Opinion
H042834
12-26-2017
CHERIEL JENSEN et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-14-CV266780)
Plaintiffs Cheriel Jensen and Healthy Alternatives 2 Pesticides filed a petition for writ of mandate and injunctive relief against defendants County of Santa Clara and the Santa Clara County Vector Control District (collectively, defendants), which alleged that defendants' mosquito control operations (including pesticide fogging) violate the California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000 et seq.) and Health and Safety Code section 2053. Plaintiffs argue the trial court erred by sustaining a demurrer to their second amended petition because their CEQA cause of action was timely and they adequately stated a cause of action for a violation of Health and Safety Code section 2053. Plaintiffs also argue that they should be allowed leave to amend to allege new causes of action. For the reasons stated here, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
Plaintiffs proceeded by appellant's appendix in lieu of a clerk's transcript. Most of the documents plaintiffs rely on were contained as exhibits to a petition for writ of mandate, which this court denied in 2015. (Jensen v. Superior Court, H042183.) Rather than including those documents in the appellant's appendix here, plaintiffs purport to incorporate the exhibits from the writ matter by reference, citing California Rules of Court, rule 8.124(b)(2)(A). But that rule applies to "the record on appeal in another case pending in the reviewing court or in a prior appeal in the same case." (Cal. Rules of Court, rule 8.124(b)(2).) The writ matter was no longer pending when plaintiffs filed their appellant's appendix in this case, and it was not "a prior appeal in the same case" because it was an original proceeding. Despite plaintiffs' failure to comply with the rules of court, we rely on digital copies of the physical record filed in the writ matter that were retained by this court.
A. PETITIONS FILED
Jensen, who is chemically sensitive, filed her initial petition in 2014. She was joined by Healthy Alternatives 2 Pesticides in filing the operative second amended petition (Petition) later that year. The Petition's first cause of action alleges that defendants were required to prepare an environmental impact report before engaging in pesticide fogging. The Petition alleges plaintiffs "filed this action within 180 days of learning that [defendants were] going to do pesticide fogging for mosquitoes in 2014." The Petition further alleges that for "2014 the decision was made by [defendants] to use Zenivex for the adulticide." The second cause of action seeks declaratory relief to remedy the CEQA violations alleged in the first cause of action. The third cause of action alleges that defendants' "practice of entering all private properties by depositing pesticides thereon within [a] one mile radius of a confirmed infected mosquito is in direct violation of Health and Safety Code Section 2053(b) as the practice conflicts with the private property rights guaranteed in the Federal and State Constitutions," and is carried out without "probable cause to believe the property being treated actually requires treatment." (Underscoring omitted.) The fourth cause of action alleges that defendants' fogging activities constitute a trespass.
B. FACTUAL ALLEGATIONS
The following is based on the allegations in the second amended petition, as well as documents of which the trial court took judicial notice.
At defendants' request, the trial court took judicial notice of several documents as official government acts. (Evid. Code, § 452, subd. (c).) We likewise take judicial notice of that evidence. (Evid. Code, § 459, subd. (a).)
Defendant Santa Clara County Vector Control District (District) is a special district serving defendant County of Santa Clara (County). The District conducts "programs for the surveillance, prevention, abatement and control of mosquitoes and other vectors." In 2007, the District filed a notice of exemption under CEQA for its adoption of a "Comprehensive Description and Analysis of Programs and Services" (2007 Plan). (Italics omitted.) The notice stated that the 2007 Plan was exempt from CEQA review, citing several categorical and statutory exemptions. The 2007 Plan described the District's procedures for vector control. Included in those procedures was "application of insecticides for control of adult mosquitoes (adulticiding)." "The most common form of adulticiding is the application of insecticide aerosols at very low dosages and using little or no dilutent[,] ... commonly called the ultra-low-volume (ULV) method." West Nile virus was listed as one of three mosquito-transmitted viruses of greatest public health concern in California. Ground adulticiding is usually accomplished by mounting fogging equipment on trucks, which are then driven at a constant speed around the treatment area. No CEQA challenge was filed to the notice of exemption.
