Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 01CC15035, Thierry Patrick Colaw, Judge.
Charles G. Kinney, in pro. per., for Cross-complainant and Appellant.
Rutan & Tucker and Philip D. Kohn for Cross-defendant and Respondent.
OPINION
MOORE, J.
This is at least the fifth appeal generated by the underlying lawsuit, which arises out of drainage problems in a Laguna Beach residential area. Cross-complainant and appellant Charles Kinney (Kinney) raises issues of particular concern with respect to the drainage affecting Virginia Way, a street on which he owns property, and also raises issues pertaining to certain assessments affecting his property.
See Kinney v. State of California (Apr. 8, 2005, G032629) [nonpub. opn.]; Lueder v. Three Arch Bay District (Oct. 18, 2005, G033863) [nonpub. opn.]; Kinney v. Overton (2007) 153 Cal.App.4th 482; and Kinney v. Overton (July 18, 2007, G037708) [nonpub. opn.].
Cross-defendant and respondent City of Laguna Beach (City) brought a demurrer to Kinney’s sixth amended cross-complaint, with respect to the 10th cause of action. The City asserted that Kinney had failed to raise his claim regarding an improper assessment within the period of time allowed by Streets and Highways Code section 10400. The court sustained the demurrer without leave to amend and entered judgment in favor of the City on Kinney’s entire cross-complaint. Kinney appeals.
Kinney argues that, for a number of reasons, the statute of limitations does not bar the portion of his cross-complaint pertaining to the amount of the City’s assessment with respect to the undergrounding of utilities. We are not persuaded by his reasoning. His claim pertaining to the assessment amount is time barred.
However, Kinney also argues that his cross-complaint contains allegations against the City pertaining to matters other than the assessment, and that the portion of his cross-complaint relating to such other matters is not barred by the statute of limitations. While he was not, at oral argument, able to articulate which of those causes of action contained allegations about the City, we observe that Kinney, in the text of his first cause of action for nuisance and trespass, makes substantial allegations about City liability, even though his topic heading appears to indicate that the cause of action is being pressed only against other parties. We also observe that there are other portions of the cross-complaint, such as the eighth cause of action for dangerous condition, that could be construed as asserting City liability as well, even though the City is not identified by name in the text of that cause of action. Of course, we cannot fault the trial judge for entering judgment in favor of the City on the entirety of Kinney’s cross-complaint, inasmuch as Kinney failed to comply with the requirements of California Rules of Court, rule 2.112(4) and identify the City as a party against whom any cause of action other than the 10th cause of action was directed.
It appears Kinney has engaged in inartful pleading, perhaps to the understandable frustration of the trial court. And frustration is the unfortunate story of this litigation. As we previously stated: “Tiny portions of the litigation have been separated out one by one, bifurcated, and set for trial, in order, we presume, to make an unwieldy ball of wax just a little bit smaller. Those tiny portions have come to us in isolation, one appeal at a time. But Kinney, as one of the primary protagonists in the litigation, keeps complaining that the courts never slay the dragon and put the beast to rest. However, if the litigation is continually brought to us in bits and pieces, we can only address bits and pieces. We cannot address matters that are outside of the record on appeal or issues that do not arise from the portion of the litigation underlying the appeal in question. [Citations.] When all of the parties and issues are not put before this court, and we are not provided with all of the evidence necessary to finally address and resolve all ills, it is not possible for us to slay the dragon. Unless and until Kinney or another party to the litigation drags the entire beast before this court, we will continue to provide answers piecemeal—one talon at a time.” (Kinney v. Overton, supra, 153 Cal.App.4th at p. 485.)
