Boxer v. City of Beverly Hills

• Decision Date: 26 April 2016
• Docket Number: B258459
• Citation: 246 Cal.App.4th 1212,201 Cal.Rptr.3d 371
• Court: California Court of Appeals Court of Appeals
• Parties: Francis BOXER et al., Plaintiffs and Appellants, v. CITY OF BEVERLY HILLS, Defendant and Respondent.

246 Cal.App.4th 1212

201 Cal.Rptr.3d 371

Francis BOXER et al., Plaintiffs and Appellants,

v.CITY OF BEVERLY HILLS, Defendant and Respondent.

B258459

Court of Appeal, Second District, Division 1, California.

Filed April 26, 2016

Phan Trial Group, Luan K. Phan, Los Angeles, Janet Ly, San Francisco; PB Law Group, Luan K. Phan, Los Angeles; Esner, Chang & Boyer and Stuart B. Esner, Los Angeles, for Plaintiffs and Appellants.

Richards, Watson & Gershon and Saskia T. Asamura, Los Angeles, for Defendant and Respondent.

LUI

, J.

Plaintiff homeowners appeal from a judgment entered after a demurrer to their inverse condemnation complaint was sustained without leave to amend. We affirm because plaintiffs allege only impairment of their views and a speculative risk of fire danger, neither of which constitutes a taking or damaging of their property.

BACKGROUND

Plaintiffs are the owners of homes on Spalding Drive in Beverly Hills. They filed an inverse condemnation action against the City of Beverly Hills (the City), seeking damages and injunctive relief based upon impairment of the views from their backyards by coastal redwood trees the City planted in Roxbury Park. Plaintiffs' first amended complaint (FAC) alleges that plaintiffs "were accustomed to having an unobstructed view of the hills of Beverly Hills, the Hollywood Hills, and the Los Angeles basin, including the Hollywood sign, the Griffith Observatory, downtown Los Angeles, and—on a clear day—Mounty Baldy 50 miles away." In 1989, however, the City "planted thirty (31) [sic ] Sequoia (Coastal) redwood trees, the tallest-growing species in the world.... The redwood trees grow each year and their height is now starting to block the previously unobstructed view of Plaintiffs. As the redwood trees continue to grow, they will block out the entire view of Plaintiffs."

The FAC alleges plaintiffs expressed their concerns to the City in 2005, and the City represented the redwood trees would be trimmed and ones that were "not structurally sound" would be removed. For a while thereafter, the City trimmed the redwoods, but "failed to remove some poor quality redwood trees which are potential fire hazards. Also, the City has now allowed the trees to grow substantially without trimming. In 2013, Plaintiffs again asked the City to address their concerns, but this time, the City simply ignored Plaintiffs' concerns."

The FAC further alleges, "As a direct and proximate result of Defendants' [sic ] plan, design, and maintenance of the redwood trees, there has been an impairment of views to Plaintiffs' properties and increased risk of fire hazard." "The above-described damage to Plaintiffs' properties were [sic ] proximately caused by Defendants' [sic ] actions, failure to act, and/or failure to minimize damages in that Defendants' [sic ] plan, design, and maintenance of the redwood trees has impaired the value of Plaintiffs' properties and increased risk of fire hazard."

The City demurred to the FAC as failing to state a cause of action for several reasons, including that, "as a matter of law, inverse condemnation provides no remedy for alleged impairment of view from private property" or "for emotional distress due to fear of potential future fire hazards or speculative claims for alleged possible future impact of a possible future fire hazard that has not materialized so as to cause any actual physical damage to private property."

Plaintiffs opposed the demurrer on essentially the same theories they raise on appeal.

The trial court sustained the demurrer without leave to amend, explaining that the plaintiffs had not surmounted "the initial hurdle" of alleging "the kind of injury that establishes a taking under the inverse condemnation law." The court distinguished authorities upon which the plaintiffs relied because they addressed the measure of damages in eminent domain cases, not the element of whether a taking occurred. The court cited

Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 46 Cal.Rptr.3d 742, 139 P.3d 119

(Regency ), as "a compelling precedent": "They had the property to display billboards. Billboards are worthless if no one can see them. They had alleged that their visibility was impaired by trees that had been planted by the city. In our case, I certainly accept that view is important to the property owners, but it's one of a vast many attributes that can be identified with the plaintiffs' properties. It's certainly not an indispensable attribute as it was in Regency. [¶ ] By my reading, if the Supreme Court held in Regency that visibility and view under those circumstances was not the kind of cognizable injury that would establish a taking, I think that it's very clear that it is not here. As I said in my [tentative] ruling, it did not appear to me that the plaintiffs could allege any additional facts that would change the outcome." The court later added, "[T]here is not any legal authority to support the nature of the injury or taking that plaintiffs have alleged here."

