Superior Court of California

County of Los Angeles

Department 50

PRAXEDES E. RUNNING, et al.,

Plaintiffs,

vs.

COVINA IRRIGATING COMPANY, et al.,

Defendants.

Case No.: BC 623542
Hearing Date: June 26, 2018
Hearing Time: 8:30 a.m.
[TENTATIVE] ORDER RE: 

 

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION

 

Background

            Plaintiffs Praxedes E. Running (“Praxedes”) and Praxedes E. Running Trust (collectively, “Plaintiff”) filed this action on June 13, 2016 alleging that the defendants deprived Plaintiff of water she was entitled to receive from an open canal that runs through Plaintiff’s property by wrongfully diverting the water from the canal to an underground pipeline.

The Defendants are as follows: the City of Azusa; Azusa Valley Water Company (“AVWC”); George Morrow (“Morrow”); Fran Delach (“Delach”); and Chet Anderson (“Anderson”) (collectively, the “City Defendants”); Covina Irrigating Company (“CICO”) and William and Andrew McIntyre (collectively, the “CICO Defendants”); San Gabriel River Water Committee (“SGRWC”); and Canyon Water Company and its directors William and Andrew McIntyre (the “Canyon Defendants”) (the City Defendants, the CICO Defendants, SGRWC, and the Canyon Defendants to be referred to collectively as “Defendants”).

            The City Defendants, the CICO Defendants, and SGRWC jointly move for summary judgment or summary adjudication as to all causes of action.[1] The Canyon Defendants move for summary judgment or summary adjudication as to the elder abuse, intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of fiduciary duty causes of action.

            Evidence

  1. Plaintiff’s Objections to Evidence

Plaintiff’s objections to evidence are ruled upon as follows: Objections 1-4 are overruled; Objection 5 is sustained as to paragraphs 16, 17 (only as to the last sentence), 18, 19 (only as to the second sentence), 20 (only as to the phrase “In order to ensure the water rights associated with the above-referenced 2,000 shares of stock are produced each year”), 21 (as to the entire paragraph except the first sentence), 22, 23, and 24 only; Objections 6-11 are overruled.

  1. Defendants’ Objections to Evidence

Defendants submitted joint evidentiary objections, and the Court rules as follows:

Objection No. 1 is overruled; Objection No. 2 is sustained; Objection No. 3 is sustained; Objection No. 4 is overruled; Objection No. 5 is overruled; Objection No. 6 is sustained except as to paragraph 10, lines 15-18.

The Court separately notes that with respect to Objection Nos. 1 and 2, Defendants cite to Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742-743 and Eddins v. Redstone (2005) 134 Cal.App.4th 290, 317 for the proposition that an expert may only testify to facts that are within his or her personal knowledge. The Court finds that these cases do not support such a proposition. In Garibay, the Court of Appeal held that a defense medical expert (in a medical malpractice case) provided insufficient evidentiary foundation for his testimony. (Garibay v. Hemmat,supra, 161 Cal.App.4th at p. 743.) The expert attempted to testify as to the fact of the medical procedure at issue based on a review of the plaintiff’s medical records even though the medical records were not in evidence. (Garibay v. Hemmatsupra, 161 Cal.App.4th at p. 743.) As stated by the court in Garibay, “[a]n expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value.” (Ibid.)The same holding was made in Eddins. (Eddins v. Redstonesupra, 134 Cal.App.4th at p. 317 [“An expert’s opinion must be supported by sufficient facts to validate it in the eyes of the law.”].) Here, with respect to the Declaration of Dan Peterson, there is no objection that

Mr. Peterson’s testimony is not based on facts with evidentiary support. Therefore, that is the basis for the Court’s overruling of the objection on that particular ground.

