Filed 4/30/13 County of Los Angeles v. City of Downey CA2/1

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


COUNTY OF LOS ANGELES et al.,                                        B238386

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC433683)
         v.

CITY OF DOWNEY et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara
Marie Scheper, Judge. Reversed with directions.
         Howard Gest, David W. Burhenn, Burhenn & Gest, John F. Krattli, County
Counsel, Judith A. Fries, Principal Deputy County Counsel, Laurie E. Dods, Deputy
County Counsel, for Appellants.
         Richard Montevideo, Peter J. Howell, Rutan & Tucker, Attorneys for Defendant
and Respondent City of Downey.
         Carmen A. Trutanich, City Attorney, Gary G. Geuss, Chief Assistant City
Attorney, Laurie Rittenberg, Assistant City Attorney, Sara Ugaz, Deputy City Attorney
for Defendants and Respondents City of Los Angeles and Department of Water and
Power.
                                      ____________________________
       The County of Los Angeles and its Flood Control District (County) brought this
action against the cities of Downey and Los Angeles and the Los Angeles Department of
Water and Power (Cities) alleging that Cities have created and are maintaining a nuisance
by discharging a “toxic soup” of pollutants into the Los Angeles River, its tributaries and
the County‟s flood control system. The court sustained Cities‟ demurrer to the second
amended complaint without leave to amend, denied the County‟s requests for
reconsideration and leave to file a third amended complaint and entered a judgment
dismissing the action. We reverse the judgment and direct the trial court to permit the
County to file a third amended complaint alleging damages.
                        FACTS AND PROCEEDINGS BELOW
       In reviewing an order sustaining a demurrer, we treat the well-pleaded facts as true
and give them a liberal interpretation. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 967.)
       The County‟s first amended complaint for nuisance sought damages and injunctive
relief. The trial court sustained Cities‟ demurrer on the grounds that the complaint failed
to state a cause of action for nuisance and the County failed to present Cities with
adequate claims for money damages under the Government Claims Act. (Gov. Code,
§§ 910, 945.4.) The court struck the County‟s claim for damages and allowed it to
amend its complaint for injunctive relief.
       The County‟s second amended complaint for nuisance alleges the following.1
       One of the County‟s missions is to protect its residents from flood waters and to
conserve water for their use. “In connection with its flood control and water conservation
responsibilities, the [County] owns and operates a flood control system in portions of the
Los Angeles River and its watershed.”
       The City of Los Angeles owns, operates and maintains over 2,000 miles of open
channels, drainage pipes and other structures which discharge polluted storm water and


1
      Future references to “the complaint” are to the second amended complaint unless
otherwise stated.
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urban runoff into the Los Angeles River, its watershed and the County‟s flood control
system. A report prepared in November 2008 based on monitoring the discharge from
the City of Los Angeles‟s storm sewers and drains found “highly elevated
concentrations” of coliform, fecal matter, E. coli, enterococcus and bacteroidales as well
as “chloride, cyanide, aluminum, antimony, cadmium, copper, lead, silver, zinc and
cyanide.” The City of Los Angeles Bureau of Sanitation describes this pollution on its
website.
       The complaint further alleges that the City of Los Angeles Department of
Water and Power generates and discharges effluent into the County‟s flood control
system which, from time to time, exceeds the effluent limits and water quality
standards established by the Los Angeles Regional Water Quality Control Board for
the Los Angeles River. In addition, pH levels in the storm runoff have been detected
above the range set by the Water Control Plan established for the Los Angeles River by
the Los Angeles Regional Water Quality Control Board.
       It is alleged that the City of Downey‟s storm sewers, roadways, gutters and other
structures also generate and discharge pollutants into the County‟s flood control system.
These discharges contain many of the same bacteria and chemicals contained in the
discharge from the City of Los Angeles.
       The County alleges that in the operation and maintenance of their storm sewers,
roadways, and other facilities, the Cities have caused and are continuing to cause
“the discharge of pollutants, including toxic urban runoff and storm water into the
Los Angeles River, its watershed, and the [County‟s] flood control system in a fashion
which is injurious to health, indecent and/or offensive to the senses and/or an obstruction
to the free use of property, so as to interfere with the comfortable enjoyment of life or
property and the environment. . . . As such, the conduct of Defendants constitutes a
condition of nuisance within the meaning of Civil Code section 3479.”




