Filed 11/23/15 DeBert v. San Lorenzo Valley Water Dist. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

CHARLENE DEBERT,                                                     H041482
                                                                    (Santa Cruz County
         Plaintiff and Appellant,                                    Super. Ct. No. CISCV176927)

         v.

SAN LORENZO VALLEY WATER
DISTRICT et al.,

         Defendants and Respondents.


         Plaintiff Charlene DeBert appeals from a judgment of dismissal entered after the
trial court sustained demurrers without leave to amend filed by defendants San Lorenzo
Valley Water District (the District), Rick Rogers, and James Mueller (collectively,
defendants).
         Ten months after purchasing a parcel of land in Santa Cruz County, DeBert
discovered an underground water pipeline belonging to the District while excavating her
property. The pipeline is not in a recorded easement. Shortly after DeBert learned about
the pipeline, the District’s operations manager, Rogers, twice entered her property
without permission. He did so at the direction of the District’s general manager, Mueller.
DeBert filed suit against the District and later amended her complaint to assert claims
against Rogers and Mueller. She alleges the pipeline constitutes a trespass and a
nuisance and that defendants trespassed and violated her civil rights when Rogers entered
her property without permission.
       The trial court entered judgment against DeBert after sustaining defendants’
demurrer to her third amended complaint without leave to amend. We reverse and
remand with directions.
I.     BACKGROUND
       A.       Factual Background
       DeBert purchased land in Santa Cruz County in November 2011. There were no
easements recorded by the District on record at the Santa Cruz County recorder’s office.
While excavating the lot in early September 2012, DeBert discovered an underground
water pipeline. The District initially told DeBert it did not own the pipeline.
       On September 5, 2012, the District entered onto DeBert’s property without
permission “through the acts of” Rogers and Mueller. On September 25, 2012, Rogers
and two deputy sheriffs—acting at Mueller’s direction—demanded access to DeBert’s
property to investigate water theft from a District-owned pipeline. When DeBert asked
whether they had a warrant to enter her property, she was told they did not and that they
did not need one. Rogers and the deputies threatened to arrest DeBert and to destroy her
pet dog if she did not allow them to enter her property. She permitted them to enter.
After examining the property, the deputies arrested DeBert for theft and resisting arrest.
Rogers and Mueller allegedly were motivated by “their perception of . . . DeBert’s sexual
orientation.”
       B.       Government Claims Act Claim
       On October 29, 2012, DeBert filed a claim with the District pursuant to the
Government Claims Act on a District-provided claim form.1 The claim stated that



       1
          In support of its demurrer to the first amended complaint, defendants requested
the trial court take judicial notice of DeBert’s claim pursuant to Evidence Code
section 452. The trial court granted that request.


                                             2
Rogers trespassed on DeBert’s property on September 15, 2012,2 and September 25,
2012, and informed her the District owned water pipelines on her land, which they could
access at any time. The claim form requests a “[g]eneral description of the indebtedness,
obligation, injury, damage or loss incurred.” DeBert wrote: “Negligence of laying
pipeline on private property without survey, trespass, taking (inverse condemnation),
total loss of property value . . . .” DeBert stated that her injuries were caused by “Rogers,
[District engineer] Rob Menzies,” and “the entire” District. DeBert’s stated “basis for
claiming the District or District employee(s)” caused her injury was “Rick Rogers,
trespassing on my private property, 9/15/2012, 9/25/2012, . . . Rogers informing on
aforementioned dates that [the District] trespass of pipeline and taking.”
       Along with the District-provided claim form, DeBert submitted two e-mails she
had sent to Mueller. In the first e-mail, dated October 14, 2012, she informed Mueller
that on and about September 21, 2012, she told District engineer Rob Menzies about a
fire hydrant she found on her property a few months earlier while removing forest debris.
The second e-mail, dated October 28, 2012, stated: “Rogers[’s] heavy handedness in his
forcible trespass on my private property has left me very distressed about feeling peaceful
enjoyment of my private property. . . . Hopefully, my civil rights will be given more due
respect by [the District], going forward into the future.”
       The District denied DeBert’s claim on November 16, 2012.
       C.     The Initial Complaint
       DeBert was representing herself at the time she filed her initial complaint on
May 15, 2013, using a Judicial Council form complaint for “Personal Injury, Property
Damage, Wrongful Death.” The complaint named the District as the sole defendant. In
the space on the form for identifying the defendants, DeBert wrote “SLVWD [(the

       2
          The third amended complaint alleges, inconsistently with the presuit claim, that
the first trespass occurred on September 5, 2012.

                                              3
District)], inverse condemnation, taking of plaintiff’s private property.” DeBert did not
check any boxes on the form related to Doe defendants. She attached the Judicial
Council form for a general negligence cause of action to the complaint. That cause of
action alleged the District and “Does 1 to 100” had “buried [a] wate[r]line through the lot
APN: 090-061-32 without the benefit of an easement” in “approximately” March 1968 or
in the 1980s. It further alleged that DeBert purchased the property in November 2011
and discovered the pipeline in September 2012 while digging a ditch. Finally, the
complaint alleged the District had “taken private property without just compensation.”
The initial complaint did not mention Rogers, Mueller, or DeBert’s interactions with
them in September 2012.
       The District demurred to the complaint on the ground it was barred by the statutes
of limitations set forth in Code of Civil Procedure3 sections 338 and 337.15.4 DeBert,
now represented by counsel, opposed the demurrer. She argued her complaint stated a
cause of action for civil trespass and was timely filed within three years of her September
2012 discovery of the water pipeline. The trial court sustained the demurrer with leave to
amend.
       D.     The First Amended Complaint
       DeBert’s first amended complaint, filed on November 14, 2013, added Rogers and
Mueller as defendants. Unlike the initial complaint, it alleged the pipeline was
constructed “[a]t some unknown time.”
       The first amended complaint asserted seven causes of action: (1) trespass against
the District based on the original construction of the pipeline; (2) trespass against all
defendants based on the alleged September 25, 2012, entry onto DeBert’s property by


       3
        Unspecified statutory references are to the Code of Civil Procedure.
       4
        The District’s demurrer erroneously cited section 337.5, which governs actions
on general obligation bonds or coupons.

