San Diego Unified Port Dist. v. Superior Court

• Citation: 136 Cal.Rptr. 557,67 Cal.App.3d 361
• Parties: , 7 Envtl. L. Rep. 20,668 The SAN DIEGO UNIFIED PORT DISTRICT et al., Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN DIEGO, Respondent; Roger A. BRITT et al., and Everett Sinclair Banks et al., Real Parties in Interest. Civ. 16142.
• Decision Date: 18 February 1977
• Court: California Court of Appeals

Page 557

136 Cal.Rptr. 557

67 Cal.App.3d 361, 7 Envtl. L. Rep. 20,668

The SAN DIEGO UNIFIED PORT DISTRICT et al., Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SAN DIEGO, Respondent;

Roger A. BRITT et al.,

and

Everett Sinclair Banks et al., Real Parties in Interest.

Civ. 16142.

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

Feb. 18, 1977.

Hearing Denied April 28, 1977.

Luce, Forward, Hamilton & Scripps, by Louis E. Goebel, Michael S. Gatzke, Ronald W. Rouse and Walter J. Cummings, III, San Diego, for petitioners

No appearance for respondent.

Fadem, Berger, McIntire & Norton, by Michael M. Berger and Patsy Humiston Carter, Santa Monica, for real parties in interest.

AULT, Associate Justice.

INTRODUCTION

A group of homeowner-plaintiffs (Britt) ¹ is seeking damages on various theories from the San Diego Unified Port District (Port District), the operator of San Diego International Airport (Lindbergh Field). Before this Court, the parties are engaged in two theaters of litigation. This proceeding (4 Civ. No. 16142) is a challenge to an order overruling a general demurrer to causes of action in nuisance, negligence, trespass and failure to obtain a state operating permit. The other proceeding (4 Civ. No. 16053), retransferred to this Court by the Supreme Court for hearing, challenges on First Amendment grounds the denial of an order protecting Britt from discovery. Except for the possibility the sustaining of demurrers to the tort causes of action might render moot the discovery question, the two proceedings are unrelated.

THE ACTION

Plaintiffs allege in Count 1 the operation of Lindbergh Field by the Port District has so interfered with their ownership rights as to constitute a taking of their property for public use within the meaning of the Federal and State Constitutions. They claim such interference, usually referred to as inverse condemnation, entitles them to just compensation. The Port District does not contest the overruling of its demurrer to this count, accepting for the purposes of these proceedings that if a taking has occurred the Port District is the responsible entity. ²

In addition, plaintiffs seek recovery for both property damage and personal injury on theories of nuisance (Counts 3 and 4), negligence (Counts 5 and 6), trespass (Counts 7 and 8), and failure of the Port District to obtain a proper state operating permit (Counts 9 and 10). The respondent court overruled a general demurrer to these Counts (3 through 10) and it is that action which is contested in this petition by the Port District. Other remaining Counts (13 and 14), for breach of contractual obligations to a third party beneficiary under contracts between the Port District and the FAA, are not at issue.

ISSUE

The issue presented is whether federal law in the field of aircraft noise regulation preempts all state and local controls and therefore precludes civil actions against airport operators based upon common law or statutory causes of action.

DISCUSSION

A. Propriety of reviewing the question on petition for prerogative writ.

Only with 'extreme reluctance' are prerogative writs employed to afford intermediate review of rulings on pleadings (Babb v. Superior Court, 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 185, 479 P.2d 379, 385).

"In most . . . cases, as is true of most other interim orders, the parties must be relegated to a review of the order on appeal from the final judgment." (Id., quoting Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 185, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

Nevertheless, in circumstances of a 'grave nature' or of 'significant legal impact,' appellate courts may be compelled to intervene through the issuance of an extraordinary writ (Babb v. Superior Court, supra, 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379).

The issue presented is a significant question of law. If the respondent court erroneously permitted tort causes of action to be pursued, substantial discovery and trial expenses are needlessly imposed on the Port District (directly) and the public (indirectly). The difference between the action as it stands, requiring discovery of the medical histories of hundreds of individual plaintiffs, and the action as the Port District contends it Should stand, requiring 'merely' appraisal of about 200 parcels of property, is spacious. In the memorandum of points and authorities in opposition to the petition, Britt argues only that the respondent court correctly decided the issue on its merits and nowhere suggests review should be deferred until appeal from judgment. ³ For these reasons our intervention by issuance of an order to show cause was justified.