At this point, we are finally starting to get a glimpse of the larger picture. That being the case, we are concerned that when snippets of the litigation are disposed of bit by bit, and parties to the litigation are eliminated one at a time, a danger arises that when the present lawsuit is completed the underlying problems pertaining to the drainage on Virginia Way will remain unresolved. Fundamentally put, there are a number of parties alleged to have responsibility with respect to the problems at Virginia Way, on a variety of legal theories. The City is one such party. The trial court correctly determined that Kinney’s claim pertaining to the allegedly improper assessment was time-barred. However, frustrations with pleading and practice aside, the trial court may wish to give one more thought to whether Kinney should have an opportunity to amend his cross-complaint yet again, to properly allege any claims he may have against the City that do not pertain to the assessment.
We affirm the order sustaining, without leave to amend, the City’s demurrer to the 10th cause of action pertaining to the purportedly improper assessment. However, we reverse the judgment stating that Kinney shall take nothing as against the City on his cross-complaint. The trial court shall exercise its discretion to determine whether or not to allow Kinney to further amend his cross-complaint, in compliance with California Rules of Court, rule 2.112(4), to state a cause of action against the City, or against any other proper party.
I
FACTS
Kinney alleges that there is severe flooding on Virginia Way and he is trying to find the party responsible for correcting the drainage issues. He asserts that Virginia Way is owned of record by long-defunct Three Arch Investment Company (the Company). As a part of his cross-complaint, he tried to compel the State of California (State) to take title to the street via escheat, so that there would be someone somewhere responsible for correcting the drainage problems. In a prior appeal, we affirmed a judgment in favor of the State. (Kinney v. State of California (Apr. 8, 2005, G032629) [nonpub. opn.].) While that opinion resolved the legal issue then before this court, it did not resolve the underlying issue: Who owns Virginia Way and/or is otherwise responsible for addressing the drainage issues plaguing the street?
In April 1999, the Three Arch Bay Community Service District (District), the City, and a number of persons who then owned property on Virginia Way, entered into an “Agreement and Mutual Release,” in an effort to solve the drainage problems (the 1999 Agreement). The 1999 agreement described the District as “a community service district... which provides drainage services to the residential area known as Three Arch Bay in South Laguna, California.” The 1999 agreement also recited that “[t]he City [was] responsible for review and approval of storm drain improvements involving [the signatory homeowners]....” In addition, the 1999 agreement recited that the homeowners had alleged “that the District and various residential areas served by the District have caused damage to [their] property as a result of storm drain runoff, including but not limited to the design and maintenance of the District’s storm drain system, which claims the District [had] disputed.”
In his sixth amended cross-complaint, Kinney alleges that the District is “authorized to exercise its powers over the private community of Three Arch Bay in Laguna Beach, CA, a portion of which is located higher in elevation and directly above Virginia Way....”
The parties desired to build storm drain system improvements and settle all future claims arising out of the storm drain runoff. Conceptual plans had been prepared, but more detailed plans were required and would require the approval of the Department of Transportation (Caltrans). The City agreed to complete the plan design, obtain Caltrans approval, and act as project administrator. The parties came up with a plan to contribute funds to the construction of the improvements, and the homeowners agreed to provide the necessary easements.
With respect to a different matter, in September 2000, the City, at the instance of certain property owners, adopted a resolution declaring its intention to order the construction of certain improvements and to form an underground utility assessment district. The matter was being undertaken in accordance with the Municipal Improvement Act of 1913 (Sts. & Hy. Code, § 10000 et seq.) and the Improvement Bond Act of 1915 (Sts. & Hy. Code, § 8500 et seq.). The resolution described the improvements as “the construction of certain underground utility system improvements, appurtenances, right-of-way improvements, and all appurtenant work in connection therewith in certain streets and other public easements....” The improvements were to be financed through assessments, and bonds representing unpaid assessments.
On November 21, 2001, the District filed a complaint against the City, alleging nonperformance of the 1999 agreement. The District sought specific performance of the 1999 agreement and declaratory relief concerning the rights and obligations arising under the 1999 agreement.
