Opinion
A130817
11-03-2011
JAMES W. SHIPMAN et al., Plaintiffs and Appellants, v. NAPA COUNTY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. 26-52881)
James W. Shipman, Daniel Tompkins, William Johnson, and Likuan Huang, proceeding in pro per, appeal from a judgment entered after the court sustained respondents' demurrer to their amended complaint without leave to amend. We will vacate the judgment and remand with instructions to overrule the demurrer as to one cause of action, sustain the demurrer as to the other purported causes of action, and grant appellants leave to amend.
I. FACTS AND PROCEDURAL HISTORY
Appellants filed a complaint against respondents, seeking relief with respect to certain alleged tax assessments and sewer spills. Respondents filed a demurrer to the complaint, contending that the pleading was "so confusing it cannot be understood," appellants failed to allege compliance with applicable administrative claim requirements, appellants failed to allege facts showing that their claims were not barred by the statute of limitations, respondents were immune from liability under Government Code sections 818.2 and 821, and appellants' attempt to enjoin the collection of taxes was prohibited by the California Constitution. Appellants filed written opposition to the demurrer and, after a hearing, the court sustained the demurrer with leave to amend.
Appellants thereafter filed a document entitled "Demand for Jury Trial [¶] Case Amendments," which the parties and trial court agree was appellants' amended complaint. Respondents filed a demurrer to the amended complaint on substantially the same grounds as their previous demurrer. Appellants did not file any written opposition to the demurrer, but they appeared at the hearing and were allowed to present oral argument.
After the hearing, the court adopted its tentative ruling and issued a "Ruling On Submitted Demurrer" on November 3, 2010. The court sustained the demurrer to the amended complaint without leave to amend.
In its written order, the court began by describing its ruling on the earlier demurrer: "Defendants' demurrer to the original complaint was previously sustained with 20 days leave to amend on all grounds raised in the demurrer. In its August 24, 2010 ruling on the first demurrer, the court stated as follows: [¶] 'The complaint, which is not presented in proper format, is difficult to follow and does not set forth in a clear, concise manner facts to satisfy specific elements of specific causes of action. Also, if plaintiffs possess facts to overcome the specific deficiencies raised by defendants, such as failure to file a government claim, failure to exhaust administrative remedies, and statute of limitations, these facts should be alleged in the amended complaint. Plaintiffs are admonished that, notwithstanding their pro per status, they are required to follow the correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) The amended complaint should contain clearly labeled causes of action, with specific concise factual allegations to support each separate cause of action.'"
The court then described appellants' amended complaint and the court's reasons for sustaining the most recent demurrer without leave to amend: "Thereafter, plaintiffs filed a document entitled 'Demand for Jury Trial, Case Amendments Following the tentative ruling' which is apparently intended to be an amended complaint. This amended complaint is nearly identical to the original complaint, with some headings added. The amended complaint contains all of the same deficiencies noted in the earlier demurrer and in the court's ruling on that demurrer. [¶] Defendants demur to this amended complaint on the same grounds as in the earlier demurrer, which grounds are again well taken. Plaintiffs have not opposed the demurrer, and have not taken steps to correct the pleading so that it can be understood and responded to, and so that it avoids the fatal defects noted in defendants' demurrer. For this reason, the demurrer to the amended complaint is properly sustained without leave to amend."
On November 22, 2010, appellants filed a motion to recuse the judge who sustained the demurrer, to set aside the order sustaining the demurrer without leave to amend, and to "oppose all the demurrers defendants wrote." They also filed a document entitled "Declaration" on December 6, 2010.
By a different judge, the court granted appellants' recusal motion under Code of Civil Procedure section 170.6. Deeming appellants' request to set aside the order as a motion for reconsideration under Code of Civil Procedure section 1008, the court found the request was untimely. The court further observed, "even if the motion were timely, the court would deny it on the merits, as plaintiffs have shown no legal or factual basis for setting aside or reconsidering the order sustaining the demurrer to the First Amended Complaint without leave to amend."
A judgment of dismissal was entered on December 20, 2010. Appellants filed a timely notice of appeal from the judgment.