  1. Plaintiff’s Request for Judicial Notice

Plaintiff submitted at least four separate requests for judicial notice. Defendants’ filed an Objection to Plaintiff’s Untimely Documents (the “Objection”) which references a fifth request for judicial notice, possibly filed on or about March 8, 2018. That there are five separate requests for judicial notice is supported by the fact that Plaintiff labels the most recent request for judicial notice as #5. However, the Court does not have in its records five requests for judicial notice from Plaintiff. The Court has one filed February 28, 2018, requesting judicial notice for two exhibits; one filed March 2, 2018, requesting judicial notice for four exhibits; one filed March 5, 2018, requesting judicial notice for five exhibits; and one filed April 2, 2018, requesting judicial notice for one exhibit. Therefore, the Court rules only on the four requests that are of record.

Of the 12 items for which Plaintiff requests judicial notice, seven are cases that all appear to be published and citable. Defendants assert that it is improper to request judicial notice of cases that could have been cited in the briefs under applicable court rules pursuant to Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1064-1065, overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257. As noted in Mangini, requests for judicial notice “should not be used to ‘circumvent[]’ appellate rules and procedures, including the normal briefing process.” (Id. at p. 1064 [internal citation omitted].) As applied to the instant matter, the Court finds that Mangini is instructive, as the Court agrees that requesting judicial notice instead of citing and discussing relevant cases in a brief does not give the parties an “orderly opportunity to argue the relevance of that authority or to distinguish it.” (Id. at p. 1065.) Therefore, the Court denies Plaintiff’s request for judicial notice as to those seven items.

Four of the items for which judicial notice is requested are statutory law: Civil Code section 845, Water Code section 1745.02, Civil Code section 3345, and Welfare and Institutions Code section 15657.3. There is no substantive objection to the requests as to these items. Nonetheless, at this juncture, the Court addresses Defendants’ general objection that Plaintiff’s opposition improperly includes new legal arguments that are beyond the scope of the pleadings. First, Defendants contend that Plaintiff interposes a brand new and unpled negligence per se theory in support of her negligence claim against CICO and SGRWC. (Reply, p. 14: 14-15.) This negligence per se theory is premised onWater Code section 1745.02 and Civil Code section 845 and is not pled in the operative Third Amended Complaint (“TAC”). “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [internal quotations omitted].) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint….” (Ibid. (emphasis in original).) Accordingly, because the negligence per se theory is not pleaded in the TAC, the Court denies the request for judicial notice as to Water Code section 1745.02 and Civil Code section 845 as immaterial and irrelevant. (See Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 341 [finding that the court may decline to take judicial notice of irrelevant matters].) Similarly, with regard to Civil Code section 3345 and Welfare and Institutions Code section 15657.3, it is unclear whether these two sections are material to Plaintiff’s opposition. For one, they do not appear on Plaintiff’s Table of Authorities. Additionally, pursuant to Mangini, if these two statutes are material, they should have been cited in Plaintiff’s brief. Therefore, the Court denies the request for judicial notice as to Civil Code section 345 and Welfare and Institutions Code section 15657.3.

The Court also denies Plaintiff’s request for judicial notice #5, filed April 2, 2018. The Court finds that Plaintiff’s Opposition to the Motion for Sanctions by Defendants Pursuant to CCP Section 128.8 is not relevant.

  1. Defendants’ Request for Judicial Notice

The Court grants Defendants’ Request for Judicial Notice.

  1. Joint Revised Separate Statement

The Court notes that Plaintiff’s responses to the Joint Revised Separate Statement are improper in the following ways: 1) Plaintiff interposes evidentiary objections in her responses; and 2) Plaintiff’s evidentiary citations tend to be citations to exhibits, and not to the declarations that purport to authenticate those exhibits. As to the first issue, the Court has only ruled on the evidentiary objections presented by Plaintiff in the Joint Statement in Regard to Evidentiary Objections. To the extent that any of Plaintiff’s evidentiary objections are contained in her responses in the Joint Revised Separate Statement, those objections are disregarded. As to the second issue, the Court presumes that any objections by Defendants to the foundation or authenticity of any of Plaintiff’s exhibits has either been presented in the Joint Statement in Regard to Evidentiary Objections or otherwise resolved. Therefore, even though Plaintiff’s responses to the Joint Revised Separate Statement are not in complete conformity with the requirements of California Rules of Court, rule 3.1350(f), the Court will consider Plaintiff’s evidence to the extent it is necessary to make any ultimate findings.