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       Furthermore, the County alleges, the Cities‟ toxic discharges are created during
and as the result of the disposal of wastes and therefore constitute “a nuisance per se,
in violation of California Water Code sections 13000 et seq.” (Italics omitted.)
       As a result of the Cities‟ conduct, the County has spent and continues to spend
funds to address the presence of pollutants in its flood control system caused by
discharges from the Cities‟ storm sewers, roadways, and other facilities. This includes
the construction, operation, and maintenance of pollution control equipment to address
the pollutants discharged by the Cities.
       The Cities have breached their duty not to cause or permit the discharge of
pollutants that would be injurious to health and the environment or to allow the
continuance of a nuisance. Unless restrained by the court, the Cities “will continue to
discharge pollutants from their storm sewers, roadways, and/or other facilities and will
otherwise continue the acts complained of herein, all to the detriment of plaintiffs.”
       Finally, the complaint alleges that the County has no adequate remedy at law and
that unless the Cities are enjoined from continuing to discharge pollutants into the
County‟s flood control system the County “will suffer irreparable injury as the discharges
of toxic urban runoff and storm water will cause continuing and cumulative damage to
the property of [the County‟s] flood control system . . . and will require [the County] to
take action to abate such damage, which action will further interfere with [the County‟s]
use and enjoyment of [its property].” This, in turn will require the County to bring a
multitude of actions to address its ongoing damages.
       The complaint concludes with a prayer for injunctive relief, costs of suit, attorney
fees, and such other relief as the court deems just and proper.
       The Cities demurred on the ground the complaint failed to state a cause of action.
The court sustained the demurrer without leave to amend. The County moved for
reconsideration and lodged a proposed third amended complaint. The court denied the
motion for reconsideration and denied the County leave to file a third amended
complaint.

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        The trial court entered an order dismissing the action and the County filed a timely
appeal.
                                       DISCUSSION
        This appeal raises three issues: Does the complaint state a cause of action for
nuisance? If so, does it state sufficient facts to support a claim for injunctive relief?
Did the County give the Cities adequate notice of damages under the Government Claims
Act? We conclude that at least to the extent the County alleges Cities generated at their
facilities the pollution that is causing injury, the County states a cause of action for
nuisance. We further conclude that the complaint alleges sufficient facts to support a
claim for injunctive relief and that the County gave Cities sufficient information to enable
them to adequately investigate the County‟s claim that they were responsible in whole or
part for the pollution of the Los Angeles River.
        I.       THE SECOND AMENDED COMPLAINT STATES A CAUSE OF
                 ACTION FOR NUISANCE.
        Nuisance is statutorily defined as “[a]nything 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.)
        The County‟s complaint sufficiently alleges a nuisance because it alleges that the
Cities have interfered with the use of its flood control facilities by generating and then
discharging harmful pollutants into those properties. The complaint alleges that as a
result, the County “has spent and must continue to spend funds to address the presence
of pollutants in its flood control system caused by discharges from [the Cities‟] . . .
facilities[.]”
        Cities contend that even if polluted water passes through their storm drains
into the County‟s property, “nuisance liability requires more than a passive or
attenuated causal connection to contamination.” (Redevelopment Agency v. BNSF Ry.
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(9th Cir. 2011) 643 F.3d 668, 674, fn. 2 (Redevelopment Agency), citing County of
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 309-310 and City of
Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 43.)
In Redevelopment Agency, the defendants constructed an underground drain across
their property, which, unbeknownst to them, allowed petroleum discharged from a
third party‟s property to migrate through the drain onto the plaintiffs‟ property.
(Redevelopment Agency, at pp. 671-672.) The Ninth Circuit held that “[u]nder
California law, conduct cannot be said to „create‟ a nuisance unless it more actively or
knowingly generates or permits the specific nuisance condition.” (Id. at p. 674.) Here,
the defendants “did not spill the petroleum or otherwise release it into the environment”
nor did they “affirmatively direct its flow or knowingly permit it to migrate into the
french drain and onto the [plaintiffs‟] [p]roperty.” (Ibid.)
       The case before us is distinguishable from Redevelopment Agency because the
County alleges Cities actually generated some of the pollution that entered its property.
Thus, at least to the extent the County alleges that Cities‟ facilities generated the toxic
pollution they discharged, and didn‟t simply pass through the pollution created by others,
the County states a cause of action against Cities for nuisance. Accordingly, because the
complaint states a cause of action, the judgment must be reversed.