II. DISCUSSION
Appellants contend the court erred in sustaining the demurrer to their amended complaint and further argue that their motion to set aside the order should have been granted.
A. Demurrer
At the outset, we observe that appellants did not file a written opposition to the demurrer to their first amended complaint, and they have elected to proceed without a record of the hearing on the demurrer. The appellate record therefore contains no opposition to the demurrer, and on that basis we might arguably affirm the judgment. Nonetheless, we will proceed with our review based on the allegations of the amended complaint itself, particularly since the amended complaint contains arguments in rebuttal to respondents' demurrer to the original complaint - which respondents largely ignore.
In our de novo review of an order sustaining a demurrer, we assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 985-986.) We then determine if those facts are sufficient, as a matter of law, to state a cause of action under any legal theory. (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) We review the denial of leave to amend for an abuse of discretion. (Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 946 (Debro).)
In order to prevail on appeal, appellants must affirmatively demonstrate error. Specifically, appellants must show that the facts they pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.) We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained. (Debro, supra, 92 Cal.App.4th at p. 946.)
As mentioned, the trial court pointed out in sustaining the demurrer to the original complaint, as well as the demurrer to the amended complaint, that appellants had failed to allege facts sufficient to state the elements of the purported causes of action, and failed to allege facts to overcome deficiencies apparent from the face of the complaint, such as failure to file a government claim, failure to exhaust administrative remedies, and the effect of applicable statutes of limitation. Respondents heartily join in with this assessment. In many respects, the court and respondents were incorrect.
Appellants' amended complaint is based on taxes, assessments, and fees imposed on property owners, and a number of wastewater spills, over a period of years. They seek recovery of certain amounts they contend property owners paid, along with other relief. More specifically, the amended complaint asserts five clearly-labeled causes of action: (1) violation of articles XIII-C and XIII-D of the California Constitution; (2) violation of Civil Code section 1573 (constructive fraud); (3) violation of Title 33 of the United States Code, section 1251 (the Clean Water Act); (4) violation of Civil Code section 3479 (nuisance); and (5) breach of mandatory duty (Gov. Code, § 815.6).
1. First Cause of Action: Article XIII of the California Constitution
Article XIII-C of the California Constitution provides in section 2, subdivision (d),
as follows: "No local government may impose, extend, or increase any special tax unless and until that tax is submitted to the electorate and approved by a two-thirds vote. A special tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so approved."
Appellants quote this provision correctly in their amended complaint. They also set forth a part of Article XIII-D, section 4, subdivision (e): "The agency shall not impose an assessment if there is a majority protest. A majority protest exists if, upon the conclusion of the hearing, ballots submitted in opposition to the assessment exceed the ballots submitted in favor of the assessment. In tabulating the ballots, the ballots shall be weighted according to the proportional financial obligation of the affected property."
The amended complaint alleges that respondents breached the statutory duty set forth in these provisions, apparently by collecting the "assessment, tax" without having obtained approval by a sufficient number of property owners in Berryessa Estates. According to the amended complaint, about 50 percent of the property owners own vacant lots, for over 10 years Napa County sent "fake, informal ballots" instead of "real ballots" to the owners of those vacant lots, yet only the "regular ballots" were counted.
Appellants fail to allege a cause of action under article XIII-C (or article XIII-D for that matter), albeit for a reason respondents do not mention. Specifically, the amended complaint fails to allege that the assessments were imposed on less than two-thirds of the votes cast. The fact that owners of vacant lots did not receive ballots, or received fake ballots, does not mean that, of the ballots returned, less than two-thirds approved the enactment. As such, there is no violation of the stated requirements of article XIII-C or article XIII-D.
2. Second Cause of Action: Constructive Fraud (Civil Code, Section 1573 )
Appellants' second cause of action is for constructive fraud under Civil Code section 1573. Appellants allege that Napa County was aware that "assessment bonds" were not approved by "most of property owners," yet it continued to collect the assessment or tax.
Knowledge that most of the property owners had not approved the matter is insufficient to state a claim for constructive fraud, however, because the validity of an assessment is not based on the majority of property owners, but on the majority of votes cast. Appellants accordingly fail to state a cause of action for constructive fraud.
