ROBERT SCHWOB, ET AL., V. COUNTY OF SANTA BARBARA, ET AL
ROBERT SCHWOB, ET AL., V. COUNTY OF SANTA BARBARA, ET AL
Case Number
23CV02404
Case Type
Hearing Date / Time
Wed, 05/01/2024 - 10:00
Nature of Proceedings
Demurrers (2)
Tentative Ruling
James F. Scafide of Figueroa Law Group, LLP for Plaintiffs and Petitioners Robert Schwob and Christine Schwob
Rachel Van Mullem / Christine M. Monroe of County Counsel’s Office for Defendant and Respondent County of Santa Barbara
Robert B. Forouzandeh / Melissa Rapp of Reicker, Pfau, Pyle & McRoy LLP for Defendants Jeff Crosby and Susan Crosby
RULINGS
The Crosbys’ demurrer to the SAPC is sustained with respect to the sixth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action, and is overruled with respect to the seventh, eighth, and ninth causes of action.
The County’s demurrer to the SAPC is sustained in its entirety.
As a result of the parties’ agreement that the Schwobs would not further amend their pleading beyond the SAPC, this action will therefore proceed with respect to the second cause of action for traditional mandamus against the County, and the seventh through ninth causes of action for nuisance against the Crosbys.
This case was filed on 6/6/23. The Court, sua sponte, sets a CMC for May 22, 2024, at 8:30am to set trial dates; counsel to meet and confer and let the Court know in their CMCSs what dates they can agree too.
BACKGROUND
Procedural background
Petitioners/Plaintiffs Robert Schwob and Christine Schwob (the Schwobs) filed their original petition and complaint on June 6, 2023. That pleading purported to state claims for both traditional (Code Civ. Proc., § 1085) and administrative (Code Civ. Proc., § 1094.5) mandamus against Respondent/Defendant County of Santa Barbara (County), and alleged causes of action for conspiracy and declaratory relief against all Defendants, and a cause of action for private nuisance against Defendants Jeff Crosby and Susan Crosby (the Crosbys).
County demurred to the petition/complaint on August 8, 2023. At a hearing conducted on September 20, 2023, the Court sustained the demurrer in part, and overruled it in part. Specifically, the Court found that the arguments raised by the demurrer did not preclude a limited claim for traditional mandamus challenging County’s action as an abuse of discretion, arising from the facts as alleged on the face of the petition/complaint, but that it did not state a claim for administrative mandamus. Since both mandamus claims had been alleged within a single claim, the Court therefore overruled the demurrer to the mandamus claim. The Court sustained County’s demurrer to the conspiracy cause of action since there is no separate cause of action for conspiracy. The Court also sustained County’s demurrer to the cause of action for declaratory relief, given that mandamus is legally the sole remedy where a challenge is to a statute or regulation’s application to the lands of the complaining party, rather than a challenge to an overarching, quasi-legislative policy set by an administrative agency. To the extent that the demurrer was sustained, leave to amend was provided to Plaintiffs/petitioners, to provide them with an opportunity to attempt to state valid claims.
While County’s demurrer was pending, the Crosbys also demurred to the Schwobs’ petition/complaint. The Court ruled on County’s demurrer, and the Schwobs filed their First Amended Petition and Complaint, prior to the hearing date on the Crosbys’ demurrer, thereby mooting that demurrer.
The Schwobs filed their First Amended Petition and Complaint (FAPC) on October 11, 2023. The FAPC continued to allege causes of action for both traditional and administrative mandamus against County, and a cause of action for declaratory relief, but added causes of action for private nuisance and public nuisance against the Crosbys and set forth causes of action for conspiracy to commit private nuisance, and conspiracy to commit public nuisance against all Defendants.
County filed a demurrer and motion to strike directed to the FAPC on November 13, 2023. The Crosbys filed a declaration of demurring party in support of automatic extension, pursuant to the terms of Code of Civil Procedure section 430.41 on November 14, 2023, and followed it with a demurrer filed on November 28, 2023. All matters were set for hearing on December 20, 2023. The Schwobs did not oppose the demurrers or the motion to strike, and on December 13, 2023, the Schwobs filed a motion for leave to file a Second Amended Petition and Complaint (SAPC), setting the hearing for January 10, 2024. At the hearing, and in light of the Schwobs’ pending motion, the Court sustained the demurrers and granted the motion to strike and granted the Schwobs leave to file their proposed SAPC. The SAPC was separately filed on January 5, 2024.
The Schwobs’ SAPC has ballooned into a fourteen cause of action pleading, including claims for: (1) administrative mandamus (Code Civ. Proc., § 1094.5) against County, (2) traditional mandamus (Code Civ. Proc., § 1085) against County, (3) failure to enforce law (grading) against County; (4) failure to enforce law (sports Court) against County; (5) failure to enforce law (noise) against County; (6) private nuisance—illegal sports Court, against the Crosbys; (7) private nuisance—pickleball play, against the Crosbys; (8) public nuisance—illegal sports Court, against the Crosbys; (9) public nuisance—playing of pickleball, against the Crosbys; (10) conspiracy to commit private nuisance—illegal sports Court, against all Defendants; (11) conspiracy to commit private nuisance—playing of pickleball, against all Defendants; (12) conspiracy to commit public nuisance—illegal sports Court, against all Defendants; (13) conspiracy to commit public nuisance—playing of pickleball, against all Defendants, and (14) declaratory relief, against all Defendants. [Note: The Court has set forth the causes of action in the order they appear in the body of the SAPC, which does not align with the causes of action as they are listed on the face of the SAPC.]
The SAPC alleges that the Schwobs and the Crosbys own property whose rear property lines adjoin, and that in December 2020, the Crosbys constructed a 31’x60’ Court on which they play pickleball. The Montecito Land Use Development Code (MLUDC) would define it as either a Sports Court [“structure which consists of a hardscape or other surface having a minimum size of 20 feet by 50 feet that is utilized in connection with a flat game Court structure devoted to recreational purposes including basketball, handball, tennis, and volleyball but excluding bocce ball Courts, lawn bowling Courts and similar facilities, patios, and areas used for driveways or parking of vehicles”] or private Residential Recreation Facility [“privately-owned, noncommercial recreation facility for residential project or neighborhood residents. . . .”]. It falls within the definition of a Structure [“Anything constructed or erected, the use of which requires location on the ground or attachment to something located on the ground, excluding trailers and sidewalks”]. [MLUDC 35.500.020] Because the Crosby property sloped toward the house, the Court was constructed using fill dirt and a raised footing, such that one corner was raised 32 inches so that the Court would sit level. Since it was not flat work, it required a permit. [MLUDC 35.420.040 B.14.b] It was set within 8” from the rear lot line, and 7’8” from the northern side lot line. It also violated County’s cumulative square foot maximum of 30% of the rear setback of all structures in a rear setback.
On top of the raised footing, the Crosbys constructed a 10’ fence. A permanent basketball hoop and backboard and a pickleball net were installed. It was later painted with pickleball Court lines.
The SAPC further alleges that the Schwobs are unaware of any similar structure in the County that has been allowed to exist as a patio or other flatwork, since its size and dimensions qualify it as a structure. From its construction and into 2022, the Crosbys and their guests regularly played pickleball through the day and into the evenings, causing unreasonable disturbance to anyone on the Schwobs’ property, and especially into their bedroom, which was located 30’ from the Court.
On January 26, 2022, after numerous complaints by the Schwobs and other neighbors, County staff visited the property, resulting in a Notice of Violation issued on February 11, 2022. The Notice stated that the pickleball Court exceeded “the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback.” The Notice also found that the fence violated provisions of the MLUDC. It cited §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c) as to the Court, and §§ 35.400.040.A, 35.430.070.C, and 35.430.070 Table 3-2 as to the fence. The Notice stated the Crosbys had to either remove or relocate the Court, and with respect to the fence, remove it, reduce its height, or apply for a permit.
The SAPC alleges that, in response, the Crosbys’ contractor informed County that they had consulted with County staff and been advised that neither the flatwork nor the fencing required a permit. County granted an extension of time for the Crosbys to review their options for abatement, enact a plan, and complete abatement, on condition that the Crosbys ceased the use of the structure until the violation was either abated or brought into compliance with the MLUDC. However, Crosbys continued to play pickleball during the extension period. County granted an additional extension of time for compliance with the Notice of Violation, to permit the Crosbys to resurface the Court to remove the stripes and other markings, to remove all equipment, structures, and improvements indicative of use as a sports Court, and to move the fencing to be at least 5’ away from the retaining wall and reduce its height to 6’ or less as measured from the natural grade. Neither the 5’ fence relocation, nor removal of the pickleball net or basketball pole were ever accomplished. In apparent response to yet another Crosby request for more time, County stated the same conditions (removal of improvements indicative of use as a sports Court, relocation of fence, and reduction of fence measured from the natural grade) and reiterated that use of the sports Court must cease immediately. Even so, the Crosbys continued to play pickleball during that period.
In response to the Notice, the Crosbys removed the permanent pickleball net, painted over the stripes, and lowered the fence height to 6’. They continued to play pickleball by taping pickleball lines and using a portable net.
County conducted a site investigation on September 9, and issued a second Notice of Violation on that date, related to the Court. In that notice, County noted the Crosbys’ choices were to remove the Court or convert it into a patio, which would require removal of all the lines indicative of use as a sports Court and removal of the permanent net. The Schwobs contend there is nothing in the MLUDC that would permit such a structure. The Crosbys, with knowledge of the County, continued to play pickleball on the surface, through using tape to indicate boundaries, and using the movable net.
The SAPC quotes provisions of Section 35.500.020.A.2 which define “Accessory Use” [“a use that is customarily incidental, appropriate and subordinate to the use of the principal structure, or to the principal land use of the site and that does not alter the principal use of the lot or adversely affect other properties in the vicinity”] and “Accessory Residential Structure or Use” [“Any use and/or structure that is customarily a part of, and clearly incidental and secondary to a residence, and does not change the character of the residential use” and which lists “tennis and other onsite sports Courts” as examples].
The Schwobs allege County has allowed for existence of an “other onsite sports Court” without consideration for how it will “adversely affect other properties in the vicinity,” thereby ignoring the obligations and duties imposed on it by the MLUDC. It ignored the MLUDC and allowed the Crosbys to install and maintain a pickleball Court, knowing that the Schwobs were complaining about the code violations and nuisance created by playing pickleball. Nothing done by the Crosbys abated the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback. While County required that all sports equipment be removed from the site, the Crosbys have continued to play pickleball. While County initially required there be no evidence of sports equipment and that the fence be relocated 5’ inward, it later ignored the requirements, and allowed the sports Court to continue to exist, without a permit.
The Schwobs then allege that the Crosbys’ pickleball play unreasonably interferes with the enjoyment of their property. The SAPC notes that researchers have recorded peaks of 85 dBA from more than 50’ away from a pickleball Court. The Schwobs’ property has been subjected to regular noise and disturbance from the Court, 7 days/week. Noises from the Court are audible form the interior of the Schwob home, interfering with conversation and peaceful enjoyment of the home. The noise from the Court is “objectionable” from 300’ in all directions. Consequently, the Schwobs’ use of their property is substantially diminished, they have suffered stress and anxiety, and have suffered economic hardship. By allowing the structure to remain, while knowing the Crosbys continue to use it to play pickleball, County has conspired to accommodate an illegal structure.
Based upon these general allegations, the Schwobs proceeded to allege their two claims in mandate pursuant to their petition, and twelve causes of action in their complaint.
