Schwenn v. Riverside Co. Dept. of Animal
Services
Filed 6/4/13 Schwenn v. Riverside Co. Dept. of Animal
Services CA4/2
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION TWO
MARY
BERNADETTE SCHWENN,
Plaintiff and Appellant,
v.
RIVERSIDE
COUNTY DEPARTMENT OF ANIMAL SERVICES et al.,
Defendants and Respondents.
E053200
(Super.Ct.No. INC091022)
OPINION
APPEAL from the Superior
Court
of
Riverside
County. John G. Evans,
Judge. Affirmed in part and reversed
with directions.
Mary Bernadette Schwenn, in pro.
per., for Plaintiff and Appellant.
Law Offices of Middlebrook, Kaiser,
Hengesbach & Dawson, Michael R. Kaiser and Nicole R. Cieslinski for
Defendants and Respondents.
On
October 29, 2010,
plaintiff and appellant Mary Bernadette Schwenn filed a third amended complaint
against Riverside County Department of Animal Services (the County) and eight
individual animal control officers
employed by the County.
On December 8, 2010, defendants filed a
demurrer to the third amended complaint.
On January
20, 2011, the trial court sustained the demurrer
without leave to amend. Plaintiff
appeals from the ensuing judgment.
I
STANDARD OF REVIEW
A demurrer is used to test the
sufficiency of the factual allegations of the complaint to state a cause of
action. (Code Civ. Proc., § 430.10,
subd. (e).)
title="">[3] The facts pled are assumed to be true, and
the only issue is whether they are legally sufficient to state a cause of
action. “In reviewing the sufficiency of
a complaint against a general demurrer, we are guided by long-settled
rules. ‘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.
[Citation.]†(
318.)
Our standard of review is de novo: “Treating as true all material facts properly
pleaded, we determine de novo whether the factual allegations of the complaint
are adequate to state a cause of action under any legal theory, regardless of
the title under which the factual basis for relief is stated. [Citation.]â€
(Burns v. Neiman Marcus Group,
Inc. (2009) 173 Cal.App.4th 479, 486.)
II
THE THIRD AMENDED COMPLAINT
The subject complaint alleges: “This litigation concerns three incidents
involving employees of Riverside County’s Department of Animal Services (“
matter concerned Plaintiff’s puppy Meadowlark who was stolen from the Property
on November 3, 2009. When Plaintiff
attempted to redeem Meadowlark from [Coachella Valley Animal Campus], Defendant
Rosa refused to allow the redemption because Plaintiff had no proof of
ownership even though there is no such requirement under state or local
law. This lawsuit ensued. Plaintiff recovered Meadowlark in May 2010
through a Court order and payment of fees.
(b) On April 25, 2010, Palafox, a
RCDAS employee, took seven (7) one-week-old puppies from the Property. Plaintiff was unable to redeem these puppies
because they were destroyed by RCDAS in less than 48 hours in direct
violation of the mandatory four business day holding period imposed by state
law. (c)
On March 4, 2008, Huffman, a RCDAS employee took three (3) puppies
from the Property. Plaintiff was unable
to redeem these puppies because RCDAS employees demanded excessive redemption
fees, including fees that were not statutorily permitted under state or county
law.â€
The general allegations also describe entries
onto the property by defendants in 2007, 2008, at least six occasions in 2009,
and two occasions in 2010, all “without the consent or authority of a warrant,
exigent circumstances, probable cause or implied consent and against the will
of the Plaintiff.â€
name="_ftnref4" title="">[4]
The third amended complaint alleges
eight causes of action.
The first cause of action is for
fraud. It alleges that Huffman, Espejo,
and Ritchie entered plaintiff’s property on November 30, 2007, and illegally
took two wolf hybrid females and five puppies.
It is further alleged that Ritchie falsely stated the amount of impound
fees for the animals and demanded more than what is authorized by Riverside
County Ordinance No. 630.10. It also
alleged that Ritchie knew the representations were false and intended to
defraud and deceive Plaintiff. Plaintiff
relied on the representations.
Other representations by Ritchie in
2008 were also alleged to be false and known to be false. Plaintiff relied on the cost-to-redeem
representations in deciding not to redeem the animals. Upon further inquiry, Miller also made
knowing misrepresentations as to various fees with the intent to defraud
plaintiff. It was alleged that “[b]oth
Ritchie and Miller acted with actual malice and fraudulently in making the
representations . . . .†Plaitniff
alleged that, as a result of the fraud and deceit, she was damaged in the sum
of $70,200.
Similar false misrepresentations by
Rosa and Ritchie in 2009 were also alleged.
Finally, it was alleged that Palafox took seven puppies from the
property in 2010 and that the puppies were destroyed in violation of several
statutes. In connection with this
incident, several more misrepresentations by Ritchie were alleged. Damages were sought for the loss of the puppies
in the sum of $163,800.
The second cause of action was for
conversion. It alleged that Huffman took
three puppies from the property on March 4, 2008, and Ritchie and Palafox took
seven puppies from the property on April 25, 2010. It further alleged that Ritchie intentionally
destroyed the seven puppies in violation of various statutes. Damages were sought for the loss of the
puppies in the amount of $163,800.