                                              4
Rogers and two deputies; (3) private nuisance against the District; (4) a claim pursuant to
42 United States Code, section 1983 (section 1983) alleging violation of DeBert’s Fourth
Amendment right against illegal search and seizure; (5) a section 1983 excessive force
claim; (6) a section 1983 “local government policy or custom” claim; and (7) an inverse
condemnation claim against the District. The section 1983 claims were premised on the
September 25, 2012 incident, during which Rogers and two deputy sheriffs threatened
DeBert and her dog.
       Defendants demurred on numerous grounds. Among other things, they argued
that the addition of Rogers and Mueller as defendants and the assertion of an inverse
condemnation claim were outside the scope of the leave to amend granted following their
earlier demurrer. The trial court sustained the demurrer without leave to amend as to the
section 1983 claims, sustained the demurrer with leave to amend as to DeBert’s trespass
and nuisance causes of action, and overruled the demurrer as to the inverse condemnation
cause of action. No statement of decision was issued. At a hearing on the demurrer, the
court indicated the trespass and nuisance causes of action were untimely and the factual
basis for the section 1983 claims was not included in DeBert’s claim form.
       Defendants moved for reconsideration of the order to the extent it overruled the
demurrer as to the inverse condemnation cause of action. They argued that “[p]laintiff
exceeded the scope granted to her by this Court to amend her complaint by adding two
defendants and filing seven causes of action, including Inverse Condemnation.” At a
hearing on defendants’ motion, the court rejected defendants’ “very narrow
interpretation” of her order granting leave to amend, noting “I didn’t say you are not
granted leave to amend to assert an inverse condemnation cause of action.” Defendants’
motion for reconsideration was denied.
       E.     The Second and Third Amended Complaints
       DeBert filed a second amended complaint on March 20, 2014. Days later she
attempted to file a third amended complaint but the court clerk refused to file it.
                                              5
Unaware that the third amended complaint never was filed, defendants demurred to it.
DeBert requested a default judgment against defendants on the ground they failed to
respond to the second amended complaint. The trial court denied that motion, saying it
relied on a “bad faith argument,” and accepted the third amended complaint for filing on
May 19, 2014.
       The third amended complaint asserted six causes of action: (1) trespass against
the District based on the original construction of the pipeline (count 1); (2) trespass
against all defendants based on the alleged September 5 and 25, 2012, entries onto
DeBert’s property by Rogers and two deputies (count 2); (3) private nuisance against the
District (count 3); (4) inverse condemnation against the District (count 4); (5) violation of
the Ralph Act (Civ. Code, § 51.7) against all defendants (count 5); and (6) violation of
the Bane Act (id., § 52.1) against all defendants (count 6). The Ralph Act claim included
the new allegation that Rogers and Mueller were motivated by “their perception of . . .
DeBert’s sexual orientation.”
       Defendants’ again demurred. They argued that counts 1, 2, and 3 were barred by
the statutes of limitations set forth in section 338 and Government Code section 945.6.
They claimed count 4 likewise was untimely and was outside the scope of the leave to
amend granted following their earlier demurrer. Defendants maintained that counts 5 and
6 also exceeded the scope of the leave to amend and were too uncertain to state a claim
for relief. The trial court sustained defendants’ demurrer without leave to amend on
June 6, 2014. The court did not issue a statement of decision. It entered a judgment of
dismissal with prejudice on August 18, 2014. DeBert timely appealed.
II.    DISCUSSION
       A.     Standard of Review
       We review an order sustaining a demurrer de novo, exercising our independent
judgment as to whether a cause of action has been stated as a matter of law. (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.) The facts alleged in the
                                              6
pleading are deemed to be true, but contentions, deductions, and conclusions of law are
not. (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1300.) In addition to the
complaint, we also may consider matters subject to judicial notice. (Ibid.) Facts that are
subject to judicial notice trump contrary allegations in the pleadings. (Ibid.) We do not
review the validity of the trial court’s reasoning. (B & P Development Corp. v. City of
Saratoga (1986) 185 Cal.App.3d 949, 959.) For that reason, and because demurrers raise
only questions of law, we may also consider new theories on appeal to challenge or
justify the trial court’s rulings. (Ibid.)
       “Where a demurrer is sustained without leave to amend, [we] must determine
whether there is a reasonable probability that the complaint could have been amended to
cure the defect; if so, [we] will conclude that the trial court abused its discretion by
denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of
establishing that it could have amended the complaint to cure the defect.” (Berg & Berg
Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1035.)
       B.      Counts 1 and 3 Are Not Time-barred
       DeBert contends counts 1 and 3 in her third amended complaint, which assert
claims for trespass and nuisance based on the encroaching pipeline, are timely.
Defendants respond that those claims are time-barred, given the allegation in DeBert’s
original complaint that the pipeline was installed in or before the 1980s.

               1.     General Principles Regarding Statutes of Limitations and the
                      Discovery Rule in the Context of Injury to Real Property
       “ ‘Critical to applying a statute of limitations is determining the point when the
limitations period begins to run. Generally, a plaintiff must file suit within a designated
period after the cause of action accrues . . . .’ ” (Nguyen v. Western Digital Corp. (2014)
229 Cal.App.4th 1522, 1538 (Nguyen).) “ ‘A cause of action accrues “when [it] is
complete with all of its elements”—those elements being wrongdoing, harm, and
causation.’ ” (Ibid.) “[F]or limitations purposes[,] the harm implicit in a tortious injury

