisance 5) dangerous condition of public property

The City is not named in the first cause of action.

2nd C/A (equitable indemnity)

“The right to indemnity flows from payment of a joint legal obligation on another’s behalf.” (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139, citing Civ. Code, § 1432; Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114.) “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Ibid., emphasis in original.) “With limited exception, there must be some basis for tort liability against the proposed indemnitor.” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [duty owed by proposed indemnitor is generally based on duty owed to the underlying plaintiff].)

The SACC alleges the following: “The primary liability for the injuries and/or damages, if any, sustained by OCSD rests upon each Cross-Defendant by virtue of their negligence and active contribution towards the creation of the alleged nuisance. The liability of Cross-Complainants, if

any, are secondary, passive, and vicarious to the liability of each Cross-Defendant.” Specifically, “such liability would be a direct result of the City’s violation of a mandatory duty to ensure that the construction and maintenance of the Improvements would not interfere with OCSD’s use of the Easement and that no damage would result to that Easement as a result of the Improvements which the City permitted.” (SACC, ¶ 46.) The alleged “mandatory duty” is “[p]ursuant to Gov. Code, §§ 815.6 and 835, Civil Code §§ 3479-3481, the Easement, the condemnation judgment that created the Easement, and applicable California statutes requiring compliance therewith...” (SACC, ¶ 35.)

The SACC does not allege any facts showing the City’s violation of a mandatory duty, and the court need not assume the truth of the legal conclusion alleged in paragraph 46 of the SACC. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, citations omitted [in ruling on demurrer, the court does not “assume the truth of contentions, deductions or conclusions of law”].)

Importantly, California public entities are not subject to common law tort liability; all liability must be pursuant to statute. (Govt. Code, § 815(a); see also B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179 [“Under the California Government Claims Act (Gov. Code § 810 et seq), governmental tort liability must be based on statute”].)

Government Code section 815.6 (one of the statutes cited in the SACC) provides a statutory exception to the general rule of public entity immunity. It provides, “Where 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.” (Govt. Code, § 815.6, emphasis added.) In turn, Government Code section 810.6 defines “enactment” to mean “a constitutional provision, statute, charter provision, ordinance or regulation.” (Govt. Code, § 810.6.)

Here, the SACC fails to allege any enactments upon which liability under section 815.6 could be based. Instead, it

alleges in conclusory form that the City owed a duty pursuant to Government Code sections 815.6 and 835, Civil Code sections 3479-3481, the Easement, the condemnation judgment that created the Easement, and “applicable California statutes requiring compliance therewith.” (SACC, ¶ 35.)

Section 815.6 does not establish a mandatory duty. It states that a public entity is liable for certain injuries when a public entity is under a mandatory duty. (Govt. Code § 815.6.)

Section 835 makes a public entity liable in certain circumstances for “injury caused by a dangerous condition of its property.” (Govt. Code § 835; see also Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148, as modified (Apr. 7, 2003), quoting Cal. Law Revision Com. com., 32 West's Ann. Gov. Code, supra, foll. § 830, p. 299 [“A public entity may be liable only for dangerous conditions of its own property.”].) Section 835 does not establish a mandatory duty under the facts of this case.

Civil Code sections 3479-3481 define nuisance. The code sections do not impose a mandatory duty on the City to approve or deny a permit.

Cross-Complainants also rely on Board of Directors of Turlock Irr. Dist. v. City of Ceres (1953) 116 Cal.App.2d 824 (“Turlock”) and Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577. As the City notes, the court previously rejected the applicability of these opinions to this case in its 1/23/26 ruling sustaining the demurrer to the First Amended Cross Complaint, and its 7/11/25 ruling sustaining the demurrer to the original Cross Complaint. (ROAs 233, 198.)

Turlock is factually inapposite because it involved a city’s liability to a pipeline easement holder for increasing traffic by building public streets over the pipeline. (Turlock, 116 Cal.App.2d at 831–832.) Further, Turlock pre-dates the enactment of the Government Claims Act, so there is no discussion of the statutory basis of the defendant city’s liability in that case. In sum, Turlock does not stand for the

proposition that a city can be liable for exercising its discretion to issue permits to a homeowner, even if the permits allow building that may interfere with another party’s easement rights.

