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Shandell v. City of Compton

California Court of Appeals, Second District, Fifth Division
Jan 12, 2009
No. B205602 (Cal. Ct. App. Jan. 12, 2009)

Opinion


IRENE SHANDELL, Plaintiff and Appellant, v. CITY OF COMPTON, Defendant and Respondent. B205602 California Court of Appeal, Second District, Fifth Division January 12, 2009

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. TC020285 William P. Barry, Judge.

Leist Law Group, Jeffrey J. Leist and David A. Myers for Plaintiff and Appellant.

City Attorney’s Office, City of Compton, Legrand H. Glegg, Craig J. Cornwell, Edward M. Chavez and Anita O. Aviles for Defendant and Respondent.

KRIEGLER, J.

Plaintiff and appellant Irene Shandell filed a complaint against defendant and respondent City of Compton (the City) on September 5, 2006, alleging three causes of action for property damage caused by general negligence. The complaint alleged that Shandell bought her house in the City in 1985. The City had permitted development of the house in 1984-1985. In 1984, the City, or others working for the City, installed water mains, pipes, and sewers under Shandell’s home. In 2005, Shandell noticed damage to her home due to water from the water main or sewer pipe under her home. The home suffered damage to walls, the patio, a barbeque, the garage, and a bathroom.

Shandell alleged in the first cause of action that the City knew or should have known at the time it issued the building permit that the water main or sewer line was placed in an improper location too close to her home. In the second cause of action, she alleged the water main or sewer line was negligently installed and eventually ruptured. In the third cause of action, Shandell alleged the City negligently maintained, managed, controlled, and operated the water and sewer pipes.

The City filed an answer on January 12, 2007. The answer included a general denial and 31 affirmative defenses.

On October 11, 2007, the City filed a motion for judgment on the pleadings. The motion argued that the complaint failed to state a statutory cause of action as required for liability under Government Code section 815, subdivision (a). As a second ground, the motion argued the action was barred by the immunities in Government Code sections 818.4 and 818.6, as well as the statute of repose in Code of Civil Procedure section 337.15, subdivision (a). The City asked that the complaint be dismissed without leave to amend.

All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.

The motion for judgment on the pleadings was on calendar for hearing on November 9, 2007. Shandell filed no opposition to the motion, nor did she file a request for leave to amend the complaint. According to the judgment, counsel for the City and Shandell were present in court. The trial court granted the motion for judgment on the pleadings without leave to amend. Judgment was entered on November 26, 2007.

Following a substitution of attorneys by Shandell, she filed a timely notice of appeal.

On appeal, Shandell does not challenge the decision of the trial court granting judgment on the pleadings. She instead argues that she is entitled to raise grounds for the first time on appeal which support leave to amend the complaint. Shandell proposes to amend her complaint to allege viable causes of action for inverse condemnation and private nuisance based upon the same factual allegations contained in her original complaint.

The City responds that the trial court properly ruled on the complaint before it, alleging general negligence, and that Shandell makes no argument on appeal that the trial court erred in granting judgment on the pleadings. The City contends the trial court did not abuse its discretion in denying leave to amend, because no mention was made by Shandell of causes of action for inverse condemnation and private nuisance.

Under the compulsion of section 472c, subdivision (a) and case law interpreting that section, we reverse on the basis that Shandell is entitled to amend her complaint.

Standard of Review

A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action. (§ 438, subd. (c)(1)(B)(ii).) “A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same standard of review. All material facts which were properly pleaded are deemed true, but not contentions, deductions, or conclusions of fact or law. If leave to amend was not granted, we determine whether the complaint states a cause of action and whether the defect can reasonably be cured by amendment. If the pleading defect can be cured, the trial court committed reversible error. If not, we affirm. The plaintiff bears the burden of proof on this issue. Finally, the judgment will be affirmed if it is proper on any grounds raised in the motion even if the court did not rely on those grounds. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989.)” (Mack v. State Bar of California (2001) 92 Cal.App.4th 957, 961.)

The trial court may grant the motion for judgment on the pleadings with or without leave to amend. (§ 438, subd. (h)(1).) “‘The burden is on the plaintiff . . . to demonstrate the manner in which the complaint might be amended. [Citation.]’ (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 976.)

Section 472c provides in pertinent part: “(a) When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.” “A trial court’s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion ‘even though no request to amend [the] pleading was made.’ (Code Civ. Proc., § 472c, subd. (a).) While it is the plaintiff’s burden to show ‘that the trial court abused its discretion’ and ‘show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading’ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349), a plaintiff can make ‘such a showing . . . for the first time to the reviewing court’ (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711).” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 667-668.)

Leave to Amend

Shandell contends on appeal, for the first time, that she can amend her complaint to allege causes of action for inverse condemnation and private nuisance that were never mentioned in the trial court. Under the above cited authorities and, in particular, section 472c, subdivision (a), she is correct.

The City expresses understandable consternation at this result, since it had no opportunity to challenge this amendment in the trial court. The City’s position is not unsympathetic, considering that it filed a meritorious motion for judgment on the pleadings in the trial court, which Shandell never opposed, and Shandell never sought leave to amend below. Now faced with the expense of an appeal, the City will be forced to return to the trial court to defend against new allegations of liability.

The potential unfairness in this result was recognized, but accepted, in Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411, as follows: “We understand why the trial court acted as it did. We reiterate: Appellants did not ask the trial court for leave to amend. Generally, failure to raise an issue or argument in the trial court waives the point on appeal. For example, failure to object to evidence waives the objection. (Evid. Code, § 353, subd. (a).) Documents and facts not presented to the trial court generally cannot be considered on appeal. (Pulver v. Avco Financial Services (1986) 182Cal.App.3d 622, 632.) A persuasive argument can be made that a similar rule should govern where a party doesn’t ask the trial court for leave to amend. Trial judges aren’t usually expected to give the parties advice, or counsel them how to plead. A rule requiring a request to amend as a predicate for relief on appeal would conform to the sound general principle that matters not raised in the trial court are waived on appeal. However, the Legislature in . . . section 472c, subdivision (a) enacted the contrary rule, and we are bound by it.” (See Wilson v. Sharp (1954) 42 Cal.2d 675, 677 [“objection that a complaint does not state a cause of action is not waived by a failure to demur and may be raised at any time”].)

Section 472c, subdivision (a), is statutory authority permitting Shandell to suggest for the first time on appeal how she might effectively amend her complaint. She has done so with a proposed amendment based on the facts originally pled, alleging causes of action that are consistent with her original theory that the City was responsible for damage caused to her property as a result of a broken water main. Although the City strongly objects to the amendment, it makes no argument that Shandell cannot state causes of action for inverse condemnation and private nuisance based on the facts plead in the complaint. Under these circumstances, we are compelled to reverse, despite the unfairness to both the trial court and the City.

DISPOSITION

The judgment is reversed. Upon issuance of the remittitur, Shandell shall be permitted to file an amended complaint alleging causes of action for inverse condemnation and private nuisance. The parties are to bear their own costs on appeal.

We concur: TURNER, P. J., ARMSTRONG, J.


Summaries of

Shandell v. City of Compton

California Court of Appeals, Second District, Fifth Division
Jan 12, 2009
No. B205602 (Cal. Ct. App. Jan. 12, 2009)
Case details for

Shandell v. City of Compton

Case Details

Full title:IRENE SHANDELL, Plaintiff and Appellant, v. CITY OF COMPTON, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jan 12, 2009

Citations

No. B205602 (Cal. Ct. App. Jan. 12, 2009)