Government Liability Update

Hotel Did Not State Causes of Action against Public Entity for Inverse Condemnation or Nuisance Based on Railway Construction That Disrupted Hotel Operations

In Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority, published October 5, 2022, the Second District Court of Appeal, Division 8 affirmed judgment in favor of the defendant authority after demurrer and motion for judgment on the pleadings.  The plaintiff owns the Bonaventure Hotel in downtown Los Angeles.  The only access to the hotel's parking garage and loading dock, and its main guest/invitee drop-off and pick-up point, is on Flower Street.  The authority's Regional Connector Transit Project runs along and under Flower Street, including under the hotel's location.  Although much of the project's tunnel is being built using an underground tunnel boring machine, which is less disruptive to surface traffic, the project called for a portion of the tunnel being built by the more disruptive cut-and-cover method, due to structural aspects of the street in the area. In 2012, the plaintiff sued under CEQA to halt construction of the project, challenging the Environmental Impact Report for the project.  The plaintiff lost the lawsuit, and the result was upheld on appeal.  In 2016, construction began, and the plaintiff instituted this lawsuit alleging causes of action against the authority for inverse condemnation and nuisance.  The trial court sustained a demurrer without leave to amend to the fourth amended complaint's cause of action for inverse condemnation.  It then granted a co-defendant's motion for judgment on the pleadings--which the authority joined--for nuisance, again without leave to amend.

The appellate court affirmed the resulting judgment.  The inverse condemnation action was based on an intangible intrusion theory.  This theory requires an intrusion that places a burden on the property that is direct, substantial, and peculiar to the property.  Such intrusions have been recognized only in limited circumstances.  The plaintiff asserted two types of intrusion.  The first was impairment of right of access.  Only an unnecessary and substantial temporary interference with rights of access during construction is actionable.  The plaintiff's argument that the use of cut-and-cover rather than the less-disruptive TBM method was barred by claim preclusion, since the previous CEQA litigation resolved the issue.  The plaintiff attempted to avoid claim preclusion by arguing that the method of cut-and-cover used caused unreasonable and unnecessary disruption.  But the construction causing traffic detours interfering with ingress and egress were the type of temporary interference from street construction that the law deems not unreasonable.  Traffic detours and delays are not such direct and substantial burdens peculiar to the hotel as would meet the legal standard:  not far removed from a physical intrusion.  The second theory was excessive noise and dust.  The complaint did not sufficiently plead the intrusion the hotel suffered was unique, special, or peculiar in comparison with other stakeholders in the area.  The plaintiff failed to explain on appeal how the complaint could be amended to save it from demurrer.  The complaint also failed to plead sufficient facts to state a cause of action for nuisance, because it failed to plead facts showing that the seriousness of the harm the hotel suffered outweighed the social utility of the project.  Further, Civil Code section 3482 barred the cause of action.  Under section 3482, nothing done or maintained under the express authority of a statute can be deemed a nuisance.  Public Utilities Code section 30631 provides that the authority may construct rail lines, stations, and any other facilities for rapid transit services, under or over public streets.  The complaint on its face pleaded facts sufficient to invoke section 3482.

Plaintiffs Failed to Raise Viable Challenge to City's Decision to Remove Historical Sculpture

In Schimd v. City and County of San Francisco, published February 1, 2021, the First District Court of Appeal, Division 4 affirmed dismissal after demurrer of a lawsuit brought by two San Francisco taxpayers challenging the administrative decision of the San Francisco Board of Appeals authorizing the removal of a bronze sculpture that was originally part of a San Francisco Civic Center monument to California’s Pioneer Period. The San Francisco Historic Preservation Commission granted a Certificate of Appropriateness to take down the sculpture and place it in storage, based on significant adverse public reaction to the sculpture. The plaintiffs asserted that the removal violated the Bane Act, and sought administrative mandamus and ordinary mandamus writ relief, among other claims. The trial court sustained the defendants’ demurrer without leave to amend. The appellate court agreed that the plaintiffs failed to state a cause of action. The plaintiffs failed to state a Bane Act claim, because they did not allege any threats, intimidation, or coercion violating rights amenable to Bane Act enforcement. They failed to state a cause of action for administrative mandamus, because they failed to allege anything to support conclusory allegations that the Board of Appeals acted in excess of its authority or abused its discretion. The administrative record shows that the Board acted within its authority as provided by law, and that its conclusions are supported by substantial evidence. The court rejected the argument that the removal violated the California Arts Preservation Act. Even assuming the Act was not preempted by the federal Visual Artists Rights Act of 1991, only an artist or an artist’s heirs has standing to enforce rights under the Act. The complaint failed to show a violation of Federal Historic Preservation Standards, because the decision acknowledged those standards and the complaint did not plead nonconclusory facts showing their violation. The complaint failed to show that the removal was a public nuisance. The complaint failed to show a violation of the California Environmental Quality Act, because the plaintiffs failed to exhaust their administrative remedies under CEQA. The petition for writ of ordinary mandamus alleged that a condition placed on the Certificate of Approval—placement of a plaque before removal—was not carried out. Ordinary mandamus requires identification of a ministerial act. The complaint did not identify a ministerial act, since the Board had discretion to remove the sculpture. Drafting language for the plaque is not a ministerial act, and must precede the plaque’s installation. Since the sculpture was removed before the act was filed, the question of whether the sculpture may be removed before the plaque is installed is moot.

