Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 140662
SIMS, Acting P. J.Plaintiff Ilse M. Brown appeals from a judgment of dismissal following the trial court’s sustaining of defendant City of Chico’s demurrer to an amended wrongful death complaint which alleged plaintiff’s husband died from West Nile virus inflicted by a mosquito from a water detention pond maintained by the City. Plaintiff contends the trial court erred in concluding the action was barred by the governmental immunity of Government Code section 855.4. We shall affirm the judgment.
Undesignated statutory references are to the Government Code. Section 855.4 provides: “(a) Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused. “(b) Neither a public entity nor a public employee is liable for an injury caused by an act or omission in carrying out with due care a decision described in subdivision (a).”
BACKGROUND
Plaintiff’s initial form complaint alleged without specification of a legal theory that, “My husband died 10/02/2006 due to West Nile virus mosquitoes caused by the swamp (east of the Fair St. Detention Pond) which was owned, created and grossly neglected by the City of Chico.”
Defendant demurred, arguing plaintiff appeared to be trying to allege a cause of action for dangerous condition of public property, but (1) she failed to allege the required elements (§§ 835, 835.2), and (2) defendant is immune under section 855.4.
The trial court sustained the demurrer with leave to amend.
Plaintiff filed a first amended complaint labeled “FIRST AMENDED COMPLAINT FOR DAMAGES, WRONGFUL DEATH, PRELIMINARY AND PERMANENT INJUNCTION (NUISANCE).” The pleading asserted only a nuisance theory but alleged four “causes of action” for (1) nuisance, (2) wrongful death, (3) survival action, and (4) punitive damages.
The nuisance count alleged as follows:
Defendant was the owner and in possession and control of real property consisting of land known as the “detention pond” across the two-lane street from plaintiff’s residence. At all times “herein mentioned and since prior to October 2, 2006,” defendant occupied, used and maintained the detention pond in such a manner “that water has been allowed to stagnate, accumulate, and breed vectors including mosquitoes infected with West Nile Virus in the stagnate [sic] water contained within.” The detention pond constituted a nuisance under Civil Code section 3479, “in that the breeding of mosquitoes bearing West Nile virus is injurious to the health of the general public and specifically to persons immediately adjacent to the detention pond, including Plaintiff and Plaintiff’s decedent and interferes with the comfortable enjoyment of Plaintiff’s property.” “Prior to October 2, 2006, Plaintiff gave notice to Defendants [the City and Doe defendants] and each of them, of the damage threatened by the nuisance and requested its abatement. The Defendants and each of them have refused and continue to refuse to abate the nuisance.” “Defendants and each of them have threatened to and will, unless restrained by this Court, continue to maintain the nuisance and continue the acts complained of, and each and every act has been and will be without consent against the will of Plaintiff and in violation of the rights of Plaintiff.”
Civil Code section 3479 says, “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
The pleading alleged that, as a proximate result of the nuisance, plaintiff has been and will be damaged by the threat of becoming infected with West Nile virus and has suffered the death of her husband from West Nile virus disease. Members of the public who live in the neighborhood have incurred West Nile virus disease at a rate 500 times greater than the average incidence of infection in California, attributable to maintenance of the alleged nuisance. Also, the value of plaintiff’s property has been diminished and will further diminish unless the nuisance is abated.
The pleading sought injunctive relief under Code of Civil Procedure, sections 526 and 731.
The pleading alleged entitlement to punitive damages against defendants other than the City (i.e., the Doe defendants) because, “In maintaining the nuisance, Defendant, and each of them, are acting with full knowledge of the consequences and damage being caused the Plaintiff and their conduct is willful, oppressive and malicious.”
Under a separate count labeled wrongful death, plaintiff alleged her husband died about two months after contracting the disease and incurred medical expenses, as a result of the nuisance on public land that resulted in the propagation, breeding, dissemination, and infestation of mosquitoes that carried the West Nile virus disease.
The third “cause of action,” labeled “Survival Action,” sought to recover for the medical expenses.
The fourth “cause of action,” labeled “Punitive Damages,” alleged defendants other than the City (i.e., Doe defendants) acted with fraud, oppression and malice.
The pleading prayed for general, special, and punitive damages, as well as a preliminary and permanent injunction enjoining defendants from maintaining a swamp condition sufficient for the breeding of mosquitoes in the identified area, sufficient to remove the danger of the breeding of mosquitoes.
Defendant filed a demurrer, arguing it is immune under section 855.4, and plaintiff’s change of theory from dangerous condition of public property to nuisance did not avoid the immunity.
Plaintiff opposed the demurrer, arguing, “The City cannot escape from liability under 855.4, since the maintenance of the detention pond had nothing to do with the eradication of vectors or health that is set forth in 855.4(a). The operation of a detention pond is not involved in the preventing of disease or controlling the communication of disease as set forth in the statute.”
The trial court sustained the demurrer without leave to amend on the ground that “the first amended complaint does not state facts sufficient to constitute a cause of action due to the immunity provided by Government Code § 855.4 and Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683.”
