Opinion
C077559
06-15-2018
JEAN LEE CHOO LEOW, Plaintiff and Appellant, v. GEORGETOWN DIVIDE PUBLIC UTILITY DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PC20100019)
Plaintiff Jean Lee Choo Leow appeals from a judgment in favor of defendant Georgetown Divide Public Utility District (Georgetown) on her complaint in inverse condemnation, trespass, and damage to trees. Georgetown has owned and operated a visible water pipeline and appurtenances on Leow's property since the 1940's, long before Leow purchased the property in 1980. Georgetown determined the pipeline and appurtenances needed to be replaced to avoid a failure of the system, and replaced the old above-ground pipeline with a buried pipeline. Leow brought this action, alleging inverse condemnation, trespass, and damage to trees, and Georgetown responded that it was not liable in inverse condemnation because it had a prescriptive easement across Leow's property.
The trial court agreed that Georgetown had no liability in inverse condemnation, but because the trial court did not find Georgetown had established the required hostile use for a prescriptive easement, found instead that Georgetown had an irrevocable license. The trial court further found that Leow could not pursue her causes of action for trespass and damage to trees against Georgetown because she had not complied with the Government Claims Act. (Gov. Code, §§ 810 et seq.)
Leow argues that notwithstanding the trial court's finding of an irrevocable license, the construction of the new pipeline constituted a taking of her property for which Georgetown is required to pay just compensation. She further argues that if Georgetown had an irrevocable license, it was lost through nonuse, and that she was entitled to a jury trial on the issue of whether Georgetown had an irrevocable license.
As to Leow's trespass and damage to trees causes of action, Leow claims she was not required to comply with the Government Claims Act, or if she was so required, she substantially complied with the Act.
We shall affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Since 1980, Leow has been the owner of a 20-acre undeveloped parcel of land in El Dorado County. At the time Leow purchased the property, a water conveyance system owned by Georgetown and known as the Kaiser Siphon (Siphon) was visible on the property. The Siphon conveys raw water to the Auburn Lake Trails water treatment plant and to raw water customers for irrigation use. Leow's property was traversed by a water pipeline, approximately 70 percent of which was above ground, and 30 percent of which was buried with approximately an inch of cover. There was also a standpipe located on the property.
Henry White, Georgetown's general manager, estimated the Siphon was installed in the 1940's. There are no existing records that document the installation of the Siphon, but there are records indicating the Siphon was in place prior to 1946, when Georgetown was formed. There is no recorded easement for the pipeline and standpipe.
In 1985, Leow leased the property to Jeff Wadsworth for the purpose of operating a Christmas tree farm. At that time Leow installed an irrigation pump, and began pumping water from the Siphon. The Wadsworth lease was terminated in 1992. By the time the new pipe was installed in 2006, Leow had not pumped any water from the Siphon for at least 10 years, thus, pursuant to a Georgetown ordinance, the service to Leow's property was not reconnected when the new Siphon was installed.
The old Siphon was a 22-inch, thin-walled pipe that would be considered substandard today. Georgetown had "a few failures" in 2005 and 2006, prompting a determination that the entire pipeline and appurtenances needed to be replaced. Georgetown hired KASL Consulting Engineers (KASL), a codefendant, to produce plans for replacing the Siphon.
Because there was no recorded easement over Leow's property, Georgetown's general counsel, William Wright, concluded that Georgetown had a prescriptive easement across the property. Wright's opinion was that the width of the prescriptive easement would be an engineering determination--i.e., the width needed to repair and replace the pipe. KASL's engineer, Jack Scroggs, determined that a 20-foot easement was necessary to construct the replacement pipeline.
