Citizens for Odor Nuisance Abatement v. City of San Diego
8 Cal. App. 5th 350
| Cal. Ct. App. | 2017Background
- Citizens for Odor Nuisance Abatement (CONA) sued the City of San Diego alleging public nuisance from noxious sea lion (and cormorant) waste odors at La Jolla Cove, claiming a City fence prevented human access and caused animal congregation and odor buildup.
- The City had previously treated bird guano successfully (via a 2013 emergency finding and contract) but sea lion odors persisted as the sea lion population grew markedly since circa 2007–2008.
- The City moved for summary judgment arguing no duty to control wild animals, lack of causation (the fence was not a substantial factor), statutory bars (Civ. Code § 3482), and governmental immunity (Gov. Code § 831.2).
- The trial court excluded much of CONA’s expert evidence, credited the City’s marine ecologist (attributing population growth to natural dynamics and habitat/food factors, not the fence), and found no triable issue as to causation; it also found the Filner documents about bird guano irrelevant to sea lion odors.
- The court granted summary judgment for the City on all causes of action (public nuisance, injunctive, declaratory, and writ of mandate), and CONA appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City owed a duty to control wild animals such that inaction could support a nuisance claim | City’s fence and inaction caused sea lions to congregate; City had a duty to abate resulting nuisance | No general duty to control wild animals; public entities not liable merely because animals act naturally | Court: No triable duty-based theory here; duty matters only if inaction is alleged and proven to be a substantial cause; no triable issue of duty/causation |
| Whether the City’s conduct (fence/gate) was a substantial factor causing the odor nuisance (causation) | Temporal correlation: odors and sea lions appeared after the fence; lay witnesses and CONA expert opined fence caused congregation | City evidence showed fence existed for decades; expert Merkel tied population growth to natural population dynamics, habitat, and food — not the fence | Court: City met its burden; CONA failed to raise admissible evidence creating a triable issue on causation — summary judgment affirmed |
| Whether Civil Code § 3482 (statutory authority defense) barred nuisance liability because animals are protected under federal statutes | CONA: MMPA exemption and Filner actions show City could and should act to abate health hazards; statute does not preclude nuisance claims here | City: protection/maintenance under MMPA/MBTA bars nuisance via § 3482 (statutory authority defense) | Court: Did not reach § 3482 as basis for affirmance (decided on causation and evidentiary grounds) |
| Whether mandamus could compel the City to abate sea lion odors based on Filner’s 2013 memorandum/press release | Filner documents created an enforceable duty or showed City assumed an obligation to abate animal-waste odors (including sea lions) | Filner documents addressed bird guano only; mandamus cannot control discretionary remedial choices; City already took actions and continues to seek alternatives | Court: Filner documents were properly excluded as irrelevant to sea lion odors; mandamus claim fails — no triable issue of a legal duty to compel specific remedial action |
Key Cases Cited
- Butler v. City of Palos Verdes Estates, 135 Cal.App.4th 174 (Cal. Ct. App. 2005) (addressing claims against a city for nuisance from wild animals and scope of liability)
- Moerman v. State of California, 17 Cal.App.4th 452 (Cal. Ct. App. 1993) (discussing state liability for wild animals and limits of trespass theory)
- Michigan v. United States Army Corps of Eng'rs, 667 F.3d 765 (7th Cir. 2011) (federal common-law nuisance claim against agencies; agencies’ operation can be a substantial factor even if animals move themselves)
- Michigan v. United States Army Corps of Eng'rs, 758 F.3d 892 (7th Cir. 2014) (reaffirming that maintaining manmade conditions enabling nuisance can create liability)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (summary judgment standards and burdens of proof)
- In re Firearm Cases, 126 Cal.App.4th 959 (Cal. Ct. App. 2005) (causation and necessity of a causative link in public nuisance claims)
- Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540 (Cal. Ct. App. 2009) (public nuisance causation requires defendant’s conduct to be a substantial factor)