Paulson v. Dept. of Transportation

Filed 2/11/10 Paulson v. Dept. of Transportation CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed.

Law Offices of Roger E. Naghash and Roger E. Naghash for Plaintiffs and Appellants.

Ronald Beals, Jeffrey R. Benowitz, Glenn B. Mueller, and Rebecca Levi for Defendant and Respondent.

Plaintiffs Tyler Paulson and Skorpion Enterprises, Inc. (Skorpion; collectively, Hells Kitchen) own and operate Hells Kitchen, a restaurant and bar on Ortega Highway. In their complaint for inverse condemnation, they allege that defendant, the California Department of Transportation (Caltrans), in the course of making improvements to Ortega Highway, has impeded and, for eight hours every day, totally blocked access to and from Hells Kitchen.

The trial court sustained a demurrer on the ground that the complaint failed to allege a compensable injury to Hells Kitchens property. We agree. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. The Complaint.

The following facts are taken from the allegations of complaint.

Skorpion does business as Hells Kitchen. Its principal place of business is on Ortega Highway in the El Cariso area of Riverside County. Paulson operates Hells Kitchen, which is a restaurant and tavern.^[1]

In 2007, Caltrans started work on a project to improve Ortega Highway (the project). The project is about three miles in length, extending from  . . . San Juan Creek up to the Riverside County line . . . . Hells Kitchen is in Riverside County, across the county line. The project includes widening each lane by two feet, adding four-foot-wide shoulders, and adding turnout areas. It requires the removal of rock walls. It is expected to take at least three to five years to complete.

As a result of the project, Ortega Highway is completely closed every day from 8:30 p.m. to 4:30 a.m. During the rest of the day, only one lane is open, forcing traffic in each direction to stop for extremely long intervals and causing long backups. These lane and road closures prevent traffic from accessing Hells Kitchens property and cause potential customers to avoid its business. Since the project started, Hells Kitchens business has been down by more than 65 percent. It may be forced to go out of business entirely.

B. Matters Subject to Judicial Notice.

The following additional facts are shown by a Caltrans map that was subject to judicial notice.^[2]

The three-mile-long project site is located wholly in Orange County, west of Hells Kitchen. Hence, Hells Kitchen itself is not within the project area. Moreover, the project does not stand in the way of access to Hells Kitchen from the east.

II

PROCEDURAL BACKGROUND

Hells Kitchen filed this action against Caltrans, asserting a single cause of action, for inverse condemnation. Caltrans responded with a demurrer, arguing (among other things) that Hells Kitchen had failed to allege a substantial impairment of its right of access.

The trial court sustained the demurrer without leave to amend. It explained: A claim for inverse condemnation will only lie when a public project causes a compensable injury to private property . . . . [] The demurrer . . . correctly points out that the courts have long held that harm caused by road work which reduces access or causes traffic delays is not compensable, and that is to be distinguished from the type of . . . project . . . that would completely destroy access. It therefore entered judgment against Hells Kitchen and in favor of Caltrans.

III

THE ADEQUACY OF THE ALLEGATIONS OF A

COMPENSABLE IMPAIRMENT

A. Standard of Review.

Our task in reviewing a judgment sustaining a demurrer is to determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] We assume the truth of the properly pleaded material facts and the reasonable inferences that may be drawn therefrom. [Citation.] . . . We also consider matters that may be judicially noticed. [Citation.] (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083, fn. omitted.) [O]ur review is de novo. [Citation.] (Tracfone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1363.)

In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc.,  452.) [W]e treat the demurrer as admitting the complaints well-pleaded allegations of material fact, but not its contentions, deductions or conclusions of law. [Citations.] (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 924.) We also accept as true all facts that may be implied or reasonably inferred from those expressly alleged. [Citation.] (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.)

If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. [Citation.] (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 39.) Whether to grant leave to amend a complaint is a matter within the discretion of the trial court. [Citation.] (Reynolds v. Bement, supra, 36 Cal.4th at p. 1091.)

B. Analysis.

A landowner enjoys an easement of access which permits travel onto the street upon which his land abuts, and from there, in a reasonable manner, to the general system of public streets. [Citations.] Such an easement constitutes a property right [citations], the substantial impairment of which is cognizable in an eminent domain proceeding. [Citation.] (People ex rel. Dept. Pub. Wks. v. Romano (1971) 18 Cal.App.3d 63, 72.)

To designate the right, however, is not to delineate its precise scope. Not every interference with the property owners access to the street upon which his property abuts and not every impairment of access, as such, to the general system of public streets constitutes a taking which entitles him to compensation. Such compensation must rest upon the property owners showing of a substantial impairment of his right of access to the general system of public streets. (Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, 663-664.)

