On April 21, 2023 a
Motion-Secondary
was filed
involving a dispute between
Keck, Melissa,
and
City Of Hesperia,
County Of San Bernardino,
Does 1 Through 50,
San Bernardino County,
for Other PI/PD/WD Unlimited
in the District Court of San Bernardino County.
Preview
BORDIN SEMMER LLP ELECTRONICALLY FILED (Aut< D)
Joshua Bordin-Wosk, State Bar No. 241077 SUPERIOR COURT OF CALIFC >RNIA
ibordinwosk@bordinsemmer.com COUNTY OF SAN BERNARDIN o
Andrei V. Serpik, State Bar No. 301260 3/1 2/2024 11:59 AM
aserpik@bordinsemmer.com
MAWN
Erika J. Stecker, State Bar No. 3481 11
esteckeréflbordinsemmer.com
Howard Hughes Center
6100 Center Drive, Suite 1 100
Los Angeles, CA 90045
Q0
Phone: (323) 457-21 10
Fax: (323) 457-2120
Attorneys for Defendants,
CITY OF HESPERIA
10
SUPERIOR COURT 0F THE STATE OF CALIFORNIA
11
COUNTY OF SAN BERNARDINO
12
13
MELIS SA KECK, an individual; Case N0.: CIVSB2309489
14
Plaintiff, (Assignedfor allpurposes to Hon. David
15
E. Driscoll, Dept. S22)
16 V.
DEFENDANT CITY OF HESPERIA’S
17 CITY OF HESPERIA; COUNTY OF SAN REPLY IN SUPPORT OF DEMURRER
BERNARDINO and DOES 1 through 50, TO PLAINTIFF MELISSA KECK’S
18
inclusive,
FIRST AMENDED COMPLAINT
19 Complaint Filed: April 21, 2023
Defendants.
Trial Date: None Set
20
[Exemptfrom filingfee due to
21
Government Code Section 6103]
22
Hearing:
23 Date: March 19, 2024
Time: 8:30 a.m.
24 Dept: 822
25
26
27
28
BORDIN SEMMER LLP
6100 CENTER DRIVE
SUITE 1100
LOS ANGELES, CA 90045 DEFENDANT CITY OF HESPERIA’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF MELISSA KECK’S FIRST
(323) 45772110
AMENDED COMPLAINT
TO THE COURT AND COUNSEL OF RECORD:
Defendant CITY OF HESPERIA (“Defendant”) hereby submits the following Reply
Memorandum in support 0f its Demurrer 0f Plaintiff MELISSA KECK (“Plaintiff”) Complaint.
I. PLAINTIFF’S ARGUMENT CONTINUES TO MISINTERPRET THE PLEADING
REQUIREMENTS FOR PUBLIC NUISANCE
Plaintiff s Opposition continues to advocate this frivolous claim Without providing any
legal support for their position that Plaintiff” s second cause of action is legally sufficient as t0
Defendant. Plaintiff once again fails t0 point to any statutory basis extending liability t0 a public
entity. Further, Plaintiff s refusal to amend the FAC in the face 0f the Court already reaching and
10 ruling on the merits of Plaintiff s cause of action for Public Nuisance, which was reiterated t0
11 Plaintiff before the filing of this second Demurrer, is either flagrant gamesmanship or reflective of
12 Plaintiff s counsel’s basic misunderstanding of the applicable law.
13 Plaintiff cannot sue Defendant for public nuisance. An action to abate a public nuisance
14 "must be prosecuted by a governmental entity and may not be initiated by a private party unless
15 the nuisance is personally injurious to that private party." County ofSanta Clara v. Superior Court
16 (2010) 50 Ca1.4th 35, 55 (emphasis added). “A private person may maintain an action for a public
17 nuisance, if it is specially injurious to himself, but not otherwise." CiV. Code, § 3493. T0 have
18 standing t0 pursue a public nuisance abatement action, the private party must suffer an injury that is
19 "different in kind, not merely in degree, from that suffered by other members of the public."
20 Kempton v. City ofLos Angeles (2008) 165 Cal.App.4th 1344, 1349 (emphasis added). Because
21 the alleged crack in the street would ostensibly be suffered by all members of the public, it would
22 not constitute a special injury t0 Plaintiff actionable for public nuisance. Additionally, Plaintiff has
23 not alleged a condition which affected a substantial number of people at the same time 0r that she
24 suffered harm that was different from the type of harm suffered by the general public.
