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  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
  • California Open Lands  vs Butte County Department of Public WorksUnlimited Civil Complaint - Real Property document preview
						
                                

Preview

ANDREW L. PACKARD (State Bar No. 168690) 1 WILLIAM N. CARLON (State Bar No. 305739) LAW OFFICES OF ANDREW L. PACKARD 2 245 Kentucky Street, Suite B3 Petaluma, CA 94952 12/10/2020 3 Tel: (707) 782-4060 Fax: (707) 782-4062 4 andrew@packardlawoffices.com wncarlon@packardlawoffices.com 5 Attorneys for Plaintiff 6 CALIFORNIA OPEN LANDS 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF BUTTE 9 CALIFORNIA OPEN LANDS, a non-profit ) Case No. 20CV01220 10 land trust organization, ) ) PLAINTIFF’S MEMORANDUM OF POINTS 11 ) AND AUTHORITIES IN SUPPORT OF Plaintiff, ) GENERAL DEMURRER TO DEFENDANT’S 12 ) CROSS COMPLAINT; CCP § 1061 v. ) 13 ) Date: January 20, 2021 BUTTE COUNTY DEPARTMENT OF ) Time: 9:00 AM 14 PUBLIC WORKS, a political subdivision of the ) Location: Dept. 10 State of California, ) 15 ) Hon. Robert A. Glusman Defendant. ) 16 17 I. INTRODUCTION 18 On November 5, 2020, Defendant Butte County Department of Public Works (“County”) filed a 19 Cross Complaint for Declaratory Relief (“Cross Complaint”) asking the Court to make certain 20 declarations about the scope and character of the preserve created by the conservation easement 21 (“Easement”) that is at the heart of Plaintiff California Open Lands’ (“COL”) Second Amended 22 Complaint for Declaratory and Injunctive Relief (“Second Amended Complaint”). The County’s Cross 23 Complaint is entirely unnecessary because it fails to raise any claims that would not be resolved in the 24 Court’s adjudication of COL’s Second Amended Complaint. For the reasons set forth below, the Court 25 should decline to exercise its power to grant declaratory relief pursuant to California Code of Civil 26 Procedure section 1061 and sustain this general demurrer without leave to amend. 27 // 28 // Plaintiff’s MPA ISO 1 Case No. 20CV01220 Demurrer to Cross Complaint 30 1 II. The County’s Cross Complaint is subject to general demurrer because a declaratory 2 judgment is not necessary or proper in this action. 3 “The court may refuse to exercise the power granted by [Chapter 8] in any case where its 4 declaration or determination is not necessary or proper at the time under all the circumstances.” (Cal. 5 Civ. Proc. § 1061.) “Where facts appear from the face of the complaint which would justify a trial court 6 in concluding that its determination is not necessary or proper, it has been held that the court may 7 sustain a general demurrer to the complaint for declaratory relief.” (Simpson v. Security First Nat'l 8 Bank (1945) 71 Cal.App.2d 154, 158.) 9 Declaratory relief is a discretionary remedy and it “may be withheld if existing forms of action 10 are reasonably adequate.” (Sunset Scavenger Corp. v. Oddou (1936) 11 Cal.App.2d 92, 96.) It is 11 generally limited to circumstances where other forms of relief are inadequate to render justice, and may 12 be denied in the discretion of the court where the request for such relief is not necessary and proper. 13 Where a defendant in a pending action attempts to cast itself as a plaintiff by requesting a declaratory 14 judgment regarding one of its defenses, courts have remarked that such requests for relief are 15 unnecessary, improper and should be denied. (Id. (“A declaratory judgment is not a proper mode of 16 determining the sufficiency of legal defenses to a pending action.”); Hannon v. W. Title Ins. Co., (1989) 17 211 Cal. App. 3d 1122, 1128-1129 (“[A]n action for declaratory relief will not lie where the relief 18 sought anticipates an issue which could be determined in the main action. ‘The object of the statute 19 [Code Civ. Proc., § 1060] is to afford a new form of relief where needed and not to furnish a litigant 20 with a second cause of action for the determination of identical issues.’”) (internal citation omitted).) 21 Here, the County’s Cross Complaint does not state a new or independent claim in this action. Instead, 22 the County has simply plead a defense to the underlying action as a duplicative, unnecessary and 23 improper invocation of the declaratory relief provisions of the Code of Civil Procedure. 24 a. Summary of relevant facts. 25 COL’s Second Amended Complaint asks the Court for declaratory and injunctive relief and 26 alleges that certain activities committed by the County are violations and breaches of the Easement. In 27 its pleading, COL alleges that “[t]he Easement protects approximately six acres of land, as delineated by 28 the legal description attached to the Easement as Exhibit A.” (Second Amended Complaint, at 3:19-20.) Plaintiff’s MPA ISO 2 Case No. 20CV01220 Demurrer to Cross Complaint 30 1 The Second Amended Complaint defines this protected area of land as the “Preserve,” using the same 2 definition as provided in the legal description attached to the Easement. (Id.; id. at 1:20). COL further 3 alleges that the Preserve contains “3.00 acres of created, avoided, and preserved waters of the United 4 States.” (Id. at 3:8-9, 3:21-22.) The remaining acreage of the Preserve, COL alleges, is protected as the 5 buffer required by the Easement and Army Corps permitting. 