Opinion
B225643 (c/w B227321)
11-16-2011
KIMBERLY KEMPTON, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Charles G. Kinney for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Andrew J. Nocas and Peter E. Langsfeld, Deputy City Attorneys, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC413357)
APPEALS from a judgment and order of the Superior Court of Los Angeles County. Richard L. Fruin, Jr., Judge. Affirmed.
Charles G. Kinney for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Andrew J. Nocas and Peter E. Langsfeld, Deputy City Attorneys, for Defendant and Respondent.
In this grudge suit, California lawyers Charles G. Kinney and Kimberly Jean Kempton (the K's) continue their relentless assault on the good will and sensibilities of their hapless neighbors. This time, the K's want to build a wide driveway entrance directly in front of their adjoining neighbor's house, on a narrow street in a quaint neighborhood where the homes are closely set. The K's claim that the City of Los Angeles (the City) must permit their grandiose driveway under the Americans With Disabilities Act (ADA), but cite no ADA provision supporting their claim. The K's expert testified that he does not know what the ADA mandates. Unsurprisingly, the trial court found the K's claim baseless. So do we. We affirm the judgment (B225643) and affirm the court's award of costs to the City (B227321).
In prior outings, the K's sued—without success—neighbor Carolyn Cooper and her minor son; neighbors Jeffrey and Judy Harris and their son; neighbor Karen Numme; the prior owner of the K's property, Michele Clark; the brokers who represented Clark; and the City. (L.A. Super. Ct. case Nos. BC363837, BC354136, BC354138, BC363261, BC374938.). In 2008, Kinney was declared a vexatious litigant in Los Angeles Superior Court. Kinney told the trial court that he is not the named plaintiff in the case at bench because "I'm a vexatious litigant, and it takes too long to get approval" to sue.
FACTS
Kimberly Kempton and Charles Kinney co-own property on Fernwood Avenue, a narrow, sloping street in the Silver Lake neighborhood of the City. Their house, built in 1933, has a detached garage at the rear of the property. Although Kinney testified that "this is my owner-occupied house," his next-door neighbor stated that Kinney has never lived in the home, and Kempton moved away in 2007. The home is tenant-occupied.
The K's live in Northern California. Kinney's office is in Oakland, and Kempton is counsel at Chevron Corporation in San Ramon, according to State Bar records.
There are no public sidewalks on Fernwood Avenue. Between the paved street and the houses on Fernwood is an unimproved public right-of-way, a five-foot-wide strip of land. Homeowners on Fernwood own the underlying fee title on the strip of land in front of their homes. If the City were to abandon its interest in the strip of land, title would revert to the homeowners. Most homeowners on the street have fences, trees, grass, and bushes in the unimproved public right-of-way. As a result, pedestrians cannot walk down Fernwood unimpeded, in the area between the street and the houses.
In October 2008, the K's obtained a permit from the City to widen their driveway entrance. The original permit would have created a 30-foot opening to the street, with side slopes of 12:1 (an 8.33 percent grade). Kempton testified that she wants an expansive entrance to her driveway to discourage parking scofflaws from blocking her ingress and egress.
A side slope is defined as "that portion of the driveway approach which provides a transition from the normal curb grade to the grade of the apron by means of a sloping surface. Where a curb return is constructed in lieu of a sloping surface, the side slope shall be deemed to end at the exterior beginning of the curb of such curb return." (L.A. Mun. Code, § 62.00.)
The K's driveway runs along the property line they share with next-door neighbor Carolyn Cooper. The K's original driveway approach was solely on the land in front of their house, and did not extend in front of Cooper's property. The K's 2008 City permit allowed their driveway modification to extend six feet into the grass-covered public right-of-way directly in front of Cooper's home. The City allows adjoining landowners to build driveway side slopes that intrude onto land in front of their neighbors' houses, without their consent. According to one City employee, a "normal" intrusion is three feet: anything wider than three feet is an exception and requires consent from the adjoining landowner.
Cooper opposed the K's proposed driveway side slope intrusion onto the grass in front of her house. In February 2009, Cooper physically prevented the K's crew from carving into the land by sitting down on the ground at the construction site. In response to Cooper's complaint, a City construction field inspector came to the site. There, he discovered that two below-ground water meter boxes—belonging to Cooper and the K's—were located in the construction area. The water meters were not disclosed on the K's original permit application. The City does not issue permits allowing a driveway to pass over water meters because the weight of a vehicle might crush the cover. Had construction proceeded, the K's water meter would have ended up under the driveway apron and Cooper's water meter would have been under the side slope of the new driveway. It is the responsibility of the landowner performing work to move the utility boxes, at his or her expense.
