Myrick v. City of Paso Robles

Filed 7/14/08 Myrick v. City of Paso Robles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This case arises out of the tragic death of Jennifer Lynn Myrick. Myrick was killed when a portion of a privately owned, unreinforced masonry building collapsed on her as she stood on a public street during an earthquake. Myrick's parents Leroy and Vicky Myrick (the Myricks) sued the City of Paso Robles (the City) alleging a dangerous condition of public property and nuisance. The trial court granted the City's motion for summary judgment on the ground, among others, that the City is immune from liability under Government Code section 8875.3.[1] We affirm.

FACTS

On the morning of December 22, 2003, Jennifer Lynn Myrick was at work at a clothing store in downtown Paso Robles. The building in which she worked was an 111-year-old unreinforced masonry structure known as the "Acorn Building." At about 11:00 a.m., the San Simeon earthquake struck. When the shaking began, Jennifer and a coworker fled the Acorn Building to the street. Instead of finding safety there, however, a portion of the Acorn Building collapsed, crushing them.

Between 1989 and 1992, the City had retained a consultant to inventory the unreinforced masonry buildings within its jurisdiction. The inventory was conducted pursuant to section 8875.2, subdivision (a). The subdivision requires local building departments to identify buildings that are potentially hazardous during an earthquake. Section 8875.2, subdivision (b) requires local governments to establish a mitigation program that includes notification to the buildings' owners. The City identified the Acorn Building as potentially hazardous and sent notice to the building's owners in December of 1989. Section 8875.8, subdivision (a) requires an owner so notified to post the entrance with a warning: "This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake."[2]

As part of the mitigation program, the City enacted an ordinance in November of 1992. The ordinance required owners of unreinforced masonry buildings to retrofit them to comply with earthquake safety standards. The ordinance specified that the owners must comply within 15 years from the date of official notice. The City notified the owners of the Acorn Building of the retrofit requirement on November 5, 1993. The City amended the ordinance in 1997 and 1998 to extend the deadline for compliance beyond 2008.

On October 28, 1998, the City and the Acorn Building's owners entered into an agreement with structural engineer, Robert F. Alderman. Alderman agreed to prepare a seismic structural design study of the Acorn Building to determine what structural improvements are necessary to bring the building into compliance with the City's remediation ordinance. Alderman prepared and delivered his report to the City and the building's owners. The report identified various seismic deficiencies and contained plans to retrofit the building to make it comply with the City's ordinance. The City approved the retrofitting plans and issued a building permit in July of 1999. Nevertheless, the building's owners did not complete the seismic retrofitting prior to the earthquake.

The Myricks' complaint alleged the City breached a duty to warn or protect against a dangerous condition of public property and maintained a public nuisance. They alleged that the Acorn Building's owners failed to complete seismic retrofitting of the building and failed to post the notice required by section 8875.8, subdivision (b). They further alleged that the City knew the building was dangerous to the public and failed to post a warning sign. The trial court granted the City summary judgment on the ground the City has statutory immunity, the Myricks' government tort claim is insufficient, and the Myricks cannot establish the City created the nuisance.

DISCUSSION

I

Summary judgment is property granted only if all papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) The court must draw all reasonable inferences from the evidence set forth in the papers except where such references are contradicted by other inferences or evidence that raise a triable issue of fact. (Ibid.) In examining the supporting and opposing papers, the moving party's affidavits or declarations are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

The moving party has the initial burden of showing that one or more elements of a cause of action cannot be established. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Where the moving party has carried that burden, the burden shifts to the opposing party to show a triable issue of material fact. (Ibid.) Our review of the trial court's grant of the motion is de novo. (Id. at p. 767.)

The grant of summary judgment is reviewed de novo. (Barner v. Leeds (2000) 24 Cal.4th 676, 683.)

II

The Myricks contend the trial court erred in concluding the City has immunity from liability.

