Graves v. Pac. Gas and Electric Co., No. 2:25-cv-02558-DC-SCR (July 24, 2026)

Case details
Full caption
Kimberly A. Graves v. Pacific Gas and Electric Company
Country
United States
Jurisdiction
Federal
Decided
July 24, 2026
Majority
Sean C. Riordan (J.) (unanimous Court)
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 2138081Only the Westlaw citation is currently available.United States District Court, E.D. California.KIMBERLY A. GRAVES, Plaintiff,v.PACIFIC GAS and ELECTRICCOMPANY, Defendant.No. 2:25-cv-02558-DC-SCR|Filed 07/24/2026Attorneys and Law FirmsKimberly A. Graves, Hayward, CA, Pro Se.Adam F. Shearer, Rizk & Shearer LLP, San Francisco, CA,for Defendant Pacific Gas and Electric Company.ORDER AND FINDINGS AND RECOMMENDATIONSSEAN C. RIORDAN UNITED STATES MAGISTRATEJUDGE*1 Plaintiff Kimberly A. Graves proceeds pro se in thismatter and asserts claims concerning a utility pole located onher property. Until a relatively recent survey, both Plaintiffand Defendant Pacific Gas and Electric Company (“PG&E”)believed the pole was located on an adjacent parcel. Thiscase accordingly concerns the question whether a landownermay seek legal redress upon discovering that a long-standingphysical taking or trespass has in fact been on their propertyall along.Because Plaintiff is proceeding pro se, this matter is referredto the undersigned pursuant to Local Rule 302(c)(21) and28 U.S.C. § 636. Now before the Court is Defendant'smotion to dismiss (ECF No. 5), Plaintiff's motions to e-file(ECF Nos. 4 & 21), and Plaintiff's motion for leave to filea first amended complaint (ECF No. 14). The Court nowrecommends the motion to dismiss be GRANTED and themotion for leave to amend be GRANTED. The requests fore-filing are DENIED.BACKGROUND AND PROCEDURAL HISTORYI. Plaintiff's ComplaintPlaintiff initiated this action on September 8, 2025. ECF No.1. In her complaint, Plaintiff alleges that she is the ownerof the real property located at 1219 Stanislaus Street, inStockton (“the Property”). ECF No. 1 at 2. Defendant PG&Eallegedly installed and operates a utility pole on the Propertywithout “a lawful easement, license, or other property right[ ]”granted by plaintiff or the preceding owners of the Property.Id. Plaintiff alleges that “for decades,” PG&E mistakenlybelieved the pole was located on the parcel adjacent to hers.Id. She only learned about the pole being on the Propertyon September 22, 2023 after commissioning a professionalsurvey. Id. Plaintiff then contacted PG&E regarding thepole; however, PG&E allegedly refused to negotiate justcompensation, arguing that it had previously attained propertyrights for the pole's location by prescription. Id. Plaintiffargues that PG&E's continued physical occupation of theProperty constitutes an unlawful taking and has caused “thepermanent loss of [her] exclusive possession of a portion ofthe property, [l]oss of value to the remainder of her newlyconstructed development, and the burden of hosting PG&E'sequipment[.]” Id. at 3. Plaintiff asserts (1) a takings claimunder the Fifth Amendment; (2) a takings claim under theFourteenth Amendment; and (3) an inverse condemnationclaim under California law. Id. at 10.II. PG&E's Motion to DismissPG&E filed a Motion to Dismiss on September 29, 2025.ECF No. 5. PG&E argues that Plaintiff fails to state aclaim on two grounds: (1) the complaint does not adequatelyallege ownership at the time of the taking, and (2) evenif the complaint adequately alleged ownership, the statuteof limitations bars both Plaintiff's federal and state takingsclaims. Id. at 4-7. Furthermore, PG&E asserts that becausePlaintiff offers no justification for her “decades-long delayin bringing a takings claim based on an obvious physicaltaking,” id. at 6, she is not entitled to application of thedelayed discovery rule to toll the statutes of limitations oneither of her takings claims. Id. at 6-7.III. Plaintiff's Opposition to Motion to Dismiss,PG&E's Reply and Plaintiff's Sur-Reply*2 Plaintiff filed a timely opposition to PG&E's motion.ECF No. 10. In her opposition, Plaintiff argues that dismissalof her complaint is improper on four grounds: (1) she
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2established that she is the owner at the time of the taking; (2)her claim is not untimely because the statute of limitationsdoes not bar ongoing takings; (3) in the alternative, her claimis not untimely because she is entitled to application of thedelayed discovery rule; and (4) even if Plaintiff's takingclaims are time-barred, the complaint otherwise adequatelystates claims including trespass, unjust enrichment, and quiettitle. Id. at 3-5.PG&E filed a timely reply in support of its motion. ECF No.11. PG&E reiterates its position that the complaint shouldbe dismissed because Plaintiff lacks standing and her claimsare time-barred. Id. at 2. In addition, PG&E contends thatPlaintiff's opposition does not adequately refute dismissalbecause it “concedes that Plaintiff is seeking to pursue claimsfor a physical permanent taking that occurred under previousowners,” and it fails to address existing federal and Californiacaselaw establishing that “the statute [of limitations] begins torun when an entity takes physical possession of the propertyin a permanent fashion.” Id. at 4 (citing Vichy SpringsResort, Inc. v. City of Ukiah, No. 24-CV-07106-JSC, 2025WL 490465, at *3 (N.D. Cal. Feb. 13, 2025); Otay WaterDist. v. Beckwith, 1 Cal. App. 4th 1041, 1048–49 (1991)).PG&E also argues that any putative claims for trespass andunjust enrichment similarly fail because (1) trespass requiresa showing of lawful possession of the premises at the timeof the alleged trespass, which Plaintiff does not and cannotestablish; and (2) unjust enrichment is derivative of a contractcause of action, and Plaintiff does not allege any factswarranting an inference that she conferred anything to PG&Eat her own expense.1 Id. at 3-5.The Court also allowed Plaintiff to file a sur-reply. ECFNo. 