For "Mosquito Program Chemical Control," the notice of exemption listed two categorical exemptions from the CEQA Guidelines, California Code of Regulations, title 14, sections 15307 and 15308. (Cal. Code Regs., tit. 14, § 15307 [exempting "actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment"]; id., § 15308 [exempting "actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment"].)
In 2011, the County's board of supervisors adopted a resolution approving the District's "Mosquito-Borne Virus Response and Operations Plan" (2011 Operations Plan). The resolution recited that the "State Department of Public Health has reported that [the West Nile virus] is endemic in California, and will continue to pose a public health threat." Under the 2011 Operations Plan, if the District detects one or more mosquitoes testing positive for West Nile virus, it will undertake "limited truck-based" ULV adulticiding. Adulticiding is carried out on public streets within a one-mile radius of the infected mosquito. According to the 2011 Operations Plan, chemicals the District has used for ULV adulticiding include "pyrethrins such as Pyrenone Public Health Spray." The 2011 Operations Plan contains an appendix of pesticides approved for use as adulticides in California; Pyrenone and Zenivex are listed. Another appendix addresses public notice, stating that "public notification of pending adult mosquito control is conducted as early as possible prior to the treatment event." The 2011 Operations Plan makes no reference to CEQA, and no legal challenge was filed to the approval of the 2011 Operations Plan.
The trial court declined to take judicial notice of the copy of the 2011 resolution filed by defendants because that copy did not contain signatures indicating it had actually been approved. Plaintiffs filed a signed copy of the resolution as an exhibit to a declaration. As neither party disputes the authenticity of the resolution, we take judicial notice of the signed resolution. (Evid. Code, § 459, subd. (d).)
Later in 2011, the District filed a notice of intent to join a blanket National Pollutant Discharge Elimination System (NPDES) permit issued by the State Water Resources Control Board. An attachment to the notice of intent lists Pyrenone and Zenivex as pesticides approved under the blanket permit. Along with the notice of intent, the District filed a Pesticide Application Plan (2011 Pesticide Application Plan), which describes best management practices for pesticide storage and application. These documents do not mention CEQA, and no lawsuit was filed to challenge them.
Though the NPDES permit is not in the record, the Petition alleges that the permit requires agencies to file annual reports to the State Water Resources Control Board. The record before us contains copies of annual reports for 2011/2012 and 2013 submitted by the Mosquito and Vector Control Association of California NPDES Permit Coalition, of which the District is a member. Also in the record is a January 2014 letter from the District to the State Board regarding amendments to the District's 2012 annual report requested by the State Board. The letter states: "Applications made by [the District] in Santa Clara County ... were in compliance with the permit in 2012; there were no violations. The best management practices (BMPs) outlined in [the District's] Pesticide Application Plan (PAP) were appropriate and coincided with our ongoing Integrated Vector Management Program."
C. DEMURRER SUSTAINED
Defendants demurred to the Petition, arguing that the CEQA cause of action is barred by the statute of limitations and that plaintiffs had failed to exhaust their administrative remedies. Defendants argued that the third cause of action under Health and Safety Code section 2053 failed to state facts sufficient to constitute a cause of action. Plaintiffs opposed the demurrer, but made clear they would no longer pursue the fourth cause of action for trespass "and thus have no opposition to the demurrer on this point." By written order, the trial court sustained the demurrer to all causes of action without leave to amend.
II. DISCUSSION
A demurrer is an appropriate method to challenge the adequacy of a petition for writ of mandate. (May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1323 (May); Civ. Proc. Code, § 430.10.) We review the trial court's order sustaining defendants' demurrer to the Petition de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (May, at p. 1324.) We assume the truth of all facts alleged in the Petition unless those facts are contradicted by judicially noticeable materials. (Stoney Creek Orchards v. State of California (1970) 12 Cal.App.3d 903, 906.)
