Friends of H Street v. City of Sacramento

• Decision Date: 21 October 1993
• Docket Number: No. C013852,C013852
• Citation: 20 Cal.App.4th 152,24 Cal.Rptr.2d 607
• Court: California Court of Appeals Court of Appeals
• Parties: FRIENDS OF H STREET et al., Plaintiffs and Appellants, v. CITY OF SACRAMENTO, Defendant and Respondent. Charles O. Greenlaw et al., Intervenors and Respondents.

Page 607

24 Cal.Rptr.2d 607

20 Cal.App.4th 152

FRIENDS OF H STREET et al., Plaintiffs and Appellants, v. CITY OF SACRAMENTO, Defendant and Respondent Charles O. Greenlaw et al., Intervenors and Respondents.

No. C013852.

Court of Appeal, Third District, California.

Oct. 21, 1993.

As Modified on Denial of Rehearing Nov. 18, 1993.

Review Denied Jan. 20, 1994.

Adamo & Nevares, John B. Adamo, Sacramento, for plaintiffs and appellants.

Sharon Siedorf Cardenas, City Atty., City of Sacramento, William P. Carnazzo, Asst. City Atty., Leslie R. Lopez, Deputy City Atty., for defendant and respondent.

Charles O. Greenlaw and Charles E. Shoemaker, in pro. per.

NICHOLSON, Associate Justice.

This is the second of two appeals challenging the manner in which the City of Sacramento (the City) maintains and manages H Street. In Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 21 Cal.Rptr.2d 779, an appeal resulting from two property owners' successful petition for writ of mandate, we held the City's authority to decide whether and when to reevaluate an established speed limit implicated its legislative power and was not subject to review as a ministerial act. We reversed the order issuing the writ and remanded the matter to the trial court with directions to enter judgment denying the writ. In this appeal, we conclude plaintiffs fail to state a cause of action for nuisance and cannot amend their complaint to allege other claims against the City. We therefore affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Friends of H Street, also known as the H Street Association, is an unincorporated association comprised principally of H Street residents living between Alhambra Boulevard and 56th Street. Plaintiffs Grant L. Hutchinson, F. Eugene Scott, and Maria Nicholas Kelly own real property which fronts upon or abuts H Street.

After years of complaints by H Street residents, in 1989 the City commissioned a study of traffic conditions as part of the H Street (East Sacramento) Neighborhood Preservation Transportation Plan. A draft report was issued on March 29, 1991, followed by a final report on July 28, 1991. In November 1991, the City's Department of Public Works, Transportation Division, recommended that the City Council take no action "to alleviate any of the conditions identified in either the above-referenced draft or final reports, other than to conduct 'further study'. Defendant's City Council adopted that recommendation."

In January 1992, plaintiffs filed a complaint for nuisance seeking injunctions to force the City to reduce the traffic speed and volume on H Street. The complaint alleges in part:

"9. At all times herein mentioned, defendants, and each of them, have occupied, utilized, maintained, and operated H Street in East Sacramento, a stretch of roadway approximately 1.7 miles in length encompassing the area between Alhambra Boulevard to 56th Street, in such a manner that: (a) the street is used by excessive, freeway-level volumes of traffic; (b) the permitted, and actual speed of traffic is excessive; (c) the noise created by the excessive volume and speed of traffic is twice the maximum standard established by the City for residential neighborhoods. The excessive noise disrupts plaintiffs' sleep, other normal indoor activities, and most out-of-door activities; (d) the street is repeatedly and illegally used by commercial conveyances, including City-owned conveyances, exceeding 10,000 pounds; (e) the ability of plaintiffs to gain ingress to or egress from their driveways is substantially impaired and rendered hazardous; (f) plaintiffs are exposed to high concentrations of carbon monoxide and other hazardous vehicle emissions; (g) plaintiffs' comfortable enjoyment of their homes and property is substantially impaired; (h) the value of plaintiffs' property is diminished; (i) plaintiffs are exposed to injury and fatality accident rates more than twice the state average for similar streets; (j) plaintiffs are exposed to noxious and malodorous fumes and soot; (k) plaintiffs are exposed to excessive glare from headlights at night and in the early morning hours; and (l ) plaintiffs' properties are exposed to excessive litter from passing cars." Plaintiffs allege "[t]he nuisance created by the actions and inaction of defendants, ... is continuing in nature because it can be discontinued or abated."