As long as there is access to the abutting road and from there to the next intersecting street in at least one direction, there is no legally cognizable impairment of access. [Citation.] (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1557 [Fourth Dist., Div. Two]; see also People ex rel. Department of Public Works v. Symons (1960) 54 Cal.2d 855, 858-862 [plaintiffs could not recover reduction in value of their property due to creation of a cul de sac].) This rule applies equally in rural and in urban areas. (Valenta v. County of Los Angeles (1964) 61 Cal.2d 669, 671-672.)

The diversion of traffic is likewise not a legally cognizable impairment of access. [A] landowner has no property right in the continuation or maintenance of the flow of traffic past his property. (Rose v. State (1942) 19 Cal.2d 713, 737.) [A] property owner . . . cannot demand that the adjacent street be left in its original condition for all time to insure his ability to continue to enter and leave his property in the same manner as that to which he had become accustomed. Modern transportation requirements necessitate continual improvement of streets and relocation of traffic. The property owner has no constitutional right to compensation simply because the streets upon which his property abuts are improved so as to affect the traffic flow on such streets. If loss of business or of value of the property results, that is noncompensable. It is simply a risk the property owner assumes when he lives in modern society under modern traffic conditions. (People ex rel. Department of Public Works v. Ayon (1960) 54 Cal.2d 217, 222-223.)

Both the complaint and the judicially noticed map demonstrate that the project is in Orange County, whereas Hells Kitchens property is in Riverside County. There is no plain allegation that the restaurant is directly adjacent to the portion of Ortega Highway that is intermittently closed. Somewhat to the contrary, the complaint alleges only that Hells Kitchens business is impacted by the road closures. Thus, Hells Kitchen continued to have access to Ortega Highway, and from there to the next intersecting street, at least toward the east. Indeed, according to its own allegations, it also continued to have access toward the west, all the way to the ocean, even though such access was inconvenient and available for only 16 hours a day. In Border Business Park, we found no cases holding that a governmental agency can be liable for rerouting of traffic which results in less than a complete denial of access. (Border Business Park, Inc. v. City of San Diego, supra, 142 Cal.App.4th at p. 1558.)

We did assume, for the sake of discussion, that a rerouting of traffic which caused gridlock for a period of several hours every day would constitute a substantial impairment of the right of access. (Border Business Park, Inc. v. City of San Diego, supra, 142 Cal.App.4th at p. 1555.) However, we defined gridlock for this purpose as traffic congestion on a grid of intersecting streets which prevents traffic from moving in any direction. [Citation.] (Ibid.) Here, even during the eight hours a day when Ortega Highway was closed, traffic could reach Hells Kitchen freely from the east.

We therefore conclude that the complaint failed to state a cause of action.

Hells Kitchen argues, in the alternative, that even if the demurrer was properly sustained, it should have been given an opportunity to amend the complaint. It is the plaintiffs burden to show either the trial court or the reviewing court how the complaint can be amended to state a cause of action. [Citation.] (Titus v. CanyonLake Property Owners Assn. (2004) 118 Cal.App.4th 906, 917 [Fourth Dist., Div. Two].)

Hells Kitchen fails to identify any new or different factual allegations that would change the result. For example, it argues that, if given leave to amend, it could allege that it has suffered damages in the form of lost revenue, lost good will, and loss of the value of its business. In an inverse condemnation action, however, injury to the business of the owner or occupant of the property does not form an element of the compensating damages to be awarded [citation]. This is so because it is only the value of, and the damage to, the property itself, which may be considered. A particular business might be entirely destroyed and yet not diminish the actual value of the property for its highest and best use. [Citations.] (Breidert v. Southern Pac. Co., supra, 61 Cal.2d at p. 667, fn. 7.)

We therefore also conclude that the trial court properly sustained the demurrer without leave to amend.

IV

PROCEDURAL CONTENTIONS

Hells Kitchen also contends that the trial court should not have sustained the demurrer because it was procedurally improper in several respects. Somewhat unhelpfully, Caltrans does not respond to this contention.

A. Timeliness.

First, Hells Kitchen contends that the demurrer was untimely.

It has forfeited this contention by failing to support its related factual assertions with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Department of Corrections and Rehabilitation v. Workers Comp. Appeals Bd. (2008) 166 Cal.App.4th 911, 920.)

However, even if not forfeited, the contention lacks merit. The demurrer was filed on April 25, 2008. It set a hearing date of June 16, 2008 52 days later. In opposition, Hells Kitchen argued that the demurrer was untimely because it had not been set for hearing within 35 days, as required by California Rules of Court, rule 3.1320(d). In reply, Caltrans represented that the hearing had been set on the first date available to the court.

On June 16, 2008, one or both parties refused to stipulate to a judge pro tempore, causing the hearing to be continued to August 8, 2008, when it was in fact held. On this issue, the trial court ruled: [B]ecause the plaintiffs have not shown a lack of good cause to set the hearing more than 35 days after the demurrer was filed, the Court . . . will address the merits of the demurrer.