Back to the matter of the undergrounding of utilities, on March 12, 2002, the City preliminarily adopted an engineering report with respect to the proposed improvements and assessments, and resolved to set a hearing on the matter of the proposed improvements and assessments. Of particular importance to Kinney’s 10th cause of action, on May 22, 2002, the City adopted a resolution ordering the improvements to be made and confirming the assessments.
According to Kinney, in May 2002, the District filed a first amended complaint to add certain property owners, including himself, as doe defendants, and to seek a determination of the obligations of the City and others concerning Virginia Way. However, we do not have a copy of the first amended complaint in the record on appeal.
Kinney prepared a tort claim, dated June 28, 2002, against the State, the County of Orange (County) and the City. The claim was based on property damage due to flooding on Virginia Way.
Kinney filed his initial cross-complaint on July 5, 2002. He included the State, the County, the District, the City, and a number of others, as cross-defendants. His first cause of action was for nuisance/trespass as against all defendants, and alleged that the City was one of the parties who controlled and maintained Virginia Way. He also alleged that the City was one of the parties responsible for altering natural drainage courses at the top of the hill so as to direct extra storm water runoff towards his property. In his second cause of action, against the City, the State, the County, the District, and others, Kinney asserted that the named cross-defendants had a duty to correct the dangerous condition with respect to the storm water runoff. He also sought declaratory relief as to the requirements to have the storm water runoff from Three Arch Bay transported to South Coast Highway so as not to create a dangerous condition.
Kinney’s fourth cause of action was against the City only, for improper assessment. He alleged that the City was undergrounding certain wires, via an assessment district, and had charged him too great an assessment — a level one assessment instead of a level two assessment.
According to Kinney, the District filed a third amended complaint in December 2007, but the record on appeal contains no copy of such third amended complaint. The record on appeal also does not contain copies of Kinney’s first through fifth amended cross-complaints. However, we do have a copy of Kinney’s sixth amended cross-complaint, filed September 24, 2008, at issue on this appeal.
Kinney’s sixth amended cross-complaint, like his original cross-complaint, contained a first cause of action for nuisance and trespass. According to the topic heading, Kinney seemed to be pressing the cause of action against the State, the District, and certain others, but not the City. In the text underneath the topic heading, however, Kinney clearly alleged that the City was liable.
Kinney also asserted an eighth cause of action for dangerous condition. The topic heading indicated that the cause of action was against the State, the District and the Company. However, in the text, Kinney said that all cross-defendants knew or should have known of the dangerous condition and had a duty to correct it.
The 10th cause of action, entitled “Improper Assessment for Undergrounding,” was directed against the City. Kinney again claimed he was improperly charged a level one assessment instead of a level two assessment. He also contended that the court could not determine the amount of a reasonable assessment unless it first determined the rights and obligations of the City and others with respect to Virginia Way.
In his prayer for relief, Kinney sought, inter alia, declaratory relief as to the duties for maintenance, repair and improvement of the street and drainage on Virginia Way; declaratory relief as to the proper amount of the assessment and whether the City had the necessary easements to place the utilities underground; declaratory relief as to whether the April 1, 1999 agreement was void, and other relief as the court deemed proper.
The City filed a demurrer to Kinney’s sixth amended cross-complaint. It asserted that the 10th cause of action was the sole cause of action against the City and was time-barred pursuant to Streets and Highways Code section 10400.
According to the City, its May 22, 2002 resolution ordering the undergrounding of utilities and confirming the amounts of assessments to be levied triggered the running of the 30-day statute of limitations set forth in Streets and Highways Code section 10400. The City further stated that Kinney did not challenge the amount of the assessment until the filing of his fifth amended cross-complaint, on July 5, 2002 — a date 44 days after the date of the resolution. The City concluded that, inasmuch as Kinney’s challenge was two weeks late, it was time-barred.
