Evangeline v. Port SanLuisHarbor Dist.

Filed 5/2/07 Evangeline v. Port San Luis Harbor Dist. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

"Ruby Tuesday" was a boat. It was beached in a storm.

Marlene Evangeline appeals from the judgment entered after the trial court sustained respondents' demurrer to her first amended complaint without leave to amend.^[1] Evangeline contends that the District violated the United States and California Constitutions and mandatory duties contained in the District's Code of Ordinances by requiring her to launch an unseaworthy vessel and then failing to remove it from the harbor during a storm in October 2004, when the boat ran aground.

The trial court ruled that Evangeline's complaint failed to allege breach of mandatory statutory duty by the District (Gov. Code,  815.6)^[2]and that she signed a release of liability precluding recovery of damages against the District.^[3] We agree and affirm.

FACTS AND PROCEDURAL HISTORY

Because this appeal arises from the sustaining of a demurrer, we accept as true all material facts pleaded in Evangeline's first amended complaint. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662.)^[4] Briefly summarized, the alleged material facts are as follows: Evangeline purchased the "Ruby Tuesday," a 1955 Navy utility boat. She obtained a dry dock space for the boat in the Port San Luis boatyard in June 2000, intending to restore and live on the boat.

In August 2000, respondent Jay Elder, the Harbor Manager, told Evangeline that her boat should be launched and in a slip before the upcoming winter storm season. In October 2000, Elder reiterated his request in writing. Evangeline did not move her boat as Elder requested. When Evangeline fell behind in her payments to the boatyard, the boatyard placed a lien on the "Ruby Tuesday." Evangeline filed for bankruptcy in October 2001 and the debt due the boatyard was discharged.

On November 1, 2001, the District served Evangeline with a "Notice of Unseaworthy Vessel and Prohibition Against Launching Said Vessel into Navigable Waters." The notice states, in part: "PLEASE TAKE NOTICE that the Harbor Manager of the Port San Luis Harbor District has determined that your vessel, the Ruby Tuesday, is unseaworthy. You are hereby prohibited from launching that vessel into navigable waters. . . . This Notice is given pursuant to the Port San Luis Harbor District Code of Ordinances, Section 16.140(b)." (Emphasis omitted.)

For the next two and one-half years, the vessel remained in dry dock. Evangeline lived aboard the vessel.

On February 25, 2004, Elder sent a letter to Evangeline, stating:

"It has come to the Port San Luis Harbor District's attention that you wish to remove your boat, the Ruby Tuesday, from the Harbor District's property. In order to facilitate this process, the District is willing to temporarily lift the 'Notice of Unseaworthy Vessel and Prohibition Against Launching Said Vessel into Navigable Waters' that was hand delivered to you on November 1, 2001.

"The District will remove the prohibition for forty-five (45) days if, as consideration for the removal, you agree to the following:

"1) You recognize and accept the full risk of moving and/or sailing your vessel. Neither the District nor its employees, agents, commissioners or concessionaries, including without limitation (boatyard operator) (collectively the 'District Parties') are responsible in any manner, including for their own negligent acts or omissions, for any existing or future loss or damage to the any of your property including, without limitation, your vessel, the Ruby Tuesday;

"2) You release the District Parties from and waive any and all existing or future claims, causes of action, disputes and controversies relating to damage to your person or property, including, without limitation, your vessel, the Ruby Tuesday, including any damage caused by the negligent acts or omissions of the District Parties;

"3) You agree to defend, indemnify and hold harmless the District Parties from and against any and all loss or liability, of whatsoever character or kind, related in any manner to your vessel, regardless of your fault, including, without limitation, any damage to other vessels. The obligation to defend, indemnify and hold harmless the District Parties shall fully apply even if the loss or liability results from the negligent acts or omissions of the District Parties;

"4) You are fully responsible if the vessel becomes disabled, inoperative, submerged or otherwise creates a situation that increases the safety risk to person or property or that interferes with the circulation or mooring of other vessels at Port San Luis. Upon the direction of the District, you will immediately take all action according to what the District, within its absolute discretion, deems advisable to protect the health, safety or welfare of the public or to prevent damage to the marine environment[;]

"5) All debts owed to the District will be paid in full by the end of the forty-five (45) day period; and

"6) The vessel Ruby Tuesday shall be removed [from] the Port San Luis boatyard and harbor properties, including the San Luis Obispo Bay (between Point San Luis and Pismo Pier, out to sea three miles) within the forty-five (45) day period. The vessel Ruby Tuesday will not return to Port San Luis Harbor.