Discussion

A defendant moving for summary judgment must show either: “that one or more elements of the cause of action . . . cannot be established”; or “that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c(p)(2).) “[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

  1. Statute of Limitations

Defendants argue that all of Plaintiff’s causes of action are barred by applicable statutes of limitations. The argument is premised on three assertions: 1) Plaintiff had notice of CICO’s plan to divert water from the canal to the underground pipeline as early as 2004 and no later than 2008, because CICO sent its shareholders annual reports that discussed CICO’s plan to take the canal out of service, 2) Plaintiff had notice of the water diversion, at the time of the diversion in 2010 because Plaintiff’s son, Steve Running, was living at the Property and signed a petition acknowledging that water was no longer running through the canal, and 3) the canal was not hidden from the house, and a person walking the driveway to and from the house could observe that there was no water in the canal.

Plaintiff disputes that the CICO annual reports were sufficient to put her on notice of the diversion of water. As an initial matter, the Court notes that, pursuant to Defendants’ own cited authority, the statute of limitations could not have begun to run at any time prior to 2010 because a cause of action arises “when, under the substantive law, the wrongful act is done or the wrongful result occurs, and the consequent liability arises.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (internal quotations omitted).) Therefore, whether or not the annual reports sufficiently put Plaintiff on notice is not material to the statute of limitations argument.

With regard to the argument concerning Steve Running, Plaintiff disputes that any alleged knowledge on the part of Steve Running regarding the status of water in the canal can be imputed to Plaintiff. Although it is undisputed that on September 27, 2010, Steve Running signed a letter petition to CICO acknowledging that water was no longer flowing through the canal, Steve Running testified at deposition that he did not read what he signed. (Joint Revised Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Third Amended Complaint, and Plaintiff’s Responses (“MF”) 9, 10.) This raises a triable issue of fact as to whether Steve Running did, in fact, have knowledge that water was no longer flowing through the canal. There is also no evidence that Steve Running otherwise had knowledge that water was no longer flowing through the canal in 2010. Moreover, Plaintiff submits evidence that Plaintiff’s daughter, Patricia Beecham, who held a General Power of Attorney to act for Plaintiff, did not know that the canal was dry until she received a nuisance notice in October 2015. (Beecham Decl., ¶ 14; MF 11.) Lastly, the Court finds that a triable issue of fact exists as to whether the visibility of the canal from the house would have placed Plaintiff (through her children) on notice that the canal was out of service, as Plaintiff’s daughters testified to various reasons why the canal would have been dry other than the canal being taken out of service. (Beecham Decl., ¶ 2; Bowers Decl., ¶ 2.) Accordingly, the Court finds that a triable issue of fact exists as to when the statute of limitations began to run on Plaintiff’s causes of action, and summary judgment is denied on that basis.

  1. Old User Rights

The bulk of Plaintiff’s causes of action hinge on the question of whether or not Plaintiff held any “old user” rights to the water in the canal, to which Defendants contend the answer is a clear no. Plaintiff, on the other hand, asserts that she is an “old user” by virtue of her status as successor in title to the Gordon family. (TAC, ¶¶ 29, 58; see also MF 20.) The Court notes that Plaintiff disputes MF 20, but in response to MF 20, Plaintiff lists a litany of “factors” that establish her right to water that all appear to be factors that purportedly establish her “old user” rights to the water in the canal. Therefore, MF 20 is essentially undisputed.

Defendants assert that the Gordon family and other “old users” gave up their water rights decades ago, before the Gordons ever sold the Property to Plaintiff. In addition, Defendants argue that even if those “old user” rights survived, the only obligation that can exist is for Defendants to deliver to Plaintiff her own water from water rights that she might have in the river as an “old user,” and then only upon a request from Plaintiff to do so and Plaintiff’s payment for such service. Defendants contend that it is undisputed that Plaintiff never requested that Defendants deliver her water rights from the river to the Property via the canal, nor has she ever paid a fee for such delivery.

