Perez v. City of San Bruno

• Decision Date: 14 August 1980
• Docket Number: S.F. 24101
• Court: California Supreme Court
• Parties: , 616 P.2d 1287 Helen G. PEREZ, Plaintiff and Appellant, v. CITY OF SAN BRUNO, Defendant and Respondent.

Page 114

168 Cal.Rptr. 114

27 Cal.3d 875, 616 P.2d 1287

Helen G. PEREZ, Plaintiff and Appellant, v. CITY OF SAN BRUNO, Defendant and Respondent.

S.F. 24101.

Supreme Court of California, In Bank.

Aug. 14, 1980.

Rehearing Denied Sept. 11, 1980.

Helen G. Perez, in pro. per.

John G. Schwartz and Nagle, Vale, McDowall & Cotter, San Mateo, for defendant and respondent.

Elwyn L. Johnson, City Atty., and George H. Eiser III, Deputy City Atty., Modesto, as amici curiae on behalf of defendant and respondent.

MANUEL, Justice.

Plaintiff Helen G. Perez appeals from a judgment of dismissal entered following the granting of a motion for summary judgment in an action seeking damages for invasion of her constitutional rights through discontinuance of water service.

We here confront the question whether a municipality providing water, sewer, and garbage disposal services to its citizens and billing therefor by means of a single unified statement may constitutionally resort to the remedy of cessation of water service when a citizen, refusing to pay that component of the unified billing relating to garbage collection and disposal services but paying the other components thereof, fails to make full and complete payment for municipal services rendered.

The City of San Bruno, acting pursuant to its police power (Cal.Const., art. XI, § 7), has provided in section 14-1 of its city code that "(t)he furnishing of water and sewer service and the collection and disposal of garbage and rubbish, as provided for in this Code, shall constitute municipal services, and shall be charged for as such. (P) Every person, on making application for municipal services, shall make a service deposit . . . ."

Acting pursuant to explicit provisions of state law (Health & Saf. Code, § 4250) the city has chosen to provide the garbage collection and disposal aspect of its "municipal services" by contracting with a private company. Section 14-7 of the city code provides in this respect: "Any person or firm to whom the city council shall grant a contract for the collection, hauling, gathering and disposing of garbage and rubbish in the city shall be designated the 'official scavenger and garbage collector' of the city. Every person owning, occupying or in charge of any premises in the city shall, notwithstanding any other provisions of this chapter, engage such official scavenger and garbage collector for the collection and disposal of all garbage and rubbish accumulating, remaining or existing upon any such premises and shall for such purpose furnish at his own cost and expense a suitable receptacle or garbage can for the keeping and storing of such garbage and rubbish. The city council may from time to time make such arrangements as may seem proper with the official scavenger and garbage collector for the collection by the city or its agents of monthly garbage bills; . . ." (Italics added.)

Under currently applicable contractual provisions the contractor, the San Bruno Garbage Co., Inc., has agreed to "furnish all labor, material, and equipment required for the collection and removal of garbage (etc.) from all dwellings, business properties, and all other buildings and/or structures within the City," to furnish its own dump site, and to render the indicated services in accordance with a stated schedule of fees, said schedule being subject to renegotiation between the parties at three-year intervals. Under the terms of the contract the contractor "delegates to (the city) the billing and collecting of garbage and refuse collection charges and agrees to pay to (the city) eighteen (18) percent of all sums collected for said services. It is agreed that Contractor will not hold City responsible for non-collection or for errors in billings, if any, whether through the fault of said City, or its employees, or not."

As further discussed below, the city, pursuant to section 14-1 of its city code (quoted ante) includes a charge for garbage collection and disposal on its unified monthly billing covering all "municipal services"-i.e., water, sewer, and garbage. The same section goes on to provide as follows: "No person shall fail or refuse to pay the municipal service charges provided for in this Code. (P) If any person shall fail or refuse to pay the lawful charges, including both delinquent and current charges, for any municipal services, the water service to the premises, regardless of tenancy, shall be shut off."