Respondents contend they have immunity as to this cause of action under Government Code section 818.8, which reads: "A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional." Appellants counter that their case is not related to an employee and there is no representation involved. Rather, they contend, the fraudulent acts were the county's failure to send authentic ballots to the owners of vacant lots and its notification to those owners in 2007 "to send the fake ballots to a private business address, so the fake ballots were not be counted." [sic] We need not and do not address the application of Government Code section 818.8, because the amended complaint fails to state a cause of action for constructive fraud on the ground stated in the text.
3. Third Cause of Action: Clean Water Act
Appellants' third cause of action asserts a violation of the Federal Water Pollution Control Act (Clean Water Act), Title 33 of the United States Code, sections 1251 et seq., which prohibits the discharge of toxic pollutants into navigable waters.
Appellants allege that "[s]ewer spills into Lake Berryessa violate the Federal clean water Act," and "the water supply for the Berryessa Estates community [in which appellants are property owners] comes from Lake Berryessa." However, appellants do not specifically allege in their amended complaint that there are any toxic pollutants in the discharge. On this basis, they fail to allege facts implicating the Clean Water Act.
Moreover, there is no private right of action under the Clean Water Act. (Middlesex Co. Sewerage Authority v. National Sea Clammers Association (1981) 453 U.S. 1, 14-15 (National Sea Clammers Association).)Appellants' claim under the Clean Water Act is therefore barred as a matter of law.
4. Fourth Cause of Action: Nuisance
Appellants' fourth cause of action is for nuisance, relying on Civil Code section 3479. Civil Code section 3479 provides: "Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." Civil Code section 3480 adds: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." Because the alleged nuisance pertains to the use of land held by property owners, it is better characterized as a private nuisance. (See generally People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103 (Gallo).)
Appellants allege that repeated and continuing sewer spills since 1995 constitute a nuisance (and negligence) because they diminish the value of properties at Berryessa Estates, even to the point that those properties cannot be sold or rented. They allege that these spills are the fault of the "Public Works" department, one of the departments of respondent Napa County, and that the members of the respondent board of supervisors constitute the directors of the Public Works department, permitted these things to happen, and did not "listen to" appellants' complaints. In the prayer of their amended complaint, appellants seek the following relief with respect to this cause of action: "prohibit Napa county put these items on our property tax bill since 2010, we would like to ask court to compensate the homeowner $7700, Vacant lot owners $2300;" "we would like to request that the court give us a statement saying that: The community of property owners of Berryessa Estates have the right to decide who will manage their water, sewer facility, septic system, etc.;" property owners will not be hindered if they decide another entity will handle their water and sewer facilities; the water and sewer facilities cannot be sold without the approval of the majority of property owners; property owners must be given the option to install a septic system on their lots; and the county should either provide the property owners a permit to do the work or, alternatively, purchase the properties ($40,000 per vacant lot and $227,000 per improved lot).
Construing their pleading broadly, as we must, it may be inferred from the allegations of the amended complaint that the repeated sewer spills, and the specter of their repetition in the future, obstruct the free use of appellants' property in a manner that interferes with their comfortable enjoyment, to their financial injury. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 103 [plaintiff pled a nuisance by the flooding of his lands] (Paterno).)While appellants may not be entitled to all of the relief they request, respondents fail to establish that they could obtain none of it if they prevailed on their claim. Accordingly, appellants' pleading alleges a nuisance.
This does not end the inquiry, however. Although the allegations are sufficient to state the elements of nuisance, whether they actually set forth a cognizable cause of action depends on whether there are meritorious defenses apparent from the face of the pleading: as potentially relevant here, defenses such as preemption and immunity.
The Clean Water Act preempts federal common law claims for nuisance and negligence. (National Sea Clammers Association, supra, 453 U.S. at pp. 21-22.) The parties do not discuss whether it also preempts nuisance claims brought under California law, but it most likely does not. (International Paper Co. v. Ouellette (1987) 479 U.S. 481, 500; 33 U.S.C. §§ 1365, subd. (e), 1370.) Whether the claim might be preempted by other laws, including state enactments, is not addressed by the parties.
