California Court of Appeal, Second District, Div. 6
Civ. B006572, Civ. B008233.
March 10, 1986.
Review Denied June 24, 1986
COUNSEL:
Ronald A. Zumbrun, John H. Findley, Jonathan M. Coupal and Pacific Legal Foundation, Sacramento, for plaintiffs and appellants.
Kathleen V. Fisher, Leigh R. Shields, Joanne Hoeper, and Morrison & Foerster, Richard A. Rothschild, San Francisco, Leonard Post, Oakland, and Western States Legal Foundation, for defendants and respondents.
George William Pring, Denver, Colo., Fred H. Altshuler and Altshuler & Berzon, San Francisco, as amici curiae on behalf of defendants and respondents.
WILLARD, Associate Justice. [FN*]
Three basic issues are presented for decision: (1) whether the second amended complaint states a cause of action on behalf of the County; (2) whether it states a cause of action on behalf of other appellants; and (3) whether the order for payment of attorneys' fees was proper.
A fourth issue was presented to the trial court and is argued in the briefs. It is whether the First Amendment right of political expression immunizes the alleged acts of defendants from civil liability. This appeal can be determined on the basis of the first three issues mentioned above. Therefore it is inappropriate to decide the constitutional question. (Estate of Johnson (1903) 139 Cal. 532, 534, 73 P. 424; People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000; People v. Marsh (1984) 36 Cal.3d 134, 144, 202 Cal.Rptr. 92, 679 P.2d 1033.) As stated in Williams, "we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us." (People v. Williams, supra, 16 Cal.3d at p. 667, 128 Cal.Rptr. 888, 547 P.2d 1000.)
The trial court sustained a general demurrer to the second amended complaint, without leave of appellants to amend, but with leave of other plaintiffs to amend. The order also "dismissed [appellants] from [the] action." Notice of appeal was filed from the order sustaining the demurrer and from the order of dismissal. The County of San Luis Obispo (hereinafter
"County") filed a separate appeal from an order that it pay attorneys' fees of $82,500 to the defendants' attorneys. The order dismissing appellants from the case is deemed a judgment of dismissal of the action insofar as appellants are concerned and is appealable, as is the order made subsequent to that judgment requiring payment of attorneys' fees. We affirm both
judgments.
A. The Parties.
The appealing plaintiffs are the County; Countywide Coalition for Less Government, a California corporation said to be a coalition of groups and individuals, including taxpayers of the County and customers of Pacific Gas & Electric Co. (hereinafter "PG & E"); People for Energy Progress, a California nonprofit corporation that supports the development of "all forms" of safe, economical and environmentally sound energy resources; and Vicky Roland, an individual who is a paying customer of PG & E and a taxpayer of the County and of the State of California. PG & E is not a party to the litigation, and all parties alleged to be PG & E shareholders have withdrawn.
The defendants are Abalone Alliance, an unincorporated association; American Friends Service Committee, and Greenpeace, organizations the nature of which is unknown to plaintiffs; three named individuals; and 30 Does.
B. The First Cause of Action.
The first cause of action makes allegations summarized in this section. During September 1981, a low-power operating license issued by the Nuclear Regulatory Commission was in effect for Diablo Canyon (a nuclear power project under construction by PG & E, the purveyor of electricity within San Luis Obispo County). Power shortages will occur throughout California if Diablo is blocked from providing electric power. Alliance has circulated a publication stating its goal is to prevent the Diablo nuclear power plant from going into operation, pursuing legal channels, and nonviolent direct action in the form of a blockade.
Defendants erected a tent city on private land for their members and others. More than 100 San Luis Obispo County sheriff's deputies were required to protect people in the area, including defendants.
On September 15, 1981, members of Alliance and others trespassed on someone's private property and blocked public roads. They forced their way onto "the grounds." Some workers were prevented from reaching their job sites at the plant, or their arrival was made more difficult. The workers were forced to stay overnight at the plant and sleep in unsuitable quarters such as national guard tents.
