Judge: Michael P. Linfield, Case: 22STCV33737, Date: 2023-01-26 Tentative Ruling
Case Number: 22STCV33737 Hearing Date: January 26, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendant
City of Cerritos
Resp. Party: Plaintiff City of Norwalk
Defendant City of Cerritos’s Demurrer is SUSTAINED without leave to
amend.
BACKGROUND:
On October 18, 2022, Plaintiff City of Norwalk
filed its Complaint against Defendant City of Cerritos on a cause of action for
abatement of public nuisance.
On November 21, 2022, Defendant filed its
Demurrer. Defendant concurrently filed: (1) Declaration re Compliance with Meet
and Confer Requirements; (2) Proposed Order; and (3) Request for Judicial
Notice.
On January 12, 2023, Plaintiff filed its
Opposition.
On January 19, 2023, Defendant filed its
Reply.
ANALYSIS:
I.
Request for Judicial Notice
Defendant
requests that the Court take judicial notice of the following items:
(1)
Cerritos City Council Ordinance No. 1030;
(2)
Cerritos City Council Ordinance No. 1031;
(3)
Chapter 10.18 of the Cerritos Municipal Code; and
(4)
A map in the Circulation Element of the Cerritos General Plan.
The Court
GRANTS judicial notice as to each of these items.
II.
Legal Standard
A demurrer is a pleading used to test the legal sufficiency of other
pleadings. It raises issues of law, not fact, regarding the form or content of
the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for the purpose of the ruling
on the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)
A demurrer can be used only to challenge defects that appear on the
face of the pleading under attack; or from matters outside the pleading that
are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No
other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A
demurrer is brought under Code of Civil Procedure section 430.10 (grounds),
section 430.30 (as to any matter on its face or from which judicial notice may
be taken), and section 430.50(a) (can be taken to the entire complaint or any
cause of action within).
III.
Discussion
A. The Parties’ Arguments
Defendant
demurs to the sole cause of action for public nuisance, arguing: (1) that
Defendant has broad statutory authority to establish vehicle weight
restrictions on streets within its boundaries; (2) that Defendant’s adoption of
weight restrictions on a street within its boundaries is expressly authorized
by law and cannot be deemed a nuisance; (3) that Defendant’s immunity from
nuisance liability is not subject to the narrow exception provided by case law;
and (4) that Defendant’s adoption of traffic routing restrictions was a
legislative act and is not subject to judicial review due to the separation of
powers doctrine. (Demurrer, pp. 5:22–23, 7:1–3, 9:12–13, 11:13–15.)
Plaintiff
opposes the Demurrer, arguing: (1) that Defendant does not have statutory
authority to block regionally significant streets to heavy traffic; (2) that
Defendant does not have immunity for shifting its traffic problems to
Plaintiff; (3) that the California Supreme Court’s decision in Varjabedian
v. City of Madera (1977) 20 Cal.3d 285 is controlling; and (4) that the
separation of powers doctrine is not implicated where Defendant lacks authority
to create a nuisance.
In its Reply,
Defendant argues: (1) that Plaintiff’s interpretation of Vehicle Code section
21101 is contradicted by the section’s plain language; (2) that Plaintiff’s
interpretation of Vehicle Code section 21101 is specifically rejected by case
law; (3) that Defendant has immunity from nuisance liability under Civil Code
section 3482; and (4) that Defendant’s legislative action is subject to the
separation of powers doctrine.
B. Public Nuisances
1.
Legal Standard
“Anything which
is injurious to health . . ., or is
indecent or offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of life or
property, or unlawfully obstructs the free passage or use, in the customary
manner, of any . . . public park,
square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)
“A public nuisance is one
which affects at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the annoyance or damage
inflicted upon individuals may be unequal.” (Civ. Code, § 3480.)
“Nothing which is
done or maintained under the express authority of a statute can be deemed a
nuisance.” (Civ. Code, § 3482.)
2.
Analysis
Plaintiff
argues in its Complaint that Defendant has created a public nuisance by
imposing a vehicle weight restriction on a major street within geographical
boundary, which has diverted heavy truck traffic from Defendant’s streets to
Plaintiff’s streets and had severe adverse effects on Plaintiff’s businesses
and properties. (Complaint, p. 2:2–18.)
For the vast
majority of Defendants, such allegations would be sufficient for a cause of
action for public nuisance to survive a demurrer. (Civ. Code, §§ 3479, 3480.)
However,
Defendant claims immunity on the basis that it is acting under the express
authority of a statute. (Civ. Code, § 3482.) The Court must thus consider what
that authority is, if it applies here, and whether there are any exceptions to
it.