The third cause of action was for
invasion of plaintiff’s privacy. It
alleged that the individual defendants repeatedly entered plaintiff’s property
without warrant, consent, or exigent circumstances.
plus $150,000 for failure to properly train the employees.
The fourth cause of action was for trespass. Monetary damages were sought for each alleged
act of trespass.
The fifth cause of action was for
due process violations. Under this
heading, plaintiff alleged that the taking of her puppies was the result of an
illegal search and seizure and was a taking of her property without a
hearing. Although we agree with the
trial court that the claim as stated is uncertain, it was apparently intended
to be a claim pursuant to section 1983 of title 42 of the United States Code,
in addition to the stated grounds.
The sixth cause of action was for
inverse condemnation. Plaintiff alleged
that she was an owner of a possessory interest in a private easement across her
property known as Fan Hill Road. By
using the road for their continuing trespasses, it was alleged that defendants
took the easement for public use.
Damages were sought in the sum of $100,000.
The seventh cause of action was for
injunctive relief. Under this heading,
plaintiff sought an injunction against defendants’ alleged illegal conduct. The proposed injunction would prohibit
defendants from entering the road without an inspection warrant and would
require defendants to hold a hearing when animals are impounded.
The eighth cause of action was for
emotional distress. Plaintiff
alleged that the conduct of defendants was intentional and outrageous and
caused her severe emotional distress.
Finally, plaintiff alleged that the
County was liable for the actions of its employees under Government Code
sections 815.2, subdivision (a) and 820.
The complaint was accompanied by
points and authorities and exhibits.
III
THE DEMURRER
On December 8, 2010, defendants
filed a demurrer to the third amended complaint. The demurrer alleged that the complaint and
each cause of action failed to state facts sufficient to state a cause of
action and that each cause of action was uncertain.
The accompanying memorandum of points and
authorities generally argued that (1) the complaint was vague and ambiguous;
(2) defendant animal control officers were statutorily immune for their
discretionary actions; (3) some causes of action were barred by the
causes of action were uncertain and did not state facts sufficient to state a
cause of action.
IV
THE TRIAL COURT’S DECISION
On January 20, 2011, a hearing was
held on the demurrer. The trial court
sustained the demurrer on the following grounds:
The first cause of action, for fraud, was held
to be vague as to the alleged actual malice.
It was sustained without leave to amend.
The second cause of action, for conversion, was
held to be vague and failed to state a cause of action. It was also held to be time-barred.
The third cause of action, for trespass, and the
fourth cause of action, for invasion of privacy, were held to be time-barred.
The fifth cause of action, for
vague and uncertain.
The sixth cause of action, for inverse
condemnation, did not state a cause of action.
The seventh cause of action, for
of action.
The eighth cause of action, for emotional
distress, was held to be time-barred. No
statutory authority for the cause of action was alleged.
In finding certain causes of action
“time-barred,†the trial court did not differentiate between the general
each cause of action and defendants’ argument that plaintiff failed to file a
claim within the period provided by the Tort Claims Act. (Gov. Code, § 900 et seq.) We discuss both possible alternatives,
V
AMENDMENT OF COMPLAINTS
At the beginning of the January 20, 2011
hearing, the trial court stated that it had read all four complaints filed in
the case “and in my opinion, you have not complied with the Court order. This case started out regarding one dog,
Meadowlark, and now it expands into several dogs. It’s not even remotely close to the original
Complaint that was filed in this case.
I’ve given you several chances to file an amended Complaint, and I think
that you are taking advantage of the Court. . . . You’ve expanded it way
beyond . . . the original Complaint that was filed in this
action.†However, this expansion of
the case was not stated as a reason for sustaining the demurrer.
Nevertheless, plaintiff first argues that the
trial court was incorrect. She points
out that section 472 provides that a complaint may be amended once without
court approval. “Section 472 does not
limit what types of amendments may be made of course and without leave of
court.†(Gross v. Department of Transportation (1986) 180 Cal.App.3d 1102,
1105.) After that, the court may allow
amendments at its discretion. (§ 473,
subd. (a)(1); Atkinson v. Elk Corp.
(2003) 109 Cal.App.4th 739, 761.)
Amendments are generally allowed upon “any terms as may be just.†(§ 473, subd. (a)(1).) But, no such terms, conditions, or
restrictions are in our record.
The original complaint was precipitated by the
seizure of plaintiff’s dog Meadowlark.
It attempted to allege four causes of action: (1) taking of property without due
process or compensation; (2) inverse condemnation; (3) malicious and fraudulent
actions by defendants; and (4) injunctive relief.
Plaintiff filed her
2010. In that complaint, she alleged
seven causes of action: intentional
misrepresentation; negligent misrepresentation; intentional infliction of
emotional distress; negligent infliction of emotional distress; conversion;
trespass; and inverse condemnation. She
also sought injunctive and declaratory relief.
