IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

Filed 1/4/23; Certified for Publication 1/26/23 (order attached)

SECOND APPELLATE DISTRICT

DIVISION SIX

VENTURA29 LLC,

Plaintiff and Appellant,

CITY OF SAN

BUENAVENTURA,

Defendant and Respondent.

2d Civ. No. B313060

(Super. Ct. No. 56-2020-

00539754-CU-EI-VTA)

(Ventura County)

Ventura29, LLC, appeals from the judgment of dismissal

entered after the trial court had sustained, without leave to

amend, a demurrer to its second amended complaint (complaint).

The demurrer was filed by respondent City of San Buenaventura

(City).

In 2015 appellant purchased property (the Property) on

East Thompson Boulevard in City. The complaint alleged that

appellant “is in the process of developing a multi-unit townhome

project” on the Property.

The complaint consists of four causes of action. The first

cause of action is for inverse condemnation. Appellant claims

City’s modification of an approved grading plan for the Property

“resulted in an unconstitutional taking for which [it] is entitled to

just compensation.” We conclude appellant forfeited its

objections to the modification because it failed to exhaust its

administrative remedies.

Appellant contends the complaint states causes of action for

private nuisance, trespass, and negligence based on City’s

dumping of uncertified fill on the Property in 1977. We conclude

these causes of action are barred by the statute of limitations.

Accordingly, we affirm the judgment of dismissal.

The Complaint

The complaint alleged: “In 2006 the prior owner of the

Property, V2V Ventures, Inc. (‘V2V’) received Tentative Tract

Map approval from the City to construct 29 townhouses on the

Property.” “V2V . . . retained a geotechnical engineering firm,

Earth Systems Pacific (‘Earth Systems’), to conduct soils test on

the Property . . . .” Appellant took title to the Property in 2015.

It “is currently in the process of developing a 29-unit townhouse

project . . . pursuant to the same City-approved Tentative Tract

Map that V2V obtained in 2006.”

In 2018 Earth Systems prepared a Geotechnical

Engineering Report for appellant. The report is attached as

Exhibit A to the complaint. The report noted that extensive

uncertified fill was encountered in test trenches excavated on the

Property.

City acknowledges that it approved a grading plan

submitted by appellant. The complaint alleged, “[T]he Grading

Plan states: ‘recommendations and conclusions of [Earth

Systems’ 2018 report], shall be thoroughly complied with. . . .

[T]he mentioned report . . . [is] hereby . . . made a part of this

grading plan.’”

As a condition of approving appellant’s project, City

required it “to construct a pedestrian-only walking path across

[an adjoining] City-owned property [(“the City Parcel” or “City’s

Parcel”)] in order to connect [appellant’s] property with a nearby

City park.” City acquired its parcel in 1967.

The complaint continued: “After commencing excavation for

the project, . . . [appellant] soon discovered . . . that significant

amounts of uncertified fill were buried to considerable depths

under the entirety of the City [Parcel] where the walking path

was to be constructed, as well as under a portion of [appellant’s]

property.” “The buried materials consisted almost exclusively of

concrete curb and gutter, concrete street sections, footings,

asphalt and rebar, all of which are consistent with waste from

public works projects.”

Earth Systems proposed “an engineering solution . . . to use

geofabric to stabilize the areas with uncertified fill located

outside of the Project building pads as well as on the City Parcel

where [appellant] was required to install a walking path.” The

City inspector, Burt Yanez, orally informed appellant that Brad

Starr, the City Engineer, had rejected appellant’s proposal.

Yanez said “that [appellant] must excavate the Property and the

entire City Parcel to native bottoms, otherwise the City would

revoke all Project grading approvals.”

“This requirement far

It is doubtful that Yanez said appellant must remove the

uncertified fill over the entire City Parcel. The complaint later

stated, “Plaintiff was not aware . . . that it would eventually be

required to move all . . . fill buried under the . . . City Parcel

exceeded the extent of grading contemplated or required in the

[approved] Grading Plan.”

“At no time during or subsequent to this conversation did

any City representative inform [appellant] that such a

determination to deny [its] grading proposal might have been

appealable to the City’s Public Works Director pursuant to

Municipal Code Section 12.210.030.

