Filed 6/30/15 Walker v. Imperial Irrigation Dist. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



RALPH WALKER,                                                       D066429

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. Nos. ECU07519,
                                                                    ECU07537)
IMPERIAL IRRIGATION DISTRICT,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa,

Judge. Affirmed.



         Sutherland & Gerber and Lowell F. Sutherland, for Plaintiff and Appellant.

         Law Offices of Dennis L. Shields and William R. Polk, for Defendant and

Respondent.
                                    INTRODUCTION

       Ralph Walker appeals the trial court's dismissal of his first amended complaint

(complaint) against the Imperial Irrigation District (District) for inverse condemnation,

nuisance, dangerous condition of public property, and abatement of nuisance on the

ground he did not have standing to sue because he was not the owner of either of the

properties which were the subject of the complaint. He contends we must reverse the

judgment because the court improperly utilized the procedure in Code of Civil Procedure

section 1260.040 (section 1260.040) to resolve liability issues and the tort causes of

action. He additionally contends the court erroneously found he lacks sufficient rights in

the subject properties to have standing to sue. We are unpersuaded by these contentions

and affirm the judgment.

                                    BACKGROUND1

       Two separate properties in the city of Calipatria, one located at 685 E. Bonita (685

property) and one located at 686 E. Bonita (686 property), were flooded in 2012. The

685 property was owned by Walker's mother. She died in 1978. A year or two before his

mother's death, Walker moved onto the property. After his mother's death, Walker

started paying the property taxes, but then his sisters took over this responsibility. There

is no evidence or assertion Walker's mother's estate has ever been probated. Although

Walker considers the 685 property to be family property jointly owned by him and his 11


1      We derive our summary from evidence submitted by the District with its motion to
dismiss and from facts stated in an offer of proof Walker submitted with his opposition to
the District's motion.

                                              2
siblings, he never told his siblings about this action because he "didn't want them

bugging" him.

       The 686 property was owned by a family friend Walker considered to be like a

grandfather. He died in 1985. Before his death, he purportedly instructed Walker to do

whatever Walker wanted with the property. He did not, however, expressly give the

property to Walker. After his death, Walker began living on the property and assumed

responsibility for paying the property taxes. There is no evidence or assertion the family

friend's estate has ever been probated. Although Walker considers himself to be the sole

owner of the 686 property, he has never done anything to obtain title to the property.

However, he claims ownership of the property by adverse possession based on his

continuous occupancy of the property and his payment of property taxes.

       After the flood, Walker sued the District for inverse condemnation, nuisance,

dangerous condition of public property, and abatement of nuisance.2 The District filed a

motion to dismiss Walker's complaint under section 1260.040 on the grounds Walker was

not the owner of the real property alleged to be damaged by the flood and none of

Walker's personal property was damaged.3 The trial court granted the motion on the




2      Walker also sued the State of California. The State has since been dismissed from
this appeal.

3      The latter ground is not at issue in this appeal.

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ground Walker was not the legal owner of either the 685 property or 686 property.

Rather, the owners were the estates of his mother and the family friend, respectively.4

                                      DISCUSSION

                                              I

       Preliminarily, Walker contends the trial court improperly utilized the procedure in

section 1260.040 to resolve liability issues and the tort causes of action. We disagree.

       Section 1260.040 is part of California's eminent domain law. (Dina v. People ex

rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1041 (Dina). Subdivision (a)

of section 1260.040 provides in part, "If there is a dispute between plaintiff and defendant

over an evidentiary or other legal issue affecting the determination of compensation,

either party may move the court for a ruling on the issue." Subdivision (c) of section

1260.040 provides, "This section supplements, and does not replace any other pretrial or

trial procedure otherwise available to resolve an evidentiary or legal issue affecting the

determination of compensation."

       The Law Revision Commission comments to section 1260.040 explain the section

"is intended to provide a mechanism by which a party may obtain early resolution of an

in limine motion or other dispute affecting valuation. . . . [T]he procedure provided in

this section is limited to resolution of legal issues that may affect compensation; it may

not be used to ascertain just compensation. [Citation.] [¶] Nothing in this section


4      The record shows Walker requested a continuance to allow him to complete
probate for the 685 property and complete a quiet title action for the 686 property. The
court denied the continuance. The propriety of the court's ruling is not at issue in this
appeal.
                                             4
precludes the use of other procedures for the same purpose, including, without limitation,

bifurcation of issues and control of the order of proof pursuant to statute, or other pretrial

procedure pursuant to court rule." (Cal. Law Revision Com. com., 19 West's Ann. Code

Civ. Proc. (2007 ed.) foll. § 1260.040, p. 623.)

