civil tentative rulings

The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.

Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.

Timestamp: 10/03/2015 at 8:13pm

The Tentative Rulings for Monday, October 5, 2015 are

Re:           Mercury Casualty Company As Subrogee of Jack McCormick Trust v. City of Visalia

Case No: VCU 260717

Date:        October 5, 2015

Time:       8:30 A.M. 

Dept.:      1 - The Honorable Melinda Reed

Motions(1) Defendant City of Visalia’s General Demurrer and Special Demurrer for Uncertainty to the Second Cause of Action; and (2) Defendant City of Visalia’s Motion to Strike Out Pleadings in Part

Tentative Rulings:  (1) To Overrule Defendant City of Visalia’s General Demurrer and Special Demurrer for Uncertainty to the Second Cause of Action; and (2) To Deny Defendant City Visalia’s (City) Motion to Strike Out Pleadings in Part.

Defendant City of Visalia’s (City) request for judicial notice is granted.

Plaintiff Mercury Casualty Company’s (Mercury) complaint against City includes a cause of action for inverse condemnation for damage that a Valley Oak tree allegedly owned by City and located in its park caused when it fell on Mercury’s insured’s property. City’s demurrer contends that Mercury’s claim fails to state facts sufficient to constitute a cause of action and is uncertain; its motion to strike requests that attorney fees and costs associated with the inverse condemnation cause of action be stricken.

On demurrer the court must accept as true all facts in the plaintiff’s complaint that are properly pled and must assume that the plaintiff will be able to prove all of the facts alleged. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604 “[f]or the purposes of a demurrer, all allegations pled in the complaint must be taken as true”); Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal. App. 3d 951, 955.)

Furthermore, additional facts may be implied or inferred from those facts expressly pled in the complaint, and to the extent that there are factual issues in dispute, the court must assume the truth of not only all facts properly pled, but also those facts that may be implied or inferred from these expressly stated in the complaint. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc). (1998) 68 Cal. App. 4th 445, 459.)

A demurrer for uncertainty will be sustained if the defendant cannot reasonably respond; i.e., it cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. (Code Civ. Proc., § 430.10, subd. (f); Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.) At the very least, a pleading must "set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of [the] cause of action." (Harman v. City and County of San Francisco (1972) 7 Cal. 3d 150, 157.)

“To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff's property. [Citations.]” (Wildensten v. East Bay Regional Park Dist. (1991) 231 Cal. App. 3d 976, 979–980.) Further, under Customer Co. v. City of Sacramento (1995) 10 Cal. 4th 368, 415, a public improvement for the purposes of an inverse condemnation claim involves (1) a deliberate action by the state (2) taken in furtherance of public purpose. 

In Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal. 4th 507, 521-523, the California Supreme Court held that the planting of trees on public streets benefits the public and serves the public purpose of improving roads. And in City of Pasadena v. Superior Court (2014) 228 Cal. App. 4th 1228, 1234, the appellate court determined that evidence indicating a tree is part of a city’s forestry program is sufficient to show a deliberate governmental action serving a public purpose.

Here, Mercury’s complaint alleges the tree at issue was owned by City, located in a City park, and was part of the “Visalia Urban Forest” deliberately designed and constructed by City. (Complaint, at paragraph Nos. 8 and 30.) As such, Mercury has stated essential facts with sufficient particularity alleging the tree was part of a work of public improvement deliberately designed and constructed. 

Accordingly, the general and special demurrer to Mercury’s claim for inverse condemnation is overruled and the motion to strike damages associated with the claim is denied. City is directed to file an answer to the complaint within ten days’ notice of the court’s order.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.


This concludes the civil tentative rulings