California Court Of Appeal Rejects Citizens Group Nuisance Case Regarding Sea Lion Stench
Citizens for Odor Nuisance Abatement v. City of San Diego, 8 Cal. App. 5th 350 (Cal. Ct. App. 2017). The Fourth Appellate District of the California Court of Appeal concluded that the City of San Diego could not be held liable for public nuisance associated with the stench created by sea lions because the City did not create the nuisance.
The lawsuit was asserted by the Citizens for Odor Nuisance Abatement (CONA) after residents and business owners near La Jolla Cove complained of foul and noxious animal waste odors, describing the area as “a place that is beautiful but stinks.” Id. at 353. The sea lion population at La Jolla Cove has grown exponentially in recent years, resulting in significant sea lion waste buildup on the bluffs. Id. The buildup affected local residents and business owners who complained that the noxious odors affected their businesses and property values. Id. Although the City’s contractor successfully treated and eliminated odors associated with bird guano in the area, the treatment did not resolve the sea lion waste odors. Id.
Because the City did not remove the sea lion odor, CONA filed suit in San Diego Superior Court against the City and its former mayor, alleging causes of action for public nuisance, injunctive relief, declaratory relief, and a writ of mandate. Id. CONA alleged that the City caused the odors by constructing a fence that denied human access to the rocks adjacent the cove, thereby encouraging sea lion and bird habitation. Id.
The City moved for summary judgment, arguing there was no triable issue of fact on several issues including whether the City owed a duty to control wild animals and whether the City’s conduct was a substantial factor in causing the alleged nuisance. Id. at 354. The City supported its motion with an expert declaration from a marine ecologist who concluded that the exponential sea lion growth at La Jolla Cove was due to natural population dynamics and not the fence atop the bluffs. Id. The City also offered declarations from longtime lifeguards and City employees noting that, although the area had been fenced since 1971, the sea lions began to congregate around 2008. Id.
The trial court granted summary judgment finding that, as a matter of law, the City did not have a duty to control an alleged nuisance caused by wild animals. Id. at 355. The trial court further found there was “no legitimate factual dispute as to whether the City’s actions caused the alleged nuisance.” Id.
The California Court of Appeal affirmed the trial court’s ruling. In doing so, the court summarized key components of California’s public nuisance law. The court observed that “[t]o qualify as a public nuisance, the interference must be both substantially and objectively unreasonable.” Id. at 358. Further, the court noted that “[c]ausation is an essential element of a public nuisance claim. A plaintiff must establish a ‘connecting element’ or a ‘causative link’ between the defendant’s conduct and the threatened harm.” Id. at 359 (internal citations omitted).) The court also stated that “[p]ublic nuisance liability does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical questions is whether the defendant created or assisted in the creation of the nuisance.” Id. (italics in original, internal punctuation and citations omitted). Finally, the court acknowledged that a plaintiff must demonstrate that the defendant’s conduct was a “substantial factor” in causing the alleged harm. Id. at 361.
Focusing on the issue of whether a city can be held liable for the harm caused by wild animals, the court rejected the implication in Butler v. City of Palos Verdes Estates, 135 Cal. App. 4th 174 (2005) that a public entity can never be liable for nuisance linked to wild animals. Id. at 359–360. Instead, the court observed that “[t]here could be circumstances in which a public entity’s actions in connection with wild animals give rise to public nuisance liability, though we do not find those circumstances here.” Id. at 360. The court’s conclusion turned on the issue of causation. The court explained that the fact that sea lions are wild animals is not dispositive of the City’s liability and that the City could be found liable if CONA were to demonstrate that the City’s conduct was a substantial factor in causing the alleged harm. Id. at 361.
The Court of Appeal then assessed the causation evidence. The court concluded that the City’s proffered evidence that the fence had been in place for decades long before large numbers of sea lions began congregating in La Jolla Cove shifted the burden to CONA to provide evidence of causation in order to survive summary judgment. Id. at 361–363. The court found CONA’s evidence inadequate, noting that, at best, it merely established that “perhaps between 15 and 30 years ago, there was no fence and no odor.” Id. at 363. The court noted that CONA failed to submit evidence that the fence created the odor. Id. at 363–364. Accordingly, the Court of Appeal affirmed the trial court’s summary judgment ruling.