The court ruled that the allegations regarding an assessment for undergrounding of utilities were time barred under Streets and Highways Code section 10400, and did not relate back to any previously filed complaint because the allegations were unrelated to and did not arise from the same transaction that formed the basis of the breach of contract complaint. Judgment was entered in favor of the City on Kinney’s sixth amended cross-complaint, and provided that Kinney would take nothing against the City.
II
DISCUSSION
A. Introduction:
“The standard of review on an appeal from judgment of dismissal following sustaining of a general demurrer is guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, as well as those which reasonably arise by implication, but not contentions, deductions or conclusions of fact or law. [Citations.] ‘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 on any theory. [Citations.] Moreover, ‘“the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.”’ [Citations.] A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. [Citation.]” (Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 756-757.) “We independently review the ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.)
Kinney makes a number of arguments: (1) the court erred in even considering the City’s demurrer because it was untimely served; (2) the 30-day limitation is inapplicable because he does not challenge the validity of the assessment, only its amount; (3) his June 28, 2002 tort claim constituted the commencement of the action or proceeding within the meaning of section 10400; (4) his cross-complaint relates back to the date of filing of the District’s first amended complaint on May 31, 2002; (5) the refund he seeks would be a setoff, so the statute of limitations was tolled when the District filed its first amended complaint; (6) even if his claim about the assessment were time-barred, he still would be entitled to declaratory relief under Code of Civil Procedure section 1060; and (7) he is entitled to any relief warranted by the facts pled in his cross-complaint, no matter how his causes of action are labeled. We address these arguments in turn.
B. Untimely Service of Notice of Hearing:
Kinney claims that the court should not have even considered the City’s demurrer, because the City failed to comply with the deadlines for filing and service as prescribed by Code of Civil Procedure section 1005, subdivision (b). He says that the City’s service by mail was tardy. Although Kinney fails to cite any portion of the record that demonstrates the tardiness, the City concedes before this court, as it did before the trial court, that the service was untimely.
In its reply memorandum in support of its demurrer, the City stated: “The City acknowledges, and expresses apology, that the service of its moving papers did not provide Kinney with all of the time to which he was entitled for a response. This was not determined prior to receipt of the opposition papers. Had Kinney made a request for additional time, the City would of course have concurred. While it is not clear, and certainly not argued, that Kinney’s preparation of his opposition was prejudiced or compromised in some way, the City would not object to a continuance of the hearing or to an opportunity to submit post-hearing supplemental briefs if deemed appropriate by the Court. Given the nature and thrust of the opposition already filed, however, it does not appear that new legal authority would be forthcoming.”
The hearing was actually held a week later than originally scheduled, a point noted by Kinney’s counsel while in court. However, counsel did not request either a continuance or an opportunity for supplemental briefing, as suggested by the City. In any event, Kinney cites no authority stating that a party’s failure to comply with the service deadline established by Code of Civil Procedure section 1005, subdivision (b) is an absolute bar to consideration of that party’s motion by the court.
To the contrary, “‘[t]he principal purpose of the requirement to file and serve a notice of motion a specified number of days before the hearing ([Code Civ. Proc.,] § 1005, subd. (b)) is to provide the opposing party adequate time to prepare an opposition. That purpose is served if the party appears at the hearing, opposes the motion on the merits, and was not prejudiced in preparing an opposition by the untimely notice.’ [Citation.]” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 828-829.) Kinney has not explained what prejudice he suffered, particularly in light of the City’s offer to continue the hearing or to agree to supplemental briefing, the fact that the hearing took place a week later than originally scheduled, and the fact that Kinney both filed a written opposition and was represented by counsel at the hearing on the City’s demurrer. Kinney has not shown that the untimely service is a basis for reversal in this matter.
C. Statute of Limitations:
(1) Streets and Highways Code section 10400
Streets and Highways Code section 10400 provides: “The validity of an assessment or supplementary assessment levied under this division shall not be contested in any action or proceeding unless the action or proceeding is commenced within 30 days after the assessment is levied....” Because the City adopted the resolution concerning the assessments on May 22, 2002, and Kinney did not file his cross-complaint until July 5, 2002, the trial court held that his cross-complaint against the City had not been filed within the 30-day time period and was thus barred.