Members of Greenpeace supplied a boat and landing craft in which individuals approached the plant by ocean and entered the grounds.
Defendants intended this blockade to create additional costs to complete the plant, making completion infeasible or impossible. This was intentional interference with the contractual right of electric customer plaintiffs to receive service. Defendants' acts did require plaintiffs to incur expense. It also damaged property of PG & E, and caused PG & E expense that will be borne directly by its customers and shareholders.
The County plaintiff was damaged in an amount in excess of $700,000 for costs that would not have been incurred but for the illegal acts of defendants. Plaintiffs who are residents of San Luis Obispo County have been damaged as taxpayers and paying customers of PG & E. Plaintiffs who are paying customers and shareholders of PG & E have been damaged because the costs incurred by PG & E will be borne either by paying customers or by PG & E "so as to harm the interests of its shareholders." These PG & E costs are associated with damage to property, protection of property and employees, obtaining electricity from alternate sources, and increased construction costs.
C. The Second Cause of Action.
The second cause of action incorporates the first cause of action and in addition alleges that the actions of defendants are a private nuisance to plaintiffs. [FN1]
The third cause of action incorporates the first and in addition alleges that the acts of defendants interfered with the contractual rights of the PG & E customer plaintiffs against PG & E entitling such plaintiffs to electric service. It also alleges that defendants made the contractual relationships between the County and the County's own employees more burdensome.
E. The Fourth Cause of Action.
The fourth cause of action is stated to be in the alternative. It incorporates almost all of the first cause of action and in addition alleges that the actions of defendants constituted "prima facia [sic ] ... tort. See Civil Code s 3523." [FN2]
The relief requested in the second amended complaint is a money judgment against defendants jointly and severally for $2,981,000, plus interest, attorneys' fees, costs and an injunction. The request for injunction apparently was not pursued, has not been argued in the briefs, and appears
to be moot.
D. The Third Cause of Action.
F. Prayer.
A. Claims of the County.
The County seeks to recover its costs incurred in its exercise of police power during the blockade. The case most nearly in point is City of Flagstaff v. Atchison, Topeka & Santa Fe (9th Cir.1983) 719 F.2d 322, 323. The city of Flagstaff had sued the defendant railroad in tort to recover the cost of police, fire and other emergency services necessitated by a chemical spill. It was held that, in the absence of a statute expressly authorizing recovery of public expenditures, "the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service." (Ibid.)
Likewise, in District of Columbia v. Air Florida, Inc. (D.C.Cir.1984) 750 F.2d 1077, the court held that the District of Columbia could not recover the expenses of extraordinary emergency services and cleanup resulting from the crash of an Air Florida plane into the Potomac river. The court held that, in the absence of statutory authorization, the District failed to state a claim for relief: "Where emergency services are provided by the government and the costs are spread by taxes, the tortfeasor does not anticipate a demand for reimbursement. Although settled expectations must sometimes be disregarded when new tort doctrines are needed to remedy an inequitable allocation of risks and costs, where a generally fair system for spreading the costs of accidents is already in effect -- as it is here through assessing taxpayers the expense of emergency services -- we do not find the argument for judicial adjustment of liabilities to be compelling." (Id., at p. 1080.) [FN3] The court went on to explain its reluctance to create new tort doctrine: "We are especially reluctant to reallocate risks where a governmental entity is the injured party. It is critically important to recognize that the government's decision to provide tax-supported services is a legislative policy determination. It is not the place of the courts to modify such decisions. Furthermore, it is within the power of the government to protect itself from extraordinary emergency expenses by passing statutes or regulations that permit recovery from negligent parties. [Fn. omitted.]" (Ibid.)
It follows that the only issues are whether (1) there is specific statutory authority permitting the County to recover for public expenditures; or (2) the County has alleged a tort that would entitle it to compensatory damages that are not based upon expenditures for the benefit of the public.