Demurrers
On February 13, 2024, the Crosbys demurred to the SAPC, setting the hearing for March 27, 2024. The parties subsequently stipulated to continue the hearing on the Crosbys’ demurrer to April 17, 2024. County filed its demurrer to the SAPC on February 28, 2024, also setting the hearing on the demurrer for April 17, 2024. Both demurrers were accompanied by requests for judicial notice.
The Schwobs have opposed both demurrers.
On the Court’s own motion, the hearing on the demurrers was continued to May 1, 2024.
ANALYSIS
The Crosbys demurrer to the SAPC will be sustained as to the sixth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action, and will be overruled as to the seventh, eighth, and ninth causes of action.
The County’s demurrer to the SAPC will be sustained in its entirety.
The Court is aware that the parties have agreed among themselves that the Schwobs would not further amend their SAPC, regardless of the outcome of the demurrers. That is a matter between the parties. To the extent that the parties consider it an enforceable agreement, precluding the Schwobs from making any showing of an ability to further amend to cure the noted defects, the Court will not allow further leave to amend, regardless of whether any possibility exists that one or more of the Schwobs claims which did not survive demurrer could potentially have been amended.
This action will move forward on the second cause of action for traditional mandamus against the County, and the seventh, eighth, and ninth causes of action for nuisance against the Crosbys.
Judicial Notice
A. Request by the Crosbys.
In support of their demurrer, the Crosbys seek judicial notice of Letters dated April 3, 2023, and April 18, 2023, to Geoffrey Crosby from the County of Santa Barbara Planning and Development Department, both signed by Paul Hannah, and both referencing zoning enforcement Case No. 22ZEV-00000-00165, as records of a Court of record (Evid. Code, § 452, subd. (d)), and facts and proposition not reasonably subject to dispute which are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, § 452, subd. (h).) The referenced letters advise Geoffrey Crosby that the respective MLUDC violations had been fully abated.
As apparently recognized by the Schwobs, the documents for which judicial notice was requested are not Court records and are not subject to judicial notice pursuant to Evidence Code section 452(d), and the relevant provision is Evidence Code section 452(c) [official governmental acts]. The Schwobs apparently do not object to the overall taking of judicial notice of the documents but have objected on the basis that the taking of judicial notice of the official acts of a governmental entity does not require the acceptance of the truth of the factual matters reflected in those acts.
The Court will take judicial notice of the existence of the violation abatement letters but will not take judicial notice of the truth of the matters set forth in the letters, i.e., that the violations were in fact abated.
B. Request by County
In support of its demurrer, County seeks judicial notice of Santa Barbara County Code, Chapter 24A (Administrative Fines), excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code, and excerpts from the Santa Barbara County Code, Grading Code, as legislative enactments by the County of Santa Barbara. (Evid. Code, § 452, subd. (b).) The request attaches copies of the provisions for which judicial notice is requested, as required by California Rules of Court, Rule 3.1306(c).
The Schwobs have not opposed or responded to the County’s Request for Judicial Notice. Judicial notice of these local enactments is legally proper, and the Court will take judicial notice of the provisions.
Demurrer standards
The Court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that Plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The Court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)
Crosby demurrer
Nuisance-based causes of action (6th through 9th cause of action).
The Schwobs allege separate causes of action for private nuisance (the 6th and 7th causes of action) and for public nuisance (the 8th and 9th causes of action) against the Crosbys, based upon their alleged construction and use of an illegal, unpermitted sports Court (6th and 8th causes of action), and based upon the noise created from pickleball play on the Court (7th and 9th causes of action). The Schwobs contend further that, under the terms of the MLUDC, the fact that the Court is unpermitted and illegal renders it a nuisance per se. The Crosbys have demurred to each of the nuisance-based causes of action.
Nuisance Law
Pursuant to Civil Code section 3479, anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. Pursuant to Civil Code section 3480, a public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. A “private nuisance” is defined to include any nuisance not covered by the definition of a public nuisance (Civ. Code, § 3481), but also includes some public nuisances. It is possible for a nuisance to be public and, from the perspective of individuals who suffer an interference with their use and enjoyment of land, to be private as well. (See Civ. Code, § 3493.)
The basic concept underlying the law of nuisance is that one should use one’s own property so as not to injure the property of another. (Lussier v. San Lorenzo Valley Water District (1988) 206 Cal.App.3d 92, 100.)
Private Nuisance
The latter two elements, i.e., that the damage must be substantial and the interference with the protected interest must be unreasonable, are essential because, as recognized the California Supreme Court in San Diego: “Life in an organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of ‘give and take, live and let live,’ and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person's conduct has some detrimental effect on another. Liability ... is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation. (San Diego, supra, 13 Cal.4th at pp. 937-938, quoting Rest.2d Torts, § 822, com. g. p. 112.)
With respect to the requirement that the invasion of Plaintiff’s interest be “substantial,” the degree of harm is judged by an objective standard, i.e., what effect the invasion would have on persons of normal health and sensibilities living in the same community. If such persons would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncrasies of the particular Plaintiff may make it unendurable to him. This is a question of fact which turns on the circumstances of each case. (San Diego p. 938.)
The primary test for determining whether the invasion is “unreasonable” is whether the gravity of the harm outweighs the social utility of the Defendant’s conduct, taking a number of factors into account. The standard is objective—the question is not whether the particular Plaintiff found the invasion unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. This is a question of fact. (San Diego, supra, 938-939.)
Whether or not a use in itself lawful constitutes a nuisance depends upon a number of circumstances: locality and surroundings, the number of people living there, the prior use, whether it is continual or occasional, and the nature and extent of the nuisance and of the injury sustained therefrom. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) The law related to private nuisance is one of degree, and whether the use is reasonable or not is an inference to be drawn from all of the facts. (Ibid.) The determination whether something, not deemed a nuisance per se, is a nuisance in fact in a particular instance, is a question for the trier of fact. (Id. at p. 1231.)
Excessive and inappropriate noise may under certain circumstances constitute an interference with the present enjoyment of land amounting to a nuisance. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 264, citing Schild v. Rubin (1991) 232 Cal.App.3d 755, 764; Morton v. Superior Court (1954) 124 cal.App.2d 577, 586; and Wilms v. Hand (19451) 101 Cal.App.2d 811, 812, 815-816.)
A nuisance may be both public and private, but to proceed on a private nuisance theory, the Plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public. (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance. Further, the interference need not directly damage the land or prevent its use to constitute a nuisance. (Ibid.)
Public Nuisance
As a general rule, only public prosecutors authorized by statute may sue for a public nuisance on behalf of the community. (Civ. Code, § 3494; Code Civ. Proc., § 731.) However, a private party can maintain an action based on a public nuisance if it is specially injurious to himself, but not otherwise. (Civ. Code, § 3493.) To have standing to pursue a public nuisance as a private person, the Plaintiff must adequately allege the existence of a nuisance affecting the community at large, and also that they sustained a special injury, distinct in some way from the more general harm. (Civ. Code, §§ 3480, 3493; Rincon Band of Luiseno Mission Indians of the Rincon Reservation California. v. Flynt (2021) 70 Cal.App.5th 1059, 1102 (Rincon Band).) The harm to the private Plaintiff must be different in kind from that suffered by other members of the public exercising the right common the general public that was the subject of interference. (Id, at p. 1103.) However, when the same nuisance constitutes both a private nuisance and a public nuisance, there is no requirement that the Plaintiff suffer damage different in kind from that suffered by the general public. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1551 [the Plaintiff does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree].)
Nuisance per se
The concept of nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1206.) Ordinarily, the determination whether something constitutes a nuisance requires consideration and balancing of a variety of facts. However, where the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made, and its mere existence is said to be a nuisance per se; the object, substance, activity, or circumstance at issue must be expressly declared to be a nuisance by its existence, by some applicable law. (Id, at p. 1207.)
Not every violation of a statute creates a private nuisance per se. Although a nuisance may be a violation of law, the violation of law by itself does not create a nuisance per se unless expressly declared as such by the particular statute ordinance. (See Biber v. O’Brien (1934) 138 Cal.App. 353, 357-358.)
Sixth and Seventh causes of action for private nuisance
6th cause of action for private nuisance based upon the existence of alleged sports Court.
The Court will sustain the demurrer to the sixth cause of action for private nuisance, based upon the existence of the alleged sports Court.
The essence of the cause of action is that the very existence of the sports Court/patio is a nuisance, because it is allegedly “unpermitted and illegal construction.” The cause of action contains no allegations to support that the simple existence of an unpermitted or illegal sports Court/patio in any way interferes with the Schwobs use or enjoyment of their property, causes them to sustain “substantial actual damage” in any way, or is an “unreasonable interference with the use and enjoyment” of their property. It is clearly the Crosbys’ use of the Court which allegedly causes harm to the Schwobs, not its mere existence. The claim meets none of the required elements to constitute a private nuisance. Particularly given that both substantial invasion and unreasonable interference are assessed on an objective standard, the Court cannot find that the mere existence of a sports Court/patio—without more—would substantially annoy or disturb persons of normal health and sensibilities living in the same community, nor could it find that reasonable persons generally, looking at the whole situation impartially and objectively, would consider the interference caused by the mere existence of the flat surface Court/patio to be unreasonable.
The Schwobs allege in the SAPC, and argue in their opposition, that the sports Court constitutes a private nuisance as a nuisance per se. They rely upon the provisions of MLUDC Section 35.498.050.A.1 in support of their “nuisance per se” theory, but that provision by its very terms relates solely to public nuisance, not private nuisance. That subdivision carries the heading “Public Nuisance,” and provides: “[a]ny structure which is altered, constructed, converted, enlarged, erected, maintained, moved, or setup in conflict with the provisions of this Development Code, and any use of any land, premise, or structure conducted, established, maintained, or operated in conflict with the provisions of this Development Code, shall be and the same is hereby declared to be unlawful and a public nuisance.” [Emphasis added.] To the extent Section 35.498.050.A.1 has any relevance to the Schwobs’ claim that a nuisance per se exists, it is therefore irrelevant to any private nuisance cause of action.
As noted above, the mere violation of a statute or ordinance, including a zoning ordinance, does not suffice to create a nuisance per se. Certainly, there are circumstances wherein a private party may enjoin another property owner who violates a zoning ordinance as a private nuisance, such as when he or she suffers a special injury to person or property of a character different in kind from that suffered by the public. (See Pacific Homeowners’ Association v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152, 1153.) However, under the facts alleged in this cause of action, no such special injury or property has been alleged by the Schwobs, who rely solely upon their alleged unpermitted and illegal status of the sports Court/patio to support their cause of action for private nuisance.
Because the cause of action fails to allege facts sufficient to constitute a private nuisance, the Court will sustain the demurrer to the sixth cause of action for private nuisance, based upon the mere existence of an allegedly “illegal” or “unpermitted” sports Court/patio, without leave to amend.
7th cause of action for private nuisance based upon pickleball noise.
The Court will overrule the demurrer to the seventh cause of action for private nuisance, based upon the pickleball noise emanating from the Crosbys’ property.