In support of the trial court’s decision,
defendants argue that the new allegations in the third amended complaint far
exceed the scope of plaintiff’s original complaint. They cite Harris
v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018 (Fourth Dist., Div.
Two). In that case, this court
summarized the applicable rules:
“Following an order sustaining a demurrer . . . with leave to amend, the
plaintiff may amend his or her complaint only as authorized by the court’s
order. [Citation.] The plaintiff may not amend the complaint to
add a new cause of action without having obtained permission to do so, unless
the new cause of action is within the scope of the order granting leave to
amend.†(Id. at p. 1023.)
We cannot resolve this dispute here because we
do not have a transcript of the prior demurrer hearing, and we are not directed
to a copy of the order sustaining the demurrer to the second amended complaint
in our record. The superior court’s
register of actions only states the demurrer was sustained with leave to
amend. No terms or conditions are
mentioned.
Although plaintiff concedes that she added two
allegedly related causes of action in her third amended complaint (invasion of
privacy and a federal civil rights violation under 42 U.S.C. § 1983), added
three new defendants, and specified an additional trespass date, the basic
facts underlying the third amended complaint are not substantially different
from the second amended complaint.
Absent a record of the trial court’s ruling when
it sustained the demurrer to the second amended complaint and granted leave to
amend, we cannot determine whether the new causes of action were within the
scope of the order granting leave to amend or not. In the absence of evidence that the trial
court exercised its discretion to impose conditions upon the amended pleadings,
we cannot assume there were such conditions or that plaintiff violated them.
Nor can we determine why the trial court felt it
was being taken advantage of by the amendment, particularly when plaintiff was
entitled to amend her original complaint without leave of the court. But, in any event, the trial court did not
base its decision on this ground, and the differences between the two amended
complaints are essentially irrelevant here.
VI
DEFENDANTS’ ATTACK ON THE THIRD AMENDED
COMPLAINT
As noted, ante,
the demurrer alleged that the third amended complaint and each of the alleged
causes of action failed to state a cause of action and were uncertain.
A general demurrer can be based on grounds that
the pleading or an individual cause of action does not state facts sufficient
to constitute a cause of action. (§
430.10, subd. (e).) It may also be based
on uncertainty, which is defined to include ambiguous and unintelligible. (§ 430.10, subd. (f).)
“A demurrer shall distinctly specify the grounds
upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be
disregarded.†(§ 430.60.)
“Each ground of demurrer must be in a separate
paragraph and must state whether it applies to the entire complaint . . . or to
specified causes of action or defenses.â€
(Cal. Rules of Court, rule 3.1320(a).)
In this case, defendants do not assert that
plaintiff has failed to allege facts to support one or more elements of each
cause of action. Instead, they use the
demurrer to argue that the complaint shows, on its face, that it and/or
individual causes of action are barred by specific defenses.
This use of a demurrer is proper when the
appropriate grounds are stated in the demurrer.
A demurrer may attack the complaint by showing that defenses to the
complaint or individual causes of action are established by the allegations in
the complaint, in exhibits, or by judicially noticeable material. Here, the alleged defense of statute of
limitations, including failure to comply with the Tort Claims Act and statutory
immunities, could have been raised by demurrer if shown on the face of the complaint
or by matters judicially noticed. But
those things were not mentioned in the demurrer.
“It is established that a demurrer which merely
states that the cause of action set forth in the complaint is on its face
barred by the statute of limitations is sufficient to raise that defense.†(Williams
v. International Longshoremen's & Warehousemen's Union (1959) 172
Cal.App.2d 84, 87.) But here, the
demurrer did not include any
allegation raising this defense and was, therefore, insufficient.
The memorandum of points and authorities
accompanying the demurrer did present an argument that some causes of action
were barred by the statute of limitations or statutory immunities.
As noted, ante,
the trial court agreed that the second alleged cause of action (conversion),
the third cause of action (invasion of privacy), the fourth cause of action
(trespass), and the eighth cause of action (emotional distress) were
time-barred. It is not clear whether the
trial court found that those causes of action were time barred under the
general statute of limitations or under the claims presentation provision of
the Tort Claims Act. The trial court did
not decide any immunity issues.
Since the statute of limitations and other
defenses were not stated grounds of the demurrer, the trial court would have
been within its discretion in overruling the demurrer on this ground
alone. Since the statute of limitations
issue was raised in the memorandum of points and authorities, and could have
been the basis of the trial court’s decision, we will briefly discuss the issue
even though plaintiff did not discuss it in her response to the demurrer.
VII
STATUTE OF LIMITATIONS DEFENSE
The alleged conversion cause of action in the
third amended complaint alleges that the conversion (taking of three of
plaintiff’s puppies) occurred between March 4 and May 2008. The statute of limitations for conversion is
three years. (§ 338,
subd. (c).) It therefore expired in
March 2011. Since the third amended
complaint was filed on October 29, 2010, the cause of action was filed within
the statutory limitations period.
