Haggis v. City of Los AngelesHaggis v. City of Los Angeles
Lead Opinion
Opinion
Pаul Haggis sued the City of Los Angeles (the City) on four causes of action for breach of mandatory duties (
Factual and Procedural Background
On appeal from dismissal following a sustained demurrer, we take as true all well-pleaded factual allegations of the complaint. (White v. Davis (1975)
Plaintiff has owned the subject property, located on a coastal bluff in Pacific Palisades, since September 1991. He lived on the property from that time until early 1994, when the City demolished his house and other improvements because of severe landslides following the Northridge earthquake.
In 1959, a City-sponsored study of landslides in Pacific Palisades showed the coastal bluff was vulnerable to further slides. In 1966, a large slide destabilized the subject property. In November 1966, pursuant to Los Angeles Municipal Code (Municipal Code) section 91.0308(d), the
In March 1970, the City determined a hazardous slide condition existed on the property and issued the owner a notice to abate, but again failed to record a certificate of substandard condition as required by Municipal Code section 91.0308(d), although the City knew the owner had not yet complied with the 1966 notice.
In October 1970, the property’s owner applied to the City for permits to demolish portions of the existing residence on the property and rebuild it farther from the landslide-damaged bluff. In October and November 1970, the City approved the project and issued the requested permits, without requiring a recоrded affidavit from the owner stating the owner’s awareness of unstable soil conditions as required by Municipal Code section 91.0203(2) and without receiving a geological report and landslide stabilization plan as required by Municipal Code section 91.3011(d)(1). In April 1971, the City issued an additional permit, allowing construction of an additional room, again without complying with either section 91.0203(2) or section 91.3011(d)(1). The City issued a certificate of occupancy for the new house in December 1972.
In January 1973, a new owner of the property applied for permits to construct a carport and a swimming pool, the latter on a part of the property near the unstable bluff. The owner submitted two geologists’ reports in support of his application. Neither report, however, was based on an adequate investigation of subsurface conditions on the bluff, and neither demonstrated the 1966 slide mass had been or would be stabilized. The City nonetheless approved the construction of the swimming pool in February 1973, again without demanding a recorded owner’s affidavit as required by Municipal Code section 91.0203(2). Shortly afterward, one of the consulting geologists, William Waisgerber, informed the City that his report did not support construction of a swimming pool, because the report had not been prepared with that project in mind and adequate subsurface exploration for that purpose had not been done. The City nonetheless took no steps to stop construction of the swimming pool.
In 1977, the City issued a building permit for the addition of a bathroom and a laundry room, again without the recording of an owner’s affidavit as required by Municipal Code section 91.0203(2) or requiring any demonstration that the 1966 slide mass would be stabilized.
In 1979, the State Department of Transportation apрlied to the City for a grading permit to remove slide debris from the base of the coastal bluff as part of a buttress fill project. The City issued the permit without demanding a showing that the proposed buttress would stabilize the 1966 slide mass or provide adequate safety against future landslides.
When plaintiff purchased the property in 1991, its geologic instability was not apparent visually or from the title report. Because the City had never recorded a certificate of substandard condition or required the previous owners to record affidavits of awareness of slide conditions before issuing building permits in 1970, 1971, 1973, or 1977, plaintiff and his agents did not know the property was in an active landslide area or that the instability caused by landslides had never been corrected.
In January 1994, the Northridge earthquake, acting on the unstabilized condition of the property, caused massive landslides, severely dаmaging plaintiff’s house and destroying the property’s value, utility and marketability. In his prayer for relief, plaintiff sought compensation for property damage, and loss of use and value in excess
The City demurred on several grounds, including that the cited Municipal Code sections did not create mandatory duties that could serve as the basis for liability under Government Code
The Court of Appeal affirmed, holding the City immune under Government Code section 818.6 and the claims timе-barred under Code of Civil Procedure section 337.15. The court expressly declined to reach any other issues. We granted review on plaintiff’s petition, which raised only the two issues decided by the Court of Appeal. By a later order, we requested and received briefing, as well, on the question whether the Municipal Code sections relied upon imposed mandatory duties designed to protect against the particular kind of injury plaintiff allegedly suffered, within the meaning of Government Code
Discussion
Government Code
First and foremost, application of
Whether an enactment creates a mandatory duty is a question of law: “Whether a particular statute is intended to impose a mandatory duty, rather than a mеre obligation to perform a discretionary function, is a question of statutory interpretation for the courts.” (Creason, supra,
Second, but equally important,
Preliminarily, the City and an amicus curiae coalition of local governments contend that, for local ordinances like those at issue here to serve as predicates for liability under
We cannot agree with the City and amici curiae that liability under
The City and amici curiae’s theory would reduce
For his first cause of action, plaintiff alleged the City had breached its mandatory duty to record a certificate of substandard condition with the county recorder at the time the City determined the property was unstable and so notified the owner. In 1966 such duty was stated in section 91.0308(d) of the Municipal Code and, from 1987 on, in section 91.7001(i) of that code. The City allegedly violated this duty, making no reasonably diligent efforts to discharge it, in 1966 when it notified the then owner of the instability but failed to record the notice, and in March 1970, October 1970, February 1971, March 1973 and October 1979, when events connected to the various improvement projects should have reminded the City the 1966 slide condition had never been corrected. Had the City recorded the required notice, plaintiff allegedly would not have purchаsed the property or suffered the ensuing landslide damage and emotional distress.