[

]

[Appellant] had no

idea . . . that such a remedy was potentially available. In any

event, it would have been infeasible to stop the Project in order to

pursue an appeal due to extensive overhead costs, carrying cost

and a balloon payment on a construction loan.”

Appellant removed “approximately 80 million pounds of

uncertified material, the great majority of which [was on] the

City Parcel. . . . [It] initially negotiated orally with City

where the walking trail was to be installed.” (Italics added.) In

its brief appellant alleges, “[T]he City Engineer . . . made the

demand that [appellant] remove all uncertified fill throughout

the Property and the City Parcel where the walking trail was to

be installed.” (Italics added.)

City’s Municipal Code Section 12.210.030 provides:

“Appeals from permit conditions, or to allow alternate grading

methods, or for other forms of relief from determinations or

decisions by the City Engineer, may be made to the Public Works

Director. The appeal shall be filed within ten calendar days after

the final action, determination, or decision by the City Engineer.

The appeal shall be on forms as provided by the Public Works

Director and shall specifically set forth the grounds for appeal

and reason or basis for disagreement with the decision of the City

engineer. The Public Works Director shall have the authority to

hear such appeals and grant exceptions to particular

requirements of this Part 2, or approve alternative grading

methods or permit conditions . . . .”

representatives for reimbursement or credits, and later

submitted a request in writing through [its] counsel. All requests

for reimbursement were denied.”

Appellant hired a construction forensics firm, Xpera Group

(Xpera), to research the uncertified fill. Xpera “concluded that

the uncertified fill at issue is waste from City public works

projects that was dumped on the City Parcel and the Property by

the City in or around 1977 when the topography of the City

Parcel changed from a steep drop off to a gradual slope.”

“[Appellant’s] causes of action . . . did not accrue until [its]

discovery of the illegally placed uncertified fill in April 2019.”

“[Appellant] has incurred, and will continue to incur, in excess of

$1,000,000 in additional Project costs related to the excavation of

the uncertified fill and other debris, remediation, lost time,

overhead, and interest payments to lenders and investors caused

by the delay in the Project timeline.”

The complaint consists of four causes of action: (1) inverse

condemnation, (2) private nuisance, (3) trespass, and (4)

negligence. The first cause of action alleged that City’s dumping

of uncertified fill on the Property and the City Parcel, along with

City’s requirement that appellant remove the fill, “result[ed] in a

taking and damaging of the value of the Property in an amount

in excess of $1,000,000.” The second through fourth causes of

action are based on City’s dumping of uncertified fill on the

Property and the City Parcel.

The complaint’s prayer for relief requests “compensatory

special damages” and “general damages.”

Demurrer: General Principles and Standard of Review

“A demurrer tests the legal sufficiency of factual allegations

in a complaint. [Citation.] A trial court’s ruling sustaining a

demurrer is erroneous if the facts alleged by the plaintiff state a

cause of action under any possible legal theory. [Citations.]” (Lee

Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th

73, 78.)

“[W]e apply the de novo standard of review in an appeal

following the sustaining of a demurrer . . . .” (California

Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,

247.) “[W]e assume the truth of all facts properly pleaded in the

complaint and its exhibits or attachments, as well as those facts

that may fairly be implied or inferred from the express

allegations. [Citation.] ‘We do not, however, assume the truth of

contentions, deductions, or conclusions of fact or law.’ [Citation.]”

(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.)

“The plaintiff has the burden of showing that the facts

pleaded are sufficient to establish every element of the cause of

action and overcoming all of the legal grounds on which the trial

court sustained the demurrer, and if the defendant negates any

essential element, we will affirm the order sustaining the

demurrer as to the cause of action. [Citation.]” (Martin v.

Bridgeport Community Assoc., Inc. (2009) 173 Cal.App.4th 1024,

1031.)