The alleged trespass cause of action in the
third amended complaint alleges continuing trespasses from November 2007
through 2010. The statute of limitations
for trespass is three years. (§ 338,
subd. (b).) Since the third amended
complaint was filed on October 29, 2010, this cause of action was also within
the statutory period.
name="_ftnref8" title="">[8]
The trial court merely found the entire cause of
action time-barred without differentiating between the different alleged
trespasses. However, the complaint does
not show on its face that all of the various alleged trespasses are barred by
the general statute of limitations. In
addition, since continuing trespasses are alleged, legal and factual issues are
presented that cannot be resolved on demurrer.
The cause of action for invasion of privacy is
based on California Constitution, article I, section 13, which proscribes
illegal searches and seizures.
incorporated paragraphs that the warrantless intrusions were continuing. Any statute of limitations issue cannot be
determined from the face of the complaint.
The cause of action for intentional infliction
of emotional distress merely refers to the preceding allegations of the
complaint and does not specify specific acts on specific dates. However, the limitations period for the cause
of action for alleged intentional infliction of emotional distress is two
years. (§ 335.1; Huntly v. Zurich General A. & L. Ins. Co. (1929) 100 Cal.App.
201, 206, 212.)
Considering the foregoing, we note that
resolution of a statute of limitations issue is normally a question of
fact. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810-811,
813-814 [discovery rule postpones accrual of the statute of limitations].) On demurrer, the facts are not developed, and
we must consider the factual allegations of the complaint to be true. “In order for the bar of the statute of
limitations to be raised by demurrer, the defect must clearly and affirmatively
appear on the face of the complaint; it is not enough that the complaint shows
that the action may be barred.
[Citation.]†(
(1995) 37 Cal.App.4th 1397, 1403.)
We conclude that the alleged violations of the
general statute of limitations do not clearly appear on the face of the
complaint. In finding the second, third,
fourth, and eighth causes of action to be time-barred, the trial court erred if
it was referring to the general statute of limitations.
VIII
ALLEGED FAILURE TO FILE A CLAIM UNDER THE
TORT CLAIMS ACT
The Tort Claims Act generally requires a person
who seeks money or damages from state or local public entities to first file a
claim. (Gov. Code, §§ 905, 905.2.) Depending on the nature of the claim, it must
usually be filed within six months or one year of the accrual of the cause of
action. (Gov. Code, § 911.2.) The date of accrual is “the date upon which
the cause of action would be deemed to have accrued within the meaning of the
statute of limitations . . . .†(Gov. Code,
§ 901.)
Litigation may be filed after a claim is
rejected, either directly or by operation of law. (Gov. Code, §§ 912.4, 913, 945.4.) Since the complaint here alleges rejection of
the claims by operation of law, plaintiff had two years from the date of
accrual of the cause of action to file suit.
(Gov. Code, § 945.6, subd. (b).)
As noted, ante,
the trial court found that the alleged causes of action for conversion,
trespass, invasion of privacy, and emotional distress were time-barred. Since, as discussed, ante, these causes of action did not clearly violate the general
statute of limitations, the trial court apparently accepted defendants’
argument that these causes of action are barred by the six-month period stated
in Government Code section 911.2.
On appeal, defendants renew their argument that
plaintiff did not submit her claim within six months, as required by Government
Code section 911.2. Defendants therefore
conclude that the fraud, conversion, trespass, invasion of privacy, and
emotional distress causes of action are time-barred.
In her third amended complaint, plaintiff states
that she filed four tort claims with the County in 2008 and one in 2010. One of the claims is alleged to relate to the
seizure of Meadowlark, the precipitating cause of the original complaint, and
the remaining four claims relate to the seizure and destruction of puppies in
2007 and 2008. Allegations concerning
these events are found throughout the general allegations, the causes of action
for fraud, conversion, and the due
process cause of action.
The claims cannot be tied to the various causes
of action alleged in the third amended complaint. It therefore cannot be determined whether all
or part of the challenged causes of action are barred. In other words, it is not clear from the face
of the complaint that plaintiff failed to comply with the Tort Claims Act as to
any particular claim.
name="_ftnref11" title="">[11]
Defendants’ argument also does not consider the
accrual rule, and there are legal and factual issues arising from plaintiff’s
allegations that the trespasses to her property were continuing
trespasses. Because of these issues,
disposition on demurrer is inappropriate because we cannot say that any fatal
defects are clearly shown on the face of the complaint.
Accordingly, even though neither the statute of
limitations nor the Tort Claims Act were mentioned in the demurrer or the trial
court’s decision, we conclude that the trial court erred in its findings that
the complaint showed on its face that the conversion, invasion of privacy,
trespass, and emotional distress causes of action were time barred under the
general statute of limitations or the claims filing provisions of the Tort
Claims Act.
IX
STATUTORY IMMUNITY DEFENSE
The statutory immunity defense was also not
specified as a ground of demurrer. On
appeal, defendants contend they are statutorily immune.
The County is “not liable for an injury, whether
such injury arises out of an act or omission of the public entity or a public employee
or any other person.†(Gov. Code,
§ 815, subd. (a).) The effect of
this statute is to eliminate common law liability for torts and to require that
liability be based on a statute. (See
Legis. Com. com., 32 pt. 1 West’s Ann. Gov. Code (2012 ed.) foll. § 815, pp.
