*1 No. Apr. [L.A. 29940. Bank. 1972.] al.,
IRA NESTLE et Plaintiffs and Appellants, MONICA, CITY OF SANTA Defendant Respondent.
Counsel Kanner, Fadem & Michael M. Jerrold Fadem A. and Gideon Berger, Kanner Plaintiffs and Appellants. New, Brill, Hunt, L.
Richard Knickerbocker and Christina Attorneys, City MacDonald, & Halsted Mitchell DeBuys Burby, & L. Layboume, Lathrop, and Milnor E. Gleaves for Defendant and Respondent. Sherman, (Los Milton As- City Attorney
Roger N. Amebergh, Angeles), Einbodin, J. sistant H. Pearson and Ronald City Attorney, and James behalf City as Amici Curiae of Defendant Deputy Attorneys, on Respondent.
Opinion suit who are of over MOSK, J. 700 plaintiffs Appellants brought to have (“defendant”) for injuries alleged Monica of Santa against City Air- Santa Monica suffered virtue of defendant’s operation been en- encountered in the difficulties demonstrates vividly This action port.1 onto recovery law theories proceedings traditional common grafting Kramon, Noise in nature. involving injuries contemporary peculiarly Action Proposal Federal Remedies and Control: Traditional Boom Cost: 533; Supersonic Sonic Transport’s J. Malley, Harv. Legis. 683.) Despite 37 Geo.Wash.L.Rev. Approach A Common Law “[tjhose admonition that dilemma, however, Justice Cardozo’s we recall their knowl- make best rewards must would common who earn law’s] [the culture of universal as the and as broad and as the science edge deep (Hall ed. Nathan Cardozo (Selected their Benjamin day.” Writings and personal to recover for both this action property Plaintiffs instituted of the airport. Specifically, caused defendant’s damages operation injury aircraft vibration, fumes, emanating jet and noise claim that they inter- their caused damage property, at the off landing taking airport resulted in physical of their fered with the free enjoyment property four theories asserted They disturbance. and emotional suffering pain, *5 (3) and condemnation, nuisance, (2) negligence, (1) inverse recovery: (4) violations. zoning court, immedi- a which to agreed trial the parties procedure
At trial, suffi- would rule on legal to the commencement ately prior the nui- II, III, ruling and IV. The court reserved its on of counts ciency (III) zoning negligence and held that the counts (II) theory sance The court denied appellants state causes of action. (IV) failed to violations latter two counts. leave to amend the to evidence as both presenting was commenced with parties
Trial valua- both before after properties stipulated value appellants’ that the opinion July produced expert tion date of 1966. Appellants noise, fumes and due to jet suffered diminution the 10 had value of parcels witness, decrease, ranged according appellants’ The amount vibration. 1 value of the respective par- pre-July 20 percent from percent evidence that the noise Furthermore, substantial introduced cels. appellants plaintiffs representative selected 10 adopted procedure a which court 1The trial relating parcels separately. to those 10' and tried the issues parcels purportedly affected through referred 10 will hereinafter parcels involved with specific plaintiffs The to as “plain referred to as plaintiffs will be the entire class of “appellants,” whereas tiffs.” “intolerable” and “mon- the homeowners have subjected to which been uti- and “untenable” for habitation. Defendant’s strous” human appraiser, values before and after lizing determining the same general approach in value that none of the had been concluded July diminished properties noise, fumes, and vibration. as of that date by exposure jet trial, count I condem- (inverse court for defendant After found on nation), had establish that their failed to concluding prop- appellants II for ruled that count erties had The court then damaged. appellants’ been was entered failed to state a of action. judgment cause Thereupon II, III, count and for defendant on the inverse condemnation counts IV were dismissed. contentions are: evidence is not
On appeal, appellants’ principal sufficient to for defendant on the inverse condemnation judgment support action; (2) suffered when counsel for defendant error appellants prejudicial ex- failed with the court’s order complete comply pretrial requiring the trial court erred change dismissing appraisal reports; II, III, counts and IV.
Inverse Condemnation two to the cause of for inverse contentions in action regard
Appellants’ and unfair evidence condemnation—insufficiency exchange ap- interlaced: even if the evidence were other- necessarily praisal reports—are defendant, wise if defendant failed to sufficient judgment support order, trial court’s mutual have may comply exchange appellants defense and in been witnesses handicapped cross-examining introducing circumstances, their evidence. Full in such exchange might, own reports court have enabled to elicit from which a testimony appellants reviewing could conclude there evidence to was insufficient judgment. support *6 evidence, the we are the issue of the resolving sufficiency the rules that all factual bound established review matters will appellate (Leming be viewed most to the Truck favorably prevailing party Oilfields 343, 23, (1955) 107]; 44 Cal.2d 346 Ban ing Co. P.2d 51 A.L.R.2d [282 140, 1157]; Co. v. croft-Whitney McHugh (1913) 166 Cal. P. 6 [134 Witkin, 245, (2d 4236) Cal. Procedure ed. at and in p. support § (Waller (1968) the v. Brooks Cal. judgment Cal.App.2d 228]). the All issues of are likewise within credibility Rptr. province (1944) P.2d (Estate Teel 25 Cal.2d trier fact. brief, only at the evidence 384].) court looks ordinarily “In appellate disregards contrary showing.” (6 supporting the party, successful conflicts, therefore, Procedure, Witkin, supra, at All Cal. § v. Southern (Crawford must be resolved in favor of respondent. Pacific P.2d Co. 3 Cal.2d 429 [45 review, now to the we turn rules controlling of these
Cognizant appellate deci- sustain the court’s it sufficient to evidence to whether was determine trial, at case their inverse condemnation sion. in presenting Appellants, first, evidence as to of testimony: offered two essentially categories second, as to evidence near the existence of excessive noise airport; levels At the onset it the value of the homeowners’ properties-. diminution in order to evidence was in employed must be noted that first category fact of a the ultimate decrease demonstrate the existence of property on even massive solely could not rest value. It would appear appellants use levels excessive noise occasioned and uncontradicted evidence of event, a decrease value.2 In any aircraft to jet property appel- prove Robert L. was Dr. unchallenged. evidence on excessive level lants’ noise not Jr., that none of the 15 Watson, and throat testified ear, nose specialist, an this trial court loss. From hearing examined suffered any individuals he accordingly excessive and that the noise level was not could infer properly also testified land. Dr. Watson did the value of not diminish appellants’ time of 150 seconds decibels over a a noise of 110 period exposure each, would not three-year seconds over period at of 20 day intervals per trial could from such testimony judge cause loss.3 Similarly, hearing insufficient noise increases were such occasional have concluded that cause damage. property whether, advancing view of the state of medical do reach the issue of 2We sufficient, might knowledge regard, excessive noise levels not be and scientific in this alone, standing prima or to prove case for nuisance existence establish facie loss, though might hearing it be insufficient to personal injuries due to even (Compare “taking” cause of action. required in an inverse condemnation