                                               7
to property is harm to the property itself” rather than to the property owner. (CAMSI IV
v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1534 (CAMSI IV).) Therefore,
“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 (Beck).)
       The discovery rule operates to postpone accrual, and thus the commencement of
the statute of limitations, until the plaintiff discovers the cause of action or could have
discovered the cause of action through the exercise of reasonable diligence. (See
Nguyen, supra, 229 Cal.App.4th at p. 1538; McCoy v. Gustafson (2009) 180 Cal.App.4th
56, 108 (McCoy).) “The limitations period begins once the plaintiff has notice or
information of circumstances to put a reasonable person on inquiry.” (McCoy, supra, at
p. 180.) Whether the circumstances would put a reasonable person on notice is a
question of law that may be resolved on demurrer when the allegations support only one
legitimate inference. (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292,
300.) By contrast, “if the facts alleged [are] susceptible to opposing inferences,” then the
notice question is one of fact. (Ibid.)
       The actual and constructive knowledge of a prior landowner is imputed to the
current landowner for purposes of the discovery rule. (CAMSI IV, supra, 230 Cal.App.3d
at p. 1537 [if prior landowners “knew or should have known” about property
contamination “their knowledge would have been imputed to” current owner-plaintiff].)
The rational underlying that rule is that the current owner can sue the prior owner for
concealing the defects. (Valenzuela v. Superior Court (1992) 3 Cal.App.4th 1499, 1503.)
       “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
                                              8
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.’ ” (CAMSI IV, supra, 230 Cal.App.3d at pp. 1536-1537.)
       With these principles in mind, we consider the statutes of limitations defendants
invoke.
              2.     Section 338, Subdivision (b)
       Defendants contend counts 1 and 3 are barred by section 338, subdivision (b),
which establishes a three-year limitations period for trespass upon or injury to real
property. DeBert does not dispute that the claims are subject to that limitations period.
Instead, she posits three reasons for why the trial court erred in concluding her claims
accrued more than three years before she filed suit.
       First, DeBert argues the trial court erred in characterizing the alleged trespass and
nuisance as permanent as opposed to continuing. While her appellate briefs are difficult
to follow on this point, her position appears to be that she may plead trespass and
nuisance in broad terms, without describing them as permanent or continuing, and make
“a pre-trial election of the cause of action that fits the evidence produced.” Defendants
do not respond to this argument.
       “California law classifies nuisances and trespasses as either continuing or
permanent.” (McCoy, supra, 180 Cal.App.4th at p. 63.) The distinction is important here
because the accrual date of a cause of action for trespass or nuisance is determined, in
part, by whether the trespass or nuisance is continuing or permanent. “The analysis is
essentially the same for trespass as it is for nuisance. [Citation.] For convenience of
statement and citation we shall for the most part refer only to nuisance, but our
conclusions apply as well to [plaintiff’s] trespass theory . . . .” (Capogeannis v. Superior
Court (1993) 12 Cal.App.4th 668, 675 (Capogeannis).)


                                             9
       A continuing nuisance is one that can be discontinued or abated, meaning it “can
be remedied at a reasonable cost by reasonable means.” (Mangini v. Aerojet-General
Corp. (1996) 12 Cal.4th 1087, 1103 (Mangini).) “ ‘Where a continuing nuisance is
alleged, every continuation of the nuisance gives rise to a separate claim for damages
caused by the nuisance.’ ” (Id. at p. 1093.) “[P]ersons harmed by [a continuing
nuisance] may bring successive actions for damages until the nuisance is abated.” (Baker
v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869 (Baker).)
“Recovery is limited, however, to actual injury suffered prior to commencement of each
action. Prospective damages are unavailable.” (Ibid.) “The classic example of a
continuing nuisance is an ongoing or repeated disturbance, such as . . . one . . . caused by
noise, vibration or foul odor.” (Ibid.)
       Conversely, “[w]here the injury or trespass is of a permanent nature, all damages,
past and prospective, are recoverable in one action, and the entire cause of action accrues
when the injury is suffered or the trespass committed.” (Rankin v. DeBare (1928) 205
Cal. 639, 641.) The typical example of a permanent nuisance is an encroaching structure.
(See Baker, supra, 39 Cal.3d at p. 869 [“cases finding the nuisance complained of to be
unquestionably permanent in nature have involved solid structures, such as a building
encroaching upon the plaintiff’s land . . . .”]; Field-Escandon v. DeMann (1988) 204
Cal.App.3d 228, 234 [65-foot-long sewer pipe, buried eight feet beneath plaintiff’s
property, held to constitute a permanent nuisance on motion for summary judgment].)
Indeed, this court has noted that “the concept of permanent nuisance . . . was developed”
for situations involving “an encroaching building or an underlying public utility pipeline”
where abatement is impractical. (Capogeannis, supra, 12 Cal.App.4th at p. 678.)
However, not every structure constitutes a permanent nuisance. In Phillips v. City of
Pasadena (1945) 27 Cal.2d 104, the court concluded that a locked gate could be
characterized as a continuing nuisance because it could be removed at any time.


                                             10
       Here, DeBert seeks to recover for damages caused by the installation of a solid
structure—a utility pipeline—under her property. She does not allege facts suggesting
the pipeline can be removed “at a reasonable cost by reasonable means.” (Mangini,
supra, 12 Cal.4th at p. 1103.) Rather, the allegations—that the pipeline runs underground
and has done so for close to 30 years—support the reasonable inference that the pipeline
is not abatable. Accordingly, we conclude DeBert alleges a permanent nuisance, not a
continuing one. (See Bookout v. State of California ex rel. Dept. of Transportation
(2010) 186 Cal.App.4th 1478, 1489 [at pleading stage, rejecting argument that drainage
system constituted a continuing nuisance]; Lyles v. State of California (2007) 153
Cal.App.4th 281, 291 [same].)
       As noted, DeBert suggests that she is not required to elect between permanent and
continuing nuisance at the pleading stage. In some cases, “the distinction between
permanent and continuing nuisance is close or doubtful.” (Capogeannis, supra, 12
Cal.App.4th at p. 679.) In such cases, “the plaintiff will be permitted to elect which
theory to pursue” (i.e., whether to treat the nuisance as permanent or continuing). (Ibid.)
But “[a] plaintiff cannot simply allege that a nuisance is continuing in order to avoid the
bar of the statute of limitations.” (Beck, supra, 44 Cal.App.4th at p. 1217.) The facts
alleged here do not present a close case.5
       Second, DeBert claims there was “no evidence as to when the pipeline was
installed,” such that there was no basis for the trial court to conclude the complained-of