The County argues that there is express statutory authorization for it to recover its costs of abating the blockade as a public nuisance. There is, however, no such authorization found in the general public nuisance statutes under which the County purports to sue. (See Civ. Code, s 3479 et seq.) To the contrary, section 731 of the Code of Civil Procedure, the general provision permitting government entities to abate public nuisance, has been squarely held not to authorize the government to recover the costs of abatement. (People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 114 Cal.App.3d 923, 930, 171 Cal.Rptr 85.) [FN4] It was there held that counties cannot obtain damages for abating a public nuisance because the statutory scheme does not authorize them to do so. The opinion explains: "This action was brought under the authority of Code of Civil Procedure section 731, which, inter alia, empowers a city attorney to bring a civil action 'to abate a public nuisance.' Abatement, however, is the sole relief that section 731 authorizes the city attorney to seek. This is evident when the above quoted language is compared to the first portion of the statute. That portion allows an action to be brought by 'any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance....' Such a person is expressly authorized to seek a judgment where 'the nuisance may be enjoined or abated as well as damages recovered therefor.' (Italics added.) It is clear that the Legislature intended that one type of litigant could seek abatement and damages, while the other type of litigant could obtain abatement only. A city attorney, in an action 'brought in the name of the people,' fits squarely and exclusively in the latter classification." (Ibid.)
The County argues that it is not seeking damages under section 731, but instead is proceeding under general statutes such as Government Code section 23004 ("A county may ... [s]ue and be sued."), Government Code section 27000 (obligating the County to "receive and keep safely" money) and Government Code section 53069.6 (requiring that County seek damages for negligent, wilful or unlawful damaging of public property). These general provisions do not prevail over the specific statutes governing abatement of a public nuisance. Nor by their terms do they authorize suits to recover costs incurred in exercising the police power. They provide no specific statutory authorization for the County to sue for public expenditures caused by the blockade.
The County also argues that specific statutory authorization for its claim is found in the provisions of Streets and Highways Code sections 1480 and 1480.5, which provide for the removal of an "encroachment" at the owner's expense. An "encroachment" is defined therein as a "structure or object." These words refer to inanimate objects, not human beings. We find no express statutory authorization for the County's suit to recover public expenditures for abatement of the public nuisance claimed to have existed in this case.
With regard to nuisance abatement, the County argues in its reply brief that the actions of appellants created a public nuisance as defined in Civil Code sections 3479 and 3480, authorizing the remedies specified in section 3491 ("1. Indictment or information; [P ] 2. A civil action; or, [P ] 3. Abatement."). The Civil Code goes on to provide that remedy by indictment or information is governed by the Penal Code (s 3492); abatement by a public body or officer is authorized by law (s 3494); and that "[a] private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise." (s 3493.) These Civil Code sections establish substantive rights and duties, but the details of procedure are governed by other codes. Abatement, as previously indicated, is governed by section 731 of the Code of Civil Procedure; and, as discussed above, collection of damages by a public agency for abatement is not authorized.
The question remains as to whether the County has stated a claim in tort for compensatory damages in alleging interference with contract and "prima facia [sic] ... tort."
The County's theory for its interference with contract claim is that the blockade interfered with employment relationships between the County and its deputy sheriffs and other personnel by requiring additional services.
The complaint, however, necessarily implies that the contracts with its personnel were fully performed. It alleges that more services were required and payment for them was an increased expense to the County. This is not the kind of "disruption of the relationship" required to state a claim. (See Buckaloo v. Johnson (1975) 14 Cal.3d 815, 827, 122 Cal.Rptr. 745, 537 P.2d 865.) [FN5]
B. Claims of the Non-County Plaintiffs.
There are two political organizations and one individual plaintiff in addition to the County. [FN6] These non-County plaintiffs assert damage claims for public nuisance and "prima facia [sic ] ... tort."