Peters v. City of Beaumont CA4/2

Filed 3/14/22 Peters v. City of Beaumont 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

CHARLES PETERS,

Plaintiff and Appellant, E075845

v. (Super.Ct.No. RIC1707116)

CITY OF BEAUMONT, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,

Judge. Affirmed.

Charles Peters, in pro. per.; Law Offices of Joe Estrada and Joe Estrada, for

Plaintiff and Appellant.

Slovak Baron Empey Murphy & Pinkney, Shaun M. Murphy and Brent S.

Clemmer for Defendant and Respondent.

Plaintiff and appellant Charles Peters (Peters) appeals the sustaining of the

demurrer in favor of defendant and respondent City of Beaumont (City). Peters owned a

mobile home park in the City called Pioneer Mobile Village (Pioneer Village). In 2011,

1
the City denied Peters an operating permit for Pioneer Village. In addition, the City

adopted an emergency resolution pursuant to Government Code section 8558,

subdivision (c), allowing for the collection of utility payments directly from Pioneer

Village residents when it was discovered Peters was not paying the water utility and the

water had been cut off. In 2016, Peters filed his first complaint. He subsequently filed

his Third Amended Complaint (TAC) which had causes of action against the City for

inverse condemnation; unlawful taking of property under color of state law pursuant to

42 United States Code section 1983; deceit/false promises; injunctive relief; and

declaratory relief. The trial court granted the City’s demurrer to the TAC for the above

causes of action without leave to amend and dismissed the City.

On appeal, Peters makes several claims, including that (1) the trial court had no

valid reason for refusing to enter default against the City on June 12, 2017, for failing to

answer the complaint; (2) the trial court had no valid reason for refusing to file his

request for entry of default against the City on October 31, 2019; (3) the trial court erred

when it permitted the City to file one demurrer to several causes of action while denying

him the right to file separate oppositions to each one; (4) the trial court erred when it

considered a ground of demurrer that was prohibited by Code of Civil Procedure section

430.41, subdivision (b); (5) the trial court erroneously dismissed the inverse

condemnation and takings causes of action; and (6) the deceit/false promises cause of

action could be amended to state a claim of relief against the City.

2
 FACTUAL AND PROCEDURAL HISTORY

Peters was the owner of Pioneer Village, a mobile home park in the City. Starting

in 2000, he was issued operating permits by the State of California’s Department of

Housing and Community Development. In 2009 or 2010, the City began issuing permits

pursuant to Health and Safety Code section 18207. In 2011, the City refused to reissue

him an operating permit. Peters was harmed by the inability to collect rent from

residents. In addition, in 2012 the City discovered that Peters was not paying the bills

from Beaumont Cherry Valley Water District (Water District) and that water had been

cut off to the Pioneer Village residents. The City adopted an emergency resolution

pursuant to Government Code section 8558, subdivision (c), providing for the residents to

pay their water bill into a special fund that would be given directly to the Water District

rather than paid to Peters.

A. INITIAL COMPLAINT, FIRST AND SECOND AMENDED

COMPLAINTS

On June 29, 2016, Peters filed a complaint for damages in Los Angeles County

raising 35 causes of action including breach of contract, discrimination, fraud and

interference with prospective economic relations. He named the City, Keith Hightower

(a City employee), and several other employees of the City. The complaint was served

on Hightower “as an individual defendant” on July 15, 2016.

3
 On August 16, 2016, the City brought a motion to change venue to Riverside

County. The motion to change venue was granted on March 7, 2017.

Peters filed a First Amended Complaint (FAC) on March 12, 2018 in Riverside

County. He alleged 18 causes of action including interference with contractual relations,

conspiracy, trespass, loss of profits, an unconstitutional taking and discrimination. He

named the City, Hightower and several other City employees.

