City of Norwalk v. City of Cerritos

317 Cal.Rptr.3d 880

CITY OF NORWALK, Plaintiff and Appellant,

v.CITY OF CERRITOS, Defendant and Respondent.

B327413

Court of Appeal, Second District, Division 2.

Filed February 1, 2024

As Modified on Denial of Rehearing February 22, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael P. Linfield, Judge. Affirmed. (Los Angeles County Super. Ct. No. 22STCV33737)

Alvarez-Glasman & Colvin, Stephen T. Owens, Eric G. Salbert, Irvine, and Bruce T. Murray for Plaintiff and Appellant.

Rutan & Tucker, William H. Ihrke and Robert O. Owen, Irvine, for Defendant and Respondent.

HOFFSTADT, J.

This is a tale of two cities. Way back in 1974, the City of Cerritos (Cerritos) enacted an ordinance limiting commercial and heavy truck traffic through the city to certain major arteries. After two amendments to that ordinance in 2019 and 2020 removed one of those arteries, the neighboring City of Norwalk (Norwalk) sued, claiming that the ordinance’s restrictions constitute a public nuisance by shunting extra truck traffic through Norwalk, and thereby causing the "adverse effects" that accompany heavier traffic flow. Because a city is immune from public nuisance liability for any acts "done or maintained under the express authority of a statute" (Civ. Code, § 3482),¹ and because two sections of the Vehicle Code—namely, sections 35701 and 21101—explicitly authorize cities to regulate the use of their streets by commercial or heavy vehicles, this appeal presents the question: Is Cerritos immune from liability for the public nuisance of diverting traffic into Norwalk? Yes, because the immunity conferred by Civil Code section 3482 applies not only to the specific act expressly authorized by statute (namely, enacting an ordinance designating routes for commercial vehicles and those exceeding weight limits), but also to the inexorable and inescapable consequences that necessarily flow from that act (namely, that drivers unable to use those routes will take different routes, thereby causing adverse effects of heavier traffic on those other routes). Where, as here, the authorized act and its consequence are flip sides of the same coin, immunity applies to both, and a public nuisance claim fails as a matter of law. We accordingly affirm the judgment after demurrer for Cerritos.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The City of Cerritos

Cerritos is a part of the Los Angeles megalopolis, Cerritos is roughly U-shaped. All around the U are the cities of Bellflow- er, Lakewood, La Palma, Buena Park, La Mirada, and Santa Fe Springs. Nestled in the middle of the U are the cities of Artesia and Norwalk. State Route 91 (Route 91) runs west and east through most of Cerritos, then veers to the southeast. Interstate 605 (I-605) runs north and south, bisecting the left side of the U. Cerritos has six major west-east arteries and 10 major north-south arteries.

B. Cerritos’s 1974 ordinance

In 1974, Cerritos added section 10.18.010 to its municipal code (the ordinance). The ordinance generally prohibits "any commercial vehicle or any vehicle exceeding six thousand pounds" that is traveling through Cerritos (as opposed to "making pickups or deliveries" within the city)² from driving on "any street, road, or public right-of-way within the city" except "streets … designated as truck routes." (Cerritos Mun. Code, § 10.18.010, subds. (A) & (D), italics added.)

The ordinance then designates the city’s truck routes. As noted above, Cerritos has 16 major arteries, which are the streets most likely to be used by vehicles traveling through the city:

Of the city’s six major west-east arteries:

• Two arteries—namely, Alondra Boulevard and Del Amo Boulevard—are boundary streets that mark the border between Cerritos and neighboring cities;

• One artery—namely, 166th Street—is not a designated truck route along any of its length within the city;

• Two arteries are designated truck routes for some portion of their length within the city—Artesia Boulevard is a designated track route from the western edge of the city to Route 91; and 183rd Street is a designated track route from Route 91 to the nearest north-south artery that is a designated track route; and

• One artery—namely, South Street—is a designated track route along its entire length through the city.

Of the city’s 10 major north-south arteries:

• Tw’o arteries—namely, Palo Verde Avenue and Valley View Avenue—are boundary streets that mark the border between Cerritos and neighboring cities;

• One artery—namely, Gridley Road—is a street that is a boundary street for only a portion of its length, but is not a designated track route;

• Two arteries—namely, Shoemaker Avenue and Marquardt Avenue—are not designed truck routes for any of their length within the city;

• Four arteries are designated track routes for some portion of their length within the city—Studebaker Road is a designated track route from the northern boundary of the city to South Street, which connects with the 1-605; Norwalk Boulevard is a designated track route from Route 91 to the nearest west-east artery that is a designated truck route; Bloomfield Avenue is a designated track route from the northern boundary of the city to Artesia Boulevard, which is a west-east artery and designated track route connecting with Route 91; and Carmenita Road is a designated track route from 183rd Street to South Street, which is a west-east artery and designated track route; and

• One artery—namely, Pioneer Boulevard—is a designated track route along its entire length through the city.

