Ventura29 v. City of San Buenaventura CA2/6 ( 2023 )

Filed 1/4/23 Ventura29 v. City of San Buenaventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
VENTURA29, LLC, 2d Civ. No. B313060
(Super. Ct. No. 56-2020-
Plaintiff and Appellant, 00539754-CU-EI-VTA)
(Ventura County)
v.
CITY OF SAN
BUENAVENTURA,
Defendant and Respondent.
Ventura29, LLC, appeals from the judgment of dismissal
entered after the trial court had sustained, without leave to
amend, a demurrer to its second amended complaint (complaint).
The demurrer was filed by respondent City of San Buenaventura
(City).
In 2015 appellant purchased property (the Property) on
East Thompson Boulevard in City. The complaint alleged that
appellant “is in the process of developing a multi-unit townhome
project” on the Property.
The complaint consists of four causes of action. The first
cause of action is for inverse condemnation. Appellant claims
City’s modification of an approved grading plan for the Property
“resulted in an unconstitutional taking for which [it] is entitled to
just compensation.” We conclude appellant forfeited its
objections to the modification because it failed to exhaust its
administrative remedies.
Appellant contends the complaint states causes of action for
private nuisance, trespass, and negligence based on City’s
dumping of uncertified fill on the Property in 1977. We conclude
these causes of action are barred by the statute of limitations.
Accordingly, we affirm the judgment of dismissal.
The Complaint
The complaint alleged: “In 2006 the prior owner of the
Property, V2V Ventures, Inc. (‘V2V’) received Tentative Tract
Map approval from the City to construct 29 townhouses on the
Property.” “V2V . . . retained a geotechnical engineering firm,
Earth Systems Pacific (‘Earth Systems’), to conduct soils test on
the Property . . . .” Appellant took title to the Property in 2015.
It “is currently in the process of developing a 29-unit townhouse
project . . . pursuant to the same City-approved Tentative Tract
Map that V2V obtained in 2006.”
In 2018 Earth Systems prepared a Geotechnical
Engineering Report for appellant. The report is attached as
Exhibit A to the complaint. The report noted that extensive
uncertified fill was encountered in test trenches excavated on the
Property.
City acknowledges that it approved a grading plan
submitted by appellant. The complaint alleged, “[T]he Grading
Plan states: ‘recommendations and conclusions of [Earth
2
Systems’ 2018 report], shall be thoroughly complied with. . . .
[T]he mentioned report . . . [is] hereby . . . made a part of this
grading plan.’”
As a condition of approving appellant’s project, City
required it “to construct a pedestrian-only walking path across
[an adjoining] City-owned property [(“the City Parcel” or “City’s
Parcel”)] in order to connect [appellant’s] property with a nearby
City park.” City acquired its parcel in 1967.
The complaint continued: “After commencing excavation for
the project, . . . [appellant] soon discovered . . . that significant
amounts of uncertified fill were buried to considerable depths
under the entirety of the City [Parcel] where the walking path
was to be constructed, as well as under a portion of [appellant’s]
property.” “The buried materials consisted almost exclusively of
concrete curb and gutter, concrete street sections, footings,
asphalt and rebar, all of which are consistent with waste from
public works projects.”
Earth Systems proposed “an engineering solution . . . to use
geofabric to stabilize the areas with uncertified fill located
outside of the Project building pads as well as on the City Parcel
where [appellant] was required to install a walking path.” The
City inspector, Burt Yanez, orally informed appellant that Brad
Starr, the City Engineer, had rejected appellant’s proposal.
Yanez said “that [appellant] must excavate the Property and the
entire City Parcel to native bottoms, otherwise the City would
revoke all Project grading approvals.”1 “This requirement far
1 It is doubtful that Yanez said appellant must remove the
uncertified fill over the entire City Parcel. The complaint later
stated, “Plaintiff was not aware . . . that it would eventually be
required to move all . . . fill buried under the . . . City Parcel
3
exceeded the extent of grading contemplated or required in the
[approved] Grading Plan.”