D. CEQA CAUSE OF ACTION
1. Notices of Exemption and Statutes of Limitation Under CEQA
To balance CEQA's purpose of ensuring that public agencies consider the environmental consequences of discretionary projects against the need for finality and certainty in land use decisions, CEQA "provides 'unusually short' limitations periods (Cal. Code Regs., tit. 14, §§ 15000 et seq. (CEQA Guidelines), 15112, subd. (a)) after which persons may no longer mount legal challenges, however meritorious, to actions taken under the Act's auspices." (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488 (Stockton Citizens).)
"CEQA generally provides that, before a public agency carries out or approves any discretionary project—i.e., any activity that requires the exercise of agency judgment or deliberation and foreseeably may cause physical damage to the environment—the agency must first assess the project's potential environmental effects. ([Pub. Res. Code,] §§ 21065, 21080, subd. (a), 21100, 21151; CEQA Guidelines, § 15357.)" (Stockton Citizens, supra, 48 Cal.4th at p. 498.) But that general procedure is inapplicable if a project falls under a statutory exemption (Pub. Res. Code, § 21080, subd. (b)) or a categorical exemption (CEQA Guidelines, §§ 15300-15333).
The applicable statute of limitations to challenge a decision that a project is exempt from CEQA depends on the agency's approval process. If an agency determines that a project is exempt from CEQA it may—but is not required to—file a notice of exemption with the county clerk of each county where the project will be located. (Stockton Citizens, supra, 48 Cal.4th at p. 498, citing Pub. Res. Code, § 21152, subd. (b).) If an agency files a notice of exemption, an action challenging that decision "shall be commenced within 35 days" after the notice of exemption is filed. (Pub. Res. Code, § 21167, subd. (d).) If no notice of exemption is filed, the action "shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project." (Ibid.) Because an action to challenge a decision that a project is exempt from CEQA "accrues not at the time of the determination but instead on one of three alternative dates set forth" in Public Resources Code section 21167, subdivision (d)—"dates on which the public is deemed to have constructive notice of the potential CEQA violation"—the discovery rule applicable to toll the statute of limitations in other civil actions does not apply. (Communities for a Better Environment v. Bay Area Air Quality Management Dist. (2016) 1 Cal.App.5th 715, 718.)
2. CEQA Action is Time-Barred
Plaintiffs argue that "the current spraying program" they are challenging is not the same project defendants found exempt from CEQA in 2007. They focus on two issues that they argue distinguish the current program from the 2007 Plan: defendants' finding that the West Nile virus is an endemic disease rather than a disease that could be eradicated; and the District's decision to switch to Zenivex as the pesticide used to spray adult mosquitoes. The problem with plaintiffs' argument is that they focus on the wrong approval. The 2007 Plan was rendered largely irrelevant by the 2011 Operations Plan, a plan plaintiffs never challenged. As we will discuss, plaintiffs' failure to challenge the 2011 Operations Plan—which acknowledged and addressed the two issues they identify—bars their CEQA cause of action.
It is instructive to summarize defendants' approvals. The 2007 Plan discussed the use of pesticide aerosols to control adult mosquito populations and was accompanied by a notice of exemption from CEQA. The County's 2011 resolution acknowledged that the West Nile virus was by then endemic to California. The 2011 Operations Plan detailed the District's comprehensive procedures for controlling mosquitoes, including the spraying of pesticides to control adult mosquitoes. Separate from the 2011 Operations Plan, defendants filed an application in 2011 to join a blanket NPDES permit. According to the Petition, that NPDES permit requires annual reports detailing the pesticides the District plans to use in the coming year and an analysis of alternatives that would reduce the need for pesticide spraying.
It is undisputed that plaintiffs did not challenge the 2007 or 2011 approvals within the applicable CEQA statutes of limitations. Plaintiffs are therefore barred from challenging anything approved in those documents. (See Stockton Citizens, supra, 48 Cal.4th at p. 489.) In essence, the Petition is a belated challenge to the 2011 Operations Plan. Plaintiffs' intent is apparent from the information they cite to describe the "current adulticiding" program they attempt to challenge. Plaintiffs state that "adulticiding is triggered by the trapping of a single infected mosquito," and note that the fogging range covers one square mile. As support for those statements, plaintiffs cite the 2011 Operations Plan—which they never challenged.
