Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court, Super.Ct. No. RIC 441172 of Riverside County. Thomas H. Cahraman, Judge.
Law Office of Richard T. Ferko and Richard T. Ferko for Plaintiffs and Appellants.
Law Office of Michael A. Kruppe and Michael A. Kruppe for Defendant and Respondent.
OPINION
Gaut, J.
Plaintiffs Great American Insurance Companies (GAIC), along with Gary Howard and Marlene Howard (Howards), filed a lawsuit against private property owners and the City of San Jacinto (City), for damage done to their property when a windstorm blew large tumbleweeds onto the Howards’s property. As the Howards’s insurer, GAIC sought recovery of amounts it paid to the Howards under their policy. The City’s liability was grounded in the fact it had posted nuisance notices on the neighboring properties under the municipal Weed Abatement Ordinance. The plaintiffs claim (1) the ordinance created a mandatory duty on the part of the City to clear the weeds; and (2) the notice, which gave the property owners 10 days to abate the nuisance or it would do so at the owners’ expense, created an implied contract obligating the City to do the work, of which the plaintiffs were third party beneficiaries.
The trial court sustained the City’s demurrer to the plaintiffs’ first amended complaint, without leave to amend. Plaintiffs appeal from the judgment of dismissal as to the City, which was subsequently entered. We find no mandatory duty on the part of a municipality to clear tumbleweeds from private property, nor any implied contract to do so, and affirm.
1. Background
A. Factual Background
The Howards are private property owners in the City of San Jacinto who were covered by a policy of insurance issued by GAIC. Adjacent to their property were parcels owned by two individuals (not involved in this appeal) and San Jacinto Homes 91, LLC. On various dates during 2004, and prior to December 16, 2004, the City inspected the neighboring properties and found they constituted a public nuisance in violation of San Jacinto Municipal Code section 8.44.050 due to violation of the Weed Abatement Ordinance.
On December 16, 2004, the Howards’s property sustained damages in excess of $150,000, when, during a windstorm, a substantial number of enormous tumbleweeds blew onto the Howards’s property from the adjacent property owners. GAIC paid out $65,000 to the Howards on their claim. On September 30, 2004, and November 18, 2004, the City issued a Notice of Intent to Abate Public Nuisance – Weed Abatement (hereafter referred to as the Weed Abatement Notices), to one of the defendant property owners. On January 19, 2005, similar notices were issued to two other property owners. The notices informed the defendant property owners, in relevant part:
Howards asserted in their complaint, and on appeal, that the notices were issued prior to December 16, 2004. However, two of the notices, copies of which are attached as exhibits to the complaint, show they were issued on January 15, 2005. Because a demurrer only admits facts properly pleaded, and because we must give the complaint a reasonable interpretation by reading it as a whole and all its parts in context (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125), we refer to the dates in the exhibits attached to the complaint as the dates the notices were actually given to the defendant property owners.
“This letter serves as notice that you must clear the property identified above, of such weeds and debris. You must complete this work by February 3, 2005. (not less than 10 working days) [¶] If the weeds and debris still remain on the property on the date specified above, the City will have the nuisance abated at your expense. If the City arranges to have the work done, you will be billed and a tax lien placed against your property for the full amount of the contractor’s charges for abatement, plus an administrative fee of $156.00.” [Underlining in original.]
The plaintiffs presented a claim to the City (Gov. Code, § 905), on May 13, 2005, but the City rejected it.
B. Procedural History
The initial complaint for negligence and premises liability was filed on November 29, 2005, using a Judicial Council approved form. The City demurred to the complaint and made a motion to strike portions thereof. The demurrer was sustained with leave to amend on February 24, 2006. An amended complaint was filed March 16, 2006.
As it pertained to the City, the first amended complaint asserted that the Weed Abatement Ordinance imposed on the City a mandatory duty to protect the public against the risk of injury presented by the City’s failure to remove the weeds from the neighboring properties. (See Gov. Code, § 815.6.) It further alleged that the City’s statement, as contained in the abatement notice, that it would arrange to have the work done if the property owners did not, created an implied contract to do the work, of which the plaintiffs were the third party beneficiaries.