       5
          Baugh v. Garl (2006) 137 Cal.App.4th 737, despite also involving an alleged
trespass and an underground water pipeline, is distinguishable. In Baugh, plaintiffs’
parcel was served by a pipeline running through an easement on defendant’s property.
(Id. at p. 739.) Plaintiffs sued defendant, alleging he was unlawfully taking water from
the pipeline. The court concluded the complaint alleged a continuing trespass because
defendant’s connection to the pipeline could be “disconnected with relative ease.” (Id. at
p. 747.) The alleged trespass in Baugh was the stealing of water, a plainly abatable act.
Here, the alleged trespass is the pipeline itself.

                                             11
encroachment occurred more than three years before she sued. At the demurrer stage we
are not concerned with evidence but with allegations. In her initial complaint, DeBert
alleged the District installed the pipeline in approximately March 1968 or in the 1980s.
While she omitted that allegation from her amended complaints, “we may consider the
factual allegations of prior complaints.” (Berg & Berg Enterprises, LLC v. Boyle, supra,
178 Cal.App.4th at p. 1034 [“a plaintiff may not discard or avoid [factual allegations of
prior complaints] by making ‘ “ ‘contradictory averments, in a superseding, amended
pleading’ ” ’ ”].) Therefore, the statute of limitations on DeBert’s permanent trespass and
permanent nuisance causes of action started running no later than the 1980s (when the
pipeline was installed), unless the discovery rule delayed accrual. (CAMSI IV, supra, 230
Cal.App.3d at p. 1535 [“once the sewer line has been improperly located on the
property . . . , the tort is complete and the statute of limitations (unless forestalled by the
‘discovery rule’ or some other special doctrine) begins to run”].)
       Third, DeBert invokes the discovery rule, arguing that the limitations period did
not start to run until she discovered the pipeline in September 2012. Defendants respond
that the presence of a fire hydrant on the property supports an inference that the
property’s prior owners knew or should have known about the pipeline, barring
application of the discovery rule.
       We focus first on DeBert’s own knowledge. She alleged she purchased the
property in November 2011 and there were no recorded easements by the District on the
property. Therefore, she could not have had constructive knowledge of the pipeline prior
to November 2011, just 16 months before she filed suit in March 2013.
       With respect to prior owners, the question is whether we reasonably can infer from
the complaint that those prior owners knew or should have known about the pipeline.
(CAMSI IV, supra, 230 Cal.App.3d at p. 1537.) Defendants say such an inference is
reasonably supported by DeBert’s mention in her presuit claim of a fire hydrant on the
property and outside any easement. We disagree. “[A] court may take judicial notice of
                                               12
the filing and contents of a government claim, but not the truth of the claim.” (Gong v.
City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1, citing Evid. Code, § 452,
subd. (c).) Therefore, we need not accept the truth of DeBert’s statement that there is a
fire hydrant on her land. Without that fact, defendants’ theory falls flat.
       Even assuming there is a fire hydrant on DeBert’s land and that its presence is
sufficient as a matter of law to place a reasonable person on inquiry notice, we cannot
infer the prior owners were put on notice by the fire hydrant because there are no facts
alleged or subject to judicial notice regarding when the hydrant was installed. Defendants
appear to speculate that the hydrant was installed at the same time as the pipeline. But, if
anything, the allegations support the inference that the hydrant was installed later:
DeBert alleges that when the District installed the pipeline, it did so “without the
permission of . . . the then owners of the property,” “covered it up, [and left] no trace of
its existence on the surface of the property.” Those allegations are sufficient to support a
reasonable inference that a lack of discovery by the prior owners was excusable.
       In sum, counts 1 and 3 are not subject to general demurrer based on section 338,
subdivision (b)’s three-year limitations period because the delayed discovery rule applies.
              3.     Section 337.15
       Alternatively, defendants argue counts 1 and 3 are barred by the 10-year limitation
on actions involving injury to property caused by latent construction defects set forth in
section 337.15. Section 337.15, subdivision (a) prohibits the bringing of any action “to
recover damages from any person . . . who . . . performs or furnishes the design,
specifications, surveying, planning, supervision, testing, or observation of construction or
construction of an improvement to real property more than 10 years after the substantial
completion of the . . . improvement for any of the following: [¶] (1) Any latent deficiency
in the design, specification, surveying, planning, supervision, or observation of
construction or construction of an improvement to, or survey of, real property. [¶]
(2) Injury to property, real or personal, arising out of any such latent deficiency.”
                                             13
The statute defines “latent deficiency” to mean “a deficiency which is not apparent by
reasonable inspection.” (§ 337.15, subd. (b).) Section 337.15 provides an “ ‘absolute’
10-year limitations period [that] applies regardless of when the defect was discovered.”
(Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 366.)
       Defendants contend section 337.15 applies to DeBert’s complaint because she “is
complaining about a defectively located improvement to real property, construction of
which was completed over ten years before she filed her action.” DeBert does not
respond to this argument.
       Defendants overlook subdivision (e) of section 337.15, which provides that “the
statute cannot be asserted by any person owning, possessing, or controlling the
improvement at the time a deficiency proximately causes injury.” (Magnuson-Hoyt v.
County of Contra Costa (1991) 228 Cal.App.3d 139, 144; accord Leaf v. City of San
Mateo (1980) 104 Cal.App.3d 398, 405 (Leaf) [“Section 337.15 does not protect persons
in actual possession or control, as owner or otherwise, of the offending property at the
time of the proximate cause of the injury.”].) DeBert alleges the District owns the
pipeline. Therefore, it cannot invoke the limitations period set forth in section 337.15.
(See Leaf, supra, at p. 405 [§ 337.15 held not to protect city from liability for defective
sewage and drainage systems in its control].)
       For the foregoing reasons, we conclude counts 1 and 3 are not subject to demurrer
on statute of limitations grounds.
       C.     Count 4 Is Not Time-barred
       DeBert asserts that her count 4 inverse condemnation claim likewise is timely.
Defendants respond that the claim is barred by the limitations periods set forth in
sections 338 and 337.15.
              1.     Section 338, Subdivision (j)
       Section 338 imposes a three-year limitations period on claims for
inverse condemnation based upon damage to real property. (§ 338, subd. (j).)
                                             14
DeBert acknowledges that statute applies to her inverse condemnation cause of action,
but argues her claim was timely because it did not accrue until she discovered the
pipeline in September 2012.
       “A cause of action for inverse condemnation alleging property damage accrues not
necessarily on the date of the ‘taking,’ but, rather, ‘when the damage is sufficiently
appreciable to a reasonable man.’ ” (Lyles v. State of California, supra, 153 Cal.App.4th
at p. 286.) For the reasons discussed above in the context of the discovery rule, the facts
alleged support a reasonable inference that the pipeline was not sufficiently appreciable
to a reasonable person until DeBert uncovered it in September 2012 while excavating her
property. Because DeBert filed the instant action less than three years later, her inverse
condemnation claim is not barred by section 338, subdivision (j).
              2.     Section 337.15
       As discussed above, section 337.15 does not protect the District, which allegedly
owns and controls the pipeline. (See Leaf, supra, 104 Cal.App.3d at p. 405.) Thus, that
statute does not bar DeBert for pursuing her inverse condemnation claim, despite the fact
that the pipeline allegedly was completed more than 10 years before she filed suit.
       In sum, we conclude count 4 is not subject to demurrer on statute of limitations
grounds.
       D.     It Is Not Clear From the Face of the Complaint That DeBert’s Claims
              Are Untimely Under the Government Claims Act
       Defendants contend DeBert’s section 1983 claims and counts 2, 5, and 6 of the
third amended complaint (the trespass, Ralph Act, and Bane Act claims against all
defendants) are barred by a six-month limitations period appearing in the Government
Claims Act (Gov. Code, § 810 et seq.).
              1.     The Government Claims Act
       The Government Claims Act “establishes certain conditions precedent to the filing
of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim

                                             15
for money or damages with the public entity. ([Gov. Code,] § 911.2.)” (State of
California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) “The failure to timely
present a claim for money or damages to a public entity bars the plaintiff from bringing
suit against that entity.” (Sparks v. Kern County Bd. of Supervisors (2009) 173
Cal.App.4th 794, 798; Gov. Code, § 945.4.) “Similarly a claim against a public
employee or former public employee for injuries resulting from acts or omissions in the
course of his or her employment must be presented if a claim against the employing
entity for the same injury must be presented.” (People ex rel. Harris v. Rizzo (2013) 214
Cal.App.4th 921, 939 (Rizzo); Gov. Code, § 950.2.) “This is so because a public entity is
required to pay a judgment against its employee ‘for an injury arising out of an act or
omission occurring within the scope of his or her employment as an employee of the
public entity.’ ” (Rizzo, supra, at p. 939, quoting Gov. Code, § 825, subd. (a).)
       Government Code section 945.6 provides two alternative statutes of limitation for
causes of action under the Government Claims Act where a claim filed with a public
entity has been rejected. If the public entity gives written notice of rejection of the claim
in accordance with Government Code section 913, the statute of limitations is six months
from the day such notice is personally delivered or deposited in the mail. (Gov. Code,
§ 945.6, subd. (a)(1).) If written notice is not given in compliance with Government
Code section 913, the statute of limitations is two years from accrual of the cause of
action. (Id., § 945.6, subd. (a)(2).) The same limitations periods apply to suits against
public employees and former public employees. (Id., § 950.6, subd. (b).)
              2.     Government Code Sections 945.6 and 950.6
       Counts 2, 5, and 6 of the third amended complaint (the trespass, Ralph Act, and
Bane Act claims against all defendants) and the section 1983 claims are based on
DeBert’s interactions with District employees in September 2012. DeBert did not allege
the facts of those interactions until her first amended complaint, which was filed more
than six months after the District denied her presuit claim. Defendants reason that,
                                             16
therefore, the six-month limitations periods set forth in Government Code sections 945.6,
subdivision (a)(1) and 950.6, subdivision (b) bar those claims.
       Defendants’ argument fails because it is not clear from the face of the complaint
whether the six-month limitations period applies here. (E-Fab, Inc. v. Accountants, Inc.
Services (2007) 153 Cal.App.4th 1308, 1315-1316 [“ ‘In order for the bar of the statute of
limitations to be raised by demurrer, the defect must clearly and affirmatively appear on
the face of the complaint . . . .’ ”].) The six-month limitations period applies only where
the public entity gives written notice of rejection of the claim in accordance with
Government Code section 913. That provision requires that a written notice rejecting a
claim include a warning that the claimant is required to sue within six months. (Gov.
Code, § 913, subd. (b).) DeBert has not alleged that her claim was denied in writing or
that the denial contained the Government Code section 913-mandated warning.
Defendants urge us to “presume the Claim was denied by giving written notice of denial”
based on the allegation that the claim was denied within three weeks of being submitted.
Even assuming we could reasonably infer the denial was in writing, nothing supports an
inference that the denial included the requisite warning. Consequently, the section 1983
claims and the second, fifth, and sixth causes of action in the third amended complaint
are not subject to demurrer on the ground that they were untimely under Government
Code sections 945.6, subdivision (a)(1) and 950.6, subdivision (b).
       E.     Claims Against The Individual Defendants
              1.     Rogers and Mueller Were Not Improperly Added as Defendants
       Defendants maintain DeBert’s claims against Rogers and Mueller fail because she
did not follow the appropriate procedures when she added them as defendants in the first
amended complaint.
       “A person may become a party to an action only in one of the ways provided by
law. If not named as a party in the original complaint [citation] any proper person may
be brought in by amendment of the complaint (§ 473) or may be designated by a fictitious
                                             17
name upon proper allegation in the complaint to that effect. (§ 474.)” (Nissan v. Barton
(1970) 4 Cal.App.3d 76, 78-79.) A plaintiff may invoke section 474 only if he or she is
genuinely ignorant of the defendant’s true name. (Stephens v. Berry (1967) 249
Cal.App.2d 474, 477.) DeBert never alleged that she was ignorant of Mueller and
Rogers’s true names and her presuit claim, and the e-mails attached to it, make clear she
was aware of their identities before filing suit. Accordingly, Mueller and Rogers could
not have been made parties to the suit pursuant to section 474. (Nissan v. Barton, supra,
at p. 79.)
       Defendants contend Rogers and Mueller also were not properly brought in by
amendment pursuant to section 473 because the trial court did not explicitly grant DeBert
leave to add them as defendants. After a demurrer has been sustained, the pleading may
be amended only with permission of the court. (§ 473, subd. (a)(1).) Generally, “where
the trial court sustains a demurrer to a pleading but grants leave to amend[,] . . . such
granting of leave to amend . . . [does] not entitle [the plaintiff] to add new parties.”
(People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785-786; see
Schaefer v. Berinstein (1956) 140 Cal.App.2d 278, 299 [“Leave of court is required under
section 473 . . . to add new parties defendant.”].)
       Here, the trial court sustained the District’s demurrer to DeBert’s initial one-count
complaint with leave to amend. In the first amended complaint, DeBert added Rogers
and Mueller as defendants and asserted trespass and section 1983 claims against them.
Defendants demurred, arguing (among other things) that adding the new defendants was
beyond the scope of the order granting DeBert leave to amend. At a hearing on
defendants’ demurrer, the court opined that the trespass claim was time-barred and that
the section 1983 claims were based on facts not alleged in DeBert’s presuit claim. The
court did not mention defendants’ contention that DeBert improperly added the
individual defendants. The trial court sustained the demurrer as to all of the claims


