Opinion
A149405
08-15-2018
VICTOR GILBERT, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC-14-540767)
Victor Gilbert (Gilbert) sued the City and County of San Francisco (City) for, among other things, nuisance, based on the constant barking of dogs at a dog park the City established across the street from his home. The trial court took judicial notice of a number of documents proffered by the City and, based on those documents and the allegations of Gilbert's complaint, granted judgment on the pleadings in favor of the City. Gilbert maintains the court erred in ruling that Civil Code section 3482 (stating nothing "done or maintained under the express authority of a statute can be deemed a nuisance") provides a defense to the City. As we explain, even were we to agree that section 3482 does not apply, Gilbert has failed to address the additional grounds on which the City sought, and the trial court granted, judgment, and we must therefore affirm the judgment.
All further undesignated statutory references are to the Civil Code.
We resolve this case by Memorandum Opinion pursuant to California Standards of Judicial Administration, section 8.1.
Gilbert filed a complaint against the City alleging three causes of action: private nuisance, premises liability, and elder abuse. This appeal concerns only the nuisance cause of action.
As to that cause of action, Gilbert alleged that from 1995 until 2003, the Upper Douglass Park (Park) across the street from his home was "a standard 'shared-use' City park. . . ." In 2003, the City's "Recreation and Park Commission voted to re-designate the Park as a Dog Play Area. . . ." "From that date until May of 2013, . . . when the Park was then closed, barking noise by the dogs . . . [allegedly] began rapidly increasing in frequency and severity." In July 2014, the City's "Recreation and Parks Department notified the public that it [was] now planning [to re-open] the Park as a [dog play area] on July 29, 2014 and disturbing the neighborhood's status quo." Gilbert claimed the City's "actions as to the keeping of dogs and the use of the public property as described is unreasonable and has caused plaintiff substantial loss of use and enjoyment of his property due to the offensive noises from the dogs on the property."
The Recreation and Park Commission is the policy making body of the City's Recreation and Park Department. (S.F. Charter, § 4.113.)
The City moved for judgment on the pleadings as to all three causes of action. Its supporting points and authorities addressed each cause of action under a separate heading. The heading as to the nuisance cause of action read, "PLAINTIFF FAILS TO STATE A CLAIM FOR PRIVATE NUISANCE (FIRST CAUSE OF ACTION)." The City did not include any additional subheadings identifying separate grounds for its motion as to the nuisance claim. However, it is apparent from the City's three and a half page argument that it advanced three different assertions: (1) section 3472 precluded any liability for nuisance; (2) the City's establishment and operation of the dog park is "reasonable" as a matter of law; and (3) the City cannot be held liable for a nuisance caused by the unreasonable or unlawful conduct of users of the dog park.
In support of its motion, the City sought judicial notice of seven documents: minutes of the San Francisco Recreation and Parks Commission meetings on May 8, 2002 and July 17, 2003, the Department's "Final Dog Policy," the Department's Web site description of its "Dog Play Areas Program," San Francisco Board of Supervisor's Resolutions No. 386-13 and No. 183-11, and the National Park Service's "Executive Summary to the Draft Dog Management Plan/Supplemental Environmental Impact Statement." The court took judicial notice of some of the documents without identifying which ones, and granted the City's motion.
As to the nuisance cause of action, the trial court ruled as follows: "Judicially noticeable documents show that [the City] considered the problems associated with a dog park and authorized by resolution the conduct that led to plaintiff's injuries. Civil Code [section] 3482 implicates municipal enactments, not only state statutes. See Pekarek v. City of San Diego (1994) 30 Cal.App.4th 909, 918. The court notes that [the City] has promulgated numerous enactments to [e]nsure the reasonable use of the dog park. Defendant cannot be liable for nuisance because certain members of the public decide to breach the law." Thus, in its three-sentence ruling on nuisance, the trial court agreed with each of the three grounds the City urged in its moving papers.
In his opening brief, Gilbert challenged only the ruling on section 3482. Thus, the argument section of his brief identifies but a single issue—"The Trial Court Erred In Granting Judgment On The Pleadings Against Plaintiff's Claim For Private Nuisance Under Cal. Civ. Code Section 3482 Where No 'Express Authority Of a Statute' Was Ever Identified Or Existed As Section 3482 Requires." And while Gilbert accurately recited the entirety of the trial court's ruling on nuisance, he did not address the latter two sentences of the ruling that address issues other than section 3482.