B. Merits.

1. Contentions.

The Port District summarizes its argument as follows:

'1. Federal legislation and authorized agency regulation in the field of aircraft and airport noise is so pervasive that it has preempted all state and local controls. City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624, 638, 93 S.Ct. 1854 (36 L.Ed.2d 547). . . . The multitude of interrelated considerations in this field permits only a uniform and exclusive system of Federal regulation. Id., 411 U.S. at 639 (36 L.Ed.2d 547).

'2. This preemption precludes not only local regulation by legislative action, but regulation by local judicial action as well. E.g., Luedtke v. County of Milwaukee, 371 F.Supp. 1040, 1044 (E.D.Wis.1974), Aff'd, 521 F.2d 387, 390--391.

'3. The tort counts (Counts 3--10) of plaintiffs' complaint require adjudication of the 'reasonableness' of conduct in the operation of Lindbergh Field. These counts require the respondent Court to adjudicate questions of whether or not noise impact on plaintiffs resulting from jet aircraft operations at Lindbergh Field, if any, could be reduced by changes in specific operational procedures.

'4. The awarding of money damages is every bit as much a regulation of conduct by a court as the exercise of its equitable jurisdiction to regulate by injunction. E.g., San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 246--247, 79 S.Ct. 773 (3 L.Ed.2d 775). . . . Indeed, plaintiffs' request for money damages under the tort counts is merely a back door approach to placing airport operational procedures under judicial control and direction.

'5. The inverse condemnation count is not directly affected by this federal preemption because:

'a. If there is judicial determination that the level of interference with plaintiffs' properties is sufficiently great to constitute a 'taking' under the Fifth and Fourteenth Amendments, (United States v. Causby (1945) 325 U.S. 256, 66 S.Ct. 1062 (90 L.Ed. 1206) . . .) they are entitled to 'just compensation' because Congressional or agency action may not operate to deprive citizens of Constitutional rights; and,

'b. Inverse condemnation as a legal theory of recovery does not require adjudication of the conduct of airport operational procedures. Essentially, it only requires findings of a substantial interference with private property for public purposes and a diminution in the market value of the property.'

Britt responds in essence the duty of an airport proprietor, as land occupier, to operate airport facilities nontortiously is unaffected by cases recognizing federal preemption in the field of noise regulation. Distinction is drawn between the exercise of Police power by a municipality to control airport noise and the exercise of Proprietary power by the owner-operator of an airport.

2. Discussion.

a. Federal Law.

The seminal case in the area of federal preemption of airport noise regulation is City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547. Both parties rely on this case in support of their positions and claim it disposes of the issue at bar.

In Burbank the owner-operator of the Hollywood-Burbank Airport brought suit in federal court against the City of Burbank to enjoin enforcement of a City ordinance forbidding any pure jet aircraft from taking off from the airport between 11 p.m. of one day and 7 a.m. of the next, and forbidding the airport operator from permitting any such takeoffs. The District Court enjoined enforcement of the ordinance, and the Court of Appeals for the Ninth Circuit affirmed. In a five-to-four decision, the United States Supreme Court affirmed, holding 'FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control.' (Id. p. 633, 93 S.Ct. p. 1859.)

The United States Supreme Court expressly left open what limits, if any, apply to the exercise of proprietary rights by a municipality which owns and operates an airport. In a controversial footnote the Court explained:

'The letter from the Secretary of Transportation also expressed the view that 'the proposed legislation will not affect the rights of a State or local public agency, As the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners Acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.' (Emphasis added.) This portion as well was quoted with approval in the Senate Report. Ibid.

'Appellants and the Solicitor General submit that this indicates that a municipality with jurisdiction over an airport has the power to impose a curfew on the airport, notwithstanding federal responsibility in the area. But, we are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power. While the Hollywood-Burbank Airport may be the only major airport which is privately owned, many airports are owned by one municipality yet physically located in another. For example, the principal airport serving Cincinnati is located in Kentucky. Thus,...