Nestle v. City of Santa Monica (concluded)


Negligence and Zoning Violations

Plaintiffs' third cause of action alleges that defendant was negligent in permitting the airport to be used for takeoff and landing by jet aircraft. Their fourth cause of action alleges that a portion of the Santa Monica airport is located within an area of the City of Los Angeles zoned for single-family residential use and thus is in violation of Los Angeles zoning ordinances. The trial court ruled on the viability of these causes of action immediately prior to trial and held them legally insufficient. Plaintiffs offered to amend counts III and IV under theories encompassed by Government Code sections 815.2, 815.6, 830, 835 and Civil Code section 3479. The court denied leave to amend.

Without determining the propriety of the court's ruling on the insufficiency of counts III and IV, or the applicability of the suggested code sections to those causes of action, we conclude the trial court improperly denied plaintiffs an opportunity to amend. (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549-550 [99 Cal.Rptr. 745, 492 P.2d 1137].) We appreciate that the trial court's dilemma was exacerbated when the case at bench was scheduled for trial without a complete disposition of pretrial matters. The pretrial order preserved as an issue the legal sufficiency of the complaint. In so doing, the order in effect continued a fundamental part of the pretrial proceedings for determination at or immediately prior to trial. [FN 17] Accordingly, we are not presented with circumstances in which a late amendment is proffered and the court concludes there has been inexcusable delay. (See Bank of America etc. Assn. v. Goldstein (1938) 25 Cal.App.2d 37, 46-47 [76 P.2d 545]; 3 Witkin, Cal. Procedure (2d ed. 1971) s. 1048 at pp. 2623-2625.) Instead, because of the unusual nature of these proceedings, the general rule of liberal construction of pleadings (Code Civ. Proc., s. 452) and of liberal allowance of amendments (Scott v. City of Indian Wells, supra; Simons v. County of Kern (1965) 234 Cal.App.2d 362, 367-368 [44 Cal.Rptr. 338]) should prevail. Furthermore, plaintiffs did describe the purported legal foundation for their proposed amendments notwithstanding the fact that section 472c of the Code of Civil Procedure does not require a specific request to amend, or an indication of its legal basis, as a prerequisite to reviewing the trial court's order on appeal. (Scott v. City of Indian Wells, supra, 6 Cal.3d 541, 550.)

[FN 17] As noted previously, the sufficiency of the cause of action for nuisance was not ruled upon until after the conclusion of trial, thus extending essentially pretrial matters until judgment.
With these general considerations in mind, we now turn to the individual issues presented in counts III and IV. The Government Code sections to which plaintiffs referred in their request for leave to amend have strains of negligence running throughout, thus indicating plaintiffs may be able to state a cause of action for negligence based on some of those provisions. It is true that the trial court partially based its reason for denying plaintiffs leave to amend on the ground that count III (as well as count IV) was preserved by the nuisance cause of action. However, facts supporting theories of dangerous and defective conditions of property (Gov. Code, s. 830 et seq.), statutory liability (Gov. Code, s. 815.6) and vicarious liability (Gov. Code, s. 815.2) must be stated separately from a cause of action for nuisance. (City of Burbank v. Superior Court (1965) 231 Cal.App.2d 675, 684 [42 Cal.Rptr. 23].) [FN 18]
[FN 18] Defendant contends that since the court found that the airport was not a dangerous or defective condition of property, plaintiffs cannot amend asserting such theory. However, in dismissing counts II, III, and IV, the court necessarily decided only the inverse condemnation action on the merits, in connection with which the issue of dangerous or defective condition of property is immaterial. Therefore, the finding that the airport is not a dangerous or defective condition of property is likewise immaterial.
With respect to Santa Monica's purported violation of the zoning ordinances of the City of Los Angeles, it is unclear whether plaintiffs propose to amend their complaint pursuant to the Government and Civil Code sections referred to previously or whether some other theory will be advanced. In either event, the liberal rules of pleadings and amendments reviewed above apply equally to count IV. In general the concept is long-standing that a private person who suffers identifiable harm by reason of a violation of a municipal zoning law may sue the violator for compensatory damages and may also seek injunctive relief when applicable. (Sapiro v. Frisbie (1928) 93 Cal.App. 299, 313 [270 P. 280]; see also McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 250, 253-254 [172 P.2d 758].) While in the vast majority of zoning cases a private party is the defendant, there appears no valid reason why, under the proper circumstances, an action against a municipal body for violating the zoning ordinances of a neighboring municipality cannot be maintained. [FN 19] To the extent this action for zoning violations may raise novel questions not presented in similar suits against private parties, they may be considered below on remand.
[FN 19] We are not presented here with the more difficult question of the liability of a city for violating its own zoning laws.
Having concluded that plaintiffs are entitled to amend counts III and IV, we again realize the question of the proper statute of limitations may arise in further proceedings. Until plaintiffs plead facts indicating how liability under those counts is alleged to have accrued, however, we cannot ascertain whether the one-year statute of limitations of Code of Civil Procedure section 340 necessarily bars plaintiffs' ability to recover for personal injuries caused by defendant's negligence or zoning violations. If the conduct of defendant giving rise to liability is continuing in nature every repetition of the wrong may be actionable. Such a rule has a long history in nuisance actions (see, e.g., Phillips v. City of Pasadena, supra, 27 Cal.2d 104, 107-108) and by analogy may apply to certain factual situations causing personal injury as well as property damage for negligence and zoning violations. Only after sufficient facts are pleaded will the applicability of the statute of limitations be ascertainable. [FN 20]
[FN 20] Defendant argues that appellants could not state a cause of action for counts III and IV because the trial court found no property damage and that personal injury recovery would be barred by section 340 of the Code of Civil Procedure. As we have stated the effect of the statute of limitations on counts III and IV can only be determined after appellants are allowed to amend. Appellants made several requests for findings with respect to personal injury damages but the trial court denied such requests.