“At no time during or subsequent to this conversation did
any City representative inform [appellant] that such a
determination to deny [its] grading proposal might have been
appealable to the City’s Public Works Director pursuant to
Municipal Code Section 12.210.030.[2] [Appellant] had no
idea . . . that such a remedy was potentially available. In any
event, it would have been infeasible to stop the Project in order to
pursue an appeal due to extensive overhead costs, carrying cost
and a balloon payment on a construction loan.”
Appellant removed “approximately 80 million pounds of
uncertified material, the great majority of which [was on] the
City Parcel. . . . [It] initially negotiated orally with City
where the walking trail was to be installed.” (Italics added.) In
its brief appellant alleges, “[T]he City Engineer . . . made the
demand that [appellant] remove all uncertified fill throughout
the Property and the City Parcel where the walking trail was to
be installed.” (Italics added.)
2 City’s Municipal Code Section 12.210.030 provides:
“Appeals from permit conditions, or to allow alternate grading
methods, or for other forms of relief from determinations or
decisions by the City Engineer, may be made to the Public Works
Director. The appeal shall be filed within ten calendar days after
the final action, determination, or decision by the City Engineer.
The appeal shall be on forms as provided by the Public Works
Director and shall specifically set forth the grounds for appeal
and reason or basis for disagreement with the decision of the City
engineer. The Public Works Director shall have the authority to
hear such appeals and grant exceptions to particular
requirements of this Part 2, or approve alternative grading
methods or permit conditions . . . .”
4
representatives for reimbursement or credits, and later
submitted a request in writing through [its] counsel. All requests
for reimbursement were denied.”
Appellant hired a construction forensics firm, Xpera Group
(Xpera), to research the uncertified fill. Xpera “concluded that
the uncertified fill at issue is waste from City public works
projects that was dumped on the City Parcel and the Property by
the City in or around 1977 when the topography of the City
Parcel changed from a steep drop off to a gradual slope.”
“[Appellant’s] causes of action . . . did not accrue until [its]
discovery of the illegally placed uncertified fill in April 2019.”
“[Appellant] has incurred, and will continue to incur, in excess of
$1,000,000 in additional Project costs related to the excavation of
the uncertified fill and other debris, remediation, lost time,
overhead, and interest payments to lenders and investors caused
by the delay in the Project timeline.”
The complaint consists of four causes of action: (1) inverse
condemnation, (2) private nuisance, (3) trespass, and (4)
negligence. The first cause of action alleged that City’s dumping
of uncertified fill on the Property and the City Parcel, along with
City’s requirement that appellant remove the fill, “result[ed] in a
taking and damaging of the value of the Property in an amount
in excess of $1,000,000.” The second through fourth causes of
action are based on City’s dumping of uncertified fill on the
Property and the City Parcel.
The complaint’s prayer for relief requests “compensatory
special damages” and “general damages.”
Demurrer: General Principles and Standard of Review
“A demurrer tests the legal sufficiency of factual allegations
in a complaint. [Citation.] A trial court’s ruling sustaining a
5
demurrer is erroneous if the facts alleged by the plaintiff state a
cause of action under any possible legal theory. [Citations.]” (Lee
Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th
73, 78.)
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer . . . .” (California
Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,
247.) “[W]e assume the truth of all facts properly pleaded in the
complaint and its exhibits or attachments, as well as those facts
that may fairly be implied or inferred from the express
allegations. [Citation.] ‘We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.’ [Citation.]”
(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.)
“The plaintiff has the burden of showing that the facts
pleaded are sufficient to establish every element of the cause of
action and overcoming all of the legal grounds on which the trial
court sustained the demurrer, and if the defendant negates any
essential element, we will affirm the order sustaining the
demurrer as to the cause of action. [Citation.]” (Martin v.
Bridgeport Community Assoc., Inc. (2009) 173 Cal.App.4th 1024,
1031.)
