Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. KC055876 Robert A. Dukes, Judge.
Law Office of Thomas W. Sardoni, Thomas W. Sardoni and Daniel L. Schnebly for Plaintiffs and Appellants.
Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Mark A. Berkebile, Deputy Attorney, for Defendant and Respondent California Department of Transportation.
Alvarez-Glasman & Colvin and Richard H. Lam for Defendant and Respondent City of West Covina.
DOI TODD J.
Appellants Steven J. Lynn and Deborah C. Lynn, as trustees of the Lynn Family Trust, sued respondents State of California Department of Transportation (Caltrans) and the City of West Covina (the City) for inverse condemnation and negligence. The trial court sustained respondents’ demurrers to the first amended complaint (FAC). Although the court granted leave to amend, appellants instead submitted a proposed judgment of dismissal, which the trial court signed. Because we find that appellants’ negligence claim is time-barred and the FAC fails to state a cause of action for inverse condemnation, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a judgment of dismissal following a sustained demurrer, we assume the truth of all well-pleaded facts, as well as those that are judicially noticeable, but not contentions, deductions or conclusions of fact or law. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Factual Allegations of the FAC
From December 1995 through April 1, 2008, appellants owned and operated a musical instrument retail store and showroom located at 210 North Sunset Avenue in West Covina (the property). Interstate 10’s westbound Sunset Avenue exit ramp terminates in a “T” intersection with West Garvey Avenue. The T-intersection is directly in front of the property. Vehicles exiting the freeway on this ramp must make a right-angle turn at the end of the ramp onto West Garvey Avenue to avoid hitting the property.
In 1998, a vehicle using the Sunset Avenue ramp failed to negotiate the right-angle turn onto West Garvey Avenue and collided with an electrical junction box next to the property. The collision occurred at night and interrupted power for several hours, but caused no disruption to appellants’ business. Following this accident, appellants approached the City to discuss mitigating damage from future accidents, and proposed construction of a barrier wall in front of the property. The City rejected this request on the ground that the design of the intersection did not warrant such a wall.
In 1999, a City police officer on patrol stopped at the property, and informed appellants that he believed there had been approximately six vehicle collisions with the property prior to appellants’ ownership.
In 2000, two more vehicles collided with the property based on their failures to negotiate the T-intersection. The first collision damaged the property’s exterior electrical panel, wall and mirror. The second collision caused a tree adjacent to the property to fall and damage an exterior awning. Neither of these collisions disrupted appellants’ business, and their insurance company paid the repair costs.
In 2001, appellants again asked the City to modify the design of the Sunset Avenue exit ramp and T-intersection to reduce the likelihood of future vehicle collisions. Appellants proposed several modifications, including redesigning the exit ramp to eliminate the T-intersection; installing traffic control signals, warning lights or stop signs; increasing visibility of the T-intersection; and installing “Botts’ Dots” or similar pavement markers to conspicuously mark the turn onto West Garvey Avenue. The City responded that Caltrans was responsible for any design changes to the exit ramp and intersection, and represented that the City was in regular communication with Caltrans concerning this exit ramp and intersection and would request that Caltrans modify the design to reduce the likelihood of vehicle collisions with the property. The City advised appellants “that it could communicate with CALTRANS concerning these requests more effectively than Plaintiffs could.”
Between 2003 and 2005, Caltrans performed work on the Sunset Avenue exit ramp. It removed brush and trees, enlarged the pavement turn arrows on the ramp using more reflective paint, and relocated turn warning signs closer to the entrance of the ramp.
In April 2007, appellants decided to sell the property and received an offer to purchase of $3.6 million.
On May 10, 2007, another vehicle failed to negotiate the T-intersection and collided with the property, causing severe damage to both the exterior and interior of the building on the property. The City condemned the property, and appellants moved their retail business to a tent on the property for seven months while the building was being repaired. Appellants’ business was disrupted and they incurred expenses for moving, tenting and fencing, and security guards. Appellants’ insurance company has not reimbursed them for their business losses and expenses of approximately $400,000 in connection with this incident. After appellants disclosed the May 10, 2007 collision to their prospective buyer, the buyer withdrew its purchase offer.