Federal Claims Challenging Shutdown of Motel Subject to Younger Absentention Based on State Court Nuisance Action, but Damages Claim for Fourth Amendment Violation Is Not

In Herrera v. City of Palmdale, published March 20, 2019, the 9th Circuit affirmed in part and reversed in part a district court order dismissing declaratory and injunctive relief claims and staying damages claims in a 42 U.S.C. section 1983 lawsuit.  The city obtained an inspection warrant of the plaintiffs' motel to search for suspected code violations.  The plaintiffs alleged that the city violated the Fourth Amendment in carrying out the warrant.  The city then issued a notice and order to repair and abate and ordered the plaintiffs and their tenants to vacate the motel. Two days later the governmental defendants closed the motel and evicted the plaintiffs and tenants.  The plaintiffs sued the governmental defendants in federal court.  Almost simultaneously, the city filed a nuisance complaint against one of the plaintiffs and the motel, seeking declaratory and injunctive relief including declaring the motel a nuisance and putting the motel into receivership.  The district court concluded that Younger abstention applied.

The 9th Circuit agreed that Younger abstention applied to the plaintiffs' causes of action for injunctive relief, declaratory relief, and damages for alleged violation First, Fifth, and Fourteenth Amendments and the Contract Clause, arising out of the closing of the hotel and the orders to repair and abate, were subject to Younger abstention, because success on those claims in the federal action would interfere with the state court nuisance action; and because all of the elements of Younger abstention were satisfied.  But the plaintiffs' Fourth Amendment damages claims for the carrying out of the inspection warrant were not subject to abstention.  Success on those claims would not interfere with the state court action.

Failure to Establish That City Action or Inaction Caused Accumulation of Sea Lion Droppings Justifies Summary Judgment on Nuisance and Mandamus Claims

In Citizens for Odor Abatement v. City of San Diego, published February 9, 2017, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in the defendant city's favor in an action alleging that the noxious sea lion waste odors emanating from La Jolla Cove were a public nuisance.  The city had attempted to eliminate the odor, but while it was successful in addressing the odor from bird droppings, it had not succeeded in eliminating the sea lion dropping stench.  The plaintiff alleged that a city fence had encouraged sea lions to accumulate in a portion of the cove by keeping humans out of the area.  In its motion, the city presented expert evidence that several factors other than the fence caused the sea lion population to grow, and that the fence, built decades before the population growth, did not cause the growth.  In response, the plaintiff presented evidence, including an expert declaration, that the population growth occurred after the fence was built. The expert opined that the fence caused the sea lions to feel more comfortable resting on the fenced-off bluff.  The trial court sustained the city's objection to the expert declaration as a classic post hoc, ergo propter hoc (it happened afterward, therefore it was caused by) logical fallacy, and as contradicted by the evidence.

The appellate court noted that a public nuisance cause of action requires that the nuisance be caused either by something the public entity did or something it had a duty to do but failed to do.  The trial court correctly ruled that the undisputed evidence failed to establish this causal nexus.  The city's expert evidence disproved the theory that the fence caused the population growth.  The plaintiff did not appeal the ruling sustaining the objection to the plaintiff's expert's declaration, and the trial court correctly excluded it.  The evidence from locals that there was not an odor problem before the fence did not create an issue of fact as to whether the fence created the odor problem; that was a post hoc, ergo propter hoc fallacy.  The plaintiff also failed to show that the city failed to act to attempt to alleviate the odors, even assuming it had a duty to do so.  The court also rejected a theory that the plaintiff was entitled to mandamus on the ground that the city had assumed an obligation to alleviate the odor.  A memorandum issued by the mayor asserting that the city would attempt to eliminate bird waste odor did not impose a duty to alleviate sea lion waste odor.