The two issues plaintiffs argue distinguish defendants' current conduct from earlier approvals—the finding that West Nile virus is an endemic disease and the use of Zenivex—were both addressed in 2011. The 2011 County resolution states: "the State Department of Public Health has reported that [the West Nile virus] is endemic in California, and will continue to pose a public health threat." And Zenivex was listed as an approved pesticide on attachments to both the 2011 Operations Plan and the 2011 notice of intent to join the NPDES permit. As those issues were addressed in 2011 and never challenged, plaintiffs may not challenge them now.
Plaintiffs attempt to revive an untimely challenge to defendants' 2011 approvals by arguing that every annual report required by the NPDES permit effectively opens a new limitations period to challenge defendants' CEQA compliance. But plaintiffs cite no authority allowing a petitioner to belatedly challenge a project approval by challenging the annual reports mandated by the approval, and we have found none.
Even assuming that filing an annual report could be considered a discretionary decision outside the scope of previous approvals that might trigger new compliance with CEQA (Pub. Res. Code, §§ 21065, 21080, subd. (a)), plaintiffs point to nothing in any NPDES annual report that was outside the scope of the 2011 approvals. Plaintiffs argue that the "change in pesticide was an example of how each year [the District] makes a discretionary decision as to how it will perform mosquito abatement." But the new pesticide was listed as an approved substance in the 2011 Operations Plan that plaintiffs never challenged. The trial court's statement that the use of a new pesticide "plainly does not constitute a new project" may not be true in all cases. But it is accurate here where defendants merely chose a pesticide from a list they had previously approved.
"A statute of limitations ' "necessarily fix[es]" a "definite period[ ] of time" [citation], and hence operates conclusively across-the-board. It does so with respect to all causes of action, both those that do not have merit and also those that do. That it may bar meritorious causes of action as well as unmeritorious ones is the "price of the orderly and timely processing of litigation" [citation]—a price that may be high, but one that must nevertheless be paid.' " (Stockton Citizens, supra, 48 Cal.4th at p. 499, italics in Stockton Citizens.) The trial court properly sustained the demurrer as to the CEQA cause of action.
E. HEALTH AND SAFETY CODE SECTION 2053
Plaintiffs argue that spraying pesticides from a public street onto private property can constitute an entry onto property by a District employee, and that the Petition's third cause of action therefore properly states a claim for a violation of Health and Safety Code section 2053. (Unspecified statutory references are to this code.)
1. Statutory Interpretation
Section 2040 grants broad authority to vector control districts: "Within the district's boundaries or in territory that is located outside the district from which vectors and vectorborne diseases may enter the district, a district may do all of the following: [¶] (a) Conduct surveillance programs and other appropriate studies of vectors and vectorborne diseases. [¶] (b) Take any and all necessary or proper actions to prevent the occurrence of vectors and vectorborne diseases. [¶] (c) Take any and all necessary or proper actions to abate or control vectors and vectorborne diseases. [¶] (d) Take any and all actions necessary for or incidental to the powers granted by this chapter."
Section 2053 describes circumstances under which district employees may enter private property. Subdivision (a) states, in relevant part: "A district may request an inspection and abatement warrant pursuant to Title 13 (commencing with Section 1822.50) of Part 3 of the Code of Civil Procedure. ... A warrant may authorize district employees to enter property only to do the following: [¶] (1) Inspect to determine the presence of vectors or public nuisances. [¶] (2) Abate public nuisances, either directly or by giving notice to the property owner to abate the public nuisance. [¶] (3) Determine if a notice to abate a public nuisance has been complied with. [¶] (4) Control vectors and treat property with appropriate physical, chemical, or biological control measures." (§ 2053, subd. (a), italics added.) Subdivision (b) states: "Subject to the limitations of the United States Constitution and the California Constitution, employees of a district may enter any property, either within the district or property that is located outside the district from which vectors may enter the district, without hindrance or notice for any of the following purposes: [¶] (1) Inspect the property to determine the presence of vectors or public nuisances. [¶] (2) Abate public nuisances pursuant to this chapter, either directly or by giving notice to the property owner to abate the public nuisance. [¶] (3) Determine if a notice to abate a public nuisance has been complied with. [¶] (4) Control vectors and treat property with appropriate physical, chemical, or biological control measures." (§ 2053, subd. (b), italics added.)