Georgetown entered into a construction contract with T&S Construction Company (T&S), the other codefendant, to replace the pipeline. The construction of the replacement Siphon occurred in 2006 and took approximately three months to complete. T&S staked and cleared a 20-foot wide strip prior to the construction. The new pipeline was 24 inches in diameter. The 22-inch diameter pipe that the old pipeline was made of was no longer available. The new pipe was installed at an underground depth of six to seven feet. The center line of the new pipeline was installed seven feet away from the center line of the old pipeline, making the physical distance between the pipes five feet. The new pipeline could not be placed along the exact line of the old pipe because the old pipeline had to stay in service while the new one was constructed. The new air-release valve, which is above ground, was installed 17 feet at the farthest edge from the center of the old pipeline. The pipe installation could not have been accomplished in an area less than 20 feet wide. Georgetown requested permission to remove the old pipeline after the new one was installed. As of this action, no permission to remove the old pipeline had been given.
Leow filed a complaint against Georgetown for inverse condemnation, trespass, and damage to trees. T&S and KASL were named defendants in the trespass and damage to trees causes of action. The parties stipulated to a bifurcation of the issue of liability on the inverse condemnation cause of action from the issue of damage on that cause of action, with Leow retaining her right to proceed on the other two causes of action. They agreed that the court would try the issue of liability for inverse condemnation, and the jury would try the issue of damages, if any.
At the conclusion of Georgetown's case in chief, Leow moved for judgment pursuant to Code of Civil Procedure section 631.8, subdivision (a). She argued that Georgetown had an irrevocable license because the pipeline was constructed with the prior owner's consent. She argued that the license was irrevocable only for the life of the original pipeline.
Further statutory references to sections of an undesignated code are to the Code of Civil Procedure.
In her posttrial brief on the inverse condemnation cause of action, Leow argued Georgetown had no prescriptive easement because its use of the property was not hostile. Georgetown argued it had a prescriptive easement, but even if the element of hostile use was absent, it had an irrevocable license that was the equivalent of an easement.
Leow repeatedly claims that her predecessor had an oral agreement with Georgetown for the installation of the original Siphon. Georgetown objects that these statements are not supported by her citations to the record as required by California Rules of Court, rule 8.204(a)(1)(C), and requests that we strike the portions of the appellant's brief that make such assertions. We decline to strike portions of appellant's brief, but be assured that we ignore assertions in the briefs that are not supported by accurate citations to the record. (See Metis Development LLC v. Bohacek (2011) 200 Cal.App.4th 679, 683, fn. 1.)
Following trial on the inverse condemnation cause of action, the trial court ruled in favor of Georgetown, finding it had an irrevocable license that allowed it to replace the pipeline. Leow moved for a new trial, which was denied.
Georgetown, KASL, and T&S filed a motion for summary adjudication on the trespass and damage to trees causes of action. The trial court granted Georgetown's motion for summary adjudication, but denied the motions of KASL and T&S. Judgment was entered in favor of Georgetown.
DISCUSSION
I
There Was No Taking
Leow argues that it was undisputed that Georgetown permanently took and damaged her property, thus as a matter of law the trial court erred in finding Georgetown was not liable in inverse condemnation. We disagree.
An inverse condemnation action rests "on the constitutional requirement that the government must provide just compensation to a property owner when it takes his or her private property for a public use." (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902.) In an inverse condemnation action, the plaintiff must first establish that the public entity has taken her property before she can reach the issue of just compensation. (Id. at p. 903.) "To state a cause of action for inverse condemnation, the property owner must show there was an invasion or appropriation (a 'taking' or 'damaging') of some valuable property right which the property owner possesses by a public entity and the invasion or appropriation directly and specially affected the property owner to his injury." (Ibid.)
Of course, if a public entity, in this case Georgetown, owns an interest in the plaintiff's property, and that interest is consistent with the use to which the plaintiff's inverse condemnation claim objects, there can be no taking of the property because there is no invasion or appropriation of a valuable property right held exclusively by the plaintiff. This is why Georgetown defended the action by claiming first that it owned a prescriptive easement across the property, and later that it had an irrevocable license for the operation, maintenance, repair, and replacement of the pipeline on the property.
If there is substantial evidence to support the trial court's finding that Georgetown had an irrevocable license in the property, the usual rule of conflicting evidence is applied, and we give full effect to Georgetown's evidence, however slight, and disregard Leow's evidence, however strong. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 708.) We conclude below that there was sufficient evidence presented that Leow did not own an exclusive interest in the property, rather the property was burdened by Georgetown's irrevocable license for the purpose of operating, maintaining, and replacing a water pipeline and appurtenances.