C.
Defendant has Statutory Authority to Adopt Vehicle Weight
Restrictions on Streets in its Geographical Boundary
1.
Legal Standard
“Any city, . . . may,
by ordinance, prohibit the use of a street by any commercial vehicle or by any
vehicle exceeding a maximum gross weight limit, except with respect to any
vehicle which is subject to Sections 1031 to 1036, inclusive, of the Public
Utilities Code . . . .” (Veh. Code, § 35701, subd. (a).)
“Local
authorities, for those highways under their jurisdiction, may adopt rules and
regulations by ordinance or resolution, except as provided in subdivision (f),
on the following matters: . . . (c) Prohibiting the use of particular highways
by certain vehicles, except as otherwise provided by the Public Utilities
Commission pursuant to Article 2 . . . .” (Veh. Code, § 21101, subd. (c).)
“No ordinance
proposed under Section 35701 is effective with respect to any highway which is
not under the exclusive jurisdiction of the local authority enacting the
ordinance, or, in the case of any state highway, until the ordinance has been
submitted by the governing body of the local authority to, and approved in
writing by, the Department of Transportation. . . .” (Veh. Code, § 35702.)
“‘Highway’ is a
way or place of whatever nature, publicly maintained and open to the use of the
public for purposes of vehicular travel. Highway includes street.” (Veh. Code,
§ 360.)
2.
Analysis
Defendant
argues that it has express statutory authority under Vehicle Code section
35701, subdivision (a) to set weight restrictions on designated streets in
order to prevent them from being used as truck routes. (Demurrer, p. 4:11–14.)
Plaintiff
disagrees, arguing that the statute is violated because of the regional impact
of restrictions, which the Legislature intended to proscribe. (Opposition,
5:26–28.)
The specific
issue at hand — whether a city may implement vehicle weight restrictions
pursuant to the Vehicle Code — is one that has been repeatedly litigated. The
Courts of Appeal have repeatedly upheld cities’ express statutory authority to
implement vehicle weight restrictions. (See, for example, McCammon v.
Redwood City (1957) 149 Cal.App.2d 421, Skyline Materials, Inc. v.
Belmont (1961) 198 Cal.App.2d 449, Pacific Ready-Mix, Inc. v. Palo Alto (1968)
263 Cal.App.2d 357.)
The oldest of
these cases, McCammon, has a helpful discussion of Plaintiff’s argument
regarding regional impact of such restrictions.
“Appellants
also argue that a city does not have the power to enact an ordinance which has
an extraterritorial effect, i.e., on through traffic on county roads outside of
the city. However, this is not true where, as here, the State of California has
expressly granted to incorporated cities the power to enact such an ordinance
as to the use of the streets within its limits. Appellants rely heavily upon Ferran v.
City
of Palo Alto, 50 Cal.App.2d 374 . . ., but that case
acknowledges the exception to which we have just referred, in the following
language (p. 379): ‘One of the limitations upon such ordinances is that they
can have no extraterritorial force unless by express permission of
the sovereign power; . . .’ (Emphasis added.) This express provision is contained in section 713 of the
Vehicle Code.” (McCammon, supra, at 425.)
Thus,
Defendant has the better argument here. By the explicit terms of the ordinance,
Defendant has implemented a vehicle weight restriction of 6,000 pounds (3 tons)
on various streets pursuant to Vehicle Code section 35701, subdivision (a).
(Request for Judicial Notice, Exs 1–2.) (Although Defendant has not acted
pursuant to any part of section 21101, the analysis is would be the same.) It
is undisputed that the vehicle weight restrictions have only been implemented
on roads within the City of Cerritos, which means that Vehicle Code section
35702 is not implicated. (Request for Judicial Notice, Ex. 3.) Even if the
vehicle weight restrictions have a regional impact, the restrictions are
allowed by the express permission of the sovereign power.
The law
allows these restrictions.
D. Immunity from Nuisance Liability
Plaintiff
cites City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847 and City
of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100 for
the proposition that Defendant do not have statutory immunity to impose these
restrictions. (Opposition, pp. 2–4.) Plaintiff further cites Varjabedian v.
Madera (1977) 20 Cal.3d 285 (and subsequent cases) for the proposition that
these restrictions are a public nuisance that do provide Defendant with
statutory immunity. (Opposition, pp. 5-7.)
Defendant
argues that Plaintiff’s citations to City of Poway and City of
Hawaiian Gardens are inapposite here because they involve discussion of
Vehicle Code section 21101, subdivision (f), rather than subdivision (c).