(2) Applicability of statute
Kinney argues that Streets and Highways Code section 10400 is inapplicable because it pertains to challenges to the validity of an assessment, and he has not challenged the validity of the assessment. He says he has only challenged the amount of the assessment.
Kinney cites no legal authority construing Streets and Highways Code section 10400 so narrowly. The purpose of the short limitations period, to enable the procurement of financing and the closure of the proceedings, would be just as easily undermined by permitting later challenges to the amounts of the assessments as by permitting later challenges to a governing body’s right to levy the assessments at all. “It is a fact of common knowledge that the mere existence of a lawsuit usually prevents the sale of bonds and the raising of the funds required to do the work of improvement for which the special assessment has been levied. [Citation.] The short statutes of limitations such as section 10400 are essential to the consummation of the proceedings and to provide assurance to bond buyers that their investment will be reasonably safe and secure.” (Allis-Chalmers v. City of Oxnard (1980) 105 Cal.App.3d 876, 883; accord, City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1218 (City of Saratoga).) We are unpersuaded by Kinney’s argument.
(3) Significance of June 28, 2002 tort claim
Kinney also asserts, without explanation, that his June 28, 2002 tort claim constituted a “proceeding” commenced within 30 days of the City’s adoption of the assessments, which took place on May 22, 2002. The record does not appear to contain a proof of service, a certified mailing receipt, a copy of the claim as date stamped by the City clerk, or any other record to show when the tort claim was actually filed with the City. Nonetheless, assuming the claim was indeed filed on June 28, 2002, that was more than 30 days after the City levied the assessments on May 22, 2002. (City of Saratoga, supra, 115 Cal.App.4th at p. 1213.) Therefore, the filing could not have satisfied the time limitation set forth in Streets and Highways Code section 10400. Furthermore, Kinney cites no portion of the claim raising any issue as to the assessment he later challenged in his cross-complaint filed in the underlying litigation. In short, the filing of the claim did not solve his statute of limitations problem.
(4) Relation back
In addition to the foregoing, Kinney asserts that his cross-complaint is saved by the doctrine of relation back. That is, he says his cross-complaint relates back to May 31, 2002, the date the District filed its first amended complaint in the litigation. We observe that the record on appeal contains no copy of the first amended complaint, although the May 31, 2002 filing date is noted in the register of actions.
Kinney’s argument is unavailing. The doctrine of relation back would preserve a claim Kinney had against the District as plaintiff, if his cross-complaint arose out of the “same ‘general set of facts’” as the complaint. (Idding v. North Bay Construction Co. (1995) 39 Cal.App.4th 1111, 1114; Luna Records Corp., Inc. v. Alvarado (1991) 232 Cal.App.3d 1023, 1028 (Luna Records).) However, nothing in the record shows that the District’s complaint arose out of the City’s resolution confirming the assessments. The original complaint was based on the 1999 Agreement. Since Kinney represents that his predecessors-in-title assigned their rights under the 1999 Agreement to him, it is not surprising that the District would eventually amend its complaint to add Kinney as a party. If the first amended complaint had anything to do with the City’s May 22, 2002 resolution, Kinney should have made certain the clerk’s transcript included a copy of that amended complaint to prove his point.
Moreover, as the City points out, the doctrine of relation back cannot save an untimely cross-complaint against a codefendant when the cross-complainant seeks to have his or her cross-complaint relate back to the date of filing of one of the plaintiff’s pleadings. (Luna Records, supra, 232 Cal.App.3d at p. 1027; Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 859.) Thus, there is a second reason why Kinney’s argument fails.