At all times the City allegedly violated it, Municipal Code section 91.0308(d) provided: “Unstable Property. Whenever the Superintendent of Building determines by inspection that a property, either improved or unimproved, is unstable because of landslide, subsidence or inundation he shall give written notice to the owner that the property is substandard. Notice shall specify conditions creating substandard classification. [¶] At the time of giving the above mentioned notice, the Superintendent of Building shall also file with the office of the County Recorder a certificate that the property is substandard and that the owner thereof has been so notified. The certificate shall specify conditions creating substandard classification. [¶] Upon notice of correction of the unstable conditions duе to landslide, subsidence or inundation the Superintendent of Building shall file with the office of the County Recorder a certificate specifying that the property is no longer considered substandard due to landslide, subsidence or inundation.” (Italics added.)
A more difficult question is whether Municipal Code section 91.0308(d) was “designed to protect against the risk of [the] particular kind of injury” plaintiff allegedly suffered. (
The City argues, to the contrary, that the recordation provision of Municipal Codе section 91.0308(d) was designed not for the benefit of prospective purchasers, but “as leverage to compel compliance with an order to comply . . . .” Observing that the City’s building code was promulgated, according to its own terms, to protect life, limb, property and the public welfare generally “by regulating and controlling the design [and] construction” of buildings (Mun. Code, § 91.101.2), the City contends the recordation requirement is simply an enforcement tool designed as protection for the general public as a whole against the effects of improper construction, rather than as protection against economic losses by purchasers or lenders.
We agree with the City that the probable purpose of the ordinance’s recordation requirement is to encourage the landowner to undertake necessary stabilization work, for if he or she does not do so, a recorded certificate of substandard condition will seriously impair the value of the property for possible sale or security. True, the recordation also may provide warning to potential purchasers and lenders (assuming what has not been demonstrated, that the recorded notice would be disclosed by a standard title search), but that effect is aptly described as “incidental” (Nunn v. State of California, supra,
Plaintiff’s first cause of action was, in addition, barred by Government Code section 818.6 (hereafter section 818.6), which provides: “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to hеalth or safety.” Construing the immunity of section 818.6 broadly to include the entire process of inspection and reporting (see Cochran v. Herzog Engraving Co. (1984)
In Cochran, the plaintiffs’ decedent had been killed in a fire at her workplace, an engraving shop. The city fire department had inspected the shop twice; the first report noted the presence of magnesium, a highly combustible substance, on the premises, but the subsequent inspection report failed to note that hazard. There was no record the fire department had
The mandatory duty to record a certificate under Municipal Code section 91.0308(d) arises only if instability is discovered by inspection. The ordinance begins: “Whenever the Superintendent of Building determines by inspection that a property, either improved or unimproved, is unstable because of lаndslide . . . .” (Italics added.) Under section 818.6, if the city’s inspection negligently failed to identify a hazard, neither the owner nor subsequent purchasers would be able to maintain a lawsuit; nor would an action lie if the city impaired the value of the property by conducting an inspection that negligently identified a hazard that did not exist. To impose liability for failing to record the result of the inspection would frustrate the purpose of the immunity statute; we do not believe the Legislature intended such a narrow immunity.
As the court in Cochran observed: “Public safety inspection necessarily encompasses making an informed determination that given conditions are in fact hazardous or not in compliance with regulations, officially reporting these hazardous conditions, and fully disclosing them to all interested parties. Appellants’ narrow interpretation of the immunity statute would . . . encourage municipalities not to make any efforts to learn about possible . . . hazards.” (Cochran, supra, 155 Cal.App.3d at pp. 411-412, italics added.) In the present case, similarly, allowing liability for failure to fully report, by recordation, the results of an inspection, while immunizing the failure to make an inspection at all, would have the effect, contrary to the evident legislative intent, of discouraging municipal safety and health inspections. Even if plaintiff’s first cause of action stated a valid claim for breach of a mandatory duty, therefore, section 818.6 would immunize the City from liability for that breach. (See
For his second cause of action, plaintiff alleged the City had breached its mandatory duty to require, before issuing building permits in known landslide areas, that the property owner record with the county recorder an affidavit to the effect the owner is aware the property is in an area subject to sliding or unstable soil. In 1970 such duty was stated in section 91.0203(2) of the Municipal Code and, from 1989 on, in section 91.0303(a)(2) of that code. The City allegedly violated this duty, making no reasonably diligent efforts to discharge it, by issuing building permits in November 1970, April 1971, February 1973 and January 1977 without requiring that an affidavit be recorded. Had such affidavits been recorded, plaintiff would not have purchased the property or suffered the ensuing landslide damage and emotional distress.
