Gurrola v. City of Los Angeles

Filed 11/24/09 Gurrola v. City of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from an order of the Superior Court of Los Angeles County, Bruce E. Mitchell, Commissioner. Reversed in part and remanded with directions and otherwise affirmed.

Manuel Gurrola, in pro. per., for Plaintiff and Appellant.

Carmen A. Trutanich, City Attorney, Susan D. Pfann, Assistant City Attorney, Peter E. Langsfeld, Deputy City Attorney, for Defendant and Respondent.

_________________________

Defendant and appellant Manuel Gurrola (Gurrola), in propria persona, appeals an order dismissing his first amended complaint against defendant and respondent City of Los Angeles (the City) following the sustaining of the Citys demurrer without leave to amend.

We conclude the first cause of action, inverse condemnation, is not demurrable on statute of limitations grounds. The alleged taking was not appreciable until March 2007, when the City determined not to repair the gully on his property due to excessive cost. Gurrola then had three years to file suit. (Code Civ. Proc.,  338, subd. (j).)[1] Therefore, with respect to the first cause of action, Gurrola is entitled to leave to amend.

With respect to the remaining causes of action, the trial court properly sustained the demurrer without leave to amend due to Gurrolas failure to present a timely government claim to the City. (Gov. Code,  905, 911.2, 945.4.)

Therefore, the order of dismissal is reversed in part and affirmed in part.

FACTUAL AND PROCEDURAL BACKGROUND[2]

During the winter rains of 2005, a certain storm drain (the Evadale storm drain) in the Montecito Heights area of Los Angeles failed, eroding the subject hillside lots at 3949 and 3951 N. Evadale Drive and creating a gully. On or about February 25, 2005, the City initiated phase one of the Evadale Drive Emergency Storm Drain Replacement Project, using $71,000 in FEMA and/or other funds to construct a temporary storm drain.

On August 9, 2005, Gurrola purchased the subject properties, two vacant lots, at a tax sale. Gurrola seeks to develop each lot with a new two-story single family residence.

On March 29, 2007 or April 3, 2007, Gurrola presented a government claim to the City for damages arising out of the failed storm drain.[3]

On May 5, 2008, the City notified Gurrola his claim was rejected by operation of law and that he had six months in which to file suit on the claim. (Gov. Code,  945.6.)

1. Pleadings.

Gurrola filed suit against the City on May 20, 2008. The operative first amended complaint followed three months later. It set forth the following six causes of action: inverse condemnation; property damage; dangerous condition of public property (Gov. Code, 835); breach of mandatory duty of public entity (Gov. Code,  815.6); negligence (Gov. Code, 815.2, subd. (a)); and nuisance (Civ. Code,  3479). Gurrola alleged in relevant part:

The Evadale storm drain failed due to the Citys failure to properly design, monitor and/or maintain the drain, causing a significant portion of his properties to erode into a large gully, and the gully continues to expand due to storm water and wind erosion.

On or about February 25, 2005, the City evaluated the scene of the gully and initiated the first phase of the Evadale storm drain project, using FEMA and/or other monies to construct a 200-foot surface temporary storm drain to carry flow from Evadale Drive to Montecito Drive. Phase one was completed at the end of April 2005.

In August 2005, as part of his due diligence, Gurrola discovered the eroded gully.

Gurrola purchased the properties with a deposit on August 9, 2005 and completed the purchase on September 9, 2005.

On or about August 9, 2005, Gurrola spoke with a staff person at the Citys Bureau of Engineering (Bureau), who told him the bureau was preparing plans for a permanent storm drain, was in the process of obtaining a geotechnical assessment and was waiting to see what the report would recommend to repair the damage. Gurrola then had ongoing discussions with Bureau staff regarding the storm drain, the Citys responsibility for the erosion gully and the status of the geotechnical report.

On July 26, 2006, the Citys Geotechnical Engineering Division (GED) prepared a report of the key geotechnical issues pertinent to the project and recommendations for design and construction of the project.