On September 18, 2019, the City filed a Motion to Dismiss based on Peters failure

to serve the City with the summons and complaint within three years of the

commencement of the action as required by Code of Civil Procedure section 583.210,

subdivision (a). The City argued that Peters commenced the action on June 29, 2016, but

first served the City on August 20, 2019, more than three years after the commencement

of the action. The action against the City must be dismissed. On October 31, 2019,

Peters filed opposition to the City’s motion to dismiss. He insisted that the City had

generally appeared in the case despite not being served. The City filed a reply that they

were only “specially appearing” and that they were not properly served within the three

years. The trial court denied the motion to dismiss.

On October 28, 2019, Peters filed his Second Amended Complaint (SAC) bringing

18 causes of action like those raised in the FAC. He named the City, Hightower and

several other City employees. The trial court ordered that the City was to reply to the

SAC by December 4, 2019.

4
 The City filed a demurrer to the SAC. The City alleged that the original complaint

and FAC had been dismissed by the trial court. The City noted that only seven of the

causes of action in the SAC applied to it and that these seven causes of action were

barred by the statute of limitations, and were not sufficient to state facts sufficient to

support an action against the City.

Peters filed several oppositions to the demurrer to the SAC between February 21,

2020, and February 26, 2020, addressing each cause of action. The City filed responses

to all of the oppositions. The City argued that the filing of several oppositions was

improper. The trial court should grant the demurrer without leave to amend. On March

6, 2020, the City’s demurrer to the SAC was sustained with 20 days leave to amend.

B. THIRD AMENDED COMPLAINT

Peters filed the TAC on June 1, 2020. He named the City, the Water District and

several City employees. He alleged 19 causes of action but only the 9th, 13th, 14th, 15th,

16th, 17th, 18th and 19th causes of action applied to the City.

As for the 9th cause of action for inverse condemnation, Peters alleged that the

City had improperly adopted a resolution of emergency on October 2, 2012, setting up a

fund for residents to pay their share of the water bill and the City would directly pay for

water services to the Water District. Peters insisted he had a property interest in the

payments. The acts continued because he was still not in charge of the water bills so the

statute of limitations had not run. He further argued that governmental immunity did not

apply to inverse condemnation. Peters sought injunctive relief.

5
 The 13th cause of action alleged an unconstitutional taking of property under color

of state law, a 42 United States Code section 1983 action. This was based on the City

refusing to grant him an operating permit. This was a loss of a property interest; he could

not derive income from the property. The refusal to issue a permit was a taking under the

Fifth Amendment. The City did not have immunity. The statute of limitations did not

apply because it was a continuing tort.

The 14th cause of action was for the tort of deceit/false promises. Peters alleged

employees of the City repeatedly advised Peters that they would send him a renewal

application for an operating permit, and if he completed it, they would issue a permit.

The City never sent him the application. He also alleged he thought there was an oral

contract to operate between 2011 to 2015 based on the promise to renew his operating

license. Peters estimated he had lost rents in the amount of 2.8 million.

The 15th cause of action alleged breach of a written contract. This involved a

settlement agreement between the City and Peters, which was effective in 2002. He

alleged there was a lawsuit but the City had dismissed it on December 2, 2003. The City

never performed its obligations under the agreement.

As for the 16th and 17th causes of action, Peters stated they had been dismissed.

The 18th cause of action alleged injunctive relief. The 19th cause of action alleged

declaratory relief within the meaning of Code of Civil Procedure section 1060. Peters

alleged a judicial declaration was necessary so the parties may ascertain their rights in

this controversy.

6
 C. DEMURRER TO TAC

The City filed a demurrer to the TAC.1 The City alleged that the Mobile Home

Parks Act (Health and Saf. Code, § 18200 et. seq.) was enacted to assure the protection,

safety and general welfare of mobile home park residents. The City alleged that Peters

collected money from residents for water service, but failed to pay the Water District for

the water. Water service to Pioneer Village was terminated on September 12, 2012.

Pursuant to the California Emergency Services Act, on October 12, 2012, the City

established a special fund to which residents could pay their water bill and the City

directly paid the Water District.

The City demurred to the 9th cause of action for inverse condemnation on the

basis that it was barred by the statute of limitations under Government Code section

945.8, the City had immunity under Government Code section 8655, and Peters could not

allege a protectable property interest to support an inverse condemnation claim. This

cause of action was based on the City collecting the utility payments for the water bills.