When, as here, “a demurrer has been sustained without

leave to amend, unless failure to grant leave to amend was an

abuse of discretion, the appellate court must affirm the judgment

if it is correct on any theory. [Citations.] If there is a reasonable

possibility that the defect in a complaint can be cured by

amendment, it is an abuse of discretion to sustain a demurrer

without leave to amend. [Citation.] The burden is on the

plaintiff . . . to demonstrate the manner in which the complaint

might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

Trial Court’s Ruling on Cause of

Action for Inverse Condemnation

“‘To state a cause of action for inverse condemnation,

the property owner must show there was an invasion or

appropriation (a “taking” or “damaging”) [by a public entity] of

some valuable property right which the property owner possesses

. . . and the invasion or appropriation directly and specially

affected the property owner to his injury.’” (City of Los Angeles v.

Superior Court (2011) 194 Cal.App.4th 210, 221.)

Appellant argues that the complaint states a cause of

action for inverse condemnation based on the City Engineer’s

modification of the grading permit to require the removal of the

uncertified fill on the Property and the City Parcel. Appellant

asserts: “[Th]e City imposed an illegal development

condition . . . .” “This substantial verbal modification completely

changed the scope of [appellant’s] project as approved by the City,

and unquestionably resulted in an unconstitutional taking for

which [it] is entitled to just compensation.”

The trial court concluded that appellant’s cause of action

for inverse condemnation was barred because it had not

exhausted its administrative and judicial remedies: “[Appellant]

had a means of challenging the oral modification of the permit.

[It] could have refused to comply and administratively appealed

from the revocation of the grading permit. Alternatively, [it]

could have filed a petition for writ of mandate in the superior

court challenging the illegal (i.e., oral) modification of the grading

permit. . . . [¶] But having accepted the benefits of the permit

issued it without resorting to the available means of

contemporaneously challenging it, [appellant] may not now sue

for inverse condemnation.”

Doctrine of Exhaustion of Administrative Remedies

“A demurrer may properly be granted based on the failure

to adequately plead an exhaustion of administrative remedies.

[Citation.] A plaintiff must exhaust the administrative remedies

available before resorting to the courts. . . . [¶] Allowing the

administrative agency or organization an opportunity to redress

the alleged wrong without interference by the courts may make

litigation unnecessary and relieve the courts of an unnecessary

burden. [Citation.] Even if the plaintiff does not obtain complete

relief, there may be partial relief that reduces the likelihood and

scope of litigation. [Citation.] An administrative remedy

ordinarily provides a more economical and less formal forum to

resolve disputes and provides an opportunity to mitigate

damages. [Citation.] The exhaustion requirement also promotes

the development of a more complete factual record and allows the

agency to apply its expertise, both of which assist later judicial

review if necessary. [Citation.] All of these factors both promote

judicial economy and afford due respect to the administrative or

organizational dispute resolution process.” (Shuer v. County of

San Diego (2004) 117 Cal.App.4th 476, 482; see also

Campbell v. Regents of University of California (2005) 35 Cal.4th

311, 321 [“‘Exhaustion of administrative remedies is “a

jurisdictional prerequisite to resort to the courts”. . .’”]; McKart v.

United States (1969) 395 U.S. 185, 195 [“A complaining party

may be successful in vindicating his rights in the administrative

process. If he is required to pursue his administrative remedies,

the courts may never have to intervene”].)

“The exhaustion doctrine has certain exceptions.

[Citation.] The doctrine does not apply when the administrative

remedy is inadequate. [Citation.] For example, it does not apply

when the administrative procedure is too slow to be effective

[citation], or when irreparable harm would result by requiring

exhaustion of administrative remedies before seeking judicial

relief [citations], or when it is clear that seeking administrative

remedies would be futile [citation].” (City of San Jose v.

Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597,

609.)

The Trial Court Did Not Err in Sustaining the

Demurrer for Failure to Exhaust Administrative Remedies

Municipal Code section 12.210.030 provided appellant an

administrative remedy – an appeal to City’s Public Works

Director – but appellant did not avail itself of this remedy. (See

ante, fn. 2 at p. 4.) The complaint explained, “[I]t would have

been infeasible to stop the Project in order to pursue an appeal

due to extensive overhead costs, carrying cost and a balloon

payment on a construction loan.” (Italics added.) “The cost . . . to

stop work on the Project was infeasible and would have resulted

in catastrophic losses.” (Italics added.)

