On December 11, 2017 a
Minutes - Civil -
was filed
involving a dispute between
Laurie Deuschel,
and
City Of Rocklin,
Clear Point Financial Group, Inc.,
Kamyshin Investments, Inc.,
Pacific Gas And Electric Co.,
for Civil-Roseville
in the District Court of Placer County.
Preview
SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER
Date: September 25, 2020 Time: 8:30 AM
Judge: Michael W. Jones Dept.: LM
Reporter: Clerk:
Deuschel, Laurie A. vs.Clear Point Financial Group, Inc. C] Present
et al
[_] Present
[_]And related Cross Action(s) Case # S-CV-0040437
Law and Motion Minutes
Proceedings RE: Demurrer - (x2)
J Dropped. _] Continued to (J by Plaintiff[] by Defendant
CJ by Stipulation [] by Court
_] Matter argued and submitted.
(_]Submitted on points and authorities without _] argument [] appearance.
C] Motion/Petition granted. [_]Motion/Petition denied.
(-]Demurrer [J sustained [J overruled [] without [J with leave to [.]amend (_]answer.
(J Counsel appointed for:
(_]Taken under submission.
(] Debtor issworn and retired with counsel for examination.
C] Stipulation to []Judge Pro Tem [_]Commissioner executed in open court.
[_]Counsel for to prepare the written order and submit itto opposing counsel for approval as
tocontent and form.
_] Other ;
The tentative ruling isadopted as the ruling ofthe court, to wit:
Please note: If oral argument is requested, it will be heard on
Friday, October 2, 2020 at 8:30 a.m. in Department 3.
City of Rocklin’s Demurrer to First Amended Complaint
0 0 A
aa a
Defendant City of Rocklin (“the City”) demurs to the first amended
complaint.
A party may demur to a complaint where the pleading does not state
facts sufficient to constitute a cause of action. Code Civ. Proc. §
430.10(e). A demurrer tests the legal sufficiency of the pleadings, not
the truth of the plaintiff’s allegations or the accuracy of the
described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.
The court assumes the truth of all facts properly pleaded, and accepts
as true all facts that may be implied or reasonably inferred from facts
expressly alleged, unless they are contradicted by judicially noticed
facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The court
does not assume the truth of contentions, deductions, or conclusions of
facts or law. Id.
The City’s demurrer is sustained. Plaintiff fails to allege compliance
with the claims presentation requirements of the Government Claims Act.
Further, based on the allegations of the first amended complaint, the
City is immune from liability under Government Code sections 818.4,
818.6 and 815. While plaintiff argues that a public entity may be
liable for failure to discharge a mandatory duty notwithstanding
statutory immunity, the first amended complaint does not allege the
discharge of a mandatory duty.
Plaintiff is granted leave to amend. The second amended complaint
shall be filed and served on or before October 16, 2020.
o~ -
Pacific Gas and Electric Co.’s Demurrer to First Amended Complaint
Defendant Pacific Gas and Electric Co. (“PG&E”) demurs to the first
amended complaint.
A party may demur to a complaint where the pleading does not state
facts sufficient to constitute a cause of action. Code Civ. Proc. §
430.10(e). A demurrer tests the legal sufficiency of the pleadings, not
the truth of the plaintiff’s allegations or the accuracy of the
described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.
The court assumes the truth of all facts properly pleaded, and accepts
as true all facts that may be implied or reasonably inferred from facts
expressly alleged, unless they are contradicted by judicially noticed
facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The court
does not assume the truth of contentions, deductions, or conclusions of
facts or law. Id.
PG&E’s demurrer is sustained. While the allegations of the first
amended complaint are somewhat unclear and confusing, it appears that
plaintiff seeks damages for trespass or nuisance based on the presence
of an overhead electrical drop service line overhanging her property,
the placement of an electrical service line on co-defendants’ property,
and the issuance of a permit to co-defendants to perform work on co-
defendants’ property. With respect to a claim arising from a service
line which plaintiff admits existed on her property when she bought it
in 1986, the applicable statute of limitations bars any claim for
nuisance or trespass. Spaulding v. Cameron (1952) 38 Cal.2d 265, 267;
~~ a)
Code Civ. Proc. § 338(b). As for allegations regarding a service line
on adjacent property, or permits issued for work to be performed on
adjacent property, plaintiff fails to allege trespass. As for her
private nuisance claim, she fails to allege unreasonable interference
with her use and enjoyment of her land, resulting in substantial actual
damage. Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th
263, 302-303.