The City contended that Peters had no protectable property interest in the utility

payments. These were not rent payments but rather a “utility passthrough.” Moreover,

the claim was barred due to immunity of the City pursuant to Government Code section

8665 for emergency actions. The City also alleged the claim was barred by the statute of

limitations.

1 On June 25, 2020, Peters brought an ex parte motion complaining that the City
had filed one demurrer to several causes of action. The trial court advised Peters that the
City was required to file one demurrer.

7
 The City contended the 13th cause of action for unconstitutional taking of property

was barred by the statute of limitations. Peters had no property interest in a renewable

permit. The City interpreted the claim as based on the City refusing to issue a permit to

operate beginning in 2011. Peters was not entitled to have the permit issued. Peters

failed to allege that he had submitted an application and appropriate fees. Further, the

claim was barred by the statute of limitations. Even if he alleged a Fifth Amendment

taking under 48 United States Code section 1983, he had two years to bring the action.

Additionally, the City had immunity pursuant to Government Code section 818.4.

The 14th cause of action, for tort of deceit, was barred based on immunity under

Government Code section 818.8, for failure to timely file a tort claim pursuant to

Government Code section 911.2, and it was barred by the statute of limitations. The City

argued it was immune from liability for misrepresentations by its employees.

The 15th cause of action was barred by failure to file a timely tort claim (Gov.

Code, § 911.2) and barred by collateral estoppel/res judicata. This cause of action

pertained to a settlement agreement entered into between the City and Peters in 2003.

Peters failed to file a timely tort claim within the one-year statute of limitations. Further,

the issue was res judicata as the claim had been litigated in the City’s favor in 2007.

The 16th cause of action, failure to accommodate, did not state facts sufficient to

support a cause of action against the City. Further, Peters had previously agreed to

dismiss the claim. The 17th cause of action for discrimination did not state facts

sufficient to support a cause of action against the City. The 18th cause of action for

“injunctive relief” was a remedy and not a cause of action. The cause of action was

8
uncertain, ambiguous and unintelligible within the meaning of Code of Civil Procedure

section 430.10, subdivision (f). Finally, the 19th cause of action for declaratory relief did

not state facts sufficient to support a cause of action against the City and was not

necessary or proper.

The City also made a request for judicial notice of the litigation in 2003. They

also sought judicial notice of the emergency resolution adopted on October 2, 2012. The

emergency resolution was brought due to a local emergency pursuant to Government

Code sections 8558, subdivision (c) and 8630. The resolution provided that Peters had

failed to pay the water bill for Pioneer Village resulting in water service being shut off for

residents. A special fund was created to pay the Water District.

On June 22, 2020, Peters filed a request for dismissal of the 15th cause of action

against the City. The request was granted. Peters filed a motion to strike the demurrer to

the TAC in its entirety. Peters contended the motion was brought because City did not

follow State rules in filing the demurrer. It had to file a separate demurrer for each cause

of action. The City filed opposition arguing the City was entitled to file one demurrer as

to all of the causes of action.

D. OPPOSITION TO THE DEMURRER

On June 25, 2020, Peters filed his opposition to the City’s demurrer. He agreed

the 15th cause of action had been dismissed. Peters first addressed the City’s demurrer to

the 9th cause of action. Peters insisted that he had shown a protectable property interest.

Additionally, immunity of Government Code section 8655 did not apply. Further, the 9th

cause of action was not barred by the statute of limitations. Peters also opposed the

9
demurrer on the 13th cause of action. He had a vested property right in operating a

mobile home park. Additionally, the demurrer to the 14th cause of action should not be

sustained because the City did not have governmental immunity. Peters also alleged the

cause of action could be amended to address concerns of the City by repleading it as a

federal civil rights cause of action. He provided no further argument how his claim could

be brought as a civil rights cause of action. Peters alleged that he had a “lack of time” to

address the 18th and 19th causes of action.

E. REPLY TO OPPOSITION TO DEMURRER

The City filed a reply to the opposition to the demurrer on June 30, 2020.