Turning to the issue of immunity, Government Code section 815, subdivision (a) of the Tort Claims Act provides: "A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." As a result, all government tort liability must be based on statute, not common law. (E.g., Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 92.) Moreover, the immunity provisions of the Tort Claims Act will generally prevail over any liabilities established by statute, such that sovereign immunity is the general rule. (Ibid; see Gov. Code, § 815, subd. (b).)
Appellants' nuisance claim is based on Civil Code section 3479, which is, of course, a statute. Government Code section 815 therefore does not preclude appellants' nuisance claim. (Paterno, supra, 74 Cal.App.4th at p. 103 [Gov. Code, § 815 did not bar nuisance claim against public bodies for flooding after levee failed, because "the California Supreme Court has held Civil Code section 3479 is a statute that provides liability against public entities which maintain nuisances"], citing Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 932-937 ["section 815 of the Government Code does not bar nuisance actions against public entities to the extent such actions are founded on section 3479 of the Civil Code or other statutory provision that may be applicable"]; see also Levine v. City of Los Angeles (1977) 68 Cal.App.3d 481, 487-488 ["provided by statute" does not mean that public entities are liable in tort only when the Legislature has enacted a statute imposing liability which on its face is applicable to public bodies].)And, even if Government Code section 815 provided respondents immunity from liability for damages, it would not likely preclude injunctive relief designed to address the cause and consequences of the nuisance appellants allege. (See Gov. Code, § 814.)
Not to the contrary is Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848 (Tilton). There, appellants asserted nuisance, negligence, and other claims based on a reclamation district's improper maintenance of a levee or other related acts or omissions, which caused levee failures. (Id. at pp. 851-852.) The appellate court ruled that a demurrer to those claims was properly sustained based on the immunity provided by Government Code section 815, since appellants failed to establish under Government Code section 815.6 that there was any enactment imposing a mandatory duty upon the district to avoid leakage or similar failures of the levees. (Id. at pp. 860-864.) Tilton is distinguishable from the matter at hand: it was apparently based on common law nuisance, and there was no mention of Civil Code section 3479. (Id. at p. 861 ["Appellants do not contend that any state or federal statute imposes the requisite 'mandatory duty' in this case."].)
There may be other arguments, not asserted by respondents, that ultimately doom appellants' nuisance claim. For example, Civil Code section 3482 provides: "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." Furthermore, to constitute a nuisance, the interference must be objectively substantial. (E.g., Gallo, supra, 14 Cal.4th at p. 1105.) Moreover, Government Code section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." This immunity is extended to public entities through Government Code section 815.2, subdivision (b), so that where the public employee is immune, the public entity is immune as well. (Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1056-1057.) Thus, appellants cannot prevail on their nuisance claim if the cause of the nuisance was an act or omission that occurred from a public employee's exercise of discretion. Since respondents have not briefed these issues, however, we decline to determine whether any of these potential defenses might be meritorious or sufficient to justify the court's order sustaining the demurrer, and instead leave them to be sorted out in the trial court in the usual course after remand.
The court erred in sustaining the demurrer with respect to a cause of action for nuisance.
Appellants' fourth cause of action also mentions negligence, even though it is expressly premised on Civil Code section 3479 - which pertains solely to nuisance. Because respondents have immunity with respect to common law negligence claims, whether appellants have stated a cognizable cause of action for negligence depends on whether they alleged a mandatory duty within the meaning of Government Code section 815.6 - an issue we address next in our consideration of the fifth cause of action. We therefore treat the fourth cause of action as a nuisance claim only, and consider appellants' negligence allegations as part of the fifth cause of action.
5. Fifth Cause of Action: Mandatory Duty (Government Code Section 815.6 )
Appellants' fifth cause of action is for violation of Government Code section 815.6. Government Code section 815.6 reads: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Government Code section 815.6 offers an exception to the immunity provision of Government Code section 815.