The issue here is whether spraying pesticides from a public street causing particulate matter to land on private property is an activity encompassed by section 2053. Determining that issue requires us to independently interpret section 2053. When interpreting a statute, we look to the statute's words and give them " 'their usual and ordinary meaning.' " (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) The statute's plain meaning controls unless its words are ambiguous. (Id. at pp. 387-388.)
2. Section 2053 Does Not Apply to Spraying from Public Roads
By its terms, section 2053 describes circumstances under which "employees of a district may enter any property" to, among other things, "[c]ontrol vectors and treat property with appropriate physical, chemical, or biological control measures." (§ 2053, subds. (a)(1)-(4), (b)(1)-(4).) Section 2053, subdivision (a) allows district employees to enter private property if they obtain an inspection and abatement warrant under the procedures described in the Code of Civil Procedure. Section 2053, subdivision (b) allows district employees to enter private property without an inspection and abatement warrant, subject to "the limitations of the United States Constitution and the California Constitution."
Plaintiffs argue that defendants "cannot reasonably claim the statute differentiates between its employee stepping onto the property to fog it and its employee discharging the fog onto private properties from the street." But the statute's plain language does just that. The plain language of section 2053 is limited to situations where a district employee seeks to enter private property. Nothing in section 2053 suggests that it applies where no employee actually enters private property.
Interpreting section 2053 to apply to situations where the only "entry" onto private property is the distribution of particulate matter from a public road would require us to read references to "employees" out of the statute. Such a result would violate the well-established rule of statutory interpretation that wherever possible we should give effect and significance to every word and phrase of a statute. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.)
Plaintiffs argue that spraying pesticides is a violation of their Fourth Amendment rights and note that distribution of particulate matter on the land of another can constitute a trespass. (Citing People v. Cook (1985) 41 Cal.3d 373, 382 (Cook) [finding warrantless aerial surveillance from an airplane was an unreasonable search in violation of Cal. Const., art. I, § 13].) But those arguments are irrelevant to interpreting the language of section 2053, which was the sole statutory basis for their third cause of action. We conclude that section 2053 applies only to actual physical entry by district employees onto private land.
Plaintiffs do not allege that defendants' employees physically entered their property. The only activity they argue violates section 2053 is defendants' "pattern and practice of entering all private properties by depositing pesticides thereon within [a] one mile radius of a confirmed infected mosquito." Given that plaintiffs allege no physical entry onto their property by defendants' employees, section 2053 does not apply and plaintiffs failed to state a cause of action for a violation of the statute.
Because we find section 2053 does not apply to the conduct alleged in the Petition, we do not reach the parties' dispute regarding whether the warrant requirement in section 2053, subdivision (a) is permissive or mandatory. Nor do we address plaintiffs' arguments related to trespass because they are waived; plaintiffs expressly abandoned their trespass cause of action in opposing the demurrer. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 521, fn. 3 ["Waiver is the ' " 'intentional relinquishment or abandonment of a known right.' " ' "].)
F. LEAVE TO AMEND
We asked for supplemental briefing regarding whether there was a reasonable possibility plaintiffs could amend the Petition to state a cause of action for a direct violation of their rights under the Fourth Amendment to the United States Constitution or article I, section 13 of the California Constitution; or for a direct violation of their right to due process under the Health and Safety Code, the Fourteenth Amendment to the United States Constitution, or article I, section 7 of the California Constitution. If there is a reasonable possibility that the Petition can be amended to state a cause of action, plaintiffs are entitled to leave to amend even if they did not request that opportunity in the trial court. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando); Code Civ. Proc., § 472c, subd. (a).) Plaintiffs bear the burden of showing that an amendment will cure the defect. (Schifando, at p. 1081.)