At all times the City allegedly violated it, Municipal Code section 91.0203 provided: “(2) The Department shall have the authority to withhold a building permit where the proposed building site is in an area subject to slides or unstable soil. If the Department finds that the above hazards are not likely to be of such extent as to be an immediate hazard to occupancy of the proposed building,
For two reasons, we disagree. First, the ordinance, on its face, does not, as plaintiff claims, provide that a permit shall issue only upon receipt of a recorded affidavit. Rather, it provides that a permit shall issue “upon receipt” of a recorded affidavit. (Mun. Code, § 91.0203(2).) Reading section 91.0203(2) literally, then, the building department’s mandatory duty, if any, would be to issue a permit upon receipt of a recorded affidavit. Plaintiff, of course, does not allege the City violated such a duty.
Second, even if Municipal Code section 91.0203(2) were interpreted as impliedly providing that a permit shall issue only upon receipt of a recorded affidavit, the ordinance, read as a whole, provides the City with such significant discretion in whether to issue or withhold permits as to make Government Code
For his third cause of action, plaintiff alleged the City had breached its mandatory duty not to issue grading or building permits for property in an active landslide area unless the applicant demonstrated the proposed construction would stabilize the entire slide mass. In 1970, such duty was stated in section 91.3011(d)(1) of the Municipal Code and, from 1985 on, in section 91.7011(d) of that code. The City allegedly violated this duty, making no reasonably diligent efforts to discharge it, by issuing building or grading permits in November 1970, April 1971, February 1973, January 1977 and October 1979 without first requiring the applicants to submit maps or investigations of subsurface conditions or stability
At all times the City allegedly violated it, Municipal Code section 91.3011(d)(1) provided: “No building or grading permits shall be issued for construction in active or historic landslide areas until, and unless, stabilization on the entire slide or soil mass on which the property lies can be satisfactorily demonstrated to the Department.” Plaintiff contends this provision created a mandatory duty on the City’s part to withhold permits until the applicant had made an adequate showing of stabilization, a duty the City allegedly breached in the period 1970-1979 by issuing to the property’s former owners various permits without first receiving adequate analyses of subsurface conditions and slope stability.
Plaintiff’s argument depends on reading the ordinance as requiring an objectively satisfactory showing оf slide stabilization. It cannot, however, reasonably be so read. The demonstration referred to is to be made “to the Department.” (Mun. Code, § 91.3011(d)(1).) The ordinance contains no reference or allusion to any third party who might evaluate the applicant’s showing. The only reasonable interpretation of the ordinance, therefore, is that the applicant must demonstrate slope stabilization to the “satisfact[ion]” of the City’s staff. (Ibid.) So understood, Municipal Code section 91.3011(d)(1) explicitly calls upon the judgment, expertise and discretion of the City’s staff to evaluate the applicant’s showing. Such an enactment does not create a mandatory duty within the meaning of Government Code
For his fourth cause of action, plaintiff alleged the City had violated its mandatory duty to stop construction the City knew did not comply with the Municipal Code. In 1973 such duty was stated by section 91.0305 of the Municipal Code and, from 1985 on, in section 91.0202(d) of that code. The City allegedly violated this duty, mating no reasonably diligent efforts to discharge it, in March 1973, by failing to stop construction of the swimming pool, despite knowing from the Waisgerber letter that an adequate investigation of subsurface conditions had not been done and knowing that no owner’s affidavit of awareness of slide conditions had been recorded. The City’s negligence proximately caused plaintiff to suffer the ensuing landslide damage and emotional distress.
At all times the City allegedly violated it, Municipal Code section 91.0305 provided: “Whenever any construction or work is being done contrary to the provisions of any law or ordinance enforced by the Department, the Superintendent of Building shall issue a written notice to the responsible party to stop work on that portion of the work on which the violation has occurred. The notice shall state the nature of the violation and no work shall be done on that portion until the violation has been rectified and approval obtained from the Department.” Plaintiff argues this section creates a mandatory duty to stop work on nonconforming construction, a duty the City violated in 1973 by failing to stop work on the swimming pool addition.
We do not discern in Municipal Code section 91.0305 any intent to create a mandatory
Conclusion
Plaintiff’s first cause of action adequately pleads, pursuant to
Disposition
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Chin, J., and Brown, J., concurred.