(Reply, p. 4:10–15.) Further, Defendant argues that Varjabedian is
inapposite here, citing Friends of H Street v. City of Sacramento (1993)
20 Cal.App.4th 152 and other cases. (Reply, p. 5:18–27.)
1.
City of Poway and City of Hawaiian Gardens are Inapposite
The earliest
version of subdivision (f), discussed in City of Poway, permitted
local authorities to adopt regulations prohibiting entry to or exit from
streets or highways by means of specified roadway design features to implement
the circulation element of a general plan. (City of Poway, supra,
at 859.) A later version of subdivision (f), discussed in City of Hawaiian
Gardens, permitted local authorities to adopt regulations prohibiting entry
to, or exit from, or both, from any street by means of islands, curbs, traffic
barriers, or other roadway design features to implement the circulation element
of a general plan. (City of Hawaiian Gardens, supra, at 1107.)
The current version of subdivision (f) allows for a slow streets program that
includes closures to vehicular traffic or through vehicular traffic of
neighborhood local streets, so long as a variety of requirements (including an
outreach and engagement process, advance notice of the closure, determination
that the closure or traffic restriction is necessary for the safety and
protection of persons who are to use that portion of the street during the
closure of traffic restriction, and other requirements) are met. (Veh. Code, §
21101, subd. (f)(1)–(6).)
Notably, both
City of Poway and City of Hawaiian Gardens involved total
closures of a street, as opposed to vehicle weight restrictions. This is an
important distinction, as Defendant’s ordinances did not invoke any part of
Vehicle Code section 21101, but rather invoked Vehicle Code section 35701,
subdivision (a).
Yet even if
Defendant’s ordinances had invoked Vehicle Code section 21101, the appropriate
subdivision to consider is subdivision (c). Vehicle Code section 21101,
subdivision (c) allows local authorities to prohibit the use of particular
highways by certain vehicles, except as otherwise provided by the Public
Utilities Commission. Just like with Vehicle Code section 35701, subdivision
(a), that would give Defendant the express statutory authority to prohibit
certain vehicles (e.g., vehicles weighing over a certain amount).
The Court
finds that the Courts of Appeal opinions in City of Poway and City of
Hawaiian Gardens are inapposite here.
2.
Varjabedian is Inapposite
The issue of
when cities can invoke statutory immunity from nuisance liability is a
well-litigated area of the law.
“[I]t is helpful to distinguish the act or
condition constituting the nuisance from the consequences of the act or
condition, such as being ‘injurious to health,’ or ‘indecent or offensive
to the senses,’ or constituting an ‘obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or property’ (Civ. Code,
§ 3479). Civil Code section 3482 immunizes
liability for the acts that
are ‘done or maintained’ pursuant to the express terms of a statute. Thus, in Varjabedian the
act that was ‘done or maintained’ was allowing the odors [from a newly created
sewage plant] to escape. That act was not authorized by statute, so Civil
Code section 3482 did
not immunize nuisance liability. In Wilson, the act that was ‘done or maintained’ was allowing the
stray voltage to exist. That
act was likewise not authorized by statute, so Civil
Code section 3482 did
not immunize nuisance liability. But in Farmers,
the act that was ‘done or maintained’ was the spraying of the pesticide. That act was expressly authorized by statute, so Civil Code section 3482 immunized nuisance
liability for that conduct.”
(Williams v. Moulton Niguel Water
Dist. (2018) 22 Cal.App.5th 1198, 1207, citing Varjabedian, supra,
at 285; Wilson v. S. Cal. Edison Co. (2015) 234 Cal.App.4th 123, 129; Farmers
Ins. Exch. v. State of Cal. (1985) 175 Cal.App.3d 494, 500, 503.)
Here, the act
at hand constituting the nuisance — Defendant’s setting vehicle weight
restrictions on roads within its city limits — is expressly authorized by
Vehicle Code section 35701, subdivision (a). This is different from the
consequences of the act constituting the nuisance — a regional traffic impact
on Plaintiff. Thus, Varjabedian is inapposite here, and the Court finds
that Defendant is entitled to statutory immunity for the public nuisance
pursuant to Civil Code section 3482.
The Court sustains
Defendant’s Demurrer without leave to amend. (Farmers Ins. Exh.,
supra, at 499, 503.)
E.
Separation of Powers Doctrine
As the Court
has found that Defendant is entitled to statutory immunity for the alleged
public nuisance at issue, the Court need not reach the Parties’ arguments
regarding the separation of powers doctrine.
IV. Conclusion
Defendant City of Cerritos’s Demurrer is SUSTAINED without leave to
amend.