Simply put, there was no taking or damaging of a valuable property right that Leow possessed because she did not have the right to exclude Georgetown from the property, since Georgetown, too, had property rights based on its operation of the Siphon on the property since the 1940's. The evidence supporting the judgment included the facts that the pipeline and appurtenances had been on the property since the 1940's, the Siphon was visible, the Siphon was in use, and Leow knew of its existence when she purchased the property. We shall conclude the trial court correctly found that Georgetown held an interest in Leow's property, and that the interest had not been lost through nonuse.
A. Georgetown's License
Leow's complaint alleged Georgetown claimed a prescriptive easement over her property, but that the easement terminated when she grew trees around the pipeline to preclude Georgetown from driving on the property to maintain the pipeline for a period of more than five years. Georgetown answered with a general denial, and included as a separate defense that it had acquired an interest in the property by prescription.
The elements necessary for prescriptive easement are use for a five-year period that is: (1) open and notorious, (2) continuous and uninterrupted, (3) hostile to the owner, and (4) under a claim of right. (Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045.) The element on which this case turned was whether the use was hostile. The trial court found that the use was not hostile because the pipeline was beneficial to the property owners along the pipeline route. The trial court found: "The specific evidence that did come in on this issue, both from Plaintiff and Defendant, mutually established that the Kaiser Siphon, rather than diverting water away from the subject property . . . actually provided additional water to that, and other burdened properties, which, according to all of the relevant testimony, was available for use by all of the land owners over whose property the Siphon ran. [¶] It therefore appears that there is substantial evidence that rather than being hostile, . . . [Georgetown]'s use of the subject property in the present case was actually beneficial to the various property owners along the Kaiser Siphon, including Plaintiff." The court inferred from this that Georgetown's use was not hostile.
Having concluded there was no prescriptive easement because of the absence of hostile use, the trial court proceeded to analyze the facts under the law of licenses to conclude that Georgetown owned an irrevocable license over Leow's property. Leow had argued at trial that Georgetown held a revocable license that had been revoked when she planted trees blocking vehicular access to the area. The trial court disagreed, finding the license was irrevocable.
According to the trial court, Leow's position was that Georgetown had a revocable license. According to Leow's posttrial brief, her position was that Georgetown had an irrevocable license that lasted only for the life of the pipeline.
"[A] license is a personal, revocable and unassignable privilege conferred either by writing or parol to do one or more acts on the land without possessing any interest therein." (Belmont County Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 17.) However, " '[u]nder certain circumstances a license which is ordinarily revocable at will may become irrevocable by the licensor, when the licensee, acting in good faith under the terms of the instrument, constructs valuable improvements on the property . . . .' " (Ibid., italics omitted.)
"[W]here a licensee has entered under a parol license and has expended money, or it is equivalent in labor, in the execution of the license, the license becomes irrevocable, the licensee will have a right of entry upon the lands of the licensor for the purpose of maintaining his structures, or, in general, his rights under his license, and the license will continue for so long a time as the nature of it calls for." (Stoner v. Zucker (1906) 148 Cal. 516, 520.) Thus, accepting the trial court's conclusion that Georgetown's use of the property was not hostile, such use was as a licensee, as conceded by Leow. Georgetown obviously spent money in execution of the license when it constructed and installed the Siphon. Having done so, the license became irrevocable. In a case such as this water pipeline, an irrevocable license is in all essentials, an easement. (Ibid. ["In the case of irrigating ditches, drains, and the like, the license becomes in all essentials an easement, continuing for such length of time under the indicated conditions as the use itself may continue."]) "An irrevocable license, such as the one the court found here, is for all intents and purposes the equivalent of an easement." (Barnes v. Hussa (2006) 136 Cal.App.4th 1358, 1370.)
