HELEN G. PEREZ, Plaintiff and Appellant, v. CITY OF SAN BRUNO, Defendant and Respondent.
S.F. No. 24101
Supreme Court of California
Aug. 14, 1980.
27 Cal. 3d 875
Helen G. Perez, in pro. per., for Plaintiff and Appellant.
John G. Schwartz and Nagle, Vale, McDowall & Cotter for Defendant and Respondent.
Elwyn L. Johnson, City Attorney (Modesto), and George H. Eiser III, Deputy City Attorney, as Amici Curiae on behalf of Defendant and Respondent.
OPINION
MANUEL, J.—Plaintiff Helen G. Perez appeals from a judgment of dismissal entered following the granting of a motion for summary judg-
We here confront the question whether a municipality providing water, sewer, and garbage disposal services to its citizens and billing therefor by means of a single unified statement may constitutionally resort to the remedy of cessation of water service when a citizen, refusing to pay that component of the unified billing relating to garbage collection and disposal services but paying the other components thereof, fails to make full and complete payment for municipal services rendered.
The City of San Bruno, acting pursuant to its police power (
Acting pursuant to explicit provisions of state law (
Under currently applicable contractual provisions the contractor, the San Bruno Garbage Company, Inc., has agreed to “furnish all labor, material, and equipment required for the collection and removal of garbage [etc.] from all dwellings, business properties, and all other buildings and/or structures within the City,” to furnish its own dump
As further discussed below, the city, pursuant to section 14-1 of its city code (quoted ante) includes a charge for garbage collection and disposal on its unified monthly billing covering all “municipal services“—i.e., water, sewer, and garbage. The same section goes on to provide as follows: “No person shall fail or refuse to pay the municipal service charges provided for in this Code. [¶] If any person shall fail or refuse to pay the lawful charges, including both delinquent and current charges, for any municipal services, the water service to the premises, regardless of tenancy, shall be shut off.”
In summary the city‘s system, as we understand it, contemplates that one wishing to avail himself of the city‘s municipal services, after making application and deposit therefor, becomes entitled to receive all of such services; that the garbage collection and disposal aspect of the municipal services is to be performed by a private company under a contract binding it to remove garbage from all dwellings and other buildings in the city; that each such subscriber to municipal services is required to “engage” the company for this purpose; that the city includes, as a part of its unified billing for municipal services, a fee set by contract for garbage collection and disposal; and that such fees, when collected, are divided between the city and the private company on an 18/82 basis—the city having no liability to the company for uncollected fees.
Plaintiff, who alleges that she disposes of all garbage produced on her premises by means of sanitary recycling techniques, has since 1973 refused to pay that portion of the unified billing for municipal services which relates to garbage collection and disposal. She has made her position in this matter known to city authorities but has been informed that city regulations require use of and payment for garbage collection services by all city residents. Four legal actions have resulted, including that here before us. Two of these were small claims actions by the city,
It appears that in January 1976, the city, having failed to obtain payment from plaintiff relating to the garbage collection and disposal component of her bill for municipal services, shut off her water service; for reasons which do not here appear, service was restored approximately one month later and has continued to the present.1 In the instant action, filed after denial of a claim against the city, plaintiff seeks damages resulting from the one-month discontinuation of water service, which she claims was in violation of her constitutional rights. The city moved for summary judgment on the grounds “that there is no triable issue of material fact on these issues, and that the action... is barred by res judicata, collateral estoppel, and the valid and lawful exercise of police power as a matter of law.” The motion was granted, and plaintiff appeals from the ensuing judgment.