establish the Kramon, 538-544, pp. Noise and the Law Mich.L.Rev. Spater, 1373, 1385-1396, 1406-1407.) light meaningful data figure relevancy of 110 decibel becomes 3The by several standards formulated compiled agencies. tion that 110 appellants on the noise However, support conten provide do not full for the even those statistics injury. For necessarily sufficient to cause excessive noise decibels is Walsh-Healy Public originally pursuant to the federal established example, standards (41 of 85 decibels seq.) 35 et did state that maximum Act U.S.C. Contracts of However, heights are not steady occasional of 110 decibels is permissible. noise 20, 1968, 14258-14260.) pp. (33 Fed.Reg. Sept. No. unsafe. considered day per quarter of one hour Furthermore, regulations permit exposures current 50-204.10, I.) (41 exposure Occasional of 115 decibels Table C.F.R. decibels. Safety State Division Orders of the to the Noise Control pursuant allowed is likewise con eight-hour exposure of 90 decibels is Safety though constant even of Industrial (Tit. working healthy conditions. permitted for safe the maximum sidered *7 432.123.) Finally, Department of Code, (a), the p. subd. at Cal. Admin. level, however, is not decibels. Such of 65 has established maximum Aeronautics complicated formula upon but infrequent blasts of noise on the basis of computed Code, (Tit. Admin. period. Cal. averaging a 24-hour noise levels for for the a factual conflict with creates Dr. alone testimony While Watson’s level of the the subject data submitted on by scientific appellants impressive of evi- a vast defendant also introduced quantity of noise near the airport, Tucker, a mem- Elbridge of dence the ultimate issue damage. on property who has master’s ber of the American Institute of Real Estate Appraisers, the four on economics, days more than testified for agricultural in degree three took another Cross-examination value of the in question. properties recross. was both redirect and This followed days. by the 10 each of repre- Tucker on testimony
Mr. provided painstakingly value as diminution in that suffered any none concluding sentative parcels, he described the aircraft. a result of of Whenever jet applicable, operations utilities, streets, the availability the access the its property, topography, the zoned, on the uses for it the made property, which was improvements and the condition the those chronology any remodeling improvements sales as the result of the comparable he testified to Finally, property. he in the property. approach employed appraising were “based on to his conclusions
For example, parcel respect time, from . . . two and a half sales over a on sales period occurring time or middle and about the same following, of 1966 years the prior found no influence two which likely years following, more [in he] perhaps time.” market With during regard jet period on from operations the basis was on “My Mr. Tucker testified: opinion developed parcel areas, tract, of sales other of the sales in study in particular plus activity the other basic which I made market investigations relating plus area. All of was general my investigation residences in price At the close of used as a basis for this final of value.” developing opinion his on the 10 he method which testimony general parcels, explained he reached the That damage. conclusion of no in property process, part, set forth in the margin.4 question testified as “[My opinion properties during 4Tucker follows: that none of the any damage jet operation applicable
has suffered aircraft here, including period] was based on the studies that I have enumerated rather period time appropriate studies residential real estate market over an Angeles County, Los in Westchester-Santa Southern California—six counties—in housing, build-up I rate sales as Monica area. studied the of residential building single family recordings, by by permits deed as for indicated indicated recordings. those period year, over a of a indicated trust deed All of residences as activity estate show real market. investigated investigated years; interest “I the rate of foreclosures over several I some- they applied single family several sources. secured rates thing residences from them; sales, con- Airport in the 700 of like 850 most of those area—almost area; sales, Airport in the something like 165 or 75 or 80 most of those firmed listing multiple analyzed availability; a number of sheets reviewed sales dates, properties a number of reported sales dates of offers and sales showed area, required years, Airport to discover the time both and out of the several *8 the of review set forth general pre Applying principles appellate defendant, to the conclude there was sub we viously evidence proffered the the inverse con stantial evidence to for defendant on support judgment demnation count. failed court’s next insist that defendant to with the
Appellants comply order of Even pretrial exchange an requiring appraisal reports. complete we have concluded that there was to though evidence support substantial the the failure to could infect the judgment, such fairly exchange reports amount adduced. we into quality Accordingly and evidence inquire the nature of the and order into violation. any order, its first conference the court to pretrial required parties submit to which intended exchange upon they rely appraisal reports at trial.5 Counsel However, their ostensibly exchanged respective reports. sell, elapsed or the listing time between property reported selling date of a and the property, date of that Airport in both non-Airport and areas. resales, “I was able to a confirm number and practically of sales all cases at a significantly higher original resale was level of value than the sale for the property. A part by individual number those increased in were price caused in modifications, renovations, property, some but improvements not all of them. And those that had it improvement appear some renovation or did not to account for entirely. prices “I looked at the price trend in in the area. I studied the estimated market houses, eight, general six Airport. several or in the area of the Santa Monica northwest; Airport; Three of them were in the area of the Santa Monica two east; away. one and the others a little comparing further distance And those type larger of data price with the same for a number homes for which market lending institutions, builders, periodically by estimates were made and others that keeping up were interested with the current real estate market. is, activity a “These studies showed slow-down in the of real estate sales—that California, Angeles County vicinity Airport. volume in Southern Los in the similarity striking. quite of those trends was “I considered the interest rates that were available. I took notes of the loan to sale price financing a ratio in number of confirmed sales to- was a lack discover if there airport might activity price. inquired area that down sales or I area, dampen sales a regarding airport of lenders as to in the took number their attitude loans tight money notes of the situation. subject I developed my parcels.” “On these final of value estimate appraisal upon part: parties reports 5The order recited in “The are ordered to file trial, they any rely any, intend to clerk If which the time of if with the .... witness, party praisal reports ap appraisers intends have an owner or other than the whose any testify valuation, submitted, such respect are to be in this case with party his such person, shall also- file with the date the name of such court on the same submitted, valuation, data, upon which opinion as to and all not otherwise factual data, studies, based, opinion including reproduction capitalization market herein, studies, Except as set practicable much detail as .... forth rebuttal, any except ness study permitted to call wit purposes parties for the will not be value, sale, testify opinion reproduction direct examination to an on capitalization study, court as set forth above. unless submitted have information which should party subsequently “In the event discovers *9 Tucker, defendant’s revealed that the cross-examination Mr. appraiser, had the exchanged witness to matters which were not included in testified reports.