On August 1, 2006, Gurrola obtained a copy of the GED report and noticed the report indicated GEDs services did not include an evaluation of the gross stability of the hillside. Thus, GED is not in a position to provide an opinion with respect to the overall stability of the hillside and the potential for future land sliding impacting the planned improvements.

In August 2006, Gurrola spoke to the City about his concerns about the lack of discussion related to the gully, remedial grading of the gully and the Citys responsibility to fix it. The City responded that the report was adequate for designing the Project, including backfilling the subsurface pipe and gully.

In March 2007, the City completed design of the second phase of the project and it did not include repair of the gully area. On March 27, 2007, Bureau staff told Gurrola for the first time that [the City] recently determined to not backfill the new storm drainpipe as well as the gully due to excessive cost.

The Citys decision not to repair the gully prompted Gurrola (on March 29, 2007 or April 3, 2007) to present a claim for damages to the City.[4]

On April 1, 2008, Gurrola agreed to the Citys request to extend review of his claim to April 15, 2008. Thereafter, Gurrola agreed to another extension, agreeing to extend the review period to April 24, 2008. Gurrola then refused to agree to another extension of time. On May 5, 2008, the City advised Gurrola his claim was denied by operation of law, so as to commence the six-month period for filing suit on the claim.

2. Demurrer.

The City demurred to the first amended complaint in its entirety.

With respect to the first cause of action, inverse condemnation,[5] the City contended it was time-barred because the original complaint, filed May 20, 2008, was filed more than three years beyond the accrual date of February 25, 2005. ( 338, subd. (j).) The City asserted the accrual period begins to run when the damage is sufficiently appreciable to a reasonable person, and here the accrual date could be no later than February 25, 2005, the date the City reported the damage and took the initial steps to repair it.

As for Gurrolas other five causes of action, the City contended they were barred by Gurrolas failure to present a government claim to the City within one year of the accrual date, which occurred no later than February 25, 2005. (Gov. Code, 905, 911.2, 945.4.)

3. Opposition papers.

Gurrola contended his claim for damages and complaint were filed timely. Gurrola argued the Citys bad faith in reversing direction in March 2007, after years of impressing upon Plaintiff the validity of his claim, provided a basis for equitable estoppel, making his claim timely. Gurrola also emphasized he filed suit within six months of denial of the claim, making the lawsuit timely.

Gurrola also invoked the doctrine of delayed discovery, which postpones accrual of the cause of action until a plaintiff discovers, or has reason to discover, the cause of action. Gurrola admitted, Here, the damage occurred in February 2005 but neither the previous owner not the Plaintiff knew and/or were unable to discover about such until August 2005, when Gurrola inspected and purchased the properties. Gurrola faulted the City, which discovered the damage in February 2005, for not notifying the previous owner at that time. Gurrola argued that because the damage was not actually discovered until August 2005, the complaint filed within three years thereof, on May 20, 2008, was timely.

Gurrola also contended the accrual date did not occur until the City made a final decision not to repair the gully.

Gurrola further argued the accrual date continued to be tolled because the City had not remedied the underlying problem, so that the condition continues to threaten his properties and that if it rains tomorrow, the properties will continue to erode.

4. Hearing on the demurrer.

On September 30, 2008, the Citys demurrer came on for hearing.

The reporters transcript of the hearing contains the following colloquy between the trial court and Gurrola:

The Court: Whats your best case that between 2/25/05 and 2/25/06, which is the one year you would have had to file a claim what did the City tell you? That they were accepting liability, they were responsible, they were going to fix it at their expense?

Mr. Gurrola: About the damage to the property?

The Court: I guess were really talking about the gully; right?

Mr. Gurrola: Yeah.

The Court: What did the City tell you prior to February 25, 06?

Mr. Gurrola: That theyre investigating the damage.

The Court: That, I got. Did they tell you they were accepting responsibility and that it was their fault?

Mr. Gurrola: No.

The Court: They said they were just investigating?

Mr. Gurrola: Yes.

The Court: Well, thats not enough for estoppel.

