Cancun Homeowners Assn. v. City of San Juan Capistrano

• Decision Date: 30 October 1989
• Docket Number: No. G007218,G007218
• Citation: 215 Cal.App.3d 1352,264 Cal.Rptr. 288
• Parties: CANCUN HOMEOWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. CITY OF SAN JUAN CAPISTRANO, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 288

264 Cal.Rptr. 288

215 Cal.App.3d 1352

CANCUN HOMEOWNERS ASSOCIATION, INC., Plaintiff and Appellant, v. CITY OF SAN JUAN CAPISTRANO, Defendant and Respondent.

No. G007218.

Court of Appeal, Fourth District, Division 3, California.

Oct. 30, 1989.

Duke, Gerstel, Shearer & Bregante, Ann M. McMenomy and Alan R. Johnston, San Diego, for plaintiff and appellant.

Chapman, Fuller & Bollard, H. Daniel Fuller and Tom Cadden, Irvine, for defendant and respondent.

OPINION

SONENSHINE, Associate Justice.

Cancun Homeowners Association, Inc., appeals a summary judgment granted in favor of the City of San Juan Capistrano (the City). Specifically, Cancun objects to the trial court's conclusion that the City is immune from prosecution for negligence in the issuance of building and grading permits.

I

In 1986 Cancun filed a complaint for damages suffered by its condominium unit owners from the subsidence of the land underlying the property. Defendants included the developer, landscaper, plumbing company, and soil engineers. In a first amended complaint, Cancun added the City as a defendant, contending the building inspector shirked his mandatory duty to ensure all soils be compacted to 90 percent.

The complaint stated all defendants were involved in some manner with the construction, in 1980, of "dwelling structures and/or lots consisting of approximately forty (40) individual condominium units...." After construction was completed, Cancun discovered the improvements were "defective in that the soil underlying said property, as designed and prepared, is inadequate to support the improvements constructed thereon, resulting in substantial settlement and subsidence, and thereby resulting in cracks in the foundations, footings, slabs, walls, ceilings, floors, windows and/or doors of the individual units and common area improvements." The complaint alleged the defects "were directly and proximately caused by the latent deficiencies in the design, planning, supervision, observation of construction, construction and/or development" of the property.

The eighth count, alleging negligence against the City, incorporated the above-quoted language. It further alleged the existence of ordinances "designed for the purpose of providing for the proper design, planning, inspection, construction completion of projects [sic ], and which statutes and/or ordinances were further designed for the purpose of protecting purchasers and owners of condominium units, both as to common areas and also as to individual residential units themselves."

The cause of action stated the City "had a mandatory duty to require [the developers] to adequately and sufficiently compact the soils at [the property] to the requirements prescribed in the statutes, ordinances and regulations before issuing grading and building permits to Defendants to erect structures on said property." The City "failed to discharge its duty ... by issuing grading and building permits to Defendants ... based on soils reports submitted to CITY by Defendants showing that the soils of [the property] were not compacted pursuant to the requirements for compaction in the applicable statutes, ordinances and regulations." Cancun sought damages in excess of $1,000,000 to correct the defective conditions. ¹

The City moved for summary judgment, alleging the pertinent ordinance, number 367, was discretionary in nature; consequently, the City was immune under Government Code sections 815 and 818.4 from any perceived negligence occurring in the issuance of grading and/or building permits. After consideration of the pleadings, evidence offered, and oral arguments, the court filed its order finding, inter alia, "the city is immune from prosecution for negligence pursuant to the California Tort Claims Act."

II

Although Cancun appeals from an order for summary judgment, which is not the final judgment in the case, review is proper. There are no causes of action remaining which pertain to the City, and Cancun's rights vis-a-vis the City have been definitively adjudicated. (Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 489, 186 Cal.Rptr. 321.)

III

The parties agree the major, if not sole, issue on appeal is whether the duties prescribed in ordinance number 367 are mandatory or discretionary. It is Cancun's position the language of the ordinance requires the City to ensure that all fill soils, underlying buildings or structures, be compacted to 90 percent, with certain exceptions inapplicable here. The City maintains the enactment is discretionary in its entirety; 90 percent compaction is the stated optimum but it may be waived in the discretion of the building official.