1. Search and Seizure Cause of Action
Plaintiffs allege that defendants' practice of "fogging pesticide from public streets by high power spray equipment onto private properties, including residences, is a search and seizure" for which a warrant is required by the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution. It is undisputed that defendants' employees have never physically set foot onto plaintiffs' property; plaintiffs instead argue that any activity by a public entity on public land that can result in the deposition of particulate matter onto private property can constitute a search or seizure.
The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article I, section 13 of the California Constitution contains almost identical language.
a. Defendants' Conduct is Not a Search
Plaintiffs argue that defendants' conduct is a search because "the purpose of the spraying is to search for, and kill, mosquitoes."
Though creative, that argument would expand the definition of "search" beyond its breaking point. California and federal authorities have consistently interpreted the term "search" as it is used in the constitutional provisions at issue here to require more than the passive deposition of particulate matter. (Bielicki v. Superior Court (1962) 57 Cal.2d 602, 605; accord United States v. Haden (7th Cir. 1968) 397 F.2d 460, 465; Poore v. State of Ohio (N.D.Ohio 1965) 243 F.Supp. 777, 782 ["The term 'search' necessarily implies the prying into or uncovering of that which one has a right to, and intends to, and effectively does conceal from the view or scrutiny of another."], italics added.)
Plaintiffs do not cite a single case where the Fourth Amendment or its equivalent in the California Constitution has been applied to government conduct that did not involve inspection of private property. The cases plaintiffs cite all involve surveillance activities, conducted either through physical entry onto private property by government agents or from a public vantage point using technology.
A case involving physical entry is Gleaves v. Waters (1985), where the court determined that the Fourth Amendment's warrant requirement applied to entry onto private property by agricultural control officers to abate a public nuisance species. (Id. at pp. 416, 418-419.) The Gleaves court focused on the physical entry by government agents in finding the warrant requirement applicable, finding that "government officials engaged in the abatement of a public nuisance must have a warrant to enter any private property where such entry would invade a constitutionally protected privacy interest." (Id. at p. 419, italics added.)
A case involving surveillance of private property from a public vantage point is Cook, where the Supreme Court determined that surveillance by officers located in an airplane flying 1,600 feet above the defendant's property required a warrant. (Cook, supra, 41 Cal.3d at pp. 381-382.) As the officers in that case were obviously looking for something on the defendant's property (specifically, marijuana), there was no dispute as to whether their activity was a search. The case instead turned on whether the airplane surveillance was authorized as an extension of the plain view doctrine because the back yard where the marijuana was discovered was not covered. (Id. at p. 380.)
Defendants' fogging activities do not involve exploring or prying. The purpose of defendants' fogging is to prevent the spread of vectors by providing a perimeter around areas where one or more infected mosquitoes have been discovered. Plaintiffs have not met their burden to demonstrate a reasonable possibility of amending the Petition to state a cause of action for an unlawful warrantless search.
b. Defendants' Conduct is Not a Seizure
Plaintiffs argue that defendants' fogging operations effect a seizure of plaintiffs' property by substantially interfering with their possessory interest. "A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." (United States v. Jacobsen (1984) 466 U.S. 109, 113 (Jacobsen).)
Plaintiffs cite no case that is remotely similar to the factual situation here. Unlike defendants' conduct—leading, at most, to particulate matter being deposited onto private property—every seizure case plaintiffs cite involves government agents either physically taking possession of private property or facilitating a third party's taking of private property. (Soldal v. Cook County (1992) 506 U.S. 56, 58, 61 [physical removal of a mobile home by mobile home park owner, where deputy sheriff supervised removal, was a seizure]; Jacobsen, supra, 466 U.S. at pp. 111, 120-123 [taking custody of damaged package and removing small amount of suspected cocaine for field test were seizures (but were found reasonable under the circumstances)]; Lavan v. City of Los Angeles (9th Cir. 2012) 693 F.3d 1022, 1024-1025, 1029-1030 [collecting and summarily destroying homeless persons' belongings momentarily left unattended on public sidewalks was an unreasonable seizure].)