15. In her sur-reply, Plaintiff argues that her takingsclaims are not time-barred because PG&E's present use of thepole constitutes a “continuing physical invasion [that] givesrise to a new and independent cause of action each day theunlawful occupation continues.” ECF No. 13 at 5. Addressingstanding, Plaintiff argues that because the pole's presenceis ongoing and continues to invade her possessory interest,she, as a successor, may recover for the ongoing injury. Id.at 8-9 (citing Spaulding v. Cameron, 38 Cal.2d 265, 267-68(1952)). Plaintiff also argues that Palazzolo v. Rhode Island,533 U.S. 606 (2001), which PG&E relies on, in fact supportsher position because there, the Supreme Court declared thatsuccessive ownership does not extinguish takings claimswhere the government's interference is continuing. Id. at 7.In the alternative, plaintiff argues that whether the pole'spresence and usage is permanent or continuing is a questionof fact not meant for resolution on a motion to dismiss. Id.IV. Plaintiff's Motion for Leave to AmendPlaintiff filed a motion for leave to amend on November5, 2025. ECF No. 14. In her motion, Plaintiff argues thatshe should be given the opportunity to amend her complaintbecause there is no evidence of undue delay, bad faith,repeated failure to cure deficiencies, undue prejudice, orfutility. Id. at 3. In addition, Plaintiff expresses her intentionto add a fraud claim to the instant action, which is supportedby newly discovered evidence, and to request correspondingpunitive damages. Id. at 5. Plaintiff's proposed amendedcomplaint includes the following four cases of action: (1)Inverse Condemnation/Taking, (2) Continuing Trespass, (3)Unjust Enrichment/Restitution, and (4) Deceptive and Bad-Faith Conduct. ECF No. 14-2 at 3-4.V. PG&E's Opposition to Motion for Leave to Amendand Plaintiff's Reply*3 PG&E filed an opposition to Plaintiff's motion seekingleave to amend. ECF No. 17. PG&E argues that Plaintiffshould not be granted leave to amend on futility, undue delay,and prejudice grounds. Id. at 3. In asserting futility, PG&Eemphasizes the “brightline rule” that takings and inversecondemnation “claims arising from physical occupations ofland may be brought only by the owner of the property at thetime of the taking,” and that Plaintiff's claim is no exceptionto this rule. Id. at 2. With respect to Plaintiff's other statelaw claims, PG&E repeats its position that (1) Plaintiff'strespass claim is “fatally defective” for failure to show lawfulpossession of the premises at the time of the alleged trespass;and (2) Plaintiff's unjust enrichment claim is similarly “fatallydefective” for failure to establish a contract or quasi-contractrelationship with PG&E. Id. at 8-9. While not yet properlybefore the Court, PG&E also argues that Plaintiff's intendedfraud claim cannot withstand dismissal because Plaintifffails to plausibly allege reasonable reliance on PG&E'smisrepresentations or any directly resulting damages. Id. at9-10. Finally, addressing undue delay and prejudice, PG&Eargues that granting leave to amend would effectively moot itsfully briefed motion and force it to rebrief the same dismissalarguments and respond to Plaintiff's amended complaint thatwill ultimately raise the same claims that are barred as a matterof law.Plaintiff filed a timely reply in support of her motion. ECFNo. 19. Plaintiff asserts that denying her leave to amend is
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3improper on three grounds: (1) amendment of her takingsclaims is not futile; (2) she has adequately stated a claimfor fraud; and (3) PG&E has not shown sufficient delay orprejudice to warrant denial of leave to amend.VI. HearingOn November 20, 2025, Plaintiff and counsel for PG&Eappeared and argued at a hearing on the motion to dismiss andmotion for leave to amend.LEGAL STANDARD FOR MOTION TO DISMISSUNDER RULE 12(b)(6)The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. StarInt'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). “Dismissal can be based on the lack of a cognizablelegal theory or the absence of sufficient facts alleged under acognizable legal theory.” Balistreri v. Pacifica Police Dep't,901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is requiredto allege “enough facts to state a claim to relief that isplausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.544, 570 (2007). “A claim has facial plausibility when theplaintiff pleads factual content that allows the court to drawthe reasonable inference that the defendant is liable for themisconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678(2009).In determining whether a complaint states a claim on whichrelief may be granted, the court accepts as true all well-pleaded factual allegations in the complaint and construesthe allegations in the light most favorable to the plaintiff.See Walker v. Fred Meyer, Inc., 953 F.3d 1082, 1086 (9thCir. 2020). However, the court need not assume the truthof legal conclusions cast in the form of factual allegations.See Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir.2009). Rule 8(a)(2) requires a “short and plain statementof the claim showing that the pleader is entitled to relief.”Fed. R. Civ. P. 8. While Rule 8(a) does not require detailedfactual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556U.S. at 678. A pleading is insufficient if it offers mere “labelsand conclusions” or “a formulaic recitation of the elements ofa cause of action.” Twombly, 550 U.S. at 555; see also Iqbal,556 U.S. at 678 (“Threadbare recitals of the elements of acause of action, supported by mere conclusory statements, donot suffice.”).In ruling on a motion to dismiss under Rule 12(b)(6), the courtis permitted to consider material that is properly submittedas part of the complaint, documents that are not physicallyattached to the complaint if their authenticity is not contestedand the plaintiffs’ complaint necessarily relies on them, andmatters of public record. See Lee v. City of Los Angeles, 250F.3d. 668, 688-89 (9th Cir. 2001).The court may dismiss for failure to state a claim whenthe allegations of the complaint and judicially noticeablematerials establish an affirmative defense or other bar torecovery, such as the expiration of the statute of limitations.See Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir.2013); see also Goddard v. Google Inc., 640 F. Supp. 2d1193, 1199, n. 5 (N.D. Cal. 2009) (noting that “affirmativedefenses routinely serve as a basis for granting Rule 12(b)(6) motions where the defense is apparent from the face ofthe [c]omplaint”). However, dismissal under Rule 12(b)(6)is improper if the allegations of the complaint and judiciallynoticeable materials concerning the defense involve disputedissues of fact. ASARCO, LLC v. Union Pacific R. Co., 765F.3d 999, 1004 (9th Cir. 2014).LEGAL STANDARD FOR MOTION FOR LEAVE TOAMEND UNDER RULE 15*4 Federal Rule of Civil Procedure 15(a)(2) requiresopposing party's written consent or the court's leave to amendthe Complaint. See Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2)instructs that “[t]he court should freely give leave [to amend]when justice so requires.” Id.Courts within the Ninth Circuit interpret and apply Rule15(a)’s policy with “extreme liberality,” Eminence Capital,LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003),especially when the plaintiff is pro se and lacks the experienceand guidance of counsel to avoid pleading errors. Lopez v.Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). In evaluatinga motion for leave to amend, courts consider the followingfactors: (1) undue delay; (2) bad faith; (3) futility ofamendment; and (4) prejudice to the opposing party. Sharkeyv. O'Neal, 778 F.3d 767, 774 (9th Cir. 2015) (citing Foman v.Davis, 371 U.S. 178, 182 (1962)).ANALYSIS
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4I. The Motion to DismissPG&E's motion advances two primary arguments in favor ofdismissal: (1) failure to establish requisite ownership at thetime of the taking; and (2) failure to bring a timely claim. Asto the allegations in the original complaint, the Court agreesand recommends dismissal on both grounds.A. Ownership at the Time of the Physical TakingPG&E argues that Plaintiff has not stated a cognizable takingsclaim because she does not allege that she owned the Propertywhen the pole was originally installed. ECF No. 5 at 4-5.PG&E relies on Palazzolo, where the Supreme Court notedthe “general rule of the law of eminent domain” that theright to bring a Takings Clause claim concerning “directcondemnation” resides in the owner of the property “at thetime of the taking.” 533 U.S. 606, 628 (2001) (citing Danforthv. United States, 308 U.S. 271, 284 (1939)). PG&E alsorelies on Tan Phu Cuong Inv. LLC v. King County (“TanPhu Cuong”), where the Ninth Circuit applied this rulefrom Palazzolo to affirm dismissal of the plaintiffs’ takingsclaims. 831 F.App'x 235, 237 (9th Cir. 2020). Tan Phu Cuongconcerned an attempt to assert a takings claim based on long-standing pooling and drainage issues. The Tan Phu Cuongpanel held that takings claims “do not pass to subsequentpurchasers, who are presumed to have been compensated forthe invasion through a reduced purchase price” and held thatthe plaintiffs “did not suffer a physical taking because thepooling and drainage issues predated their purchase of theproperties.” Id. at 237. By analogy, according to PG&E, thefact that the pole was allegedly installed as early as 1950, butPlaintiff does not allege ownership of the Property until 2009,necessarily frustrates her takings claims.Plaintiff argues that PG&E's reliance on Palazzolo ismisplaced and, instead, supports her position by directingthe Court to the Palazzolo court's declaration that “[f]uturegenerations, too, have a right to challenge unreasonablelimitations on the use and value of land.” ECF No. 10at 4 (citing Palazzolo, 533 U.S. at 627). However, theSupreme Court's “future generations” statement concernsproperty owners subjected to regulatory takings, where theGovernment “imposes regulations that restrict an owner'sability to use his own property.” Cedar Point Nursery v.Hassid, 594 U.S. 139, 148 (2021). By contrast, a physicaltaking occurs when the Government “physically takespossession of property without acquiring title to it.” Id. at147-48. Here, Plaintiff alleges that PG&E “never obtained alawful easement, license, or other property right” authorizingthe installation of the pole; nor did PG&E ever provide justcompensation. ECF No. 1 at 6-7. The pole on Plaintiff'sproperty falls squarely within the category of takings byphysical occupation and is presumptively subject to the“general rule” that a takings claim may be brought by theowner at the time of the taking.*5 Plaintiff also attempts to distinguish Tan Phu Cuongby arguing that “it concerned a situation where the harmhad already occurred and ended” and that her case involvescurrent physical occupation. ECF No. 10 at 3. Contraryto Plaintiff's assertion, Tan Phu Cuong involved a physicalinvasion by water, which caused ongoing “standing waterand soil percolation issues.” Tan Phu Cuong, 831 F.App'xat 237. Indeed, evidence in the record demonstrated thatthe water drainage issues had existed for over 20 years,and perhaps as long as 50. Id. The Tan Phu Cuong courtnonetheless treated the intrusion as a standard taking byphysical occupation, disposing of it under the general rulefrom Palazzolo. Plaintiff's case presents a similar issue: Thepole was allegedly installed over 50 years ago and continuesto intrude on Plaintiff's property. There are no meaningfuldifferences between Plaintiff's case, as pled in the initialcomplaint, and Tan Phu Cuong. Tan Phu Cuong constitutespersuasive authority that shows Plaintiff's Takings Clauseclaim as alleged in the complaint is not viable.California inverse condemnation law applies effectivelythe same general rule. The California Supreme Courthas recognized as a “long established principle[ ] ofcondemnation law” that “the right to recover [for inversecondemnation] remains in the person who owned the propertyat the time of the taking or damaging, regardless of whetherthe property is subsequently transferred to another person.”City of Los Angeles v. Ricards, 10 Cal. 3d 385, 389 (1973).Accordingly, Plaintiff's original complaint fails to state afederal or state takings or inverse condemnation claim.B. Statute of LimitationsPG&E argues that even if Plaintiff had adequately allegedownership, her Takings Clause claim is barred by the statuteof limitations. ECF No. 5 at 5-7. PG&E asserts that Plaintiffneeded to file her § 1983 claim within California's two-yearstatute of limitations for personal injury actions. Id. at 5(citing Jonas v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004);