The cause of action incorporates by reference all other allegations of the SAPC, which include allegations that the area in which both properties are located is a highly valued and desirable neighborhood due to its peaceful, rural character, which can be enjoyed year-round. (¶ 20) It further explains the location of the Schwobs’ property in relation to the Crosbys’ property, and how the sports Court/patio is located less than 30 feet from the Schwobs’ bedroom. (See ¶¶ 2, 5, 21 (photograph), 27)
The SAPC further alleges that throughout 2020, 2021, and into 2022, the Crosbys and their family, guests, or clients played pickleball regularly through the day and into the evenings, and that the noise from the games causes considerable and unreasonable disturbances to anyone on the Schwobs’ property, especially in their bedroom which is located less than 30 feet from the sports Court. (¶ 27) It alleges that the Crosbys’ pickleball play unreasonably interferes with their enjoyment of their property, and despite their communications with the Crosbys, the Crosbys have continued to play pickleball on the Court. (¶ 58) It includes substantial allegations with respect to research showing how loud the sound of a pickleball paddle hitting one of the sport’s hard plastic balls can be, even more than 50 feet away from the Court, how sounds of that decibel level exceed OSHA standards and should be avoided and can cause hearing damage. (¶ 59) It further alleges that the Schwob property has been subjected to regular noise and disturbance from the Court, which is in use seven days a week, and which destroys the Schwobs’ peaceful enjoyment of their entire outdoor area and within portions of their home. It describes the noises created as “piercing,” and audible from within their home, of such a level as to interfere with conversation. (¶ 60) It alleges that the Crosbys have played pickleball unabated, creating more frequent and more intrusive noise. (¶ 61)
Within the seventh cause of action itself, the SAPC alleges that the Crosbys’ operation of the Court, approximately 30 feet from the Schwobs’ bedroom, is an ongoing problem that causes extreme discomfort and annoyance, and which significantly disrupts the Schwobs’ ability to use and enjoy their property. (¶ 107) The noise destroys the peaceful use of their entire outdoor spaces, and the tranquility of their bedrooms, and is audible throughout their property. (¶ 108) The noise from the Court is so intrusive that it is even objectionable 300 feet from the Court. (¶ 109). It alleges that the nuisance created by the noise has been ongoing, and in spite of requests made to the Crosbys for its abatement, the Crosbys continue to refuse to abate the nuisance. The Schwobs believe the Crosbys have intentionally continued to play pickleball so as to continue the damage to the Schwobs. (¶ 113) The harm renders their home and yard unusable. (¶ 115)
In demurring to the cause of action, the Crosbys contend that the allegations are insufficient to support the conclusions that the pickleball noise substantially interfered with the Schwobs’ use and enjoyment of their property, or that the interference was unreasonable, and that the seventh cause of action is therefore insufficiently alleged.
The Court disagrees. As noted above, excessive and inappropriate noise may, under certain circumstances, constitute an interference with the present enjoyment of land amounting to a nuisance. Given the allegations with respect to the close proximity of the pickleball Court to the Schwob property, and particularly with their bedroom, along with the allegations of the level of noise created by hitting a pickleball with a pickleball paddle, that pickleball play has occurred seven days a week, throughout each day and into the evening hours, the Court finds that the Schwobs have sufficiently alleged a cause of action against the Crosbys for private nuisance arising from the noise made by the persistent play. Based upon the allegations made by the Schwobs, the issues of whether their damage was substantial and the interference with their use and enjoyment of their property was unreasonable are questions of fact for resolution by the trier of fact.
The Court will therefore overrule the Crosbys’ demurrer to the seventh cause of action for private nuisance.
Demurrer to eighth and ninth causes of action for public nuisance
Eighth cause of action for public nuisance based upon existence of sports Court.
The Schwobs’ eight cause of action if for public nuisance based upon the existence of the sports Court/patio. As noted with regard to their sixth cause of action for private nuisance arising from the mere existence of the sports Court/patio, their SAPC fails to allege any facts to support the conclusion that the simple existence of the sports Court/patio in any way interferes with the Schwobs use or enjoyment of their property, causes them to sustain “substantial actual damage” in any way, or is an “unreasonable interference with the use and enjoyment” of their property. In that manner, the SAPC failed to allege a private nuisance.
As noted above, a public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, and just as is true with private nuisance, the interference must be both substantial and unreasonable, measured by an objective standard. Further, in order for a private person to sue for public nuisance, the person must allege that they sustained a special injury that is distinct in some way from the general harm. Under these general public nuisance standards, given the failure to allege any manner in which the mere existence of the sports Court/patio causes an interference which is both substantial and unreasonable to the public or community, as well as the failure to allege any harm suffered by the Schwobs that is distinct in some way from the general harm suffered by the public, the SAPC also fails to state a cause of action for public nuisance.
Once again, however, the Schwobs in their opposition have relied upon the provisions of MLUDC Section 35.498.050.A.1 in support of a “nuisance per se” theory. (See Opposition at pp. 6-7.) They cite the provision, and generally contend they are alleging “a violation of the Code” which would necessarily make the Court and the fence a nuisance per se. The opposition does not explain which provision or provisions of the MLUDC they are relying on in order to support a nuisance per se claim.
As this Court noted above, under the nuisance per se theory, if a legislative body with appropriate jurisdiction, in the exercise of its police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance, no further inquiry beyond the existence of the object, substance, activity, or circumstance need be made, and its mere existence is a nuisance per se. Section 35.498.050.A.1, relied on by the Schwobs to support their nuisance per se theory, states:
“Any structure which is altered, constructed, converted, enlarged, erected, maintained, moved, or setup in conflict with the provisions of this Development Code, and any use of any land, premise, or structure conducted, established, maintained, or operated in conflict with the provisions of this Development Code, shall be and the same is hereby declared to be unlawful and a public nuisance.”
Since the Schwobs’ opposition papers did not explain their nuisance per se theory, this Court is forced to independently examine the allegations of the SAPC, in order to determine whether it alleges sufficient facts to establish the existence of a violation of the MLUDC, such that Section 35.498.050.A.1 could have any application, and render the simple existence of the alleged sports Court a public nuisance without any further inquiry into whether its existence actually causes any harm. .
The SAPC alleges In support of the contention that the sports Court/patio is in violation of the MLUDC, such that Section 35.498.050.A.1 could have any application, the SAPC alleges that the Crosby’s Court meets the MULDC definition of both a “Sports Court” and a “Private Residential Recreation Facility” (¶ 21, citing MLUDC § 35.500.020); the definition of a “Structure” (¶ 22, citing MLUDC § 35.500.020); that because the Court is situated on a raised footing, including a corner raised more than 32 inches, it is not flat work and required a permit (¶ 23, citing MLUDC § 35.420.040.B.14.b); that it violates the County’s cumulative square foot maximum of 30% of the rear setback of all structures in the rear setback (¶ 23); that the Notice of Violation for the sports Court itself identified that the MLUDC §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c) (¶ 28); these same three sections were identified by County in the second Notice of Violation directed toward the sports Court (¶ 47); that nothing in the MLUDC would permit the structure to be converted to a patio (¶ 48-49, no provision cited); that the Court is an “accessory use” which the MLUDC requires only be allowed if it does not adversely affect other properties in the vicinity and that County has allowed existence of an “other onsite sports Court” without consideration of how it would adversely affect other properties in the vicinity (¶¶ 53-54, citing § 35.500.020); that the 30% setback violation still exists today (¶ 56); that County has allowed the Court to continue to exist without requiring a permit (¶ 57).
Section 35.500.020 only contains definitions of the referenced terms (“Sports Court,” “Private Residential Recreational Facility,” “Structure,” “Accessory Use,” etc.) Section 35.400.040.A merely provides that it is unlawful to construct any structure except in compliance with the MLUDC. Section 35.420.040.A sets forth permit exemptions and provides that the identified activities and structures are exempt from planning permit requirements only when the use, activity, or structure is established and operated in compliance with setback and other requirements, or when a permit or approval required by regulations other than the MLUDC is obtained. Section 35.442.020.B.4.a.(1)(c) sets forth setback requirements for detached accessory structures and permits such structures to be located in the rear setback provided that the cumulative footprint of all accessory structures, including accessory dwelling units, that encroach into the setback does not exceed 30 percent of the required rear setback.
The thrust of the Schwobs’ argument therefore appears to be that construction of the sports Court required a permit and could not be legally permitted to exist as constructed by the Crosbys, because its existence, coupled with a subsequently constructed ADU, caused the Crosbys property to exceed the 30% rear setback limitation. (See Exhibits C, D, F, H, I, to SAPC) The original Notice of Violation (Exhibit C), provided the Crosbys only with abatement options to either remove the Court, or to move the Court out of the rear setback, so that it and the ADU combined would be less than or equal to 30% of the total area of the rear setback. The second Notice of Violation (Exhibit I) provided the Crosbys with abatement options of either removing the sports Court, or converting it into a patio, under which they would be required to remove all lines from the surface indicative of use as a sports Court and remove the permanent tennis net.
The Schwobs apparently take issue with County’s patio conversion abatement option and contend that regardless of whether the Crosbys have removed the permanent indicia of a sports Court (striping and permanent net), it remains a “sports Court” under the MLUDC, the presence of which violates the rear setback structure limitation, and is therefore illegal and must be removed.
The Court has not taken judicial notice of the truth of the facts set forth in the letter of which the Crosbys have requested judicial notice, and therefore the actual “abatement” of the violations, and/or the fact that the County considers the sports Court violations to have been abated by the Crosbys’ removal of the permanent indicia of a sports Court, are not facts which can be considered in resolving the demurrer. Certainly, however, the Schwobs themselves attached to their SAPC and incorporated into its allegations the Notice of Violation, in which the County offered them the option of removing all permanent indicia of a sports Court (permanent net, painted striping, etc.) as one alternative for abating the nuisance. The reason this would be a possible alternative in the first place is because the definition of a “Sports Court” under the MLUDC excludes patios, and patios are not considered “Structures” which are considered in evaluating the 30% rear setback limitation.
The difficulty in resolving the demurrer to this claim therefore appears to come down to the fact that the Schwobs contend the County could not have properly and legally exercised its discretion to find that the violations have been abated by its conversion to a “patio” through the removal of the sports Court indicia, and that the continued existence of the sports Court is in violation of the MLUDC. In that manner, the conclusion as to whether a nuisance per se claim could exist against the Crosbys hinges upon the ultimate resolution of the second cause of action for mandamus (which is not the subject of any demurrer), which challenges the County’s exercise of discretion in failing or refusing to commence an enforcement action against the Crosbys with respect to the allegedly illegal sports Court.
As this Court’s discussion of the traditional mandamus cause of action with respect to County’s demurrer to the Schwobs’ original petition and complaint made apparent, the resolution of that issue is not a quick and simple one and will require a detailed analysis. It may very well be that this Court finds in favor of County’s exercise of discretion and determines that the MLUDC violations were abated by the actions taken by the Crosbys, and no enforcement action was warranted. If that occurs, it currently appears to the Court that there could be no basis for a nuisance per se claim by the Schwobs against the Crosbys, given that such a conclusion would preclude any finding that the construction was in conflict with the MLUDC, and therefore within the terms of its public nuisance proclamation for violations.
In any event, it does not appear to the Court that the Crosbys’ demurrer to the public nuisance cause of action based upon the mere existence of the sports Court on their property has met the burden of showing that no cause of action has been stated on the facts alleged. In failing to meet that burden, the Court is unable to do anything other than overrule the demurrer to the cause of action at this time.
Ninth cause of action for public nuisance based upon pickleball noise.
Certainly, no nuisance per se has been alleged because there are no allegations that would support a finding that the noise created by the pickleball Court violates any provision of the MLUDC. The Court must therefore analyze the SAPC and its ninth cause of action to determine whether they contain sufficient facts to allege a prima facie cause of action for public nuisance based upon excessive noise.