Generally a public entity is liable for injury proximately caused by a dangerous condition of its property where the dangerous condition was created by an employee of the public entity or the public entity had actual or constructive notice of the dangerous condition. ( 835.) A dangerous condition of public property exists where the condition creates a substantial risk of injury when the public property or adjacent property is used with due care in a manner in which it is reasonably foreseeable it will be used. ( 830, subd. (a).)

Ordinarily a public entity has a duty to warn of a dangerous condition of its property. (Arroyo v. State of California (1995) 34 Cal.App.4th 755, 763.) Immunity statutes, however, prevail over provisions for liability. (Ibid.)

Our Legislature has established a scheme for the identification and remediation of buildings that are potentially hazardous in an earthquake. Section 8875.2, subdivision (a) requires a local government to identify all buildings within its jurisdiction that were constructed prior to the adoption of building codes requiring earthquake-resistant design and that are constructed of unreinforced masonry. Subdivision (b) requires the local government to adopt mitigation measures that include notification of the buildings' owners. The mitigation measures may include the adoption of an ordinance requiring the buildings' owners to undertake measures to strengthen the buildings. At the time of the earthquake, section 8875.8, subdivision (a) required all notified building owners to post at the entrance to their buildings a notice that the building is unreinforced masonry and that unreinforced masonry buildings may be dangerous in an earthquake.

Section 8875.3 provides in part: "Local jurisdictions undertaking inventories and providing structural evaluations of potentially hazardous buildings pursuant to this chapter shall have the same immunity from liability for action or inaction taken pursuant to this chapter as is provided by Section 19167 of the Health and Safety Code . . . ."

Section 19167 of the Health and Safety Code is part of a legislative scheme (id.,  19160 et seq.) that authorizes, but does not require, local governments to identify potentially hazardous buildings and to adopt mitigation ordinances. Health and Safety Code section 19167 provides: "No city, city and county, or county, nor any employee of any such entity, shall be liable for damages for injury to persons or property, resulting from an earthquake or otherwise, on the basis of any assessment or evaluation performed, any ordinance adopted, or any other action taken pursuant to this article, irrespective of whether such action complies with the terms of this article, or on the basis of failure to take any action authorized by this article. The immunity from liability provided herein is in addition to all other immunities of the city, city and county, or county provided by law."

The Myricks point out that section 8875.3 provides immunity for local jurisdictions undertaking inventories and providing structural evaluations "pursuant to this chapter." They argue section 8875.3 does not apply here because there is no evidence that the structural evaluation of the Acorn Building performed by Alderman was conducted "pursuant to this chapter."

But the chapter clearly contemplates that local jurisdictions will undertake structural evaluations for earthquake safety purposes. Alderman's report is such an evaluation. The only reasonable conclusion is that Alderman's evaluation was conducted "pursuant to this chapter." It matters not that the evaluation was made some nine years after the City first inventoried potentially hazardous buildings.

The Myricks next argue that the City's failure to warn or otherwise protect the public is not a breach of a duty pursuant to section 8875 et seq. They claim they are not suing the City for any action or inaction taken pursuant to those sections.

The Myricks suggest no specific duty on the part of the City other than posting warning signs. But section 8875.8, subdivision (a) places that duty on the owner of the building, not the City. In direct response to Jennifer's death, our Legislature modified the warning to expressly include those near as well as inside an unreinforced masonry building. (See fn. 2, ante.) But nothing in the original warning that the building may be unsafe in an earthquake is limited to those inside the building. (See fn. 2, ante.) Moreover, the duty to give the modified warning remains with the building's owner. Had section 8875.8 expressly placed a duty on the City to post a warning, the City would have been immune under section 8875.3 for failing to take that action. The effect of the Myricks' argument is that the City is liable because the Legislature placed the duty on the building's owner. We are quite sure the Legislature did not intend such an irony. The subject of the appropriate earthquake warning is covered in section 8875.8, subdivision (a). Section 8875.3 gives the City immunity from liability for failing to give such warnings.