I
We do not believe that the instant action is barred by the doctrine of res judicata—which, generally speaking, “precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.” (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810 [122 P.2d 892].) Plaintiff‘s 1974 action for damages, insofar as it sought monetary relief against a threatened cessation of water service, was clearly premature, no such cessation having then occurred. Although the record before us does not
We do believe, however, that certain issues sought to be raised in the instant proceeding—namely those relating to the defendant city‘s power to require all residents to subscribe to and make payments assessed by its garbage disposal service whether or not they make actual use of that service—must be deemed presently foreclosed to plaintiff. Pursuant to that aspect of the doctrine of res judicata known as collateral estoppel or issue preclusion “[a]ny issue necessarily decided [by the final determination of a cause of action by a court of competent jurisdiction] is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action. [Citations.] The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. [Citations.]” (Bernhard v. Bank of America, supra, 19 Cal.2d 807, 810-811.) As indicated above, two small claims judgments have been rendered against plaintiff which necessarily determined her liability to make the subject payments; one of these was the subject of a subsequent appeal by her to the superior court, which it, following a trial de novo, affirmed. Included in the record before us is the judgment and memorandum of decision of the small claims court in this action; the court therein expressly addresses the issues here in question, noting plaintiff‘s contention relative to the effect of her nonuse of the city‘s disposal system and providing a careful and lucid explanation of the basis of liability, citing relevant authorities. Also contained in the record is the memorandum of decision of the superior court on appeal from the small claims judgment; the court therein, after a trial de novo, expressly holds “that the City was acting
In Sanderson v. Niemann (1941) 17 Cal.2d 563 [110 P.2d 1025], we held that whereas a judgment of the small claims court may operate to merge with or bar a subsequent proceeding on the same cause of action, it could not be given collateral estoppel effect with respect to common issues arising in a subsequent proceeding on a different cause of action. Our conclusion on this latter point was reached in view of the characteristics of informality inherent in the small claims proceeding. “... [T]here are no attorneys, no pleadings and no legal rules of evidence; there are no juries, and no formal findings are made on the issues presented. At the hearings the presentation of evidence may be sharply curtailed, and the proceedings are often terminated in a short space of time. The awards—although made in accordance with substantive law—are often based on the application of common sense; and the spirit of compromise and conciliation attends the proceedings.” (Id., at p. 573; see also
We did not address in Sanderson the question of the effect of an appeal by the small claims defendant to the superior court, and the affirmance by that court of the small claims judgment. We did, however, advert to a number of considerations relevant to a determination of this question. “There are a number of cases which illustrate the application of the doctrine [collateral estoppel or issue preclusion] to inferior courts such as justices’ and municipal tribunals, where such courts, though with lesser jurisdiction, nevertheless function as courts of law with some form of pleadings, and in accordance with legal rules of evidence and the right of representation by counsel. In such cases issues can be framed and decided and therefore may be given conclusive effect in a subsequent suit based on a different cause of action.” (17 Cal.2d at pp. 574-575.)
The statutes of this state provide, and have long provided, that when a losing defendant in a small claims action takes an appeal of the small
Even if it be assumed that the legal question of the city‘s power to impose charges in the indicated circumstances is one of such great public importance that the doctrine of collateral estoppel or issue preclusion should not be applied as a matter of policy (see City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 520, fn. 5 [162 Cal.Rptr. 327, 606 P.2d 362]; Chern v. Bank of America (1976) 15 Cal.3d 866, 872 [127 Cal.Rptr. 110, 544 P.2d 1310]; Louis Stores, Inc. v. Department of Alcoholic Beverage Control (1962) 57 Cal.2d 749, 758 [22 Cal.Rptr. 14, 371 P.2d 758]; Rest.2d Judgments (Tent. Draft No. 4) §§ 68; 68.1, subds. (b), (e), reporter‘s notes, pp. 43-44, 46-48), it is manifest that this issue has been properly decided below. It is well established that the city, in the exercise of powers expressly granted it in the Constitution (
II
The question of the kinds and nature of remedies available to cities and other local entities for the collection of charges imposed for utility services provided to citizens is one which has received substantial and explicit attention by the Legislature. Generally speaking, a general law city like defendant which chooses to provide such services itself rather than through formation of a special district is governed in this respect by the provisions of the Revenue Bond Law of 1941 (
Before doing so, however, we advert to a provision which appears to have relevance to all remedies available to a city which, like defendant, provides municipal sewer service among the services rendered by it to its residents. Under the provisions of
We turn to the matter of specific remedies.
(1)
(2) The lien procedure set forth in the Revenue Bond Law of 1941, which would appear to apply to all “enterprises” undertaken by a city or other “local agency,” is contained in
(3)
It is provided in
It would appear from the foregoing that the remedy invoked by defendant which is the subject of the instant action—i.e., unified billing of all city services accompanied by cessation of water service upon failure to pay the unified billing in full—is authorized by the general law of this state as well as by defendant‘s ordinances and codes. We are thus brought to the primary question before us: Whether such provisions may be applied in a manner consistent with constitutional due process guarantees (
III
The general rule applied by this and the United States Supreme Court in the examination of police-power enactments against the requirements of the state and federal due process clauses was recently stated by us in the following succinct terms: “In the exercise of its police power [the legislative body] does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute. (Nebbia v. New York (1934) 291 U.S. 502, 525 [78 L.Ed. 940, 949-950, 54 S.Ct. 505, 89 A.L.R. 1469]; Seagram & Sons v. Hostetter (1966) 384 U.S. 35, 47 [16 L.Ed.2d 336, 345, 86 S.Ct. 1254]; Galvan v. Superior Court (1969) 70 Cal.2d 851, 869 [76 Cal.Rptr. 642, 452 P.2d 930]; Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control (1966) 65 Cal.2d 349, 359 [55 Cal. Rptr. 23, 420 P.2d 735].)” (Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal.Rptr. 375, 584 P.2d 512].)