The SAPC contains allegations that pickleball noise can reach peaks of 85 decibels from more than 50 feet away, and that noise levels greater than 80 decibels should be avoided and greater than 90 can cause hearing damage. (¶ 59) It contains allegations that the noise from the Crosbys pickleball Court extends and is intrusive from about 300 feet away. (¶ 60) It provides a photograph of the location of the pickleball Court vis-à-vis the Schwobs home (¶21), noting that the Court is less than 30 feet from their bedroom. (¶¶ 27, 61)
As noted above, a public nuisance is one which affects an entire community or neighborhood, or any considerable number of persons which, like private nuisance, must involve an interference that is both substantial and unreasonable. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.) Certainly, there may be questions as to how many neighbors have been impacted by the Crosbys’ pickleball play to the extent that they have suffered substantial an unreasonable interference with the use and enjoyment of their respective properties, and whether that number of neighbors is sufficient to establish the existence of a public nuisance arising from the pickleball noise. However, those are not questions susceptible to resolution on demurrer, and are questions of fact for resolution by the trier of fact.
That leaves the issue of the Schwobs’ standing to pursue the public nuisance cause action. Of course, in order for a private person to have standing to maintain an action for public nuisance, he or she must ordinarily not only allege facts sufficient to establish the existence of a nuisance affecting the community at large, but also that he or she sustained a special injury, distinct in some way from the more general harm, which differs in kind from that suffered by other members of the public. (Rincon Band, supra, 70 Cal.App.5th at p. 1102.) However, when the same nuisance constitutes both a private nuisance and a public nuisance, there is no requirement that the Plaintiff have suffered damage different in kind from that suffered by the general public. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1551.)
This Court has found that the SAPC has sufficiently alleged a private nuisance arising from the noise emanating from the pickleball Court. As a result, to the extent that the allegations are sufficient to state a cause of action for public nuisance arising from that noise, there is no need for the Schwobs to allege any harm different in kind from that suffered by the community at large. Because the allegations are sufficient to allege a prima facie cause of action for public nuisance arising from the pickleball play, the Court will overrule the demurrer to the ninth cause of action.
Demurrer to tenth, eleventh, twelfth, and thirteenth causes of action for conspiracy.
The Court will sustain the Crosbys’ demurrer to the conspiracy causes of action, without leave to amend.
Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 510-511.) The doctrine involves concerted action in pursuit of a common plan or design to commit a tortious act, in which the conspirators actively part, or further the conspiracy by cooperation or request, by lending aid or encouragement to the wrongdoers, or by ratifying and adopting those acts done for his or her benefit. (See Cully v. Bianca (1986) 186 Cal.App.3d 1172, 1176.) As held in Peskin v. Squires (1957) 156 Cal.App.2d 240, 247, each party to a conspiracy is liable for all acts done in pursuance thereof, and his lack of knowledge of details, or an absence of personal commission of overt acts, is immaterial.
Here, the Schwobs have attempted to allege direct causes of action against the Crosbys for both private and public nuisance, related to both the existence of the alleged sports Court and the continued playing of pickleball by the Crosbys. Since the Schwobs have alleged direct underlying claims, any attempt to attach further liability to them based on a separately-alleged conspiracy theory is unavailing. Conspiracy does not create additional liability for a conspiring party over and above that which they have for their commission of the underlying tort, but instead permits a Plaintiff to allege the liability of a party who did not directly commit the underlying tort, based upon their participation in a common plan to commit the underlying tort in some relevant manner. There is no such thing as a stand-alone “cause of action for conspiracy,” which in the case of the purported conspiracy claims as alleged against the Crosbys, are wholly duplicative of the direct causes of action for private and public nuisance alleged against them.
Consequently, the Crosbys’ demurrer to the tenth through thirteenth causes of action is sustained, without leave to amend.
Demurrer to fourteenth cause of action for declaratory relief.
Because the cause of action for declaratory relief is alleged against both the Crosbys and the County, the Court will jointly address their respective demurrers to the claim.
“Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior Court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties … and requests that these rights and duties be adjudged by the Court.” (Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 728.) Declaratory relief is appropriate to obtain judicial clarification of the parties’ rights and obligations under applicable law. (Californians for Native Salmon and Steelhead Association v. Department of Forestry (1990) 221 Cal.App.3d 1419, 1427.)
Generally speaking, an action for declaratory relief is not appropriate to review an administrative decision. (State of California v. Superior Court (Veta) (1974) 12 Cal.3d 237, 249; Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 127.) A declaratory relief action is an appropriate method for obtaining a declaration that a statute or regulation is facially unconstitutional. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 154-155.) However, where the challenge is to the regulation’s application to the lands of the complaining party, the proper and sole remedy is administrative mandamus. (Id. at p. 155.) Indeed a specific decision or order of an administrative agency can only be reviewed by a petition for administrative mandamus. (State of California v. Superior Court, supra [cause of action seeking a declaration that the Plaintiff was entitled to a permit not a proper subject for declaratory relief].)
Where the Plaintiff does not challenge a specific order or decision, or even a series thereof, but instead challenges an overarching, quasi-legislative policy set by an administrative agency, that overarching policy is subject to review in an action for declaratory relief. (Bess v. Park (1955) 132 Cal.App.2d 49, 52-54.) Declaratory relief is available to any interested person to review any rule, regulation, order or standard of general application adopted by any state agency to implement, interpret or make specific, any law enforced or administered by it. (Id. at p. 53.) In that manner, declaratory relief directed to the policies of an administrative agency is not an unwarranted control of discretionary, specific agency decisions. (Californians for Native Salmon and Steelhead Association v. Department of Forestry, supra, 221 Cal.App.3d at p. 1429.)
In sustaining County’s demurrer to the declaratory relief cause of action alleged in the Schwob’s original petition and complaint, this Court noted that the specific declaration which was sought (that the Crosbys are in violation of MLUDC §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c) with respect to the “sports Court,” and §§ 35.400.040.A, 35.430.070.C, and 35.430.070 Table 3-2 with respect to the fence) made clear that their challenge was to the manner in which those provisions were applied by the County in finding that the actions taken by the Crosbys had abated the violations. In other words, the requested declarations make an “as applied” challenge to the provisions of the MLUDC, and the Schwobs are not seeking declarations which would constitute a “facial challenge” to any of these provisions. Given that “as applied” challenges to the manner in which an agency applies regulations to a specific set of facts (i.e., quasi-adjudicatory acts) are not a proper subject for declaratory relief (see Veta, supra, and Tejon Real Estate, LLC v. City of Los Angeles, supra), and instead may only be made in actions for mandamus, the Court sustained County’s demurrer.
While the cause of action for declaratory relief as currently alleged in the SAPC differs in minor respects with respect to its wording (e.g., referring to “County” rather than to “Respondent/Defendant County of Santa Barbara”), it is substantially and substantively identical to that which was alleged in the original petition. County has again demurred to the cause of action on the ground that declaratory relief is inappropriate for “as applied” challenges, as opposed to “facial challenges” to a statute or ordinance. The Crosbys have demurred to the cause of action on the ground that declaratory relief is unnecessary, because the County has already determined that the violations were abated, and declaratory relief is only appropriate to review an administrative decision if the party is seeking a declaration that the statute or regulation is unconstitutional. They further contend the cause of action is redundant, in raising issues identical to the first cause of action, and the availability of another form of relief will usually justify a refusal to grant declaratory relief.
In opposition to both demurrers, the Schwobs contend they are permitted to plead in the alternative and make inconsistent allegations. In opposition to County’s demurrer, the Schwobs further contend that declaratory relief is available in mandamus actions when the allegations of the petition are sufficient to warrant the relief, and contend that parties challenging governmental actions frequently assert a variety of causes of action, including mandamus, injunctive relief, or declaratory relief. In support of those contentions, the Schwobs cite a string of authorities, including Malott v. Summerland Sanitary District (2020) 55 Cal.App.5th 1102, 1108, 1112; North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1428; California Advocates for Nursing Home Reform v. Smith (2019) 38 Cal.App.5th 838, 904; Colony Cove Props., LLC v. City of Carson (2010) 187 Cal.App.4th 1487, 1495, n.6; Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 572; and a request to “see also” Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1208.
In its reply, County reiterates that declaratory relief is not a proper mechanism for an “as applied” challenge and assert that the cases the Schwobs cited in support of their contention that they may seek declaratory relief even in this “as applied” challenge to County’s actions are all cases in which a facial challenge to a statute or ordinance was alleged. The Crosbys’ reply did not address the declaratory relief cause of action.
The Court agrees with Defendants that the essence of the Schwobs’ declaratory relief claim is that County misapplied the terms of the MLUDC when it determined that the violations of the MLUDC for which it had originally issued Notices of Violation, had been abated by the actions taken by the Crosbys in response to the Notices. As such, it is an “as applied” challenge to the actions of the County, and not a “facial” challenge to any provision of the MLUDC. The cited authorities establish declaratory relief is not available in an “as applied” challenge to an administrative decision. Virtually all of the cases cited by the Schwobs in their opposition papers for the proposition that mandamus, and declaratory relief can be simultaneously alleged are facial challenges to particular statutes or ordinances, and do not support the continued maintenance of a declaratory relief cause of action where only an “as applied” challenge is made. Consequently, the cause of action for declaratory relief cannot be permitted to stand.
For these reasons, the Court will sustain the demurrer to the cause of action for declaratory relief, without leave to amend.
County demurrer
Demurrer to first cause of action for administrative mandamus.
Administrative mandamus
A petition for administrative mandamus under Code of Civil Procedure section 1094.5 is appropriate when the party seeks review of a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the law—which is generally referred to as an “adjudicatory” or “quasi-judicial” decision. (Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 567.) An evidentiary hearing is required “by law” within the meaning of Section 1994.5(a), if it is required by a statute, a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.) Section 1094.5 review is properly directed to formal adjudicatory proceedings, and not to informal administrative actions. (See Wasko v. California Department of Corrections (1989) 211 Cal.App.3d 996, 1001.)
It is sometimes not entirely clear whether circumstances giving rise to review pursuant to Section 1094.5 exist. There exist some statutes, such as Water Code section 1126(c), which require that an adjudicatory decision be reviewed under Section 1094.5 even where no evidentiary hearing is required. There also exist some statutes, such as Business & Professions Code section 19870(f), which provide that Section 1094.5 does not apply to review of a decision after an agency hearing that is required by statute. Further, some statutes have been construed by case law to imply a right to an evidentiary adjudicatory hearing, and thus to Section 1094.5 review. Additionally, some cases imply a right to an evidentiary adjudicatory hearing where the statute calls for an administrative appeal. (See, e.g., California Practice Guide—Administrative Law (The Rutter Group 2023) Chapter 13, §§ 13:200, et seq.).
Agency decisions that do not meet the requirements of Section 1094.5 may be reviewable through a writ of traditional mandamus under Section 1085 if they involve a ministerial duty or an abuse of discretion when carrying out a discretionary function. (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279; Cal. Administrative Mandamus (Cont.Ed.Bar. 3d ed.) § 5.30; Cal. Practice Guide: Administrative Law (The Rutter Group 2023) ¶ 17:651.) In fact, the SAPC alleges a cause of action for traditional mandamus under Section 1085, to which the current demurrer was not directed. That claim will be resolved by the Court in future proceedings, pursuant to appropriate level of judicial scrutiny of an agency’s discretionary decisions made pursuant to Section 1085.