In August 2007, another vehicle failed to negotiate the T-intersection and collided with the electrical panel on the property, causing a six-week interruption in the electrical supply to the property. Appellants’ insurance company did not reimburse them for their business losses in connection with this incident. At the time of this incident, appellants were in the process of selling the property to a second prospective buyer for a reduced price of $3.2 million. This second buyer had tendered a $100,000 deposit, but withdrew its offer and deposit after learning of the August 2007 collision.
After the May and August 2007 collisions, appellants again approached the City, requesting a permit to construct a barrier wall in front of the property. The City issued the permit in October 2007, and the wall was constructed in November 2007 at a cost of $20,000. In November 2007, just a few days after the barrier wall was completed, another vehicle failed to negotiate the T-intersection and collided with the newly-constructed wall.
On April 1, 2008, after disclosing the May and August 2007 collisions, appellants sold the property for $2.9, which was $700,000 less than the original offer.
On September 29, 2008, appellants submitted damage claim forms to Caltrans and the City. The claims were rejected on December 4, 2008 and February 23, 2009.
Procedural History
Appellants filed a complaint against Caltrans and the City on May 28, 2009 for negligence based on a theory of dangerous condition of property (Gov. Code, § 835), and inverse condemnation. Caltrans and the City filed separate demurrers to the complaint. At the August 27, 2009 hearing on the demurrers, appellants submitted without argument on the trial court’s tentative ruling sustaining the demurrers to both causes of action with leave to amend.
Appellants filed the FAC on September 17, 2009, alleging the same causes of action for inverse condemnation and negligence. Caltrans and the City separately demurred again, raising the applicable limitations period for each cause of action. At the November 30, 2009 hearing, appellants again submitted on the trial court’s tentative ruling sustaining the demurrers to these causes of action with leave to amend. Rather than amending, appellants submitted a proposed judgment of dismissal, which the trial court approved and entered on January 7, 2010. This appeal followed.
The FAC also alleged a third cause of action for nuisance. The trial court sustained the demurrers to this cause of action without leave to amend. Appellants do not challenge this ruling on appeal.
DISCUSSION
I.Standard of Review.
We review de novo a trial court’s sustaining of a demurrer, exercising our independent judgment as to whether the complaint alleges sufficient facts to state a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We assume the truth of properly pleaded allegations in the complaint and give the complaint a reasonable interpretation, reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558.) When, as here, “a plaintiff is given the opportunity to amend his complaint and elects not to do so, strict construction of the complaint is required and it must be presumed that the plaintiff has stated as strong a case as he can.” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 635; Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) “‘A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. [Citation.] The running of the statute must appear “clearly and affirmatively” from the dates alleged.’” (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 854.) Finally, the judgment should be affirmed if the complaint is objectionable on any of the grounds raised by the demurrers. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)
II. The Limitations Periods.
A. Applicable Rules
Generally, no suit for money or damages may be brought against a public entity unless the plaintiff first submits a written claim to the public entity within the statutorily proscribed time. (Gov. Code, § 945.4.) When, as here, the claim is for damage to real property, the claim must be presented “not later than one year after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).) But no claim is required to be filed to maintain an action for inverse condemnation. (Gov. Code, § 905.1; Lee v. Los Angeles County Metropolitan Transportation Authority, supra, 107 Cal.App.4th at p. 855.) Thus, a cause of action for inverse condemnation against a public entity is subject to a three-year statute of limitations. (Code Civ. Proc., § 338, subd. (j).) Appellants filed their written claims with Caltrans and the City on September 29, 2008, and filed their original court complaint on May 28, 2009.