(5) Code of Civil Procedure section 431.70 setoff
In a one-sentence argument, Kinney also contends that his “claim for a refund for the assessment levy paid is simply a setoff and the statute of limitations [was] tolled when [the District] filed its amended complaint naming all parties.” He cites Code of Civil Procedure section 431.70 in support of his meager argument. Section 431.70 provides in pertinent part: “Where cross-demands for money have existed between persons at any point in time when neither demand was barred by the statute of limitations, and an action is thereafter commenced by one such person, the other person may assert in the answer the defense of payment in that the two demands are compensated so far as they equal each other, notwithstanding that an independent action asserting the person’s claim would at the time of filing the answer be barred by the statute of limitations.” Kinney fails to explain the application of this statute vis-à-vis his claim against the City.
Code of Civil Procedure “section 431.70 permits a defendant in a civil action to assert a claim for relief in its answer and allege, in effect, that the defense claim constituted prior payment for the plaintiff’s claim and therefore should be set off against any award in the plaintiff’s favor.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 192.) “When two parties have opposing claims against one another, whether or not the two claims are related, one party might allow the statute of limitations to run on its claim, reasoning that the two claims have canceled one another out. If the second party then pursues its claim in a court action, the first party should be permitted to assert its expired claim defensively, arguing in effect that its earlier decision not to pursue the claim constituted a form of payment or compensation to the second party. But because the statute of limitations otherwise bars the first party’s claim, the use of that claim should be defensive only, and the first party’s recovery should be limited to offsetting any amount the second party might obtain on its opposing claim. The legislative history of section 431.70 suggests the Legislature intended the section to codify this principle.” (Id. at p. 195.)
Kinney has not explained what action the City has commenced against him or what demand the City has made as to which he is asserting the defense of setoff. He says that his claim is for a refund of the assessment he already paid to the City. If the assessment levied by the City had already been paid when Kinney filed his cross-complaint, it is unclear what demand for money the City could have had against Kinney so as to make Code of Civil Procedure section 431.70 regarding monetary cross-demands relevant. When section 431.70 was raised at the hearing on the City’s demurrer, counsel for the City represented that the City had no claims against Kinney. Kinney has not shown that section 431.70 applies.
(6) Conclusion re improper assessment claim
As the foregoing shows, Kinney’s cause of action for improper assessment is time-barred. Consequently, we affirm the order sustaining the City’s demurrer, without leave to amend, as to Kinney’s 10th cause of action for improper assessment. At oral argument, the City acknowledged that an affirmance of this ruling would have no bearing on the rights of any other parties. And we make clear that the affirmance affects only Kinney’s rights with respect to his claim for improper assessment.
D. Non-Assessment Claims for Relief:
Kinney maintains that even if his claim for an assessment refund were time-barred, the 30-day limitations period of Streets and Highways Code section 10400 nonetheless would not bar his other claims as expressed in his cross-complaint. He further emphasizes that he is entitled to any relief that is warranted by the facts.
The City, in its respondent’s brief, gives a hint of acknowledgement that Kinney may have endeavored to frame a declaratory relief claim against it, but failed in his attempt. It states more concretely that Kinney did not allege, in his sixth amended cross-complaint, that the City was responsible for causing damage to his property in connection with flooding and street obstruction matters. It says such claims were asserted “in other causes of action against other parties.” Well, if we confine ourselves to the topic headings and don’t read the text, that’s true. If we read the text, we come to a different conclusion.
In the general allegations of his sixth amended cross-complaint, Kinney alleged the City was an entity with the power to prevent and remedy the drainage problems affecting Virginia Way. He also alleged that the District was responsible for the storm water runoff and drainage flowing from the private Three Arch Bay community, located at an elevation above Virginia Way, and that the District, with the acquiescence or assistance of the City and/or the County, had combined two drainage channels into one, which then drained onto Virginia Way. In addition, he alleged that each cross-defendant was negligently responsible or otherwise liable for the injuries he had sustained.
