GCP Mgmt., LLC v. City of Oakland

• Decision Date: 01 November 2013
• Docket Number: A135871
• Parties: GCP MANAGEMENT, LLC et al., Plaintiff and Appellant, v. CITY OF OAKLAND et al., Defendant and Respondent.
• Court: California Court of Appeals

GCP MANAGEMENT, LLC et al., Plaintiff and Appellant, v. CITY OF OAKLAND et al., Defendant and Respondent.

A135871

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Filed: November 1, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County

Super. Ct.No. RG10538368)

GCP Management, LLC, as agent for GCP, Gibraltar Capitol Fund, VI, LLC(GCP), appeals the summary adjudication of its action for inverse condemnation as well as the subsequent grant of a nonsuit with respect to its claim of trespass.In addition, GCP contends that the trial court's ruling in favor of the City of Oakland(City) on the City's cross-complaint for damages was error.We affirm.

I.BACKGROUND

A.The City's Abatement Proceedings¹

GCP is the owner of real property located at 601 MacArthur Boulevard, 620 Wesley Avenue, and 620 Hillgirt Circle in the City (collectively, the Property).Substandard conditions on the Property have been of concern to the City for a number of years.In July 2006, pursuant to its local nuisance ordinance, the City sent a letter to a prior owner declaring the Property to be a public nuisance due to a number of deteriorating conditions, including the fact that the temporary shoring in place on a partially-excavated slope was "not designed for long-term restraint of the hillside"(2006 Declaration).Deeming the Property dangerous to workers, visitors and abutting dwellings, the City ordered the owner to fix the objectionable conditions on the Property within a specified timeframe.Failure to comply with the City's demands would result in a number of negative consequences, including the City "re-accessing your property without further notice and for additional charge" to remediate the problem.

By October 2008, the Property—which was in the process of being sold—had not been rehabilitated.At that time, both the current owner and the purchaser entered into a Compliance Plan and Rehabilitation Schedule Work Plan with the City (Compliance Plan) pursuant to which they agreed, among other things, to install "an approved shoring system for the length of the slope of the properties."The Compliance Plan expressly acknowledged that the 2006 Declaration was to remain in effect while the necessary work was being done.In addition, the Compliance Plan required the owner or new buyer to post a $250,000 performance bond to secure the "faithful completion" of its requirements.GCP—the appellant herein—supplied this $250,000 bond, which was to be returned directly to the appellant upon successful completion of the work.Repayment of the GCP loan was secured by a deed of trust recorded against the Property on October 15, 2008.

In March 2010, the City notified the then-owner of the Property that it had failed to comply with the terms of the Compliance Plan and that the Property remained "a longstanding blight and continuing hazard for the neighborhood."In February, an exposed City sewer pipe on the Property had broken during a winter storm requiring a City maintenance crew to provide a temporary repair for the "inadequately supported pipe" and to pump raw sewage off the Property.Moreover, the same winter storm caused the stability of the hillside on the Property to deteriorate.Specifically, the City noted that"[t]he temporary shoring and winterization for the hillside has been ineffective in retaining the sloughing soil."

The City retained Ninyo & Moore, a geotechnical engineering firm, to aid in its analysis of the Property.It was Ninyo & Moore's opinion in early 2010 that "erosion and sloughing of soils from the steep, partially protected slope" on the Property would continue "if the slope [was] not protected."The firm further opined that the "erosion and sloughing" would "likely lead to larger failure of the slope."In a March 2010 letter to the owners of the Property, the City indicated that it would be contracting with third-parties to complete the sewer extension for the Property and to install a hillside stabilization system.Given the owner's default under the terms of the Compliance Plan, the City stated that it would be using the monies from the owner's forfeited performance bond to defray its costs.