215-216.)
Government Code section 815.2, subdivision (a)
provides that “[a] public entity is liable for injury proximately caused by an
act or omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have given
rise to a cause of action against that employee or his personal
representative.†In addition to this
derivative liability under Government Code section 815.2, the public entity may
be directly liable for failure to perform a mandatory duty under section
815.6. This issue is well discussed in
36 Cal.App.3d 16.
With this foundation, defendants rely on
Government Code section 821.8:
“A public employee is not liable for an injury arising out of his
entry upon any property where such entry is expressly or impliedly authorized
by law. Nothing in this section
exonerates a public employee from liability for an injury proximately caused by
his own negligent or wrongful act or omission.â€
Defendants then cite Riverside County Ordinance
No. 630, section 9: “Unless otherwise
prohibited by law, all persons whose duty it is to enforce the provisions of
this Ord. are hereby empowered to enter upon private property, where any dog,
cat, or animal is kept or reasonably believed to be kept, for the purpose of
ascertaining whether such animal is being kept in violation of any provision of
this Ord., other ordinance governing animals, or California State law relating
to the regulation, care and/or keeping of animals.â€
Defendants therefore argue, based on this
ordinance, that any entry they made onto plaintiff’s property was authorized,
and “this authorized entry cannot provide a basis for a cause of action in
trespass.â€
However, defendants also cite the next paragraph
of Riverside County Ordinance No. 630, section 9: “Notwithstanding any provision in this
Ordinance relating to entry upon private property for any purpose under this
Ordinance, no such entry may be conducted:
(a) without the express or implied consent of the property owner or the
person having lawful possession thereof, or (b) unless an inspection warrant
has been issued and the entry is conducted in accordance with California Code
of Civil Procedure, Sections 1822.50 through 1822.56, inclusive, or (c) except
as may otherwise be expressly or impliedly permitted by law.†Sections 1822.50 through 1822.56 deal with
the requirement to obtain an inspection warrant, which was apparently never done
here.
title="">[12] Although defendants argue that the entries
were permitted because they were “‘expressly or impliedly permitted by law,’â€
the argument obviously raises factual issues.
(Gov. Code, § 821.8.) If an
inspection warrant is required for entry on private property, it cannot be said
that the animal control officers had the authority or right to enter
plaintiff’s property at any time, as she alleges in the third amended
complaint.
In any event, these arguments and the resolution
of factual issues are appropriate for trial and are not resolvable upon a
demurrer.
Another factual issue is presented by
defendants’ argument that they are statutorily immune from liability from
destroying plaintiff’s puppies under Food & Agriculture Code section
17006. That section allows euthanasia of
newborn animals impounded without their mothers. However, this argument ignores plaintiff’s
contentions that the puppies were not within this definition because they were
not newborns.
name="_ftnref13" title="">[13] There are obvious factual issues presented by
defendants’ argument, but they are not resolvable on demurrer.
Another significant factual issue is presented
here by the parties’ disagreement about the legal status of Fan Hill Road. The complaint alleges that this road runs
across plaintiff’s property, is a private right-of-way, and is posted with “‘No
Trespassing’†signs. Accepting the truth
of this allegation, it appears that the individual defendants had no right to
trespass on the property and use the property as if it were a public road.
Plaintiff lives in a very rural area. The complaint alleges that the nearest public
road is one mile away from the nearest public road easement, and the nearest
neighbors are more than two miles away.
Although it is not clear, plaintiff seems to argue that defendants
consider the private right-of-way as a public road, thus allowing impounding of
dogs found loose on the road.
Apparently, defendants also used the road to observe plaintiff’s
property in an attempt to justify their entry upon her property.
Accordingly, there is a significant factual issue
as to the ownership of the easement and the right of the animal control
officers to use it. Because of this
issue, it is not apparent from the face of the complaint whether the animal
control officers acted in accordance with Riverside County Ordinance No. 630,
section 9 or not. As disucssed in part
XI, post, even though the inverse
condemnation cause of action fails, the legal and factual issues concerning Fan
Hill Road are the foundational basis of the alleged trespass cause of aciton,
and they are subsumed in that cause of action.
X
DEMURRER FOR UNCERTAINTY
“A
demurrer for uncertainty is strictly construed, even where a complaint is in
some respects uncertain, because ambiguities can be clarified under modern
discovery procedures. [Citations.]†(Khoury
v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) This is particularly true when the facts that
are alleged to be uncertain are presumptively within the knowledge of
defendants, as they are here: “A
demurrer for uncertainty will not lie where the ambiguous facts alleged are
presumptively within the knowledge of the demurring party. [Citations.]
A special demurrer should not be sustained if the allegations are
sufficiently clear to apprise the defendant of the issues that must be met,
even if the allegations of the complaint may not be as clear and as detailed as
might be desired. [Citation.] Moreover, a demurrer for uncertainty will not
lie as to even uncertain and ambiguous allegations, if such allegations refer
to immaterial matters. In such event,
they will be treated as surplusage and disregarded. [Citations.]†(
90 Cal.App.2d 106, 108.)
In
other words, “under our liberal pleading rules, where the complaint contains
substantive factual allegations sufficiently apprising defendant of the issues
it is being asked to meet, a demurrer for uncertainty should be overruled or
plaintiff given leave to amend.†(
(1986) 185 Cal.App.3d 135, 139, fn. 2.)