When, as here, “a demurrer has been sustained without
leave to amend, unless failure to grant leave to amend was an
abuse of discretion, the appellate court must affirm the judgment
if it is correct on any theory. [Citations.] If there is a reasonable
possibility that the defect in a complaint can be cured by
amendment, it is an abuse of discretion to sustain a demurrer
without leave to amend. [Citation.] The burden is on the
plaintiff . . . to demonstrate the manner in which the complaint
might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
6
Trial Court’s Ruling on Cause of
Action for Inverse Condemnation
“‘To state a cause of action for inverse condemnation,
the property owner must show there was an invasion or
appropriation (a “taking” or “damaging”) [by a public entity] of
some valuable property right which the property owner possesses
. . . and the invasion or appropriation directly and specially
affected the property owner to his injury.’” (City of Los Angeles v.
Superior Court (2011) 194 Cal.App.4th 210, 221.)
Appellant argues that the complaint states a cause of
action for inverse condemnation based on the City Engineer’s
modification of the grading permit to require the removal of the
uncertified fill on the Property and the City Parcel. Appellant
asserts: “[Th]e City imposed an illegal development
condition . . . .” “This substantial verbal modification completely
changed the scope of [appellant’s] project as approved by the City,
and unquestionably resulted in an unconstitutional taking for
which [it] is entitled to just compensation.”
The trial court concluded that appellant’s cause of action
for inverse condemnation was barred because it had not
exhausted its administrative and judicial remedies: “[Appellant]
had a means of challenging the oral modification of the permit.
[It] could have refused to comply and administratively appealed
from the revocation of the grading permit. Alternatively, [it]
could have filed a petition for writ of mandate in the superior
court challenging the illegal (i.e., oral) modification of the grading
permit. . . . [¶] But having accepted the benefits of the permit
issued it without resorting to the available means of
contemporaneously challenging it, [appellant] may not now sue
for inverse condemnation.”
7
Doctrine of Exhaustion of Administrative Remedies
“A demurrer may properly be granted based on the failure
to adequately plead an exhaustion of administrative remedies.
[Citation.] A plaintiff must exhaust the administrative remedies
available before resorting to the courts. . . . [¶] Allowing the
administrative agency or organization an opportunity to redress
the alleged wrong without interference by the courts may make
litigation unnecessary and relieve the courts of an unnecessary
burden. [Citation.] Even if the plaintiff does not obtain complete
relief, there may be partial relief that reduces the likelihood and
scope of litigation. [Citation.] An administrative remedy
ordinarily provides a more economical and less formal forum to
resolve disputes and provides an opportunity to mitigate
damages. [Citation.] The exhaustion requirement also promotes
the development of a more complete factual record and allows the
agency to apply its expertise, both of which assist later judicial
review if necessary. [Citation.] All of these factors both promote
judicial economy and afford due respect to the administrative or
organizational dispute resolution process.” (Shuer v. County of
San Diego (2004) 117 Cal.App.4th 476, 482; see also
Campbell v. Regents of University of California (2005) 35 Cal.4th
311, 321 [“‘Exhaustion of administrative remedies is “a
jurisdictional prerequisite to resort to the courts”. . .’”]; McKart v.
United States (1969) 395 U.S. 185, 195 [“A complaining party
may be successful in vindicating his rights in the administrative
process. If he is required to pursue his administrative remedies,
the courts may never have to intervene”].)
“The exhaustion doctrine has certain exceptions.
[Citation.] The doctrine does not apply when the administrative
remedy is inadequate. [Citation.] For example, it does not apply
8
when the administrative procedure is too slow to be effective
[citation], or when irreparable harm would result by requiring
exhaustion of administrative remedies before seeking judicial
relief [citations], or when it is clear that seeking administrative
remedies would be futile [citation].” (City of San Jose v.
Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597,
609.)
The Trial Court Did Not Err in Sustaining the
Demurrer for Failure to Exhaust Administrative Remedies
Municipal Code section 12.210.030 provided appellant an
administrative remedy – an appeal to City’s Public Works
Director – but appellant did not avail itself of this remedy. (See
ante, fn. 2 at p. 4.) The complaint explained, “[I]t would have
been infeasible to stop the Project in order to pursue an appeal
due to extensive overhead costs, carrying cost and a balloon
payment on a construction loan.” (Italics added.) “The cost . . . to
stop work on the Project was infeasible and would have resulted
in catastrophic losses.” (Italics added.)