To state a cause of action under Government Code section 815.6, appellants must allege: respondents were under a mandatory duty imposed by an enactment; the enactment was intended to protect against the kind of risk suffered by appellants; and the injury to appellants was proximately caused by respondents' failure to discharge their mandatory duty. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498-499 (Haggis); Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, 40.)
Appellants base their fifth cause of action both on the levies of assessments and taxes and on the sewer spills. Specifically, they allege that respondents did not exercise reasonable diligence, repeatedly violating appellants' voting rights on water and sewer taxes and repeatedly allowing the sewer spills to occur, and appellants were damaged as a result.
Appellants do not identify any enactment that gives rise to an applicable mandatory duty, but a reasonable reading of the amended complaint suggests that they are referring to article XIII-C or XIII-D of the California Constitution, Civil Code section 1573, Title 33 United States Code section 1251, and Civil Code section 3479. Whether they have stated a viable cause of action thus depends on whether any of these enactments set forth mandatory duties designed to protect appellants from their alleged harm. (Fisher v. Pickens (1990) 225 Cal.App.3d 708, 716 ["[T]he controlling question when a violation of Government Code section 815.6 [is] alleged is 'whether the enactment at issue was intended to impose an obligatory duty to take specified official action to prevent particular foreseeable injuries, thereby providing an appropriate basis for civil liability' "]; see Haggis, supra, 22 Cal.4th at pp. 499-500 [cause of action may be stated under Gov. Code § 815.6 if its requisites are met, even if no cause of action exists under the predicate enactment itself].) Unfortunately, the parties do not adequately address this issue.
In order to constitute a "mandatory duty" under Government Code section 815.6, the enactment must be obligatory (as opposed to discretionary or permissive) and it must require (rather than merely authorize or permit) that a particular action be taken or not taken. (Haggis, supra, 22 Cal.4th at pp. 498-499.) Furthermore, the act the public entity is obligated to take must not itself involve the exercise of discretion. (Ibid.)
The Clean Water Act and Civil Code section 3479 do not require respondents to take or not to take any particular action; how respondents accomplish the general statutory aim involves an exercise of discretion. These statutes do not provide mandatory duties.
Moreover, to the extent articles XIII-C and XIII-D of the California Constitution, Civil Code section 1573, and even the Clean Water Act might impose a mandatory duty upon respondents, appellants fail to allege facts demonstrating a breach of those duties. As explained ante, there is no allegation that respondents imposed assessments on less than two-thirds of the votes cast; there is no allegation that respondents imposed assessments with knowledge that an insufficient number of the votes cast had approved those assessments; and there is no specific allegation of toxic pollutants in the discharge. Appellants fail to state a claim under Government Code section 815.6.
6. Respondents' Other Arguments
A number of arguments respondents make in their respondents' brief are incorrect or inaccurate, or simply ignore the allegations of the amended complaint. For the benefit of the parties and the court after remand, we address those arguments briefly.
Respondents argue that appellants did not allege facts to demonstrate they have standing to pursue the litigation. Not so. Appellants plainly alleged they are property owners at Berryessa Estates, their rights as property owners have been violated, the case pertains to assessments on their parcels, and they were damaged by the assessments and the sewer spills.
Respondents argue that appellants are barred from recovering money damages because they did not allege that they complied with the Government Tort Claims Act or are excused from its provisions. (See Gov. Code, § 900 et seq.) Not so. In their amended complaint, appellants expressly alleged that they "DID FILE THE claims for money damage to comply with California tort claims act," and set forth certain specifics. (Capitalization in original.) At the demurrer stage, these allegations appear sufficient, and respondents provide no authority in their respondents' brief to the contrary.
Appellants did not attach a copy of the purported claim to their amended complaint, but instead attached letters from Napa County's liability claims administrator acknowledging a claim filed against Napa County with the city clerk's office. Respondents do not offer legal authority for the proposition that these letters prove, contrary to appellant's express allegation, that appellants failed to comply with the statutory requirements as a matter of law. One might also question whether the requirement applies for relief sought with respect to the alleged assessments - a matter we need not and do not decide. (Gov. Code, § 905, subd. (h).)