Leaving the matter of procedural fairness to one side for the moment, we believe that the stated standard is that which is properly applicable in determining whether the substantive requirements of the state and federal due process clauses have here been met. We recognize, of course, that legislation affecting certain specific rights—namely those which either have been afforded express constitutional protection or are of a character so fundamental or “implicit in the concept of ordered liberty” (Palko v. Connecticut (1937) 302 U.S. 319, 325 [82 L.Ed. 288, 292, 58 S.Ct. 149]) as to require equivalent protection (see, e.g., Roe v. Wade (1973) 410 U.S. 113, 129, 152-156 [35 L.Ed.2d 147, 163-164, 176-179, 93 S.Ct. 705]; Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678])—is subjected to a more searching level of scrutiny than that above indicated,¹¹ but we do not believe that the “right” to receive municipal water service may be classed in that category.¹² As the United States Supreme Court has recently stated, “the customer‘s right to continued [water] service is conditioned upon payment of the charges properly due,...” (Memphis Light, Gas & Water Div. v. Craft, supra, 436 U.S. 1, 11 [56 L.Ed.2d 30, 40].) In our view the determination of which charges are “properly due” in light of constitutional demands—and whose nonpayment may therefore justify a discontinuance of service—is to be made in light of traditional due-process standards. We therefore limit the scope of our inquiry to the question whether the legislative scheme set forth in the statutes and ordinances we have considered bears a reasonable relationship to a proper legislative goal.
It is manifest that the provisions here in question are directed toward a proper and legitimate public goal—i.e., the protection of public health. (See generally text accompanying fns. 2-4, ante, and authorities cited therein.) The question, then, is whether those provisions may be said to bear a reasonable relationship to that laudable goal. To state the matter in specific terms: May a legislative scheme which permits (1) unified billing for all municipal utility services relating to public health protection, and (2) termination of all or any of such services upon failure to make payment in full, be said to bear a reasonable relationship to the goal of public health protection?
The early cases in this area, generally speaking, looked not to the rationality of the unified system in light of the legislative goal but to the functional connection between the terminated service and that for which payment was withheld. Thus if it could be said that the matter for which payment remained due was “unrelated” or “collateral” to the
Between these two extremes lie cases in which both of the services involved are connected with the goal of public health protection but they are not functionally “interlocked” to the extent of water and sewer services. Here we encounter cases such as that at bar, involving the discontinuance of water service for nonpayment of garbage or sanitation charges. We have been able to discover only three cases of this particular kind (excluding the superseded federal district court decision in Uhl v. Ness City, Kansas, supra, 406 F.Supp. 1012—see fn. 10, ante.) In Garner v. City of Aurora (1948) 149 Neb. 295 [30 N.W.2d 917] the court, following the functional analysis, ignored the common public health aspect of both services and simply applied cases involving electric services, holding garbage collection to be “collateral” to or “independent” from water service and therefore precluding discontinuance of the latter for nonpayment of the former.
In two subsequent cases, however, the courts laid heavy emphasis on the fact that each of the two subject services formed a part of the city‘s unified public health and sanitation program, questioning the relevance of functional interdependence to the constitutional issue. “It is shown by this record,” the court said in Cassidy v. City of Bowling Green (Ky. App. 1963) 368 S.W.2d 318, “that for public health and sanitation purposes the City furnishes water service, sewerage service, and garbage disposal service. They are all inter-related and the City is under no obligation to furnish any or all of these services except upon the payment of reasonable charges. This public health program, while divided into sep-
In City of Breckenridge v. Cozart (Tex.Civ. App. 1972) 478 S.W.2d 162, the court, after reviewing both Garner and Cassidy, adopted the reasoning of the latter case. “Environmental conditions have changed radically since the Aurora case was decided in 1948,” the court noted. It adverted to a recent state statute authorizing discontinuance of any or all other utility services “[t]o aid in enforcing collection of fees for solid waste disposal service....” and held that the city‘s discontinuance of water service, under the terms of its own ordinance, resulted in no constitutional violation. (Id., at p. 165.)