“Old user” rights originated from the so-called June 1888 “Old User Agreement” between CICO and the “old users,” including the Gordons. (See TAC, Ex. B; see also Gordon v. Covina Irrigating Co. (1912) 164 Cal. 88, 90-91.) The Old User Agreement acknowledged the right of each old user to take water from the San Gabriel River for their own use. (Gordon, supra, 164 Cal. at p. 91.) The old users agreed to deliver their own pro rata share of river water at the mouth of the canal (which was constructed and owned by CICO), and CICO agreed to allow the old users to use the canal for delivery of the water to the respective old users, for a charge. (Id. at pp. 90-91.) There was also an agreement that CICO was not required to provide water other than (or more than) what was provided by the old users. (Id. at p. 92.)

In 1889, the parties to the Old User Agreement, except the Gordons, entered into a “Compromise Agreement.” (Id. at pp. 92-93.) The Compromise Agreement created the “Committee of Nine.” (Id. at p. 93.) The Gordons sued CICO in 1905, alleging that they were parties to the Compromise Agreement and that CICO was required to supply them with water in excess of their old user rights under the Old User Agreement. (Id. at p. 95.)

The Gordon court held that CICO’s “liability in [] connection to [old users] was dependent on receiving water to be carried, from or for him[,]” and that as far as CICO’s obligations to the Gordons, they were limited to those contained in the Old User Agreement. (Id. at pp. 96, 97.) As stated by the Gordon court, “the defendant [CICO] simply undertook to take such water as might be delivered to it by the so-called old users, and carry it for them through its ditch to their lands, at a prescribed charge….” (Id. at p. 96.)

Some years after the Gordon case, the Gordons and members of the Committee of Nine, including CICO, became involved in another dispute over old user water rights. (MF 25, 26.) In 1921, the dispute was resolved by the Indenture. (TAC, Ex. A; MF 25, 26.) The Indenture identified a specific limit on the amount of river water to which the Gordons were entitled. (TAC, Ex. A.) Defendants contend that the Indenture did not alter the prior contractual obligations of the parties or the findings of the Gordon court. (MF 26.) Although this fact is ostensibly disputed by Plaintiff, Plaintiff’s response to MF 26 does not reveal a substantive dispute. (MF 26 [“CICO and the SGRWC sought modification of [a provision of an agreement entitling J.T. Gordon to an unlimited amount of water from the canal] and the parties agreed the Gordon property would only be entitled to 200,000 cubic feet.”].) Thus, it is undisputed that the Indenture set the amount of water to which the Gordons were entitled to take from the canal, but the Indenture did not change the fact that the Gordons had to not only deliver the water from the river into the canal themselves but also pay for the canal’s delivery service.

In 1895, the old users, including the Gordons, joined in the formation of the Contract Water Company (“Contract Water”). (MF 24; Biddle Decl., ¶ 25, Ex. 11a [Articles of Incorporation of Contract Water Company showing that the Gordons were shareholders of Contract Water].) The purpose of Contract Water was to consolidate all of the old user rights and place them under corporate control of management and distribution, pursuant to shares of stock, issued to each old user in proportion to the water rights granted to them under the Compromise Agreement. (MF 24.) Again, although Plaintiff ostensibly disputes these facts, Plaintiff’s response to MF 24 does not reveal a substantive dispute, either as to the evidence or as to its import. Plaintiff contends that old user rights were managed in different ways, not just through Contract Water, but Plaintiff only references the Compromise Agreement and cites to evidence that does not sufficiently raise a triable issue of fact.

In 1964, CICO acquired Contract Water’s corporate assets, and CICO agreed to manage the rights of the old users according to their prior interest in Contract Water until December 31, 1979. (MF 27.) As of January 1, 1980, CICO was obligated to deliver water to the old users only “upon demand made therefor, upon the same rates, rules and regulations and terms and conditions, applicable to all other users of” CICO water. (MF 28.)