Since an irrevocable license is treated like an easement, we may look to the law of easements to determine whether the construction of a new pipeline was within Georgetown's right as an owner of a nonpossessory interest in the property. It is a "well recognized rule that an express or implied grant of an easement carries with it certain secondary easements essential to its enjoyment, such as the right to make repairs, renewals, and replacements. Such incidental easements may be exercised so long as the owner thereof uses reasonable care and does not increase the burden on or go beyond the boundaries of the servient tenement, or make any material changes therein. In such cases it has been recognized that an insubstantial change in the location of the means of diversion will not destroy the easement." (Ward v. Monrovia (1940) 16 Cal.2d 815, 821-822.)
Georgetown presented evidence that it was necessary to replace the old Siphon, and that replacement could not be accomplished in less than a 20-foot wide right-of-way. This evidence sufficiently supported the trial court's finding that replacement of the Siphon was within Georgetown's rights under an irrevocable license that was in all essentials, an easement, even though the new pipeline was located five feet from the old pipeline.
Leow argues Georgetown did not prove an irrevocable license because it did not prove she consented to the construction of the replacement pipeline. Her consent was not necessary. The license was consented to by Leow's predecessor, and became irrevocable when the pipeline was originally built. As indicated, an irrevocable license is for all intents and purposes an easement, carrying with it the right to repair and replace the Siphon. (Barnes v. Hussa, supra, 136 Cal.App.4th at p. 1370; Ward v. Monrovia, supra, 16 Cal.2d at pp. 821-822.) Thus, Leow's consent was unnecessary.
Leow also argues that the law regarding irrevocable licenses does not apply when the party expending the money is a public entity. However, Leow gives no satisfactory reason for treating public entities differently, other than arguing the two are not comparable. We see no reason to treat a public entity differently from a private party under the circumstances. If a landowner agrees to allow a public entity to use the landowner's private property in exchange for improvements on the property that benefit the landowner as well as the public at large, there is no reason to conclude an irrevocable license does not result.
Leow claims the irrevocable license does not last forever, and that the license across her property ended when the original pipeline had to be replaced. On the contrary, an irrevocable license operates as an easement "continuing for such length of time under the indicated conditions as the use itself may continue." (Stoner v. Zucker, supra, 148 Cal. at p. 520.) Georgetown was still using the Siphon when it had to be replaced, thus the contemplated use was and is continuing. Leow would have the court set an artificial deadline for the termination of the license that is not related to its use.
Leow also argues that the trial court could not find Georgetown had an irrevocable license because Georgetown did not plead an irrevocable license as an affirmative defense in its answer. Not so.
The facts Leow pleaded in her complaint were that Georgetown had no recorded easement, that she believed Georgetown claimed a prescriptive easement, and that she had planted trees near, on, and above the pipeline so as to preclude Georgetown from driving on the property. Leow's complaint asserted a cause of action for inverse condemnation based on her claim that Georgetown took and damaged her property without compensation. Georgetown answered with a general denial, and an assertion of several defenses, including a claim that the action was barred by Georgetown's acquisition of an interest in the subject property by adverse possession and/or prescription. Georgetown did not assert as a separate defense that it had an irrevocable license.
At the close of Georgetown's evidence, Leow made a motion for judgment pursuant to section 631.8, subdivision (a). In that motion, she argued that the evidence did not establish the element of hostile use. In response to this argument, Georgetown argued that even if there were no prescriptive easement, there was an irrevocable license, which amounted to the same thing. The trial court took the motion under submission, and continued with the trial. The court ordered the parties to submit posttrial briefs.
In her posttrial brief, Leow again argued that Georgetown had not presented evidence that its use of her property was hostile. Georgetown argued in its posttrial brief that it had a prescriptive easement, but that assuming for the sake of argument it had a license, that license was irrevocable.
The trial court found no prescriptive easement had been created because Georgetown had not proven its use of the property was hostile. It stated:
"Precious little reliable evidence was provided by [Georgetown] to establish the existence of any prescriptive right of the District to the subject strip of land besides the general 'oral history' of the District. The specific evidence that did come in on this issue, both from Plaintiff and Defendant, mutually established that the Kaiser Siphon, rather than diverting water away from the subject property, actually provided additional water to that, and other burdened properties, which, according to all of the relevant testimony, was available for use by all of the land owners over whose property the Siphon ran.