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Action Apartments Ass'n, Inc. v. Santa Monica Rent Ctrl. Bd.,509 F.3d 1020, 1026 (9th Cir. 2007)). PG&E also asserts thata federal takings claim accrues once the permanent nature ofthe Government action is evident, specifying this as “the dateon which the plaintiff's land has been clearly and permanentlytaken.” Id. at 6 (citing Mildenberger v. United States, 643 F.3d938, 946 (Fed. Cir. 2011); Boling v. United States, 220 F.3d1365, 1370 (Fed. Cir. 2011)). Therefore, if Plaintiff were infact the owner at the time of the taking, her claim would haveaccrued upon the installation of the pole and become untimelywell before the commencement of the instant action in 2025.Id. at 6. PG&E also contends that under California law, statetakings claims are subject to a five-year limitations period.Id. at 7 (citing Otay Water Dist., 1 Cal.App.4th at 1048-49).Therefore, Plaintiff's state inverse condemnation claim issimilarly time-barred. Id. at 7. Finally, PG&E acknowledgesthat delayed discovery could toll the statute of limitations, butargues that Plaintiff has not adequately pled “(1) the time andmanner of discovery; and (2) the inability to have made earlierdiscovery despite reasonable diligence.” Id. at 6-7.Plaintiff argues that her takings claims are not time-barredbecause the pole is a continuing physical occupation;therefore, the statute of limitations period has yet to beginrunning. ECF No. 10 at 3-4. However, the cases Plaintiff citesin support of her position are either not real or are irrelevant.2*6 Determining the statute of limitations frameworkfor these claims turns on the nature of the intrusion.In this respect, courts recognize “the distinction between‘permanent’ and ‘temporary’ takings refers to the nature ofthe intrusion[.]” Skip Kirchdorfer, Inc. v. United States, 6 F.3d1573, 1582 (Fed. Cir. 1993). A temporary invasion “refersto those governmental activities which involve an occupancythat is transient and relatively inconsequential[.]” Hendlerv. United States, 952 F.2d 1364, 1377 (Fed. Cir. 1991). But“[a] ‘permanent’ physical occupation, as distinguished froma mere temporary trespass, involves a substantial physicalinterference with property rights.” Skip Kirchdorfer, Inc., 6F.3d at 1582 (quoting Hendler, 952 F.2d at 1376). “Propertyrights in a physical thing have been described as the rights‘to possess, use, and dispose of it.’ ” Loretto v. TeleprompterManhattan CATV Corp., 458 U.S. 419, 435 (1982) (citingAndrus v. Allard, 444 U.S. 51, 65-66 (1979)). “To the extentthat the government permanently occupies physical property,it effectively destroys each of these rights.” Id. at 435. It hasbeen said the Government “does not simply take a single‘strand’ from the ‘bundle’ of property rights: it chops throughthe bundle taking a slice of every strand.” Id.Here, the consequences of PG&E's pole on Plaintiff's propertyare similar to the consequences of permanent physicaloccupation. “First the owner has no right to possess theoccupied space [themselves], and also has no power toexclude the occupier from possession and use of the space.”Id. Here, PG&E occupies the Property through the pole,depriving Plaintiff of the ability to occupy the Property herselfand to eject PG&E from it. “Second, the permanent physicaloccupation of property forever denies the owner any power tocontrol the use of the property; [they] not only cannot excludeothers, but can make no nonpossessory use of the property.”Id. at 436. So long as PG&E's pole remains on the Property,Plaintiff may not exclude PG&E from the Property, proceedwith any development project, or grant any unencumberedinterests in the Property to third parties. “Finally, even thoughthe owner may retain the bare legal right to dispose of theoccupied space by transfer or sale, the permanent occupationof that space by a stranger will ordinarily empty the right ofany value, since the purchaser will also be unable to make anyuse of the property.” Id. at 436. If Plaintiff attempted to sell theProperty, specifically the plot of land hosting PG&E's pole,any purchaser would be similarly deprived to their propertyrights in that portion of the land, rendering it of lesser value.Moreover, “whether a permanent physical occupation hasoccurred presents relatively few problems of proof. Id. at 437.The placement of a fixed structure on land or real propertyis an obvious fact that will rarely be subject to dispute.”Id. PG&E's pole is a solid structure that is fixed into theground. Accordingly, the Court finds that the pole constitutesa permanent physical occupation. Therefore, the statute oflimitations began to run on the date the pole was originallyinstalled, and Plaintiff's federal and state takings claims wouldbe time-barred in the absence of tolling or application of thedelayed discovery rule.In the alternative, Plaintiff argues that the delayed discoveryrule applies to her claims, tolling the statute of limitationsuntil she learned that the pole was on her property andnot the neighboring parcel. ECF No. 10 at 5-6. However,even assuming that Plaintiff can sufficiently plead delayeddiscovery, the necessary allegations are not in Plaintiff'scomplaint and, thus, not properly before the Court in rulingon the motion to dismiss. Accordingly, Plaintiff's complaint,as currently pled, fails to state a claim for relief under thedelayed discovery rule.II. The Motion for Leave to File First AmendedComplaint (“FAC”)
