Citizens for Odor Nuisance Abatement v. City of San Diego

• Decision Date: 09 February 2017
• Docket Number: D068086
• Citation: 8 Cal.App.5th 350,213 Cal.Rptr.3d 538
• Parties: CITIZENS FOR ODOR NUISANCE ABATEMENT, Plaintiff and Appellant, v. CITY OF SAN DIEGO et al. Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

8 Cal.App.5th 350

213 Cal.Rptr.3d 538

CITIZENS FOR ODOR NUISANCE ABATEMENT, Plaintiff and Appellant,

v.CITY OF SAN DIEGO et al. Defendants and Respondents.

D068086

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

Filed February 9, 2017

Blumenthal, Nordrehaug & Bhowmik, Norman B. Blumenthal, San Diego and Kyle R. Nordrehaug, for Plaintiff and Appellant.

Jan I. Goldsmith, San Diego and Mara W. Elliott, City Attorneys, and Glen T. Spitzer, Deputy City Attorney, for Defendants and Respondents.

HUFFMAN, Acting P.J.Citizens for Odor Nuisance Abatement (CONA) appeals the trial court's entry of judgment in favor of the City of San Diego and Todd Gloria, in his capacity as former interim mayor of San Diego (collectively, the City) following the court's grant of summary judgment in the City's favor on CONA's First Amended Complaint (FAC). CONA sued the City in 2013 for an alleged public nuisance caused by noxious sea lion waste odors permeating the picturesque La Jolla Cove. The trial court granted the City's motion for summary judgment, finding: (1) the City did not have a duty to prevent harms caused by wild animals; (2) there was no triable issue that the City's conduct caused the alleged nuisance; and (3) Civil Code section 3482 barred nuisance liability.¹ CONA challenges these rulings on appeal and argues the City cannot avail itself of immunity under Government Code section 831.2.²

We affirm the judgment. As the trial court found, there is no triable issue as to causation, an essential element of the public nuisance theory at the heart of all of CONA's causes of action. To the extent CONA's mandamus cause of action rests on an independent duty arising from documents issued by the former mayor, we likewise find no triable issue those documents gave rise to a legal duty for the City to act.

FACTUAL AND PROCEDURAL BACKGROUND

In recent years, local residents and business owners near La Jolla Cove have complained of foul and noxious animal waste odors, describing the area as "a place that is beautiful but stinks." Former San Diego Mayor Bob Filner issued an emergency finding in May 2013 declaring bird odors from "cormorants, gulls, pigeons and pelicans" a public health hazard requiring remediation. The City contracted with the Blue Eagle Company to apply a microbial cleaner to treat the guano (bird excrement). These efforts proved largely successful in eliminating guano odors but were less successful at addressing sea lion waste odors. The sea lion population at La Jolla Cove has grown exponentially in recent years, resulting in significant waste buildup on the bluffs. This buildup has affected local residents and business owners, who complain of noxious odors affecting their businesses and property values.

In December 2013, CONA, a nonprofit citizen's group, sued the City and the State of California for "the foul, noxious and sickening odors emanating from the excrement of cormorants and sea lions deposited on the rocks adjacent to the La Jolla Cove."³ CONA alleged the City caused the odors by constructing a fence that denied human access to the rocks adjacent to the Cove, thereby encouraging sea lion and cormorant habitation.⁴ The operative FAC, filed in January 2014, alleged the City installed a gate in late 2013 to facilitate public access but that this did not solve the problem. CONA acknowledged the City had adequately treated cormorant guano odors but alleged it had not adequately addressed sea lion waste odors.

CONA brought four causes of action, all resting on a public nuisance theory. First, CONA sought an order to show cause as to why the foul odor should not be ordered abated as a public nuisance. Second, CONA sought injunctive relief to prevent irreparable harm from the nuisance. Third, CONA sought declaratory relief that the City violated California law by failing to abate the odor nuisance. Fourth, CONA sought a writ of mandate directing the City to comply with California law by remedying the odor nuisance.

In June 2014, the City moved for judgment on the pleadings, arguing it was immune under Government Code section 831.2. The court denied the motion, crediting CONA's argument the waste was not a "natural condition" of "unimproved public property" due to the City's construction of the fence. The court acknowledged further evidence might disprove CONA's causation theory but declined to grant judgment on the pleadings.