The City demurred to the first amended complaint on the grounds it failed to state a cause of action against the City in its entirety was uncertain. The City also demurred on the grounds that it could not be held liable for failing to enforce a law (Gov. Code, § 818.2) or for someone else’s acts or omissions. (Gov. Code, § 820.8.) The court sustained the demurrer without leave to amend. The order stated the complaint as it exists failed to state a viable basis for statutory liability against the City, and the contract theory was uncertain. Subsequently, a judgment of dismissal was entered, with prejudice, as to the City of San Jacinto.
The Howards and GAIC appeal. They contend the trial court erred by concluding that the Weed Abatement Ordinance (San Jacinto Muni. Code, § 8.44.050) did not create a mandatory duty on the part of the City to clean up the neighboring properties, and that their contract claims were not precluded by governmental immunity. (Gov. Code, § 814.) We agree with the ruling of the trial court and affirm the order and judgment.
2. Discussion
A. Standard of Review and General Legal Principles Relating to Review of Rulings on Demurrers.
On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. Then, we determine whether the complaint states facts sufficient to constitute a cause of action. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865, citing Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) If a complaint is insufficient on any ground specified in a demurrer, the order sustaining the demurrer must be upheld even though the particular ground upon which the court sustained it may be untenable. (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 426.)
When a demurrer is sustained without leave to amend, we must further decide whether there is a reasonable possibility that the defect can be cured by amendment. If it can, the trial court has abused its discretion and we reverse in that circumstance. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Ibid.)
B. Analysis
i) The Weed Abatement Ordinance Did Not Impose a Mandatory Duty on the Part of the City to Clear Weeds From Private Property.
Appellants argue that the Weed Abatement Ordinance imposed a mandatory duty on the City to enforce the ordinance by clearing weeds from private property. We disagree.
Government Code, section 815.6 provides: “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.” Thus, a three-pronged test must be met: (1) an enactment, or statute, that imposes a mandatory, not discretionary, duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered. (Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 54.)
Plaintiff’s theory cannot succeed because the enactment, section 8.44.050 of the City of San Jacinto Municipal Code, is a local ordinance which simply declares certain acts and conditions performed or existing upon any lot or parcel of land within the city to constitute a public nuisance. Within the meaning of Government Code section 815.6, an “enactment” specifically refers to a statute, not a charter provision, ordinance or regulation, since all government tort liability in California must be based on statute. (Wright v. State of California (2004) 122 Cal.App.4th 659, 671-672.) In the absence of a constitutional requirement, public entities may be held liable only if a statute is found declaring them to be liable. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)
There is nothing in the ordinance itself which states the City is under a duty to abate nuisances found to exist on private property and appellants have cited no authority to support such an interpretation. Instead, appellants rely on language in the Weed Abatement Notice which states that if the property owners fail to abate the nuisance within the 10-day period allowed, the City will do so, in support of their assertion the duty is mandatory. The notice is not an enactment, within the meaning of Government Code section 815.6, so it cannot form the basis for municipal liability. Further, appellants have omitted to address the balance of the language of the notice which states, “If the City arranges to have the work done, you will be billed and a tax lien placed against your property for the full amount of the contractor’s charges for abatement, plus an administrative fee of $156.00.” [Emphasis added.] The use of the conditional “if” indicates that City assumption of the duty of clearing weeds was not automatic, and thus not mandatory.
Further, two of the notices on which appellants rely were issued after the windstorm which caused the damage. Appellants have cited no authority for the proposition that a notice posted after an incident can give rise to liability for failing to take steps to prevent the loss. Therefore, section 815.6 does not impose a mandatory duty on the City to clear weeds from private property. The first prong has not been met.
ii) A City Cannot Be Held Liable for Not Enforcing an Ordinance
As pointed out above, the ordinance itself created no mandatory duty on the part of the City to clear weeds from private property. More to the point, Government Code section 818.2, specifically 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.” This provision of the Public Tort Claims Act provides general immunity for discretionary acts. Ordinances are “enactments” within the meaning of the statutory provisions conferring immunity. (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 519.) Only where the duty is mandatory will a public entity be held liable for the failure to enforce an enactment. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498-499.)