                                              18
asserted against the individual defendants, and granted DeBert leave to amend one of
those claims—the trespass cause of action.
       DeBert’s third amended complaint again asserted a trespass cause of action against
the individual defendants, as well as state civil rights claims under the Ralph and Bane
Acts. The trial court never expressed any surprise that DeBert’s third amended complaint
included claims against the individual defendants. And, in the context of defendants’
unsuccessful motion for reconsideration, the court indicated its order granting leave to
amend was broad. Accordingly, we conclude the trial court implicitly granted DeBert
leave to add Rogers and Mueller as defendants and consider whether doing so constituted
an abuse of discretion.
       “ ‘[T]he trial court has wide discretion in allowing the amendment of any pleading
[citations], [and] as a matter of policy the ruling of the trial court in such matters will be
upheld unless a manifest or gross abuse of discretion is shown.’ ” (Record v. Reason
(1999) 73 Cal.App.4th 472, 486.) In exercising that discretion, “[c]ourts must apply a
policy of great liberality in permitting amendments to the complaint at any stage of the
proceedings, up to and including trial, when no prejudice is shown to the adverse party.”
(Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.)
       Rogers and Mueller have not shown they were prejudiced by their addition as
defendants in November 2013, 14 months after the events giving rise to DeBert’s claims
against them. We are unpersuaded by their claim that their due process rights “to know
about formal legal claims against them and to timely investigate, participate in, and
defend themselves” were violated. Statutes of limitations protect against such violations.
(See Pasadena Hospital Assn., Ltd. v. Superior Court (1988) 204 Cal.App.3d 1031, 1035
[“The policy behind the statute of limitations is to put defendants on notice of the need to
defend against a claim in time to prepare a fair defense on the merits.”].) Both the first
and third amended complaints were filed within two years of the September 2012
incidents on which DeBert’s claims against the individual defendants are based;
                                              19
defendants have not shown that any of the applicable statutes of limitations had run when
the complaints were filed. For these reasons, we conclude the addition of Rogers and
Mueller as defendants under section 473 was not an abuse of discretion.
              2.      Claims Against Mueller Are Barred by the Government Claims Act
       Defendants contend the claims against Mueller fail because his conduct was not
mentioned in DeBert’s presuit claim.
       Government Code section 910 requires that a claim state the “date, place and other
circumstances of the occurrence or transaction which gave rise to the claim asserted” (id.,
subd. (c)) and provide “[a] general description of the . . . injury, damage or loss incurred
so far as it may be known at the time of presentation of the claim” (id., subd. (d)). The
purpose of the Government Claims Act is “ ‘to provide the public entity sufficient
information to enable it to adequately investigate claims and to settle them, if appropriate,
without the expense of litigation.’ ” (City of Stockton v. Superior Court (2007) 42
Cal.4th 730, 738.) It also “ ‘enable[s] the public entity to engage in fiscal planning for
potential liabilities and to avoid similar liabilities in the future.’ ” (Ibid.) “ ‘[S]o long as
the policies of the claims statutes are effectuated, they should be given a liberal
construction to permit full adjudication on the merits.’ ” (Smith v. County of Los Angeles
(1989) 214 Cal.App.3d 266, 280.) As such, “a claim need not contain the detail and
specificity required of a pleading, but need only ‘fairly describe what [the] entity is
alleged to have done.’ ” (Stockett v. Association of Cal. Water Agencies Joint Powers
Ins. Authority (2004) 34 Cal.4th 441, 446 (Stockett).) “The claim . . . need not specify
each particular act or omission later proven to have caused the injury. [Citation.] A
complaint’s fuller exposition of the factual basis beyond that given in the claim is not
fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ ” (Id. at
p. 447.) “Only where there has been a ‘complete shift in allegations, usually involving an
effort to premise civil liability on acts or omissions committed at different times or by
different persons than those described in the claim,’ have courts generally found the
                                               20
complaint barred. [Citation.] Where the complaint merely elaborates or adds further
detail to a claim, but is predicated on the same fundamental actions or failures to act by
the defendants, courts have generally found the claim fairly reflects the facts pled in the
complaint.” (Ibid.) On the other hand, a complaint is subject to dismissal “ ‘if it alleges
a factual basis for recovery which is not fairly reflected in the written claim.’ ” (Ibid.)
       DeBert’s claim alleged Rogers trespassed on her property on two occasions in
September 2012. Her complaint alleges Mueller participated in the first trespass and
directed the actions of Rogers in connection with the second. On the one hand, the
complaint is premised on the same events alleged in the claim. On the other, the
complaint attempts to impose liability on a person not described in the claim based on
new “fundamental actions” (i.e., Mueller’s conduct). (Stockett, supra, 34 Cal.4th at
p. 447.) Ultimately, the question for us is whether “the claim [gave] adequate
information for the [District] to investigate.” (Id. at p. 449.) It certainly contained
sufficient facts to prompt the District to investigate Rogers’s entries onto DeBert’s land
in September 2012. However, we cannot say that “[a] reasonable investigation by [the
District] would have included questioning” Mueller or looking into his possible
involvement. (Ibid.) Because the District “was given no warning that it might be sued
for” Mueller’s involvement in the alleged trespasses “and had no opportunity to consider
the validity of such a claim until the filing of the amended complaint” (Fall River Joint
Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431, 436), we conclude
the presuit claim is insufficient as to the claims against Mueller.
       We are not persuaded by DeBert’s contention that the District waived any defense
based on her noncompliance with the Government Claims Act by not notifying her that
her claim was defective as required by Government Code sections 910.8 and 911.
Government Code section 910.8 provides that “[i]f, in the opinion of the board or the
person designated by it, a claim as presented fails to comply substantially with the
requirements of [Government Code] Sections 910 and 910.2, . . . the board or the person
                                              21
may, at any time within 20 days after the claim is presented, give written notice of its
insufficiency, stating with particularity the defects or omissions therein. . . .” Under
Government Code section 911, “[a]ny defense as to the sufficiency of the claim based
upon a defect or omission in the claim as presented is waived by failure to give notice of
insufficiency with respect to the defect or omission as provided in [Government Code]
Section 910.8 . . . .”
       Here, the issue is a variance between the claim and the complaint. The District
could not have anticipated that variance at the time it denied DeBert’s claim, which was
before she filed suit. Accordingly, it was not required to notify her of that issue.
       “The issue of leave to amend is always open on appeal, even if not raised by the
plaintiff.” (City of Stockton v. Superior Court, supra, 42 Cal.4th at p. 746.) DeBert has
not demonstrated that she could amend her complaint to show she satisfied the claims
presentation requirements of the Government Claims Act with respect to her claims
against Mueller.
       F.      Section 1983 Claims
       DeBert asserts her section 1983 claims were timely and properly pleaded in her
first amended complaint. Defendants respond that DeBert waived her right to appeal any
error related to her section 1983 claims by (1) failing to explain on appeal why the order
sustaining their demurrer to the first amended complaint is appealable and (2) asserting
state civil rights claims in the second and third amended complaints.
               1.        Appealability and California Rules of Court, Rule 8.204(a)(2)(B)
       DeBert’s opening brief does not “[s]tate that the judgment appealed from is final,
or explain why the order[s] appealed from”—those sustaining the demurrers to the first
and third amended complaints—are “appealable,” in violation of rule 8.204(a)(2)(B) of
the California Rules of Court. On that basis, defendants urge us to (1) strike all
references to DeBert’s section 1983 claims from her opening brief and (2) find DeBert