       II.    THE SECOND AMENDED COMPLAINT PLEADS SUFFICIENT
              FACTS TO SUPPORT INJUNCTIVE RELIEF.

       Cities argue that the County‟s prayer for injunctive relief must be denied because
the second amended complaint does not include any allegations of the specific facts
upon which injunctive relief is sought nor the “specific acts” the County seeks to enjoin.
We reject Cities‟ argument for two reasons.
       The second amended complaint sufficiently alleges the facts upon which the
County seeks injunctive relief. (See Facts and Proceedings ante, at pp. 2-4.) The specific
acts it seeks to enjoin are the alleged discharging of bacteria, chemicals, metals and trash
into the County‟s flood control system in excess of the range set by the Water Control

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Plan established for the Los Angeles River by the Los Angeles Regional Water Quality
Control Board. (Ibid.)
       Furthermore, we do not accept Cities‟ argument that more detailed and specific
allegations of fact are required in complaints seeking injunctive relief than in those
only seeking damages. The opinions Cities cite, Bank of America v. Williams (1948)
89 Cal.App.2d 21, 24 which in turn quotes from Davitt v. American Bankers’ Union
(1899) 124 Cal. 99, 101, addressed situations in which the plaintiffs sought to use their
verified complaints as affidavits in support of injunctive relief. (Bank of America v.
Williams, supra, 89 Cal.App.2d at p. 23 (“Where the verified complaint is the basis for
the relief sought it takes the place of an affidavit and must be treated as such;” see also
Davitt v. American Bankers’ Union, supra, 124 Cal. at p. 100.) In those situations it
made sense for the courts to treat the allegations in the verified complaints the way
they would treat oral or written testimony in support of injunctive relief, requiring
“a statement of the specific facts upon which relief is sought.” (Davitt v. American
Bankers’ Union, supra, 124 Cal. at p. 101.) In contrast, the County‟s complaint is not
being used as evidence to support an injunction.
       The opinion in Thompson v. Kraft Cheese Co. (1930) 210 Cal. 171, also relied
on by Cities, is not on point because in that case the court was critical of the injunction
issued by the trial court, not the adequacy of the allegations in the complaint.
(Id. at pp. 179-180.)
       Alternatively Cities argue that the County is not entitled to injunctive relief
because its second amended complaint shows that it has an adequate remedy at law in the
form of damages. The complaint alleges the County must “spend funds” to address the
pollutants discharged into its flood control system by Cities and must install “pollution
control equipment.” The incursion of such expenses, Cities reason, can be remedied by
the payment of money.
       This argument overlooks other allegations in the complaint that the pollution of
the County‟s flood control system is continuing and recurrent and will result in a