We the value of to a full such begin emphasizing discovery practice of the issues at trial. Trial courts should exploration compel pre trial order that counsel suffi exchange in have might appraisal reports cient information to for Such a not increases only trial. prepare procedure the likelihood of con more for by making expeditious proceedings requests tinuances less but elimination of trial is likely compelling, surprises pro duce a more result. salutary Regents University
As the court stated in v. Morris of California 406], “A exchange Cal.App.2d proper Cal.Rptr. is not Its an crucial is appraisals pretrial formality. importance empty illustrated Meyer in U.S.A. v. (9th Cir. F.2d July 69-70. Meyer the court ‘The and their factual and says: opinions appraisers’
theoretical foundation are each knowledge within appraiser’s peculiarly him, and, to a that of degree, who party employed opposing party can obtain this advance of trial Because information in only by discovery. trial, this will material constitute substance of the disclosure pretrial is if the are to evaluate for necessary their claims fairly parties respective settlement real areas of the actual determine the narrow purposes, dispute, issues, avoid and cross-examination surprise, adequately prepare ” rebuttal.’ if the order is to be effective the court must be
Certainly pretrial vigilant Superior Court compelling compliance. Swartzman v. However, it 203-204 Cal.App.2d true that counsel must call to the material fail court’s attention equally any Morris, ure to (cf. Regents University comply of California 616, 630) and must so we do not do While Cal.App.2d forthrightly. pre scribe a rule motion form or manner in order to requiring specific inform the court of from the for the order departure pretrial purposes the error on we do that here counsel for preserving note appeal, appel manner, made their an if at lants circuitous “objections” ambiguous all. did Counsel not a continuance order to evidence intro study request duced but did allegedly exchanged. Counsel not to strike the testi move issue rise Nor did make mony giving they compliance. request preceding paragraph, good submitted set been forth in the and desires in faith to trial, at immediately notify use the time party information he must the other effect, information, this provide party good with said other and show cause permitted to the court . . that he . should be use such information trial.” of additional information on which the exchange appraiser purportedly based his which counsel was not originally testimony provided.
Instead, and the there was a lengthy between counsel trial judge *10 opposing exchange failed to to the any objection in which specify colloquy appellants fact, counsel for offered to recess if In defendant procedures. appellants to have desired, in order that obtain materials been they any alleged might excluded and cross-examination. did for continued necessary Appellants not take this offer.6 advantage withheld a chart sales data relating material included comparable had to the involved in
which been in a form uncorrelated supplied parcels of the interior of the 10 litigation, descriptions parcels, comparable court, sales data after was developed appraisal report deposited marginal some miscellaneous charts and certain photographs, graphs *11 aspect evolution,” (Borchard, as “one of the of Gov century ago mysteries legal 1, (1924) 4.) ernmental Responsibility Tort Yale L.J. Traditionally 34 in this state a held creating liable or municipality maintaining was (See, even Phil though activity. e.g., engaged governmental lips 104, 625], v. City (1945) Pasadena P.2d and 27 Cal.2d 106 [162 of therein; Muskopf (1961) cases cited Dist. Corning Hospital see also v. 55 89, 211, 457].) Cal.2d 219 P.2d Cal.Rptr. [11 times, however,
In more recent both the courts and the Legislature created a multitude of the of in some rule general immunity exceptions and Muskopf Corning areas to the rule in others. In v. general liability Dist., 211, Hospital 216, supra, 55 Cal.2d we that the distinc- recognized “without to cause tions were rational basis” “so as illogically operated Muskopf serious we held in “that the doctrine of inequality.” Accordingly are governmental for torts for which liable has no immunity its agents (id. 221) in our law” at and “must be discarded as mistaken place p. (id. 213). Elementary at v. (See Lipman also Brisbane Sch. Dist.
unjust”
p.
465].)7
Thus the erected as its Legislature cornerstone a bar policy against gov ernmental liability as otherwise statute.” The “except provided Senate committee comments make clear that the Tort Claims Act itself does not for provide governmental “[Tjhere for nuisance: is no section in this statute nuisance, are liable declaring entities public even though the California courts have held that entities are previously public to such subject even absence of statute. Under this statute right recover for nuisance have damages will to be established under relating to provisions conditions dangerous or under property other some statute that may to the situation.” applicable (Legislative Comment—Sen., Committee Code, 815; Gov. added.) italics Therefore exists, if it liability, must be authorized other statutory provision. act, Prior to the 1963 several cases that section of the 3479 emphasized Civil Code a viable basis provided statutory governmental liability avoided defense Thus, of sovereign County in Vater v. immunity.8 provides: “Anything 8Section 3479 injurious health, which is or is indecent or senses, offensive to the or an obstruction use property, to the free so to inter fere with the enjoyment comfortable property, unlawfully of life or or obstructs passage use, the free manner, lake, river, customary or in the any navigable or stream, bay, canal, basin, street, any public park, or or square, highway, nuisance.”