"The District will not execute the removal [and begin] running the forty-five (45) day period until you have agreed to the above-stated conditions and have returned a signed copy of this letter to the Harbor Manager, Jay Elder.

"This offer is valid for forty five days and expires on April 12, 2004."

Evangeline asserts this letter was a "veiled threat intended to intimidate [her] into launching Ruby Tuesday."

On April 9, 2004, Evangeline signed the document acknowledging that "I have read and understand and agree to the above terms and conditions." At the end of May 2004, Evangeline launched the "Ruby Tuesday." Within an hour, a fuel leak developed and the vessel began taking on water. Evangeline returned the boat to transient moorings in the harbor and made repairs.

On June 15, 2004, Evangeline moved the vessel from the transient mooring area and dropped anchor in the harbor's anchorage area. However, she did not remove the boat from the harbor as she agreed to do on April 9. Instead, on July 7, 2004, Evangeline took a five-week trip to Europe and left the "Ruby Tuesday" unattended. After she returned from Europe, on October 18, 2004, the boat became unmoored during a storm and ran aground.

Evangeline filed a complaint and first amended complaint against the District for damages and equitable relief alleging violation of her constitutional rights and mandatory statutory duties. The trial court granted the District's demurrer to Evangeline's first amended complaint on the grounds that it does not allege facts showing a mandatory duty that was the proximate cause for any damage alleged and that the release she signed was valid and precluded suit against the District.

DISCUSSION

Mandatory Duty

A public entity and its employees are generally immune from liability for their acts or omissions unless otherwise provided by statute. Section 815.6 permits an exception to governmental immunity where a statute imposes a mandatory duty to protect against the risk of a particular kind of injury. (Haggis v. City of Los Angeles(2000) 22 Cal.4th 490, 498-500.) Whether a statute imposes a mandatory duty is a question of statutory interpretation and of law for the court. (Id. at p. 499.)

A three-pronged test applies to determining whether liability may be imposed on a public entity for breach of a mandatory duty: (1) an enactment must impose 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. (Haggis v. City of Los Angeles, supra, 22 Cal.4th at pp. 498-499.)

Evangeline contends portions of three sections of the Code impose a mandatory duty on the District.^[5] They are:

Section 14.110(B): "Floating work dock. Use of the floating work docks shall be allowed daily between 5:00 a.m. and 9:00 p.m. free of charge."

Section 16.140(A): "Removal of vessel. Any vessel permitted by her owner(s) or master to fall into the conditions described in this section due to neglect or lack of proper maintenance and repair shall be treated in accordance with California Harbors and Navigation Code Section 522, and shall be removed from the water by the Harbor Manager and District agents and sold as provided by state law."

Section 6.140(B): "Unseaworthy vessels not to be launched. Vessels determined to be unseaworthy by the Harbor Manager may neither be launched from District facilities, nor be allowed to moor within the District."

These sections do not impose a mandatory duty on the District or its employees. Section 14.110 merely gives the public permission to use the harbor's floating work dock free of charge during certain hours. Sections 16.140(A) and (B) permit the harbor manager to exercise his discretion to remove and sell unseaworthy vessels or to prevent their launch.

Evangeline points out that section 1.110(A) of the Code states that "'shall' is always mandatory," and that sections 14.110 and 16.140(A) contain the word "shall." More is needed to impose a mandatory duty on a public entity. Where, as here, the statute gives the public entity or employee discretion to carry out its duties, the statute is permissive rather than mandatory despite the use of the word "shall." (See, e.g., Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1243-1244 [although statute providing for agency legal action to enforce building standards included the word "shall" at points, at other points it clearly gave enforcement agency the discretionary choice whether and how to enforce standards].)

These provisions do not impose a mandatory duty. It is, therefore, unnecessary to discuss the remaining two prongs of the test.^[6]

Governmental Tort Immunities

Evangeline's claim also is precluded by section 818.2. That section states: "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." Section 821 provides a similar immunity for public employees. Case law has consistently immunized public entities and their employees from liability for the type of conduct alleged by Evangeline. (See, e.g., Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 590 [county was immune from liability for failing to enact or enforce safety regulations regarding waterskiing on lake; see also Shipley v. City of Arroyo Grande (1949) 92 Cal.App.2d 748, 751 ["to enforce an ordinance is an incidence of governmental power. A failure to do [so] does not give rise to liability on the part of the city"].)