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Plaintiff argues that her motion should be granted becausenone of the factors precluding amendment are present andgood cause exists. ECF No. 14 at 2-3. Namely, Plaintiff seeksto clarify her takings claims, add a fraud claim, and requestpunitive damages. Id. at 4-5. On the other hand, PG&E arguesthat the motion should be denied on futility, undue delay,and undue prejudice grounds. ECF No. 17 at 3. The Courtfinds that amendment would not be futile and PG&E has notdemonstrated sufficient prejudice or delay to warrant denialof leave to amend.A. New Facts in the Proposed Amended Complaint*7 The Court starts by identifying some of the additionalfacts that Plaintiff includes in the proposed amendedcomplaint but were not included in the original complaint.Plaintiff alleges that she acquired the Property in 2009,and at that time the boundary fencing and recorded mapsindicated the pole was on adjacent land. ECF No. 14-2 at 2.In September 2023, a professional survey “first revealed” thatthe pole was within the Property's boundaries. Id. Plaintiffalso includes factual allegations about discussions withDefendant after this discovery, exchange of correspondence,and participation in a mediation. Id. at 2-3.B. FutilityAlthough Plaintiff expresses her intention to add various stateclaims to her FAC, including trespass, unjust enrichment, andfraud, the primary focus of the Court's analysis is one theviability of the federal and state takings claims raised in theoriginal complaint.1. Substantive Viability of Takings/Inverse CondemnationClaima. Ownership at Time of TakingIn its opposition to Plaintiff's motion, PG&E argues thatamendment is futile because a takings claim belongs to theowner at the time of the physical intrusion and exceptions forunknown intrusions should not be applied to Plaintiff. ECFNo. 17 at 3-8.Above, the Court found that in the original complaint, wherePlaintiff did not allege facts concerning her recent discoverythat the utility pole is on her property, Plaintiff failed tostate a takings or inverse condemnation claim. However, inthe proposed amended complaint and other briefing fromthis case, Plaintiff alleges facts showing that neither shenor PG&E knew that the utility pole was on her propertyuntil the survey she commissioned relatively recently. Theseadditional facts distinguish this case from the type of long-standing and openly-known intrusion Palazzolo may havehad in mind and which was at issue in Tan Phu Cuong.In Palazzolo, the Supreme Court explained that physicalinvasions are generally readily identifiable, making the factand extent of the takings known. See Palazzolo, 533 U.S.at 628. In such cases, it can be reasonably inferred that theowner looking to sell their property has factored the obviousinvasion into the price, and the ultimate buyer has in factpurchased it at the reduced price. Id. Given the presumptionthat a subsequent owner has been duly compensated for thephysical invasion of the property they acquired, it appearsthat the objective of the rule noted in Palazzolo is to preventdouble recovery, where a subsequent owner benefits fromgovernmental compensation in addition to a reduced purchaseprice. See id.In the instant case, Plaintiff could allege that neither she(the subsequent purchaser), PG&E (the condemning entity),nor the unidentified owner at the time of the taking hadknowledge of the pole being located on the Property. SeeECF No. 19 at 1-2 (contending that Plaintiff did not receivea reduced purchase price and that there was no recordedeasement, visible encroachment, title exception, or otherdisclosure of the pole to indicate its presence on her property);ECF No. 10 at 4 (asserting that PG&E's own utility recordsassign the pole to a neighboring address). Moreover, drawingall inferences concerning Plaintiff's proposed amendedcomplaint in Plaintiff's favor, the fact that PG&E was alsoignorant of the pole being located on Plaintiff's propertytends to prove that it never initiated direct condemnationproceedings against the former owner. It follows that theformer owner never received just compensation and, thus, didnot offer to sell the property at a reduced purchase price toaccount for the pole's presence on the property. Therefore,the Court finds unwarranted a presumption of knowledgeof the physical invasion and a corresponding reduction inpurchase price for the Property. Thus, to the extent thatthe soundness of Palazzolo’s “general rule” rests on this
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.7presumed knowledge and the concomitant notice providedthrough such knowledge, it may have no applicability here.b. Exceptions for Unknown Physical Intrusions*8 Neither party has cited federal takings doctrine orCalifornia inverse condemnation doctrine concerning thelegal standard to be applied when a plaintiff claims that noowner was aware of the physical intrusion on their property, orcases where the condemning entity was unaware of the same.As a result, the Court must determine what the rule on suchfacts should be in the first instance. Accordingly, the Courtconsiders certain state approaches to similar issues to guideits futility analysis.In Consolidated Gas Services Company v. Tyler, theOklahoma Supreme Court allowed the defendant, asubsequent owner, to claim compensation for a buriedpipeline laid on his property before he acquired it. 63 P.2d 88,91-92 (Okla. 1936). There, the facts driving recognition of theexception were: (1) the pipeline was buried under the surface;(2) the owner had no knowledge of the pipeline's existencewhen he purchased the property; (3) there was no evidence inthe record indicating that the former owner consented to thelaying of the pipeline or had any knowledge of its placement;and (4) there was no evidence in the record to show that thedefendant purchased the property at a reduced price becauseof the existence of the pipeline. Id. at 91. In Cox Enterprises,Ltd. v. Phillips Petroleum Co., the Oklahoma Supreme Court,relying on Consolidated Gas, allowed appellant, a subsequentowner, to proceed with an inverse condemnation claimarising from a buried pipeline laid on their property beforeacquisition. 550 P.2d 1324, 1326-27 (Okla. 1976). In Cox,the court identified the dispositive fact as the appellant'sundisputed contention that they and their predecessors in titlewere unaware of the existence of the pipeline across theirproperty. Id.Given that Consolidated Gas and Cox focus on thesignificance of both a subsequent owner's and a formerowner's lack of knowledge, the Court is persuaded that theexception articulated therein is applicable in the instant case.Moreover, the exception, deriving from the “well-settled”principle that “estoppel cannot be set up against a partyignorant of the true state of affairs,” Cox, 550 P.2d at 1326(quoting St, L. & S.F. Ry. Co. v. Mann, 192 P. 231, 233(1920)), provides support rooted in long-standing doctrine“invoked to avoid injustice,” Heckler v. Cmty. Health Servs. ofCrawford Cnty., Inc, 467 U.S. 51, 59 (1984), and “promote[ ]fair dealing,” that “often gives triumph to right and justice,where nothing else known to our jurisprudence can, byits