Elson also does not support Cross-Complainants’ argument. In Elson, the appellate court found the existence of the pleading of a mandatory duty under an enactment. (Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 582 [“Therefore, when Blue and White operated without insurance it was in violation of a statute and the commission had a mandatory duty to prevent that violation”].) Elson reasoned that the immunity provided under section 818.4 did not apply because “section 818.4 provides immunity only for discretionary activities,” but the commission had a ministerial (i.e., non-discretionary) duty to ensure that a passenger bus business was operating with liability insurance; the commission could be liable because it had no discretion to not revoke the license of an uninsured passenger bus. (Id. at 589.)

Unlike in Elson, Cross-Complainants have failed to allege any enactments that would confer a mandatory duty on the City here. Instead, the City’s alleged issuance of the permits that allegedly cause Cross-Complainants’ injuries appear to be precisely the type of acts that are immunized under Government Code sections 818.4 and 821.2.

Government Code section 818.4 provides,

“A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”

(Govt. Code, § 818.4.)

Government Code section 821.2 is nearly identical, except it applies to public employees:

“A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of, or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”

(Govt. Code, § 821.2.)

Accordingly, the court SUSTAINS the demurrer to the second cause of action for equitable indemnity.

4th C/A (nuisance)

For the nuisance claim, the SACC alleges the following:

“Without necessarily admitting the allegations contained therein and for the purposes of illustration only, the First Cause of Action in OCSD’s Complaint alleges that Cross Complainants’ construction, placement, and/or maintenance of the Improvements constitutes a public and private nuisance. To the extent these allegations are proven at trial, the City (by engaging in the conduct alleged herein) will have actively created or assisted in the creation of that alleged nuisance.”

(SACC, ¶ 56.)

A cause of action for nuisance requires that the defendant created a condition or permitted a condition to exist. (See, e.g., CACI No. 2020 [public nuisance] and No. 2021 [private nuisance].)

Here, the only conduct alleged in the SACC that may constitute “actively creating” a nuisance is the issuance of the permits. (SACC, ¶¶ 30-35.) As discussed above, that conduct is immune pursuant to Government Code Sections 818.4 and 821.2.

In opposing the demurrer, Cross-Complainants rely on Hill v. People ex rel. Department of Transportation (1979) 91

Cal.App.3d 426, 432. In Hill, the state was sued for its alleged negligence in issuing a special permit that allowed the codefendants to transport an oversized load measuring 15 feet 7 inches in height on the public highways and attaching to the permit a route that the codefendants were to use that included an overpass with a height of only 15 feet 3 inches. (Hill, 91 Cal.App.3d at 428.) The codefendants’ trailer struck the overpass and struck the plaintiff’s car. (Ibid.) The complaint alleged the state negligently issued the permit.

The Court of Appeal held that while the overpass was not dangerous for use by normal vehicles, the state’s conduct in permitting its use by a vehicle that was too high created a dangerous condition. (Id. at p. 430.) Given “the unusual circumstances of this case, the Legislature could not have intended that the permit immunity of section 818.4 should defeat the governmental liability under section 835.” (Hill, 91 Cal.App.3d at 431-432.) There was “no theory which could justify an exercise of discretion to send a 15–foot 7–inch trailer along a route with a 15–foot 3–inch overpass.” (Id. at 432.)

Hill, however, does not support the broad-reaching proposition suggested in Plaintiff’s Opposition that “governmental immunity [does] not apply because the issuance of the permit created a dangerous condition.” Hill involved “unusual circumstances” and a dangerous condition created on the City’s own property. (See, e.g., Hill, 91 Cal.App.3d at 431 [“None of the cases relied upon by respondent is controlling, since none involved a situation where the government's issuance of a permit created a dangerous condition of the government's own property as defined in section 830, subdivision (c).”].) Here, by contrast, the City did not own the land. While Cross- Complainants suggest that the City had the power to control the property by having the authority to prevent the subject improvements, such an interpretation of the City’s authority appears too broad. Hill is clearly distinguishable.

Accordingly, the court SUSTAINS the demurrer to the fourth cause of action for nuisance.

5th C/A (dangerous condition of public property)

For a cause of action for dangerous condition of public property, a plaintiff must plead: “(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439, citing Govt. Code, § 835.)