The above-quoted explanation for not exhausting

administrative remedies is based on the conclusion that the

pursuit of an appeal to the Public Works Director would have

required appellant to stop work on the project. This is a

conclusion of fact that we do not accept as true. “We treat the

demurrer as admitting all material facts properly pleaded, but

not contentions, deductions or conclusions of fact or law.”

(Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

If appellant had appealed, while the appeal was pending it

could have removed the uncertified fill where the buildings were

to be constructed and within a three-foot distance from the

buildings’ foundations. The removal of this fill would have been

mandatory even if the City Engineer had not modified the

grading plan. In its brief appellant notes that Earth Systems’

approved “Grading Plans only required excavation to native

bottoms below the building foundations and in a 3-foot perimeter

around the foundations.”

If the appeal had not been decided by the time this required

excavation was completed, appellant could have started to

excavate the remainder of the Property. The excavation of the

City Parcel would have been left for last. The complaint alleged

that “the great majority of [the 80 million pounds of uncertified

fill] was removed from the City Parcel.”

Thus, appellant had nothing to lose by filing an appeal. We

reject its claim that “time-sensitive construction . . . would have

come to a grinding halt with no forward progress until an . . .

appeal right was exhausted.” The claim is contradicted by

appellant’s contention that it “would have immediately appealed

the [City Engineer’s] determination to at least preserve its rights

Earth Systems recommended: “The existing ground

surface within the construction limits of the proposed building

should be initially prepared for grading by removing all . . . non-

complying fill.” (Italics added.) “Due to the presence of artificial

fill soils, overexcavation and recompaction of soils in the building

areas will be necessary to decrease the potential for settlement

and provide more uniform bearing conditions. Soils should be

overexcavated to the deeper depth of either 2.5 feet below the

bottom of the deepest foundation element of mat and post-

tensioned slab foundations or through all uncertified fill.

Remedial excavations should be performed to a distance of at least

3 feet laterally beyond the outside edge of the foundation elements,

if possible.” (Italics added.)

had it known the City intended the Engineer’s determination to

be appealable.”

The complaint assumes that an appeal would have been a

protracted affair. This is speculation. We do not know how long

the appeal would have taken. Since the grading of the Property

was underway, appellant justifiably could have requested an

expedited appeal.

There is no reason why an appeal could not have been

expeditiously decided. City’s appellate procedure is simple and

straightforward. The complaining party appeals to the Public

Works Director. “The appeal shall be on forms as provided by the

Public Works Director and shall specifically set forth the grounds

for appeal and reason or basis for disagreement with the decision

of the City [E]ngineer.” (Muni. Code § 12.210.030.) “[T]he Public

Works Director shall determine one of the following: 1. The City

Engineer's decision was a reasonable interpretation of this Part 2

and that determination shall stand; or 2. Based on findings

supported by substantial evidence: . . . There are alternate

grading methods that will provide equivalent levels of protection

of the public health and safety. Such alternates shall be

specifically delineated in upholding the appeal.” (Ibid.) The

municipal code does not require the Public Works Director to

conduct an evidentiary hearing. “The decision of the Public

Works Director shall be final and there shall be no further appeal

to the City Council or any City advisory body.” (Ibid.)

If appellant had filed an appeal, the parties may have

reached a compromise. In the absence of a compromise, we do

not know what the Public Works Director would have decided.

The Director was not bound by the City Engineer’s decision. The

Director may have accepted Earth Systems’ alternative

mitigation measures, particularly under the pedestrian-only

walking path on City’s Parcel. The walking path would not be

subjected to heavy loads.

At oral argument before this court, appellant’s counsel

insisted that it was unfair for the City Engineer to modify the

approved grading plan after appellant had commenced grading

the construction site. But in view of appellant’s failure to appeal

to the Public Works Director, it would be unfair to impose upon

City an unexpected potential liability of more than $1 million for

the cost of complying with the modification.

Permitting a developer to bring an action for damages

without exhausting its administrative remedies would have a

chilling effect on governmental regulation of new construction.

Construction is a risky business. The developer can never be

certain of what it will find when it grades the construction site.

Unforeseen, subsurface conditions may be discovered. Their

discovery may lead public officials to believe that modifications of

approved plans are necessary to assure that the project is

soundly constructed and does not compromise public safety. This

is what happened here. Public officials will be loath to modify

approved construction plans if, without seeking available

administrative review, the developer may comply with the

modifications, complete the project, and then recover from the

government the cost of the modifications.

If appellant had filed an appeal, City would have been

promptly alerted “‘that [the City Engineer’s] decision [was] being

questioned’ and [would have been] allow[ed] . . . to mitigate

potential damages” and “propose alternative mitigation

measures. . . . Land use planning decisions entail a delicate

balancing of interests. An under protest exception to the general

waiver rule [in the present case] would upset this balance

and inject uncertainty into the planning process.” (Lynch v.

California Coastal Com. (2017) 3 Cal.5th 470, 480.) “If every

owner who disagrees with the conditions of a permit could

unilaterally decide to comply with them under protest, do the

work, and file an action in inverse condemnation on the theory of

economic coercion, complete chaos would result in the

administration of this important aspect of municipal affairs.”

(Pfeiffer v. City of La Mesa (1977) 69 Cal.App.3d 74, 78,

superseded by statute on other grounds as stated in Shapell

Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218,

241.)

Appellant maintains that the City Engineers’ oral

modification of the grading plan “violated the City’s Municipal

Code,” which required that the modification be approved in

writing by the City Engineer. The complaint alleged: “The

modification to the Grading Plan was imposed verbally [i.e.,

orally,] in the field, with no supporting documentation . . . .” But

the absence of a writing does not excuse appellant’s failure to

exhaust its administrative remedies before bringing an action for

inverse condemnation.

The complaint alleged appellant did not know it had a right

to appeal the City Engineer’s decision to the Public Works

Director. “Ignorance of the law is no excuse. This maxim is so

long standing and so well established that it is part of the very

fabric of our legal system.” (Diaz v. Grill Concepts Services, Inc.

(2018) 23 Cal.App.5th 859, 869; see also Tarrant v. Butler (1960)

180 Cal.App.2d 235, 240 [“knowledge of the building and

zoning laws will be imputed to a property owner”].) Appellant’s

ignorance is particularly inexcusable because it was a

sophisticated real estate developer. “Developers are

sophisticated entities, capable of and expected to conduct due

diligence to determine their rights and duties.” (North Murrieta

Community, LLC v. City of Murrieta (2020) 50 Cal.App.5th 31,

45.) Appellant never asked City officials if the City Engineer’s

decision was appealable or otherwise reviewable by higher

authority.

City Is Not Equitably Estopped

From Asserting a Forfeiture

Appellant claims City is equitably estopped from asserting

a forfeiture based on appellant’s failure to exhaust administrative

remedies because City did not inform appellant of its right to

appeal. Appellant asserts: “[N]either the City Engineer nor any

other City representatives ever said anything about [appellant’s]

right to an appeal.” “The City’s actions led [appellant] to believe,

in good faith, that the City Engineer’s determination was not one

that could be appealed . . . .” “[T]he City’s complete failure to

apprise [appellant] of its alleged appeal rights constitutes a clear

breach of the City’s duty to inform applicants of remedies

available to challenge adverse actions.”

“The doctrine [of equitable estoppel] ‘ordinarily will not

apply against a governmental body except in unusual instances

when necessary to avoid grave injustice and when the result will

not defeat a strong public policy. . . .’” (Steinhart v. County of Los

Angeles (2010) 47 Cal.4th 1298, 1315.) “‘The doctrine . . . is

founded on notions of equity and fair dealing and provides that a

person may not deny the existence of a state of facts if that

person has intentionally led others to believe a particular

circumstance to be true and to rely upon such belief to their

detriment. . . . “‘Generally speaking, four elements must be

present in order to apply the doctrine . . . : (1) the party to be

estopped must be apprised of the facts; (2) he must intend that his

conduct shall be acted upon, or must so act that the party

asserting the estoppel had a right to believe it was so intended; (3)

the other party must be ignorant of the true state of facts; and (4)

he must rely upon the conduct to his injury.’”’” (McGlynn v. State

of California (2018) 21 Cal.App.5th 548, 561, italics added.)

Nothing in the record suggests that City officials intentionally led

appellant to believe that the City Engineer’s decision was not

appealable or that City officials “so act[ed] that [appellant] had a

right to believe [they had] so intended.” (Ibid.) The issue of

appealability was never discussed.

Appellant cites no authority imposing a duty upon City to

inform a real estate developer of its right to appeal a decision by

the City Engineer. In the absence of such a duty, an estoppel

cannot be based on mere silence. “Generally speaking, ‘“mere

silence on the part of a party will not create an estoppel unless he

was under some obligation to speak, and a party invoking such

estoppel must show that it was the duty of the other to speak,

and that he has not only been induced to act by reason of

such silence, but that the other had reasonable cause to believe

that he would so act.”’” (Johnson v. Johnson (1960) 179

Cal.App.2d 326, 330.)

Appellant quotes the following excerpt from Asimow et al.,

Cal. Practice Guide: Administrative Law (The Rutter Group, Nov.

2022 update) ¶ 15.108: “‘An agency can be estopped from relying

on the exhaustion of remedies defense where it negligently

misadvised the private party about the need to exhaust a remedy

or because the agency made a party's access to that remedy

difficult.’” City did not engage in such conduct.

Uniwill v. City of Los Angeles Is Distinguishable

Appellant contends, “This case fits squarely within the

holding of Uniwill v. City of Los Angeles [(2004) 124 Cal.App.4th

537 (Uniwill)] . . . . The facts could not be more analogous . . . .”

Based on Uniwill, appellant argues that its “decision to continue

with the project did not function as a waiver of its right to sue the

City for inverse condemnation.”

Uniwill is distinguishable. There, the City of Los Angeles

issued Uniwill a tentative tract map approving construction of a

shopping center. Uniwill began construction of the project. After

it had expended approximately $6.5 million, the city informed

Uniwill that it “would not certify to the Advisory Agency that

Uniwill had complied with the conditions of the Tentative Tract

Map” unless Uniwill conveyed an easement, performed trenching

work, and paid a fee. (Uniwill, supra, 124 Cal.App.4th at p. 540.)

“Uniwill determined that it was economically unfeasible to stop

the project and commence litigation to vindicate its rights.

Consequently, Uniwill complied with the City's ‘unlawful

exaction’ under protest and, after completing the project, filed

suit in inverse condemnation.” (Ibid.)

The trial court sustained the city’s demurrer to Uniwill’s

complaint because pursuant to Government Code section

66499.37, “Uniwill was required to commence [but did not

commence] an action or proceeding within 90 days after . . . it

learned of the City’s demand that Uniwill grant the . . .

easement, and . . . its failure to do so barred the action.”

(Uniwill, supra, 124 Cal.App.4th at p. 542.) At the time of the

trial court’s decision, Government Code section 66499.37

provided, “‘Any action or proceeding to attack . . . the decision of

an advisory agency, appeal board or legislative body concerning a

subdivision, . . . or to determine the reasonableness, legality or

validity of any condition attached thereto, shall not be

maintained by any person unless such action or proceeding is

commenced and service of summons effected within 90 days after

the date of such decision. . . .’” (Id. at p. 539, fn. 1, italics added.)

The Court of Appeal reversed because Uniwill’s complaint

“alleged that the City’s demand that it grant . . . an easement . . .

was not a requirement imposed by the Advisory Agency as a

condition for the grant of permission to develop the property.

Rather, it was merely a threat, uttered by a City

representative . . . to deprive Uniwill of what it was legally

entitled to, issuance of a Final Tract Map and a certificate of

occupancy upon completion of the project in conformity with the

governmental approvals already issued. [¶] The City cites no

case in support of its contention that a threat issued by an agent

of the City under the circumstances described above which

results in the taking of private property must be challenged in an

action or proceeding filed within 90 days of the threat.” (Uniwill,

supra, 124 Cal.App.4th at pp. 543-544.)

Uniwill has no bearing on the present appeal. Uniwill

held that the 90-day filing deadline of Government Code section

66499.37 does not apply where, after approval of a tentative tract

map and commencement of the project, the city demands that the

developer comply with additional conditions but the demand

constitutes a mere threat instead of a requirement imposed by

the advisory agency. The present appeal does not involve the

applicability of section 66499.37. Furthermore, in Uniwill the

city did not contend that the developer had failed to exhaust its

administrative remedies.

Remaining Causes of Action Are

Barred by the Statute of Limitations

The remaining causes of action are private nuisance,

trespass, and negligence. For these causes of action, the

applicable statutes of limitations are one year for the

presentation of a claim to the City (Gov. Code, § 911.2; see

Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1263),

and three years for filing a civil action. (Code Civ. Proc., § 338,

subd. (b)); see Shamsian v. Atlantic Richfield Co. (2003) 107

Cal.App.4th 967, 979; Cyr v. McGovran (2012) 206 Cal.App.4th

645, 650.)

“The statute of limitations usually commences when a

cause of action ‘accrues,’ and it is generally said that ‘an

action accrues on the date of injury.’” (Bernson v. Browning-

Ferris Industries (1994) 7 Cal.4th 926, 931.) Based on the

complaint, the statutes of limitations began to run “in or around

1977” when City dumped the uncertified fill on the Property and

the City Parcel. To avoid the bar of the statute of limitations,

appellant relies on the discovery rule. Appellant claims it did not

discover the uncertified fill until April 2019.

“An important exception to the general rule of accrual is

the ‘discovery rule,’ which postpones accrual of a cause of action

until the plaintiff discovers, or has reason to discover, the cause

of action. [Citations.] [¶] A plaintiff has reason to discover a

cause of action when he or she ‘has reason at least to suspect a

factual basis for its elements.’ [Citations.] Under the discovery

rule, suspicion of one or more of the elements of a cause of action,

coupled with knowledge of any remaining elements, will

generally trigger the statute of limitations period.” (Fox v.

Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.)

“A plaintiff whose complaint shows on its face that his or

her claim would be barred by the applicable orthodox statute of

limitations, and who intends to rely on the discovery rule to toll

the orthodox limitation period, ‘must specifically plead facts

which show (1) the time and manner of discovery and (2) the

inability to have made earlier discovery despite reasonable

diligence. [Citations.] Mere conclusory assertions that delay in

discovery was reasonable are insufficient and will not enable the

complaint to withstand general demurrer. [Citation.]’

[Citations.] Arguments that discovery-rule issues are necessarily

factual and cannot be resolved on demurrer have been rejected.”

(CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d

1525, 1536-1537 (CAMSI).)

The trial court ruled that the three remaining causes of

action “are time-barred [by the statute of limitations] and that

[appellant] has not pleaded facts bringing [them] with[in] the

‘discovery rule.’” The court explained: “For purposes of the

statute of limitations, the knowledge of [appellant’s] predecessors

[i.e., previous owners of the Property] is imputed to it. [Citation.]

[Appellant] concedes that its ‘predecessors as early as 2004 may

have been aware of the existence of some uncertified fill located

underneath some specific portions of the subject properties.’ . . .

[Appellant] does not vigorously resist the proposition that these

three causes of action would have accrued by this time, if not

sooner. Therefore, the limitations period would have expired

prior to the time this action was commenced in 2020.”

The trial court did not err. In the complaint appellant

made allegations only as to its own lack of discovery. But if prior

owners of the Property “knew or should have known that [City]

had [dumped uncertified fill on the Property,] their knowledge

would have been imputed to [appellant].” (CAMSI, supra, 230

Cal.App.3d at p. 1537; see also Bradler v. Craig (1969) 274

Cal.App.2d 466, 472.) “In an action involving tortious injury to

property, the injury is considered to be to the property itself

rather than to the property owner, and thus the running of the

statute of limitations against a claim bars the owner and all

subsequent owners of the property. [Citations.] In other words,

the statute of limitations does not commence to run anew every

time the ownership of the property changes hands.” (Beck

Development Co. v. Southern Pacific Transportation Co. (1996) 44

Cal.App.4th 1160, 1216.)

The complaint “wholly fails to show that [prior owners of

the Property] would have been unable, despite reasonable

diligence, to have discovered” the uncertified fill. (CAMSI, supra,

230 Cal.App.3d at p. 1537.) In view of the enormity of the

amount of fill (80 million pounds on the Property and the City

Parcel), it is difficult to understand how the owner of the

Property at the time of the dumping would not have been aware

of it or would not have had reason to discover it. The complaint

alleged that, because of the dumping, “[t]he topography of the

City Parcel changed in or around 1977, from a steep

approximately 20-foot drop-off to a gradual slope . . . .” The

Xpera Report, attached as Exhibit D to the complaint, stated that

in 1977 the dumping of fill “over the entire combined City Site

and Project Site . . . created a manufactured slope across the

boundary area of the Project Site and the City Site.”

In the trial court appellant acknowledged “that the

Property owner in 1977 and its successors possibly may have

been aware that the City dumped material on the City Parcel and

the Property.” In a trench dug on the Property in 2006, Earth

Systems found “large amounts of debris ranging from blocks of

concrete up to 2.5’ [2.5 feet] in diameter to asphalt pieces up to 7’

[7 feet] long.”

Appellant maintains that, irrespective of whether its

predecessors knew or had reason to know of the dumping of the

uncertified fill, the causes of action are not time-barred because

they do “not seek recovery for a direct injury resulting

immediately from the . . . dumping . . . . The principal harm

suffered by [appellant] was caused by the City’s unforeseeable,

unjustifiable and unlawful demand that [appellant] remove tons

of the City’s waste from the City’s own property. [Appellant’s]

action for damages for the injury caused by the City’s dumping of

uncertified fill is not a traditional trespass upon real property,

but rather in the nature of an action upon the case at common

law for a consequential injury.” (Italics added.) “[T]he statute of

limitations only starts to run upon [appellant’s] sustaining the

consequential injury, and its knowledge thereof.”

“The common law drew a distinction between two types of

actions for injuries to real property. If the injury was an

immediate and direct result of the act complained of, then an

action for trespass was the appropriate remedy. On the other

hand, where the damages did not immediately ensue from the act

complained of, the damages were deemed to have been

consequential, and the only remedy was an action ‘on the case.’”

(Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50

Cal.App.4th 1301, 1305; see also Hicks v. Drew (1897) 117 Cal.

305, 310 [“‘where damages do not immediately ensue from the act

complained of, it is consequential, and case is the proper remedy;

and, on the contrary, where the act itself, and not the

consequence of it, occasions the mischief, trespass is the right

action’”].)

Appellant’s “action on the case” theory is based on its claim

that the primary injury to its property was not caused by the

dumping of the uncertified fill. Instead, it was caused by the

consequences of the dumping, i.e., the City Engineer’s

unjustifiable modification of the grading permit to require

appellant to remove the fill. Therefore, appellant argues, the

statute of limitations on the causes of action began to run when

the City Engineer made the modification.

The “action on the case” theory is of no assistance to

appellant. The theory in effect restates the first cause of action

for inverse condemnation. As we have explained at length ante,

pages 8-16, appellant forfeited its right to object to the

modification of the grading plan because it had complied with the

modification without exhausting its administrative remedies.

Disposition

The judgment is affirmed. City shall recover its costs on

appeal.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.

Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Price, Postel & Parma and Timothy E. Metzinger, Todd A.

Amspoker, Cameron Goodman, for Plaintiff and Appellant.

Olivarez Madruga Law and Thomas M. Madruga, Lloyd

Pilchen, for Defendant and Respondent.

Filed 1/26/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

VENTURA29 LLC,

Plaintiff and Appellant,

CITY OF SAN

BUENAVENTURA,

Defendant and Respondent.

2d Civ. No. B313060

(Super. Ct. No. 56-2020-

00539754-CU-EI-VTA)

(Ventura County)

ORDER CERTIFYING

OPINION FOR PUBLICATION

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on January

4, 2023, was not certified for publication in the Official Reports.

For good cause, it now appears that the opinion should be

published in the Official Reports and it is so ordered.

There is no change in judgment.

GILBERT, P. J. YEGAN, J. BALTODANO, J.