Initially, it argued that Peters opposition was untimely pursuant to Code of Civil

Procedure section 1005. Further, Peters had filed no opposition to the demurrer in

regards to the 15th, 16th, 17th, 18th and 19th causes of action. Peters’s claims on the 9th,

13th and 14th causes of action failed on their merits.

F. TRIAL COURT RULING

On July 8, 2020, the trial court provided a tentative ruling on the City’s demurrer.

It tentatively ruled that it would grant the demurrer on the 9th, 13th, 14th, 18th and 19th

causes of action for failure to state sufficient facts, without leave to amend. The trial

court noted that Peters had already dismissed the 15th, 16th and 17th causes of action.

The trial court found as to the 9th cause of action, that it was a claim for inverse

condemnation. The claim was based on an intangible intrusion onto Peters’s property,

which placed a burden on the property that was direct, substantial and peculiar to the

property itself. The trial court noted that Peters, in order to establish this claim, must

10
show a protectable property interest, there was a taking of the property, and the taking

was for a public purpose. Peters had failed to show he had a right to collect the water

payments or that this hurt his property as he was not entitled to keep the water funds.

The trial court ruled as to the 13th cause of action that Peters did not have a vested

property right in the issuance of an operating permit. The trial court also concluded the

claim was barred by the statute of limitations as the denial of the permit occurred in 2011.

The statute of limitations was two years pursuant to Code of Civil Procedure section

335.1. Peters had to file suit by 2013 but did not file until 2016.

The 14th cause of action for fraud did not plead with specificity what statements

were made, when they were made, or what authority the employee had to bind the

corporation. Further, the City had immunity under Government Code section 818.8. The

15th, 16th and 17th causes of action had been dismissed. The 18th cause of action was a

remedy, not an allegation. The 19th cause of action for declaratory relief was insufficient

as it was applied prospectively and not to address past wrongs. The trial court granted

the City’s request for judicial notice.

Oral argument was heard on July 8, 2020. Peters repeatedly stated that the

tentative ruling did not address his arguments. The trial court sustained the demurrer on

the 9th, 13th, 14th, 18th and 19th causes of action for failure to state sufficient facts,

without leave to amend. The 15th, 16th and 17th causes of action had already been

dismissed by Peters. The trial court found the motion to strike the City’s demurrer moot

and failed on its merits.

11
 Notice of entry of the order sustaining the demurrer was filed on July 10, 2020,

and dismissal of the City from the TAC was filed the same day. On August 19, 2020,

Peters filed a motion for relief of dismissal of all of the claims dismissed against the City.

The City filed opposition on September 1, 2020. The City contended it was an improper

and untimely motion for reconsideration. Peters attempted to file a fourth amended

complaint on September 2, 2020, but it was stricken. The motion for relief was denied by

the trial court after a hearing. Notice of ruling was filed on September 25, 2020. Peters

filed his notice of appeal on September 28, 2020.

DISCUSSION

A. ISSUES RAISED OTHER THAN THE MERITS

Peters addresses matters that occurred prior to the granting of the demurrer and

entry of judgment dismissing the City. First, he insists that in 2017 and 2019, the clerk of

the Riverside Superior Court twice improperly rejected his requests for default based on

the City not responding to the operative complaint. He further contends that the trial

court should not have allowed the City to file its demurrer in one pleading; the trial court

should have required a separate demurrer for each cause of action allowing him the

opportunity to file a separate response to each cause of action. Further, the trial court

erred by considering a grounds for demurrer that was prohibited by Code of Civil

Procedure section 430.41, subdivision (b).