25 Plaintiff cannot maintain her cause 0f action for Public Nuisance Without specific statutory
26 authority creating liability for a public entity. Further, a Public Nuisance cause of action, against a
27 public entity or any other defendant, would be improper based on the facts asserted. Plaintiff s
28 Opposition confirms that Plaintiff has fundamentally misunderstood the applicable law,
BORDIN SEMMER LLP
6100 CENTER DRIVE
SUITE 1100 1
LOS ANGELES, CA 90045
(323) 457-21 1O
DEFENDANT CITY OF HESPERIA’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF MELISSA KECK’S FIRST
AMENDED COMPLAINT
Document Filed Date
March 12, 2024
Case Filing Date
April 21, 2023
Category
Other PI/PD/WD Unlimited
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BORDIN SEMMER LLP ELECTRONICALLY FILED (Aut< D) Joshua Bordin-Wosk, State Bar No. 241077 SUPERIOR COURT OF CALIFC >RNIA ibordinwosk@bordinsemmer.com COUNTY OF SAN BERNARDIN o Andrei V. Serpik, State Bar No. 301260 3/1 2/2024 11:59 AM aserpik@bordinsemmer.com MAWN Erika J. Stecker, State Bar No. 3481 11 esteckeréflbordinsemmer.com Howard Hughes Center 6100 Center Drive, Suite 1 100 Los Angeles, CA 90045 Q0 Phone: (323) 457-21 10 Fax: (323) 457-2120 Attorneys for Defendants, CITY OF HESPERIA 10 SUPERIOR COURT 0F THE STATE OF CALIFORNIA 11 COUNTY OF SAN BERNARDINO 12 13 MELIS SA KECK, an individual; Case N0.: CIVSB2309489 14 Plaintiff, (Assignedfor allpurposes to Hon. David 15 E. Driscoll, Dept. S22) 16 V. DEFENDANT CITY OF HESPERIA’S 17 CITY OF HESPERIA; COUNTY OF SAN REPLY IN SUPPORT OF DEMURRER BERNARDINO and DOES 1 through 50, TO PLAINTIFF MELISSA KECK’S 18 inclusive, FIRST AMENDED COMPLAINT 19 Complaint Filed: April 21, 2023 Defendants. Trial Date: None Set 20 [Exemptfrom filingfee due to 21 Government Code Section 6103] 22 Hearing: 23 Date: March 19, 2024 Time: 8:30 a.m. 24 Dept: 822 25 26 27 28 BORDIN SEMMER LLP 6100 CENTER DRIVE SUITE 1100 LOS ANGELES, CA 90045 DEFENDANT CITY OF HESPERIA’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF MELISSA KECK’S FIRST (323) 45772110 AMENDED COMPLAINT TO THE COURT AND COUNSEL OF RECORD: Defendant CITY OF HESPERIA (“Defendant”) hereby submits the following Reply Memorandum in support 0f its Demurrer 0f Plaintiff MELISSA KECK (“Plaintiff”) Complaint. I. PLAINTIFF’S ARGUMENT CONTINUES TO MISINTERPRET THE PLEADING REQUIREMENTS FOR PUBLIC NUISANCE Plaintiff s Opposition continues to advocate this frivolous claim Without providing any legal support for their position that Plaintiff” s second cause of action is legally sufficient as t0 Defendant. Plaintiff once again fails t0 point to any statutory basis extending liability t0 a public entity. Further, Plaintiff s refusal to amend the FAC in the face 0f the Court already reaching and 10 ruling on the merits of Plaintiff s cause of action for Public Nuisance, which was reiterated t0 11 Plaintiff before the filing of this second Demurrer, is either flagrant gamesmanship or reflective of 12 Plaintiff s counsel’s basic misunderstanding of the applicable law. 13 Plaintiff cannot sue Defendant for public nuisance. An action to abate a public nuisance 14 "must be prosecuted by a governmental entity and may not be initiated by a private party unless 15 the nuisance is personally injurious to that private party." County ofSanta Clara v. Superior Court 16 (2010) 50 Ca1.4th 35, 55 (emphasis added). “A private person may maintain an action for a public 17 nuisance, if it is specially injurious to himself, but not otherwise." CiV. Code, § 3493. T0 have 18 standing t0 pursue a public nuisance abatement action, the private party must suffer an injury that is 19 "different in kind, not merely in degree, from that suffered by other members of the public." 20 Kempton v. City ofLos Angeles (2008) 165 Cal.App.4th 1344, 1349 (emphasis added). Because 21 the alleged crack in the street would ostensibly be suffered by all members of the public, it would 22 not constitute a special injury t0 Plaintiff actionable for public nuisance. Additionally, Plaintiff has 23 not alleged a condition which affected a substantial number of people at the same time 0r that she 24 suffered harm that was different from the type of harm suffered by the general public. 25 Plaintiff cannot maintain her cause 0f action for Public Nuisance Without specific statutory 26 authority creating liability for a public entity. Further, a Public Nuisance cause of action, against a 27 public entity or any other defendant, would be improper based on the facts asserted. Plaintiff s 28 Opposition confirms that Plaintiff has fundamentally misunderstood the applicable law, BORDIN SEMMER LLP 6100 CENTER DRIVE SUITE 1100 1 LOS ANGELES, CA 90045 (323) 457-21 1O DEFENDANT CITY OF HESPERIA’S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF MELISSA KECK’S FIRST AMENDED COMPLAINT