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Calvert v. City of Isleton

September 20, 2010



This case came before the court on May 22, 2009, for hearing of two motions. In the first motion, plaintiff seeks summary judgment or, in the alternative, summary adjudication with respect to selected claims against defendant Swepston. (Doc. No. 88.) The second motion is a joint motion for sanctions filed by plaintiff and defendant City of Isleton against defendant Swepston. (Doc. No. 94.) At the hearing on the motions, G. Richard Brown, Esq. appeared for plaintiff. David Larsen, Esq. appeared for defendant City of Isleton. No appearance was made by or on behalf of defendant Swepston, who is proceeding pro se in this action. Nor did defendant Swepston file opposition or a statement of non-opposition to either motion.*fn1

For the reasons stated on the record at the hearing, the court denied the joint motion for sanctions and took the motion for summary judgment or summary adjudication under submission. For the reasons set forth below, the motion for summary judgment or summary adjudication is now denied.


This case arises from a dispute over sewer lines in the City of Isleton (Isleton). Plaintiff Steven Calvert owns real property in Isleton. The City defendants are the City of Isleton, the City Council of Isleton, and Jim Miller, who is now deceased but was the City's building inspector when the dispute arose. Defendant Swepston owns real property across the road from plaintiff's property. Defendant Del Valle Capital Corporation owns real property adjacent to plaintiff's, and defendant Steven Rosenthal is an employee of Del Valle Capital Corporation. Plaintiff has sued these six defendants concerning the placement of sewer lines on and across his property.

Plaintiff's amended complaint alleges nine causes of action: (1) declaratory relief against all defendants; (2) quiet title against all defendants; (3) trespass against all defendants; (4) private nuisance against all defendants; (5) intentional infliction of emotional distress against all defendants; (6) negligent infliction of emotional distress against Del Valle, Rosenthal, and Swepston; (7) unjust enrichment against Swepston; (8) injunctive relief against all defendants; (9) violation of federal civil rights against the City, City Council, and Miller; and (10) inverse condemnation against the City and City Council.


Plaintiff commenced this action by filing a complaint in Sacramento County Superior Court on April 14, 2006. Defendants City of Isleton, City Council of the City of Isleton, and Jim Miller (the City defendants) removed the case to federal court on July 13, 2006, asserting federal question jurisdiction grounded on plaintiff's allegation of a cause of action arising under 42 U.S.C. § 1983. (Doc. No. 1, Notice of Removal at 2 & Ex. A.)

The City defendants filed a motion to dismiss several claims, defendants Del Valle Capital Corporation, Inc. and Steven Rosenthal filed an answer to plaintiff's amended complaint, and defendant Swepston filed an answer along with a cross-complaint in which he alleged counterclaims against plaintiff for private eminent domain and equitable indemnity and alleged a cross-claim of equitable indemnity against co-defendant City of Isleton. (Docs. No. 10, 21, 22, 23.) Plaintiff moved to dismiss defendant Swepston's counterclaims, while the City defendants filed an answer to defendant Swepston's cross-claim. (Docs. No. 28, 37.) After hearing the parties' motions on December 1, 2006, the undersigned recommended that the City defendants' motion to dismiss be granted as to plaintiff's second cause of action for quiet title and denied as to plaintiff's third, fourth, and fifth causes of action for trespass, intentional infliction of emotional distress and private nuisance. The undersigned recommended further that plaintiff's motion to dismiss defendant Swepston's counterclaims be granted. (Doc. No. 49.) The findings and recommendations were adopted in full by Judge Ralph R. Beistline, the district judge then assigned to the case. (Doc. No. 49, Order filed Aug. 2, 2007.)

A Status (Pretrial Scheduling) Conference was held on August 3, 2007. (Doc. No. 50.) After all parties filed consents to proceed before the magistrate judge, the case was reassigned to the undersigned for all further proceedings. (Doc. No. 56.) A scheduling order was filed on October 4, 2007. (Doc. No. 58.) The City defendants filed their answer to plaintiff's amended complaint, along with a counterclaim against plaintiff. (Doc. No. 60.) Upon the filing of plaintiff's answer to the City defendants' counterclaim, the pleadings in this action were complete. (Doc. No. 62.)

By stipulation and order, a Settlement Conference was set for May 22, 2008, and the scheduling order was modified. (Doc. No. 66.) The Settlement Conference was subsequently re-set for October 16, 2008, and all dates were vacated, to be re-set if the case did not settle. (Docs. No. 67, 69.) Although it appeared that a potential tentative settlement agreement had been reached, at that time the parties were unwilling at that time to place any summary of an agreement on the record. Accordingly, the case did not settle at the October 2008 Settlement Conference. Instead, settlement negotiations continued among the parties. Telephonic status conferences regarding settlement were held on October 24, 2008 and November 7, 2008. (Docs. No. 85, 86, 87.) The case, however, ultimately was not settled. On April 16, 2009, plaintiff filed his motion for summary judgment or summary adjudication. (Docs. No. 88, 90-93.) On April 21, 2009, plaintiff and defendant City of Isleton filed their joint motion for sanctions. (Docs. No. 94-98.)

After plaintiff filed his summary judgment motion, the court set a status conference for May 8, 2009 and ordered the parties to file status reports. (Doc. No. 89.) Timely status reports were filed by plaintiff and defendants Del Valle Capital Corporation, Inc. and Steven Rosenthal. (Docs. No. 100, 101.) An untimely status report was filed by the City defendants. (Doc. No. 103.) Defendant Swepston did not file a status report.*fn2 At the status conference, the court determined that no party other than defendant Swepston was willing to participate in a further settlement conference. The court indicated its intention to set trial dates after ruling on the pending motions for summary judgment and for sanctions.*fn3


Summary judgment is proper when it is demonstrated "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Owen v. Local No. 169, 971 F.2d 347, 355 (9th Cir. 1992).

The party seeking summary judgment, whether that party is the plaintiff or the defendant, "always bears the initial responsibility of informing the district court of the basis for its motion" and of identifying those portions of the pleadings, the discovery and disclosure materials on file, and any affidavits that, in the party's view, demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the party moving for summary judgment will bear the burden of proof at trial, the party must come forward with evidence ...

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