"It therefore appears that there is substantial evidence that rather than being hostile, . . . [Georgetown]'s use of the subject property in the present case was actually beneficial to the various property owners along the Kaiser Siphon, including Plaintiff. . . . Thus, it appears that [Georgetown] has failed to establish its traditional adverse possession/prescriptive easement claim."
However, this did not end the trial court's analysis. The trial court agreed with what it called Georgetown's "fall-back position," that it had established a quasi-easement in the form of an irrevocable license. In response to Leow's argument that Georgetown had waived the contention that it had an irrevocable license by failing to assert it as a defense, the trial court stated that Georgetown had argued at trial that it had at least an irrevocable license. The court stated it would allow amendment of Georgetown's answer to conform to proof.
The theory of pleading under California law is fact pleading, not issue pleading. (California Trout, Inc. v. Superior Court (1990) 218 Cal.App.3d 187, 204.) The complaint is the measure of the material facts in a case, and a general denial puts at issue the material allegations of the complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-383.) By contrast, a party must raise as an affirmative defense only such matter that is not responsive to the essential allegations of the complaint. (Advantec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.) Leow's cause of action for inverse condemnation put at issue the question whether Leow possessed a property right that Georgetown invaded or appropriated. (See Beaty v. Imperial Irrigation Dist., supra, 186 Cal.App.3d at p. 903.) Georgetown's general denial made material those facts indicating Leow did not possess the right to exclude Georgetown from her property because it claimed a concurrent right to occupy the property with its pipeline. Both of Georgetown's theories--prescriptive easement and irrevocable license-- were consistent with its general denial, and thus responsive to the essential allegations of the complaint.
Georgetown argues that it established it had a prescriptive easement, rather than an irrevocable license, because its continuous use of the property without the servient owner's interference is presumptive evidence of hostile use. Georgetown did not file a cross-appeal. Although we may consider this argument because it involves determining whether the judgment should be affirmed on a legal theory other than the one relied on by the superior court, we will not. (Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1483, fn. 6.) " 'The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety. No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)" (Estate of Rossi (2006) 138 Cal.App.4th 1325, 1334-1335.)
Furthermore, " '[n]o error or defect in a pleading is to be regarded unless it affects substantial rights.' [Citations.] The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. This principle is consistent with the rule that leave to amend a pleading should be liberally granted as long as there is no timeliness problem under a statute of limitations or prejudice to the opposing party." (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) Georgetown's theory of irrevocable license did not require more or different evidence. It was merely a theory to be asserted based on the evidence presented at trial. Leow had notice before filing her posttrial brief that Georgetown was asserting an alternate theory of irrevocable license in the event the trial court did not find the facts proved it owned a prescriptive easement. Leow's substantial rights were not affected by the argument, and the trial court did not err in deeming the answer amended to conform to proof.
B. Georgetown Did Not Lose Its Irrevocable License Through Nonuse
Leow argues that if Georgetown had a license or prescriptive easement across her property, it was lost or revoked when she planted trees around the pipeline, preventing vehicular access to the pipeline in the 1980's. The trial court found that the license for the original Siphon became irrevocable long prior to Leow's purchase of the property. Thus, the court found, "[t]he alleged mid-1980's efforts of Plaintiff to deny Defendant access to the property for a period of five (5) years were . . . to no avail, as the license by that time had already become irrevocable."
Assuming, without deciding, that an irrevocable license can be lost through nonuse, the evidence of Leow's trees on the license area was insufficient to demonstrate nonuse. Georgetown presented evidence it had continuously used the Siphon through the alleged period of nonuse in the 1980's, and in fact the new Siphon was constructed in order to avoid a catastrophic failure of the old pipeline. Thus, the irrevocable license was not lost through nonuse.
II
Leow Waived Jury Trial
Leow argues she was denied her constitutional right to a jury trial. She was not.