We believe that the rationale of the Cassidy case, adopted in Cozart, is properly applicable here. The city, in the exercise of its police power, provides three municipal utility services—i.e., water service, sewer service, and garbage collection and disposal service—all of which bear a clear and demonstrable relationship to the goal of public health protection. Pursuant to express provisions of state law (
It is true, of course, that when a statutory or legislative scheme utilizes a means to reach its end and which is unduly harsh or exacts a penalty which may be deemed oppressive in light of the legitimate objectives sought to be achieved, it may be held to be violative of constitutional due process guarantees. (Hale v. Morgan, supra; Walsh v. Kirby (1974) 13 Cal.3d 95, 105-106 [118 Cal.Rptr. 1, 529 P.2d 33]; People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 642 [268 P.2d 723], and cases there cited.) Here, however, we are not concerned with a remedy in the nature of a penalty or exaction. Rather we deal with a system whereby a city, in furtherance of its police power and pursuant to statutory authorization, chooses to make the availability of all municipal utility services relating to public health protection contingent upon payment in full of a unified billing therefor. While those residents who do not choose to take part in the system in accordance with its terms may suffer serious practical consequences in the form of discontinued services, we cannot conclude that an unconstitutional deprivation results.
IV
In the case of Memphis Light, Gas & Water Div. v. Craft, supra, 436 U.S. 1, the United States Supreme Court held that when state law precludes the termination of utility service other than for good cause, there arises “a legitimate claim of entitlement’ within the protection of the Due Process Clause” (id., at pp. 11-12 [56 L.Ed.2d at p. 40]) requiring that a constitutionally adequate notice and hearing procedure be afforded prior to termination in order “to afford reasonable assurance against erroneous or arbitrary withholding of essential services” (id., at p. 18 [56 L.Ed.2d at p. 44]). The form of notice required in such cases is one which is “reasonably calculated’ to inform [customers] of the availability of ‘an opportunity to present their objections’ to their bills” (id., at p. 14 [56 L.Ed.2d at p. 42]); the necessary hearing is one which provides “an opportunity for the presentation to a designated
Because California law does not permit the termination of utility service to a customer without good cause (Schultz v. Town of Lakeport (1936) 5 Cal.2d 377, 381-382 [54 P.2d 1110, 55 P.2d 485, 108 A.L.R. 1168]), the requirements set forth in the Memphis case are fully applicable here.
Included in the record herein is a delinquency notice mailed to defendant sometime following the one-month termination of water service of which she here complains. We assume that a similar notice was sent her prior to the subject termination. The notice provides inter alia that “[t]he amount due for utilities [appearing on the notice] includes the amount, if any, of unpaid charges for water, sewer, and/or garbage service.” It also provides: “Local ordinance requires your account to be paid in full no later than the date noted below or the respective service will be discontinued without further notice (that is, failure to pay the amount due for utilities may result in the discontinuation of your water, sewer, and garbage service....)” A phone number is provided, to be called “if your bill is lost.” It is clear that this document did not provide the notice required by Memphis; it “was not ‘reasonably calculated’ to inform [plaintiff] of the availability of ‘an opportunity to present [her] objections” to her bill. (Memphis, supra, 436 U.S. at p. 14 [56 L.Ed. 2d at p. 42].)
It does not appear that city procedures at the time of the termination here in question provided a specific channel for pretermination review of a disputed bill with a designated employee empowered to resolve such disputes. In this respect as well, then, the city‘s procedures fell short of that required by the Memphis case.
In spite of the foregoing we are reluctant to reverse the instant judgment on the ground of the city‘s failure, in 1975, to provide the procedural protections required by the 1978 Memphis case. As we have indicated, the instant dispute dates back to 1973, when plaintiff first took the position that her nonuse of city garbage collection services should relieve her from that portion of her bill for municipal services which related to garbage collection. Since that time she has apparently
The judgment is affirmed.
Tobriner, J., Clark, J., and Richardson, J., concurred.
BIRD, C. J., Dissenting.—Today, this court holds that a city which enjoys a virtual monopoly in supplying a vital service (water) breached no duty when it cut off a homeowner‘s paid-for water supply for nonpayment of a garbage collection bill. I cannot agree.
Under the Constitution, a person is denied due process of law when a “governmental entity vested with broad administrative powers acts in an arbitrary manner so as to affect capriciously the property or property rights of persons subjected to its administrative controls.” (Walsh v. Kirby (1974) 13 Cal.3d 95, 105-106 [118 Cal.Rptr. 1, 529 P.2d 33]; see also
Although the majority state they recognize that due process may be violated when a statute “is unduly harsh or exacts a penalty which may be deemed oppressive in light of the legitimate objectives sought to be achieved...” (maj. opn., ante, at p. 893), they quickly conclude that the present ordinance does not impose such a penalty. Again, I cannot agree.