In its respondent's brief, the City addressed each of the three grounds on which it had sought judgment. In compliance with the California Rules of Court, the City separately identified and separately addressed these issues under three different subheadings: "A. Civil Code [s]ection 3482 Precludes [] Gilbert's Nuisance Claim"; "B. San Francisco's Provision of a Public Dog Play Area in Upper Douglass Park Is Reasonable as a Matter of Law"; and "C. Individual Dog Owners, Not San Francisco, Have Proximately Caused [] Gilbert's Alleged Injuries." The arguments the City made under each of these subheadings differed and relied on different authorities. Thus, even if it had not been completely clear in the trial court that the City had sought, and been granted, judgment on three different grounds, the City's respondent's brief made that explicitly clear.
We must observe, however, that the City has not been entirely fair in its characterization of the trial court's "causation" ruling as to nuisance. On page 22, footnote 4 of its respondent's brief, the City indicates the trial court ruled as follows: "Defendant cannot be liable for nuisance because certain members of the public decide to breach the law. * * * Paragraph 7 of the complaint alleges that members of the public are allowing their dogs to create the incessant barking. Plaintiff does not allege sufficient facts showing that defendant directed any conduct towards plaintiff and was a substantial factor in causing the harm." That, however, was not the court's ruling as to nuisance. Rather, the City has combined the last sentence of the paragraph of the court's ruling on the nuisance cause of action with two sentences of the court's ruling on the elder abuse cause of action. This conjoined "quote" also completely skips over the court's ruling on the premises liability cause of action. --------
In his reply brief, Gilbert addressed two points—(1) whether he had objected in the trial court to judicial notice of the documents proffered by the City and whether the documents were properly noticed, and (2) whether the section 3482 defense applied. He made no reply to either the City's reasonableness argument or its causation argument.
Thus, we are confronted with an appeal where the appellant has failed to address the alternative grounds on which judgment was sought and granted. As a consequence, we must assume the alternative grounds support the judgment and affirm. (See, e.g. Lafferty v. Wells Fargo Bank (2013) 213 Cal.App.4th 545, 571-572 (Lafferty); Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126 (Christoff).
In Lafferty, for example, the trial court granted summary adjudication to the defendant on a number of causes of action on numerous grounds. (Lafferty, supra, 213 Cal.App.4th at pp. 571-572.) On appeal, the plaintiffs challenged only the trial court's evidentiary-based ground that they had failed to present any competent evidence raising a triable issue (which flowed from the sustaining of defense objections to much of the plaintiffs' evidence). (Id. at p. 571.) The plaintiffs did not address the separate legal grounds on which the defendant had moved for, and the court had granted, summary adjudication. (Ibid.)
As the Court of Appeal explained, it had no choice but to affirm: "Even if we assume the Laffertys' arguments regarding the trial court's evidentiary rulings are meritorious, we would nonetheless be compelled to affirm the order granting summary adjudication. ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." ' (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 . . . .) [¶] Here, the Laffertys have failed to address how the trial court erred in concluding legal grounds separate from the evidentiary issues supported summary adjudication. . . . Consequently, we deem the contention that the trial erred in granting summary adjudication to be forfeited for failure to present arguments as to the separate grounds for dismissing the Laffertys' six remaining causes of action." (Lafferty, supra, 213 Cal.App.4th at pp. 571-572; see Christoff, supra, 134 Cal.App.4th at pp. 125-126 [where appellant failed to challenge ruling on causation, a separate ground on which the trial court granted summary judgment, plaintiff forfeited the issue, which, in turn, was dispositive and sufficed to affirm the judgment].)
We must affirm the judgment here for the same reason. There is no question that the City moved for judgment on the pleadings as to the nuisance cause of action on three different grounds and that the trial court addressed each of these grounds in its judgment (albeit briefly). It therefore is not enough for Gilbert to show error as to the statutory defense provided by section 3482. To overturn the judgment, he must also demonstrate that the trial court also erred in its "reasonableness" determination and in its "causation" determination. He has not, however, addressed either alternative ground. Accordingly, even if we were to agree with Gilbert that the City has not identified any "statute" (whether an ordinance, regulation, rule or policy) "authorizing" barking so loud, continuous and pervasive as to be a nuisance, error as to the section 3482 defense, alone, cannot support reversal.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.