Thus, although portions of plaintiff’s complaint are uncertain, she
should have been given the opportunity to amend the complaint to meet
defendants’ claims of uncertainty.
In
this regard, we note that a defendant demurring on the grounds of uncertainty
should “specify exactly how or why
the pleading is uncertain.†(Weil &
Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2012) ¶ 7:88, p. 7(I)-40 (rev. # 1,
2011).) Defendants’ points and
authorities state that the entire third amended complaint is vague and
ambiguous because “[n]one of these causes of actions alleged have any
resemblance to the initial complaint that was filed almost one year ago. The Third Amended Complaint begs the question,
what is this litigation really about and questioning the veracity of the
allegations altogether.â€
Of
course, the demurrer is not the place to challenge the veracity of the
allegations because we assume, for purposes of demurrer, that the allegations
are true. It is equally obvious that
plaintiff was entitled to amend the original complaint under section 472. It doesn’t matter that the gravamen of the
original complaint changed and broadened in the first amended complaint.
Section 430.60 requires specificity in a
demurrer. “Although respondents’
demurrer was premised on the grounds of uncertainty, the accompanying points
and authorities failed to specify in what particulars the complaint was
uncertain. Generally, the failure to specify the
uncertain aspects of a complaint will defeat a demurrer based on the grounds of
uncertainty. [Citations.]†(
(1982) 135 Cal.App.3d 797, 809, overruled on other grounds by
California (2002) 29 Cal.4th 300, 328, fn. 30.)
XI
THE
COUNTY’S ORAL ARGUMENT
At
oral argument, the County repeated many of the arguments in its brief and
advanced some previously unbriefed arguments.
The
County argued that various causes of action were defective in the charging
allegations and that the defects cannot be corrected by allowing further
amendment of the complaint. It also
argued that various causes of action were fatally defective for failure to
comply with the Tort Claims Act and that its employee defendants are
statutorily immune from the alleged causes of action.
A. The
Trial Court’s Decision on the Second Amended Complaint.
The
common thread throughout the County’s argument is that the plaintiff violated
the directions the trial court gave when it sustained the County’s demurrer to
the second amended complaint. The County contended that the trial court, in
its ruling on the second amended complaint, placed general and specific
restrictions on plaintiff’s ability to amend the complaint further. The general restriction was allegedly an admonition
to narrow down the allegations made, rather than adding new causes of
action. The County argued that plaintiff
ignored or violated those restrictions in drafting the third amended complaint
and therefore does not deserve another chance to amend the complaint further.
However,
as discussed in part V, ante, no such
general or specific restrictions are in our record. The minute order on the trial court’s
decision on the County’s demurrer to the second
amended complaint merely states “Demurrer
. . . sustained. 30 days Leave to
Amend.†The County did not designate the
trial court’s decision on the second
amended complaint, or the reporter’s transcript of the September 16, 2010,
hearing, when designating the record for this appeal of the trial court’s
decision on the third amended
complaint.
While
counsel asked leave to submit a document regarding the trial court’s decision
on the second amended complaint, her request was denied during the oral
argument. Accordingly, counsel’s
argument on this point is without support in the record. In addition, the argument was not raised in
the County’s brief, and appellant has not had the opportunity to brief the
issue.
We
therefore reject the County’s argument that the trial court, in ruling on the
second amended complaint, advised plaintiff to narrow the focus of the
complaint and that she failed to do so.
B. The
Fraud Allegations of the Second Amended Complaint.
The
County argued that there were fatal defects in the alleged first cause of
action for fraud. It argued that the
fraud cause of action was defective because it failed to allege malice and it
lacked specificity.
Although
the trial court did not find that the first cause of action was time barred,
the County’s brief also argues that the fraud cause of action is time barred
under the Tort Claims Act and that its employees are statutorily immune from
liability under that Act.
Under
the Tort Claims Act, it is generally true that a public entity is not liable
for the act or omission of a public employee unless there is a statutory basis
for liability. (Gov. Code, § 815,
subd. (a).) It is also generally true
that a public entity is not generally liable for misrepresentations by a public
employee. (Gov. Code, § §
815.2; 818.8.) However, under Government
Code section 822.2, a public employee is liable for misrepresentation if he is
guilty of actual fraud, corruption, or actual malice.
As discussed in part IX, ante,
the public entity may be derivatively liable for the acts of its employees
under Government Code section 815.2 or directly liable for failure to perform a
mandatory duty. It simply does not
appear from the face of the complaint that the County or the public employee
defendants are statutorily immune under the Tort Claims Act.
The
misrepresentation allegations of the third amended complaint are eight pages
long. Fraud, misrepresentations, and
actual malice are specifically alleged.