In an inverse condemnation action, the parties have no constitutional right to a jury trial on the issue of liability. (Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124, 1141.) The right to a jury trial is solely on the issue of compensation. (Ibid.) The issue of liability, i.e., whether a taking has occurred, is a nonjury question, even if factual questions are involved. (Id. at p. 1140.)
Moreover, here the parties agreed that the issue of liability for inverse condemnation would be tried to the court, and if the court found liability, the issue of damages would be tried to a jury. Leow claims that the issue of a prescriptive easement must be tried to a jury. However, Georgetown's claim of prescriptive easement or irrevocable license was the theory by which it defended itself from the inverse condemnation action. Georgetown's claims of prescriptive easement and irrevocable license were relevant to its position that it had no liability in inverse condemnation, a position Leow was apprised of by Georgetown's responsive pleading. Thus, whatever right Leow had to a jury trial was waived by her agreement to try the issue of liability in inverse condemnation to the court. Since the court found no liability, there was no jury trial on the issue of damages.
III
Motions
Leow argues the court erred in denying two of her motions, and in granting Georgetown's summary judgment motion. We disagree.
A. Section 631.8, Subdivision (a) Motion
Leow brought a motion for judgment after the presentation of Georgetown's evidence, and the trial court took the motion under submission. The court never specifically denied the motion, but there is an implied denial in the court's judgment in favor of Georgetown. Leow now argues the trial court abused its discretion in denying the motion. She argues the trial court should have granted her motion because she proved all of the elements she was required to prove for inverse condemnation. The motion was properly denied for the same reasons we conclude the trial court did not err in finding no inverse condemnation, i.e., because Georgetown had the right pursuant to its irrevocable license to enter Leow's property and replace its pipeline. Because Georgetown held a nonpossessory interest over a portion of Leow's property, there was no inverse condemnation.
B. New Trial Motion
Leow brought a motion for new trial, claiming pursuant to section 657: (1) the trial court's amendment of Georgetown's answer to conform to proof that it had an irrevocable license was an "irregularity in the proceedings" preventing her from having a fair trial; (2) there was an error in law because she did not have a jury trial on the issue of Georgetown's irrevocable license; (3) there was an order of the court or abuse of discretion preventing her from having a fair trial because the trial court refused the expert testimony of her expert, a real estate attorney who was asked to give his opinion on whether Georgetown had a prescriptive easement; (4) there was a surprise that materially affected her substantial rights when the trial court amended the answer to add an irrevocable easement as an affirmative defense to inverse condemnation; and (5) there was an error in law.
Leow now argues that the trial court abused its discretion in denying her motion, and that "[t]he best evidence that the court's denial of Leow's right to a new trial on the issue of [Georgetown's] purported 'irrevocable easement' is the judgment denying the motion for summary adjudication of Leow's Second and Third Causes of Action for trespass and damage to trees as to KASL and T&S." Leow argues that the denial of KASL and T&S's summary adjudication motion "is entirely irreconcilable with the finding that [Georgetown] had an 'irrevocable license' in Leow's property."
As a matter of background, after the trial court found in Georgetown's favor on the issue of inverse condemnation, the three defendants moved for summary adjudication of the second and third causes of action for trespass and damage to property, respectively. The trial court granted the motion as to Georgetown, finding Leow had not complied with the Government Claims Act. The trial court denied the motion as to KASL and T&S because it found that even though Georgetown had the right to use the land to replace the pipeline, the defendants could have abused the privilege, and thereby become trespassers. In fact, there was evidence that due to an accident during construction an area of approximately 50 feet wide had to be used to effect the repair of the old pipeline. There was also evidence T&S employees gave some of the wood that was cut down to Leow's neighbor.
We see no inconsistency between the trial court's finding that Georgetown was not liable for inverse condemnation of Leow's property because it had an interest (irrevocable license) in the property, and its determination that defendants KASL and T&S could nevertheless be liable for trespass and/or damage to property for any actions that were inconsistent with Georgetown's irrevocable license. The trial court did not abuse its discretion.