The above-quoted explanation for not exhausting
administrative remedies is based on the conclusion that the
pursuit of an appeal to the Public Works Director would have
required appellant to stop work on the project. This is a
conclusion of fact that we do not accept as true. “We treat the
demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law.”
(Serrano v. Priest (1971) 5 Cal.3d 584, 591.)
If appellant had appealed, while the appeal was pending it
could have removed the uncertified fill where the buildings were
to be constructed and within a three-foot distance from the
buildings’ foundations. The removal of this fill would have been
9
mandatory even if the City Engineer had not modified the
grading plan. In its brief appellant notes that Earth Systems’
approved “Grading Plans only required excavation to native
bottoms below the building foundations and in a 3-foot perimeter
around the foundations.”3
If the appeal had not been decided by the time this required
excavation was completed, appellant could have started to
excavate the remainder of the Property. The excavation of the
City Parcel would have been left for last. The complaint alleged
that “the great majority of [the 80 million pounds of uncertified
fill] was removed from the City Parcel.”
Thus, appellant had nothing to lose by filing an appeal. We
reject its claim that “time-sensitive construction . . . would have
come to a grinding halt with no forward progress until an . . .
appeal right was exhausted.” The claim is contradicted by
appellant’s contention that it “would have immediately appealed
the [City Engineer’s] determination to at least preserve its rights
3 Earth Systems recommended: “The existing ground
surface within the construction limits of the proposed building
should be initially prepared for grading by removing all . . . non-
complying fill.” (Italics added.) “Due to the presence of artificial
fill soils, overexcavation and recompaction of soils in the building
areas will be necessary to decrease the potential for settlement
and provide more uniform bearing conditions. Soils should be
overexcavated to the deeper depth of either 2.5 feet below the
bottom of the deepest foundation element of mat and post-
tensioned slab foundations or through all uncertified fill.
Remedial excavations should be performed to a distance of at least
3 feet laterally beyond the outside edge of the foundation elements,
if possible.” (Italics added.)
10
had it known the City intended the Engineer’s determination to
be appealable.”
The complaint assumes that an appeal would have been a
protracted affair. This is speculation. We do not know how long
the appeal would have taken. Since the grading of the Property
was underway, appellant justifiably could have requested an
expedited appeal.
There is no reason why an appeal could not have been
expeditiously decided. City’s appellate procedure is simple and
straightforward. The complaining party appeals to the Public
Works Director. “The appeal shall be on forms as provided by the
Public Works Director and shall specifically set forth the grounds
for appeal and reason or basis for disagreement with the decision
of the City [E]ngineer.” (Muni. Code § 12.210.030.) “[T]he Public
Works Director shall determine one of the following: 1. The City
Engineer's decision was a reasonable interpretation of this Part 2
and that determination shall stand; or 2. Based on findings
supported by substantial evidence: . . . There are alternate
grading methods that will provide equivalent levels of protection
of the public health and safety. Such alternates shall be
specifically delineated in upholding the appeal.” (Ibid.) The
municipal code does not require the Public Works Director to
conduct an evidentiary hearing. “The decision of the Public
Works Director shall be final and there shall be no further appeal
to the City Council or any City advisory body.” (Ibid.)
If appellant had filed an appeal, the parties may have
reached a compromise. In the absence of a compromise, we do
not know what the Public Works Director would have decided.
The Director was not bound by the City Engineer’s decision. The
Director may have accepted Earth Systems’ alternative
11
mitigation measures, particularly under the pedestrian-only
walking path on City’s Parcel. The walking path would not be
subjected to heavy loads.
At oral argument before this court, appellant’s counsel
insisted that it was unfair for the City Engineer to modify the
approved grading plan after appellant had commenced grading
the construction site. But in view of appellant’s failure to appeal
to the Public Works Director, it would be unfair to impose upon
City an unexpected potential liability of more than $1 million for
the cost of complying with the modification.