In January 2015, the City moved for summary judgment or, in the alternative, summary adjudication, arguing there was no triable issue as to: (1) whether the City owed a duty to control wild animals; (2) whether the City's conduct was a substantial factor in causing the alleged nuisance; (3) whether the City was immune under Government Code section 831.2 ; (4) whether the nuisance claim was barred by Civil Code section 3482 ; and (5) whether the seriousness of the harm outweighed the social utility of the condition. In support of its motion, the City offered an expert declaration from marine ecologist Keith Merkel, who concluded the exponential sea lion growth at La Jolla Cove was due to natural population dynamics, not the fence atop the bluffs. The City also offered declarations from longtime lifeguards and City employees indicating the area had been completely fenced since 1971, whereas sea lions began to congregate around 2008.

CONA filed its opposition in March 2015, offering into evidence declarations from local residents and business owners who claimed the odors emerged after the fence was installed. CONA also offered into evidence a press release and a memorandum by former San Diego mayor Bob Filner expressing a need to remedy guano odors at La Jolla Cove (2013 Filner Memorandum and Press Release). Finally, CONA offered a declaration from its expert, behavior consultant David Butcher, who did not recall a fence or sea lions in the area in the 1960's and claimed a fence erected sometime in the 1990's caused sea lions to be more comfortable gathering on the bluffs.

The City filed several evidentiary objections to CONA's evidence. On March 26, 2015, the court sustained the City's objections to the 2013 Filner Memorandum and Press Release, excluding those documents on grounds of relevancy and scope (Evid. Code, §§ 350, 355 ) because they related to bird guano, not sea lion waste. The court sustained most of the City's objections to the Butcher declaration, excluding Butcher's statements that: (1) the fence was built in the 1990's; (2) the fence allowed sea lions to frequent La Jolla Cove; (3) the fence allowed the sea lion population to grow unchecked; (4) the fence prevented coastal access, directly leading to uncontrolled sea lion habitation; (5) the odor would worsen as the sea lion population grew unchecked; (6) the fence caused the sea lions to make the rocks their home; and (7) a gate installed in 2013 exacerbated the problem. The court denied the City's evidentiary objections as to declarations submitted by La Jolla locals.

Both parties filed requests for judicial notice. By order dated March 27, 2015, the court granted the City's request to judicially notice sea lions and cormorants as wild animals, ruling this was common knowledge. The court also granted the City's request for judicial notice of the FAC. The court denied CONA's requests for judicial notice of Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 196 Cal.Rptr. 38, 670 P.2d 1121 and 16 U.S. Code section 1379 as superfluous.

Turning to the merits, the court concluded the City met its burden on summary judgment, while CONA failed to carry its burden. Citing Butler v. City of Palos Verdes Estates (2005) 135 Cal.App.4th 174, 37 Cal.Rptr.3d 199 (Butler ) and Moerman v. State of California (1993) 17 Cal.App.4th 452, 21 Cal.Rptr.2d 329 (Moerman ), the court ruled the City did not, as a matter of law, have a duty to control an alleged nuisance caused by wild animals. Next, while noting causation was typically a jury question, the court found no legitimate factual dispute as to whether the City's actions caused the alleged nuisance. It found the City met its initial burden on summary judgment, given Merkel's testimony that normal sea lion population dynamics, expected sea lion behavior, and favorable environmental conditions at La Jolla Cove, rather than the fence, caused the explosive sea lion population growth. (Code Civ. Proc., § 437c, subd. (p)(2).)⁵

With the burden shifted to CONA (§ 437c, subd. (p)(2) ), the court determined CONA failed to carry its burden to show a triable issue of material fact on causation. The court concluded the Butcher declaration held "no evidentiary value" because it offered the "naked opinion that the fence caused the sea lion explosion" without considering the effect of federal regulations, population trends, sea lion behavior, food sources, or geographical reasons for the population increase at La Jolla Cove. The court found Butcher merely speculated that without the fence, human presence would have prevented sea lion congregation, "a classic post hoc, ergo propter hoc logical fallacy" that mistook temporal sequence for causal connection. The court noted that although Butcher claimed to be an expert in " ‘psychology and behavior modification principles,’ " he did not claim to be an expert in sea lion behavior. The court also found CONA's causation theory was contradicted by Butcher's statement that reintroduction of public access to the bluffs once the gate was installed " ‘made the sea lions more acclimated to humans and thus more likely to keep calling the rocks their home.’ " Thus, the court found CONA failed to supply admissible evidence to show the existence of a triable issue on causation.

Next, the court addressed the City's argument CONA's nuisance action was barred under Civil Code section 3482. Noting the MMPA and MBTA protected sea lions and cormorants and prohibited their "taking,"⁶ the court concluded the conditions of sea lions and cormorants could not constitute a nuisance...