Carsten v. City of Del Mar, D015809

• Decision Date: 25 August 1992
• Docket Number: No. D015809,D015809
• Citation: 8 Cal.App.4th 1642,11 Cal.Rptr.2d 252
• Court: California Court of Appeals Court of Appeals
• Parties: Alfred CARSTEN, Plaintiff and Respondent, v. CITY OF DEL MAR et al., Defendants and Appellants.

Page 252

11 Cal.Rptr.2d 252

8 Cal.App.4th 1642

Alfred CARSTEN, Plaintiff and Respondent, v. CITY OF DEL MAR et al., Defendants and Appellants.

No. D015809.

Court of Appeal, Fourth District, Division 1, California.

Aug. 25, 1992.

D. Dwight Worden and Crystal Crawford, Solana Beach, for defendants and appellants.

Brown & Guetz and Burton W. Guetz, San Diego, for plaintiff and respondent.

KREMER, Presiding Justice.

Defendants City of Del Mar and its council members Elliot Parks, Rod Franklin, Jan McMillan, Gay Hugo-Martinez, and Jacqueline Winterer (together Del Mar)

appeal an order granting plaintiff Alfred Carsten's request for a preliminary injunction barring Del Mar from commencing any work under its Neighborhood Traffic Control Plan (the Plan) involving the construction of "traffic medians, islands, or other barriers" on city streets. Del Mar contends the court erred in applying an incorrect legal standard to the facts before it and in granting a preliminary injunction without finding it was likely Carsten would prevail on the lawsuit's merits. Del Mar also attacks as without substantial evidentiary support the court's finding the relative hardships to the parties warranted injunctive relief. We reverse the order granting the preliminary injunction.

I FACTS

We interpret the facts in the light most favorable to Carsten as the prevailing party in the superior court. (Gleaves v. Waters (1985) 175 Cal.App.3d 413, 416-417, 220 Cal.Rptr. 621.)

In the summer of 1990, the Del Mar City Council adopted the Plan to slow traffic in the city's residential corridors by installing traffic islands and curbs.

Appearing before the city council in November 1990, Carsten's wife asked for an immediate halt to specified planned street improvements, adequate notification to property owners in the area affected by the proposed improvements, and scheduling of a public workshop on the plans before any further work on the improvements. The council did not act on Carsten's wife's request.

In June 1991 Carsten's wife filed with the Del Mar City Clerk a traffic and pedestrian safety initiative petition signed by enough registered voters for placement on the April 1992 election ballot. The initiative proposed freezing action on the city council's plans to narrow intersections and streets and install structures including raised islands. The city council rejected the petition, declared the initiative illegal and declined to place it on the ballot. ¹ The city council also declined to delay action on its Plan.

In July 1991 the city council awarded a construction contract for the proposed road work.

On August 15, 1991, the contractor hired to build the improvements under the Plan notified residents in the affected area work would begin within a few days.

On August 19, 1991, work on the project commenced with marking and saw cutting.

II CARSTEN'S COMPLAINT

On August 21, 1991, Carsten sued Del Mar for allegedly violating Vehicle Code section 21 and Civil Code sections 54 and 54.1. ² Carsten's unverified complaint sought damages and injunctive and declaratory relief.

Specifically, Carsten's complaint alleged: Del Mar's Plan's "traffic barriers" did not regulate the normal flow and speed of traffic but instead constituted a major inconvenience and safety hazard to most motorists. The proposed traffic islands lacked handicapped access, narrowed city streets causing safety and traffic hazards, detrimentally affected the response of emergency vehicles,

                and impeded passage by school busses.  The proposed traffic islands and barriers were not approved traffic control devices under section 440 and thus Del Mar lacked authority to enforce the Plan. 3  The proposed traffic control devices would prevent full and free use by handicapped persons.  Del Mar's commencing construction work under the Plan [8 Cal.App.4th 1648] would irreparably injure Carsten by depriving him of his civil and constitutional rights to vote on a traffic control plan and to use the city's streets.  Del Mar's expenditure of funds to build the traffic islands and barriers constituted waste and injury to Carsten's rights as a taxpaying Del Mar resident
                

III PRELIMINARY INJUNCTION

On August 21, 1991, Carsten filed a request for preliminary injunction prohibiting Del Mar from implementing the Plan or commencing any construction work on the project.