The City is liable for a dangerous condition of its property only where a City employee created the dangerous condition or the City had actual or constructive notice of the dangerous condition. ( 835.) Here it is uncontested that the City did not create the dangerous condition on its sidewalk. Thus notice to the City is crucial to the Myricks' action based on a dangerous condition of public property. The Myricks argue that the City received notice that the Acorn Building was dangerous through Alderman's report. Alderman's report is therefore essential to their cause of action. Because Alderman's report was prepared pursuant to section 8875 et seq., section 8875.3 provides immunity from liability. For that reason alone, the City is entitled to immunity for a dangerous condition of public property.

The Myricks' reliance on Johnson v. State of California (1968) 69 Cal.2d 782, 798-799, is misplaced. There the Youth Authority placed a minor in a foster home without warning the foster parents of the minor's homicidal tendencies. One of the foster parents was injured when the minor assaulted her. She sued the state claiming the state negligently failed to warn her. The state claimed immunity under section 845.8 providing immunity for a determination whether to parole or release a prisoner. The court held that the Youth Authority was immune under section 845.8 for its decision to release the minor, but not for its failure to warn the foster parents. The court reasoned that section 845.8 requires the general public to bear the risk that rehabilitation efforts will fail, but it is not intended to cover the greater risk to which the foster parents were exposed.

Here Jennifer died as a result of a risk born by the general public. Section 8875.3 is intended to protect the City from liability for such a general risk. Unlike the foster parents in Johnson, the City did not expose Jennifer to any special risk. (See Thompson v. County of Alameda (1980) 27 Cal.3d 741, 755 [holding county has immunity for failure to give warning to the general public that juvenile offender is dangerous and distinguishing Johnson on the basis that the victim there was a specifically known and designated individual].)

The Myricks' reliance on Cameron v. State of California (1972) 7 Cal.3d 318 is also misplaced. There plaintiffs were injured when their automobile went out of control on a curve. They sued the state contending the highway was negligently constructed and the state failed to warn of a dangerous condition. Our Supreme Court determined that even if section 830.6 conferred design immunity on the state, the state may be liable for failure to provide warning signs under section 830.8. Section 830.8 provides that a public entity may be liable for failure to provide traffic warning signs if a sign is necessary to warn of a dangerous condition that is not reasonably apparent to a person using the highway with due care.

The state's liability in Cameron was based on a statute expressly requiring a public entity to post traffic warning signs. Here, in contrast, no statute expressly requires the City to post earthquake warning signs. In fact, section 8875.8 expressly places that duty on building owners and section 8875.3 provides the City immunity.

The Myricks concede their causes of action for a dangerous condition of public property and nuisance are based on the same facts. As such, the same immunity from liability applies to their cause of action for nuisance. (See Mikkelsen v. State of California (1976) 59 Cal.App.3d 621, 630 [section 830.6, providing for design immunity, applies whether the cause of action is nuisance or negligence].)

In any event, the City did not create the danger and it neither owns nor controls the property that gave rise to the claimed nuisance. That property is owned and controlled by the owners of the Acorn Building. The Myricks cite no case in which a defendant has been held liable for a nuisance where he did not own or control the property that gave rise to the nuisance. (See Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 384 [no cause of action for nuisance against county where county does not own or control the property at time of injury].)

We need not decide whether the Myricks' government tort claim was adequate.

The judgment is affirmed. Costs are awarded to the City.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Teresa Estrada-Mullaney, Judge

Superior Court County of San Luis Obispo

______________________________

Castro & Associates, Joel B. Castro, David H. Pierce, Ruth Scott; Esner, Chang & Ellis, Gregory R. Ellis, Stuart B. Esner, Andrew N. Chang for Plaintiffs and Appellants.

Hall, Hieatt & Connely, LLP, Clayton U. Hall, Stephanie A. Bowen for Defendant and Respondent.

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

[2] In response to Jennifer Myrick's death, the Legislature added a new subdivision (b) to section 8875.8. That subdivision provides that unless a building's owner has complied with the warning requirement of subdivision (a), on and after December 31, 2004, the owner shall post the warning: "Earthquake Warning. This is an unreinforced masonry building. You may not be safe inside or near unreinforced masonry buildings during an earthquake." (Stats. 2004, ch. 659,  2.)