Plaintiffs filed a timely appeal after the trial court dismissed the action.

DISCUSSION

1. Pertinent legal principles

A demurrer tests the sufficiency of the complaint by raising questions of law. (Aragon–Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238, 282 Cal.Rptr. 233

.) A general demurrer admits the truth of all material factual allegations of the complaint, but not the truth of contentions, deductions, or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) On appeal from dismissal after a demurrer is sustained without leave to amend, this court independently reviews the sufficiency of the pleading and affirms if any ground raised in the demurrer is well taken. (Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1, 13, 22 Cal.Rptr.2d 229.) Where the pleading is insufficient, however, we review the denial of leave to amend for abuse of discretion. (Id. at p. 12, 22 Cal.Rptr.2d 229.) "A trial court abuses its discretion in sustaining a demurrer without leave to amend if there is a reasonable possibility a defect in the complaint can be cured by amendment or if the pleading can be liberally construed to state a cause of action." (Ibid. ) However, the burden is on the plaintiff to demonstrate how he can amend his complaint and how the proposed amendment will change the legal effect of the pleading. (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 902, 177 Cal.Rptr. 657.)

Both eminent domain proceedings and inverse condemnation actions implement the constitutional rule that private property may not be "taken or damaged" (Cal. Const., art. I, § 19

) for public use without just compensation. But "inverse condemnation and eminent domain proceedings are not identical. A property owner initiates an inverse condemnation action, while an eminent domain proceeding is commenced by a public entity. [Citation.] Eminent domain actions typically focus on the amount of compensation owed the property owner, since by initiating the proceeding the government effectively acknowledges that it seeks to ‘take or damage’ the property in question." (Regency, supra, 39 Cal.4th at p. 530, 46 Cal.Rptr.3d 742, 139 P.3d 119.) "But the same is not true of inverse condemnation: ‘... in an inverse condemnation action, the property owner must first clear the hurdle of establishing that the public entity has, in fact, taken [or damaged] his or her property before he or she can reach the issue of "just compensation." ’ " ( San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939–940, 55 Cal.Rptr.2d 724, 920 P.2d 669

(Covalt ).)

"Property is ‘taken or damaged’ within the meaning of article I, section 19 of the California Constitution

, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself." (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 530, 90 Cal.Rptr.2d 491 (Oliver ).)

"When, as here, the conduct of a public entity results in an intangible intrusion onto the plaintiff's property that does not physically damage the property, the question whether there has been a ‘taking or damaging’ of the property sufficient to support a cause of action for inverse condemnation is more difficult. In these circumstances the plaintiff must allege that the intrusion has resulted in a burden on the property that is direct, substantial, and peculiar to the property itself." (Covalt, supra, 13 Cal.4th at p. 940, 55 Cal.Rptr.2d 724, 920 P.2d 669

.) "[A] burden on neighboring property is sufficiently direct and substantial if the neighboring landowner can establish that the consequences of the intangible intrusion are ‘not far removed’ from a direct physical intrusion." (Oliver, supra, 76 Cal.App.4th at p. 531, 90 Cal.Rptr.2d 491.) Neither the mere existence of a public use or a diminution in the value of the plaintiff's property establishes a compensable taking or damaging of the property. (Covalt, supra, 13 Cal.4th at pp. 941–942, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Rather, a diminution in value of the plaintiff's property is "an element of the measure of just compensation when such taking or damaging is otherwise proved." (Id. at p. 942, 55 Cal.Rptr.2d 724, 920 P.2d 669.)

Intangible intrusions have been recognized as sufficient to constitute a taking or damaging of property in limited circumstances, such as the intrusion into the plaintiffs' home of strong offensive odors emanating from an adjacent, upwind sewage treatment facility rendering the plaintiffs' home uninhabitable and causing the plaintiffs nausea and...