The City's field inspector directed Kinney (who was at the site videotaping Cooper's protest) to apply for a modified permit. In the inspector's view, the City engineer who approved the K's original driveway concept "didn't know what was going on there." The inspector recommended that the driveway entrance be moved to avoid the water meter boxes. Kempton was not present during any of Kinney's dealings with Cooper or the City, although she encouraged Kinney to videotape the event. The inspector testified that he has "never seen" a six-foot side slope, and he inspects at least eight driveways every day.
Under protest, the K's submitted a new permit application. The modified permit issued in 2009 moved the driveway entrance 42 inches uphill, to avoid the K's and Cooper's water meters. As modified, the permit placed the K's driveway entrance in front of the K's house, instead of Cooper's house.
The City's principal construction inspector was not surprised that a field inspector would reduce the side slope of the K's driveway from six feet to 42 inches, noting that it all "depends on field conditions." For example, there could be a tree, meter boxes or a streetlight that would require special clearance. In this instance, there were two meter boxes present, and the City does not allow meter boxes on driveway approaches because "there are no approved meter box lids that are traffic rated." While a homeowner might be able to seek and obtain approval from the Department of Water and Power (DWP) to move a water meter box, and pay for the relocation, the DWP sometimes refuses to move the meter boxes. The principal inspector considered it "a minor thing" that the field inspector recommended moving the driveway approach 42 inches uphill to avoid the meter boxes. A City civil engineering manager testified that there was insufficient space between the K's driveway and Cooper's property line to allow a long gradient for the side slope.
Kinney testified that when he bought the property in 2005, the driveway was largely dirt. The K's complain that their cars scrape the edge of the driveway side slope on the downhill side (Cooper's side) because it is 42 inches wide. However, when they bought the house, the side slope was only about four inches long. Kempton agreed in her testimony that the driveway was much narrower when she bought the property than it is now, since she constructed a 42-inch side slope on the left and a six-foot side slope on the right.
According to the K's expert, the new side slope is less steep than the one existing when the K's bought the house, before they made changes to the driveway. The K's expert does not know what kind of side slopes are mandated by the ADA. Under questioning by the trial court, Kempton conceded that she could turn into the driveway easily, without hitting her tires, if she widened the driveway in front of her house, instead of putting it in front of Cooper's house. Based on photographic evidence of the site, the trial court voiced doubts that Kempton would strike the curb when turning into her driveway. Cooper, who has lived in her home since 1985, testified that neither of the K's predecessors had difficulty parking their SUV or large sedan in the driveway, even before the entrance was widened.
In the middle of trial, the court suggested that the K's apply to the DWP for a permit to relocate the two water meter boxes. A three-month continuance was granted for that purpose, with the court expressing hope that the case "actually may be settled" as a result. The DWP relocated the two water meters, so that Cooper's utility box is now 42 inches away from her property line with the K's. The trial resumed, but the K's remained unhappy, maintaining that the side of their driveway abutting Cooper's property is not ADA compliant because it is too steep. Noting the cost of proceeding with the trial, the court continued to express hope for a nonjudicial resolution.
At the newly resumed trial, the City's civil engineer testified that the K's recently reapplied to have their driveway entrance span 30 feet: 18 feet in the middle (the apron) and six feet on each of the side slopes. The City agreed that the bottom of the K's driveway could extend to Cooper's property line; however, the City proposed "more of a rounded curb, which would impact the adjacent neighbor less." The City's proposal reduced the amount of concrete, leaving mostly landscaping in the public right-of-way in front of Cooper's house.
The City's civil engineer testified that the City is not compelled to comply with ADA standards for driveway side slope elevations in this particular case. There are no public sidewalks running the length of Fernwood Avenue. The governing standards for driveway elevations are for sidewalks, and do not mention anything about driveway side slopes. The engineer opined that the City's proposal for the K's driveway is "consistent . . . with the City's policy regarding side slopes."
PROCEDURAL HISTORY
With Kinney as her attorney, Kempton sued the City for creating a public and a private nuisance. The alleged nuisance is the City's refusal to allow her to construct side slopes that extend six feet into the public right-of-way in front of Cooper's house. The City took the position that there are no ADA standards for the side slopes of driveways, although there are standards for public sidewalks that cross driveway aprons.
The K's also sued neighbor Cooper, but the court struck Cooper as a defendant, at the City's request.