Plaintiff’s cause of action for intentional infliction of emotional
distress also fails to allege sufficient facts to constitute a valid
cause of action. To allege this claim, plaintiff must allege “extreme
and outrageous conduct,” meaning conduct “so extreme as to exceed all
bounds of that usually tolerated in a civilized community.” Schlauch
v. Hartford Acc. & Indemnity Co. (1983) 146 Cal.App.3d 926, 936. The
allegations of the first amended complaint fail to describe conduct
that is “so extreme as to exceed all bounds of that usually tolerated
in a civilized community.”
Plaintiff is granted leave to amend. The second amended complaint
shall be filed and served on or before October 16, 2020.
Document Filed Date
September 24, 2020
Case Filing Date
December 11, 2017
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER Date: September 25, 2020 Time: 8:30 AM Judge: Michael W. Jones Dept.: LM Reporter: Clerk: Deuschel, Laurie A. vs.Clear Point Financial Group, Inc. C] Present et al [_] Present [_]And related Cross Action(s) Case # S-CV-0040437 Law and Motion Minutes Proceedings RE: Demurrer - (x2) J Dropped. _] Continued to (J by Plaintiff[] by Defendant CJ by Stipulation [] by Court _] Matter argued and submitted. (_]Submitted on points and authorities without _] argument [] appearance. C] Motion/Petition granted. [_]Motion/Petition denied. (-]Demurrer [J sustained [J overruled [] without [J with leave to [.]amend (_]answer. (J Counsel appointed for: (_]Taken under submission. (] Debtor issworn and retired with counsel for examination. C] Stipulation to []Judge Pro Tem [_]Commissioner executed in open court. [_]Counsel for to prepare the written order and submit itto opposing counsel for approval as tocontent and form. _] Other ; The tentative ruling isadopted as the ruling ofthe court, to wit: Please note: If oral argument is requested, it will be heard on Friday, October 2, 2020 at 8:30 a.m. in Department 3. City of Rocklin’s Demurrer to First Amended Complaint 0 0 A aa a Defendant City of Rocklin (“the City”) demurs to the first amended complaint. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff’s allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The City’s demurrer is sustained. Plaintiff fails to allege compliance with the claims presentation requirements of the Government Claims Act. Further, based on the allegations of the first amended complaint, the City is immune from liability under Government Code sections 818.4, 818.6 and 815. While plaintiff argues that a public entity may be liable for failure to discharge a mandatory duty notwithstanding statutory immunity, the first amended complaint does not allege the discharge of a mandatory duty. Plaintiff is granted leave to amend. The second amended complaint shall be filed and served on or before October 16, 2020. o~ - Pacific Gas and Electric Co.’s Demurrer to First Amended Complaint Defendant Pacific Gas and Electric Co. (“PG&E”) demurs to the first amended complaint. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff’s allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. PG&E’s demurrer is sustained. While the allegations of the first amended complaint are somewhat unclear and confusing, it appears that plaintiff seeks damages for trespass or nuisance based on the presence of an overhead electrical drop service line overhanging her property, the placement of an electrical service line on co-defendants’ property, and the issuance of a permit to co-defendants to perform work on co- defendants’ property. With respect to a claim arising from a service line which plaintiff admits existed on her property when she bought it in 1986, the applicable statute of limitations bars any claim for nuisance or trespass. Spaulding v. Cameron (1952) 38 Cal.2d 265, 267; ~~ a) Code Civ. Proc. § 338(b). As for allegations regarding a service line on adjacent property, or permits issued for work to be performed on adjacent property, plaintiff fails to allege trespass. As for her private nuisance claim, she fails to allege unreasonable interference with her use and enjoyment of her land, resulting in substantial actual damage. Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302-303. Plaintiff’s cause of action for intentional infliction of emotional distress also fails to allege sufficient facts to constitute a valid cause of action. To allege this claim, plaintiff must allege “extreme and outrageous conduct,” meaning conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Schlauch v. Hartford Acc. & Indemnity Co. (1983) 146 Cal.App.3d 926, 936. The allegations of the first amended complaint fail to describe conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Plaintiff is granted leave to amend. The second amended complaint shall be filed and served on or before October 16, 2020.