The accrual date for dangerous condition of property and inverse condemnation claims are governed by the same general rules, which focus on when appreciable damage occurs. (Lee v. Los Angeles County Metropolitan Transportation Authority, supra, 107 Cal.App.4th at p. 855.) In a dangerous condition case, the action accrues and the statute of limitations runs when the plaintiff suffers an “appreciable and actual harm.” (City of San Diego v. U.S. Gympsum Co. (1994) 30 Cal.App.4th 575, 578.) An action for inverse condemnation accrues “when the damage is sufficiently appreciable to a reasonable man.” (Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717; Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 254–256.)
B. Accrual Date of Causes of Action
Appellants argue that the accrual date of their negligence and inverse condemnation causes of action should be April 1, 2008, the date a willing buyer finally agreed to purchase the property. They argue that until that date “the consequences of CALTRANS’ design changes to the Sunset Avenue exit ramp from 2003 to 2005 did not fully manifest themselves.” We disagree.
The FAC establishes that following two separate vehicle collisions with the property in 2000, appellants approached the City for the second time in 2001 requesting that design changes be made to the Sunset Avenue exit ramp and T-intersection. The City informed appellants that Caltrans was responsible for any design changes, but represented that it was in regular contact with Caltrans regarding this exit ramp and intersection and that it would, and could more effectively, convey appellants’ requests to Caltrans. There are no allegations that the City failed to do so. Indeed, between 2003 and 2005 Caltrans performed work on the exit ramp, which consisted of removing brush and trees, repainting and enlarging pavement arrow markers, and relocating traffic signs closer to the entrance of the ramp. Whether this work constituted “design changes” as appellants claim or “routine maintenance” as respondents claim is irrelevant. This is so because, despite the characterization of the work performed, the FAC alleges that appellants reasonably believed that the changes had resolved the problem of vehicle collisions with their property.
Appellants discovered that the changes were ineffective following a collision in May 2007, when a vehicle failed to negotiate the turn and struck the property, causing severe damage. By this point appellants had received an offer to purchase the property, which was withdrawn following their disclosure of the accident. Thus, in May 2007, appellants were aware that the changes made by Caltrans were ineffective, and appellants had suffered appreciable harm.
We find no merit to appellants’ argument that their causes of action did not accrue until April 1, 2008 because prior to the sale of the property they had no reasonable way to compute the property’s loss in market value. This argument ignores the well established rule that the statute of limitations for tort actions starts running once the plaintiff has incurred “appreciable and actual harm.” (Davies v. Krasna (1975) 14 Cal.3d 502, 514.) Once damage has occurred, “neither uncertainty as to the amount of damages nor difficulty in proving damages tolls the period of limitations.” (Ibid.)
As Caltrans points out, appellants’ analysis confuses “the awareness of damage with the ability to measure that damage.” Once a property owner is aware or should be aware that damage to his property has occurred, he cannot delay bringing an action for damages until he can calculate those damages with mathematical precision. “To delay the running of the period of limitation until defendant’s acts furnished plaintiff with a more certain proof of damages would contravene the principle that victims of legal wrong should make reasonable efforts to avoid incurring further damage.” (Davies v. Krasna, supra, 14 Cal.3d at p. 515.) If the rule were otherwise, a plaintiff could toll the applicable statute of limitations “‘for an indefinite time simply because the nature and extent of the damage was not determined or readily provable within the otherwise applicable statutory period of limitation.’” (Ibid.) If appellants’ analysis were correct, a property owner damaged by a public improvement could toll the statute of limitations indefinitely until he or she sells the property. Appellants could have hired real estate appraisers to opine as to the reduction in the property’s market value as a result of recurring vehicle collisions, as plaintiffs in inverse condemnation and real property actions routinely do to arrive at the measure of damages.