Plaintiffs seek injunctive relief to abate the alleged nuisance, requesting "a preliminary and permanent injunction enjoining defendants, ... from: (a) continuing to designate H Street between Alhambra Boulevard and 56th Street as other than a 'minor local' or 'local' street; (b) continuing to designate H Street between Alhambra Boulevard and 56th Street as a so-called 'through street;' (c) operating the street in such a manner as to permit its use by a volume of traffic which exceeds the 'environmental capacity' (as that term is defined in the City-issued Preservation Plan study) of the street; (d) operating the street in such a manner that noise levels exceed 60 decibels as measured 75 feet from the center line of the street; (e) operating the street in such a manner that the concentrations of carbon monoxide and other vehicle emissions exceed those on a properly designated and operated local street; (f) operating the street in such a manner that the injury and fatality accident rate exceeds the state average for similar streets; (g) operating the street in such a manner that abutting residents' ability to enter and exit their driveways is substantially impaired and rendered hazardous; and (h) continuing to facilitate the use of the street by vehicles exceeding 10,000 pounds and by vehicles traveling in excess of 25 miles per hour."

The City demurred to plaintiffs' complaint. Shortly thereafter, on April 6, 1992, Charles O. Greenlaw and Charles E. Shoemaker, owners and residents of property situated north of H Street, filed an amended complaint in intervention. The intervenors allege the relief sought by plaintiffs would interfere with their business and personal use of the H Street arterial. Intervenors joined in the City's demurrer. Mercy General Hospital filed an amicus curiae brief in support of the City's demurrer.

The court sustained the City's demurrer without leave to amend, stating in its tentative decision: "The routing of traffic on city streets is basically a legislative function. To the extent that traffic is re-routed from H Street, it must be routed onto another street or highway. The selection among alternatives is a legislative act. Every resident on a city street would be happier if all through traffic was sent to someone else's neighborhood. The City cannot please all its residents, and the Court will not try to do so." At the hearing the court affirmed the tentative ruling "for all of the reasons that were expressed by the demurr[ing] parties." The court indicated it was "convinced that no cause of action for a nuisance will lie in this circumstance when the traffic on a highway becomes a difficult thing to bare [sic] for the residents." This appeal ensued.

DISCUSSION

I No Cause of Action Against the City for Nuisance

The acts alleged by plaintiffs do not state a cause of action against the City under the circumstances of this case. Plaintiffs' pleadings are insufficient because, as argued in the trial court, the City's acts are authorized by statute, and the nuisance claim barred. (Civ.Code, § 3482.) ¹ Moreover, as we have stated in the past, courts lack power to compel legislative bodies to perform legislative acts in a particular manner. (Board of Supervisors v. California Highway Commission (1976) 57 Cal.App.3d 952, 961, 129 Cal.Rptr. 504.)

A. Actions to Abate a Public Nuisance:

Section 3479 describes the acts which constitute a nuisance as "[a]nything 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 ... street, or highway...." ² Plaintiffs allege the City's maintenance and operation of H Street is a nuisance within the meaning of section 3479 because "it is injurious to plaintiffs' health and safety, and the health and safety of their families, it is offensive to the senses, it interferes with the comfortable enjoyment of plaintiffs' properties, it has diminished the value of plaintiffs' properties, and it substantially interferes with plaintiffs' ability to gain ingress to or egress from their properties."

A private person has no direct remedy to abate a public nuisance unless the public nuisance is a private nuisance as to that person. (11 Witkin, Summary of Cal.Law (9th ed. 1990) Equity, § 144, p. 824.) A public nuisance "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." (§ 3480.) A private nuisance is defined as every nuisance not included in the definition of a public nuisance. (§ 3481.) The essence of a private nuisance is an interference with the use and enjoyment of land. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124-125, 99 Cal.Rptr. 350, quoting Prosser on Torts (3d ed.) p. 611 and fn. 91 at p. 611.) Impairment of an owner's right of access to and from an abutting public street constitutes both a private and public nuisance. (Kitzman v. Newman (1964) 230 Cal.App.2d 715, 725-726, 41 Cal.Rptr. 182.) Plaintiffs allege the City's acts, including impairment of ingress and egress, were public and private nuisances.

B. The Section 3482 Defense:

As we stated, section 3482 bars an action for nuisance against a public entity where the alleged wrongful acts are expressly authorized by statute. The Supreme Court has "consistently applied a narrow...