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multiplicity of suits unless permanently enjoined. Code of Civil Procedure section 526,
subdivision (a)(6) authorizes a court to grant an injunction “[w]here the restraint is
necessary to prevent a multiplicity of judicial proceedings.”
       III.   THE COUNTY COMPLIED WITH THE CLAIMS PRESENTATION
              REQUIREMENTS OF THE GOVERNMENT CODE.
       The court struck the County‟s claim for damages in the first amended complaint
because it found that the County‟s claims against Cities were insufficient under the
Government Claims Act. We disagree.
       Before a suit for damages can be brought against a public entity, California
law requires that the would-be plaintiff present a written claim to that public entity.
(Gov. Code, § 945.4.) The claim must include, among other things, “[t]he date, place
and other circumstances of the occurrence or transaction which gave rise to the claim
asserted,” “[a] general description of the indebtedness, obligation, injury, damage or
loss incurred so far as it may be known at the time of presentation of the claim” and
the amount of the claim if it totals less than $10,000. (Gov. Code, § 910, subds. (c),
(d) & (f).)
       The purpose of a claim “is „to provide the public entity sufficient information to
enable it to adequately investigate claims and to settle them, if appropriate, without the
expense of litigation.‟ [Citation.] Consequently, a claim need not contain the detail and
specificity required of a pleading, but need only „fairly describe what [the] entity is
alleged to have done.‟ [Citations.]” (Stockett v. Association of Cal. Water Agencies Joint
Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) If the factual basis of the claim fairly
matches the factual basis of the complaint, the claim adequately supports the complaint
regardless of the legal theories, if any, advanced in the claim. (Id. at p. 447.)
       The County met the requirements of a claim under Government Code section 910.
       The claims that the County presented to Cities advised Cities that the County was
being sued in federal court for violations of water quality standards in the Los Angeles
River as measured at a “mass emission station” in the river between Willow Street and
Wardlow Road in the City of Long Beach and included a copy of the first amended
                                         8
complaint in the federal action. The claims identified the pollutants allegedly discharged
into the river, the specific dates of discharge and the water quality standards alleged to
have been violated. The County claimed that the pollutants identified in the federal
lawsuit were discharged by Cities through their storm water and urban runoff upstream
from the river‟s mass emission station. Specifically, the County alleged that “[t]o the
extent that concentrations of pollutants are measured at the Los Angeles River mass
emission station, such pollutants are attributable in whole or in part to discharges from
the land areas of the [Cities],” their facilities and their storm drain system.
       The County‟s claims informed Cities that if the court in the underlying lawsuit
should determine that there were violations of water quality standards in the Los Angeles
River, “then such exceedances were caused wholly or partially by discharges from the
[Cities] . . . by the intentional, negligent, or otherwise unlawful or harmful acts or
omissions of the [Cities], including but not limited to unlawful acts of [each city] as an
upstream riparian entity that has caused or contributed to a condition of pollution or
nuisance.” (Italics added.) Accordingly, the County advised Cities that if it was held
liable for damages, costs, fees or other expenses in the underlying lawsuit, it would seek
“to be indemnified and held harmless and have judgment rendered against [Cities] for all
sums incurred by reason of such judgment or settlement, including the expenses and costs
of litigation.”
       Finally, the County informed Cities that the County could not state the amount of
damages to which it was entitled because no judgment or settlement had yet occurred in
the underlying action. Nevertheless, the County told Cities that it anticipated the amount
of its claim would exceed $10,000.
       Cities argue that the claims the County submitted to them do not support its action
against them for damages based on nuisance. They point out that the County‟s claims
asserted the harm to the County would consist of having to pay damages and occur
expenses in the underlying federal lawsuit, not in having to abate a nuisance on County
property caused by polluted water discharged by Cities. This argument fails because the

                                               9
claims filed with Cities and the complaint in this action are “predicated on the same
fundamental actions or failures to act by the defendants.” (Stockett, supra, 34 Cal.4th
at p. 447.) The claims and the complaint rest on the same premise—that Cities caused or
permitted harmful levels of polluted water to be discharged from their facilities into the
County‟s flood control system. Therefore, investigating the factual basis for the County‟s
potential claim for indemnity in the underlying federal lawsuit would lead Cities to the
same facts that would be relevant to the County‟s suit for nuisance.
                                     DISPOSITION
       The judgment is reversed and the cause is remanded to the trial court with
directions to permit the County to file a third amended complaint alleging damages. In
light of the excessive record designated by the County, we order each party to bear its
own costs.
       NOT TO BE PUBLISHED.



                                                  ROTHSCHILD, J.
We concur:



              MALLANO, P. J.



              CHANEY, J.




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