We also find no merit to appellants’ argument that the so-called “date of stabilization” theory tolled the applicable limitations periods until either November 2007 (the date of the last collision) or April 1, 2008 (the date the property was sold), because their damages consisting of a reduction in market value had not stabilized until then. Based on this theory, some courts have held that a cause of action for inverse condemnation and certain related torts in cases involving continuous and repeated damage resulting from the construction of a public improvement accrues on the date the situation has stabilized. (Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 293; Lee v. Los Angeles County Metropolitan Transportation Authority, supra, 107 Cal.App.4th at p. 856.) But appellants’ reliance on these cases is misplaced.
In Pierpont, our Supreme Court concluded that a real property owner could wait to sue the state for inverse condemnation until construction of a freeway on the property was completed. The Court stated: “Certainly it is true that the extent of whatever severance damages were caused by the taking of respondent’s land and the construction of the freeway project could be determined more accurately and more satisfactorily after the freeway was complete and in operation than would have been possible from a visualization of the project aided only by description and study of drawings and designs. These considerations contribute to the reasonableness of the rule here adopted quite apart from the fact that until construction had been completed, the plans for the freeway might have been substantially altered, the roadbed relocated or the entire project abandoned.” (Pierpont Inn, Inc. v. State of California, supra, 70 Cal.2dat p. 293.)
Similarly in Lee, the court concluded that a property owner’s causes of action for inverse condemnation, nuisance, dangerous condition of public property and other related claims based on damage to her property from the construction of an underground subway rail line had not accrued at the time her complaint was filed, because the complaint “adequately alleged a continuous and repeated course of conduct causing damages to her property, ” that was still occurring and would continue into the future as construction of the rail line was not yet complete. (Lee v. Los Angeles County Metropolitan Transportation Authority, supra, 107 Cal.App.4th at p. 858.)
These cases are distinguishable from appellants’ case because they involve the ongoing construction of a public improvement. That is not the situation here. As the court stated in Lyles v. State of California (2007) 153 Cal.App.4th 281: “The key distinction between this case and Lee is that Lee involved alleged damage caused by the ongoing activities of the public entity related to construction of a public work of improvement. In other words, it was the deliberate and ongoing conduct of the entity in the course of construction that had caused, and would continue to cause, damage to the property. Here, in contrast, defendants are not performing ongoing activities that will, of necessity, stabilize when the activities cease. In this case, there was a single ‘activity’ that occurred once in 1998. Defendants’ failure to modify the culvert does not affect this point. As unmodified, the culvert is conceptually part of the original condition of the original construction activity rather than part of ongoing construction activities. These circumstances do not justify application of the ‘stabilization’ approach to accrual of an inverse condemnation cause of action.” (Id. at pp. 290–291; see also Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1484–1485 [reaching same result].)
Appellants here were not damaged by an ongoing construction project. Rather, the damage to their property resulted from errant motorists who failed to negotiate the right-angle turn at the intersection and collided with appellants’ property. As such, the date of stabilization approach has no application here.
Respondents argue that the accrual date of appellants’ claims took place much earlier, in either 1999 or 2001. Respondents point out that the allegations of the FAC establish that by 1999 appellants had experienced one vehicle collision, were aware of at least six prior vehicle collisions, and had applied for a permit to construct a barrier wall. By 2001, appellants had experienced two more collisions, and had again approached the City requesting design modifications of the exit ramp and intersection. But the FAC establishes that the City informed appellants it would convey their requests for changes to the exit ramp and intersection to Caltrans. The City apparently did so, because Caltrans performed work on the exit ramp between 2003 and 2005. It was not unreasonable for appellants to give the City and Caltrans an opportunity to improve the matter, especially when there are no allegations that appellants were trying to sell the property at this time. Nor was it unreasonable for appellants to believe that the changes made by Caltrans had resolved the issue, especially in light of the absence of any collisions over the next two years. But once appellants discovered that the changes made by Caltrans were ineffective, and appellants had suffered both physical and monetary damages in May 2007, their causes of action accrued.