“The existence of an appealable judgment is a jurisdictional prerequisite to an

appeal. A reviewing court must raise the issue on its own initiative whenever a doubt

exists as to whether the trial court has entered a final judgment or other order or judgment

12
made appealable by Code of Civil Procedure section 904.1.” (Jennings v. Marralle

(1994) 8 Cal.4th 121, 126-127.) “ ‘[W]hen an appeal is taken pursuant to section 904.1,

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 or

which substantially affects the rights of a party.” ’ ” (In re The Clergy Cases I (2010)

188 Cal.App.4th 1224, 1233-1234.)

Additionally, “ ‘[t]o prevail on appeal, an appellant must establish both error and

prejudice from that error. [Citation.] In order to demonstrate error, an appellant must

supply the reviewing court with some cogent argument supported by legal analysis and

citation to the record. Rather than scour the record unguided, we may decide that the

appellant has forfeited a point urged on appeal when it is not supported by accurate

citations to the record. [Citations.] Similarly, we may disregard conclusory arguments

that are not supported by pertinent legal authority.” (Champir, LLC v. Fairbanks Ranch

Assn. (2021) 66 Cal.App.5th 583, 597 (Champir).)

Peters first raises claims that the clerk of the Riverside County Superior Court

improperly denied his requests for entry of default based on his allegation that the City

had not responded to his operative complaint. Peters filed his first complaint on June 29,

2016. On June 12, 2017, Peters filed a request for entry of default against the City in the

Riverside County Superior Court apparently on the grounds that the City had not

13
responded. The request was denied by the clerk of the Riverside County Superior Court.

Written on the denial was “Proof of service is missing for multiple defendants.” 2

Peters apparently raised the issue of another request for default on October 31,

2019, in his opposition to the City’s motion to dismiss the complaint. Peters alleges he

subsequently tried to file a request for entry of default but it was rejected by the clerk of

the Riverside County Superior Court. In the register of actions, on November 8, 2019,

there is a notation, “Returned Document: REQUEST FOR ENTRY OF DEFAULT

submitted by CHARLES PETERS; DBA: PIONEER MOBILE VILLAGE. [¶] The

court is unable to process the enclosed document(s) for the reason(s) indicated below: [¶]

UNABLE TO ENTER DEFAULT AS TO CITY OF BEAUMONT, MOTION TO

DISMISS FILED BY CITY OF BEAUMONT.” We presume this is the complained-of

rejection of Peters’s request for entry of default.

Code of Civil Procedure section 904.1 does not include as grounds for appeal the

rejection by the clerk of the superior court to file a document. Here, the clerk of the

superior court found that the requests for entry of default by Peters should not be filed.

This was not a judgment or interim order by the trial court. If Peters wanted to contest

the rejection of his requests for default by the clerk of the superior court, Peters should

have immediately brought a petition for writ of mandate (see Voit v. Superior Court

(2011) 201 Cal.App.4th 1285, 1287-1288) or sought relief from the trial court compelling

the clerk to file his requests for entry of default (see Wolf v. Mulcrevy (1917) 35 Cal.App.

2 On July 27, 2017, Hightower filed an objection to the request for entry of
default but it appears from the record the request had already been denied.

14
80, 81). He cannot now appeal the acts of the clerk of the superior court, taken several

years prior to the final judgment.

Second, Peters appears to complain that the City was required to file separate

demurrers to each cause of action in the TAC. He insists that he was prejudiced because

he was limited to 15 pages to respond pursuant to California Rules of Court, rule 3.1113. 3

Peters’s claim is convoluted and confusing. Peters refers to the motion to strike the

demurrer and also that he had previously sought to respond by filing multiple responses.

We need not spend considerable time attempting to determine Peters’s arguments. It is

this court’s understanding that Peters contends the City had to file separate demurrers to

each of the causes of action in the TAC, but he provides no legal authority for such

proposition.

“A defendant may demur to a complaint within 30 days after its service.”

(Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364.) Code of Civil

Procedure section 430.50, subdivision (a) provides “A demurrer to a complaint or cross-

complaint may be taken to the whole complaint or cross-complaint or to any of the causes

of action stated therein.” The plain language of the statute provides only one demurrer

need be filed. Peters does not cite to any legal authority that supports his claim that the

City had to file separate demurrers for each cause of action. As such, we can “disregard”

his “conclusory arguments that are not supported be pertinent legal authority.” (Champir,

supra, 66 Cal.App.5th at p. 597.)