Prior demurrer, amended pleading, and current arguments.
This Court sustained County’s demurrer to the Schwobs’ claim for administrative mandamus, as alleged in their original petition and complaint. In doing so, the Court noted that County’s Planning Department was provided with the authority to interpret the provisions of the County Code, including the MLUDC (see, e.g., MLUDC § 35.402.020), as well as the authority to investigate all reported or apparent violations of any provision of the MLUDC, determine whether a violation exists or is impending, and take whatever measures the department deems necessary or expedient to enforce and secure compliance with the MLUDC. (See MLUDC, § 35.498.020.) Additionally, the Court found that the MLUDC did not, on its face, require the County to conduct any hearing prior to determining that a violation of its terms had been abated. The only hearing requirements within the MLUDC brought to the Court’s attention were for circumstances not present in this matter. It found that the Schwobs’ petition did not contain any allegations from which the Court could determine that review of this ordinary zoning violation challenge would fall within any of the exceptions to the hearing requirement, or that circumstances existed which would make judicial review pursuant to Section 1094.5 otherwise appropriate.
In the Schwobs SAPC, they allege that “certain activities” under the MLUDC require a Conditional Use Permit or Land Use Permit and refer to Sections 35.472.060 and 35.472.110. They contend that such permits are required for the siting of a sports Court, and permitting a fence height to exceed six feet, both of which would result in a public hearing in which the Schwobs would have been permitted to participate. The SAPC further alleges that County failed to follow those proceedings and failed to comply with 1094.5 because a hearing was required but not held.
County has again demurred to the cause of action, again contending that no hearing was required by law for the proceedings which actually occurred, and that the SAPC was devoid of any allegation that County was required to hold a hearing relating to the Notices of Violation which it had issued. The Notices were issued pursuant to provisions of the MLUDC which only required hearings if a person upon whom an administrative fine was imposed timely appealed, or when a property owner objected to administrative costs and fees imposed for a code violation. Here, no appeal was filed, and the Crosbys abated the violations. Consequently, no hearing was required by law, and Section 1094.5 does not apply.
County asserts that the SAPC’s newly-alleged reliance on Sections 35.472.110 [Land Use Permit] and 35.472.060 [Conditional Use Permit] to support a hearing requirement is inapposite, because there are no allegations that the Crosbys applied for a permit, such that any such procedures would have been invoked. The Notices of Violation directed the Crosbys to abate the violations and provided a non-exhaustive list of abatement options, some of which would not require a permit; the Crosbys would only have been required to apply for a permit if their chosen manner of abatement required a permit. They did not choose any such manner of abatement, and the permit portions of the Code are irrelevant and cannot support a claim for administrative mandamus.
County asserts that, to the extent that the Schwobs contend that a permit was required, even if one was not applied for, and challenge the County’s determination that no permit is required,
the MLUDC affords County with discretion to interpret and enforce its terms, without requiring a hearing. The dispute is not over a decision on a permit application that would implicate hearing provision but is one of interpretation and discretionary enforcement of the MLUDC. Even if the dispute were about permit applications, the MLUDC allows issuance of permits without a hearing. County argues that where a hearing is discretionary, it is not required by law, and therefore not subject to administrative mandamus, citing Court House Plaza Co. v. City of Palo Alto (1981) 117 Cal.App.3d 871, 880. Further, if the permit theory were considered by the Court, it still fails because an action related to a permit is not ripe until the agency has made a final decision—and the County has not and cannot make a final decision under the current circumstances; even then exhaustion of administrative remedies, which the Schwobs have not done.
In opposition to County’s demurrer to this claim, the Schwobs contend that the Crosbys should have been required to apply for a permit for the fence and sports Court, contending that the fence violates existing code and would require a permit even for its current height, and the fact that one was not applied for or issued should not preclude the Schwobs from seeking administrative mandamus. They assert that administrative mandamus is appropriate where the public body is acting in a quasi-judicial or adjudicatory capacity, and land use decisions based upon the application of standards to specific parcels under the facts peculiar to an individual case are adjudicatory. They assert that a hearing would be required when a property owner seeks a Conditional Use Permit, in particular where a fence exceeds six feet in height from the natura grade and conclude that the fence is illegal because no hearing was held. A permit, and therefore a hearing, was also required for the Court. Since County failed to conduct a hearing, administrative mandamus review is proper. Since the fence is still in violation of the MLUDC, a permit is required, and Section 1094.5 review is proper. The Schwobs conclude that the determination of whether the action “is brought under §1083 [sic—1085] or § 1094.5 is one that the Court can decide at trial,” and the demurrer should therefore be overruled.
In its reply, County reasserts that administrative mandamus is not available because no hearing requirement exists in relevant portions of the MLUDC, which also vest County with discretion. The opposition makes clear that the Schwobs’ arguments are based not on what actually occurred, but on what they contend should have occurred, and hypothetical scenarios are not the proper subjects of review. The permit sections are not applicable, because the Crosbys did not apply for a permit, and those sections do not require hearings in all circumstances in any event. Upon receipt of the Schwobs’ complaint, MLUDC 35.498.020 was invoked and governed County’s discretion to investigate and enforce the reported code violations—it contains no hearing requirement. County issued a NOV because, as originally constructed, the fence did not comply with the code. It advised the Crosbys could remove the fence, reduce it to six feet or less in height, or apply for a permit; they responded by lowering the fence to six feet, which County determined abated the violation in a manner that did not require a permit. While Schwobs’ opposition did not address the sports Court, County also exercised its discretion to find the Crosbys had also abated the Court NOV in a manner which did not require a permit. The Code gives County the authority to interpret its terms, its requirements, its exceptions, and to determine what measures are necessary to secure compliance with the code.
Analysis and Resolution
MLUDC section 35.402.020 provides the Director of the County Planning Department to interpret any of the MLUDC provision. Section 35.498.020 provides that the Director of the with authority to investigate all reported or apparent violations of any of the provisions of the MLUDC, and if a violation is determined to exist or be impending, to take such measures as the Director deems necessary or expedient to enforce and secure compliance with the provisions of the MLUDC.
Regardless of whether a permit would initially have been required for them to do so, the Crosbys constructed the Court and fence without first applying for a permit. Upon receiving the Schwobs’ complaints about the Court, County exercised its authority to investigate the complaint and determine whether any violations existed, and to determine what, if any, measures it needed to take, and what, if any, measures needed to be taken by the Crosbys to abate any violations. In doing so, it necessarily had to interpret the provisions of the MLUDC, and the options it provided the Crosbys in order to abate the violations and avoid an enforcement action included an option which, if the Crosbys sought to proceed in that manner, would require them to apply for a permit and proceed through the permitting process, as well as an option through which they could abate the violations in a manner that would not require them to apply for a permit, or to proceed through the permitting process. The Crosbys chose the option which did not require them to apply for a permit.
As a result, there was no hearing requirement at any stage of the MULDC violation proceedings before the County. Consequently, the Schwobs have failed to allege or establish any circumstance which would (a) invoke a hearing requirement, (b) fall within any of the circumstances through which Courts have previously found that an action in administrative mandamus is appropriate even where no hearing requirement exists, or (c) that the dispute falls within a statute which would require administrative mandamus review under Code of Civil Procedure section 1094.5 following County’s abatement decision.
The Court will therefore sustain County’s demurrer to the first cause of action for administrative mandamus, without leave to amend.
Demurrer to third, fourth, and fifth causes of action for failure to enforce law,
in violation of Government Code section 815.6
The Schwobs’ third, fourth, and fifth causes of action alleged by the Schwobs against the County are entitled “Failure to Enforce Law,” and are related to grading (3rd), the sports Court (4th), and noise (5th), respectively, and contend that County has liability based upon its failure to enforce the law pursuant to Government Code section 815.6.
While similar in nature, the Schwobs’ three Section 815.6 causes of action are worded somewhat differently. After incorporating all previous allegations, the causes of action contend that the Schwobs are entitled to have portions of the MLUDC “enforced to protect them, including grading” [third cause of action], “enforced to protect them against nuisances, such as the building of Code-violating structures on adjacent properties” [fourth cause of action], and “enforced to protect them against nuisances” [fifth cause of action].
The third cause of action (related to grading) then alleges that County failed or refused to identify obvious violations of the Code which occurred at the Crosbys’ property, and in doing so, failed to enforce a mandated section of the Code, while it was on notice of the violations, and the failure to enforce the code constitutes a violation of Government Code section 815.6. The fourth cause of action (related to the sports Court) then similarly alleges that County failed or refused to identify obvious violations of the Code occurring at the Crosby’s property, while the County was on notice of such violations, and in doing so failed to enforce a mandated section of the Code, in violation of Section 815.6. The fifth cause of action (related to noise) is worded identically to the fourth cause of action, except that it fails to specifically include the allegation “while the County was on notice of such violations.”
Standards for liability pursuant to Section 815.6
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
The mandatory nature of the duty must be phrased in explicit and forceful language, and it is not enough that some statute contains mandatory language. In order to recover, Plaintiffs have to show that there is some specific statutory mandate that was violated by the public entity. (State Department of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348-349 (State Hospitals), citing Guzman, supra, 46 Cal.4th at pp. 910-911.) Whether a statute is intended to impose a mandatory duty, rather than an obligation to perform a discretionary function, is a question of statutory interpretation for the Courts, and therefore a question of law. (Haggis, supra, 22 Cal.4th at p. 499, quoting Creason v. Department of Health Services (1998) 18 Cal.4th 623, 631 (Creason).) The enactment’s language is an important guide in determining legislative intent, but there are instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion. (State Hospitals, supra.) While the word “shall” is mandatory for some purposes, its inclusion in an enactment does not necessarily create a mandatory duty within the meaning of Section 815.6. (Ibid.) A statute or ordinance should be interpreted with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect. (Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 919.)
The second element of liability under Section 815.6, is that the mandatory duty must have been “designed” to protect against the particular kind of injury the Plaintiff suffered. As the Haggis Court stated: “The Plaintiff must show the injury is “ 'one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.' ” [Citation.] Our inquiry in this regard goes to the legislative purpose of imposing the duty. That the enactment “confers some benefit” on the class to which Plaintiff belongs is not enough; if the benefit is “incidental” to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under section 815.6. [Citation.]” (Ibid.)
While a public entity’s exercise of discretion often marks the dividing line between a duty that is mandatory and one that is not, that line is sometimes difficult to draw. (Guzman, supra, 46 Cal.4th at p. 899.) The drafting of rules, regulations, and standards by an agency charged with that responsibility would unquestionably fall within the category of discretionary “basic policy decision” for which governmental agencies are usually insulated from civil liability. (Creason, supra, 18 Cal.4th at 633.) In cases not involving a public entity’s quasi-legislative policy-making, however, the inquiry should focus on whether the entity must “render a considered decision” requiring its expertise and judgment. (Guzman, supra, citing Johnson v. State of California (1968) 69 Cal.2d 782, 795, fn. 8.)
If these first two elements are satisfied, the next question is whether the breach was a proximate cause of the Plaintiff’s injury. (State Hospitals, supra, 61 Cal.4th at p. 352.) Proximate cause for these purposes has two aspects. The first is “cause in fact” or “but-for” causation. (Ibid.) The second focuses on public policy considerations; it is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor’s responsibility for the consequences of his conduct. (Ibid.) Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint. (Ibid.) However, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact and, in fact, there are many cases in which this issue has been determined at the pleading stage. (Ibid.)
