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SUPERIOR COATINGS, INC. v. LOS ANGELES UNIFIED SCHOOL DISTRICT
Court of Appeals of California, Second District, Division Three.
Filed August 23, 2012.
Romano applied the test of substantial impairment to its fact situation and concluded there had been no such impairment. (Romano, supra, 18 Cal.App.3d at p. 73.) Romano observed, inter alia, "assuming that new Meridian Road is relevant to the context of impairment of access to the general system of public streets, the record discloses that defendant is caused, at most, to travel a distance of 2,400 feet from her home to the nearest available entry into new Meridian Road." (Ibid.; accord People ex rel. Dept. of Public Works v. Wasserman (1966) 240 Cal.App.2d 716, 730 [alternate route which was one-third of a mile longer after the construction of the improvement did not constitute a substantial impairment of the defendants' access to general system of public streets].) Thus, as the Supreme Court stated in People v. Ayon (1960) 54 Cal.2d 217 (Ayon), "the right of a property owner to ingress and egress is not absolute. He 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 has become accustomed." (Id. at p. 223.) Temporary "injury resulting from actual construction of public improvements is generally noncompensable. Personal inconvenience, annoyance or discomfort in the use of property are not actionable types of injuries. [Citations.] `It would unduly hinder and delay or even prevent the construction of public improvements to hold compensable every item of inconvenience or interference attendant upon the ownership of private real property because of the presence of machinery, materials, and supplies necessary for the public work which have been placed on streets adjacent to the improvement.' [Citation.]" (Id. at p. 228.) Here, with respect to the issue of ingress and egress, Superior merely pled the construction activity damaged its property by "impairing ingress and egress to plaintiffs' properties" and by "impairing pedestrian and automobile access to the property." Thus, Superior did not allege that access to its property had been eliminated. To the contrary, the pleading reflected that access, although impaired, was ongoing. "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." (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1557, citing Ayon, supra, 54 Cal.2d at pp. 223-224.) In sum, Superior failed to allege facts showing that its right of access was substantially impaired by the District's construction activity. Therefore, Superior failed to plead a cause of action for inverse condemnation based on impaired access to its premises. c. Third cause of action for alleged violation of civil rights likewise is infirm. As stated in Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180, "A plaintiff seeking recovery under [42 U.S.C.] section 1983 must plead more than constitutional `buzzwords' to survive demurrer. [Citation.] The plaintiff must allege specific and nonconclusory facts showing the defendant's acts deprived him of a right, privilege or immunity secured by the federal Constitution or federal laws. [Citation.]" Here, Superior's third cause of action cited (1) the 14th Amendment of the United States Constitution, (2) article I, section 1 of the California Constitution, and (3) 42 United States Code sections 1983 and 1988. Superior then alleged, in purely conclusionary language, that defendants acted under color of state law in their official capacities to violate Superior's rights. The third cause of action was devoid of factual allegations. As the trial court observed, Superior merely pled (at para.11) that the District acted "by and through its employees and agents," who presented their business cards to members of the public "that identified said individuals as employees of [the District]," when in fact said individuals were employed by others.
1. At oral argument, this court was advised the school has been completed and was scheduled to open in August 2012.
2. Although Superior contends that environmental contaminants are migrating from the school site to Superior's property, that issue was not enumerated in the tort claim which it presented to the District. We note that in the opening brief, at footnote one, Superior withdrew its cause of action for trespass against the District.
3. Civil Code section 3482 states: "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance."
4. All further statutory references are to the Code of Civil Procedure, unless otherwise specified.
Section 472 provides in pertinent part: "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party . . . ." (Italics added.) However, as the trial court noted, section 472 does not provide for the filing of a "notice of intent to amend" as an alternative to the filing of an amended complaint.
5. We are mindful the Tort Claims Act does not apply to Superior's cause of action for inverse condemnation (Gov. Code, § 905.1; Patrick Media Group, Inc. v. California Coastal Com. (1992) 9 Cal.App.4th 592, 607) or to its federal civil rights claim. (Williams v. Horvath (1976) 16 Cal.3d 834, 842.)
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