3
California Rules of Court, rule 3.1113 (d) provides that a responding
memorandum shall not exceed 15 pages.

15
 Third, Peters contends the trial court misapplied Code of Civil Procedure section

430.41, subdivision (b).(AOB 52-57} Peters merely cites to Code of Civil Procedure

section 430.41, subdivision (b)4 as a jurisdictional bar to some of the City’s claims based

on the City raising grounds in the demurrer to the TAC that should have been raised in

earlier demurrers.

In his argument, Peters fails to provide the facts supporting his claim. It is not

clear which argument the City should have made in prior demurrers. At oral argument on

the demurrer to the TAC, Peters contended that as to the demurrer to the inverse

condemnation cause of action in the TAC, the claim could not be raised as it was not

raised in the prior demurrers. This was a matter of jurisdiction that he did not have to

raise in his opposition to the demurrer. However, Peters did not explicate what the City

raised for the first time in the demurrer to the TAC that should have been previously

raised. On appeal, Peters conclusively states that, “The trial court considered matters it

ought not to have,” but never specifies what the trial court considered, which should have

been raised by the City in a prior demurrer.

Peters had the burden on appeal to affirmatively show error by citation to the

record. It is not up to this court to “scour” the record to determine what arguments the

City made in the prior demurrers and could not make in the demurrer to the TAC.

4 Code of Civil Procedure section 430.41, subdivision (b) provides “A party
demurring to a pleading that has been amended after a demurrer to an earlier version of
the pleading was sustained shall not demur to any portion of the amended complaint,
cross-complaint, or answer on grounds that could have been raised by demurrer to the
earlier version of the complaint, cross-complaint, or answer.”

16
(Champir, supra, 66 Cal.App.5th at p. 597.) Peters has failed to meet his burden on

appeal of providing facts entitling him to relief as to this claim.

B. MERITS OF THE DEMURRER

Peters’s remaining arguments appear to be to the merits of the demurrer to the 9th

and 13th causes of action, but these arguments are not entirely clear. Peters appears to

argue that the trial court erred in sustaining the demurrer to the 9th cause of action for

inverse condemnation by relying on improper authority and argument presented by the

City. He insists that the wrongful denial to a property owner of a permit or regulatory

license under certain conditions will support a constitutional claim under 42 United States

Code section 1983 and for inverse condemnation. He additionally appears to claim that

the trial court erred by sustaining the demurrer to the 13th cause of action both because

he had a protectable property interest and the imposition of the statute of limitations did

not commence until the end of the continuing course of conduct.5 Peters also appears to

contend that the trial court ignored his claim that he could amend the 14th cause of action

to state a federal civil rights cause of action.

“ ‘ “On appeal from a judgment dismissing an action after sustaining a demurrer

without leave to amend, the standard of review is well settled. The reviewing court gives

the complaint a reasonable interpretation, and treats the demurrer as admitting all

5 City also addresses the merits of the 18th and 19th causes of action but those
were not raised by Peters on appeal. Such argument were unnecessarily included in the
City’s brief. Further, the City admits that Peters did not brief any arguments about the
14th cause of action but nonetheless provides argument that the demurrer was properly
sustained. Peters appears to only contend he should have been allowed to amend the 14th
cause of action.

17
material facts properly pleaded. [Citations.] The court does not, however, assume the

truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be

affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff

has stated a cause of action under any possible legal theory. [Citation.] And it is an

abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows

there is a reasonable possibility any defect identified by the defendant can be cured by

amendment.” ’ ” (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 145; see

also Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)

Peters’s arguments that appear to attack the trial court’s decision on the 9th and

13th causes of action are mostly unintelligible. The 9th cause of action was based on a

claim of inverse condemnation. Peters alleged in the TAC that the City filed a Resolution

of Emergency on October 2, 2012, which authorized Peters’s tenants to pay their water

bills into a special fund rather than paying Peters directly. Peters stated the City passed

the emergency resolution under the authority granted under Government Code section

8558, subdivision (c). He alleged that he would lose income pursuant to this resolution.