Substantial Evidence Standard Applies to Petition for Administrative Mandate Challenging Conditions Imposed on Business to Curtail Third-Party Crime

In Benetatos v. City of Los Angeles, published April 14, 2015, the Second District Court of Appeal, Division Five, affirmed a trial court decision denying a petition for writ of administrative mandate that sought to overturn the respondent city's determination that the petitioner's fast food restaurant constituted a nuisance, due to third-party criminal activity on and around the property, and the city's imposition of conditions on the restaurant's continued operation.  The restaurant contended that the trial court erred in applying a substantial evidence standard of review (under which the city's determination is upheld if any substantial evidence supports it) instead of a de novo standard of review (in which the trial court exercises its independent judgment on the evidence).  The appellate court affirmed the trial court's decision.  The de novo standard of review applies to review of decisions affecting fundamental vested rights, such as whether a business will continue to operate.  The petitioner failed to present evidence that the conditions imposed would severely affect the restaurant's ability to operate or drive it out of business.  The substantial-evidence standard for decisions affecting economic issues therefore applied.  The appellate court found substantial evidence in the record supporting the city's determination of a nuisance and the conditions the city imposed.

Police Officers Entitled to Discretionary Immunity for Using Tear Gas in Attempt to Make Arrest

In Conway v. County of Tuolumne, published November 24, 2014, the Fifth District Court of Appeal affirmed summary judgment in favor of the defendant county in a lawsuit for negligence and nuisance brought by a homeowner whose home was allegedly rendered uninhabitable by a sheriff's deputy's tear gas canisters.  The plaintiff called deputies when the plaintiff's adult son, a felon forbidden to own firearms, fired a .357 magnum at the plaintiff's front door.  The parties disputed whether the plaintiff gave deputies permission to search plaintiff's mobile home, or whether the plaintiff told deputies that he believed his son was still in the home.  A SWAT team and a negotiation team attempted to contact the son in the house, with no response.  The responding sergeant obtained permission from the SWAT team commander and the acting commander to throw two tear gas canisters into the home.  The SWAT team then broke down the door and found no one inside.  The son was arrested elsewhere.  The trial court granted summary judgment based on Government Code section 820.2 immunity for discretionary acts.

The appellate court analyzed the history of applying section 820.2 to police officers' acts.  Section 820.2 immunizes discretionary "policy" type acts, but not negligent ministerial acts done to carry out discretionary decisions.  The court decided that acts performed in carrying out an arrest may be immunized under section 820.2, if they involve sufficient judgment and discretion.  The decision to use tear gas on a suspect believed to be holed up in a building involves sufficient judgment to warrant discretionary immunity.

City Tree That Damages Property May Be a Public Improvement for Inverse Condemnation Purposes, and a Nuisance

In City of Pasadena v. Superior Court (Mercury Casualty Co.), published August 14, 2014, the Second District Court of Appeal, Division 3, declined to grant a writ of mandate setting aside a trial court order denying summary adjudication of causes of action for inverse condemnation and nuisance.  The case arose out of a city tree falling on a house and causing damage.  The homeowner's insurer paid for the damage, and then sued the city for the damage caused by the tree.  The city argued that it could not be held liable for inverse condemnation because undisputed facts established that the tree was not a public improvement.  The appellate court held that the evidence the city presented did not demonstrate that there was no triable issue of fact as to whether the tree was part of a public improvement.  The evidence showed that the tree was part of a public program to enhance residents' and visitors' quality of life by cataloging and maintaining street trees.  Although inverse condemnation must be based on damage caused by a public improvement as deliberately designed and constructed, that is a causation issue; and the city did not seek summary adjudication of the causation element of inverse condemnation.  

The city also argued that it was entitled to summary adjudication of the insurer's nuisance cause of action, because the insurer did not raise an issue of fact on whether the city was negligent.  The court held the city correct that where nuisance arises from the owner's omission to abate a nuisance rather than create it, negligence must be shown.  But the city failed to present sufficient evidence of lack of negligence to shift the burden to the plaintiff to raise a triable issue of fact on negligence.  Although the city presented evidence that it regularly maintained the trees, and that it was one of numerous trees that blew over in the same storm, the city failed to present evidence of the kind of maintainence it was required to perform on the tree to prevent the damage caused.  It had to show the nature and extent of its duty of care to show that it was not negligent.