The SACC alleges,

“Without necessarily admitting the allegations contained therein and for the purposes of illustration only, the First Cause of Action in OCSD’s Complaint alleges that Cross Complainants’ construction, placement, and/or maintenance of the Improvements poses a substantial risk to the health and safety of the public by blocking access to a public utility. To the extent these allegations are proven at trial, the City (by engaging in the conduct alleged herein) will have actively created or assisted in the creation of that alleged dangerous condition on public property (i.e., the public sewer lines and Easement in and around the area of the Improvements).”

(SACC, ¶ 62.)

Like the nuisance claim, the SACC alleges the City “actively created or assisted in the creation” of a dangerous condition on public property. As with the nuisance claim, the SACC does not allege facts showing that the dangerous condition existed on public property.

Cross-Complainants argue that privately-owned property is considered public property where an easement over it is owned by a public entity, citing to People v. Tapia (2005) 129 Cal.App.4th 1153. Tapia, a criminal case, held that a “a public sidewalk on an easement of way which has been granted to a public entity cannot fairly be characterized as private property, as that term is used in [Penal Code] section 626.9.” (Id. at 1166.) Tapia did not involve

Government Code sections 830 or 835 or involve a dangerous condition claim.

The demurrer to fifth cause of action is also SUSTAINED.

3rd C/A (declaratory relief)

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or crosscomplaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (Code Civ. Proc., § 1061.)

For their third cause of action for declaratory relief, Cross- Complainants allege:

“An actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendants the City, ROES 51 through 100, and each of them, concerning the respective rights and duties of each, in that it is the contention of Cross-Complainants that they are entitled to defense, indemnification and/or contribution from Cross-Defendants related to and arising out of the Improvements. Second Amended Cross-Complaints are informed and believes and thereon allege that Cross-Defendants contend to the contrary.”

(SACC at ¶ 51.)

For this claim, Cross-Complainants “request judicial determinations as follows:

a. That each of the Improvements that are the subject of OCSD’s Complaint were permitted and approved by the City; b. Whether the Improvements approved by the City constitute a dangerous condition on public property; c. Whether the Improvements approved by the City constitute a public or private nuisance; d. The percentage or ratio of contributing fault as between all parties so that the actual contributing fault of each party can be determined; c. The responsibilities of the Cross-Defendants for any and all litigation costs incurred by Cross-Complainants in defending the underlying Action.”

(SACC at ¶ 53.)

As the court notes in its prior ruling, “Cross-Complaints are seeking apportionment of fault, but they have not set forth any facts showing they are entitled to any indemnity from the City. They have failed to state a claim for declaratory relief.” (ROA 198.)

Whether a mandatory duty exists is a question of law. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.) Because there is no apparent statutory basis for the City’s liability pursuant to the equitable indemnity claim and there is no basis for tort liability on the part of the City, the demurrer is also properly sustained as to the declaratory relief claim, which is “wholly derivative” of the indemnity claim in that it seeks an apportionment of the City’s “fault.” (See Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [“Where a trial court has concluded the plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim”]; see also Jackson v.

Teachers Ins. Co. (1973) 30 Cal.App.3d 341, 344 [trial court did not err in sustaining insurer’s demurrer to insured’s declaratory relief claim where the complaint showed there was no possible cause of action on the facts alleged; “the remedy of declaratory relief is subject to an informed and sensible discretion of the trial judge”].)

Accordingly, the demurrer to the third cause of action is also SUSTAINED.

Re Leave to Amend: On demurrer, a court determines whether the complaint states facts sufficient to constitute a cause of action. If the court sustains the demurrer, it must decide whether to grant leave to amend. Leave to amend should be granted if there is a reasonable possibility that the defect can be cured by amendment. Plaintiff (or here, Cross-Complainant) has the burden of proving that there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Given that Cross-Complainants have had multiple opportunities to state a viable claim, and Cross- Complainants have not met their burden of establishing that there is a reasonable possibility that the defects in the SACC can be cured by amendment, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.

13 Ama Investors, LLC Ds’ Motion to Tax Costs vs. Pro Motorcars P’s Motion to Strike or Tax Costs Inc As explained below:

The court GRANTS Plaintiff AMA INVESTORS, LLC’s motion to tax costs in its entirety.

The court DENIES Defendants PRO MOTORCARS, INC.’s and Mehrdad Jandarian’s motion to tax costs.

Legal Standard

Plaintiff and Defendants filed competing motions to tax/strike costs. Each claim that it is the prevailing party, that the opposing party is not the prevailing party, and that certain costs items in the memorandum of costs are not recoverable.

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