Zipperer v. County of Santa Clara

• Decision Date: 30 September 2005
• Docket Number: No. H028455.,H028455.
• Citation: 35 Cal.Rptr.3d 487,133 Cal.App.4th 1013
• Court: California Court of Appeals Court of Appeals
• Parties: John ZIPPERER et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, Defendant and Respondent.

35 Cal.Rptr.3d 487

133 Cal.App.4th 1013

John ZIPPERER et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, Defendant and Respondent.

No. H028455.

Court of Appeal, Sixth District.

September 30, 2005. Certified for Partial Publication.^*

As Modified October 28, 2005.

Albin E. Danell, San Jose, CA, for Plaintiffs and Appellants.

Michael L. Rossi, Office of the County Counsel, San Jose, CA, for Defendant and Respondent.

McADAMS, J.

Plaintiffs John and Cecilia Zipperer sued the County of Santa Clara on various theories, based on allegations that their solar home was malfunctioning as a result of shading from trees growing on defendant's adjoining property. The trial court sustained defendant's demurrer to plaintiffs' first amended complaint, without leave to amend. This appeal followed. For reasons explained in the opinion, we agree with the trial court's determination that plaintiffs have not stated any cause of action against defendant, nor is there any reasonable possibility that the defects in their complaint can be cured by amendment. Treating the order sustaining the demurrer as a judgment of dismissal, we therefore affirm.

FACTS¹

In the mid-1980s, plaintiffs built a solar home on their property in Los Gatos, after obtaining permits to do so from defendant.

In 1991, defendant acquired a parcel of land that adjoins plaintiffs' property, and defendant placed that land in a Parks Reserve. There is a grove of five or six trees growing on defendant's land. Since 1991, those trees have been growing at the rate of 10 to 15 feet per year. By 2004, the trees were about 100 feet taller than when defendant acquired the land.

In 1997, plaintiffs' solar system began to malfunction because the trees on defendant's land interfered with the sunlight reaching their solar panels. Despite numerous requests from plaintiffs, and notwithstanding verbal promises by "certain officials and certain individuals that this situation would be corrected," defendant did not trim or remove the trees.

PROCEDURAL HISTORY

In April and May 2004, plaintiffs filed tort claims with defendant. According to plaintiffs, "there was no time limit" for filing these claims, because their injury was of a "continuing" nature. Defendant rejected the claims.

In May 2004, plaintiffs brought this action against defendant. The verified complaint asserted causes of action for nuisance, trespass, statutory violations constituting negligence, and intentional infliction of emotional distress. As to their negligence claim, plaintiffs alleged that defendant violated various statutes, including the Solar Shade Control Act.

In July 2004, defendant demurred to the complaint. In support of its demurrer, defendant asked the trial court to take judicial notice of a Santa Clara County ordinance entitled "Exemption from Solar Shade Control Act." Plaintiffs opposed the demurrer, but not defendant's request for judicial notice.

In September 2004, after a hearing on the matter, the trial court sustained defendant's demurrer, granting plaintiffs leave to amend their complaint within 20 days.

Plaintiffs filed a verified first amended complaint in September 2004. Among other things, the amended complaint asserted a new cause of action for breach of contract, as well plaintiffs' previous claims for nuisance, negligence, trespass, violation of statute, and emotional distress. As to their new contract claim, plaintiffs alleged a contract with defendant based on its grant of building permits for their solar home. Plaintiffs attached the permits as an exhibit to the amended complaint.

The first amended complaint drew another demurrer, which defendant filed in October 2004. Again, plaintiffs opposed the demurrer.

Following a hearing held in December 2004, the trial court entered its formal order sustaining defendant's demurrer without leave to amend. Defendant gave notice of the order in January 2005.

This appeal ensued.

THRESHOLD ISSUES

Before analyzing the substantive issues raised in this appeal, we first address two threshold procedural questions: whether we may review the challenged order at all, and if so, what standards govern that review.

