Thompson v. City of Lake Elsinore
| Decision Date | 26 August 1993 |
| Docket Number | No. E009993,E009993 |
| Citation | 22 Cal.Rptr.2d 344,18 Cal.App.4th 49 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gai THOMPSON, Plaintiff and Appellant, v. CITY OF LAKE ELSINORE, Defendant and Respondent. |
Plaintiff Gai Thompson (owner) sued the defendant City of Lake Elsinore (the City), the building department, the city council, and other individuals (all defendants referred to collectively as defendants), for damages allegedly resulting from the City's failure to issue a building permit and its failure to issue a certificate of occupancy for owner's renovated building after the final approval of the renovation. The trial court sustained defendants' demurrers without leave to amend. Owner appeals.
I. First Amended Complaint ***
II. Third Amended Complaint
The third amended complaint attempted to state causes of action for negligence and failure to perform a mandatory duty. We accept as true all the material factual allegations of the complaint.
The third amended complaint alleged in pertinent part:
The acts of all the defendants were done under color of law, ordinance, regulation and policy of the City, and under the authority of their offices as City officials or employees. Individual defendant Kevin Shear was the chief building official of the building department. He had final authority to establish, implement, and enforce municipal ordinances. Individual defendant Nelson Miller was the community development director, who also had "final authority" to "establish, implement and/or enforce" the ordinances in question. Individual defendant Ron Molendyk was the city manager, with responsibility to resolve conflicts between the building department and the public. He had "ultimate authority" to ensure "fair, equitable and equal application" of City ordinances, codes and regulations. Individual defendant Leon J. Strigotte was the mayor, "vested with ultimate authority to resolve disputes between members of the general public and various city departments, including the Building Department." He presided over owner's "appeal" of the denial of her certificate of occupancy. Owner alleged that all the defendants directed, controlled and ratified each other's acts.
Owner applied to the City for a building permit for the subject property on August 15, 1986. City denied the permit until January 16, 1987. Owner complied with all the appropriate building codes, regulations and requirements in completing her renovation. Defendants issued a "Final Inspection Okay" on April 24, 1987.
"Defendants, and each of them," refused to issue a certificate of occupancy for the premises, however. Owner could not use her building for any "practical, gainful or useful purpose" without the certificate of occupancy. Owner alleged that "Defendants, and each of them," refused to issue the certificate of occupancy "by reason that the Defendants intended to and did hold the subject premises for 'ransom' in an attempt to cause [owner] to comply with Defendants['] wishes, demands and instructions concerning" owner's other properties.
The first cause of action was alleged to be one for negligence under Civil Code section 1714 and Government Code section 815.2. Owner alleged that all defendants (by name) were negligent in failing to issue her a building permit, even though she had duly requested one and it was "owed" to her. Defendants were also negligent in failing to issue the certificate of occupancy, even though owner repeatedly requested it, she was entitled to it, and she had complied with all prerequisites for its issuance. Specifically, owner alleged that City ordinance (adopting the Uniform Building Code) required that " 'After final inspection when it is found that the building or structure complies with the provisions of this Code, the Building Official shall issue a Certificate of Occupancy.' " (Emphasis deleted.) Owner alleged that defendants thus had an affirmative duty to issue the certificate of occupancy.
The second cause of action purported to be one for failure to discharge a mandatory statutory duty under Government Code section 815.6. Owner alleged that, "Defendants, and each of them," knew that owner had fully complied with all requirements of her renovation, including the Uniform Building Code requirements, by April 24, 1987. She asserted that Defendants thereafter had a mandatory duty to issue her a certificate of occupancy for her building. Defendants' issuance of a "Final Inspection Okay" for the premises in effect admitted and confirmed that owner had complied with all requirements.
Defendants demurred on the grounds that owner failed to allege a statutory basis for governmental entity or governmental employee liability, and that defendants were immune from liability under Government Code sections 818.4 and 821.2. Moreover, the "ministerial statutory duty" the third amended complaint alleges defendants failed to discharge was apparently solely the issuance of the building permit or certificate of occupancy under the Uniform Building Code. Defendants asserted statutory immunity for their decisions in issuing or not issuing the requested permits, certificates or licenses (Gov.Code, §§ 818.4, 821.2).
In response, owner asserted the specific statutory source of duty was City ordinance (i.e., the Uniform Building Code). Owner asserted that, under the particular language of the Uniform Building Code provisions at issue, the decision whether or not to issue the certificate of occupancy was not discretionary, but mandatory.
On appeal, owner again urges that "the duty involved was mandatory and not discretionary."
1. Government Tort Liability: Based on Statute *
a.-b.d
2. Failure to Discharge a Mandatory Duty--Government Code Section 815.6
Government Code section 815.6 provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." Thus, (State of California v. Superior Court (Perry) (1984) 150 Cal.App.3d 848, 854, 197 Cal.Rptr. 914.)
Does the Uniform Building Code, as adopted by ordinance, prescribe a mandatory duty to issue a building permit or a certificate of occupancy? Defendants argue that the Uniform Building Code provisions do not prescribe any mandatory duty; rather, the issuance of building permits and like certificates is precisely the sort of discretionary decision for which immunity is expressly provided by Government Code sections 818.4 and 821.2.
Leaving aside for the moment the question of the certificate of occupancy, it appears that defendants are correct with respect to issuance of the building permit.
Burns v. City Council (1973) 31 Cal.App.3d 999, 107 Cal.Rptr. 787, is the leading case. There, the plaintiff had a commitment for financing and the right to purchase certain lots zoned for single-family dwellings. The plaintiff had plans for a development on 30 of the lots. The plaintiff alleged that the plans complied with all existing codes, ordinances, rules and regulations of the city for such a development but the city denied the building permit. The plaintiff sued for damages. The city's demurrer was sustained and the plaintiff appealed. The plaintiff urged that the act of issuing the building permit was ministerial, not discretionary, because the plaintiff's proposed development complied with all applicable requirements. The appellate court rejected the plaintiff's contention. Government Code sections 818.4 and 821.2 specifically provided immunity for issuing or refusing to issue a permit, license or other authorization. The public employee or entity was "authorized to determine" whether or not to issue the permit; there was no mandatory duty to do so. Thus, even if the entity or building inspector was negligent or erred in failing to issue the building permit, the immunity applied.
Other courts have followed Burns in holding that the decision whether or not to issue a building permit is the sort of discretionary decision covered by Government Code sections 818.4 and 821.2. (See Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 565, 136 Cal.Rptr. 748; Friedman v. City of Los Angeles (1975) 52 Cal.App.3d 317, 322, 125 Cal.Rptr. 93; see also Cancun Homeowner's Assn., Inc. v. City of San Juan Capistrano (1989) 215 Cal.App.3d 1352, 264 Cal.Rptr. 288 [].)
Owner does not seriously dispute that the decision not to issue (delay...
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