Plaintiff appeals from the ensuing order of dismissal (Code Civ. Proc., § 581d).
DISCUSSION
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, . . . [t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. . . . However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The burden is on the appellant to show a reasonable possibility of curing a defect. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
For purposes of this appeal, we assume without deciding that government tort liability may be based on a nuisance theory. However, the allegation of nuisance does not preclude the use of statutory immunities. (E.g., Schooler v. State (2000) 85 Cal.App.4th 1004 [§ 831.25 immunity for natural condition of state-owned land barred plaintiff’s nuisance claim].) We further assume without deciding that plaintiff is correct in contending that Civil Code section 3482 (which says nothing done under express statutory authority can be deemed a nuisance) is inapplicable.
On its face, section 855.4 (fn. 1, ante) bars this lawsuit by immunizing defendant for injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community.
Plaintiff argues that defendant must demonstrate that the employees who decided to perform or not perform the act leading to plaintiff’s injury, “‘consciously exercised discretion in the sense of assuming certain risks in order to gain other policy objectives. . . . The fact that an employee normally engages in “discretionary activity is irrelevant if, in a given case, the employee did not render a considered decision.”’” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 794.) Lopez construed section 820.2 (immunizing public employees for acts resulting from exercise of discretion). Plaintiff says this exercise of discretion cannot be determined on demurrer. Plaintiff complains the trial court, by sustaining the demurrer, foreclosed any determination whether there was a “consciously exercised discretion.”
However, according to the factual allegations of plaintiff’s complaint (which we accept as true), there was a conscious exercise of discretion, because plaintiff “gave notice to Defendants and each of them, of the damage threatened by the nuisance and requested its abatement. The Defendants and each of them have refused and continue to refuse to abate the nuisance.”
Thus, the complaint itself alleged a conscious exercise of discretion sufficient to trigger section 855.4, with no need to allow the case to proceed past the demurrer stage.
Plaintiff argues there is a distinction between the exercise of discretion involving policy decisions (which is immunized) and the exercise of discretion in mere operational decisions (which is not immunized). (Barner v. Leeds (2000) 24 Cal.4th 676, 685 [construing section 820.2 .) However, that distinction comes into play where the issue is the general statutory immunity for discretionary decisions by public employees rather than the public entity, because an employee’s actions may be ministerial. Here, however, the only named defendant is the City. In contrast to section 820.2, which addresses only employees, section 855.4 (fn. 1, ante) immunizes the exercise of discretion by the public entity itself and further immunizes the exact decision at issue in this case, i.e., a decision “to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community.” Thus, this case does not require further inquiry into policy versus operational decisions.
Section 820.2 says, “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
Plaintiff argues section 855.4 does not apply here at all, because maintenance of a detention pond is a matter of surface water control, not an issue of public health for prevention of disease or controlling the communication of disease. For this proposition, she cites Tusher v. Gabrielson (1998) 68 Cal.App.4th 131. However, Tusher did not involve a governmental entity or public health. It was a suit between two private landowners who had an agreement giving the plaintiffs a revocable license to use a pond (located principally on the defendants’ property) in exchange for the plaintiffs’ agreement to repair and maintain it. The plaintiffs sought to prevent the defendants from draining and demolishing the pond, arguing they (the plaintiffs) had riparian/littoral rights because the pond served as a detention basis. (Id. at p. 148.) The appellate court affirmed the trial court’s finding that there was no breach. (Id. at p. 150.) Thus, Tusher has no bearing on this case whatsoever. Moreover, plaintiff does not claim injury from the detention pond qua detention pond, but rather as a breeding place for a communicable disease. Plaintiff’s complaint makes section 855.4 applicable.
Plaintiff complains the trial court, in sustaining the demurrer, erred in relying on Wright v. City of Los Angeles (2001)93 Cal.App.4th 683. Wright, which involved a claim of dangerous condition of public property (not at issue in this case), held section 855.4 immunized the city from liability for the death of a child who contracted a fatal disease from mice feces in an old, abandoned building on city-owned property. Although the Wright plaintiffs also asserted a nuisance cause of action, the appellate court said the nuisance claim was barred by failure to include it in the claim for damages filed with the city. (Id. at p. 686.) Thus, Wright is not dispositive on the nuisance question. But section 855.4 is dispositive and provides grounds for affirmance.
Although not raised by the parties, we observe that plaintiff’s request for injunctive relief does not alter the result. Section 814 says, “Nothing in this part affects liability based on . . . the right to obtain relief other than money or damages against a public entity or public employee.” However, “any ‘relief’ allowed under section 814 cannot create duties that immunity provisions guard against.” (Schooler v. State, supra, 85 Cal.App.4th at p. 1014 [§ 814 did not prevent plaintiff’s action from failing as a matter of law due to statutory immunity for natural condition of public land].)
On appeal, plaintiff does not seek to amend her complaint, nor does she offer any amendment that would save her case.
We conclude the trial court properly sustained the demurrer without leave to amend.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: HULL, J. BUTZ, J.