C. Cerritos’s 2019 and 2020 amendments

In December 2019 and February 2020, Cerritos enacted two amendments to the ordinance, the net effect of which was to eliminate Bloomfield Avenue as a designated truck route.

II. Procedural Background

A. Norwalk sues

On October 18, 2022, nearly 48 years after Cerritos adopted its ordinance and nearly three years after its most recent amendments, Norwalk sued Cerritos for a single claim of public nuisance. Specifically, Norwalk alleged that the net effect of Cerritos’s ordinance was to "divert commercial and freight traffic away from Cerritos, while channeling it through Norwalk, resulting in a very substantial increase in heavy truck traffic through the streets of Norwalk, including residential streets, with severe adverse effects on Norwalk residents, businesses and property."

B. Cerritos’s demurrer is sustained

On November 21, 2022, Cerritos filed a demurrer arguing, as pertinent here, that because it adopted the ordinance "under the express authority of a statute"—namely, Vehicle Code section 35701—Cerritos is statutorily immune pursuant to Civil Code section 3482. After further briefing and a hearing, the trial court issued an order sustaining the demurrer without leave to amend. The court reasoned that Cerritos enacted the ordinance under the authority granted to it by Vehicle Code sections 35701 and 21101, and that this statutory authorization immunized Cerritos from liability by virtue of Civil Code section 3482.

C. Appeal

Norwalk filed a premature notice of appeal after entry of the minute order, but that notice became effective once the trial court entered a judgment in May 2023. (Heshejin v. Rostami (2020) 54 Cal. App.5th 984, 991-992, 268 Cal.Rptr.3d 836; Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 413, fn. 7, 37 Cal.Rptr.3d 528; Cal. Rules of Court, rule 8.104(d).)

DISCUSSION

Norwalk argues that the trial court erred in sustaining Cerritos’s demurer without leave to amend.

[1-5] In assessing whether the trial court erred in this ruling, we ask two questions: "() Was the demurrer properly sustained; and () Was leave to amend property denied?" (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1134, 258 Cal.Rptr,3d 270.) In answering the first question, "we ask whether the operative complaint ‘"states facts sufficient to constitute a cause of action." ’ " (California Dept., of Tax & Fee Administration, v. Superior Court (2020) 48 Cal. App.5th 922, 929, 262 Cal.Rptr.3d 397; Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100, 171 Cal.Rptr.3d 189, 324 P.3d 50; Code Civ. Proc., § 430.10, subd. (e).) In undertaking that inquiry, "we accept as true all ‘ " ‘ "material facts properly pleaded" "" " in the operative complaint (Tax & Fee Administration, at p. 929, 262 Cal. Rptr.3d 397) as well as facts subject to judicial notice, giving " ‘ "precedence" ’ " to the judicially noticed facts if they " ‘ "contradict the allegations" ’ " (Gray v. Dignity Health (2021) 70 Cal.App.5th 225, 236, fn. 10, 285 Cal.Rptr.3d 343; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App.4th 743, 751-752, 154 Cal.Rptr.3d 394; Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767, 153 Cal.Rptr.3d 1). In answering the second question, we ask " ‘ "whether ‘ " ‘there is a reasonable possibility that the defect [in the operative complaint] can be cured by amend- ment.’ " "" " (Shaeffer, at p. 1134, 258 Cal. Rptr.3d 270.) We review the trial court’s ruling regarding the first question de novo (Engel v. Pech (2023) 95 Cal.App.5th 1227, 1235, 314 Cal.Rptr.3d 176), and review its ruling regarding the second for an abuse of discretion (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777, 174 Cal.Rptr.3d 626, 329 P.3d 180; Branick v. Downey Savings & Loan Assn, (2006) 39 Cal.4th 235, 242, 46 Cal.Rptr.3d 66,138 P.3d 214).

I. Was Norwalk’s Public Nuisance Claim Properly Dismissed?

[6-8] A "nuisance" is defined as "[a]nything which is injurious to health … or is indecent or offensive to the senses, … so as to interfere with the comfortable enjoyment of life or property." (§ 3479.) A nuisance is a "public nuisance" if it "affects at the same time an entire community or neighborhood." (§ 3480; Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160, 24 Cal.Rptr.2d 607 (Friends of H Street).) Because " ‘ "each individual in a community must put up with a certain...