Since the allegations of the complaint are taken as true on demurrer, we
reject the County’s argument that actual malice was not pled and the argument
that the fraud allegations lacked specificity.
The issue simply cannot be determined on demurrer, and the County would
be better advised to attack the complaint factually at a later date.
In
Schonfeld v. City of Vallejo (1975)
50 Cal.App.3d 401
name="_ftnref15" title="">[15] the court said, “[W]e hold that the
immunity afforded by Government Code section 822.2 applies unless, in addition
to the essentials of common law deceit, a public employee is motivated by
corruption or actual malice, i.e., a conscious intent to deceive, vex, annoy or
harm the injured party in his business.â€
(Schonfeld, at p. 410, fn.
omitted.) There were sufficient
allegations of malicious misrepresentations in the third amended complaint to
support the fraud cause of action.
C. The
Emotional Distress Cause of Action.
The
County next argued that recovery under the Tort Claims Act requires a statutory
basis and that plaintiff failed to allege a statutory basis for the emotional
distress causes of action.
The
issue presented by this argument is whether such an allegation is
required. The answer depends on the
applicability of the Tort Claims Act to the emotional distress claims.
Government
Code section 810.8 defines “injury†to mean “death, injury to a person, damage
to or loss of property, or any other injury that a person may suffer to his
person, reputation, character, feelings
or estate, of such nature that it would be actionable if inflicted by a private
person.†(Italics added.) Thus, it is at least possible that emotional
distress damages could be awarded if other torts, especially misrepresentation,
can be proven. As the County stated in
its brief, “[i]ntentional infliction of emotional distress . . . must be based
upon contract, tort or some other conduct for which Appellant has an
independent cause of action against Respondents.†For example, in Abarca v. Merck & Co, 2012 U.S.Dist. LEXIS 57370, the court
said, “Given the lack of examples of awards of emotional distress damages in
one-time, unintentional nuisance cases, it is entirely possible that the jury
will not find emotional distress damages appropriate in the present case. It is not, however, appropriate for this
Court to hold that emotional distress damages are not available as a matter of
law. Defendants have failed to meet
their burden of demonstrating that they are entitled, as a
Plaintiffs’ emotional distress damages stemming from their nuisance
claims.†(Id. at pp. *23-*24.) The
same is true in the evaluation of the demurrer in this case.
D. The
Trespass Cause of Action.
In
part VIII, ante, we described our
inability to relate specific alleged instances of trespass to the tort claims
that were filed. At argument, the County
attempted to do so and concluded that all trespass claims were barred by the
failure to file a timely claim, with the exception of the April 25, 2010,
incident. The conceded existence of a
viable trespass claim supports the trespass cause of action.
The
County attempted to defeat this conclusion by arguing that the trespass claim
was barred for other reasons. Counsel
argued that there was no trespass, and no conversion of the puppies, because
animal control officers were authorized
to go on the property at any time to observe the health and safety animals of
the animals. But, as discussed in part
IX, ante, the animal control officers
were required to obtain an inspection
warrant before entering the property for these reasons, and it is alleged that
they never did so. (Riv. County Ord. No.
630, § 9.)
name="_ftnref16" title="">[16]
Of course, we are required to accept this contention as true. Under the Torts Claim Act, public employees
are not liable for entry on property where the entry is expressly authorized by
law. (Gov. Code, § 821.8.) The converse is also true: the public
employees are liable when the entry results from the employee’s own negligent
act or omission, and such wrongful entry is alleged here.
The
County also argued that the seizure of the puppies without an inspection
warrant and their subsequent euthanasia were authorized by Farm and Agriculture
Code sections 17005 and 17006. As also
noted in part IX, these contentions raise factual issues that cannot be decided
as a matter of law.
In
her briefing, plaintiff argued that the Tort Claims Act was not applicable to
her cause of action for conversion (seizure of the puppies) because animal
control was a bailee, and an action for return of the animals or commensurate
compensation was not a “suit for money or damages†under Government Code
section 945.4.
Government
Code section 945.4 defines when a claim must be presented under the Tort Claims
Act. Plaintiff cites
Cal.App.4th 782.
In
that case, the city seized 525 birds from the plaintiff but, under court order,
returned only some of them. The
plaintiff sought money damages for the birds that were not returned. (Id.
at p. 784.) The city brought a summary
judgment motion, arguing that the plaintiff failed to file a claim under the
Tort Claims Act. (Id. at p. 785.) The
appellate court disagreed, holding that “where confiscated property is lost and
cannot be returned due to the government’s own negligence, the government may
not benefit from its own wrongdoing by contending that the resulting action,
necessarily limited to monetary damages, is subject to the Government Tort
Claims Act.†(Long v. City of Los Angeles, supra,
68 Cal,App.4th at p.
786.) The court relied on the Supreme
Court cases of Holt v. Kelly (1978)
20 Cal.3d 560 and Minsky v. City of Los
Angeles (1974) 11 Cal.3d 113.
Although it is not necessary to analyze the issue further, we conclude
that the facts here might well support a conclusion that the claim filing
requirement of the Tort Claims Act is inapplicable to the causes of action
seeking compensation for the puppies taken and immediately euthanized.