Permitting a developer to bring an action for damages
without exhausting its administrative remedies would have a
chilling effect on governmental regulation of new construction.
Construction is a risky business. The developer can never be
certain of what it will find when it grades the construction site.
Unforeseen, subsurface conditions may be discovered. Their
discovery may lead public officials to believe that modifications of
approved plans are necessary to assure that the project is
soundly constructed and does not compromise public safety. This
is what happened here. Public officials will be loath to modify
approved construction plans if, without seeking available
administrative review, the developer may comply with the
modifications, complete the project, and then recover from the
government the cost of the modifications.
If appellant had filed an appeal, City would have been
promptly alerted “‘that [the City Engineer’s] decision [was] being
questioned’ and [would have been] allow[ed] . . . to mitigate
potential damages” and “propose alternative mitigation
measures. . . . Land use planning decisions entail a delicate
balancing of interests. An under protest exception to the general
12
waiver rule [in the present case] would upset this balance
and inject uncertainty into the planning process.” (Lynch v.
California Coastal Com. (2017) 3 Cal.5th 470, 480.) “If every
owner who disagrees with the conditions of a permit could
unilaterally decide to comply with them under protest, do the
work, and file an action in inverse condemnation on the theory of
economic coercion, complete chaos would result in the
administration of this important aspect of municipal affairs.”
(Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78,
superseded by statute on other grounds as stated in Shapell
Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218,
241.)
Appellant maintains that the City Engineers’ oral
modification of the grading plan “violated the City’s Municipal
Code,” which required that the modification be approved in
writing by the City Engineer. The complaint alleged: “The
modification to the Grading Plan was imposed verbally [i.e.,
orally,] in the field, with no supporting documentation . . . .” But
the absence of a writing does not excuse appellant’s failure to
exhaust its administrative remedies before bringing an action for
inverse condemnation.
The complaint alleged appellant did not know it had a right
to appeal the City Engineer’s decision to the Public Works
Director. “Ignorance of the law is no excuse. This maxim is so
long standing and so well established that it is part of the very
fabric of our legal system.” (Diaz v. Grill Concepts Services, Inc.
(2018) 23 Cal.App.5th 859, 869; see also Tarrant v. Butler (1960)
180 Cal.App.2d 235, 240 [“knowledge of the building and
zoning laws will be imputed to a property owner”].) Appellant’s
ignorance is particularly inexcusable because it was a
13
sophisticated real estate developer. “Developers are
sophisticated entities, capable of and expected to conduct due
diligence to determine their rights and duties.” (North Murrieta
Community, LLC v. City of Murrieta (2020) 50 Cal.App.5th 31,
45.) Appellant never asked City officials if the City Engineer’s
decision was appealable or otherwise reviewable by higher
authority.
City Is Not Equitably Estopped
From Asserting a Forfeiture
Appellant claims City is equitably estopped from asserting
a forfeiture based on appellant’s failure to exhaust administrative
remedies because City did not inform appellant of its right to
appeal. Appellant asserts: “[N]either the City Engineer nor any
other City representatives ever said anything about [appellant’s]
right to an appeal.” “The City’s actions led [appellant] to believe,
in good faith, that the City Engineer’s determination was not one
that could be appealed . . . .” “[T]he City’s complete failure to
apprise [appellant] of its alleged appeal rights constitutes a clear
breach of the City’s duty to inform applicants of remedies
available to challenge adverse actions.”
“The doctrine [of equitable estoppel] ‘ordinarily will not
apply against a governmental body except in unusual instances
when necessary to avoid grave injustice and when the result will
not defeat a strong public policy. . . .’” (Steinhart v. County of Los
Angeles (2010) 47 Cal.4th 1298, 1315.) “‘The doctrine . . . is
founded on notions of equity and fair dealing and provides that a
person may not deny the existence of a state of facts if that
person has intentionally led others to believe a particular
circumstance to be true and to rely upon such belief to their
detriment. . . . “‘Generally speaking, four elements must be
14
present in order to apply the doctrine . . . : (1) the party to be
estopped must be apprised of the facts; (2) he must intend that his
conduct shall be acted upon, or must so act that the party
asserting the estoppel had a right to believe it was so intended; (3)
the other party must be ignorant of the true state of facts; and (4)
he must rely upon the conduct to his injury.’”’” (McGlynn v. State
of California (2018) 21 Cal.App.5th 548, 561, italics added.)