Respondents further contend, by blanket proclamation, that appellants did not establish they have a private right of action under any of the statutes cited. Not so. While it is true that appellants have no private right of action under the Clean Water Act, certainly there are private rights of action for constructive fraud, negligence, nuisance, and breach of mandatory duty, where the elements for such claims are properly alleged.
Respondents also note that the acts of which appellants complain date back several years, and they argue that appellants failed to plead facts sufficient to demonstrate their claims were not barred by the applicable statute of limitations. Not so. Respondents do not assert the applicability of any statute of limitations except Code of Civil Procedure section 335.1 for "emotional trauma" and Code of Civil Procedure section 329.5 for relief from assessments for public improvements. As to Code of Civil Procedure section 335.1, appellants refer to emotional trauma in their pleading, but the prayer of their amended complaint does not seek recovery for emotional trauma. As to Code of Civil Procedure section 329.5, the statute provides a 30-day limitations period for attacking the validity of a chartered city's assessment against real property for public improvements. (Code Civ. Proc., § 329.5; see Bliler v. City of San Diego (1976) 61 Cal.App.3d 530, 534-535 [public improvement, in this context, means any public purpose for which a chartered city has the power to levy an assessment]; see also Barratt American, Inc. v. City of San Diego (2004) 117 Cal.App.4th 809, 816-818 [limitations period applies notwithstanding article XIII-C and article XIII-D of the California Constitution].) Respondents, however, are Napa County and the Napa Board of Supervisors. Neither of them is a "chartered city," and respondents fail to explain why Code of Civil Procedure section 329.5 should apply.
Code of Civil Procedure section 329.5 provides: "The validity of an assessment or supplemental assessment against real property for public improvements, the proceedings for which are prescribed by the legislative body of any chartered city, shall not be contested in any action or proceeding unless the action or proceeding is commenced within 30 days after the assessment is levied, or such longer period as the legislative body may provide. Any appeal from a final judgment in such an action or proceeding shall be perfected within 30 days after the entry of judgment."
Furthermore, while other statutes of limitation may indeed preclude recovery as to acts occurring in some years, respondents do not establish that any limitation period precludes the entirety of the relief requested as to any of appellants' purported causes of action. Moreover, appellants in their amended complaint allege that respondents' acts were fraudulent and that they "discovered" that "Napa county violated the property owners['] tax rights" in February 2010, just about two months before they filed their original complaint. Respondents do not argue, let alone establish, that these allegations are insufficient to toll one or more of the limitations periods they claim apply.
For example, for their nuisance claim, appellants assert there is a two-year statute of limitations, which respondents do not dispute. The amended complaint alleges that the sewer spills occurred "over and over again since 1995" and "[t]he last 4 happened in 2008, 2009 and Feb 2010." The complaint was filed in May 2010. Further, appellants allege that more spills will happen in the future.
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Respondents urge that, as a matter of law, appellants are not entitled to enjoin the collection of taxes. (Cal. Const., art. 13, sec. 32; Rev. & Tax Code, § 4807; Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d 277, 280, 283.) In their amended complaint, however, appellants disavow an intent to enjoin the collection of taxes. Moreover, they seek other recovery identified in the prayer of their amended complaint, including a request for respondents to "pay back to the property owners" the amounts improperly collected, compensation for what the "property owners paid during 2007-2008, 2008-2009, 2009-2010," an injunction prohibiting the county from including the assessment on 2010 tax bills, and other relief. Simply put, the allegations of appellants' amended complaint do not show that they have no cause of action as a matter of law on this ground.
Lastly, respondents offer arguments based on other statutory immunity provisions. Government Code section 818.2 states: "A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law." Similarly, Government Code section 821 reads: "A public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment." While Government Code sections 818.2 and 821 grant immunity from liability for damages, respondents provide no authority that these sections bar appellants from compelling the return of payments for taxes or assessments collected unlawfully.