After filing this lawsuit, the K's erected a mini-sidewalk in the public right-of-way in front of their house, in June 2009. Kinney described his 2.7-foot-long sidewalk as "a private improvement in the public right-of-way." Cooper testified that the K's "little piece of sidewalk" is mostly comprised of driveway side slope. The City's engineer testified that an unpaved grassy area abutting a driveway is not a "sidewalk."
Throughout the trial, the court reiterated its amazement that the K's were taking this case to trial, and its difficulty in understanding what they wanted. At the end of trial, the court commented that "this is a case where, uniquely, I'm more mystified after the evidence than before the evidence was submitted. . . . And I can't believe that we spent four days talking about whether the curb cut is going to be a case three or a case two, and you're apparently backing that up [with] a request for damages." At that point, Kinney conceded that he did not mind the City's proposal, "I just think it creates a tripping hazard in the public right-of-way." Once Kinney made that concession, the court asked, "Is that the end of the lawsuit?" Kinney replied, "Well, essentially it is the end of the lawsuit," but he still wanted damages because the City caused him to "waste[] all this time."
The court observed that it did not need to make any order regarding the driveway approved by the City, as it was within City guidelines and the City was not required to do anything else. Nevertheless, Kinney argued that the City created a private nuisance when it moved the driveway opening 42 inches uphill, which was originally done to avoid the water meters, because the opening does not line up precisely with the driveway. This confused the court, which noted that after the lawsuit was filed, the City "approved a modification of your original application that's satisfactory to you and to the City." To no avail, the court repeatedly asked Kinney for legal authority for the proposition that the City's act of giving discretionary permit approval creates a private nuisance. The court also asked how a driveway permit is a public nuisance affecting an entire neighborhood or a considerable number of people, as required by the public nuisance statute. Kinney identified the public nuisance as the "tripping hazard" created by a curb, the sprinkler heads in front of Cooper's house, and an alleged ADA violation.
THE TRIAL COURT'S RULING
In its statement of decision filed on May 5, 2010, the trial court found that the City acted within its discretion in modifying the original permit and issuing a new permit that approved a different configuration for the driveway side slope. The court also found that "Plaintiff has not proved that the permitted configuration violates the ADA." Indeed, the court indicated that it "is not certain that plaintiff has standing to allege an ADA violation. She does not allege (and did not testify) that she is handicapped and, thus, within the class of persons protected by the ADA."
To the extent that plaintiff was claiming potential liability for having an architectural barrier preventing handicap access, "The party that would appear to be liable under such hypothetical circumstances would be the City rather than the landowner because the supposed 'architectural barrier' in the driveway side slope . . . would be maintained on the City's property and under the City's Class A permit." Plaintiff provided no authority to the court supporting her contention that the ADA applies to the permit issued in this case. The City's rules only apply where cross slopes connect to a "sidewalk"; here, there are no publicly constructed sidewalks, or "continuous common surface" for pedestrians. Absent any showing of a private or public nuisance, the court granted judgment to the City.
DISCUSSION
Appellant has filed two appeals. The first appeal is from the judgment in favor of the City (B225643). The second appeal is taken from the trial court's order denying appellant her costs (B227321). The two appeals were consolidated for hearing. Both the judgment and the postjudgment order regarding costs are appealable. (Code Civ. Proc., § 904.1, subd. (a)(1)-(2).)
Appeal No. B225643
The Judgment in Favor of the City of Los Angeles
Kempton sued on two theories: public nuisance and private nuisance. It is impossible to discern from the K's incoherent appellate brief what their theory of recovery is. The ADA (42 U.S.C. § 12101 et seq.) requires no interpretation because it is not cited at all in the K's brief. The City's experts testified that City side slope standards do not apply here, where there is no public sidewalk crossing a driveway entrance. The testimony from City experts was uncontradicted. Absent a statute or ordinance that requires interpretation, we review the judgment to see if it is supported by substantial evidence. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 384.)
Nuisance is defined by statute. It is "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." (Civ. Code, § 3479.) A public nuisance "affects at the same time an entire community or neighborhood, or any considerable number of persons . . . ." (Civ. Code, § 3480; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1104.)
1. Public Nuisance
Blocking a public sidewalk may constitute a public nuisance. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348-1349.) To succeed in a private action for a public nuisance, a plaintiff must affirmatively show that an obstruction in the sidewalk is more injurious to him than it is to the public at large: "Any injury or annoyance which he suffered from it may be greater in degree, but it is not different in kind from that sustained by the public; therefore, he receives from it no special injury for which he is entitled in law to a private action." (Marini v. Graham (1885) 67 Cal. 130, 133.) In other words, the individual must suffer harm that is "specially injurious to himself" when seeking to abate a public nuisance. (Civ. Code, § 3493; Kempton v. City of Los Angeles, supra, 165 Cal.App.4th at p. 1349; Koll-Irvine Center Property Owners Assn. v County of Orange (1994) 24 Cal.App.4th 1036, 1040.)