Release of Liability

Even if the District had a mandatory duty under the Code sections cited by Evangeline or the immunities discussed above did not apply, the written release Evangeline signed is valid and precludes her from recovering damages from the District or its employees. As a general rule, "'no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party . . . .'" (Tarpy v. County of San Diego (2003) 110 Cal.App.4th 267, 279.)

Evangeline argues that the release is unlawful because she was "enticed" into signing it. The facts are to the contrary. The language of the release shows she signed it in exchange for permission to launch. The release contains clear exculpatory language informing Evangeline that signing it released the District from all liability and "operate[d] to relieve the defendant of a[ny] legal duty to the plaintiff with respect to the risks encompassed by the agreement . . . ." (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1013.)

Constitutional Claims

Evangeline contends the trial court erred by sustaining the District's demurrer to her claims under the California civil rights act (Civ. Code,  52.1, subd. (b)), California Constitution, article I, section 7, subdivision (a), and the federal civil rights act (42 U.S.C.  1983). These contentions also are without merit.

No claim for money damages may be brought under article I, section 7 of the California Constitution. (Javor v. Taggart (2002) 98 Cal.App.4th 795, 807; Carlsbad Aquafarm, Inc. v. State Dept. of Health Services (2000) 83 Cal.App.4th 809, 815-823.) Evangeline's first amended complaint requests injunctive and declaratory relief as well as monetary relief. The equitable claims are based on the same set of facts as the monetary claim and fail for the reasons stated in this opinion.

Civil Code section 52.1, subdivision (b)^[7]requires a plaintiff to plead that her civil rights were violated and that the violation was accompanied by threats, intimidation or coercion. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841; Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 172.) Evangeline asserts that she was coerced into signing the release of liability and forced into launching an unseaworthy vessel. As discussed above, the facts show that she herself requested permission to launch the "Ruby Tuesday" and voluntarily signed the release to accomplish her goal.

Evangeline's claim under 42 U.S.C. section 1983 fares no better. To prevail on a claim under section 1983, the defendants must be deliberately indifferent to Evangeline's safety or have a custom or policy that violates federally protected rights. (Ley v. State of California (2004) 114 Cal.App.4th 1297, 1307.) The complaint contains the bare allegation that the District violated her constitutional rights "by engaging in an official course of wrongful conduct designed and intended to intimate the Plaintiff to launch her unseaworthy vessel into the water." Neither the complaint nor first amended complaint contains any facts supporting this conclusion. (See Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1360 [to state a claim under section 1983, a plaintiff must plead specific and nonconclusory facts showing defendant deprived plaintiff of a federally protected right].) As noted above, the complaint incorporates documents showing that Evangeline requested that she be permitted to launch the vessel.

We affirm. Respondents are to recover costs.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Douglas Hilton, Judge

Superior Court County of San Luis Obispo

______________________________

Marlene Evangeline, in pro. per., for Plaintiff and Appellant.

Adamski Moroski Madden & Green LLP, John E.D. Nicholson for Defendants and Respondents.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1]Respondents are Port San Luis Harbor District, Jay Kay Elder and Casey Nielsen (collectively District).

^[2]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 any 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."

^[3]All statutory references are to the Government Code unless otherwise stated.

^[4]We notice all facts pleaded in the complaint that are omitted from the first amended complaint in determining whether the demurrer was properly sustained. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-743.)

^[5]We grant the District's request to take judicial notice of the Code (Evid. Code,  452, 459.)

^[6]In her reply brief, Evangeline argues several other statutes, including the "U.S. Coast Guard Ports and Waterways Safety Act," the "Marine and Safety Authority Amendment Act 2006," the "[Extension of] Admiralty [Jurisdiction] Act, 46 U.S.C. [] 740," and the "'Savings to suitors' clause of the Judiciary Act of 1789, 28 U.S.C. [] 1333." We do not discuss these statutes under the well-established rule that arguments raised for the first time in a reply brief will not be considered. (See, e.g., People v. King (1991) 1 Cal.4th 288, 297, fn. 12 ["Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief"].)

^[7]Civil Code section 52.1, subdivision (b) states: "Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured."