Salmone v. City of Walnut
Filed 7/3/07 Salmone v. City of Walnut CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ROBERT SALAMONE, Plaintiff and Appellant, v. CITY OF WALNUT, Defendant and Respondent. | B194184 (Los Angeles County Super. Ct. No. BC 353415) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce E. Mitchell, Commissioner. Affirmed.
Robert Salamone, in pro. per., for Plaintiff and Appellant.
Michael B. Montgomery, City Attorney, for Defendant and Respondent.
* * * * * *
Appellant Robert Salamone is the owner of a 1/2 interest in a tract of undeveloped land located in respondent City of Walnut (City). He filed an action in pro. per.[1]against City because Citys general plan calls for a road to go through his parcel, which means that he can develop only five and not seven lots. Citys demurrer was sustained without leave to amend. Salamone appeals from the judgment of dismissal; we affirm.
FACTS
1. The Appellate Briefs in This Case Are Seriously Defective
Rule 8.204(a)(2)(C) of the California Rules of Court requires an appellants opening brief to provide a summary of the significant facts limited to matters in the record. We understand that appellant is in pro. per. Nonetheless, he is expected to comply with this rule, as well as with other provisions of rule 8.204. Given the circumstances of this case, there would be no point in striking appellants brief as a sanction for failing to comply with the rules of court. Nonetheless, the shortcomings in appellants opening brief necessarily put an increased burden on the respondent and this court.
Unfortunately, respondent, who has been represented throughout by the city attorney, has filed a three-page brief that is not helpful. This has made it incumbent on this court to piece together from the sparse record without any assistance from the parties not only the relevant facts but also what the controversy is between appellant and respondent. It is literally impossible to tell from the briefs, respondents brief included, what the controversy is, much less what the relevant facts are. Other documents in the record are of marginal value. The complaint was prepared in pro. per. and has the characteristics of such an effort; Citys memorandum in support of its demurrer is only slightly more helpful than its appellate brief.
2. The Relevant Facts
Citys general plan enacted in 1978 calls for a street named Meadowpass Road to be put through the tract of 3.57 acres, appellants parcel, that is the subject of this lawsuit. Meadowpass Road would require approximately 0.831 acres of appellants parcel. Salamone bought the 1/2 interest in the tract in 1988; the other 1/2 interest is owned by Mohammed Adnan Jouma (not a party to this action or appeal). Salamone alleges that he is the managing partner in connection with the overall development of the tract. The source of the facts set forth in this paragraph is plaintiffs complaint.[2]
In 1991, appellant submitted tract map 49059 that called for seven lots to be developed. City required the tract owners to pay for the completion of Meadowpass Road through the parcel; appellant and presumably his partner did not agree, and this tract map expired.[3] The complaint alleges that appellant refused in 1991 the additional condition that he donate the land required for Meadowpass Road.
On or about July 2002, appellant submitted a new subdivision map to City; this map proposed to divide the tract into seven lots for single family residences. This map was rejected by City on the ground that the map did not take account of Meadowpass Road, i.e., of the extension of this street through the tract in accordance with the terms of Citys general plan.[4] Appellant countered by demanding $857,724.60 for the land that would be taken up by Meadowpass Road. In the alternative, he requested to be allowed to develop eight lots on the tract.[5]Evidently, this demand was rejected.
The complaint alleges that in 2003 the City rejected a variance for the tract that would have allowed appellant to develop 6 smaller lots. The complaint also alleges that appellant unsuccessfully sought to amend the general plan in 2004.
3. The Controversy
City insists on completing Meadowpass Road, which means that appellant can develop only five lots. Without Meadowpass Road running through the tract, he could develop seven (or possibly eight) lots. Thus, the crux of the dispute is that appellant can develop only five instead of seven or eight lots.
There are also other subsidiary issues between appellant and the City, such as Citys demand that appellant dedicate land for Meadowpass Road, and appellants unwillingness to do so.
4. Appellants Complaint
The first cause of action is for declaratory relief and alleges that the Drawing of a Line on a map of appellants tract showing Meadowpass Road is a physical invasion of appellants property. An amendment to this cause of action alleges that the construction of a sewer line in 1980 was an irrevocable taking of appellants property. The second cause of action is for inverse condemnation, i.e., that the general plan adopted in 1978 was a taking of appellants property. The third cause of action alleges that appellant lost numerous business or sales opportunities because he could not develop the tract. The fourth cause of action alleges that appellant lost income because he could not develop the land. And the fifth cause of action seeks punitive damages.
DISCUSSION
Appellants quarrel is with Meadowpass Road. The basis of Citys insistence on taking this street through appellants parcel is Citys general plan that was adopted in 1978. Government Code section 65009, subdivision (c)(1) provides that an action to attack, review, set aside, void or annul a general plan must be brought within 90 days of the decision adopting the plan.
Appellant contends that the statute of limitations begins to run when damages are sufficiently appreciable [sic] to a reasonable man. Appellant appears to be referring to the rule, usually found in medical malpractice cases, which governs the question when the cause of action accrues and there has been a delay between the commission of the negligent act and the discovery of its consequences. In these cases, the cause of action accrues when the plaintiff through the use of reasonable diligence should have discovered the injury. (See generally 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, 534, pp. 672-673.)
Giving full faith and credit to appellants argument, even though we do not think that the principle upon which it rests applies here, appellant knew in 1991 that he had a major problem with the City over Meadowpass Road. In 1991, as now, he wanted to develop seven lots on his tract but then, as now, Citys insistence on Meadowpass Road stood in the way of a seven-lot development (but not a five-lot development). There was also the problem of Citys demand that he dedicate the land necessary for this street. Thus, appellants damages, i.e., the circumstance that he can develop only five but not seven lots, was known to him in 1991, with every detail that is known today also known in 1991.
Although it is sufficient for purposes of appellate review that appellants action is barred by the statute of limitations, we observe that appellant is mistaken, as a matter of law, in his first and second causes of action when he alleges that Citys general plan amounts to a taking of his property. As of this date, nothing has been taken by City; appellant owns all, i.e., a 1/2 interest, in the 3.57 acre tract. The fact that he cannot come to an agreement over Meadowpass Road with the City does not amount to a taking. As respondent notes, when and if this street is extended through appellants tract, he will receive fair market value for the necessary land.[6]
In his opening brief, appellant states that a sewer line installed in 1980 prevented him from selling the tract in 2002 and 2004. In an amendment to his complaint, appellant alleged that the installation of this sewer line was an irrevocable taking of his property. The same amendment alleges that there were two offers to buy his tract in 2002 and 2004.
There are two problems with appellants theory about the sewer line. First, since the sewer line was installed in 1980, any claim predicated on its installation was time-barred when appellant filed his complaint in the year 2006. Second, we are given no reason ‑‑ in the form of an allegation in the complaint ‑‑ why it should be actionable that someone refused to buy the tract because of the sewer line. The only explanation of appellants theory that we have been able to find[7]is appellants statement on this subject made during the hearing on the demurrer. Apparently, appellant is of the view that the City has an easement for the sewer line and that, in his own words at the hearing, you cant build a home on top of an easement.
If appellants theory is that the offers in 2002 and 2004 fell through because the buyers could not build houses anywhere on the tract because of the sewer line, it should have been set forth in the complaint. A party proceeding in pro. per. in a civil case is not excused from the obligation of setting forth facts constituting a cause of action. In any event, we find the proposition that he could not sell the land because of a sewer line highly improbable, which is probably why it is not set forth in writing anywhere, including the complaint and appellants briefs. In the final analysis, any cause of action arising from the sewer line is time-barred.
Normally, City would be entitled to recover its costs as the prevailing party. As we have already noted, the briefing submitted by the City is unhelpful. It lacks a summary of the relevant facts, and it fails to offer any description or analysis of the controversy, which, given the complete absence of this in appellants brief, was a necessity. Citys brief is a cryptic series of references that assumes that this court is as familiar with the underlying (and unstated) facts as the City is. For these reasons, we find that each party is to bear its own costs on appeal.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
FLIER, J.
We concur:
COOPER, P. J.
RUBIN, J.
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[1] Salamone was in pro. per. throughout in the court below, as well as in this appeal.
[2] For the purposes of a demurrer, all material facts properly pleaded in the complaint are deemed admitted. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 903, p. 363.)
[3] The source of the information contained in this paragraph is a letter dated November 22, 2002, by attorney David E. Weiss, then counsel to appellant. This letter is an exhibit to appellants complaint. The recitals in an exhibit incorporated in the complaint may be taken into account in ruling on a demurrer. (5 Witkin, Cal. Procedure, supra, Pleading, 901, p. 361.)
[4] The source of the information contained in this paragraph is a letter dated July 23, 2002, by a planner for the City. This letter is also attached to the complaint as an exhibit.
[5] See footnote 3.
[6] We note that the third and fourth causes of action only set forth appellants alleged damages, and do not constitute causes of action, and that the fifth cause of action for punitive damages does not lie against a public entity.
[7] The only comment we have from respondent on the sewer line is that the sewer argument is a non-sequitur (Appellants Brief, p.3[.)] Appellants new homes would tie into that line. Counsel is under an obligation to be more illuminating than this, whether or not he is dealing with a party in pro. per.