An additional inspection by the City on April 27, 2010, confirmed the continuing deterioration of conditions on the Property.On April 29, 2010, the City recorded a certificate memorializing its 2006 Declaration against the Property.Then, on May 11, 2010—noting that the dangerous conditions previously identified in the 2006 Declaration were "endangering upslope properties to the extent that these conditions have become manifestly unsafe for the public and imminently hazardous for occupants and visitors"— the City notified the owner of the Property that it was declaring the Property to be an imminent hazard pursuant to the provisions of its local nuisance ordinance (Imminent Hazard).The City detailed specific abatement work required to be completed by June 1, 2010, and informed the owner that it had until May 18, 2010, to appeal the City's determination.If the owner failed to either successfully appeal or complete the required work by the stated deadline, the City indicated that it would enter the Property "without further notice to perform the mitigation work."All costs associated with this work would be charged against the Property and the owner.There is no indication in the record that an appeal was filed, or that any abatement work was done in response to this declaration of Imminent Hazard.Thereafter, on June 9, 2010, GCP became the record owner of the Property through foreclosure on its deed of trust.

Representatives of GCP met with City officials on August 25, 2010, to discuss the contemplated work on the Property.At that meeting, the City agreed to allow GCP an opportunity to assess the situation and to submit its own proposal, but indicated that work would need to begin in early September to assure its completion before winter.As of September 8, 2010, the City had not received a proposal or any permit applications from GCP.It therefore notified GCP that it intended to move forward with the planned abatement work on September 13.On September 27, 2010, GCP filed an Ex Parte Application for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction in Alameda County Superior Court(TRO), alleging that the City had entered the Property without permission and was destroying improvements on the Property.GCP sought an order stopping the City's demolition activity and requiring the City to give GCP a "meaningful opportunity to respond" to the City's concerns about the site.The TRO application was denied that same day after hearing, and the City subsequently completed the abatement work on the Property, stabilizing the hillside.

B.Proceedings in the Trial Court

On the same day that it filed its TRO application, GCP also filed a complaint in Alameda County Superior Court asserting causes of action against the City for inverse condemnation and trespass based on the City's abatement activities with respect to the Property.GCP sought damages as well as injunctive and declaratory relief.A Second Amended Complaint filed in April 2011 added a cause of action for negligence.In May 2011, the City filed a cross-complaint seeking damages based on its unreimbursed abatement costs with respect to the Property.

The City filed a motion for summary adjudication of GCP's inverse condemnation claim in November 2011.On February 17, 2012, the trial court overruled all of GCP's evidentiary objections with respect to the requested summary adjudication and granted the City's motion.Subsequently, on March 8, 2012, GCP dismissed its negligence cause of action, and proceeded to trial before the court on its action for trespass.At the conclusion of GCP's opening statement and after an offer of proof, the City moved for ajudgment of nonsuit pursuant to Code of Civil Procedure section 581c, subdivision (a).The trial court granted the City's motion.

A bench trial then commenced with respect to the City's cross-complaint for damages.At the conclusion of the bench trial, the trial court awarded damages to the City in the amount of $310,315.18.Judgment against GCP on its action for trespass was entered on May 3, 2012.On that same date, the trial court issued its Statement of Decision and (Proposed) Judgment in favor of the City on its cross-complaint for damages.Final Judgment with respect to the City's cross-complaint was entered on May 18, 2012.²A timely notice of appeal filed July 2, 2012, brought the case before this Court.

II.SUMMARY ADJUDICATION PROCEEDINGS

We turn first to GCP's contention that the trial court erred in granting the City's motion for summary adjudication of GCP's inverse condemnation claim.The trial court granted the summary adjudication motion by order dated February 17, 2012, finding that the City's abatement activity on the Property was a valid exercise of its police power, that GCP was on notice of the need for immediate remediation of the Property, and that the City's actions did not cause GCP to suffer any damage.GCP argues that the Court'ssummary adjudication order was improper because issues of material fact existed with respect to each of these three findings.³

A.Statutory Framework and Standard of Review

The standards for granting summary adjudication are well-settled and easily delineated.A trial court must grant a motion for summary adjudication"if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."(Code Civ. Proc., § 437c, subd. (c);see also...