operation, secure those ends.” Daniels v. Tearney, 102U.S. 415, 420 (1880). Unlike the rule concerning readilyidentifiable physical takings mentioned in Palazzolo, theOklahoma exception properly accounts for PG&E's duty topay just compensation and fairly considers what equitablerelief may be appropriate given Plaintiff's naivety to thealleged wrong.The Court also finds that the exception's relevance hereis buttressed by its application to similar factual scenariosin other jurisdictions. For example, in Kimco Addition,Inc. v. Lower Platte South Natural Resources District, theNebraska Supreme Court declared that “where the holder ofan easement across property has the power of eminent domainfor the use involved, an action for inverse condemnation is anappropriate remedy for a subsequent bona fide purchaser ofthe property who purchased without notice of the preexistinginterest in land.” 440 N.W.2d 456, 293 (Neb. 1989) (citing,among other cases, Cox, 550 P.2d at 1324). There, theNebraska Supreme Court recognized that the appellant, asubsequent owner, was entitled to recovery through aninverse condemnation action, so long as the action was nottime-barred, arising from defendant's unrecorded expansionof its easement via widening of a drainage channel onplaintiff's property. Id. at 293-94. Similarly, in Upper EagleValley Sanitation District v. Carnie, the Colorado Courtof Appeals upheld an order granting the subsequent-ownerrespondents an award for value of an easement for a sewer lineconstructed outside its recorded boundaries prior to plaintiff'sacquisition of the property. 634 P.2d 1008, 1008-1010 (Colo.Ct. App. 1981). There, the court stressed the importance ofprotecting respondents’ right to compensation, stating, “Ifrespondents are not entitled to compensation, then they wouldsuffer a loss and the petitioner would receive a windfallsince presumably respondents paid their predecessors intitle for the full unburdened property interest.” Id. at 1010.“The constitutional requirement of just compensation derivesas much content from the basic equitable principles offairness ... as it does from technical concepts of propertylaw.” United States v. Fuller, 409 U.S. 488, 490 (1973). Justas the Palazzolo rule seeks to protect the government fromoverpaying property owners, the exceptions explored aboveserve a parallel interest, ensuring that property owners arenot left empty-handed when the government deprives them oftheir property without just compensation.
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.8c. Application of Exception to Plaintiff's Case*9 The Court finds that the instant case falls within the ambitof exceptions to the Palazzolo rule and, thus, amendmentis not futile. To reiterate, under the exception for unknownphysical intrusions articulated in Consolidated Gas and Cox,a subsequent owner may bring a takings claim where thefollowing factors are present: (1) the intrusion is not clearlyvisible on the property; (2) the subsequent owner had noknowledge of the intrusion on the date of purchase; (3) thereis no evidence to indicate that the former owner consentedto the intrusion or had any knowledge of its placement; and(4) there is no evidence to show that the subsequent ownerreceived a reduced purchase price because of the intrusion onthe property. In her briefing, Plaintiff sets forth factual contentthat tends to show she can amend to state a takings claimunder the exception for unknown physical intrusions. Withrespect to the first factor, Plaintiff alleges that the pole wasnot clearly visible on her property because a physical fenceline suggested the pole was on neighboring property. ECFNo. 10 at 5. Second, Plaintiff alleges that she did not knowand had no reason to know that the pole was on her propertywhen she acquired ownership because there were no recordedencumbrances on the title and PG&E, itself, assigned the poleto another address. Id. Third, there is nothing in the recordshowing that the former owner had knowledge of the polebeing installed on the Property. Finally, Plaintiff contends thatshe did not receive a reduced purchase price for the property.ECF No. 19 at 1-2. However, like the third factor, it is tooearly to tell whether evidence exists as to whether Plaintiffin fact received a reduced purchase price. Accordingly, theCourt finds that amendment is not futile as to the substantiveaspects of the takings and inverse condemnation claims.2. Continuing TrespassDefendant argues that Plaintiff should not be allowed leave toamend her trespass claim because it is barred by the three-yearstatute of limitations. ECF No. 17 at 9. Defendant argues thatthis is not a continuing trespass because it is a solid structure—a utility pole. Id. at 8. Defendant further argues that onlythe owner at the time of the trespass may bring a claim. Id. at9. As discussed further below, Plaintiff's proposed amendedcomplaint alleges facts to support application of the delayeddiscovery rule. For the same reasons as discussed concerningthe Takings Clause claim and the statute of limitations, theCourt does not find that amendment would be futile as to thetimeliness of the trespass claim.As to whether Plaintiff owned the Property at the time oftrespass, in briefing, there is reference to the pole beingreplaced in May 2015. ECF No. 10 at 11. Plaintiff allegesshe owned the Property as of 2009. The Court will notconclude at this time that Plaintiff could plead no set of factsto support a claim of trespass. The Court is recommendinggranting leave to amend, and Plaintiff is not required to filethe proffered amendment at ECF No. 14-2. The Ninth Circuithas stated that “before dismissing a pro se complaint thedistrict court must provide the litigant with notice of thedeficiencies in his complaint in order to ensure that the litigantuses the opportunity to amend effectively.” Akhtar v. Mesa,698 F.3d 1202, 1212 (9th Cir. 2012). Defendant's motion, incombination with this Order, provide Plaintiff notice of thedeficiencies, and Plaintiff may amend accordingly.3. Unjust Enrichment/RestitutionDefendant argues that amendment of this claim would befutile because unjust enrichment is not considered a separatecause of action, but is generally a “quasi-contract” causeof action and Plaintiff has not pled facts supporting