Party Arguments
County has demurred collectively to the causes of action, contending that they are not viable because the subject provisions of the MLUDC are discretionary. County cited to this Court’s ruling on the previous County demurrer (related to the mandate cause of action to the extent it attempted to state a claim for traditional mandate based upon a failure to perform a ministerial duty), in which it stated that the decision not to bring an enforcement action for removal of the Court was within the discretion provided by the MLUDC.
Anticipating that the Schwobs will rely upon introductory provisions of the MLUDC as a basis for the alleged mandatory duty [“[d]evelopment within the residential zones shall be designed, constructed, and established” in compliance with the requirements of the code], they assert that a general statement of public policy cannot serve as the basis for a mandatory duty under Section 815.6, citing Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1090. Even if it did create a mandatory duty to perform the function, County is authorized to exercise discretion in its performance, and a mandatory duty is not established if the function itself involves the exercise of discretion.
County further asserts that it is afforded the same discretion in interpreting and enforcing its grading code, in §§ 14-31(a) and 14-38, and argues that a claim under section 815.6 is not proper when an ordinance vests the department with authority to decide whether a project violated any law that may be enforced by the department, citing Haggis v. City of Los Angeles (2000) 22 Cal.4th 490. Even if the Court were to consider the grading theory, Schwobs failed to timely appeal the interpretation and decision by County, and therefore failed to exhaust their administrative remedies necessary to make the claim ripe for judicial review.
With respect to the cause of action for enforcement of “noise” under the MLUDC, Schwobs have failed to allege any provision of the MLUDC that supports their claim. Additionally, decisions about enforcement based on noise is necessarily discretionary. Finally, County contends the theory is implausible, since if County had a mandatory duty to prohibit a development of property which could be used in a manner that could cause noise, all development would cease.
In opposition, the Schwobs set forth the basic elements of Section 815.6 liability, and conclude that the County has adopted mandatory language that must be complied with. They then discuss the Central Coast Water Board’s adoption of stringent post-construction requirements regarding the number of impervious areas, and contend that the Court, combined with the ADU on the property, would subject the Court to mandatory procedures under the Storm Water Ordinance, and that the County is under an obligation to enforce that order but failed to do so. The Schwobs distinguish Tuthill, on the grounds that it considered the language of a general policy statement but contends the MLUPC “commands conformity to standards and is mandatory.” The fence violates the height restriction, the violation required a permit, and County “is wrong and at fault” for permitting the violation to continue. The very existence of the Court and fence are illegal structures, which create a nuisance.
In its reply, County reasserts that no mandatory duty exists in this case. The Schwobs merely contend that County “adopted mandatory language” which is inconsistent with their allegations, the terms of the MLUDC, and the Court’s prior ruling. They attempt to distinguish Tuthill, but no longer appear to dispute the sections on which the Court should focus in resolving the demurrer to these claims, all of which afford the County with discretion.
County notes that the Schwobs’ opposition vaguely referred to a Storm Water Ordinance, and a Regional Water Board Order, but they were never alleged in the Petition, are not included with the opposition, and no judicial notice is requested of them. The Court should therefore disregard them, since a demurrer tests only the pleadings. Even if considered, they do not change the County’s discretionary authority to enforce the MLUDC. Any investigation and enforcement of that purported ordinance and order would give rise to the same discretionary authority discussed above.
Finally, the Schwobs failed to identify any provision of the MLUDC regulating noise of private citizens’ use of their own property, and the demurrer to that claim should be sustained. County concludes that the Schwobs have not met their burden of establishing a mandatory duty by the County under any relevant provision of the MLUDC.
Analysis and Resolution
The law underlying Section 815.6 liability makes clear that an analysis of the specific provision which purportedly gives rise to a mandatory duty must be conducted in order to determine whether the cause of action is sufficiently alleged. As noted above, each of the causes of action is generally alleged, and none specifically identify the provision of the MLUDC which purportedly gives rise to a mandatory duty by County. Consequently, in order for the Court to be able to determine whether any of the three causes of action are sufficiently alleged, the Schwobs must rely on the allegation which incorporates by reference other allegations of the SAPC.
Third cause of action
With respect to the third cause of action, while the SAPC generally references the MLUDC’s Grading Code (see, e.g., SAPC at ¶¶ 76, 92, 152), and notes that it is contained within Santa Barbara County Code Chapter 14 (¶ 152), it nowhere references any specific provision of the Grading Code, or specifies in any way the manner in which they contend County failed to enforce the Grading Code. While the SAPC does, in its general allegations, contend that because the Court is not flat work it requires a permit (¶ 23), it cites to Section 35.420.040.B.14.b in support of that proposition. Section 35.420.040 relates to exemptions from planning permit requirements. Subdivision B sets forth exempt activities and structures. Section 35.420.040.B.14 does not have a subdivision “b”, and provides, in its entirety: “14. Lot Line Adjustment recordation. The recordation of documents required to complete a Lot Line Adjustment.” On its face, the provision is irrelevant to any permit requirement relevant to this action, whether related to grading or otherwise.
In failing to specifically allege, in any way, any provision of the Grading Code which County has allegedly failed to enforce, the Schwobs have precluded the Court from conducting the necessary analysis to determine whether a mandatory duty exists, whether that mandatory duty was designed to protect against the particular kind of injury the Plaintiff suffered, or whether County’s breach of the Grading Code was a proximate cause of the Plaintiff’s injury. The allegations of the Schwobs’ third cause of action therefore fail to state a valid cause of action based upon County’s alleged failure to enforce the Grading Code, requiring that County’s demurrer to that cause of action be sustained.
Fourth cause of action
With respect to the fourth cause of action based upon the Schwobs’ contention that the County was obligated to enforce laws to protect them “against nuisances, such as the building of Code-violating structures on adjacent properties,” the failure to identify within the cause of action the specific provisions of the MLUDC which the Schwobs contend give rise to a mandatory duty by the County has made the Court’s task much more difficult than it needed to be. Certainly, the cause of action incorporates all other allegations of the SAPC, and there are references to sections of the MLUDC elsewhere in the SAPC.
While the SAPC references a number of provisions of the MLUDC, it only alleges that the County failed to enforce Sections 35.400.040.A, 35.420.040.A, 35.442.020.4.a.(1).(c) related to the alleged sports Court, and Sections 35.400.040.A, 35.430.070.C, 35.430.070 Table 3-2 related to the fence. (SAPC ¶¶ 73, 183.)
Fifth cause of action
With respect to the fifth cause of action, while the SAPC frequently refers to the noise caused by the Crosbys’ pickleball play, it never identifies any ordinance—or even any code containing any statute or ordinance—which would support the existence of any mandatory duty by County related to noise in any context whatsoever, much less a context that could have potential application to the circumstances giving rise to their claims. Once again, the Schwobs’ pleading failures have precluded the Court from conducting the necessary analysis to determine whether a mandatory duty exists, whether that mandatory duty was designed to protect against the particular kind of injury the Plaintiff suffered, or whether County’s breach of any such mandatory duty was a proximate cause of the Plaintiff’s injury. The allegations of the Schwobs’ fifth cause of action therefore fail to state a valid cause of action based upon County’s alleged failure to enforce any provision of the law related to noise, requiring that its demurrer to that cause of action be sustained.
Alleged Sports Court
Section 35.400.040.A provides:
New land uses or structures, changes to land uses or structures. It shall be unlawful, and a violation of this Development Code for any person to establish, construct, reconstruct, alter, or replace any use of land or structure, except in compliance with the requirements of Section 35.420.020 (Prerequisites for Development and new Land Uses) and Chapter 35.491 (Nonconforming Uses, Structures, and Lots). No Building Permit or Grading Permit shall be issued by the Department unless the proposed construction complies with all applicable provisions of this Development Code.
Section 35.400.040.A does not establish a mandatory duty for County. Its first sentence makes unlawful the conduct of the individual who establishes, constructs, reconstructs, alters, or replaces any use of land or structure except in compliance with the specified provisions of the MLUDC.
Its second sentence relates to the Planning Department but applies only to issuance of Building Permits or Grading Permits, and there are no allegations that the Crosbys ever applied for a Building Permit or Grading Permit. Further, even if they had, the decision whether to issue a building permit or grading permit invokes considerable discretion by the County, in the many evaluations that would be required in determining whether every aspect of any such proposed development would have complied with “all applicable provisions” of the MLUDC.
The California Supreme Court in Haggis, supra, addressed local ordinances on property development in landslide zones. One ordinance required the City to first determine the location and boundaries of the areas requiring affidavits, and then to decide whether the instability of a given property is of such magnitude as to cause an immediate hazard to the occupancy of the proposed development. Recognizing the “pervasively discretionary nature” of the City’s authority, the Supreme Court held that the ordinance, as a whole, provided the City with such significant discretion in whether to issue or withhold permits as to make Section 815.6 inapplicable.
Next, section 35.420.040.A provides:
The requirements of this Development Code that one or more planning permits (e.g., Land Use Permit, Conditional Use Permit, Development Plan) be obtained prior to proposed development or the establishment of a land use do not apply to the land uses, structures, and activities identified by this Section.
A. General requirements for exemption. The land uses, structures, and activities identified by Subsection B (Exempt activities and structures) below, are exempt from the planning permit requirements of this Development Code only when:
1. The use, activity, or structure is established and operated in compliance with the setback requirements, height limits, parking requirements, and all other applicable standards of this Development Code, the required provisions and conditions of any existing, approved permits for the subject lot and, where applicable, Chapter 35.491 (Nonconforming Uses, Structures, and Lots); and
2. Any permit or approval required by regulations other than this Development Code is obtained (e.g., a Building Permit and/or Grading Permit).
In order to have context, the provision must be read with the remaining provision which the Schwobs contend that County failed to enforce. Section 35.442.020.4.a.(1).(c), identified by the Schwobs in their SAPC, does not exist. However, Section 35.442.020.B.4.a.(1).(c) provides:
4. Setback requirements. Detached accessory structures, including swimming pools, spas, and appurtenant equipment, shall comply with the front and side setback requirements of the applicable zone unless otherwise specifically allowed in compliance with this Development Code.
a. Location in rear setback.
(1) Other accessory structures. Except as provided in Subsection B.4.a.(1), above, a detached accessory structure, other than guesthouses, artist studios and cabañas (Section 35.442.120) may be located in the required rear setback provided that:
* * *
(c) The cumulative footprint of all accessory structures, including accessory dwelling units, that encroach into the setback does not exceed 30 percent of the required rear setback.
Also relevant to provide meaning to these provisions in the context of the current dispute, is the MLUDC definition of “Setback,” “Structure,” “Accessory Structure,” “Accessory Residential Structure or Use,” and “Sports Court,” all found in 35.500.020:
Setback. The minimum required distance that a structure must be located away from any property line of the lot on which it is located or street center line or right-of-way line or easement boundary, to provide an open yard area which is unoccupied and unobstructed from the ground upward except as specifically allowed for in this Development Code.
Structure. Anything constructed or erected, the use of which requires location on the ground or attachment to something located on the ground, excluding trailers and sidewalks.
Accessory Structure. A structure located upon the same site as the structure or use to which it is accessory. The use of an accessory structure is customarily incidental, appropriate and subordinate to the use of the principal structure, or to the principal land use of the site. Accessory structure includes a building with a roof supported by columns or walls, which may be referred to as an accessory building.
Accessory Residential Structure or Use. Any use and/or structure that is customarily a part of, and clearly incidental and secondary to a residence, and does not change the character of the residential use. This definition includes the following attached and detached accessory structures, and other similar structures normally associated with a residential use of property. . . tennis and other onsite sport Courts.