6 The Easement prohibits certain activities within the Preserve and COL alleges, in part, that the 7 County’s “[d]isposal and storage of soil within the Preserve violates the Easement’s prohibition on 8 ‘stor[ing] or plac[ing] (whether temporarily or permanently)’ any ‘material or debris’ within the 9 Preserve,” (id. at 10:24-27); that “[t]he excavation and removal of soil from the Preserve violates the 10 Easement’s prohibition on ‘[e]xcavating, dredging, or removing loam, gravel, soil, rock, sand, or other 11 material’ from the Preserve,” (id. at 10:28-11:2); that “[t]he operation of motorized vehicles within the 12 Preserve violates the Easement’s prohibition on riding, bringing, using or permitting such vehicles ‘on 13 any portion of the Preserve, except as provided for in the Plan or with prior written approval by the 14 Corps,’” (id. at 11:3-7); and, that “[t]he destruction of cottonwoods and other trees and vegetation by 15 heavy equipment, and by the discharge of leachate, in the Preserve violates the Easement’s prohibition 16 on the ‘destruction or removal of any natural tree, shrub or other vegetation, that exists upon the 17 Preserve,’” (id. at 11:8-10). Each allegation is bounded by the scope of the Preserve. That is, the 18 activities must have been conducted within the Preserve in order for a violation to have occurred. In 19 order to determine whether a violation occurred, the court will necessarily need to determine the scope 20 of the Preserve. 21 b. The County’s Cross Complaint is more appropriately pled as a defense to the 22 Second Amended Complaint. 23 The County’s Cross Complaint alleges a defense to the allegations highlighted above – that the 24 activities did not violate the Easement because they occurred in an area where such activities were not 25 prohibited. The County alleges that the Preserve is a subset of the approximately six acres identified in 26 the legal description of the Easement, and that within that subset is an undefined area of wetlands1 and 27 1 The underlying Army Corps of Engineers’ Permit required the County to “establish and maintain a preserve containing 3.00 acres of created, avoided, and preserved waters of the United States.” 28 (Permit No. 200300113, Special Condition 2, (emphasis added).) The term “wetlands” is used herein as Plaintiff’s MPA ISO 3 Case No. 20CV01220 Demurrer to Cross Complaint 30 1 an undefined area comprising a “Stormwater Detention Basin.” (Cross Complaint at 3:1-14.) The 2 County’s defense is that the activities alleged in the Second Amended Complaint (with the exception of 3 the discharge of leachate) are “maintenance activities” and are allowed in the areas of the Preserve that 4 are not wetlands. (Id. at 3:15-17.) This is not a new claim for relief, but merely a request to determine 5 the sufficiency of one of the County’s legal defenses, and declaratory judgment is not the appropriate 6 mode to make such an evaluation. (Sunset Scavenger Corp. v. Oddou, (1936) 11 Cal. App. 2d 92, 96.) 7 c. The Cross Complaint fails to raise any new issues and serves only to provide the 8 County with a second cause of action to litigate identical issues already raised in 9 Plaintiff’s complaint. 10 The Second Amended Complaint asks the Court to determine that certain activities are unlawful. 11 The allegations are limited to activities within the Preserve. That is, the activities must have been 12 conducted within the Preserve in order for a violation to have occurred. The Court will necessarily need 13 to determine the geographic and legal scope of the Preserve to determine whether any given action was a 14 violation of the Easement. The Court will need to identify which activities are prohibited by the 15 Easement and where those prohibitions apply. The adjudication of this issue will obviate any need for 16 the Court to address the Cross Complaint because if every question that is raised in the Cross Complaint 17 will be addressed by the adjudication of the Second Amended Complaint, the Cross Complaint is 18 redundant. The County’s request for declaratory relief merely anticipates an issue that will need to be 19 resolved in COL’s action; as such, the request is unnecessary and improper. (Hannon v. W. Title Ins. 20 Co., (1989) 211 Cal. App. 3d 1122, 1128-1129.) 21 III. CONCLUSION 22 “The purpose of a declaratory judgment is to “serve some practical end in quieting or stabilizing 23 an uncertain or disputed jural relation.” (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 729.) 24 Here, there is no practical purpose to be served by spending the parties’ and the Court’s time and 25 resources pursuing a request for declaratory judgment over issues that are identical to those that will 26 need to be resolved in COL’s underlying action. The County’s Cross Complaint will unnecessarily 27 shorthand to refer to the water features protected by the Easement and required by the Army Corps’ 28 Permit, and includes “waters of the United States.” Plaintiff’s MPA ISO 4 Case No. 20CV01220 Demurrer to Cross Complaint 30 1 complicate these proceeding and is not “necessary or proper” under Cal. Code of Civil Procedure § 1061 2 because it merely raises a defense to COL’s action, and because it fails to raise any new issue that is not 3 already going to be addressed in the adjudication of the Second Amend Complaint. The Court should 4 decline to exercise its power of declaratory relief and sustain this demurrer without leave to amend. 5 6 Dated: December 10, 2020 Respectfully Submitted, 7 LAW OFFICES OF ANDREW L. PACKARD 8 By: /s/ William N. Carlon William N. Carlon 9 Attorney for Plaintiff CALIFORNIA OPEN LANDS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s MPA ISO 5 Case No. 20CV01220 Demurrer to Cross Complaint 30