Under California Rules of Court, rule 3.1320(d), as relevant here, [d]emurrers must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter. (Italics added.)

On this record, Hells Kitchen cannot show that the hearing was not set on the first date available to the court. It is the appellants burden to demonstrate the existence of reversible error. [Citation.] (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766 [Fourth Dist., Div. Two].) A judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. [Citation.] (In re Julian R. (2009) 47 Cal.4th 487, 498-499, original brackets.)

Separately and alternatively, Hells Kitchen cannot show prejudice. (Cal. Const., art VI,  13; Code Civ. Proc.,  475.)

B. Compliance with the Technical Requirements of California Rules of Court, Rule 3.1320.

Next, Hells Kitchen contends that the demurrer failed to properly set forth the names of the parties, the cause of action that was the subject of the demurrer, and the grounds of the demurrer. Once again, it has forfeited this contention by failing to provide citations to the record. However, we also reject the contention on the merits.

California Rules of Court, rule 3.1320(a) states, Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses. Here, the demurrer stated: Defendant State of California Department of Transportation hereby demurs to Plaintiffs complaint on each of the following grounds, and then listed the grounds in separate paragraphs. This was more than adequate to comply with the rule.

Hells Kitchen may be complaining that the name of the party filing the demurrer and the name of the party filing the challenged pleading were not stated immediately below the number of the case, as California Rules of Court, rule 3.1320(e) would require. Once again, however, it cannot show prejudice.

C. The Inclusion of Exhibits.

Finally, Hells Kitchen contends that the demurrer improperly attached exhibits. Yet again, it has forfeited this contention by failing to support its factual assertions with citations to the record. Solely as an alternative ground, however, we also address the issue on the merits.

The original demurrer attached a Caltrans map of the project (Exhibit A). Caltrans did not request judicial notice of it. However, Caltrans did separately request judicial notice of the Secretary of States records showing that Skorpion was a suspended corporation (Exhibit B).

In opposition, Hells Kitchen argued that it was impermissible to include exhibits in a demurrer. It also argued that the matter of which judicialnotice was requested (i..e., Skorpions corporate status) was disputed . . . .

Caltrans then filed an amended request for judicial notice of both Exhibits A and B. Hells Kitchen did not oppose the request for judicial notice of Exhibit A. thus, it never plainly asserted below that Exhibit A was not judicially noticeable.

A demurrer may be supported by matters that are subject to judicial notice. (Code Civ. Proc.,  430.30, subd. (a); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Hells Kitchen did not object to Caltranss request for judicial notice of Exhibit A and hence has forfeited any such objection. Even assuming it did object, it forfeited the objection by failing to press the trial court for a ruling on it. (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 369.) Accordingly, the tral court could properly take judicial notice of Exhibit A.Exhibit B is irrelevant to the grounds on which we ultimately resolve this appeal. Accordingly, even assuming it was not judicially noticeable, and hence it was improperly attached to the demurrer, Hells Kitchen was not prejudiced.

V

DISPOSITION

The judgment is affirmed. Caltrans is awarded costs on appeal against Hells Kitchen.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

GAUT

J.

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^[1] The complaint does not allege, in so many words, that either Paulson or Skorpion has any interest in the underlying real property. However, it does allege that Caltranss road and lane closures prevent traffic and customers from having access to Plaintiffs business and property. (Italics added.) It also alleges that Caltrans has caused damages to plaintiffs, including loss of use of property . . . . Finally, it alleges that Caltrans has prevent[ed] Paulson from using his property for its best and highest use . . . . Under the liberal standards applicable on a demurrer, these are adequate allegations that plaintiffs have a property interest.

In any event, Caltrans did not demur to the complaint on the ground that it failed to allege that plaintiffs had the necessary property interest. Accordingly, even assuming the complaint is defective in this respect, plaintiffs have never had an opportunity to remedy the defect by amendment.

^[2] As we discuss in part IV.C, post, in the trial court, Caltrans requested judicial notice of this map, and Hells Kitchen did not object.

In connection with this appeal, Caltrans has filed a request for judicial notice of the same map, along with a request for judicial notice of a Thomas Brothers map of the vicinity. This time, Hells Kitchen has objected vigorously.

In light of Hells Kitchens failure to object to the Caltrans map below, the trial court could properly take judicial notice of it. It follows that we may take judicial notice of it, too. (Evid. Code,  459, subd. (a)(1).)

By contrast, we decline to take judicial notice of the Thomas Brothers map. This map was not before the trial court. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [Reviewing courts generally do not take judicial notice of evidence not presented to the trial court.].) Moreover, it has not been properly authenticated by the declaration of a qualified witness or otherwise. (See Evid. Code,  453, subd. (b) [party seeking judicial notice must furnish the court with sufficient information]; see also In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, 47, fn. 6 [denying judicial notice of letters where, among other things, requesting party did not furnish certified copies].)