Because appellants did not submit their administrative claims for damages within one year from May 2007, their negligence cause of action is time-barred. Because appellants sued respondents for inverse condemnation within three years of May 2007, this cause of action is not time-barred. But, as discussed below, the FAC fails to state a cause of action for inverse condemnation.
III. Failure to State a Claim for Inverse Condemnation.
Appellants contend that they have adequately stated a cause of action for inverse condemnation based on a physical taking of real property by alleging that vehicles exiting the Sunset Avenue ramp, a work of public improvement, struck their property “as a result of the defective design and construction of that public improvement.” They argue that vehicles were deliberately directed on the exit ramp toward their property, “which drivers would inevitably strike if they did not successfully negotiate the sharp ‘T’ intersection designed and engineered by CALTRANS and the CITY.”
Liability for inverse condemnation derives from Article I, section 19 of the California Constitution, which states that “[p]rivate property may be taken or damaged for a public use and only when just compensation, ... has first been paid to... the owner.” (Cal. Const., art. I, § 19, subd. (a).) Our Supreme Court has noted that such liability is not open-ended, because otherwise construction of beneficial public improvements would be inhibited. (Holtz v. Superior Court (1970) 3 Cal.3d 296, 304.) Citing to one of its earlier cases, the Holtz court stated: “Thus we limited our holding of inverse condemnation liability, absent fault, to ‘physical injuries of real property’ that were ‘proximately caused’ by the improvement as deliberately constructed and planned.” (Ibid.) “There must be some causal connection between conduct on the part of the defendant public entity and the plaintiff landowner’s damage.” (Souza v. Silver Development Co. (1985) 164 Cal.App.3d 165, 171.) While the use of the public improvement need not be the sole cause of the injury, there must be a showing of ‘“a substantial cause-and-effect relationship excluding the probability that other forces alone produced the injury.’” (Ibid.)
The case of Moerman v. State of California (1993) 17 Cal.App.4th 452, which the trial court relied on in finding that the FAC failed to state a cause of action for inverse condemnation, is instructive. The Moerman court affirmed the trial court’s grant of summary judgment in favor of the state, holding that there was no inverse condemnation liability for a physical taking where the damage-causing agent is not controlled by or an instrumentality of the public entity. (Id. at p. 455.) In that case, the plaintiff complained that the state had damaged his property by relocating tule elk which were destroying his fences and eating the forage intended for his livestock. (Id. at p. 454.) Moerman concluded that because elk are wild animals, “there has been no physical taking of Moerman’s property as the tule elk are not instrumentalities of the state nor are they controlled by the state.” (Id. at p. 459.)
Likewise here, the instrumentalities causing the damage to appellants’ property were speeding vehicles, which were not owned or controlled by the state. Thus, there has been no physical taking of appellants’ property. Appellants argue that vehicles exiting the freeway at a high rate of speed are not analogous to wandering elk, because the exit ramp deliberately directed them toward appellants’ property. But as the trial court aptly noted: “THE GOVERNMENT DID NOT DIRECT THE VEHICLES TO COLLIDE WITH PLAINTIFFS’ PROPERTY. The government directed the vehicles to make a right turn when they exited the freeway. The government did not direct the vehicles to break the law by violating traffic signs and/or speeds.”
Appellants’ argument that Caltrans should have designed a better or different ramp and intersection is also without merit. As Caltrans points out, if such a theory were true, “then conceivably every intersection accident—indeed, every dangerous condition of property claim—would be actionable as inverse condemnation.” This would run counter to the principle that “inverse condemnation does not subject the state to general tort liability. Inverse condemnation is the remedy only for such injury to private property as results from ‘a deliberate act carrying with it the purpose of fulfilling one or another of the public objects of the project as a whole’ [citation].” (Eli v. State of California (1975) 46 Cal.App.3d 233, 235.)
The trial court correctly concluded that the FAC failed to state a cause of action for inverse condemnation.
DISPOSITION
The judgment of dismissal is affirmed. Respondents are entitled to recover their costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST J.