Following the hearing, the trial court granted Gurrolas request to file a supplemental declaration to show how he could further amend his pleading. Following the filing of additional papers, the matter was taken under submission.

5. Trial courts ruling.

On October 28, 2008, the trial court sustained the Citys demurrer as to all causes of action without leave to amend. The trial court ruled:

1. The plaintiffs causes of action accrued no later than February 25, 2005. By that date the damage had occurred and was sufficiently appreciable to a reasonable person, as evidenced by the fact that the City had by February 25, 2005, already prepared its initial report on the storm damage.

2. Plaintiffs predecessor owned the property during February, 2005. Plaintiff stands in the shoes of his predecessor for purposes of accrual. Plaintiff actually discovered the damage in August 2005 as part of his due diligence for purchase at a tax sale. The fact that neither plaintiff nor his predecessor visited the property before August 2005 does not create delayed discovery. Where the damage to property is obvious the statute of limitations is not tolled simply because an owner does not visit their property, even if it is vacant land held for investment. At a minimum, periodic visits for maintenance such as weed abatement would be required. Otherwise, the running of the statute of limitations would depend on an owners convenience.

3. Plaintiff contends that the City is equitably estopped from asserting the statute of limitations because City personnel stated to him that City would repair the damage, including back-filling the pipe and gully.

The trial court rejected the equitable estoppel argument, noting Gurrolas admission at the September 30, 2008 hearing that the City never accepted responsibility and that it was just investigating the matter.

The trial court concluded there was no conduct by the City that gives rise to estoppel on this record. The plaintiff inquired of the City what its plans were for repair. The Citys personnel answered the plaintiffs inquiries, as they had a duty to do. But the City did not by an affirmative act deter or prevent Mr. Gurrola from filing a governmental claim or a civil complaint. The City did not give advice to the plaintiff; it periodically stated its ongoing plans and intentions, which were subject to change with further geologic study, design, and budgeting.

5. For all causes of action other than inverse, plaintiff was required to file a government tort claim within one year of accrual if there was no tolling. That date would have run no later than February 25, 2006. Plaintiff filed his government claim on April 3, 2007, over a year late. All causes of action other than inverse [condemnation] are barred by the failure to timely file a government claim. The result would be the same if the August 9, 2005 date of actual discovery was used as the date of accrual. [] 6. Inverse claim. The inverse cause of action had to be filed within 3 years of the date of accrual, if there was no tolling. That date ran no later than February 25, 2008. The complaint was filed May 20, 2008. The inverse cause of action is time-barred. [] 7. The damage alleged is not a continuing wrong. It was a one-time event in 2005 that plaintiff contends has not been fully repaired.

On October 31, 2008, Gurrola filed a premature notice of appeal.[6]

CONTENTIONS

Gurrola contends: the trial court erred in sustaining the demurrer to the first cause of action for inverse condemnation because the first amended complaint alleges facts and dates sufficient to satisfy the three-year statute of limitations; the trial court erred in sustaining the demurrers to the second through sixth causes of action because the City is equitably estopped from asserting the tort claims act statute of limitations as a defense; even assuming his claims were initially time-barred, the City is equitably estopped to rely on the statute of limitations; and the trial court erred in sustaining the demurrers to the second through sixth causes of action because the parties agreed in writing to extend the time the City had in which to act on his claim.

DISCUSSION

1. Standard of appellate review.

In determining whether a plaintiff has properly stated a claim for relief, our standard of review is clear: We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citations.] (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Our review is de novo. (Ibid.)

2. Gurrolas claims other than inverse condemnation are barred by his failure to present a timely claim to the City.

a. Government claims statute requirements.

Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, 911.2; Shirkv. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk).) A claim for damage to real property must be presented to the governmental entity not later than one year after the cause of action accrues. (Gov. Code, 911.2; Lee v. Los AngelesCounty Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 855 (Lee).)

The government claims statutes do not contain a unique definition of accrual. Rather, accrual of the cause of action for purposes of the claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants. ([Gov. Code,] 901; Shirk, supra, 42 Cal.4th at pp. 208-209. (K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1237 (K.J.)

Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to plaintiffs maintaining an action against defendant, and thus, an element of the plaintiffs cause of action. (Shirk, supra, 42 Cal.4th at p. 209.) A complaint which fails to allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused, is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action. (Ibid.) (K.J., supra, 172 Cal.App.4th at p. 1238.)

Only after the public entity 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. ([Gov. Code,] 912.4, 945.4; Shirk, supra, 42 Cal.4th at p. 209.) (K.J., supra, 172 Cal.App.4th at p. 1238.)

Generally, the lawsuit must be commenced within six months of notice of rejection of the claim. ([Gov. Code,] 913, 945.6; Code Civ. Proc., 342; Shirk, supra, 42 Cal.4th at p. 209.) (K.J., supra, 172 Cal.App.4th at p. 1238.)

b. Determining the date of accrual.

The date of accrual of a cause of action marks the starting point for calculating the claims presentation period. (Gov. Code, 901; Mosesian v. County of Fresno (1972) 28 Cal.App.3d 493, 500, 104 Cal.Rptr. 655.) The general rule for defining the accrual of a cause of action sets the date as the time when, under the substantive law, the wrongful act is done, or the wrongful result occurs, and the consequent liability arises. [Citation.] In other words, it sets the date as the time when the cause of action is complete with all of its elements [citations] the elements being generically referred to by sets of terms such as wrongdoing or wrongful conduct, cause or causation, and harm or injury [citations]. [Citations.] [A cause of action normally accrues when under the substantive law the wrongful act is done and the liability or obligation arises, that is, when action may be brought].) A cause of action accrues for purposes of the filing requirements of the Tort Claims Act on the same date a similar action against a nonpublic entity would be deemed to accrue for purposes of applying the relevant statute of limitations. [Citations.] [Citation.] (K.J., supra, 172 Cal.App.4th at pp. 1238-1239.)

c. The first amended complaint reflects the cause of action accrued no later than February 25, 2005, by which time the City commenced remedial work on the failed storm drain.

Gurrola pled the subject storm drain failed during a storm in the winter of 2005 due to the failure of the Defendant to properly design, monitor and/or maintain the Evadale Storm Drain proximately causing the storm drain to fail.

Although the precise date of the storm drain failure is uncertain, the first amended complaint reflects the cause of action accrued no later than February 25, 2005 by that date, the City already had commenced remedial work on the failed storm drain, using $71,000 in FEMA and/or other monies to construct a temporary 200-foot surface storm drain to carry flow from Evadale Drive to Montecito Drive.

Gurrolas opposition to the demurrer essentially conceded the point, arguing the damage occurred in February 2005, and neither the previous owner nor the Plaintiff knew and/or were unable to discover about such until August 2005. Thus, Gurrola acknowledged the claim accrued in February 2005, and merely argued the accrual date should be postponed until his actual discovery of the damage in August 2005.

d. Gurrolas various arguments to extend the accrual date are unavailing.

(1) Delayed discovery.

The traditional rule in tort cases is that the statute of limitations begins to run upon the occurrence of the last fact essential to the cause of action. Although sometimes harsh, the fact that plaintiff is neither aware of his cause of action nor of the identity of a wrongdoer will not toll the statute. [Citations.] [] The harshness of this rule has been ameliorated in some cases where it is manifestly unjust to deprive plaintiffs of a cause of action before they are aware that they have been injured. This modified rule has been applied to latent defects in real property and improvements. [Citations.] In the case of such latent defects the statute of limitations begins to run only when noticeable damage occurs. [Citation.] (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 406-407 (Leaf).) The discovery rule operates to protect the plaintiff who is blamelessly ignorant of his cause of action. (Id. at p. 408.)

Here, Gurrola argued the previous owner was unaware of the failed storm drain and the resulting damage, as the previous owner was not in California during 2004 and most of 2005, and that Gurrola discovered the erosion gully on or about August 9, 2005, as part of his due diligence.