Conclusion

For the foregoing reasons, the judgment for defendant on the cause of action for inverse condemnation is affirmed; the judgment dismissing the counts for nuisance, negligence and zoning violations is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.

Wright, C. J., Peters, J., Tobriner, J., and Kaus, J., [FN*] concurred.

[FN *] Assigned by the Chairman of the Judicial Council.


BURKE, J., Concurring in part and dissenting in part.

I concur with the majority herein to the extent they affirm judgment for defendant on the inverse condemnation cause of action, and reverse and remand the cause with respect to the negligence and zoning violation counts. I dissent, however, from the reversal of the judgment dismissing the nuisance count for in my view the California Tort Claims Act quite clearly immunizes governmental agencies from liability for nuisance, except insofar as such nuisance may be actionable under specific provisions of the act itself.

As indicated by the majority, the "cornerstone" of the legislative approach under the act is set forth in Government Code section 815, which provides: "Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." (Italics added.) The California Law Revision Commission, which drafted and proposed adoption of the various sections of the act, recommended to the Legislature that it adopt the "basic statutory approach" that a public entity "should be liable only as made liable by specific enactment," rather than being "made liable for all damages and injuries caused by their activities except as such liability is limited or conditioned by statute." (Recommendation Relating to Sovereign Immunity, 4 Cal. Law Revision Com. Rep. (Jan. 1963) p. 811.) The commission reasoned that a grant of immunity subject to specific exceptions "will provide a better basis upon which the financial burden of liability may be calculated, since each enactment imposing liability can be evaluated in terms of the potential cost of such liability." (Id.)

Accordingly, the commission recommended adoption of language substantially identical to section 815, quoted above. In its comment following proposed section 815, the commission noted that "In the following portions of this division, there are many sections providing for the liability of governmental entities under specified conditions. In other codes there are a few provisions providing for the liability of governmental entities, e.g., Vehicle Code Section 17001 et seq. [expressly declaring that a public entity is liable for death or injury caused by negligent operation of a motor vehicle by an employee] and Penal Code Section 4900 [expressly authorizing claims against the State for pecuniary injuries suffered by persons erroneously convicted and imprisoned]. But there is no liability in the absence of an enactment declaring such liability. For example, there is no section in this statute declaring that public entities are liable for nuisance, even though the California courts have previously held that public entities are subject to such liability even in the absence of statute. Under this statute, the right to recover damages for nuisance will have to be established under the provisions [of the Tort Claims Act] relating to dangerous conditions of public property or under some other statute that may be applicable to the situation." (Id. at p. 837, italics added; see also West's Annot. Cal. Codes, Gov. Code, s. 815, and comment.)

The majority, by emphasizing the words "some other statute" in the preceding sentence, would have us believe that the commission intended to leave open the possibility of imposing liability upon governmental entities under the general nuisance provisions of Civil Code section 3479. The majority note that several prior California cases had imposed such liability even though section 3479 is silent in its application to governmental entities. And yet it is precisely this line of cases which, according to the commission, "previously held that public entities are subject to such [nuisance] liability even in the absence of statute," and which the commission sought to circumvent by the adoption of section 815.

As noted above, the commission suggested that liability for nuisance would have to be established under the provisions of the act relating to dangerous conditions of public property, i.e., Government Code section 830 et seq. The commission's comment regarding proposed section 830 conclusively establishes its intent that a government entity would be immune from liability for nuisance under Civil Code section 3479: "Under the previous law, public entities were liable for maintaining a nuisance; but under this statute liability for conditions that would constitute a nuisance will have to be based on the somewhat more rigorous standards set forth in this chapter. Liability for such conditions cannot be imposed upon a nuisance theory because Section 815 provides public entities with immunity from liability unless liability is imposed by an enactment, and there is no enactment imposing liability on a nuisance theory." (Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep., p. 848, italics added; see also West's Annot. Cal. Codes, supra, Gov. Code, s. 830, and following comment.) The foregoing reports are entitled to "substantial weight" in construing section 815. (See Keeler v. Superior Court, 2 Cal.3d 619, 630 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].)