933 85], pre- P.2d we repeated Cal.2d (1958) 49 [323 Glenn or constitutional a statutory the absence of rule” that “in Muskopf “general lia are immune and its the state agencies to the contrary, provision and activities.” duties of governmental for tort in the discharge bility 22725- in sections bases of liability statutory asserted alternative plaintiff con Civil Code. We of the and section 3479 Code Water Code provisions circumstances Water cluded that except particular but of immunity, respect the rule were not designed abrogate a nuisance constitute case did we held that the section 3479 facts demonstrates, we the dissent code. As aptly within the meaning conditions, would pro factual that under recognized proper (49 at 821 Cal.2d liability. pp. vide a basis for statutory governmental suffi contention section 3479 provides Additional for the support can entities for nuisance actions against public cient foundation statutory Sanitary Dist. Mulloy Sharp Cal.App.2d v. Park be found in verdict for plain affirmed a P.2d There court jury [330 441]. dis home. After district had flooded tiffs after defendant plaintiffs’ of section and the relevancy immunity the issue cussing that the “It cannot be Court of concluded: questioned Appeal definition.” above statutory do constitute a nuisance the- facts within proved (Id. 441; (1959) 176 City Cal.App.2d Mercado v. Pasadena cf. City Teall v. 134], grounds 34-35 on other disapproved Cal.Rptr. [1 493]; 386 P.2d Cudahy (1963) 60 Cal.2d 486-487 Zeppi State Cal.App.2d of California P.2d immediately the rule
It that with therefore respect appears *13 consistent with that Act was to the enactment of the Tort Claims prior a immunity, the act: to avoid the rule by general subsequently required be may find' and such statutory suit for nuisance must support support Sovereign Immunity, A(See section to Study Relating furnished 3479. 1, 227.) fact that (Jan. 1963) “The 5 Cal. Law Revision Com. Rep. pp. do not refer are specifically nuisance language, [the statutes] entities, be- to such entities, their to does not public preclude application bodies cause code sections are worded generally applied (Van Alstyne, would result.” if no of sovereign impairment powers (1962) 126; 57 Cal.2d Flournoy at v. State 5.10 see also p. California 627, 497, 331].) P.2d 370 498-499 Cal.Rptr. [20 authority has cited controlling While in the instant case neither party bodies are either actions against precluded that nuisance holding 815, three opinions Code by operation Government permitted 934
the Court of have the continued existence of recognized Appeal impliedly such a cause of action. (1968) Burrows State 260 Cal. Cal.App.2d [66 of California den.), the court called an (hg. agreement was
Rptr. upon interpret 868] concluded that a clause particularly damaging There court plaintiffs. but errone state’s act was “not a nuisance” was an stipulating “nothing (Id. ous conclusion which the have legal trial court should not accepted.” at v. County Angeles (1965) 231 In Granone Los Cal.App.2d 34], the land resulted in Cal.Rptr. flooding crop plaintiff’s [42 in destruction. court affirmed on four recovery grounds, predicated Burrows, but, nuisance cluding to Civil section 3479 as in Code pursuant made no of the relevance the trial in mention of section 815. While Act, occurred act Granone effective date of the Tort Claims prior 45, made retroactive 3288- (Stats. ch. specifically pp. 3289) and Court of Granone in accordingly reviewing Appeal mandate, was bound to consider the if as well other section 815 any, Ry. Carpenter act. v. Wabash Co. 309 U.S. (1940) provisions 558, 561-562, 416]; (1965) v. Walker S.Ct. Linkletter [84 L.Ed. 601, 606-607, 1731].)9 381 U.S. L.Ed.2d 626-627 85 S.Ct. [14 Nevertheless, the court based in on recovery upheld part theory. Lombardy v. Peter Kiewit Sons’ Co.
Finally, in 266 Cal.App.2d 240], 605-606 the court concluded Cal.Rptr. plaintiffs had against not stated a cause of action for nuisance the state because court, acts of were authorized statute. The complained specifically on the merits ruling directly contentions rather than plaintiffs’ nuisance was unavailable of section deciding by operation impliedly City that a (Cf. cause of action for nuisance recognized still remains. Superior Burbank v. Court Cal.App.2d 23] that a cause of action for nuisance must [holding against public entity be stated but trial court to allow separately remanding apparently on, the trial to rule other judge of nuisance among availability things, of section light Additional for the support conclusion that section 3479 of Civil Code provides basis for nuisance actions as statutory required section 815 be traced to recent the Law may more recommendations of Revision Commission. It should remembered that it was the commis- *14 Alstyne respect 9As Professor Van has stated with to the retroactive nature of the effects, Tort retroactivity variety Claims Act: rule in of full . . . has a “[T]he cluding abrogation Muskopf . . previously . accrued causes of action based on the doctrine, injuries (effec both for that accrued the 1961 moratorium statute before 15, September 1961) (Van tive and for those that accrued after that date . . . 11.2, 462-463; Cudahy, Alstyne, supra, City supra, pp. § at cf. Teall 60 Cal.2d 431, 869, 493]; Superior Cal.Rptr. 432 386 Thelander v. Court 58 P.2d 643, 811, Cal.2d 814 376 P.2d to (A Sovereign Study Relating on immunity sion’s study governmental 1) 1963) (Jan. p. Law Com. supra, 5 Cal. Revision Rep. Immunity, enactment, after Act of 1963. One year the Tort Claims which spawned the commission’s concluded the author of report, Van Alstyne, Professor that nuisance the Senate comments that, statement notwithstanding that may other statute to “some could be maintained be actions pursuant Comments—Sen., Committee Gov. to the situation” (Legislative applicable eliminate Code, 815), entity “was intended to section 815 public § (Van nuisance.” of common law for on the liability damages ground 5.10, 126.) supra, at Alstyne, p. § amendments a series of in 1969 the commission
