Judge: Lee W. Tsao, Case: 22NWCV00456, Date: 2023-03-07 Tentative Ruling

Case Number: 22NWCV00456    Hearing Date: March 7, 2023    Dept: C

HERNANDEZ v. CITY OF DOWNEY, et al.

CASE NO.:  22NWCV00456

HEARING:  3/7/23 @ 10:30 AM

 

#2

TENTATIVE RULING

 

Defendant City of Downey’s demurrer to Plaintiff’s first amended complaint is SUSTAINED with 10 days leave to amend.

 

Moving Party to give NOTICE.

 

 

 

Defendant City of Downey (“City”) demurs to the 1st, 2nd, 6th, and 8th causes of action on the ground that they fail to state facts sufficient to constitute a cause of action.

 

The operative First Amended Complaint (“FAC”) alleges that in 2020, Plaintiff’s neighbor Joseph Nayebei aka Joseph Nayebi, trespassed onto Plaintiff’s property, installed cameras and peered into Plaintiff’s bedrooms and bathrooms, and refused Plaintiff’s verbal and written requests that he cease and desist from this conduct.  (FAC, ¶ 7.)  Plaintiff obtained a TRO, but Nayebei ignored the TRO.  (Id.)  Nayebi constructed improvements that crossed the boundary line onto Plaintiff’s property, and Plaintiff was told the City issued permits to Nayebi to build these encroachments.  (Id., ¶ 9.)  The City blacklisted Plaintiff and threatened Plaintiff.  (FAC, ¶¶ 11-12.)  Based thereon, the FAC asserts causes of action for:

 

1.    Negligence (v. Downey)

2.    Negligent Supervision, Hiring or Retention (v. Downey)

3.    Private Nuisance (v. Nayebi)

4.    Trespass (v. Nayebi)

5.    Slander (v. Nayebi)

6.    Declaratory Relief (v. all Defendants)

7.    Ejectment (v. Nayebi)

8.    Equitable Relief (v. all Defendants)

 

JUDICIAL NOTICE is taken of Defendant’s exhibits.  (Ev. Code §§ 451, 452, 453.)

 

Exhaustion of Administrative Remedies

 

Exhaustion of an administrative remedy where available is a condition precedent to obtaining judicial relief and is a jurisdictional prerequisite to resort to the courts, not a matter of judicial discretion. (Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal. App.3d 244, 251.)

 

The Downey Municipal Code (“DMC”) sets out a detailed set of rules governing building regulations and land use. Fences and gates are not governed by the Article XIII -Building Code.  Instead, fences and gates are governed by the land use provisions in DMC Article IX. (RJN Ex. A at DMC §§ 9520.08, 9710.02, 9710.04.) The City Planner and their staff (“Planning Department”) are authorized to issue permits under DMC Article IX, Chapter 8. (RJN Ex. A at DMC § 9112.)

 

DMC Article IX, Chapter 8 articulates the procedure for issuing and appealing permits. (RJN Ex. A at DMC §§ 9806, 9814.06.) This permit appeal procedure applies to any person who has an issue with a permit that is set to be issued. (RJN Ex. A at DMC § 9806.)

 

Plaintiff failed to allege that she appealed the permit decision.  However, Plaintiff did file a tort claim.  (Complaint, Ex. 1.)  Neither parties briefed whether the tort claim would constitute sufficient exhaustion of administrative remedies.

 

At this juncture, the court will SUSTAIN the demurrer with 10 days leave to amend, and if the amended pleading is challenged, the court invites briefing on this issue.

 

1st , 2nd, 6th, and 8th CAUSES OF ACTION

 

A public entity cannot be sued for common law torts. (Gov. Code § 815; San Mateo Union High Sch. Dist. v. Cnty. of San Mateo (2013) 213 Cal. App. 4th 418, 427.)

 

A public entity is not liable for an injury caused by the “issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.” (Gov. Code, §818.4; see also Gov. Code, § 821.2; 821.4.)  This immunity applies to discretionary licensing activities even if there is negligence in the issuance of the permit. (Burchett v. City of Newport Beach (4th Dist. 1995) 33 Cal. App. 4th 1472, 1480.)  Further, [t]he issuance of building permits...is a discretionary function.” (Thompson v. City of Lake Elsinore (1993) 18 Cal. App. 4th 49, 57 (internal cites omitted); see also Burns v. City Council (1973) 31 Cal. App. 3d 999, 1005.)

 

“A public entity is not liable for injury caused by its failure to make an inspection… of any property... for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” (Gov. Code § 818.6.) “Government Code section 818.6 grants absolute immunity from liability for any ‘negligent inspection’ of private property to determine if such property constitutes a hazard to health or safety, whether or not the duty to inspect is construed as ‘mandatory’ or ‘discretionary.’”  (Cochran v. Herzog Engraving Co. (Ct. App. 1984) 155 Cal. App. 3d 405, 411, citing Clayton v. City of Sunnyvale (1976) 62 Cal.App.3d 666, 668–671.)

 

If City staff are immune from liability, then the City is immune as well. (Gov. Code § 815.2.)

 

Here, Plaintiff has asserted common law claims for Negligence, Negligent Supervision, Hiring or Retention, Declaratory Relief, and Equitable Relief based on the City’s allegedly negligent issuance of the permits and its failure to inspect the Neighbor’s Property when issuing the Permits. (FAC ¶¶ 38, 42-43.)

 

City is immune for any negligence made in the issuance or denial of permits or for any negligent inspection.

 

Plaintiff argues that the immunities do not shield Defendant because California Constitution Article XVI, Section 6 trumps the Government Code when dealing with gifts of public funds, which Plaintiff contends occurred here through the property encroachment.  Contrary to Plaintiff’s arguments, Article XVI, Section 6 does not apply to the City.

 

The city of Downey is a Charter City.  Charter cities have the power to “make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws.” (Cal. Const., art. XI, §5(a).) Additionally, when charter cities enact laws on local municipal affairs, those laws superseded any inconsistent state general law. (Ibid.)  The California Constitution establishes that a charter city’s power to regulate municipal affairs is only limited by “conflicting provisions in the state or federal constitutions and preemptive state law on matters of statewide concern.” (The California Municipal Law Handbook (Cal. CEB 2022) §1.13; see also Smith v. City of Glendale (1934) 1 Cal.App 2d 463, 465 (explaining that a city charter is the supreme law of the city on municipal affairs); City of Glendale v. Trondsen (1957) 48 Cal.2d 93, 98 (describing the power of a charter city to regulate municipal affairs.).)

 

Article XVI, Section 6 places a restriction on the California legislature and not on the power of a charter city. (Los Angeles Gas & Elec. Corp. v. City of Los Angeles (1922) 188 Cal. 307, 317, referring to predecessor versions of the California Constitution, but the substance is unchanged); Tevis v. City and County of San Francisco (1954) 43 Cal.2d 190, 197, referring to predecessor versions of the California Constitution, but the substance is unchanged; see also Mullins v. Henderson (1946) 75 Cal.App.2d 117, 132-133, referring to predecessor versions of the California Constitution, but the substance is unchanged; Smith v. City of Glendale (1934) 1 Cal.App.2d 463, 466, referring to predecessor versions of the California Constitution, but the substance is unchanged.)  These same courts have concluded that Article XVI, Section 6 of the California Constitution are not applicable to charter cities. (Ibid.)

 

Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.