aquasi-contract claim. ECF No. 17 at 9. There is supportfor Defendant's assertion that California does not recognizeunjust enrichment as a cause of action. See Melchior v. NewLine Prods., Inc., 106 Cal.App.4th 779, 793 (2003) (“thereis no cause of action in California for unjust enrichment”).However, the Ninth Circuit has recognized that California lawis not clear on this point. See ESG Capital Partners v. Stratos,828 F.3d 1023, 1039 (9th Cir. 2016) (“Some Californiacourts allow a plaintiff to state a cause of action for unjustenrichment, while others have maintained that California hasno such cause of action.”). Finding California law “unsettled”on this point, the Ninth Circuit stated: “We therefore allowthe cause of action, as we believe it states a claim for reliefas an independent cause of action or as a quasi-contract claimfor restitution.” Id.The proposed amended complaint alleges that after Plaintifflearned the pole was on her Property in 2023, she contactedDefendant and Defendant tried to get her to sign a prescriptiveeasement. ECF No. 14-2 at 2. Plaintiff asserts the partiesengaged in discussions, including written correspondence,for months and references a mediation. Id. at 2-3. Plaintiffdoes not clearly allege a contractual theory of liability, and it
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.9may be that there is no factual basis for pleading a contractclaim, however that Court cannot determine at this time thatamendment would be futile as to a quasi-contract claim.4. Deceptive and Bad-Faith Conduct*10 Defendant argues that there is no claim under Californialaw for “deceptive and bad-faith conduct” and that perhapsPlaintiff means to assert a claim for fraud. ECF No. 17 at 8. Ifso, Defendant argues the fraud claim is inadequately pled, andleave to amend would be futile. Id. at 9. Plaintiff's reply doesnot confirm whether the intended claim was fraud, but insteadstates she pled “intentional deception, misrepresentation,and coercive conduct” and that such conduct is coveredby “multiple overlapping tort theories” including fraud andnegligent misrepresentation. ECF No. 19 at 5.Claims of fraud must be pled with particularity. Fed. R. Civ. P.9(b). Rule 9(b)’s particularity requirement applies to state lawcauses of action. See Vess v. Ciba-Geigy Corp., 307 F.3d 1097,1103 (9th Cir. 2003). Even where fraud is not a necessaryelement of a claim, if the claim is “grounded in fraud” or“sound[s] in fraud,” the “pleading of the claim as a wholemust satisfy the particularity requirement of Rule 9(b).” Id. at1103-04. In order to meet the heightened pleading standard,“a party must state the particularity of the circumstancesconstituting fraud,” meaning that the “pleading must identifythe who, what, when, where, and how of the misconductcharged.” United States ex rel. Cafasso v. Gen. Dynamics,637 F.3d 1047, 1055 (9th Cir. 2011) (internal citations andquotation omitted). Defendant merely argues that Plaintiff hasnot sufficiently pled her claim with particularity, this does notestablish that amendment would be futile. The Court findsleave to amend is appropriate.5. Statute of LimitationsIn its motion to dismiss, PG&E argues that Plaintiff's takingsclaims are time-barred and that she has not adequately pleddelayed discovery. ECF No. 5 at 6-7. However, PG&Edoes not maintain that amendment of the delayed discoveryallegations would be futile in its opposition to Plaintiff'smotion to file a FAC. After reviewing all the briefing in therecord, the Court finds that Plaintiff could conceivably amendto state a claim for relief under the delayed discovery rule.In her opposition to PG&E's motion to dismiss, Plaintiff setsforth facts showing (1) the time and manner of discovery ofthe pole on her property; and (2) why she was unable to makethat discovery earlier despite reasonable diligence. ECF No.10 at 4-5. In addition, Plaintiff includes a declaration with heropposition (ECF No. 10 at 13), which clearly supports herargument. Therein she states there was a physical fence and/or natural boundary between her and an adjoining propertyand the pole appeared to be on the neighbor's land. She statesDefendant's records reported the address of the pole as beingon the neighbor's property. When she purchased the propertyand reviewed title documents, there was no easement, utilityright, or other servitude recorded that showed the utilitypole. ECF No. 10 at 13-14. Therefore, the Court finds thatamendment would not be futile based on delayed discovery,and the putative expiration of the statutes of limitations is notdispositive at this stage.C. Undue Prejudice & Undue DelayPG&E also argues that it would face prejudice and unduedelay if Plaintiff were granted leave to file a FAC becauseit would have to rebrief its motion, which has already beenfully briefed, argued, and taken under submission. ECF No.17 at 10. Specifically, PG&E contends that where Plaintiff'scomplaint and proposed FAC assert the same single federalclaim, it would have to make the same dismissal argumentsand again respond to Plaintiff's positions. Id. Even so, “[t]hatburden, however, would not seem especially great given[PG&E's] acknowledgement that the proposed [FAC's] factsand claims ... are substantially the same as presented inthe Complaint[.]” Patterson v. City of Vacaville, No. 2:19-cv-0521 JAM DB PS, 2019 WL 2089996, at *1 (E.D. Cal.May 13, 2019). Plaintiff argues that having to respond to anamended pleading is not prejudice, and if it were, Rule 15would not exist. ECF No. 19 at 9. There is merit to Plaintiff'sposition. If having to respond to an amended pleading wasprejudice which precluded the amendment, there would be noamendment allowed. Legal prejudice is “prejudice to somelegal interest, some legal claim, or some legal argument.”Westlands Water Dist. v. United States, 100 F.3d 94, 96 (9thCir. 1996). Merely having to respond to a first amendedcomplaint is not prejudicial.*11 Nor would leave to amend impose undue delay inthis litigation because discovery has not yet commenced.Compare DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187(9th Cir. 1987) (holding that a motion to amend made early inthe discovery period, with no trial date or pretrial conferencepending delay is not generally unjust), with Zivkovic v. S. Cal.