In 1978 the City adopted its own municipal code. Ordinance number 367, composed of two articles, addressed "Buildings and Structures" and "Grading and Excavation." The second article, in 23 sections, sought to safeguard "the public welfare by regulating grading on private property in the City of San Juan Capistrano." It incorporated by reference Uniform Building Code chapter 70 entitled "Excavation and Grading." ²

Article 2 of the ordinance, "Grading and Excavation," covers permit requirements, fees, bonds, and inspections, as well as cuts, fills, drainage and terracing. Each of the latter specifies the ideal values; under "Fills" are listed the requirements for location, ground preparation, material to be used, compaction, slope and drainage.

The pertinent parts appear in section 11 of "Grading and Excavation," regulating "Fills":

"(a) General. Unless otherwise approved by the Building Official and recommended in the approved soil engineering report, fills shall conform to the provisions of this article.

"..........................

"Exceptions:

"1. Fills excepted in Section 3, and where the Building Official determines that compaction is not a necessary safety measure to aid in preventing saturation, settlement, slipping, or erosions of the fill.

"..........................

"(e) Compaction. All fills shall be compacted to a minimum of ninety (90) percent of maximum density...."

Cancun also points to section 420 of the Uniform Building Code which states: "Shall, as used in this Code, is mandatory."

When the grading and soils reports for the Cancun project were submitted to the City, Building Official Roy Aalbu noticed all fill to be added would be compacted to 90 percent. However, attached to the report were some tests taken on the old existing fill indicating certain areas of less than 90 percent compaction. He conferred with the engineer and, based on that discussion, determined to issue the permits.

Cancun argues the City is liable under Government Code section 815.6 ³ for failure to perform a mandatory duty, i.e., require compaction of the old fill to meet the 90 percent standard. "[G]iven a mandatory duty, the liability imposed by Government Code section 815.6 ... takes precedence over the immunity provisions of Government Code section 818.4...." (Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 562, 136 Cal.Rptr. 748.) ⁴ Consequently, Cancun insists the ordinance establishes "an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which a governmental entity may exercise or not as it chooses." (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606.)

The City maintains it is immunized under Government Code sections 818.4 and 821.2; it acknowledges the two sections are applicable only as to discretionary duties, but contends the ordinance itself is discretionary. The City further contends its officials complied with the ordinance, in any event.

Not "every statute which uses the word 'shall' is obligatory rather than permissive. Although statutory language is, of course, a most important guide in determining legislative intent, there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion. [Citations.]" (Morris v. County of Marin, supra, 18 Cal.3d 901, 910, fn. 6, 136 Cal.Rptr. 251, 559 P.2d 606.) ⁵

"Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts. [Citations.] The legislative intent can usually be determined from the statutory language.... It is well established that statutes must be given a reasonable construction that conforms to the apparent purpose and intention of the lawmakers [citations], and the various parts of the ... enactment must be harmonized by considering the particular clause in the context of the whole [enactment]." (Nunn v. State of California (1984) 35 Cal.3d 616, 624-625, 200 Cal.Rptr. 440, 677 P.2d 846.)

Here, the City, rather than merely relying on the Uniform Code, outlined in detail its own version of "Grading and Excavation." It noted at the outset there would be "extensive additional requirements and regulations deemed necessary to meet local conditions." Under the "Fills" section, the enactment emphasized the ideal requirements to follow could be ignored if approved by the building official, either when accompanied by a soils report so recommending or when the official found meeting the valuation unnecessary.

It is significant the ordinance mimics to a great extent the Uniform Building Code section on excavation and grading; of greater significance is what the City added. The Uniform Code chapter 70, section 7009(a), regulating "Cuts" states, "Unless otherwise recommended in the approved soils engineering ... report cuts shall conform to the provisions of this Section." The adopted City version reads: "Unless otherwise approved by the Building Official and recommended in the approved soil engineering [etc.]...." A like addition appears in the section regulating "Fills." The Uniform Code requires: "Unless otherwise recommended in the approved soil engineering...