Kempton's fear of a "tripping hazard" that might cause injury to pedestrians "would be suffered by all members of the public and therefore would not alone constitute a special injury to [Kempton] actionable for public nuisance." (Kempton v. City of Los Angeles, supra, 165 Cal.App.4th at p. 1349.) Accordingly, Kempton cannot succeed on a private claim for public nuisance. Four witnesses testified that there are no public sidewalks on Fernwood Avenue. The absence of sidewalks moots Kempton's claim that the City has obstructed a sidewalk.
2. Private Nuisance
"Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. . . . [T]o proceed on a private nuisance theory the plaintiff must prove an injury specially referable to the use and enjoyment of his or her land." (Koll-Irvine Center Property Owners Assn. v County of Orange, supra, 24 Cal.App.4th at p. 1041.) An interference with the use and enjoyment of land must be "'substantial and unreasonable, and such as would be offensive or inconvenient to the normal person . . . .'" (Ibid.) "In this state, however, a private nuisance action cannot be maintained for an interference in the use and enjoyment of land caused solely by the fear of a future injury." (Id. at pp. 1041-1042.)
In the Koll-Irvine case, for example, plaintiff property owners sued Orange County for a nuisance due to the nearby operation of jet fuel storage tanks at the local airport. They claimed to fear for their lives due to the risk of a hazardous or cataclysmic event if the tanks were to rupture; to fear the increase or cancellation of their property insurance; to suffer mental anguish; and to fear a diminution in the value of their property. (24 Cal.App.4th at pp. 1038-1039.) The appellate court concluded that plaintiffs' fears were not sufficient to support a nuisance cause of action. (Id. at p. 1042.)
In the instant case, Kempton's fear that unknown pedestrians might trip over a curb is not sufficient to support a cause of action for a private nuisance. She cannot sue for future injury to others. There is no substantial or unreasonable interference with Kempton's use of her land. Kempton did not testify that she is handicapped and cannot access her property. In fact, the K's do not live at the property. The only reason Kempton gave for needing a wider entrance to her driveway is to discourage people from parking their cars near her driveway, hardly a legitimate basis for a nuisance suit. In a trial court filing in July 2010, Kempton conceded that she "no longer has any interference with the 'use' of her private property . . . ."
Owners of lots fronting public sidewalks on a public street do not owe any duty to pedestrians injured as a result of a defect in the sidewalk, under common law. (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490.) Kempton points us to no local law that would expose her to liability for the City-approved curb in the public right-of-way, particularly since the curb is in front of Cooper's house. Kempton appears to argue that the City created a nuisance by modifying her original permit, moving the driveway entrance 42 inches uphill. The trial testimony showed that the permit was modified because the K's failed to disclose in their permit application that two water meter boxes would be impacted by their proposed driveway entrance. Had the K's disclosed the presence of the utility boxes, this entire dispute could have easily been avoided. Kempton argues that the only reason the permit was modified is because Cooper is a City employee. There is no evidence supporting Kempton's argument. The only nuisance we perceive is the waste of judicial resources occasioned by this meritless lawsuit.
Appeal No B227321
The Costs Award in Favor of the City of Los Angeles
After the judgment was filed, the City filed a memorandum of costs seeking $3,593 for depositions, witness fees, and court reporter fees. Kempton opposed the request, claiming that she is the prevailing party. On July 16, 2010, the trial court denied Kempton's motion to tax costs. The court wrote that it "granted judgment for the City and awarded no relief to the Plaintiff for her two [nuisance] claims;" thus, the City is the prevailing party.
Kempton is not the prevailing party in this litigation. Midway through the trial, the K's moved the water meter boxes with permission from the DWP; the City then allowed the K's to realign their driveway entrance. After the realignment, the K's conceded that they no longer had a problem pulling into their driveway, but they insisted that the trial continue to judgment—with additional evidence taken—because they did not get a full six feet of side slope in front of Cooper's house, which supposedly created an ADA violation. The K's continue to press the same arguments about a nuisance and an ADA violation on appeal. The very fact that the K's took an appeal at all establishes that they did not prevail on their nuisance claims. If the K's "won" below, they would not be appealing now.
DISPOSITION
The judgment on appeal (B225643) is affirmed. The postjudgment order awarding costs (B227321) is affirmed. The City is awarded its costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
CHAVEZ, J.