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May 26, 1993

HIRA PATEL, Plaintiff,


The opinion of the court was delivered by: EDWARD A. INFANTE


 Having considered the parties' pleadings, the comments of counsel, and good cause appearing, the City's Motion for Judgment on the Pleadings is GRANTED as to Patel's claim for inverse condemnation. The City's Motion for Judgment on the Pleadings as to Patel's strict liability claim for an ultrahazardous activity is deferred until trial of the above entitled cases. *fn1"


 In his complaint, Plaintiff alleges that on March 19, 1991, he was the owner of property located in the County of Santa Clara at 14555 Mount Hamilton Road. The property contained an improved residence, which the plaintiff rented to third parties. The third parties were tenants of the property on March 19, 1991.

 Plaintiff alleges that on March 19, 1991, the City entered upon his property in order to "serve criminal search and/or arrest warrant/s on the then occupant/s of the property." (Complaint, P 8). He alleges that the service of the search and/or arrest warrant/s was performed "pursuant to a plan" in which the City substantially participated, approved, and which was "designed to promote a public benefit." (Id.) He further alleges that, as part of the City's efforts to serve the warrants, the City "fired smoke grenades, tear-gas canisters and percussion/flash grenades into the residence on the property." (Id. at P 10).

 Plaintiff alleges that the residence was ignited and completely destroyed by fire as a direct and proximate result of these activities. (Id. at P 11). He also alleges that these activities were not the result of an immediate public necessity or impending peril and were not essential to the imminent protection of the public safety, health or morals. (Id. at P 9). The Complaint contains causes of action for inverse condemnation, strict liability of ultrahazardous activity, and negligence.


 Rule 12(c), Fed.R.Civ.P. provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." In this case, Rule 12(c) is properly used to raise the defense of failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(h)(2); See also, Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980).

 The standard applied on Rule 12(c) motions is essentially the same as applied on Rule 12(b)(6) motions: judgment on the pleadings is appropriate when, assuming all material facts in the pleading under attack are true, the moving party is entitled to judgment as a matter of law. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). In deciding whether to grant a motion for judgment on the pleadings, not only are the material facts alleged in the complaint assumed to be true, but all inferences reasonably drawn from the facts must be construed, and all doubts resolved, in favor of the nonmoving party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventists Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079, 110 S. Ct. 1134, 107 L. Ed. 2d 1039 (1990). The court need not, however, assume the truth of legal conclusions in the complaint merely because they take the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981).


 Article I, section 19 of the California Constitution prohibits the government from taking private property for public use without just compensation. Inverse condemnation is a cause of action which allows a property owner to pursue a claim against a government entity for just compensation when his property has been taken or damaged for public use without prior compensation. Baker v. Burbank-Glendale-Pasadena Airport Authority, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866 (1985), cert. denied, 475 U.S. 1017, 89 L. Ed. 2d 314, 106 S. Ct. 1200 (1986); Sheffet v. County of Los Angeles, 3 Cal.App.3d 720, 84 Cal.Rptr. 11 (1970). An action for inverse condemnation arises directly from the Constitution (Art. I, § 19) and is independent of any right to sue under traditional tort theories. Rose v. City of Coalinga, 190 Cal.App.3d 1627, 1633, 236 Cal.Rptr. 124, 127 (1987). Thus, the extent of a public entity's liability is fixed by the Constitution and not by statutory rules or common law. Id.

 An action for inverse condemnation is a two-step proceeding. Lussier v. San Lorenzo Valley Water Dist., 206 Cal.App.3d 92, 253 Cal.Rptr. 470 (1988). First, the court determines whether the plaintiff is entitled to compensation. Second, the jury determines the amount of compensation to be awarded. Id. Thus, the court must ...

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