While a city may, by ordinance, prohibit a misuse or negligent use of its streets and sidewalks, its failure to enforce such an ordinance imposes no liability upon it, in the absence of a specific statute or special relationship creating a mandatory duty. (See Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1185.) Thus, in Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960, the reviewing court held that the county was immune from liability for a death resulting from a motorboat accident for failing to enforce speed limits or safety ordinances. And in Haggis v. City of Los Angeles, supra, 22 Cal.4th 490, the city was held to be immune from liability for issuing building permits in violation of its municipal code regarding development of property within landslide zones.
The causes of action instituted by the plaintiffs in this case are grounded in liability based on the City’s failure to enforce its Weed Abatement Ordinance. Such an action is barred by Government Code section 818.2 because the ordinance does not create a mandatory duty to clear weeds from private property. The trial court correctly sustained the demurrer on this theory of municipal liability.
iii) The Weed Abatement Notices Did Not Create an Implied Contract.
Appellants argue that the notice posted by the City, informing the property owners they were in violation of the Weed Abatement Ordinance, and informing the landowners that if they failed to abate the nuisance within 10 days, the City would do so at their expense, created an implied promise that the City would do the work. Under this theory, appellants argue they were the third party beneficiaries of the contract, for which they are entitled to compensation for damages for breach of the implied agreement to clear weeds from the adjacent parcels of private property. We disagree.
Appellants have not provided any legal analysis regarding the formation of such an implied contract. An implied-in-fact contract is one the existence and terms of which are manifested by conduct. (Civ. Code, § 1621; Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455-456.) It consists of obligations arising from mutual agreement and intent to promise where the agreement and promise have not been expressed in words. (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1134.) In pleading a cause of action on an agreement implied from conduct, the facts from which the promise is implied must be alleged. (Ibid.) That has not been done here.
The notices issued to defendants San Jacinto Homes, LLC [sic], and Heather Rothrock were issued on January 19, 2005, a full month after the windstorm which caused the damage to the Howards’s property. There can be no promise implied from these notices. The notices to the third property owner were dated September 30, 2004, and November 18, 2004, respectively. Thus, to the extent any possible contract theory might apply, it would only relate to this parcel. Nevertheless, even as to this notice, no facts have been alleged from which a promise can be implied based on the language of the notice. While the notice does state that if the nuisance is not abated within 10 days the City will do so at the owner’s expense, it does not stop there. Instead, it goes on to state, “If the City arranges to have the work done, . . .” which indicates it might not do so. No promise was made on which a property owner could reasonably rely, so the plaintiffs cannot qualify as third party beneficiaries to an implied-in-fact contract, or promise, that the City would clear the weeds.
Appellants rely on the case of People v. Zegras (1946) 29 Cal.2d 67, to argue that the enforcement of statutory liability is treated in the same manner as a contractual obligation. In Zegras, the defendants, private individuals, were sued for negligently setting a fire, or allowing it to spread under a statute imposing civil liability for failure to control a fire. The sole legal issue presented to the court related to proper venue for such a case. (Id. at p. 68.) There is no analysis, nor any discussion whatsoever, of the legal theory advanced by appellants herein, and the decision certainly does not stand for the novel proposition that the existence of a Weed Abatement Ordinance creates an implied contract by the municipality to clear weeds from private property. An opinion is not authority for a proposition not therein considered. (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38.)
Even if the Zegras case could be read in such a broad fashion, the ordinance in this case is easily distinguished from the statute which imposed liability in that decision. The statute in People v. Zegras, supra, 29 Cal.2d 67, now found at Health and Safety Code section 13009, does not impose liability upon a public entity. To the contrary, the statute imposes civil liability upon individuals who either cause a fire, or allow one to spread negligently, in order to permit the state or local government to recoup the costs of fire suppression, rescue and emergency medical services.
We agree with the trial court’s observation: “I think that under that way of looking at contract law, we’re all entering into far, far more contracts than we thought we were, and I think it undercuts the core of contract law.” The court correctly sustained the demurrer to the implied contract cause of action without leave to amend.
3. Disposition
The judgment is affirmed in its entirety. Plaintiffs to bear the costs on appeal.
We concur: Hollenhorst, Acting P. J., Richli, J.