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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.
An inverse condemnation cause of action derives from article I, section 19 of the California Constitution, which states in relevant part: "Private property may be taken or damaged for public use only when just compensation . . . has first been paid to, or into court for, the owner." Property "is `taken or damaged' within the meaning of article I, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself. [Citations.]" (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 530, italics omitted.) The property owner has the burden of establishing that the public entity has, in fact, taken or damaged his or her property. (San Diego Gas Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 940.) (2) Superior's claim it will be put out of business is not ripe. Superior pled "once the school opens, Superior will be shut down on nuisance odor grounds, thereby allowing [the District] to avoid the provision of just compensation. This is a form of inverse condemnation." Superior asserted the District "will attempt to cause its closure, or limit its operations, once the school is occupied," and that the District would "seek to impose severe restrictions on the manufacturers operating in such close proximity to the school such as Superior, and that the value of the real and personal property including fabrication equipment and systems and the business will plummet. There will be a loss of goodwill. There will be a need for relocation. There will be a need for other compensation relative to the limitations that will be placed if the construction of the school and operation of the school actually occurs." The above allegations are purely speculative — they purport to anticipate damages that Superior may suffer at some point in the future. In an inverse condemnation action, the property owner must first clear the hurdle of establishing that the public entity has, in fact, taken or damaged his or her property before he or she can reach the issue of just compensation. (San Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 940.) Superior's speculation that the school may impair Superior's business operations in the future does not amount to a damaging or taking under the law of inverse condemnation. (3) Other impacts of school construction on Superior's operations. At oral argument on appeal, in response to an inquiry by the panel, Superior's counsel asserted the "best fact" in support of its inverse condemnation claim was the District's alleged interference with Superior's use of the property as a result of traffic blockage stemming from the construction activity. By way of background, 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.] [¶] The determination whether the interference with access constitutes a substantial impairment is a question of law; if compensable impairment is found, then the extent of such impairment is a matter of fact for determination by the jury. [Citation.] In making the determination whether there is a substantial impairment of defendant's access to the general system of public streets and public highways, our inquiry is tantamount to determining whether her right of access has been unreasonably interfered with. [Citations.]" (People ex rel. Dept. Pub. Wks. v. Romano (1971) 18 Cal.App.3d 63, 72-73, italics added (Romano).)
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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