Sports Court. A structure which consists of a hardscape or other surface having a minimum size of 20 feet by 50 feet that is utilized in connection with a flat game Court structure devoted to recreational purposes including basketball, handball, tennis, and volleyball but excluding bocce ball Courts, lawn bowling Courts and similar facilities, patios, and areas used for driveways or parking of vehicles. [Emphasis added.]
As best as this Court can ascertain or infer from the SAPC’s general allegations, the barren allegations of its fourth cause of action, and the Schwobs’ arguments submitted in opposition to County’s demurrer to this cause of action (which did not reference any provision of the MLUDC, much less any of these provisions, but raised a purported ordinance never alleged in the SAPC, either as a basis for a mandatory duty by County, or otherwise), the Schwobs’ apparent contention is that the County had a mandatory duty to find that the Crosbys’ construction of the alleged Court required a permit, and that it violated that mandatory duty by allowing the Court to continue to exist without a permit, and potentially was obligated to order its removal because its existence, along with other rear setback structures, resulted in a violation of the cumulative rear setback 30% limitation. Alternatively, the allegations could possibly be interpreted as contending that had the Crosbys applied for a permit, the County would have been obligated to deny it.
As noted by County, the Crosbys did not apply for a permit, and County could have no mandatory duty to deny a permit for which no application was made. Liability pursuant to Section 815.6 cannot be based upon hypothetical situations which do not exist in the real world.
With respect to the remaining proposition(s), which essentially challenge the manner in which the County responded to the violations by issuing the Notices of Violation and determining whether violations existed and what conduct it would find abated any such violations, the Court again cannot find that the cited provisions established a mandatory duty for the County. Those actions involve the exercise of discretion by County at numerous points in the violation process.
Even if the provisions did give rise to a mandatory duty, that is only one of the necessary elements of liability under Section 815.6. The other elements include that the mandatory duty must have been designed to protect against the particular kind of injury which the Plaintiff suffered, and that the breach of the mandatory duty must be the proximate cause of Plaintiff’s injury. Here, too, the Court cannot find that Plaintiff’s cause of action is sufficient to meet these requirements.
The provisions at issue relate to the rear setback requirements that must be complied with to exempt an activity from the requirement of a permit. It would take quite a stretch of the imagination to see how mandated compliance with rear setback percentage requirements could have been designed to protect neighbors from noise from recreational activities engaged in on the feature which caused the rear setback limitation to be exceeded. The setback violation was not simply due to the Crosbys alleged sports Court/patio, but because a sports Court, in addition to the ADU which had been constructed on the property, together exceeded that 30% limitation. Without the ADU, the sports Court alone may not have violated the 30% limitation.
Finally, it is not the mere existence of the sports Court/patio—or the mere existence of a sports Court/patio which along with other backyard features exceeds the rear setback limitations set forth in the MLUDC—which has proximately caused the Schwobs’ claimed injuries or damages, which were instead caused by the activity which has occurred on that surface. The fact of the matter is that similar noise-producing activities can occur within neighborhoods on any flat surface, regardless of whether rear setback requirements are exceeded, and in fact can occur where no artificial surface exists at all.
To the extent the fourth cause of action is based upon the MLUDC provisions related to the rear setback and permit requirements—which are the only provisions which the SAPC alleges that County failed to enforce with respect to the alleged sports Court/patio, the Court has found that the SAPC fails to state facts sufficient to establish any of the elements of a cause of action under Government Code section 815.6, requiring that the demurrer to this cause of action be sustained.
Fence
As noted, the SAPC alleges that County failed to enforce Sections 35.400.040.A, 35.430.070.C, 35.430.070 Table 3-2 related to the fence.
Section 35.400.040.A was quoted in the discussion related to the alleged sports Court. Just as it failed to establish a mandatory duty by the County with respect to the alleged sports Court, so does it also fail to establish a mandatory duty by the County with respect to the fence. To the extent that the Schwobs are relying upon Section 35.400.040.A to support their Section 815.6 claim related to the fence, they have failed to establish the existence of a mandatory duty, and the claim necessarily fails.
Section 35.430.070.C (Fences and Walls) provides:
C. Height limits and permit requirements. Each fence shall comply with the height limits and permit requirements in Table 3-2 (Fence Height and Permit Requirements) below. In no case shall the height of the fence exceed the height limit established for the applicable zone district by Division 35.2 (Montecito Zones and Allowable Land Uses). Additionally, a fence on a corner lot shall also comply with the vision clearance requirements in Section 35.430.090 (Height Measurement, Exceptions and Limitations).
Section 35.430.070 Table 3-2 (Fence Height and Permit Requirements) provides that when the fence is located with side and rear setbacks, it is exempt from a Planning Permit if it is 6 feet or less in height, no Land Use Permit is required, and a Conditional Use Permit is required if it is more than 6 feet in height.
It is unclear to the Court what mandatory duty the Schwobs contend the County had, with respect to the fence. Certainly, as originally constructed, it violated the provisions of the MLUDC, given that a rear setback fence over six feet required both a planning permit and a conditional use permit. However, after the County issued the first Notice of Violation offering the Crosbys the abatement option of reducing the height of the fence to six feet (See Exhibit C to SAPC)—the Crosbys reduced the height of the fence to 6’ (see Schwob original petition and complaint, at @ ¶ 27), and subsequently exercised its discretion to find that the Crosbys had abated the fence violation.
The Court notes that the Schwobs deleted from the SAPC their previous allegation that the Crosbys reduced the height of the fence to six feet in response to the first Notice of Violation. If their intent in doing so was to support a contention in the SAPC that the County violated a mandatory duty in failing to require abatement of the violation of the MLUDC arising from the construction of the 10’ fence, and/or in failing to require that the Crosbys obtain a permit for the 10’ fence, they are precluded from doing so by their previous judicial admission that the height of the fence was lowered to the height required by the County’s Notice of Violation, and by the referenced provisions of the MLUDC. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 12-13; Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1109.)
Neither the allegations of the SAPC nor the arguments presented by the Schwobs in opposition to County’s demurrer in any way support the existence of any mandatory duty by County with respect to the fence erected by the Crosbys on their property. Consequently, to the extent their fourth cause of action is based upon a violation of a mandatory duty related to the fence, the claim necessarily fails.
Because the Court has not found that any of the MLUDC provisions which the Schwobs have alleged the County has failed to enforce gave rise to a mandatory duty by County sufficient to support a cause of action for failure to perform a mandatory duty pursuant to Government Code section 815.6 related to the alleged sports Court or the fence, the Court will sustain County’s demurrer to the fourth cause of action.
Demurrer to tenth, eleventh, twelfth, and thirteenth causes of action for conspiracy
Allegations and Party Arguments
The Schwobs’ tenth, eleventh, twelfth, and thirteenth causes of action are for conspiracy to commit private nuisance with respect to the existence of the sports Court (10th), conspiracy to commit private nuisance with respect to the playing of pickleball (11th), conspiracy to commit public nuisance with respect to the existence of the sports Court (12th), and conspiracy to commit public nuisance with respect to the playing of pickleball (13th). (As noted in the discussion of the demurrer to these causes of action interposed by the Crosby Defendants, these conspiracy “causes of action” exactly correspond to the four nuisance causes of action directly alleged against the Crosbys.)
County has collectively demurred to the causes of action on multiple grounds, contending that there is no such thing as a stand-alone cause of action for conspiracy, that no underlying tort has been alleged against County, that the alleged act committed by County in support of the conspiracy is its exercise of its discretion to interpret the MLUDC and determine that the violations had been abated (which can only be reviewed through mandamus), and that County is immune from tort liability pursuant to Government Code sections 818.2 [“public entity is not liable for an injury caused by adopting or failing to adopt and enactment or failing to enforce any law”] and 818.4 [“public entity is not liable for an injury caused by. . . the failure or refusal to issues . . . any permit . . . .”].
In opposition to the demurrer, the Schwobs first allege the elements necessary to support the existence of a conspiracy and contend that a party is allowed to plead in the alternative and make inconsistent allegations when in doubt about what actually occurred or can be established by the evidence. They assert they have alleged with specificity the actions that led to the conspiracy. The contend the pleadings set forth facts sufficient to establish the causes of action, so County’s argument that the pleading must allege that it has committed the torts in order for it to be guilty of conspiracy fails as a matter of law.
In its reply, County reiterates that conspiracy is not a cause of action. To the extent that the Schwobs pleading alleges conspiracy, County asserts that the contention can only be that County did not require a permit for the developments, for three reasons: (1) the proper mechanism for review of its discretionary actions is through mandamus, citing Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 155, and Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 127; (2) County issued two NOVs for the Court, and determined they were abated when the Court was converted to a patio/flatwork; and (3) the Schwobs do not challenge County’s immunity, which bars the claims as a matter of law under at least Government Code sections 818.2 and 818.4.
Relevant Law
Law Regarding Conspiracy
As noted above, in the Court’s discussion of the Crosby demurrer, conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 510-511.) The doctrine involves concerted action in pursuit of a common plan or design to commit a tortious act, in which the conspirators actively part, or further the conspiracy by cooperation or request, by lending aid or encouragement to the wrongdoers, or by ratifying and adopting those acts done for his or her benefit. (See Cully v. Bianca (1986) 186 Cal.App.3d 1172, 1176.) As held in Peskin v. Squires (1957) 156 Cal.App.2d 240, 247, each party to a conspiracy is liable for all acts done in pursuance thereof, and his lack of knowledge of details, or an absence of personal commission of overt acts, is immaterial.
Further, in stating a cause of action which includes a claim that a party has liability for the underlying tort based upon a conspiracy theory, the Plaintiff must allege the formation and operation of the conspiracy, the wrongful act or acts done pursuant to it, and the damage resulting from it. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.) In making the allegations, legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient. (Ibid.) However, although the pleaded facts must show that something was done which, without the conspiracy, would give rise to a cause of action (i.e., the underlying tort), the formation and operation of a conspiracy may be alleged in general terms. The general allegation that Defendants “did agree together”, or “conspired together,” are sufficient to allege a conspiracy. (See Farr v. Bramblett (1955) 132 Cal.App.2d 36, 47; Greenwood v. Mooradian (1955) 137 Cal.App.2d 532, 535-537.) The acts done pursuant to the conspiracy and inflicting the wrong should be alleged; the specific acts constituting the conspiracy need not be alleged. (Greenwood v. Mooradian, supra.) Further, the existence of the conspiracy may be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances. (Allen v. Powell (1967) 248 Cal.App.2d 501, 508.)
Government Tort Claims Act
As noted in this Court’s discussion of the Schwobs’ causes of action alleged against County under Government Code section 815.6 based upon County’s purported failure to enforce the law, under the Government Claims Act, a public entity has no tort liability “[e]xcept as otherwise provided by statute.” (Gov. Code, § 815.) Pursuant to Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937, the Civil Code’s statutes related to nuisance constitute such statutes establishing public entity tort liability. The Nestle Court held that Section 815 did not bar nuisance against public entities to the extent they were founded on Civil Code section 3479 or other applicable statutory provisions.
While Section 815 does not bar nuisance actions against public entities to the extent they are based upon the statutory nuisance provisions, the statutory immunities provided in the Government Claims act may be applicable as defenses to the public entity when sued on a nuisance theory. (See, e.g., Schooler v. State (2000) 85 Cal.App.4th 1004; Mikkelsen v. State (1976) 59 Cal.App.3d 621.)