Nothing in the record suggests that City officials intentionally led
appellant to believe that the City Engineer’s decision was not
appealable or that City officials “so act[ed] that [appellant] had a
right to believe [they had] so intended.” (Ibid.) The issue of
appealability was never discussed.
Appellant cites no authority imposing a duty upon City to
inform a real estate developer of its right to appeal a decision by
the City Engineer. In the absence of such a duty, an estoppel
cannot be based on mere silence. “Generally speaking, ‘“mere
silence on the part of a party will not create an estoppel unless he
was under some obligation to speak, and a party invoking such
estoppel must show that it was the duty of the other to speak,
and that he has not only been induced to act by reason of
such silence, but that the other had reasonable cause to believe
that he would so act.”’” (Johnson v. Johnson (1960) 179
Cal.App.2d 326, 330.)
Appellant quotes the following excerpt from Asimow et al.,
Cal. Practice Guide: Administrative Law (The Rutter Group, Nov.
2022 update) ¶ 15.108: “‘An agency can be estopped from relying
on the exhaustion of remedies defense where it negligently
misadvised the private party about the need to exhaust a remedy
or because the agency made a party's access to that remedy
difficult.’” City did not engage in such conduct.
15
Uniwill v. City of Los Angeles Is Distinguishable
Appellant contends, “This case fits squarely within the
holding of Uniwill v. City of Los Angeles [(2004) 124 Cal.App.4th
537 (Uniwill)] . . . . The facts could not be more analogous . . . .”
Based on Uniwill, appellant argues that its “decision to continue
with the project did not function as a waiver of its right to sue the
City for inverse condemnation.”
Uniwill is distinguishable. There, the City of Los Angeles
issued Uniwill a tentative tract map approving construction of a
shopping center. Uniwill began construction of the project. After
it had expended approximately $6.5 million, the city informed
Uniwill that it “would not certify to the Advisory Agency that
Uniwill had complied with the conditions of the Tentative Tract
Map” unless Uniwill conveyed an easement, performed trenching
work, and paid a fee. (Uniwill, supra, 124 Cal.App.4th at p. 540.)
“Uniwill determined that it was economically unfeasible to stop
the project and commence litigation to vindicate its rights.
Consequently, Uniwill complied with the City's ‘unlawful
exaction’ under protest and, after completing the project, filed
suit in inverse condemnation.” (Ibid.)
The trial court sustained the city’s demurrer to Uniwill’s
complaint because pursuant to Government Code section
66499.37, “Uniwill was required to commence [but did not
commence] an action or proceeding within 90 days after . . . it
learned of the City’s demand that Uniwill grant the . . .
easement, and . . . its failure to do so barred the action.”
(Uniwill, supra, 124 Cal.App.4th at p. 542.) At the time of the
trial court’s decision, Government Code section 66499.37
provided, “‘Any action or proceeding to attack . . . the decision of
an advisory agency, appeal board or legislative body concerning a
16
subdivision, . . . or to determine the reasonableness, legality or
validity of any condition attached thereto, shall not be
maintained by any person unless such action or proceeding is
commenced and service of summons effected within 90 days after
the date of such decision. . . .’” (Id. at p. 539, fn. 1, italics added.)
The Court of Appeal reversed because Uniwill’s complaint
“alleged that the City’s demand that it grant . . . an easement . . .
was not a requirement imposed by the Advisory Agency as a
condition for the grant of permission to develop the property.