Appealability

Although plaintiffs' form notice of appeal refers to a judgment of dismissal, the appellate record contains no judgment. This appeal thus appears to have been taken from the order sustaining defendant's demurrer to plaintiffs' first amended complaint, without leave to amend. "Orders sustaining demurrers are not appealable." (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695, 40 Cal.Rptr.2d 125.) But "an appellate court may deem an order sustaining a demurrer to incorporate a judgment of dismissal." (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920, 167 Cal.Rptr. 831, 616 P.2d 813.) It is particularly appropriate to do so when the absence of a final judgment results from inadvertence or mistake. (Id. at p. 921, 167 Cal.Rptr. 831, 616 P.2d 813.)

In this case, defendant does not argue for dismissal of the appeal, and the issues are fully briefed. (See Gu v. BMW of North America, LLC, supra, 132 Cal.App.4th 195, 33 Cal.Rptr.3d 617.) Under the circumstances, we will decide this case on its merits by treating the order as incorporating a judgment of dismissal.

Standard and Scope of Review

We review a trial court's decision to sustain a demurrer for an abuse of discretion. (See, e.g., Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1.) We likewise review a trial court's denial of leave to amend for an abuse of discretion. (Ibid.) "As a general rule, if there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459-460, 80 Cal.Rptr.2d 329. See also, e.g., Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569; Gu v. BMW of North America, LLC, supra, 132 Cal.App.4th 195, 33 Cal.Rptr.3d 617.) "Nevertheless, where the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result." (City of Atascadero, at pp. 459-460, 80 Cal.Rptr.2d 329.)

In analyzing the existence of liability under the governing substantive law, "we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790, 90 Cal.Rptr.2d 598.)

"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." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

On appeal, "the plaintiff bears the burden of demonstrating that the trial court erred." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879, 6 Cal.Rptr.2d 151.) If the claimed error is the trial court's refusal to permit amendment of the complaint, the "plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.)

In this case, plaintiffs bear the further burden of particularity in pleading their tort-based causes of action, since defendant is a public entity. "Under the Government Tort Liability Act, all liability is statutory. Hence, the rule that statutory causes of action must be specifically pleaded applies, and every element of the statutory basis for liability must be alleged." (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 579, pp. 675-676. See, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-793, 221 Cal.Rptr. 840, 710 P.2d 907.)

With those principles in mind, we consider the sufficiency of plaintiffs' complaint under the governing substantive law.

ANALYSIS

In the unpublished portion of this opinion, we address each of the six asserted causes of action of plaintiffs' first amended complaint. We conclude that none is viable nor is there any reasonable possibility of cure. In the published portion of this opinion, we discuss only plaintiffs' third cause of action, which asserts negligence.

First Cause of Action: Breach of Contract^**

Third Cause of Action: Negligence

One essential element of a cause of action for negligence is a legal duty. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, 25 Cal.Rptr.2d 550, 863 P.2d 795.) "That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship." (Id. at p. 985, 25 Cal.Rptr.2d 550, 863 P.2d 795.) In this case, plaintiffs base their negligence claim on the asserted breach of a statutory duty arising under the Solar Shade Control Act. (See Pub. Res.Code, §§ 25980-25986.)³

Governing Substantive Law: The Solar Shade Control Act

"The Solar Shade Control Act ... provides limited protection to owners of solar collectors from shading caused by trees on adjacent properties." (Sher v. Leiderman, supra, 181 Cal.App.3d at p. 880, 226 Cal.Rptr. 698.) Enacted in 1978, the Act has been described as "protecting active or passive solar energy systems (SES's) against obstruction by later-planted or later-grown trees and foliage...." (Kucera v. Lizza, supra, 59 Cal.App.4th at p. 1152, 69 Cal.Rptr.2d 582, statutory citation omitted.)

In pertinent part, the Act provides: "After January 1, 1979, no person owning, or in control of a property shall allow a tree or shrub to be placed, or, if placed, to grow on such property, subsequent to the...