He insisted that immunity did not apply. He sought to rescind the emergency resolution

and allow him to collect utility payments from residents. The City was granted judicial

notice of the resolution, which showed it was brought pursuant to Government Code

section 8558, subdivision (c).

18
 Regardless of the argument made by Peters, or the finding of the trial court in

sustaining the demurrer, 6 Government Code section 8655 provides that “The state or its

political subdivisions shall not be liable for any claim based upon the exercise or

performance, or the failure to exercise or perform, a discretionary function or duty on the

part of a state or local agency or any employee of the state or its political subdivisions in

carrying out the provisions of this chapter.” Here, the emergency resolution adopted by

the City was pursuant to Government Code section 8558, subdivision (c), which provides

in pertinent part “ ‘Local emergency’ means the duly proclaimed existence of conditions

of disaster or of extreme peril to the safety of persons and property within the territorial

limits of a county, city and county, or city.” The provisions, ante, are part of Chapter 7,

the Emergency Services Act. “The purpose of the Act is self-explanatory. In situations in

which the state must take steps necessary to quell an emergency, it must be able to act

with speed and confidence, unhampered by fear of tort liability. A state of emergency

imposes severe time constraints, forcing decisions to be made quickly and often without

sufficient time to carefully analyze all potential repercussions. Therefore, the immunity

granted by the Act is broad and specifically extended to encompass not only discretionary

actions, but also the performance of or failure to perform those discretionary actions.”

(Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th

6“ ‘Since we review the trial court’s action, and not its reasons therefor, we
examine each cause of action to determine whether there are other grounds for sustaining
the demurrer without leave to amend.’ ” (Holcomb v. Wells Fargo Bank, N.A. (2007) 155
Cal.App.4th 490, 495.)

19
450, 458.) As such, the City has immunity for any claim based on their adoption of the

emergency resolution to provide water to the residents of Pioneer Village.

Peters proclaims in the reply brief that the emergency resolution was void based

on the failure to notify him. However, he does not provide authority for the proposition

that he had to be notified of the emergency resolution.

The 13th cause of action was based on the unlawful taking of property under the

color of state law, a takings cause of action under 42 United States Code section 1983.

Peters alleged the denial of an operating permit deprived him of his ability to exercise his

property interest in the land. Peters contends on appeal that his claim was not based on a

protectable property interest in a license or permit. Accordingly, the trial court erred by

relying on this theory in sustaining the City’s demurrer. Peters also argues that he was

not relying on the issuance of a license to support his claim but then cites to Breneric

Associates v. Del Mar (1998) 69 Cal.App.4th 166 to support his claim that wrongful

denial of a permit or other regulatory license may be the basis for both an inverse

condemnation and 42 United States Code section 1983 takings clause suit. In the reply

brief, he refers to the failure on behalf of the City to send him a renewal application as

the property interest. Peters fails on appeal to provide cogent argument as how his 13th

cause of action stated a claim against the City. We need not consider it on appeal.

(Champir, supra, 66 Cal.App.5th at p. 597.)

Finally, Peters appears to contend that the TAC could be amended to state a valid

cause of action for the 14th cause of action. The 14th cause of action was for the tort of

deceit/false promises based on the City not sending him a renewal application. Peters

20
asserts that in his opposition to the demurrer he contended that the 14th cause of action

could be amended to state a civil rights cause of action but such contention was ignored

by the trial court. On appeal, he provides no further factual or legal basis for such

amendment to his fraud claim to state a civil rights cause of action. “It is the plaintiff’s

‘burden to establish how the complaint can be amended to state a valid cause of action.’ ”

(Jensen v. Home Depot, Inc. (2018) 24 Cal.App.5th 92, 97.) Peters has failed to explicate

how he would amend the 14th cause of action to support a civil rights action.

Based on the foregoing, the trial court did not abuse its discretion by dismissing

the City from the TAC without leave to amend.

DISPOSITION

We affirm the trial court’s order granting City’s demurrer to the TAC. Each party

shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

RAMIREZ
P. J.

RAPHAEL
J.

21