Rather, it was merely a threat, uttered by a City
representative . . . to deprive Uniwill of what it was legally
entitled to, issuance of a Final Tract Map and a certificate of
occupancy upon completion of the project in conformity with the
governmental approvals already issued. [¶] The City cites no
case in support of its contention that a threat issued by an agent
of the City under the circumstances described above which
results in the taking of private property must be challenged in an
action or proceeding filed within 90 days of the threat.” (Uniwill,
supra, 124 Cal.App.4th at pp. 543-544.)
Uniwill has no bearing on the present appeal. Uniwill
held that the 90-day filing deadline of Government Code section
66499.37 does not apply where, after approval of a tentative tract
map and commencement of the project, the city demands that the
developer comply with additional conditions but the demand
constitutes a mere threat instead of a requirement imposed by
the advisory agency. The present appeal does not involve the
applicability of section 66499.37. Furthermore, in Uniwill the
city did not contend that the developer had failed to exhaust its
administrative remedies.
17
Remaining Causes of Action Are
Barred by the Statute of Limitations
The remaining causes of action are private nuisance,
trespass, and negligence. For these causes of action, the
applicable statutes of limitations are one year for the
presentation of a claim to the City (Gov. Code, § 911.2; see
Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1263),
and three years for filing a civil action. (Code Civ. Proc., § 338,
subd. (b)); see Shamsian v. Atlantic Richfield Co. (2003) 107
Cal.App.4th 967, 979; Cyr v. McGovran (2012) 206 Cal.App.4th
645, 650.)
“The statute of limitations usually commences when a
cause of action ‘accrues,’ and it is generally said that ‘an
action accrues on the date of injury.’” (Bernson v. Browning-
Ferris Industries (1994) 7 Cal.4th 926, 931.) Based on the
complaint, the statutes of limitations began to run “in or around
1977” when City dumped the uncertified fill on the Property and
the City Parcel. To avoid the bar of the statute of limitations,
appellant relies on the discovery rule. Appellant claims it did not
discover the uncertified fill until April 2019.
“An important exception to the general rule of accrual is
the ‘discovery rule,’ which postpones accrual of a cause of action
until the plaintiff discovers, or has reason to discover, the cause
of action. [Citations.] [¶] 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.] Under the discovery
rule, suspicion of one or more of the elements of a cause of action,
coupled with knowledge of any remaining elements, will
generally trigger the statute of limitations period.” (Fox v.
Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.)
18
“A plaintiff whose complaint shows on its face that his or
her claim would be barred by the applicable orthodox statute of
limitations, and who intends to rely on the discovery rule to toll
the orthodox limitation period, ‘must specifically plead facts
which show (1) the time and manner of discovery and (2) the
inability to have made earlier discovery despite reasonable
diligence. [Citations.] Mere conclusory assertions that delay in
discovery was reasonable are insufficient and will not enable the
complaint to withstand general demurrer. [Citation.]’
[Citations.] Arguments that discovery-rule issues are necessarily
factual and cannot be resolved on demurrer have been rejected.”
(CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d
1525, 1536-1537 (CAMSI).)
The trial court ruled that the three remaining causes of
action “are time-barred [by the statute of limitations] and that
[appellant] has not pleaded facts bringing [them] with[in] the
‘discovery rule.’” The court explained: “For purposes of the
statute of limitations, the knowledge of [appellant’s] predecessors
[i.e., previous owners of the Property] is imputed to it. [Citation.]
[Appellant] concedes that its ‘predecessors as early as 2004 may
have been aware of the existence of some uncertified fill located
underneath some specific portions of the subject properties.’ . . .
[Appellant] does not vigorously resist the proposition that these
three causes of action would have accrued by this time, if not
sooner. Therefore, the limitations period would have expired
prior to the time this action was commenced in 2020.”