Based on the foregoing, the Court finds that there no longer exists any “old user” rights, either stemming from the Old User Agreement, the Compromise Agreement, or the Indenture. Plaintiff contends that she is entitled to take water from the canal without payment under the Indenture, but the Court finds that the evidence does not support her position. Defendants have shown, and Plaintiff has failed to raise a triable issue of fact, that the “old user” rights were transferred from the Gordons to Contract Water, and ultimately to CICO.

Furthermore, the Court finds that CICO’s obligation to deliver water via the canal requires a demand from the user as well as payment from the user. Defendants contend that Plaintiff never requested that CICO deliver water to her from the canal, and Plaintiff never paid any assessment for the delivery of water from the canal. (MF 29.) Plaintiff presents no evidence to refute this. Although Plaintiff asserts that she has paid all assessments to CICO that were ever requested and never received any assessments from CICO, there is no evidence cited to support the assertion.

For the foregoing reasons, because Plaintiff has not established that she has a right to receive water from the canal, the following causes of action must fail insofar as they are predicated on her right to water without payment: breach of contract[2], breach of the implied covenant of good faith and fair dealing, and specific performance.

  1. Failure to Maintain Easement and Other Allegedly Wrongful Conduct

The Court finds that there is no triable issue of fact with regard to Plaintiff’s contentions that the Indenture, as a contract, imposes certain restrictions or requirements on Defendants to maintain the easement. The plain language of the Indenture reveals that maintenance of the easement is permissive rather than mandatory. (TAC, Ex. A.)  Because the Court finds that the Indenture imposes no such duty, the causes of action predicated on the existence of a contractual duty to maintain the easement must fail: breach of contract, breach of the implied covenant of good faith and fair dealing, and specific performance. The Court also finds that there is no duty under the Indenture to do or to refrain from doing any of the things characterized by Plaintiff as “actionable conduct” in her opposition. (See Opp’n, pp. 19:3 – 24:20.) Summary adjudication is accordingly granted as to the breach of contract, breach of the implied covenant of good faith and fair dealing, and specific performance causes of action.

Nevertheless, the duty to maintain the easement may arise as a matter of law.[3] (Civ. Code, § 845; Crease v. Jarrell (1924) 65 Cal.App. 554, 559 [“It is the duty of the owners of an easement to keep it in repair….”].) Plaintiff presents evidence that the condition of the canal is dangerous and that it has caused damage to Plaintiff’s property separate from any diversion of water. (Plaintiff’s Additional Undisputed Material Facts (“AMF”) 46, 47, 48, 49.) Therefore, the Court finds that there is a triable issue of fact as to whether CICO, as owner of the easement for the canal, breached their duty to maintain the easement in repair. (See MF 16.) Although Plaintiff contends that SGRWC owns the easement, the evidence cited by Plaintiff does not support this contention. (See Response to MF 16.) Consequently, summary adjudication is denied as to the negligence cause of action against CICO only. Summary adjudication is granted as to the negligence cause of action against the remaining defendants, SGRWC and the McIntyres.

  1. Elder Abuse

In support of her elder abuse claim, Plaintiff alleges that Defendants’ diversion of water from the canal was a taking of her water rights, which ultimately devalued her property. (See TAC, ¶ 69.) Financial elder abuse occurs when a person “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both,” or assist another in doing so. (Welf. & Inst. Code, § 15610.30(a)(2).)