                                               22
waived her right to appeal from the order sustaining the demurrer to the first amended
complaint.
       We exercise our discretion under California Rules of Court, rule 8.204(e)(2)(C) to
disregard the noncompliance because, to the extent the order sustaining the demurrer to
the first amended complaint addressed the section 1983 claims, it is clearly reviewable.
An order sustaining a demurrer, whether with or without leave to amend, is not
appealable. (Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1132.) Instead, an “ ‘ “order
sustaining a demurrer . . . is generally reviewable on appeal from the final judgment in
the action.” ’ ” (Ibid.; see § 906 [on appeal from a final judgment, “the reviewing court
may review . . . any intermediate ruling, proceeding, order or decision which involves the
merits or necessarily affects the judgment or order appealed from . . . .”].) Here, the
order sustaining the demurrer to DeBert’s first amended complaint was without leave to
amend as to the section 1983 claims and with leave to amend as to the other claims. That
order was not immediately appealable. DeBert elected to amend the causes of action for
which she was granted leave to amend. In doing so, she did not waive any error in the
sustaining of the demurrer to the section 1983 claims that she never amended.
(County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312
[“[t]he rule that a choice to amend waives any error can reasonably be applied only on a
cause-of-action-by-cause-of-action basis”].) She “may challenge the intermediate ruling
on the demurrer [to her first amended complaint] on . . . appeal from [the] subsequent
judgment,” which defendants acknowledge is final. (Ibid.)