Accordingly, proposed to Im- (Recommendation Sovereign the Tort Claims Act Relating 803); 1969) clarify Cal. Law Revision Com. munity, 9 Rep. (Sept. p. nuisance, be with what it conceded to the existing uncertainty respect entities, actions the first recommendation was to specifically against public eliminate such liability.10 12, 1970, No. which
On Senator introduced Senate Bill January Song contained, alteration, of commission without a the entire series single in- recommendations on tort liability, several aspects commission’s entities immune cluding suggestion However, suits founded on Civil Code when Senate Bill section 3479. 9, 1970; the No. 94 was out of the on Assembly reported August excised immunity was deleted from the bill and it was in such provision 1957.) that the (Stats. form bill became law. ch. p. view the influence the commission has in the pervasive enjoyed
field of governmental both the 1963 act immunity, authoring practically amendments,12 and the we must conclude that the Legislature, 10The commission’s textual recommendation was as “To eliminate the follows: intention, existing uncertainty original Legislature’s effectuate the Com mission recommends ment Code that a new added to the Govern section—Section 815.8—be damages expressly to eliminate for nuisance under Part 3479) (commencing with Section of Division 4 Code. This section would Civil (9 Cal. damages theory based on a of common law nuisance.” eliminate Law 810.) legislation on the Rep. p. proposed at Revision Com. commission’s Code, to read: 815.8 subject 815.8 is added to the Government read: “Section (commencing public entity damages with Section is not liable for under Part A 3479) (Id. p. at of Division 4 of the Civil Code.” 11 (Recommendation Chairman Sato letter to the Governor from Commission See 1969) Sovereign supra, Rep. Relating Immunity, (Sept. Law Revision Com. 9 Cal. 120; 5.3, 803; supra, Legislative Com Alstyne, p. compare Committee Van Sovereign ments—Senate, Code, Relating to Gov. with Recommendation 803, 837-838). 1963) supra, Rep. (Jan. pp. Immunity, Law Revision Com. Cal. Relating to 12Compare chapter with Recommendation Statutes Rep. (Sept. pp. Sovereign Immunity, Revision Com. 9 Cal. Law 837. *15 deliberation,
due decided to the commission’s to bar suits reject proposal against entities for nuisance. it manifest Consequently that the intended to allow such of action Legislature causes if could they be tailored to meet of specifications statutory provisions, such Civil Code.
This conclusion is further interest the supported by profound Legislature demonstrated in the eradication the evils of caused by of various forms on pollution, particular noise emphasis pollution.13 Since it is well-documented nuisance an effective provides theory means for redress in a wide of actions in- range from resulting pollution disturbance,14 that, noise cluding it the commission’s appears deleting generally 13See (1970) Relating State of California Laws to the Protection Quality. Legislature Environmental The recognized has specifically rising problem airport and noise its effects quality on the Legislature of the environment: “The (b) finds that The proliferation . . . of noise transportation sources have [sic} exposure large led to the populace sectors of the unacceptable degree to an noise, (c) anticipated The rates airports of construction of new extension existing airports, freeways lines, construction of rapid and mass transit intro duction into service of intraurban short takeoff and land vertical takeoff and operating cruising land aircraft at low rapidly altitudes will escalate the urban noise systematic problem Code, preventive (Gov. 16000, unless measures are taken.” Stats. 1395; 1968, 1042; 1969, Code, 1968, 16001, ch. Stats. see ch. also Gov. Stats. 1395.) foregoing ch. repealed statute was in 1970 when related were sections (Stats. 1970, 346). added to the Public Utilities Code ch. part airport As program pollution, Legislature its to combat passed noise 1969, (Stats. 1585; 712, several amendments to the Public Code Utilities chs. Stats. 1970, 912, 1293). chs. of that “The department [Depart- Section 21669 code states: governing ment of adopt operation shall noise standards Aeronautics] of aircraft engines airports by and aircraft for operating permit under a valid issued depart- ment prohibited to an extent not upon federal law. The standards shall be based residing acceptable person the level of noise to a vicinity reasonable in the airport.” provides, part: 21669.4 Section “The violation the noise standards operator punished deemed a misdemeanor and the aircraft shall thereof shall be ($1,000) a fine of one thousand dollars for each infraction.” also Pub. Util. 21666, Code, 21669.2, 21669.3.) §§ subject generally, recent enactments on the of noise see For Public Resources 216; (b); 75.7, Highways Code section subd. Code sections Streets 27160; Code Vehicle gation sections and Harbors and Navi sections Code 668. airports code as nuisances and condemna- provisions deal with abatement Two however, Proc., 1239.3.) Neither, 731b, (Code airspace by §§ tion of nuisance. Civ. damages. monetary recovery provides for a for (See, e.g., pollution action often included suits. 14Causes of for nuisance are 780.) Reynolds (9th general, Co. v. Martin Metals Cir. F.2d (See Kramon, ground recovery Noise provides proper for noise disturbance. Proposal (1969) supra, 7 Action Control: Traditional Remedies and a Harv. J. Federal 533, 538-544; Transport’s Supersonic Legis. Malley, The Sonic see also 683; Approach supra, 37 Boom Costs: A Common Geo.Wash.L.Rev. Law 740; Perspective (1969) 55 Alekshun, Note, Noise Law: A Technical A.B.A.J. Aircraft Required Airport 51 Minn. Jet Areas: A National Solution Noise L.Rev. *16 937 nuisance recommendation preclude governmental liability, Legis- the arsenal available this additional lature intended preserve weapon We therefore conclude that to combat environment. grievous injury section 815 of the Government Code does not bar nuisance actions against entities to the extent actions are founded on section 3479 such of the Code or Civil other statutory applicable. provision may we hold that the trial court dismissed Accordingly incorrectly plaintiffs’ cause of action for nuisance on the that it was ground by precluded 815 the Government Code.