E. The
Inverse Condemnation Cause of Action.
As to
the sixth cause of action, for inverse condemnation, we agree with the trial court
that plaintiff alleges insufficient facts to show a taking of real property
within the meaning of the eminent domain law.
The acts complained of are subsumed within the trespass cause of action
and may be alleged and considered under that cause of action.
The
factual issues regarding ownership of Fan Hill Road should also be regarded as
foundational to the trespass cause of action and should be eventually heard and
decided in connection with that cause of action. As discussed in part IX, ante, if Fan Hill Road is not a public road, is part of plaintiff’s
real property, and is only used by plaintiff in accordance with her easement
over the property, the animal control officers have no right to be on the
private property without obtaining an inspection warrant.
F. Due
Process and Civil Rights Causes of Action.
The
County argued that these causes of action failed to contain allegations that
plaintiff exhausted her administrative
remedies by failing to request a hearing.
Plaintiff replied that there were no available hearing procedures when
her puppies were seized by animal control officers: “They just take them.†and they then stonewalled
her efforts to recover the puppies.
Again, as discussed in part IX, the legal and factual issues inherent in
these arguments should not and cannot be resolved on demurrer. Any such defects are not shown on the face of
the complaint.
G.
The
County argued that this cause of action is moot because the other causes of
action fail. Since we have found other
causes of action are viable, it is the County’s premise that fails.
However,
injunctive relief is essentially a remedy, and the elements of injunctive
relief as a cause of action, essentially inadequacy of the remedy at law, have
not been pled. (See generally 5 Witkin,
Cal. Procedure (5th ed. 2008) Pleading,
§ § 822-823, pp. 238-240.) We will therefore sustain the demurrer to
this cause of action. However, plaintiff
may still request injunctive relief as a remedy for trespass and other causes
of action that are subsequently found to be viable.
H. Uncertainty.
As
noted at the beginning of this opinion, the issue is whether there is a
reasonable possibility that the defects in the complaint can be cured by
amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) While we find that there is such a reasonable
probability in this case, we do agree that, because of the numerous factual
issues discussed above, the filing of further demurrers based on uncertainty
would not be a useful procedural tool.
Further discovery may clarify or eliminate factual questions and may
provide the basis for a summary judgment motion. On the other hand, plaintiff is encouraged to
respond to the questions of uncertainty by pleading the facts she relies on in
greater detail. For example, although
plaintiff devotes many paragraphs to discussing the alleged failure of
defendants to follow their own statutes and rules, primarily Riverside County
Ordinance No. 630, she does not clearly allege any cause of action based on
such failures. (See generally Food &
Agr. Code, § 31101 et seq.) Of course,
any such restatement must comply with the substantive rules of the Torts Claims
Act discussed above.
XII
CONCLUSION
As
discussed in part VI, ante,
defendant’s demurrer was generally defective for failure to assert the alleged
defenses of statute of limitations, including failure to comply with the Tort
Claims Act, and statutory immunities. In
its ruling, the trial court did not decide immunity issues.
Nevertheless,
defendants have attempted to establish these defenses to the third amended
complaint by asserting defenses based on the statute of limitations, including
the Tort Claims Act, and alleged statutory immunities. For the reasons stated, ante, we must conclude that they have failed to do so at this stage
of the litigation.
Accordingly,
the trial court erred in sustaining the demurrer without leave to amend. However, as noted above, we agree with the
County that the demurrers to the sixth cause of action for inverse condemnation
and the seventh cause of action for injunctive relief were properly sustained.
With
regard to the demurrers for uncertainty, we conclude that there is a reasonable
possibility that the defects in the third amended complaint could be cured by a
further amendment. We therefore find
that, except for the two causes of action, the trial court abused its
discretion in sustaining defendants’ demurrers without leave to amend,
particularly since an amendment can address any uncertainties noted by the
trial court.
XIII
DISPOSITION
The
judgment is affirmed in part and reversed in part. The portion of the judgment sustaining the
County’s demurrer to the sixth (inverse condemnation) and seventh (injunctive
relief) causes of action is affirmed.
The portion of the judgment sustaining the County’s demurrer to the
remaining causes of action is reversed.
The
trial court is directed to allow plaintiff to file a fourth amended
complaint. Appellant shall recover
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Defendants and respondents in this
appeal are County, Betsy Ritchie (Ritchie), Luis Rosa (Rosa), Jason Salazar
(Salazar), Hector Palafox (Palafox), and Lisa Boughamer (Boughamer).
judgment is in favor of the County, Ritchie, Rosa, Salazar, Palafox, and
Boughamer. (See judg. filed 5/3/11 in
Super. Ct.) Our order filed July 28,
2011, indicates the other three defendants, Robert Miller (Miller), James
Huffman (Huffman), and Eric Espejo (Espejo), will not be considered respondents
in this appeal. No judgment has been
entered as to those defendants.
Consequently, Schwenn’s request to include Miller, Huffman, and Espejo
as respondents in this appeal is denied.