The first cause of action in Kinney’s sixth amended cross-complaint was for nuisance and trespass. The topic heading identified only the State, the Company, the District and certain individual property owners, but not the City, as cross-defendants. However, in the body of the allegations, Kinney clearly asserted liability on the part of the City. He asserted that, as a result of the actions or omissions of the State, the County, the City, the District, and the Company, two natural drainage courses in Three Arch Bay were consolidated and roads were graded in contravention of normal practices, so that extra storm water runoff flowed to his property and caused flooding. He also said that the State, the County, the City, the District, the Company, and others, knew or should have known of the dangerous condition of the drainage system and each had the duty to mitigate.
In addition, Kinney described the 1999 Agreement, the purported breach by the City, and the resultant litigation commenced by the District. Kinney also mentioned that his predecessors-in-title with respect to his Virginia Way property had been parties to the 1999 Agreement and had assigned their interests thereunder to him.
Kinney further alleged that certain rains had saturated his property and caused damage, including property settlement in the amount of about five inches, and that he had filed tort claims with the State, the County and the City. He alleged that the drainage system was constructed, controlled, and/or maintained by the State, the County, the City, the District, the Company and certain others, and would continue to cause a nuisance when storm water saturated his property. He further asserted that the saturation of his property constituted a trespass and interfered with his quiet enjoyment of his property. He requested injunctive relief and declaratory relief to determine who was responsible for the maintenance and improvement of the drainage system from the Three Arch Bay community to Virginia Way and for the drainage system on Virginia Way itself. He also sought a determination of the damages caused by the nuisance and trespass.
In his eighth cause of action, Kinney sought relief for dangerous condition. According to the topic heading, the cause of action was directed only against the State, the District and the Company. However, in his mix-and-match style of pleading, Kinney averred in the text of his first cause of action that the State, the County, the City, the District, the Company, and others, knew or should have known of the dangerous condition of the drainage system and each had the duty to mitigate.
The 10th cause of action, leveled against the City, was labeled “Improper Assessment for Undergrounding.” However, the text underneath the topic heading addressed more than just the assessment. Kinney claimed that from 1992 to 2001, the City did from time to time use its clean-up crews on Virginia Way to respond to storm water drainage problems. He also alleged, with apparent reference to the 1999 Agreement, that the City, in 1999, had “obligated itself in a drainage contract with [the District] and others regarding Virginia Way.” Kinney further alleged that the City had provided him with documentation in May 2001 that would indicate that Virginia Way was City maintained. In addition, Kinney reiterated that the City had repudiated the 1999 Agreement in 2001, resulting in the District’s complaint. Kinney urged that the litigation required a determination as to the party responsible to maintain and improve Virginia Way, and to repair the damage due to either drainage or the undergrounding of utilities.
In his prayer for relief at the end of his cross-complaint, Kinney sought, inter alia, declaratory relief as to: (1) the duties to maintain, repair and improve the street and drainage on Virginia Way; and (2) whether the 1999 Agreement was void. He made this request despite the fact that he had not framed a declaratory relief cause of action per se against any party.
As a review of his cross-complaint shows, Kinney was inartful in the manner in which he asserted his claims against the City. They were strewn about the general allegations, the text of the first cause of action, the topic heading and text of the 10th cause of action, the prayer for relief, and possibly the text of the eighth cause of action, if only by implication. Kinney seemed to try to make out claims against the City for nuisance, trespass, dangerous condition, repudiation of contract, and declaratory relief, in addition to improper assessment. At the same time, the topic headings of the cross-complaint would lead one to believe that Kinney sought only a determination that the City had levied an improper assessment.
Kinney has only himself to blame for the judgment against him, given his sloppy pleading and his failure to comply with California Rules of Court, rule 2.112. That rule provides in pertinent part: “Each separately stated cause of action, count, or defense must specifically state: [¶]... [¶] (4) The party or parties to whom it is directed....” Considering his failure to comply with the rules and the fact that he has had many opportunities to amend his cross-complaint in the past, we certainly understand the trial court’s decision to toss his entire cross-complaint as against the City.