Since the court also ruled that had failed to state plaintiffs facts nuisance, sufficient to state a cause action for should be allowed plaintiffs to amend this count to suffered as a result allege personal injuries nuisance. v. Kingsburg (1955) Cotton Oil Co. purported Kornoff 265, 45 Cal.2d 507]; 272 Herzog P.2d v. Grosso 41 Cal.2d [288 429]; 225-226 Prosser, 603; P.2d (4th see Torts ed. [259 County cf. Voter v. Glenn (1958) supra, Mercado v. Cal.2d City Pasadena (1959) supra, on other Cal.App.2d disapproved City Teall v. grounds Cudahy (1963) 60 Cal.2d 493]; 386 P.2d Zeppi v. (1959) supra, State 174 Cal. of California 484.)15 The
App.2d court made no findings, although requested by appel so, to do lants as to whether suffered such appellants damages. remand,
On concern over application statute of limitations proper arise. If may demonstrate that whatever appellants nuisance caused defendant by nature, is continuing every wrong may repetition create further Hence the statute of liability. Hmitations would not run from the merely original intrusion. This is the well-settled rule with respect (see, Phillips City v. property damage (1945) supra, Pasadena e.g., 107-108), Cal.2d and it would be for each incongruous repetition to be considered a separate wrong damage but property purposes To the personal injuries. Strzelczyk extent Marki Cal. 846], P.2d App.2d it is adopts contrary position, disapproved. if the Accordingly, statute issue, limitations becomes an the trial court must determine whether nuisance causing personal loss has con- injury 15We do not reach the question of appellants whether are entitled to prop show erty damage caused conduct of defendant purportedly which constitutes or alleged negligence discussion, zoning (see defendant’s violations infra). course, Of III and IV damages II, the extent property claim for under counts damages is identical to sought those which were in the inverse condemna action, tion such claim would finding property be barred the trial court’s of no damage under that count. ot
eluded and then statute limitations continuing apply appropriate principles.16
Negligence and Zoning Violations
Plaintiffs’ third of defendant was negligent cause action that alleges the to be used for aircraft. by jet takeoff permitting airport landing fourth that a Their cause of action of the Santa Monica alleges portion is located the zoned for within an area of of Los City Angeles, airport violation, Angeles residential use and thus is of Los single-family zoning causes of ordinances. ruled on the of these action The trial court viability Plaintiffs, to trial and held them insufficient. offered immediately prior legally III counts IV under theories Government by amend encompassed 815.6, 830, 815.2, Code sections Code section and Civil 3479. The court denied leave to amend.
Without the on the the of court’s insuffi- ruling determining propriety IV, of counts III code suggested or the ciency applicability action, those court sections to causes of we conclude the trial improperly Indian City an v. Wells (Scott denied to amend. plaintiffs opportunity of (1972) 6 Cal.3d P.2d 549-550 We Cal.Rptr. [99 was, that the when- case trial court’s dilemma exacerbated the appreciate was a of at bench scheduled for trial without complete disposition pretrial as an issue the of legal matters. order pretrial sufficiency preserved the In so the order in effect continued a fundamental doing, complaint. part at or immediately determination pretrial proceedings prior we not a are with circumstances which Accordingly, trial.17 presented was a airport 16The trial court that as a the several statutes. concluded matter of law authority because it the was maintained under Section “Nothing provides: 3482 of the Civil Code done or maintained the which is under express authority of a a statute can be deemed nuisance.” 1021], (1938) appellant con- v. San In Hassell Francisco Cal.2d 168 P.2d [78 that, virtue a convenience construction of tended of section the ground rejecting argument, that station above could not constitute nuisance. “ (at 171): statutory interpreted narrowly, stating sanction can- we not be the ‘A section of law pleaded justification general rules constitute of acts which the nuisance, express terms of the by the complained unless the of are authorized acts necessary made, and most plainest is the justification which statute under implication conferred, fairly stated powers that it can expressly so ” injury.’ contemplated very occasions legislature doing act which sections the Government Code appear It would 21662 and 21667 50470 of judge, Code, are too by the trial upon relied Utilities the Public 3482 under the by section authority envisioned general in nature to constitute argued at event, nor pleaded this issue was neither interpretation in Hassell. In trial. nuisance was not action for sufficiency of the cause of previously, noted 17As trial, essentially extending pretrial thus upon until after the conclusion ruled judgment. matters until been inex there has and the court concludes proffered late amendment Goldstein Bank America etc. Assn. v. delay. cusable 545]; Witkin, (2d ed. P.2d Cal. Procedure 46-47 Cal.App.2d Instead, unusual 1971) 2623-2625.) 1048 at because nature pp. of these rule of liberal construction pleadings proceedings, (Scott (Code Proc., amendments Civ. and of liberal allowance of Wells, Kern City supra; County Indian Simons v. Further 338]) should 367-368 Cal.App.2d prevail. more, did for their describe the foundation plaintiffs legal purported amendments the fact that section 472c of notwithstanding proposed amend, Code of Civil Procedure does not require specific request *18 basis, an the trial or indication its as a legal reviewing prerequisite Wells, (Scott City Indian court’s order on Cal.3d v. appeal. 541,550.) mind,
With these general considerations in we now turn to the indi vidual issues III sec counts The Government Code presented IV. tions to which have referred in their for leave to amend plaintiffs request strains be negligence running thus throughout, indicating may plaintiffs able to state a cause of action for based those on some of negligence It is true that the provisions. trial court based its reason for deny partially leave to ing (as amend on the III well count plaintiffs count ground IV) was However, the nuisance preserved by cause of action. facts theories of and defective conditions of supporting dangerous property (Gov. Code, Code, 830 et 815.6) § statutory (Gov. seq.), liability (Gov. Code, 815.2) vicarious liability must be stated from a separately (City cause of action for nuisance. Burbank Superior (1965) v. Court 23].)18 Cal.App.2d [42 With to Santa Monica’s respect violation of the ordi purported zoning nances of the of Los it City Angeles, is unclear whether plaintiffs propose to amend their to' the Government and complaint Civil Code pursuant sections referred to or whether some ad previously other will be theory event, vanced. In either the liberal rules of and amendments pleadings above reviewed to count apply equally IV. concept is long-standing that a who suffers identifiable harm private person reason of a violation of a law sue the violator for municipal zoning may 18Defendant contends that since airport danger the court found that the was not a ous defective property, or condition of plaintiffs asserting theory. cannot amend such However, II, III, IV, dismissing necessarily counts only the court decided merits, inverse condemnation action on the in connection with which issue of dangerous Therefore, finding or defective property condition of is immaterial. the airport dangerous is not a property or defective condition of is likewise immaterial. damages seek relief when
compensatory may injunctive applica .also (Sapiro 280]; ble. Frisbie P. see also Cal.App. Mclvor v. 247, 250, Mercer-Fraser Co. 253-254 76 Cal.App.2d P.2d While in vast cases majority zoning defendant, is the there valid reason under private no party appears why, circumstances, an action proper against municipal body violating ordinances of zoning cannot be maint neighboring municipality ained.19 To the extent this action for violations raise novel zoning may suits, in similar presented questions against private they may parties, be considered below on remand. entitled, concluded that
Having are III and plaintiffs amend counts IV, we again realize the statute limitations question may proper arise in further Until facts how proceedings. plaintiffs plead indicating under accrued, however, those counts is to have we alleged cannot ascertain whether statute of one-year limitations of Code of Civil Pro- cedure section 340 bars necessarily to recover for plaintiffs’ ability personal caused injuries defendant’s negligence zoning If the con- violations. duct of rise to giving defendant in nature continuing every repe- tition wrong may actionable. Such a rule has a history long *19 (see, Pasadena, nuisance actions Phillips v. e.g., City Cal.2d to, 104, 107-108) and by certain analogy may factual situations caus- apply ing as well personal injury as property for and damage negligence zoning violations. after Only sufficient facts are will the pleaded applicability the statute limitations be ascertainable.20
Conclusion reasons,
For the foregoing for judgment defendant on the cause or action for affirmed; inverse is condemnation the judgment dismissing nuisance, counts for and negligence violations is reversed and the zoning cause is remanded to the trial court for consistent with this proceedings opinion. J., Peters, J., Tobriner, J., C.