Defendants contend that the elder abuse cause of action must fail because 1) Plaintiff cannot establish that she had a right to the property allegedly taken from her (her water rights), and 2) there is no evidence of wrongful use or intent to defraud. The Court agrees. As the Court has already found, Plaintiff has no claim to any old user rights. Plaintiff asserts that the impairment in value of her property constitutes a taking for purposes of establishing elder abuse, citing to Bounds v. Superior Court (2014) 229 Cal.App.4th 468. The Court finds that Bounds is inapposite, as the issue there was determining whether certain conduct constituted deprivation of an elderly person’s property rights “by means of an agreement.” (Id. at p. 472.) There is no applicable agreement alleged here. Further, Bounds does not support Plaintiff’s alternative position that an elder abuse claim can be based on the devaluation of Plaintiff’s property as a result of Defendants’ alleged abandonment of their obligations to maintain the canal. Failure to maintain the canal is not a taking under the Elder Abuse Act.

As to wrongful use, Defendants submit that CICO’s decision to take the canal out of service was motivated solely by health and safety concerns and not for any purpose, wrongful or not, related to Plaintiff. (MF 18.) Plaintiff presents no evidence that sufficiently refutes that fact. There is also insufficient evidence that Defendants harbored an intent to defraud or unduly influence Plaintiff by any of the other alleged actions taken or not taken by Defendants (e.g., allegedly forcing Plaintiff to spend $100,000 to abate nuisances attributed to the diversion of water, the keeping of a box of her most personal documents). Accordingly, the Court finds that there is no triable issue of fact as to the elder abuse cause of action, and summary adjudication is therefore granted. Because the injunctive relief cause of action is predicated on the existence of an elder abuse cause of action (see TAC, ¶ 94), summary adjudication as to the injunctive relief cause of action is similarly granted.

  1. Destruction of Timber, Conversion, Fraud

Plaintiff’s claims for destruction of timber, trespass, conversion, and fraud are all predicated on the contention that the applicable Defendants wrongfully took or infringed upon her water rights. In support of her destruction of timber cause of action, Plaintiff alleges that her trees died as a result of Defendants’ failure to supply her with water from the canal. (TAC, ¶¶ 73-76.) In support of her conversion cause of action, Plaintiff alleges that her water was converted. (TAC, ¶ 152.) In support of her fraud/deceit cause of action, Plaintiff alleges that Defendants concealed the fact that they had taken her water rights. (TAC, ¶ 141.) Because the Court has already found that Plaintiff did not have any water rights, these causes of action must fail. Accordingly, summary adjudication as to these causes of action are granted.

  1. Trespass

In support of her trespass cause of action, Plaintiff alleges that CICO and SGRWC entered onto her property after 2010 to block the Gordon Tunnel, and that Donald Berry of SGRWC buried water measuring devices known as “weirs.” (TAC, ¶ 159.) Plaintiff also alleges that CICO and SGRWC trespassed by allowing a neighbor to place a sewer pipe and run-off pipe across her property. (TAC, ¶ 159.) As noted by Defendants, the Gordon Tunnel is located on the easement over Plaintiff’s property. (MF 17.) Plaintiff concedes that SGRWC has an obligation to maintain and repair both the Gordon Tunnel and the canal. (MF 17.) Therefore, the Court finds that there is no triable issue of fact as to the tunnel issue. With regard to the burial of weirs, Defendants contend that Mr. Berry only buried one weir, in 1984, and it was located on CICO’s easement. (MF 52.) Plaintiff disputes this but provides no evidence or law to suggest that burial of a weir on CICO’s easement constitutes trespass onto Plaintiff’s property. (Response to MF 52.) Therefore, the Court finds that Plaintiff has not raised a triable issue of fact regarding the weir. Finally, as to the neighbor issue, Defendants contend that the neighbor was only authorized to cross the easement itself and not to encroach on the Property. (De Jesus Decl., ¶¶ 5-7.) Although Defendants assert that allowing the neighbor to place a sewer pipe and run-off pipe under and over the easement was expressly within the scope of the easement, Plaintiff contends that the easement was limited to the right to maintain, repair, operate, and conduct water through the canal. (MF 50.) Defendants argue that “[t]he operation of easements must necessarily be prospective.” (Anderson v. Time Warner Telecom of California (2005) 129 Cal.App.4th 411, 416-417 [holding that determining the scope of an easement includes considering any future needs that may need to be accommodated].) Nevertheless, the Court finds that a triable issue of fact exists here as to whether and how the purpose of the installation of the sewer and run-off pipes relates to maintenance of the water in the canal. (De Jesus Decl., ¶ 6, Ex. 4.) Therefore, summary adjudication is denied as to the trespass cause of action.

