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SLPR, LLC v. San Diego Unified Port Dist.

June 30, 2008


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court are motions to dismiss the Second Amended Complaint ("SAC") filed by the San Diego Unified Port District (the "Port District") (Doc. No. 64), and collectively by the United States Army Corps of Engineers (the "Army Corps") and United States Navy (the "Navy") (collectively, the "Federal Defendants") (Doc. No. 61). The Court decides the matters on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For the following reasons, the Court DENIES the motions.


Plaintiffs own shorefront property in Coronado, California. (SAC ¶ 10.) Plaintiffs' properties are directly adjacent to sections of the San Diego Bay known as the Central Navigation Channel ("Channel") and the Naval Air Station North Island Turning Basin ("Turning Basin"). (Id. ¶ 44.)

According to the SAC, in order to facilitate home-porting of additional nuclear aircraft carriers, Defendants dredged the Turning Basin in approximately 1998, and again in approximately 2002. (Id. ¶ 16.) After the first dredging operation, defendant Army Corps issued a report evaluating the impact of the dredging activities on the Coronado shoreline. (Id. ¶ 17.) The report concluded that within ten years, erosion caused by the dredging will begin to undermine structures along the shoreline where Plaintiffs' properties are located. (Id.) The report further provides that if "there is no organized effort to protect this portion of the shoreline," the foundations of Plaintiffs' houses will begin to erode in approximately 10 years, thereby rendering yards unstable and placing structure in jeopardy. (Id. ¶ 21.)

After the report was issued, in approximately October 2004, Plaintiffs allege that the Port District and Army Corps began another dredging operation in the Channel in order to improve the efficiency of commercial shipping operations in San Diego Bay. (Id. ¶ 23.) The dredging project ended in February 2005. (Id.)

On or about July 4, 2005, certain Plaintiffs discovered that the dredging undermined the lateral support of their land and compromised the structural integrity of a riprap barrier on the shoreline. (Id. ¶ 25.) On February 2, 2006, Plaintiff SLPR filed a complaint in the San Diego Superior Court against the Port District. On May 26, 2006, SLPR filed a First Amended Complaint adding the Army Corps as a defendant. On June 26, 2006, the Army Corps removed the action to this Court.

On December 5, 2007, Plaintiffs filed a SAC adding the Navy as an additional defendant. The motions to dismiss followed.


The Court must dismiss a cause of action if the cause of action fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964--65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, the court may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, the court may consider any documents specifically identified in the complaint whose authenticity is not questioned by the parties. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. The court may also consider material properly subject to judicial notice without converting the motion into a motion for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) (citing Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) abrogated on other grounds by Astoria Fed. Savings and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)).*fn1


The Port District challenges Plaintiffs' first and second causes of action for nuisance and violation of California Civil Code § 832, respectively. For the reasons addressed below, the Court DENIES the Port District's motion.

A. Civil Code § 3482 Does Not Bar Plaintiffs' Nuisance Claim

Civil Code § 3482 provides that "[n]othing which is done or maintained under the express authority of a statue can be deemed a nuisance." The Port District asserts that the dredging projects are authorized by several statutes, including the Commerce Clause (Art. 1, Sec. 8, Cl.3), the River and Harbor Act (33 U.S.C. §§ 1, 577) and California Public Resource Code § 30705(a)(1). Because the dredging projects are authorized by statute, the Port District contends that the nuisance claim must be dismissed under section 3482. (Port Dist.'s Mem. of P. & A. at 5:9--11.) Plaintiffs argue that although the dredging projects are statutorily ...

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