The trial court did not err. In the complaint appellant
made allegations only as to its own lack of discovery. But if prior
owners of the Property “knew or should have known that [City]
had [dumped uncertified fill on the Property,] their knowledge
19
would have been imputed to [appellant].” (CAMSI, supra, 230
Cal.App.3d at p. 1537; see also Bradler v. Craig (1969) 274
Cal.App.2d 466, 472.) “In an action involving tortious injury to
property, the injury is considered to be to the property itself
rather than to the property owner, and thus the running of the
statute of limitations against a claim bars the owner and all
subsequent owners of the property. [Citations.] In other words,
the statute of limitations does not commence to run anew every
time the ownership of the property changes hands.” (Beck
Development Co. v. Southern Pacific Transportation Co. (1996) 44
Cal.App.4th 1160, 1216.)
The complaint “wholly fails to show that [prior owners of
the Property] would have been unable, despite reasonable
diligence, to have discovered” the uncertified fill. (CAMSI, supra,
230 Cal.App.3d at p. 1537.) In view of the enormity of the
amount of fill (80 million pounds on the Property and the City
Parcel), it is difficult to understand how the owner of the
Property at the time of the dumping would not have been aware
of it or would not have had reason to discover it. The complaint
alleged that, because of the dumping, “[t]he topography of the
City Parcel changed in or around 1977, from a steep
approximately 20-foot drop-off to a gradual slope . . . .” The
Xpera Report, attached as Exhibit D to the complaint, stated that
in 1977 the dumping of fill “over the entire combined City Site
and Project Site . . . created a manufactured slope across the
boundary area of the Project Site and the City Site.”
In the trial court appellant acknowledged “that the
Property owner in 1977 and its successors possibly may have
been aware that the City dumped material on the City Parcel and
the Property.” In a trench dug on the Property in 2006, Earth
20
Systems found “large amounts of debris ranging from blocks of
concrete up to 2.5’ [2.5 feet] in diameter to asphalt pieces up to 7’
[7 feet] long.”
Appellant maintains that, irrespective of whether its
predecessors knew or had reason to know of the dumping of the
uncertified fill, the causes of action are not time-barred because
they do “not seek recovery for a direct injury resulting
immediately from the . . . dumping . . . . The principal harm
suffered by [appellant] was caused by the City’s unforeseeable,
unjustifiable and unlawful demand that [appellant] remove tons
of the City’s waste from the City’s own property. [Appellant’s]
action for damages for the injury caused by the City’s dumping of
uncertified fill is not a traditional trespass upon real property,
but rather in the nature of an action upon the case at common
law for a consequential injury.” (Italics added.) “[T]he statute of
limitations only starts to run upon [appellant’s] sustaining the
consequential injury, and its knowledge thereof.”
“The common law drew a distinction between two types of
actions for injuries to real property. If the injury was an
immediate and direct result of the act complained of, then an
action for trespass was the appropriate remedy. On the other
hand, where the damages did not immediately ensue from the act
complained of, the damages were deemed to have been
consequential, and the only remedy was an action ‘on the case.’”
(Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50
Cal.App.4th 1301, 1305; see also Hicks v. Drew (1897) 117 Cal.
305, 310 [“‘where damages do not immediately ensue from the act
complained of, it is consequential, and case is the proper remedy;
and, on the contrary, where the act itself, and not the
21
consequence of it, occasions the mischief, trespass is the right
action’”].)
Appellant’s “action on the case” theory is based on its claim
that the primary injury to its property was not caused by the
dumping of the uncertified fill. Instead, it was caused by the
consequences of the dumping, i.e., the City Engineer’s
unjustifiable modification of the grading permit to require
appellant to remove the fill. Therefore, appellant argues, the
statute of limitations on the causes of action began to run when
the City Engineer made the modification.
The “action on the case” theory is of no assistance to
appellant. The theory in effect restates the first cause of action
for inverse condemnation. As we have explained at length ante,
pages 8-16, appellant forfeited its right to object to the
modification of the grading plan because it had complied with the
modification without exhausting its administrative remedies.
Disposition
The judgment is affirmed. City shall recover its costs on
appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
22
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Price, Postel & Parma and Timothy E. Metzinger, Todd A.
Amspoker, Cameron Goodman, for Plaintiff and Appellant.
Olivarez Madruga Law and Thomas M. Madruga, Lloyd
Pilchen, for Defendant and Respondent.