C. Georgetown's Summary Adjudication Motion
Leow argues the trial court erred in granting Georgetown's summary adjudication motion on the ground she failed to comply with the Government Claims Act because she was not required to comply with the Act, or in the alternative, she substantially complied with the Act. There was no error.
"In actions for damages against local public entities, the claims statutes require timely filing of a proper claim as condition precedent to the maintenance of the action. [Citations.] Compliance with the claims statutes is mandatory [citation]; and failure to file a claim is fatal to the cause of action." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.)
Leow's argument that she was not required to comply with the Government Claims Act is based on Government Code section 905.1, which states: "No claim is required to be filed to maintain an action against a public entity for taking of, or damage to, private property pursuant to Section 19 of Article I of the California Constitution." This section is why Leow did not have to comply with the Government Claims Act before filing an action in inverse condemnation. However, it has no application to her other causes of action. She was required to comply with the Government Claims Act before seeking damages for trespass and damage to trees.
Leow argues she was not required to comply with the Government Claims Act because her trespass and damage to trees causes of action were inextricably related to her inverse condemnation claim. In support of her argument she cites Long v. City of Los Angeles (1998) 68 Cal.App.4th 782, 786, Holt v. Kelly (1978) 20 Cal.3d 560, and Minsky v. City of Los Angeles (1974) 11 Cal.3d 113. These cases do not support her argument. The rationale of these cases is that "a claim for specific property effectively held by the government as a 'bailee' for the claimant is not one for 'money or damages' under the Government Claims Act." (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 743.) The exemption from the Government Claims Act set forth in the cases cited by Leow applies only to "situations in which the defendant had a duty to return seized property, enforceable by way of mandamus." (City of Stockton, at p. 743.) The cases do not support Leow's theory that no claim must be filed under the Government Claims Act if the cause of action to which the claim is directed is inextricably related to an inverse condemnation cause of action.
Leow claims she substantially complied with the Government Claims Act when her attorney wrote to Georgetown's attorney objecting to the work on the property. To respond to her claim, we first examine the requirements for actual compliance. Government Code section 915 requires a claimant to present a claim to a local public entity by either delivering it to the clerk, secretary or auditor, or by mailing it to the clerk, secretary, auditor, or to the governing body at its principal office. A claim must contain the following: (1) the name and address of the claimant; (2) the address to which notices will be sent; (3) the date, place and other circumstances of the event giving rise to the claim; (4) a description of the injury, damage, or loss incurred; (5) the name or names of the public employee(s) causing the damage; and (6) the amount claimed, if it totals less than $10,000. (Gov. Code, § 910.)
Leow's claim of substantial compliance is based upon a letter her attorney wrote to Georgetown's attorney. In addition to the fact that the letter was not sent to the clerk, secretary, auditor, or governing body, it did not contain any of the information required, unless we consider the statement, "your client did not have the right to move the pipeline, destroy trees, install equipment, or create a twenty-foot wide road through the middle of the property," or the statement, "[t]rees which have been growing for more than five (5) years cannot be ripped up or mown down," to be a description of the damage.
Even if the letter itself substantially complied with the substantive claims requirements, its delivery to Georgetown's attorney would not constitute substantial compliance unless it was actually received by the clerk, secretary, auditor, or governing body. (Life v. County of Los Angeles (1991) 227 Cal.App.3d 894, 900.) There is no evidence of this in the record. Moreover, even though courts take "a liberal view of claims statutes where a reasonable attempt has been made to comply with the law in good faith," "substantial compliance cannot be predicated upon noncompliance." (Johnson v. Oakland (1961) 188 Cal.App.2d 181, 183.) The doctrine of substantial compliance applies only when "there is a defect in form but the statutory requirements have otherwise been met." (Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 733.) Leow's attorney's letter can be most accurately characterized as a cease and desist letter, not a claim under the Government Claims Act.
Nor does Georgetown's knowledge of the circumstances constitute substantial compliance. "It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel." (City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 455.)
The trial court correctly granted Georgetown's motion for summary adjudication on Leow's trespass and damage to trees claims.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Mauro, J.