Wright, Kaus, J.,* concurred. presented 19We are not here with the more question liability difficult aof city violating for zoning its own laws. argues 20Defendant that appellants could not state a cause of action for counts III and IV because the trial property damage court found no personal injury that recovery by would be barred section 340 of the Code of Civil Procedure. As we have stated the effect of the statute of limitations on only counts III and IV can be determined appellants after are allowed to Appellants amend. requests made several findings for respect with personal injury damages but the trial court denied such requests. *Assigned by the Chairman of the Judicial Council. affirm the extent they herein to BURKE, J. concur with majority I action, cause the inverse condemnation for defendant on judgment and zoning the cause respect negligence reverse and remand dissent, however, reversal of the judgment I from the counts. violation Tort Claims view the California nuisance count for my dismissing from, liability governmental agencies immunizes Act clearly quite be under nuisance, specific as actionable insofar such nuisance may except itself. of the act provisions ap legislative indicated the “cornerstone”
As by majority, 815, which Code under the act is set forth in Government proach A (a) entity statute: “Except provided otherwise public provides: of an act or whether such arises out omission not liable for an injury, injury (Italics other or a person.” entity public public employee, Commission, which drafted and added.) The Law Revision California act, recommended sections of the of the various proposed adoption it the “basic Legislature statutory adopt approach” “should, enactment,” rather be hable as made liable specific entity only their activ liable ah caused by than “made being damages injuries (Recom conditioned statute.” as such is limited or ities except Com. 4 Cal. Law Revision mendation Relating Sovereign Immunity, that a of im (Jan. 1963) 811.) The commission reasoned grant Rep. basis a better upon “will munity subject exceptions provide specific calculated, since each which the financial burden of liability may enactment be evaluated terms of the can potential imposing (Id.) cost of such liability.” of language sub- commission recommended
Accordingly, adoption *20 815, identical section above. In its comment stantially following to quoted 815, that “In the following section the commission noted portions proposed division, there for the liability of this are sections many providing codes there are entities conditions. In other under governmental specified entities, e.g., few for the a provisions providing liability governmental that a [expressly entity Vehicle Code Section 17001 et declaring seq. public is hable for death or caused of motor injury by negligent operation [expressly author- vehicle an and Penal Cbde Section 4900 employee] claims for suffered by State izing against injuries persons pecuniary convicted and But there is no in the erroneously liability imprisoned]. of an there is no absence enactment such For declaring hability. example, nuisance, that entities are liable for section this statute declaring public entities even the California courts have held that though public previously this stat- statute. Under are to such even in the absence of subject liability ute, will have to be established right damages nuisance to recover for condi relating dangerous the Tort to provisions
under the Claims Act] [of may that public property applicable tions or under some other statute be (Id. added; to see Cal. situation.” italics also West’s Annot. p. Codes, Code, comment.) Gov.
The in the the words “some other statute” majority, by emphasizing sentence, that would have us believe the commission intended preceding to leave en open imposing liability possibility upon tities under the of Civil Code nuisance section 3479. provisions The several cases had such majority note that California prior imposed even section is its liability govern silent to though application which, it is mental entities. And this line of cases yet according precisely entities, commission, to the subject held that are “previously public statute,” such even liability absence and which [nuisance] commission to circumvent section adoption 815. sought above, As noted for suggested liability commission nuisance would have be established of the act under provisions relating i.e., conditions of dangerous public Government Code section property, 830 et The commission’s comment section 830 seq. regarding proposed its establishes that a be im conclusively intent would government entity mune from for nuisance Code under Civil section “Under liability 3479: law, nuisance; previous entities were for hable maintaining but under this statute liability conditions would constitute nui sance will have based to be on the somewhat more set standards rigorous Liability forth in this such conditions cannot imposed upon chapter. a nuisance theory because Section 815 provides public entities with im munity enactment, unless imposed an and there is no imposing liability enactment on a theory.” (Recommendation supra, Relating Cal. Law Sovereign Immunity, Revision Com. Rep., added; Codes, Code, italics see also Cal. West’s Annot. Gov. 830, and comment.) The are following entitled foregoing reports “substantial Court, Superior 815. Keeler v. weight” construing
2 Cal.3d 470 P.2d 40 A.L.R.3d ignore the majority wholly statement of the foregoing commission’s *21 intent. the also evident fact remain They ignore that if entities governmental liable a nuisance upon the Code general of Government theory, provisions section 830 conditions) et to are seq. (pertaining liability dangerous rendered largely It is a cardinal of inter- superfluous. statutory principle courts will pretation “The that the in enact- legislature presume a statute in an idle ing act. The is that it intended indulged presumption the Cal.Jur.2d, Statutes, statute (45 613.) to have some effect.” § p. the imposition the restrictions holding, upon the And under yet majority’s the Code of Government forth 835.4 through of set in sections liability act as the alleged negligent be circumvented easily by characterizing may stated As under Code section 3479. a “nuisance” suit Civil bringing negli- involving, ordinary Van tort situations “many Professor Alstyne, by be a complete which would otherwise immunity gence, nuisance.” defense, as within the of concept be construed may reasonably Com. Law Revision (A Rep. 5 Cal. Study Relating Immunity, Sovereign 229; 372- (Jan. 1963) Zyl Spiegelberg, Cal.App.3d see Van p. torts; not two nuisance are CalRptr. separate [negligence 689] is “a from tortious ordinary conduct]. nuisance of damage” species resulting of a case alleged good example The facts in the instant provide type or nuisance of tort situation which could be forced into either negligence mold, the option plaintiff. view that
