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Court of Appeal of California, Sixth Appellate District
September 30, 2005, Filed
[**489] McADAMS, J.—Plaintiffs John and Cecilia Zipperer sued the County of Santa Clara on various theories, based on allegations that their solar home was malfunctioning as a result of shading from trees growing on defendant's adjoining property. The trial court sustained defendant's demurrer to plaintiffs' first amended complaint, without leave to amend. This appeal followed. For reasons explained in the opinion, we agree with the trial court's determination that plaintiffs have not stated any cause of action against defendant, nor [***3] is there any reasonable possibility that the defects in their complaint can be cured by amendment. Treating the order sustaining the demurrer as a judgment of dismissal, we therefore affirm. [*1018]
In the mid-1980's, plaintiffs built a solar home on their property in Los Gatos, after obtaining permits to do so from defendant.
In 1991, defendant acquired a parcel of land that adjoins plaintiffs' property, and defendant placed that land in a parks reserve. There is a grove of five or six trees growing on defendant's land. Since 1991, those trees have been growing at the rate of 10 to 15 feet per year. By 2004, the trees were about 100 feet taller than when defendant acquired the land.
In 1997, plaintiffs' solar system began to malfunction because the trees on defendant's land interfered with the sunlight reaching their solar panels. Despite numerous requests from plaintiffs, and notwithstanding verbal promises by “certain officials and certain individuals that this [***4] situation would be corrected,” defendant did not trim or remove the trees.
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133 Cal. App. 4th 1013 *; 35 Cal. Rptr. 3d 487 **; 2005 Cal. App. LEXIS 1689 ***; 2005 Cal. Daily Op. Service 9421; 2005 Daily Journal DAR 12820
JOHN ZIPPERER et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA, Defendant and Respondent.
Notice: CERTIFIED FOR PARTIAL PUBLICATION1
Subsequent History: [***1] The Publication Status of this Document has been Changed by the Court from Unpublished to Partially Published October 28, 2005.
Ordered published by Zipperer v. County of Santa Clara, 2005 Cal. App. LEXIS 1690 (Cal. App. 6th Dist., Oct. 28, 2005)
Prior History: Superior Court of Santa Clara County, No. CV020384, William J. Elfving, Judge.
Solar, plaintiffs', cause of action, repeal, exemption, Shade, Control Act, ordinance, demurrer, rights, eliminated, statutory claim, leave to amend, vested, first amended complaint, judgment of dismissal, sustain a demurrer, trial court, notice
Civil Procedure, Responses, Defenses, Demurrers & Objections, Demurrers, Appeals, Standards of Review, General Overview, Appellate Jurisdiction, Final Judgment Rule, Abuse of Discretion, Pleadings, Amendment of Pleadings, Leave of Court, De Novo Review, Motions to Dismiss, Failure to State Claim, Pleading & Practice, Heightened Pleading Requirements, Governments, Local Governments, Claims By & Against, Torts, Public Entity Liability, Liability, Elements, Duty, Real Property Law, Encumbrances, Adjoining Landowners, Airspace, Constitutional Law, Case or Controversy, Constitutionality of Legislation, Inferences & Presumptions, Legislation, Interpretation, Ordinances & Regulations, Expiration, Repeal & Suspension, Effect & Operation, Prospective Operation, Statutory Remedies & Rights