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.10Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (affirmingdistrict court's denial of a motion for leave to amend filedfive days before the close of discovery). In addition, Plaintiffsought leave to amend a mere two months after the filing ofthe instant complaint. See Morongo Band of Misson Indiansv. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (finding leave toamend properly denied when sought after two years); Texaco,Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991) (holdingthat a plaintiff unduly delayed in seeking amendment whereit waited eight months after summary judgment had beengranted against it and two years after filing of the initialcomplaint). The Court finds Defendant's arguments of unduedelay and prejudice to be without merit.MOTIONS TO E-FILEPlaintiff has filed two motions to participate in e-filing.The first was filed shortly after the action was initiated inSeptember 2025, and the second was filed in December 2025,after the hearing on the motion to dismiss. The first motionto e-file (ECF No. 4) contends that because Plaintiff lives inthe Bay Area it would be a hardship for her to travel twohours to file. ECF No. 4. Plaintiff's second motion (ECF No.21) makes essentially the same argument, contending that sheresides over 75 miles away. Plaintiff also argues that she haddifficulty meeting a deadline due to limited library access overa holiday weekend. ECF No. 21. Plaintiff is not required tofile documents in-person, but can mail them to the Clerk'soffice. Plaintiff contends she used the law library to preparethe documents, thus she would have been adversely effectedin her preparation regardless of the mode of filing. If suchcircumstances arise in the future, Plaintiff may file a motionseeking a reasonable extension of time.The Local Rules are clear that “any person appearing pro semay not utilize electronic filing except with the permissionof the assigned Judge or Magistrate Judge.” See Local Rule133(b)(2). This Local Rule recognizes, as do similar localrules in other Districts, the difficulties that can ensue for bothpro se litigants and Court staff when pro se litigants attempt touse e-filing. See, e.g., Baker v. IC Sys., Inc., No. CV-08-8091-PCT-DGC, 2008 WL 4186166, at 1 (D. Ariz. Sept. 9, 2008)(denying motion to e-file and stating the “Court's policy isto require pro se litigants to submit documents in paper formso that the Clerk's Office can insure that the documents areproperly filed”). The Court finds that Plaintiff's motions toelectronically file do not present good cause to deviate fromthe default under the Local Rules and are thus DENIED.Plaintiff will continue to file paper documents with the Courtthrough conventional means.CONCLUSIONIT IS HEREBY ORDERED that:1. Plaintiff's motions to e-file (ECF Nos. 4 & 21) areDENIED.2. Plaintiff has filed a “Request for Status” (ECF No. 23)which is rendered moot by the entry of this Order.IT IS HEREBY RECOMMENDED that:1. Defendants’ motion to dismiss (ECF No. 5) beGRANTED;2. Plaintiff's motion for leave to amend (ECF No. 14) beGRANTED and Plaintiff allowed 21 days to file a FirstAmended Complaint; and3. The matter be referred back to the undersigned for furtherproceedings.These findings and recommendations will be submitted to theUnited States District Judge assigned to the case, pursuant tothe provisions of 28 U.S.C. § 636(b)(l). Within fourteen daysafter being served with these findings and recommendations,either party may file written objections with the court. Thedocument should be captioned “Objections to MagistrateJudge's Findings and Recommendations.” The parties areadvised that failure to file objections within the specified timemay result in waiver of the right to appeal the district court'sorder. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).All CitationsSlip Copy, 2026 WL 2138081Footnotes1Plaintiff's original complaint does not clearly assert claims for trespass or unjust enrichment.
KIMBERLY A. GRAVES, Plaintiff, v. PACIFIC GAS and ELECTRIC COMPANY, Defendant., Slip Copy (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.112Plaintiff cites to Boling v. Pub. Utils. Comm'n, 105 Cal.App.3d 805 (1980) and Loving v. Cnty. of Stanislaus, 33 Cal.App.5th444 (2019), which are not real cases. Plaintiff also cites to Pierce v. Cnty. of Orange, 526 F.3d 1190 (9th Cir. 2008), whichdoes not discuss statute of limitations or continuing violation issues. At the hearing on these motions, the undersignedadmonished Plaintiff about the danger of using Artificial Intelligence tools for legal research and writing and Plaintiff'sobligation to ensure that all legal citations are legitimate. Future citations to non-existent cases may subject Plaintiff toan order to show cause as to why she should not be sanctioned under Rule 11 of the Federal Rules of Civil Procedure.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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