The majority wholly ignore the foregoing statement of the commission's intent. They also ignore the evident fact that if governmental entities remain liable upon a general nuisance theory, the provisions of Government Code section 830 et seq. (pertaining to liability for dangerous conditions) are rendered largely superfluous. It is a cardinal principle of statutory interpretation that "The courts will not presume that the legislature in enacting a statute indulged in an idle act. The presumption is that it intended the statute to have some effect." (45 Cal.Jur.2d, Statutes, s. 99, p. 613.) And yet under the majority's holding, the restrictions upon the imposition of liability set forth in sections 830 through 835.4 of the Government Code may be easily circumvented by characterizing the alleged negligent act as a "nuisance" and bringing suit under Civil Code section 3479. As stated by Professor Van Alstyne, "many tort situations involving ordinary negligence, for which governmental immunity would otherwise be a complete defense, may reasonably be construed as within the concept of nuisance." (A Study Relating to Sovereign Immunity, 5 Cal. Law Revision Com. Rep. (Jan. 1963) p. 229; see Van Zyl v. Spiegelberg, 2 Cal.App.3d 367, 372-373 [82 Cal.Rptr. 689] [negligence and nuisance are not two separate torts; nuisance is "a species of damage" resulting from ordinary tortious conduct]. The facts alleged in the instant case provide a good example of a type of tort situation which could be forced into either a negligence or nuisance mold, at the option of the plaintiff.

The majority quote Professor Van Alstyne to support their view that "a suit for nuisance must find statutory support and such support may be furnished by section 3479." (Ante, p. 933.) Yet the majority fail to complete Van Alstyne's remarks. Immediately following the portion quoted by the majority, he states: "However, in light of the legislative intent to preclude nuisance liability unless provided by a statute such as the specific dangerous condition statute, the sounder view, it is submitted, would deny application of the Civil Code's general provisions and require public entities' nuisance liability to rest on statutory language expressly applicable to public entities. See ... Law Revision Commission Comment, s 830 [quoted above]." (Italics added; Van Alstyne, Cal. Government Tort Liability (Cont. Ed. Bar 1964) s. 5.10, pp. 126-127.)

The majority cite certain cases decided following the enactment of the Tort Claims Act which "impliedly recognized" the continued existence of a nuisance action. None of these cases, however, expressly considered the question in the light of the clear legislative history set forth above. As Van Alstyne recognizes, citing two of the three cases relied upon by the majority, "no opinion has been found which undertakes a careful analysis of this branch of the law." (Van Alstyne, Cal. Government Tort Liability Supplement (Cont. Ed. Bar 1969) s. 5.10, p. 3.)

Finally, the majority make the disparate argument that the Legislature, by "rejecting" in 1970 proposed legislation which would have expressly immunized government entities from nuisance liability, therefore must have "decided to reject the commission's proposal to bar [such] suits ... Consequently, it is manifest that the Legislature intended to allow such causes of action if they could be tailored to meet the specifications of statutory provisions, such as section 3479 of the Civil Code." (Ante, p. 936.) Is it not just as likely that the Legislature rejected the 1970 proposal as wholly unnecessary in view of the clear legislative history reviewed above? (Or that the new proposal simply died in committee without ever reaching the main bodies of the Legislature?) That there exists a wide range of possible reasons why proposed legislation is not adopted strongly suggests to me that the mere fact of rejection affords a useless tool for exploring positive legislative intent.

The nuisance immunity provision in Senate Bill No. 94 was not the only provision ultimately to be deleted from the bill. In addition, the Legislature or legislative committee rejected a commission proposal to eliminate design immunity under certain specified situations. (See 9 Cal. Law Revision Com. Rep. (1969) p. 816.) Yet that rejection did not influence our subsequent analysis concerning the probable legislative intent underlying the design immunity provision of the act, section 830.6. (See Baldwin v. State of California, 6 Cal.3d 424, 435 [99 Cal.Rptr. 145, 491 P.2d 1121].) If we drew no inferences in Baldwin from the fact that the Legislature had failed to adopt the proposed legislation, how are we justified in doing so in this case?

As indicated above, the rationale underlying the commission's proposal to grant immunity subject to specific exceptions was to provide government entities with some basis for evaluating the potential costs of liability. The majority's approach, namely, to sanction the imposition of liability under general statutory provisions not expressly applicable to government entities, totally undermines that rationale and precludes even a rough estimation of potential liability.

In view of the language of section 815, the express legislative intent underlying the adoption of sections 815 and 830, and the policy underlying the Tort Claims Act itself, I find it inescapable that the Legislature intended to immunize governmental entities from liability for nuisance under Civil Code section 3479. Accordingly, the trial court properly entered judgment in favor of defendant on plaintiff's nuisance cause of action.

McComb, J., concurred.

Respondent's petition for a rehearing was denied June 7, 1972. Sullivan, J., did not participate therein. Burke, J., was of the opinion that the petition should be granted.