              2.     DeBert Did Not Waive Errors Related to Her Section 1983 Claims
                     By Asserting State Civil Rights Claims
       Defendants contend DeBert waived her right to pursue her section 1983 claims on
appeal by asserting state law civil rights claims (under the Ralph and Bane Acts) in her
second and third amended complaints. According to defendants, because DeBert’s
section 1983 claims and state civil rights claims are largely based on the same facts “and

                                             23
relate to the same primary right,” she cannot pursue both sets of claims without
improperly splitting a single cause of action. Even assuming all of DeBert’s civil rights
claims involve the same primary right,6 we conclude DeBert has not impermissibly split
her cause of action.
       “The primary right theory is a theory of code pleading that has long been followed
in California. It provides that a ‘cause of action’ is comprised of a ‘primary right’ of the
plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the
defendant constituting a breach of that duty. [Citation.] The most salient characteristic
of a primary right is that it is indivisible: the violation of a single primary right gives rise
to but a single cause of action.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.)
“ ‘Even where there are multiple legal theories upon which recovery might be predicated,
one injury gives rise to only one claim for relief.’ ” (Id. at pp. 681-682.)
       “ ‘The primary right theory has a fairly narrow field of application. It is invoked
most often when a plaintiff attempts to divide a primary right and enforce it in two
suits.’ ” (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1146.) Here, we are not
concerned with separate suits, but with amended complaints in a single action. It is for
that reason that defendants’ reliance on Ricard v. Grobstein, Goldman, Stevenson, Siegel,
LeVine & Mangel (1992) 6 Cal.App.4th 157 is misplaced. In an initial malpractice
action, the Ricard plaintiffs unsuccessfully sought to amend their complaint to add a
claim for conspiracy. They then filed a separate suit, which “was limited to the identical
claim they had unsuccessfully sought to join in their malpractice action.” (Id. at p. 159.)
The plaintiffs “conceded” the second suit was an “effort to avoid [the first court’s] ruling
without challenging it in an authorized manner.” (Ibid.) In Ricard, the appellate court


       6
        It is far from obvious that all of DeBert’s section 1983 claims and her Ralph Act
and Bane Act claims involve the same primary right. Defendants do not indicate what
primary right they believe the claims involve.

                                              24
affirmed an order sustaining a demurrer to the complaint in the second action. In doing
so, it concluded that plaintiffs’ “second suit would merely have split their cause of action
in violation of the policy against misuse of court time.” (Id. at p. 162.) Ricard is
distinguishable because it involved two separate lawsuits.
       The primary right theory does not prevent a plaintiff from pleading “the same
cause of action according to different legal theories,” something that “was permissible at
common law, and is also allowed under the codes.” (4 Witkin, Cal. Procedure (5th ed.
2008) Pleading, § 402, p. 542.) “[W]hen for any reason the pleader thinks it desirable so
to do, as where the exact nature of the facts is in doubt, or where the exact legal nature of
plaintiff’s right and defendant’s liability depend on facts not well known to the plaintiff,
his pleading may set forth the same cause of action in varied and inconsistent counts with
strict legal propriety.” (Tanforan v. Tanforan (1916) 173 Cal. 270, 273.) This
permissible practice, known as “pleading inconsistent causes of action,” is precisely what
DeBert engaged in here. (4 Witkin, supra, Pleading, § 402, p. 543.) She did not waive
her right to pursue section 1983 claims by asserting Ralph and Bane Act claims.
              3.     The Government Claims Act Does Not Apply to Section 1983 Claims
       DeBert argues that the Government Claims Act does not apply to her section 1983
claims. While defendants do not address this argument, we shall do so to provide
guidance to the parties and the court on remand.
       “[F]ederal civil rights claims under 42 United States Code section 1983 are
exempt from the requirements of the Government Claims Act . . . because the supremacy
clause of the United States Constitution does not permit a state law to alter or restrict
federally created rights. As our Supreme Court has noted, ‘the filing of a claim for
damages “is more than a procedural requirement, it is a condition precedent to plaintiff’s
maintaining an action against defendants, in short, an integral part of plaintiff’s cause of
action.” And while it may be constitutionally permissible for the Legislature to place this
substantive impediment in the path of a state cause of action, it is clear that the
                                              25
supremacy clause will not permit a like abrogation of the perquisites of a federal civil
rights litigant.’ ” (Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 764, quoting
Williams v. Horvath (1976) 16 Cal.3d 834, 842.) Accordingly, the Government Claims
Act does not apply to DeBert’s section 1983 claims.
       G.     Sham Pleading
       Defendants urge us to affirm the judgment of dismissal based on DeBert’s
litigation tactics below, including her omission of allegations regarding when the pipeline
was installed from her amended complaints and her request for a default judgment, which
the trial court described as “a bad faith argument.”
       Defendants rely on cases acknowledging that trial courts have the inherent power
to dismiss actions shown to be “fictitious or sham.” (Cunha v. Anglo California Nat.
Bank (1939) 34 Cal.App.2d 383, 388; accord Utz v. Aureguy (1952) 109 Cal.App.2d 803,
806.) “[A]lthough the discretionary power to dismiss with prejudice has been upheld in
this state, its use has been tightly circumscribed.” (Lyons v. Wickhorst (1986) 42 Cal.3d
911, 916.) “In those situations in which a dismissal pursuant to the court’s discretionary
power has been upheld, affirmance has not been without reservation,” in part due to the
long-standing “policy favoring a trial on the merits.” (Ibid.)
       We decline to affirm on the ground the complaints were sham pleadings.
Defendants did not seek dismissal of DeBert’s action below on that ground, and there is
no indication in the record that the trial court’s judgment of dismissal was entered for this
reason. Moreover, defendants have not shown DeBert’s claims to be fictitious or invalid.
III.   DISPOSITION
       The judgment of dismissal is reversed and the cause is remanded to the superior
court. On remand, the court is directed to vacate its order sustaining defendants’
demurrer to the third amended complaint and to enter a new order (1) sustaining without
leave to amend the demurrer to the third amended complaint as to the claims against
James Mueller and (2) overruling the demurrer to the third amended complaint as to the
                                             26
claims against Rick Rogers and the San Lorenzo Valley Water District. The court is
further directed to vacate its order sustaining defendants’ demurrer to the first amended
complaint to the extent it sustained the demurrer to DeBert’s 42 United States Code
section 1983 claims without leave to amend, and to enter a new order (1) sustaining
without leave to amend the demurrer to 42 United States Code section 1983 claims
against James Mueller and (2) overruling the demurrer to 42 United States Code
section 1983 claims against Rick Rogers and the San Lorenzo Valley Water District. The
parties shall bear their own costs on appeal.




                                                27
                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




DeBert v. San Lorenzo Valley Water District et al.
H041482

      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