The Van their Professor majority Alstyne support quote be and such “a suit for nuisance must find statutory support support may 933.) fail to com- (Ante, majority furnished Yet the p. 3479.” Van Alstyne’s Immediately remarks. following portion quoted plete “However, light legislative he intent states: majority, specific nuisance a statute such preclude provided by unless statute, submitted, view, deny condition dangerous the sounder it is would Code’s the Civil application public provisions require expressly nuisance applicable entities’ rest on statutory language Comment, entities. See . . . Law Revision Commission § added; (Italics Lia- Van Cal. Government Tort [quoted above].” Alstyne, (Cont. 5.10, 1964) 126-127.) Ed. Bar bility pp. cite certain cases decided enactment majority following
Tort Claims Act which the continued existence “impliedly recognized” however, cases, a nuisance action. None of these considered expressly in the the clear set forth above. As legislative history question light relied recognizes, Van two the three cases Alstyne citing upon “no found has been which undertakes careful majority, opinion analysis branch of the (Van this law.” Cal. Government Tort Alstyne, Liability (Cont. 5.10, Ed. Bar Supplement make the
Finally, majority disparate argument Legislature, would have legislation which by “rejecting” expressly proposed must liability, immunized entities therefore government have “decided to the commission’s to-bar suits .... reject [such] proposal it is manifest that intended to- allow such Legislature Consequently, of action if could tailored to meet the causes they specifications (Ante, the Civil Code.” such as section statutory provisions, *22 936.) not the the rejected Is it as just Legislature p. likely pro- view of the clear reviewed posal wholly unnecessary legislative history (Or new above? the died committee without ever simply proposal the main bodies of there exists a wide the That reaching Legislature?) range reasons not legislation adopted strongly possible why proposed to me that the mere fact affords useless tool for suggests rejection legislative intent. exploring positive
The 94 was the Senate Bill No. immunity provision addition, deleted In to be from the bill. only provision ultimately Legislature committee commission legislative rejected proposal eliminate (See certain situations. 9 Cal. design under immunity specified Law Com. Revision did not rejection Yet that Rep. influence our intent subsequent analysis concerning legislative probable act, 830.6. design underlying immunity provision California, Baldwin v. State 6 Cal.3d
491 P.2d If we drew no inferences in Baldwin the fact that had failed how are we Legislature adopt proposed legislation, justified so in this case? doing above,
As indicated rationale the commission’s underlying proposal to grant immunity subject government was to provide specific exceptions entities some basis for costs of evaluating potential liability. majority’s approach, namely, sanction under imposition provisions not en- statutory expressly government applicable tities, undermines that even rationale and esti- totally rough precludes mation of potential liability. view of section intent language express legislative of sections 815 and and the
underlying adoption underlying policy itself, Act I the Tort Claims find it intended that the Legislature inescapable to immunize entities from under for nuisance Civil Code section 3479. the trial court entered Accordingly, judgment properly in favor of defendant on nuisance cause of action. plaintiff’s
McComb, J., concurred. Sullivan, for a was denied June
Respondent’s petition 1972. rehearing J., J., Burke, did not therein. was of the that the participate opinion peti- tion should granted. notes It is obliterated in the sent to counsel for undeniable copy appellants^. a that the court’s order did authorize defendant to engage not pretrial others to certain items for process selecting exchange withholding its it resorted to defendant unilateral advantage. While appears the best to deter selectivity in the trial court exchange, position mine a of a was violation order and whether such violation pretrial preju dicial. occasions; Defendant tried to the issue of several on clarify compliance instance At the close of in each direct confrontation. appellants avoided trial when defendant moved court for on its one ruling compliance, stated he did not “consider such to have attorneys motion appellants’ court, had at basis.” The trial after any legal recognizing appellants no to strike that it was unusual that any time moved noted “not testimony, certain statements and actions are taken but ultimately.” never pursued the state of the record can court On we conclude trial cloudy only did ruled that either defendants violate the order or that appel pretrial lants were no error. us to longer Either asserting ground compels uphold the court’s determination. 6Compare, example, objections for the manner in which were made in two cases Morris, Regents by University appellants, cited 266 Cal. California Sacramento, 616, 630, Drainage App.2d etc. Dist. ex State Reclamation Bd. rel. 847], grounds, Cal.App.2d Cal.Rptr. v. Reed 67-68 mod. on other Morris, 754], Cal.App.2d counsel made a motion formal testimony; complete moved for exclusion of certain to strike. In Reed counsel admissibility”; Appeal a kind limited and the Court of court “ruled in favor of concluded that ruling on admissi virtue of the formal motion before the limited Here, bility however, objected sufficiently preserve appeal. on counsel had trial issue any objec appellants, kind there was never formal motion imprecise. tolerantly could most be characterized tions Nuisance a nuisance theory. Plaintiffs’ count asserted on second predicated had failed to- state a cause of Defendant claimed at that plaintiffs pretrial immediately for nuisance. At discussion action an in-chambers prior trial, rule count barred govern- defendant that the was argued 815. A was ruling mental in Government Code section immunity provided then, that section 815 reserved the issue until after trial and concluding on nuisance, the court dismissed nui- precluded government sance to state a cause of action action. failing By waters of tort treading murky immunity immerse us in an of the law described a half again once parties