In summary the city's system, as we understand it, contemplates that one wishing to avail himself of the city's municipal services, after making application and deposit therefor, becomes entitled to receive all of such services; that the garbage collection and disposal aspect of the municipal services is to be performed by a private company under a contract binding it to remove garbage from all dwellings and other buildings in the city; that each such subscriber to municipal services is required to "engage" the company for this purpose; that the city includes, as a part of its unified billing for municipal services, a fee set by contract for garbage collection and disposal; and that such fees, when collected, are divided between the city and the private company on an 18/82 basis-the city having no liability to the company for uncollected fees.

Plaintiff, who alleges that she disposes of all garbage produced on her premises by means of sanitary recycling techniques, has since 1973 refused to pay that portion of the unified billing for municipal services which relates to garbage collection and disposal. She has made her position in this matter known to city authorities but has been informed that city regulations require us of and payment for garbage collection services by all city residents. Four legal actions have resulted, including that here before us. Two of these were small claims actions by the city, resulting in judgments for delinquent charges; one of these judgments was affirmed on appeal to the superior court. The third, filed by plaintiff late in 1974, sought damages against the city for mental and emotional distress suffered by her as a result of the city's actions; it was here alleged that the city through its agents had threatened to shut off water service to her premises in order to enforce payment, and that such action, although authorized in the city code, would be unconstitutional; no injunction was sought, however. This action was dismissed after the trial court sustained the city's demurrer without leave to amend.

It appears that in January 1976, the city, having failed to obtain payment from plaintiff relating to the garbage collection and disposal component of her bill for municipal services, shut off her water service; for reasons which do not here appear, service was restored approximately one month later and has continued to the present. ¹ In the instant action, filed after denial of a claim against the city, plaintiff seeks damages resulting from the one-month discontinuation of water service, which she claims was in violation of her constitutional rights. The city moved for summary judgment on the grounds "that there is no triable issue of material fact on these issues, and that the action ... is barred by res judicata, collateral estoppel, and the valid and lawful exercise of police power as a matter of law." The motion was granted, and plaintiff appeals from the ensuing judgment.

I

We do not believe that the instant action is barred by the doctrine of res judicata-which, generally speaking, "precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction." (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810, 122 P.2d 892, 894.) Plaintiff's 1974 action for damages, insofar as it sought monetary relief against a threatened cessation of water service, was clearly premature, no such cessation having then occurred. Although the record before us does not contain the city's demurrer to that action, we must assume that a primary, if not the only, ground of dismissal was that of prematurity. As indicated above, no injunction was sought. In these circumstances we cannot conclude that the judgment of dismissal in the 1974 action was one based on the merits. The instant action, therefore, brought following the occurrence of the event for which relief was sought, is not barred. "Where a judgment is rendered for the defendant on the ground of the non-existence of some fact essential to the plaintiff's cause of action, the plaintiff is not precluded from maintaining an action after such fact has subsequently come into existence." (Rest., Judgments, § 54; see Erlich v. Superior Court (1965) 63 Cal.2d 551, 556-557, 47 Cal.Rptr. 473, 407 P.2d 649; Mercer Casualty Co. v. Lewis (1940) 41 Cal.App.2d 918, 923-924, 108 P.2d 65; see also Rest. 2d, Judgments (Tent. Draft No. 1) § 48.1, subd. (2); 4 Witkin, Cal. Procedure (2d ed.1971) p. 3317.)

We do believe, however, that certain issues sought to be raised in the instant proceeding-namely those relating to the defendant city's power to require all residents to subscribe to and make payments assessed by its garbage disposal service whether or not they make actual use of that service-must be deemed presently foreclosed to plaintiff. Pursuant to that aspect of the doctrine of res judicata known as collateral estoppel or issue preclusion "(a)ny issue necessarily decided (by the final determination of a cause of action by a court of competent jurisdiction) is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. (Citations.) The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. (Citations.)" (Bernhard v. Bank of America, supra, 19 Cal.2d 807, 810-811, 122 P.2d 892, 894.) As indicated above, two small claims...