Plaintiffs have not cited a single case finding a seizure in the absence of the loss of any possessory interest in private property. They have therefore not shown a reasonable possibility of amending the Petition to state a cause of action for an unlawful warrantless seizure.
2. Due Process Cause of Action
Plaintiffs argue that defendants are "treating [plaintiffs'] residences as public nuisances justifying treatment with an insect-killing pesticide" without due process. Plaintiffs argue that defendants must comply with section 2060 before pesticide fogging. Plaintiffs also cite the due process clauses of the California and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)
a. Sections 2060 and 2061 Do Not Apply to Defendants' Conduct
Plaintiffs argue that section 2060 "provides the due process to be afforded ... when determining whether a property is blighted as a public nuisance." Plaintiffs' argument proceeds from a faulty premise: defendants have never purported to declare plaintiffs' residences public nuisances.
Section 2060, subdivision (a) states that a vector control district "may abate a public nuisance pursuant to this article." The nuisance abatement due process requirements are found in section 2061, which generally requires notice and a hearing before a vector control district "may abate the public nuisance and take the necessary actions to prevent the recurrence of the public nuisance." (§ 2060, subds. (a), (b), (e).)
Plaintiffs' argument assumes that declaring their properties a public nuisance under section 2060 is a necessary prerequisite to defendants' fogging activities. But plaintiffs point to no law requiring defendants to declare property a public nuisance before being authorized to fog for mosquitoes.
As we already observed, section 2040 broadly authorizes defendants to take "any and all necessary or proper actions to prevent the occurrence of vectors" and to "abate or control vectors of vectorborne diseases." (§ 2040, subds. (b), (c).) The trigger for the fogging activities plaintiffs challenge here is the discovery of an infected mosquito. Under section 2040, defendants may carry out pesticide fogging activities to "abate or control" the spread of the vectorborne disease discovered in that infected mosquito regardless of whether a public nuisance exists on plaintiffs' property.
Because defendants need not establish that plaintiffs' properties are public nuisances before conducting fogging activities, there is no reasonable possibility that plaintiffs could amend the Petition to state a cause of action for failure to comply with sections 2060 and 2061.
b. Fogging is not a Significant Property Deprivation
Plaintiffs cite the due process clauses of the California and federal Constitutions to argue that under those authorities "private property rights cannot be taken by the government without due process of law."
A constitutional due process challenge involve two steps. Plaintiffs must show that they were deprived of a protected life, liberty, or property interest. (Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 214.) If plaintiffs show they were deprived of a constitutionally protected interest, we must then determine what process is due. (Ibid.) The authorities are clear that due process attaches to any "significant taking of property by the state." (Fuentes v. Shevin (1972) 407 U.S. 67, 86, italics added; Randone v. Appellate Department (1971) 5 Cal.3d 536, 541 ["[A]n individual must be afforded notice and an opportunity for a hearing before he is deprived of any significant property interest."].) Plaintiffs appear to allege that defendants' spraying particulate matter from public property onto private property deprived plaintiffs of their "right to keep property clear of contamination by any foreign substance including pesticides, to sleep without fear of contamination caused by another, to maintain the flora and fauna on their property, to grow one's food organically, [and] to keep property safe for pregnant women, vulnerable persons, including small children, from potentially harmful chemicals."
Plaintiffs essentially argue that any interference by defendants with plaintiffs' use of their private property triggers due process protections. Plaintiffs cite no authority recognizing such an expansive interpretation of the state and federal constitutional due process clauses, and we have found none. They have therefore not met their burden to demonstrate a reasonable possibility of amending the Petition to state a due process cause of action.
III. DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Elia, Acting P. J. /s/_________ Bamattre-Manoukian, J.