In support of his request for preliminary injunction, Carsten submitted the declaration of traffic engineer Bouman asserting Del Mar's plan called for 11-foot lanes, violating state and national standards. According to Bouman, placement of islands in roadways would create hazardous conditions. Bouman further asserted the proposed roadway obstacles would render it dangerous or impossible for school busses, emergency vehicles, moving vans and other commercial vehicles to negotiate unimpeded turns. Carsten also submitted his and his wife's declarations describing their proposed initiative and their opposition to Del Mar's Plan.

Opposing Carsten's request for preliminary injunction, Del Mar submitted its counsel's and paralegal's declarations attaching photographs of Del Mar streets and construction in progress. According to the paralegal's measurements, the lanes in several existing Del Mar streets were less than 11 feet wide. Del Mar also submitted its city manager's declaration asserting the proposed street improvements constituted a redesigning of certain streets to slow traffic as a result of a proposal by citizens concerned about dangerous high-speed traffic on some of the city's residential roads; the city council authorized the proposed improvements after a lengthy public process; after approving and signing the contract for the proposed work under the Plan, the city council decided not to put Carsten's initiative on the ballot; Del Mar received input from qualified traffic and design consultants; the project did not expose Del Mar to an unreasonable risk of liability; the streets affected by the proposed project would be open to all users equally, including residents, nonresidents, disabled, and nondisabled; Del Mar did not adopt any ordinance or other enactment "regulating" traffic or the use of affected streets in a manner conflicting with state law; the proposal constituted a public works project involving Del Mar's awarding a contract to construct design improvements to affected roadways; an injunction could seriously harm Del Mar financially by exposing the city to damages to the contractor for delay or contract termination; an injunction might result in the loss of $169,000 in federal urban aid to Del Mar; and an injunction would disrupt Del Mar's normal ongoing street programs.

On August 23, 1991, after hearing argument by counsel, the superior court granted Carsten's request for preliminary injunction. The court restrained Del Mar from "commencing or causing to be commenced, any and all work or construction on the traffic medians, islands, or other barriers on the streets of Del Mar which are the subject of the City of Del Mar Neighborhood

                Traffic Control Plan."   Del Mar appeals
                

IV DISCUSSION

A STANDARD OF REVIEW

"The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court. [Citations.]" (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121.) "A trial court will be found to have abused its discretion only when it has ' "exceeded the bounds of reason or contravened the uncontradicted evidence." ' [Citations]." (Ibid.)

An appeal from the granting of a preliminary injunction ordinarily "involves a very limited review of the trial court's exercise of discretion concerning two factors: (1) the likelihood that plaintiffs will ultimately prevail and (2) the interim harm plaintiffs will sustain if the preliminary injunction is denied compared to the interim harm defendant will suffer if the injunction is granted pending a final determination of the merits. [Citations.]" (Hunter v. City of Whittier (1989) 209 Cal.App.3d 588, 595, 257 Cal.Rptr. 559.) We must reverse the superior court's order granting the preliminary injunction if we determine either of those two interrelated factors does not support that order. (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 837-838, 263 Cal.Rptr. 46.)

The likelihood of the plaintiff ultimately prevailing on the merits of the lawsuit occasionally "depends upon a question of pure law rather than upon evidence to be introduced at a subsequent full trial.... If such a question of pure law is presented, it can sometimes be determinative over the other factor, for example, when the defendant shows that the plaintiff's interpretation is wrong as a matter of law and thus the plaintiff has no possibility of success on the merits. [Citations.] Even where the question of law is not entirely determinative, it may be appropriate for the appellate court to express its opinion in order to clarify or narrow the issues for trial. [Citation.]" (Hunter v. City of Whittier, supra, 209 Cal.App.3d at pp. 595-596, 257 Cal.Rptr. 559; see also Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1039-1040, 264 Cal.Rptr. 194; American Academy of Pediatrics v. Van de Kamp, supra, 214 Cal.App.3d at p. 838, 263 Cal.Rptr. 46.)

B THE LAW

In Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 183 Cal.Rptr. 73, 645 P.2d 124, the Supreme Court affirmed a judgment mandating Berkeley to remove traffic barriers from over 40 streets. ⁴ The court concluded Berkeley lacked authority to divert traffic by erecting such barriers. Noting vehicular traffic regulation was preempted by the state, the court held Berkeley's barriers could not be justified under its authority to close streets (§ 21101) or its authority to regulate traffic (§ 21100). (Id. at p. 548, 183 Cal.Rptr. 73, 645 P.2d 124.) ⁵ The court stated Berkeley's barriers were not authorized as a means of controlling...