Here, the ordinance requires that “If any person shall fail or refuse to pay the lawful charges...for any municipal services, the water service to the premises, regardless of tenancy, shall be shut off.” (San
The arbitrary nature of the ordinance is further shown by the fact that water, clearly a necessity of life, is singled out for termination no matter which municipal service has not been paid. Further, the termination of water service is not interrelated nor the billing “unified” with other services. The ledger supplied by the city shows separate columns of amounts charged for garbage, sewer, and water services. Moreover, the city in filing suit for the back garbage charges implicitly admitted the severability of those charges from other items of the bill.
It is only to state the obvious to note that a person cannot exist without water. This court has a history of protecting necessities of life from arbitrary governmental interference. Even a prejudgment attachment scheme which affords notice of hearing and other procedural guarantees must exempt necessities from such attachment as an initial matter. (See Randone v. Appellate Department (1971) 5 Cal.3d 536, 563 [96 Cal. Rptr. 709, 488 P.2d 13]; see also 11 Cal. Law Revision Com. Rep. (1973) p. 724.)
A “law must not be unreasonable, arbitrary or capricious but must have a real and substantial relation to the object sought to be attained.” (Gray v. Whitmore (1971) 17 Cal.App.3d 1, 21 [94 Cal.Rptr. 904].) From the record before this court, the present ordinance fails to meet that test. Since the city has not shown that “there is no triable issue as to any material fact and that [it] is entitled to judgment as a matter of law” (
Newman, J., concurred.
MOSK, J., Dissenting.—I agree with the dissenting opinion of the Chief Justice that the San Bruno City Code section 14-1 requiring water service to be terminated for failure to pay charges for any municipal
The city has ample remedies to employ against a recalcitrant homeowner. It may obtain a civil judgment for an unpaid municipal service bill. That was done through small claims court, but curiously the city has not attempted to satisfy its judgment. It may also terminate that service for which payment has not been made. When it attempts, however, to shut off water—a necessity of life—to satisfy a debt for garbage collection, it transcends constitutional or statutory authority.
The statute upon which the majority rely is
The contention that water service, sewerage service, and garbage disposal service are interlocking components of a public health program has a certain superficial appeal. But the fact is that in this instance each is separately calculated, particularly the garbage collection which is undertaken by a private business enterprise and not by a department of the municipal government.
As the majority indicate, there are no cases on this subject in California and remarkably few anywhere. Perhaps that is because a general rule has long been accepted that a public utility corporation cannot refuse to render the service which it is authorized to furnish, because of some collateral matter not related to that service. This rule, and its specific application denying to a public service corporation any right to refuse its public service because the patron is in arrears with it on ac-
The only exception to the foregoing rule is if the services rendered by the utility or the municipality are identical in nature or so closely related that they may be said to interlock. The only case directly in point was decided by the Nebraska Supreme Court. In Garner v. City of Aurora (1948) 149 Neb. 295 [30 N.W.2d 917], a city collected garbage and trash and, like the instant case, submitted one bill to homeowners. For failure to pay the delinquent garbage collection portion of the bill, the water service to petitioner was terminated. The court enjoined the city from disconnecting water service, holding that garbage collection and water service are separate and distinct provisions. (Also see Owens v. City of Beresford (1972) 87 S.D. 8 [201 N.W.2d 890, 60 A.L.R.3d 707].)
Our Legislature has consistently frowned upon the arbitrary termination of essential utility services. Where improperly undertaken by a private landlord severe civil sanctions are authorized. (
Mrs. Perez, who has acted in propria persona throughout these proceedings, has undoubtedly annoyed city officials by insisting that one should not pay for municipal services unneeded and unused. Of such quiet heroics are martyrs born.¹ Two and a half decades ago Mrs. Rosa
I would reverse the judgment.
Newman, J., concurred.
Appellant‘s petition for a rehearing was denied September 11, 1980. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
Notes
It appears from the record that at the time of the subject discontinuation of water service plaintiff was delinquent on charges for municipal services of $73.48—all of which apparently related to garbage charges. As of February 1978 she was delinquent in the amount of $139.78.
The city officials apparently agree with Justice Oliver Wendell Holmes who once wrote: “I do despise a martyr. He is a pigheaded adherent of an inadequate idea.” (Howe, Holmes-Laski Letters (1953) p. 119.) And later he added that “martyrs were apt to be damned fools.” (Id., p. 227.) Yet history has demonstrated over and again that principled zealots frequently achieve an ultimate transition from obloquy to apotheosis.“‘Enterprise’ includes, but is not limited to, all parts of the enterprise, all appurtenances to it, and: [¶] (a) Lands, easements, rights in land, water rights, contract rights, and franchises;...” (