The first amended complaint reflects the erosion gully existed as of February 2005, and that it descends approximately 200 feet, traversing the properties in a southwest direction and exposing bedrock. Further, as of February 25, 2005, the City was repairing the damage by way of a temporary 200-foot surface storm drain.

Thus, noticeable damage (Leaf, supra, 104 Cal.App.3d at p. 407) to the properties was present as of February 25, 2005. The damage was undiscovered at that time only because the previous owner was away.

To reiterate the trial courts ruling, Where the damage to property is obvious the statute of limitations is not tolled simply because an owner does not visit their property, even if it is vacant land held for investment. At a minimum, periodic visits for maintenance such as weed abatement would be required. Otherwise, the running of the statute of limitations would depend on an owners convenience.

We conclude the trial court properly rejected Gurrolas theory of delayed discovery.

(2) Equitable estoppel.

It is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act. [Citations.] Estoppel as a bar to a public entitys assertion of the defense of noncompliance arises when a plaintiff establishes by a preponderance of the evidence: (1) the public entity was apprised of the facts, (2) it intended its conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct to his detriment. [Citation.] [] Estoppel most commonly results from misleading statements about the need for or advisability of a claim . . . . (K.J., supra, 172 Cal.App.4th at p. 1239.)

Here, absent from the pleading are any allegations by Gurrola that City personnel made misleading statements to him with respect to the need for, or advisability of, presenting a claim.

Moreover, at the hearing on the demurrer, Gurrola admitted that during the one-year period between February 25, 2005 and February 25, 2006, the City did not tell him it was accepting responsibility and that it was their fault. Rather, [t]hey said they were just investigating.

As the trial court found, those circumstances are insufficient to give rise to estoppel.[7]

(3) Agreement to extend time.

Gurrola contends that because the parties, by written agreement, extended the time for the City to act on the claim to April 29, 2008, the trial court erred in sustaining the demurrer to the complaint.

The argument is devoid of merit. The extension of time, giving the City additional time to consider Gurrolas claim, has no bearing on whether Gurrola presented the claim to the City in a timely manner, i.e., within one year of accrual. (Gov. Code, 911.2, subd. (a).)

(4) Continuing damage.

The complaint alleges continuing damage, to wit: The gully continues to expand due to storm water as well as wind erosion, and most recently an earthquake since it was not backfilled and stabilized by the Defendant in 2005.

Gurrola argued below: According to [the] Complaint, the Defendant has never modified the essential condition of the gully and thus, the condition continues to threaten his properties. For example, if it rains tomorrow, the properties continue to erode. Gurrola contended the accrual date continues to be tolled since the properties suffer continuous and repeated damage that has not stabilized. In support, Gurrola cited Lee, supra, 107 Cal.App.4th 848.

Lee is plainly distinguishable. There, the plaintiff alleged her property was damaged by ongoing construction of a subway rail system. (Lee, supra, 107 Cal.App.4th at p. 858.) Thus, the plaintiff adequately alleged a continuous and repeated course of conduct causing damages to her property, which had not stabilized at the time the third amended complaint was filed. (Ibid.)

Here, in contrast, the failure of the Evadale storm drain was a singular event. As the trial court found, The damage alleged is not a continuing wrong. It was a one-time event in 2005 that plaintiff contends has not been fully repaired.

For all these reasons, we reject Gurrolas attempt to fix the accrual date any later than February 25, 2005. Because Gurrola failed to present a claim to the City within one year thereof, his causes of action other than inverse condemnation are barred by his noncompliance with the claims statutes. (Gov. Code, 911.2; Shirk, supra, 42 Cal.4th at p. 209.)

3. Although the inverse condemnation cause of action in the first amended complaint was not well pled, it was not demurrable on statute of limitation grounds.

a. Procedural posture.

By way of background, the original complaint included a cause of action for inverse condemnation. The Citys demurrer to said cause of action was overruled.

In the first amended complaint which followed, Gurrola failed to set forth any of the elements of a cause of action for inverse condemnation. Instead, he merely pled, at paragraph 74, The Defendants Demurrer to the Plaintiffs First Cause of Action for Inverse Condemnation was overruled.