Notes
We therefore do not reach the City’s contention its alleged violation of the Municipal Code sections was, as a matter of law, not the proximate cause of plaintiff’s alleged injuries. We also do not reach the City’s contention plaintiff must show that the mandatory duties existed under the Municipal Code not only at the time the City allegedly breached them, but also at the time plaintiff purchased the property.
To the extent Court of Appeal decisions construing
The final paragraph of the section is not quoted in the complaint, but is quoted in the City’s brief and appears in the official version of the City’s 1966 Building Code, a portion of which was attached to the demurrer. The City attached parts of several editions of the Municipal Code, from various years, to the demurrer, requesting that the trial court take judicial notice of them. The record does not contain a ruling by the trial court on that request. In this court, the City requests we take notice of (1) the code provisions just referred to, which were submitted with the demurrer, (2) various current provisions of the Municipal Code that arе parallel to the former provisions upon which plaintiff relies, and (3) the entireties of the Waisgerber and John Merrill geological reports, which were cited in the complaint but not quoted there in full. Plaintiff opposes notice of the two geological reports and argues there is no need for notice of the code provisions because the provisions upon which he relies are quoted in the complaint.
Notice of the code provisions is appropriate to ensure that the provisions upon which plaintiff relies to establish mandatory duties were in force at the times such duties were allegedly violated, and for the court to determine whether the full code provisions, each read as a whole, created actionable mandatory duties under Government Code
Concurrence Opinion
The first cause of action states a valid claim for relief. Accordingly, the Court of Appeal’s judgment should be reversed in part.
Plaintiff’s first cause of action alleges failure to comply with the duty to record a certificate of substandard condition prescribed in this ordinance: “Whenever the Superintendent of Building determines by inspection that a property, either improved or unimproved, is unstable because of landslide, subsidence or inundation[,] he shall give written notice to the owner that the property is substandard. Notice shall specify conditions creating substandard classification. [¶] At the time of giving the above mentioned notice, the Superintendent of Building shall also file with the office of the County Recorder a certificate that the property is substandard and that the owner thereof has been so notified. The certificate shall specify conditions creating substandard classification. [¶] Upon notice of correction of the unstable conditions due to landslide, subsidence or inundation[,] the Superintendent of Building shall file with the office of the County Recorder a certificate specifying that the property is no longer considered substandard due to landslide, subsidence or inundation.” (L.A. Mun. Code, § 91.0308 (d).)
The ordinance’s plain language does not admit of any discretionary exercise of judgment on thе part of the responsible city employee regarding whether the certificate should be recorded, even if discretion and judgment are involved in evaluating the substandard conditions to be specified in the owner’s notice and the recorded certificate. Once this work has been done, the ordinance requires that the certificate be recorded when the owner receives notice of the problem. In this respect, it creates a mandatory duty. (See Thompson v. City of Lake Elsinore (1993)
I also believe that the ordinance was designed to protect against the type of injury plaintiff allegedly suffered. To be sure, one evident purpose of the ordinance’s recording requirement is to encourage the landowner to undertake necessary stabilization work, lest the recorded certificate cause the property to become difficult or impossible to sell. But the warning that recording provides to potential purchasers and lenders is an integral part of the legislative scheme and, in that sense, cannot be described as “incidental.” (Nunn v. State of California (1984)
As regards inspection immunity, I agree with plaintiff that the connection between inspection and the negligence alleged—the failure to record a certificate with the county recorder’s office—is too attenuated to call for application of Government Code section 818.6. That statute provides: “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property ... for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” The inspection process was completed when the city reported the results of the inspection by notifying the property owner of the need to correct the property’s unstable condition. The city’s failure to take an additional mandated step designed for enforcement and as a warning to others—i.e., recording the notice with the county recorder—was not an integral part of the inspection. (Cf. Cochran v. Herzog Engraving Co. (1984)
There is also the question whether Code of Civil Procedure section 337.15 bars the suit. It provides, in relevant part: “(a) No action may be brought to recover damages from any person, or the surety of a person, who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for any of the following: [¶] (1) Any latent deficiency in the design, specification, surveying, planning, supervision, or observation of construction or construction of an improvement to, or survey of, real property, [¶] (2) Injury to property, real or personal, arising out of any such latent deficiency.”
Code of Civil Procedure section 337.15 protects only two classes of potential defendants (along with their sureties): those who have “develop [ed]” real property and those who have “perform[ed] or fumish[ed]” specified services contributing to an “improvement” to real property. The city does not contend that it developed the property. The question, therefore, is whether the negligence alleged in the first cause of action occurred in the performance or furnishing of “design, specifications,
For the foregoing reasons, I would reverse the Court of Appeal’s judgment in part and affirm it in part.