County relies upon Government Code sections 818.2 and 818.4 to contend that they are immune from any conspiracy liability for any public or private nuisance which may have been committed by the Crosbys.
Government Code section 818.2 provides: “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”
Government Code section 818.4 provides, in relevant parts: “A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, . . . approval, . . . or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”
Analysis and Resolution
County is certainly correct that there is no such thing as a separate, stand-alone cause of action for conspiracy. It is further correct that there must be an underlying tort adequately alleged, in order for liability based upon a conspiracy theory to exist. However, the Schwobs did, in fact, allege underlying causes of action for public and private nuisance (the sixth through ninth causes of action) that correlate directly to their improperly alleged causes of action for conspiracy to commit public and private nuisance contained in the tenth through thirteenth causes of action. In that manner, the Court is fully able to deem the improperly alleged separate causes of action for conspiracy to instead simply comprise the conspiracy allegations within the underlying (sixth through ninth) causes of action. In that manner, to the extent that the Schwobs have alleged causes of action for public or public nuisance for which the Court has overruled the Crosbys’ demurrer contending that the causes of action are insufficiently alleged, those causes of action can be analyzed on their merits herein.
Tenth cause of action for private nuisance—sports Court
The Court sustained the Crosbys’ demurrer to the sixth cause of action for private nuisance, which was based upon the existence of the alleged sports Court. The Schwobs’ tenth cause of action is for conspiracy to commit private nuisance, based upon the existence of the alleged sports Court. Since no valid underlying tort has been alleged, the Court will sustain County’s demurrer to the tenth cause of action without further analysis, on the basis that even when it is read as a part of the sixth cause of action, no cause of action for private nuisance under a conspiracy theory has been properly alleged by the Schwobs against the County.
Twelfth cause of action for public nuisance—sports Court
The Court overruled the Crosbys’ demurrer to the eighth cause of action for public nuisance based upon the existence of the sports Court but did so for reasons which are unique to that cause of action. Consequently, the County’s demurrer to the twelfth cause of action for public nuisance based upon the existence of the sports Court, which corresponds directly to the seventh cause of action that is stated against the Crosbys, requires special treatment by the Court in its resolution.
In analyzing the Crosbys’ demurrer to the eighth cause of action, the Court found the allegations generally insufficient to establish a public nuisance, in failing to allege facts or circumstances to show a substantial and unreasonable interference affecting an entire community or neighborhood.
The Court found, however, that Plaintiff had alleged that that the existence of the sports Court was a nuisance per se, based upon the provisions of Section 35.498.050.A.1, which declared any structure which is altered, converted, enlarged, erected, maintained, moved, or setup in conflict with the MULDC, or any use of land, premise, or structure conducted, established, maintained, or operated in conflict with the MLUDC, is a public nuisance. As discussed above, under the public nuisance per se theory, if a legislative body has declared that a particular object or substance, activity, or circumstance, is a nuisance, no further inquiry beyond the existence of that object, substance, activity, or circumstance need be made. In other words, the normal necessary elements of a nuisance claim—that there be a substantial and unreasonable interference affecting the public, community, or neighborhood, is not required.
After a detailed analysis, the Court found that it could not sustain the demurrer. Not only had the Crosbys’ demurrer never expressly addressed the nuisance per se aspect of the cause of action, but the Court also found that the ultimate determination of whether the sports Court/patio was in violation of the MLUDC—and therefore constituted a nuisance per se because of the provisions of Section 35.498.050.A.1—would depend upon the resolution of the second cause of action for traditional mandamus. That claim challenged the County’s exercise of discretion in failing or refusing to commence an enforcement action against the Crosbys to require removal or relocation of the Court, which failure or refusal was necessarily based upon County’s findings that the removal of the permanent indicia of a sports Court constituted a conversion of the Court into a patio, and therefore abated the rear setback violation since a patio was not a “structure” that would be included in the calculation of the rear setback limitation. If the County is ultimately found to have properly exercised its discretion, the Court/patio would not be in violation of the MLUDC, and no nuisance per se could exist. Since the demurrer failed to meet its burden of showing that no cause of action for public nuisance had been stated, the Crosbys’ demurrer to the eighth cause of action was overruled.
Given the unique circumstances surrounding this cause of action, wherein this Court’s resolution of the direct public nuisance cause of action alleged against the Crosbys is dependent upon the issue of whether or not the County properly exercised its discretion in finding the removal of the permanent indicia of a sports Court had abated the violation, the Court is compelled to conclude that no cause of action for conspiracy to commit public nuisance per se can be alleged against the County. The County’s exercise of such discretion is properly resolved, pursuant to appropriate applicable standards of judicial review, in the Court’s ultimate determination of the Schwobs’ second cause of action for traditional mandamus, and not in a cause of action for conspiracy to commit public nuisance per se.
For these reasons, the Court will sustain County’s demurrer to the twelfth cause of action for public nuisance, based upon the existence of the sports Court.
Eleventh and thirteenth causes of action for private and public nuisance, respectively, based upon the noise from the playing of pickleball.
Resolution of County’s demurrers to these causes of action requires this Court to address a series of issues.
First, with respect to County’s contention that no underlying tort has been alleged against it, the Court notes that the Crosbys’ demurrers to seventh cause of action for private nuisance arising from the noise created by the playing of pickleball, and the ninth cause of action for public nuisance arising from the noise created by the playing of pickleball, were overruled. In doing so, the Court found the seventh cause of action for private nuisance contained sufficient facts to allege that the noise created by the pickleball play substantially interfered with the Schwobs’ use and enjoyment of their property, and that the interference was unreasonable, so as to sufficiently allege a private nuisance. The Court further found that ninth cause of action for public nuisance contained sufficient facts to allege that the noise created an unreasonable and substantial interference with a neighborhood of persons, and thereby sufficiently alleged a cause of action for public nuisance. It further found that the Schwobs had sufficiently alleged their standing to assert the public nuisance cause of action. Given that the eleventh and thirteenth causes of action against the County correspond directly to the seventh and ninth causes of action against the Crosbys, and this Court can deem these causes of action to provide the conspiracy allegations in support of County’s liability for the underlying nuisance causes of action, the SAPC sufficiently alleges the commission of an underlying tort.
Second, with respect to County’s contention that the SAPC does not sufficiently allege the existence of a conspiracy, County’s demurrer did not directly address the conspiracy allegations actually made by the Schwobs, or provide any explanation of how or why they might have been deficient. Under the authority cited by this Court above, the wrongful act or acts performed pursuant to a conspiracy, and the damage sustained therefrom, must be supported by facts alleged in the complaint, but the formation and operation of the conspiracy itself may be alleged in general terms. Since the underlying torts were sufficiently alleged, and the general allegations of the SAPC regarding the County and the Crosbys acting “in cooperation and conspiracy” to permit the Crosbys to continue pickleball play are sufficient to allege the existence of the conspiracy itself, this basis for demurrer fails.
Third, County makes a multi-step argument, in contending that conspiracy only allows tort recovery against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles, citing Applied Equipment Corporation v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514. County contends its only act in furtherance of the alleged conspiracy was its discretionary act to interpret the MLUDC and determine that the Notices of Violation had been abated, and since the MLUDC vested it with authority to do so, the proper mechanism for review of the decision is in mandamus, not tort, citing Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 155. County then asserts that “it follows that” a conspiracy claim cannot be maintained because “there must be alleged an act in furtherance of the conspiracy which is itself a tort,” citing Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 127.) Finally, County asserts that it immune from liability for any of its alleged conduct in furtherance of the conspiracy, citing to Government Code sections 818.2 and 818.4.
The Schwobs’ opposition did not address these contentions, and merely argued generally that they had sufficiently alleged a conspiracy between the County and the Crosbys.
With respect to County’s acts in cooperation and conspiracy with the Crosbys, the SAPC alleges that County was aware that the Crosbys had installed an unpermitted and illegal Sport Court, in violation of the Code, on which the Crosbys played play sports including pickleball (¶ 159), that County was aware of the nuisance because of the Schwobs’ numerous complaints about it (¶ 160), that County acted in cooperation and conspiracy with the Crosbys in allowing Pickleball play to occur (¶ 161), specifically, in overlooking the violations by allowing an illegal Court to exist, which permitted the Crosbys to play pickleball on it and create a nuisance.
As noted by County, the allegations make clear that the act County committed which the Schwobs contend gave rise to its liability was the act of permitting the alleged Court to continue to exist, which was accomplished by its actions in finding that the Crosbys had abated the MLUDC violations by removing the permanent indicia of pickleball play. Its allegedly tortious act was its exercise of discretion under the MLUDC to interpret MLUDC and determine the manner in which violations could permissibly be abated. Particularly given that the MLUDC does not appear to contain any provisions expressly related to noise, the Court cannot conceive that County’s alleged act in furtherance of the alleged conspiracy (based upon the noise created by the playing of pickleball) could possibly be anything else.
Because this act allegedly giving rise to County’s alleged liability for the nuisance arising from the noise generated by pickleball play was a discretionary act under the terms of the MLUDC, the discretionary act immunity of Government Code section 818.2, and the immunity set forth in Government Code section 818.4, which immunizes the grant or denial of any approval or authorization made by a public entity authorized to do so, would preclude any tort liability based thereon. Further, as made clear by the California Supreme Court in Selby Realty Co., supra, the grant or denial of a permit, authorization, or approval does not constitute a tort. If County cannot be liable for a tort arising from such an act, it cannot be liable for conspiracy wherein its action in furtherance of the conspiracy is an act for which it has immunity. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd, supra.
For all of these reasons, the Court will sustain County’s demurrers to the eleventh and thirteenth causes of action for private and public nuisance, respectively.
Demurrer to fourteenth cause of action for declaratory relief.
The Court incorporates by reference its discussion, analysis, and resolution of the demurrers to the declaratory relief cause of action set forth in its analysis of the Crosby demurrer. For all of those reasons, the Court will sustain County’s demurrer to the declaratory relief cause of action, without leave to amend.
Leave to Amend
Within the Court’s analysis of several of the contentions raised by the demurrers, it officially sustained demurrers without leave to amend. For others, the Court sustained demurrers, without specifying whether leave to amend was being granted.
Ordinarily, it is error for a trial Court to deny leave if a reasonably possibility exists to cure a defect (see, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 349), although the burden of showing a reasonable possibility that amendment can cure the defect in a complaint rests squarely on the Plaintiff, who must identify specific facts showing it can be amended to state a viable cause of action. (Amy’s Kitchen, Inc. v. Fireman’s Fund Ins. Co. (2022) 83 Cal.App.5th 1062, 1073.)
This Court is aware that the parties entered into an agreement that the Schwobs’ motion for leave to file their SAPC would not be opposed, in exchange for the Schwobs’ agreement that they would not further amend their pleading in the event a demurrer or motion to strike filed with respect to the SAPC was successful. The Court considers this a private matter among the parties. With respect to those claims for which this Court has sustained demurrers, however, the agreement will apparently have the impact of precluding the Schwobs from identifying any specific facts they could allege to state a viable cause of action, in order to establish a reasonable possibility that such amendment could cure the defects this Court has found with the SAPC, or presenting any further amended pleading. In that manner, without the identification of facts showing that the defects could be cured, there is no basis for permitting leave to amend.
Assuming, without deciding, that the parties’ agreement is valid and enforceable, this action will move forward on the second cause of action for traditional mandamus against the County, and the seventh through ninth causes of action for nuisance against the Crosbys.
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