The City again demurred to the inverse condemnation claim, on statute of limitations grounds. At that juncture, the trial court sustained the demurrer without leave to amend.

b. The inverse condemnation claim is not demurrable on statute of limitations grounds.

The statute of limitations for inverse condemnation is three years. ( 338, subd. (j).)

The date the taking occurred is not necessarily the date on which the period of limitation and of claims started to run. [] [Rather, the period begins to run when the damage is sufficiently appreciable to a reasonable man. [Citation.] (Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717 (Mehl).)

In Mehl, the state argued the taking became appreciable when freeway drainage construction was completed in 1965, or at the latest when a frontage road providing renewed access to the Mehl property was opened in 1966. But the [trial] court found that the Mehls first became aware of the drainage system in 1969, and that prior to that time they had been unable to accurately determine the nature and extent of the taking. (Mehl, supra, 13 Cal.3d at p. 717, italics added.)

The Supreme Court agreed, stating: This finding was supported by evidence that in . . . February 1969 the county advised Mehl it intended to construct a drainage system across the property to handle the flow of water from the freeway culvert. Mehl then visited the property, inspected the states culvert, and observed evidence of drainage flow onto his property during recent heavy rains. [] [Under these circumstances, the trial court did not err in concluding] that the claim and the cross-complaint had been timely filed. (Mehl, supra, 13 Cal.3d at p. 717, italics added.)

Here, the first amended complaint alleges it was not until March 2007 that the City advised Gurrola it had determined not to fill the gully due to excessive cost. Thus, irrespective of the presence of the erosion gully since February 2005, it was only as of March 2007 that Gurrola might claim the City had appropriated his property. Prior to that time, while the City was conducting a geotechnical assessment for the design and construction of the project, Gurrola could not determine the nature and extent of the taking. (Mehl, supra, 13 Cal.3d at p. 717.) Accordingly, with respect to the cause of action for inverse condemnation, the demurrer on statute of limitations grounds should have been overruled.[8]

DISPOSITION

The order of dismissal is reversed solely as to the first cause of action (inverse condemnation) and the matter is remanded with directions to grant Gurrola leave to amend said cause of action only. With respect to all other causes of action, the order of dismissal is affirmed.

The parties shall bear their respective costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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[1] All further statutory references are to the Code of Civil Procedure, unless otherwise specified.

[2] This factual summary is drawn from the allegations of the operative first amended complaint and from a supplemental declaration filed by Gurrola, which the trial court treated as an offer of proof to determine whether further leave to amend would be productive.

[3] The complaint is internally inconsistent with respect to the claim presentation date.

[4] Gurrolas further allegations regarding his discussions with the City after he presented his claim are not germane to an analysis of whether he presented a timely claim to the City. Therefore, it is unnecessary to recount those allegations here.

[5] No claim is required to be filed to maintain an action against a public entity for inverse condemnation. (Gov. Code, 905.1.)

[6] The order of dismissal was entered December 29, 2008. We construe the premature notice of appeal to refer to said order. (Cal. Rules of Court, rule 8.104(e).)

[7] Gurrola also contends that even if his claim was initially barred by the statute of limitations, the City is equitably estopped to rely on the statute of limitations because it resurrected his claim. This argument seems to be based on the fact the City spent additional time investigating and considering his claim. As indicated, Gurrola did not file a claim with the City until approximately April 3, 2007, more than two years after the accrual date. By the time the claim was presented, it had been time-barred for over a year. Gurrola cannot invoke equitable estoppel to resurrect a late claim.

[8] We express no opinion as to whether Gurrola is capable of pleading facts sufficient to constitute a cause of action for inverse condemnation. Further, because the operative first amended complaint, under the first cause of action (inverse condemnation), did not plead the required elements and merely noted the Citys demurrer to the inverse condemnation claim in the original complaint had been overruled, we are not in a position to review the inverse condemnation claim for other possible defects. We merely hold the inverse condemnation claim is not demurrable on statute of limitations grounds and that Gurrola is entitled to leave to re-plead a cause of action for inverse condemnation.