Government Code section 860.2 provides immunity to public entities and public employees for injuries caused by "[i]nstituting any judicial or administrative proceeding or action for or incidental to the assessment or collection of a tax" or "[a]n act or omission in the interpretation or application of any law relating to a tax." Appellants point out that Government Code section 860.4 states: "Nothing in this chapter affects any law relating to refund, rebate, exemption, cancellation, amendment or adjustment of taxes." Respondents do not respond to this contention. As our Supreme Court has explained, tort immunity under Government Code section 860.2 does not affect the right to obtain relief other than money damages. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 867.)
In sum, we conclude: appellants' amended complaint states a cause of action for nuisance; the amended complaint does not state a cause of action under article XIII-C or article XIII-D of the California Constitution, Civil Code section 1573, Title 33 United States Code section 1251, or Code of Civil Procedure section 815.6; and many of respondents' arguments in support of their demurrer were either erroneous, addressed in appellants' amended complaint, or both.
7. Denial of Leave to Amend
As to the causes of action for which the demurrer was properly sustained, we review the denial of leave to amend for an abuse of discretion. (Debro, supra, 92 Cal.App.4th at p. 946.) To prevail on appeal, an appellant must usually demonstrate a reasonable possibility that the defects in the complaint can be cured by amendment. (E.g., Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
In the matter before us, appellants do not explain what amendments they might make to cure the defects of their amended pleading. As explained ante, however, the defects that we observe in the amended complaint were not identified by respondents in the trial court with particularity, and many of respondents' bases for their demurrer were simply erroneous. It seems harsh to deny leave to amend on the ground that appellants failed to demonstrate a reasonable possibility of curing defects that neither respondents nor the trial court expressly articulated. Appellants have not had an opportunity to amend with respect to the defects we have found in their pleading, and there is a reasonable possibility that appellants can cure one or more of those defects by amendment.
Moreover, the trial court denied leave to amend because appellants had not addressed the defects of their original complaint; that is, they had not "taken steps to correct the pleading so that it can be understood and responded to, and so that it avoids the fatal defects noted in defendants' demurrer." We disagree. The amended complaint, although at times unclear, is not entirely incomprehensible, and appellants did cure in their amended complaint some of the defects noted in respondents' demurrer, and other purported defects turned out to be no defects at all.
We would agree that appellants' pleadings and briefs are disorganized and at times confusing, and the tone of their briefs is sometimes overly strident. Many of their arguments - such as contentions that no limitations period applies to certain claims, that respondents have no immunity because all persons are equal under the law, that the trial court's research attorney met the chairperson of the Napa County Board of Supervisors and there exists a conflict of interest between the Board of Supervisors and county residents, and that the case was "premeditated to be dismissed" - are plainly meritless or immaterial. We also heartily agree that appellants, although proceeding in pro per, must be held to the pleading standards mandated by the Code of Civil Procedure. As a corollary, however, appellants are entitled to the same level of review of their allegations as a party represented by more articulate counsel, and we express concern that appellants' attempts in their amended complaint to cure the deficiencies in their initial complaint were never acknowledged, at least by respondents.
As appellants point out in their reply brief: "If the justice system only for the people who write complicated English or big shot groups, then country is in the toilet." In the spirit of avoiding such a fate, we conclude it just and prudent to remand the matter for directions to grant appellants 20 days leave to amend. If appellants choose to file another amended pleading by the deadline specified by the trial court, nothing herein precludes respondents from filing a demurrer, limits the trial court's right to overrule or sustain it, or deprives the trial court of properly exercising its discretion to grant or deny further leave to amend.
B. Motion for Reconsideration
Because of our review of the trial court's order sustaining respondents' demurrer, and the disposition we reach in this appeal, we need not consider whether the court erred in denying appellants' motion to set aside the order. We have provided as much or more relief to appellants by our disposition in this appeal than they could have rightfully obtained by virtue of their motion.
III. DISPOSITION
The judgment is vacated. The order sustaining the demurrer to the first amended complaint without leave to amend is reversed. The trial court is directed to enter a new order sustaining the demurrer as to the first, second, third, and fifth purported causes of action, overruling the demurrer as to the fourth cause of action for nuisance under Civil Code section 3479, and granting appellants 20 days leave to amend.
NEEDHAM, J. We concur. JONES, P. J. BRUINIERS, J.