       The broad language of section 1260.040, subdivision (a), is reasonably construed

to permit a trial court to adjudicate the District's liability for inverse condemnation as the

validity of a party's inverse condemnation claim directly affects the party's entitlement to

compensation. (Dina, supra, 151 Cal.App.4th at pp. 1041, 1043.) This construction is

consistent with the statute's purpose of facilitating the resolution of condemnation cases

without trial. (Ibid.)

       As part of its inherent power to control litigation and conserve judicial resources, a

trial court may also utilize the procedure in section 1260.040 to simultaneously

adjudicate companion tort claims, at least where the tort claims rely on the same evidence

as the inverse condemnation claim. (See Dina, supra, 151 Cal.App.4th at pp. 1046,

1052-1053.) Use of the section 1260.040 procedure in this manner seems especially

appropriate where, as here, the District's challenges to Walker's claims share an identical

factual and legal basis and Walker's standing is a threshold issue which must be resolved

before his claims can be reached on the merits. (CashCall, Inc. v. Superior Court (2008)

159 Cal.App.4th 273, 286.)




                                              5
                                              II

                                              A

       Having concluded the trial court properly utilized the section 1260.040 procedure,

we must now address whether the court correctly determined Walker lacked standing to

assert his claims. A motion under section 1260.040 is a summary procedure analogous to

a motion for nonsuit or a demurrer. (Dina, supra, 151 Cal.App.4th 1045.) As with a

motion for nonsuit, we review the evidence in a light favorable to Walker. (Ibid.) We

may uphold the judgment only if, after accepting Walker's asserted facts as true and

indulging every legitimate inference in his favor, the " ' " 'facts and inferences lead

inexorably to the conclusion [Walker] cannot establish an essential element of [his] cause

of action.' " ' " (Id. at p. 1047.)

                                              B

       "Every action must be prosecuted in the name of the real party in interest, except

as otherwise provided by statute." (Code Civ. Proc., § 367.) "The purpose of this section

is to protect a defendant from harassment by other claimants on the same demand."

(Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111

Cal.App.4th 912, 921.)

       " 'A real party in interest ordinarily is defined as the person possessing the right

sued upon by reason of the substantive law.' " (Redevelopment Agency of San Diego v.

San Diego Gas & Electric Co., supra, 111 Cal.App.4th at pp. 920-921.) "A party who is

not the real party in interest lacks standing to sue." (Id. at p. 920.) Thus, a complaint

filed by someone who is not a real party in interest fails to state a claim. (Id. at p. 921.)

                                               6
       Generally, to have standing to assert a claim for injury to real property, a person

must own, lawfully possess, or have a right to possess the property. (See Del Mar Beach

Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 906.)

Similarly, in a condemnation proceeding, standing to sue requires a person to have a legal

or equitable interest in the property that is the subject of the proceeding. (Code Civ.

Proc., § 1250.230; Legis. Com. com., 19 West's Ann. Code Civ. Proc. (2007 ed.) foll.

§ 1250.230, p. 500; Miller & Lux, Inc. v. James (1919) 180 Cal. 38, 51 [the person with

the standing to sue in a condemnation proceeding is the person who owned the property

right at the time it was taken].)

       Walker contends he has standing to bring his inverse condemnation and other

injury to real property claims because he has valuable rights in the 685 property through

inheritance and in the 686 property by adverse possession. His contention principally

relies on the valuable rights theory established by the California Supreme Court in

County of San Diego v. Miller (1975) 13 Cal.3d 684. Specifically, the court held a

claimant's right to compensation must be determined by whether the condemnation

deprived claimant of a valuable right and not by whether the right could technically be

characterized as an estate or interest in real property. (Id. at p. 691; see Selby Realty Co.

v. City of San Buenaventura (1973) 10 Cal.3d 110, 119-120 ["In order to state a cause of

action for inverse condemnation, there must be an invasion or an appropriation of some

valuable property right which the landowner possesses and the invasion or appropriation

must directly and specially affect the landowner to his injury"].)



                                              7
       Nonetheless, for the valuable rights theory to apply, the subject right must be

cognizable. (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th

507, 516.) In other words, the right must be concrete and actual, not conjectural or

hypothetical. (Teal v. Superior Court (2014) 60 Cal.4th 595, 599; Holmes v. California

Nat. Guard (2001) 90 Cal.App.4th 297, 315.) In this case, there is no basis in the record

to conclude Walker's claimed rights in the 685 property and 686 property are cognizable,

concrete, or actual. Rather, because the estates of Walker's mother and the family friend

have not been administered and Walker has never attempted to otherwise validate his

claimed rights in the properties, the rights are presently conjectural and hypothetical. As

conjectural and hypothetical rights do not confer standing, Walker has not established the

trial court err in dismissing his complaint.

                                       DISPOSITION

       The judgment is affirmed. Respondent is awarded its appeal costs.




                                                                      MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

HALLER, J.




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