At the same time, we are concerned that, when all is said and done, the litigation will end with no resolution of the responsibility for drainage issues at Virginia Way, not because of lack of liability on the part of anyone anywhere, but because of Kinney’s defective pleading and perhaps because of his reluctance to pursue all possible parties as well. Kinney says he wants declaratory relief, but he has not framed a declaratory relief cause of action. The entities mentioned at oral argument as having possible involvement with the matters affecting Virginia Way included not only the City and the District, but also Caltrans, the California Coastal Commission, the San Diego Gas & Electric Company, and the Company. While Kinney says the Company owns Virginia Way of record, he has not mentioned what efforts he has made or might make to compel the winding up of the affairs of the suspended corporation, whether by finding its shareholders or investigating whether a receiver or other representative could be appointed. He mentions the possibility of pursuing an action under Civil Code section 845, but seems to prefer not to do so at this time.
We are somewhat hampered by the record before us in that it does not contain copies of Kinney’s first through fifth amended cross-complaints, any motions with regard to them, or any rulings thereon. We do not know the extent to which some of the potential avenues suggested above may have been explored and rejected already. Furthermore, we do not know what instructions the trial court may have given Kinney with respect to cleaning up his pleadings. We are guessing that the trial court is exasperated at this point, and we can certainly understand why. Nonetheless, given the possibility that liability for actions previously taken with respect to drainage or maintenance issues at Virginia Way may go unaddressed, the responsibility to take corrective action or to permit corrective action to be taken on certain parcels of property may not be resolved, or the title to Virginia Way may remain in “defunct hands,” we authorize the trial court to take one more look at whether Kinney should be given a further opportunity to amend to see if he can, once and for all, level all plausible causes of action against proper parties, in compliance with the rules of pleading and practice.
E. Request for Judicial Notice:
Kinney filed a request for judicial notice in which he asked this court to take notice of a revised statement of decision filed in the underlying proceedings on June 23, 2008, after briefing was complete in this matter. The revised statement of decision pertains to the first phase of trial on the District’s third cause of action for declaratory relief against Caltrans and cross-defendant and cross-complainant Michael Boone. Inasmuch as the City has not objected to the request, the request is hereby granted. (Evid. Code, § 452, subd. (d).)
F. Record on Appeal:
California Rules of Court, rule 8.122(b)(1)(B) requires the clerk’s transcript to contain a copy of the judgment from which the appeal has been taken. However, the clerk’s transcript in this matter is deficient inasmuch as it contains no such copy. This court sent out an order informing that parties that it was considering augmenting the record with a copy of the February 17, 2009 judgment provided to this court by the City on March 27, 2009, and giving the parties an opportunity to file objections no later than November 17, 2009 at 9:30 a.m. or to make a verbal objection at oral argument. No objection having been timely received or made, the copy of the February 17, 2009 judgment provided to this court by the City on March 27, 2009 is hereby deemed a part of the record on appeal.
III
DISPOSITION
Kinney’s request for judicial notice, filed June 10, 2009, is granted. The order sustaining the City’s demurrer without leave to amend as to Kinney’s 10th cause of action for improper assessment is affirmed. The judgment in favor of the City on the entirety of Kinney’s sixth amended cross-complaint is reversed. The trial court shall exercise its discretion in determining whether or not to permit Kinney to further amend his cross-complaint against the City, in compliance with California Rules of Court, rule 2.112(4), to properly allege a cause of action that does not pertain to the propriety of the assessment, and to articulate such other causes of action against such other parties as may be proper under the rules of pleading and practice. If the trial court exercises its discretion not to permit Kinney to further amend, it may reinstate the judgment in favor of the City on the entirety of Kinney’s sixth amended cross-complaint. In the interests of justice, each party shall bear his own costs on appeal.
WE CONCUR: SILLS, P. J., FYBEL, J.