  1. IIED and NIED Causes of Action

To establish a claim for IIED and NIED, a plaintiff must show that she suffered severe emotional distress and that the defendant’s actions were the actual and proximate cause of the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [finding that severe emotional distress means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.”].) Here, Plaintiff has failed to raise a triable issue of fact as to these elements. Plaintiff’s only evidence in support of her claim that she suffered emotional distress from the death of her trees are the declarations of her daughters. (AMF No. 29.) However, neither declaration establishes that Plaintiff suffered emotional distress or that the death of her trees caused her to experience emotional distress. At best, the declarations only establish that Plaintiff was emotionally distressed for various reasons relating to her schizophrenia. There is no evidence that Plaintiff was aware or knew that her trees had died. Neither daughter testifies to discussing this matter with Plaintiff, and any knowledge on Plaintiff’s part is belied by the fact that she moved away from the subject property in 2009. Therefore, summary adjudication as to these causes of action is granted.

  1. Breach of Fiduciary Duty as to Canyon Defendants

Canyon Defendants contend that Plaintiff’s fiduciary duty claim is derivative and belongs to CICO; therefore, as a matter of law, it must fail. Plaintiff, in response, argues that her claim is a proper direct shareholder claim because CICO is a nonprofit mutual benefit corporation designed to supply water to its shareholders. However, as noted by Canyon Defendants, shareholders of a nonprofit mutual benefit corporation still must comply with the requirements for bringing derivative claims. (Corp. Code, § 7710; see also Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1567 [“A member of a nonprofit corporation is prohibited from instituting or maintaining an action in the right of the corporation unless the action is a derivative suit.”].) Plaintiff presents no other legal authority for her position, and as a result, the Court finds that as a matter of law, Plaintiff’s breach of fiduciary duty claim must fail.

Conclusion

            Based on the foregoing, the Court rules as follows:

Summary judgment is granted in favor of the Canyon Defendants.

Summary judgment is granted in favor of the City Defendants.

Summary judgment is denied against the CICO Defendants and SGRWC.

Summary adjudication is denied against CICO and SGRWC on the negligence cause of action and denied against CICO on the trespass cause of action.

Summary adjudication is granted in favor of SGRWC on the trespass cause of action.

Summary adjudication is granted in favor of the CICO Defendants and SGRWC on the elder abuse, destruction of timber, intentional interference with emotional distress, negligent infliction of emotional distress, injunctive relief, specific performance, breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and conversion.

            CICO is ordered to give notice of this ruling.

DATED:  June 26, 2018                                    ________________________________Hon. Teresa A. BeaudetJudge, Los Angeles Superior Court

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

__[1] The causes of action are as follows: elder abuse, destruction of timber, intentional infliction of emotional distress, negligent infliction of emotional distress, injunctive relief, specific performance, negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, conversion, and trespass.

  As to the City of Azusa and AVWC, only the elder abuse, specific performance, injunctive relief, breach of contract, and breach of the implied covenant of good faith and fair dealing causes of action are applicable.

As to Morrow, Delach, and Anderson, only the elder abuse cause of action is applicable.

[2] In her opposition, Plaintiff raises, for the first time, a theory of breach based on an implied contract. As this theory is not pled in the TAC, the Court does not consider it.

 

[3] Although Plaintiff suggests that violation of Civil Code section 845 is a basis for a negligence per se finding, this theory was not pled in the TAC. Plaintiff alleges in the TAC that Defendants “were under a duty …under the law not to damage, take or devalue plaintiff’s property.” (TAC, ¶ 116.) Therefore, the Court’s ruling here applies only to the negligence cause of action as pled.

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