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Court of Appeal:
No Private Right of Action to Enforce Local Ordinances
Opinion Repudiates Contrary 2002 Holding by Same Division
By Kimber Cooley, Staff Writer
Div. Four of this district’s Court of Appeal has held that a Government Code section authorizing the redress of a violation of a municipal ordinance by way of a civil action only permits city authorities—not private parties—to pursue enforcement actions, overruling a 2002 decision by a different panel of the same court.
The dispute arose in a case in which one neighbor sued another, seeking in the complaint to enforce Los Angeles Municipal Code sections concerning the allowable height of hedges and vegetation.
Presiding Justice Brian S. Currey wrote the opinion, filed Wednesday. The court granted a writ of mandate directing the Los Angeles Superior Court to vacate an order by Judge Lisa Sepe-Wiesenfeld overruled a demurrer to the Municipal Code causes of action and to enter an order sustaining the demurrer without leave to amend.
Government Code §36900(a) provides:
“Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction. The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.”
Disagreement With Epstein
Currey’s opinion, filed Wednesday, rejects—and says it is overruling—the decision in Riley v. Hilton Hotels Corporation, which held, in an opinion by then-Justice (later Presiding Justice) Norman L. Epstein (now deceased), that §36900(a) creates a private right of action by members of the general public to enforce municipal code violations.
Epstein wrote:
“…Government Code section 36900, subdivision (a), expressly permits violations of city ordinances to be ‘redressed by civil action.’ Both our Constitution and the Government Code prohibit giving effect to city ordinances in conflict with state law. (Cal. Const., art. XI, § 7; Gov. Code, § 37100.) Defendants refer us to no law that allows a city to abrogate the right of redress created in the Government Code. We decline to read into the Municipal Code an intent to create an impermissible conflict with state law by abrogating the right to a civil action created by the Government Code.”
In revisiting the 2002 ruling, Currey wrote:
“We…conclude the doctrine of stare decisis does not prevent us from reexamining and disagreeing with Riley. Thus, we overrule Riley and disavow its recognition of a private right of action by members of the general public….”
Neighbor Dispute
Petitioning the court were Charles and Katyna Cohen who were sued by neighbors Thomas and Lisa Schwartz. The parties’ homes are directly across the street from one another in the Brentwood neighborhood of Los Angeles.
The Schwartzes’ first complaint, filed May 19, 2022, alleged causes of action for Los Angeles Municipal Code violations and for nuisance and declaratory relief. The Cohens demurred to all causes of action.
Sepe-Wiesenfeld sustained the demurrer as to the nuisance and declaratory relief causes, with leave to amend, but overruled the demurrer to the causes of action for municipal code violations, finding that Riley controls and gave the plaintiffs the right to sue for the violations.
In July 2023, the plaintiffs filed an amended complaint asserting only causes of action based on purported violations of the Los Angeles Municipal Code. The first cause of action alleges that trees and plants in the Cohens’ yard exceed height limits outlined in §12.22(c)(20) and the second asserts that the Cohens replaced trees and plants, without permits, from the parkway in front of their property in violation of §62.129.
The Cohens responded to the amended complaint by filing a petition for writ of mandate.
Stare Decisis
The justice rejected the argument that stare decisis mandates that the court follow Riley, saying that “Courts of Appeal, and divisions thereof, are empowered to reconsider—and in the appropriate case disapprove of or overrule—prior decisions of those courts.”
Turning to the Riley decision, Currey wrote:
“The decision’s perfunctory recognition of a private right of action under the statute is untethered to reasoned analysis applying principles of statutory construction. Instead, without explanation, the opinion concludes the phrase ‘redressed by civil action’ as used in the second clause of the statute’s second sentence means that all members of the public may file suit under the statute.”
He noted that questions of reliance are crucial when deciding whether to “revisit” an opinion construing a statute, and said:
“These principles do not justify adherence to stare decisis in this case, however, as Riley has not been widely relied upon since its publication 22 years ago. So far as we can tell, between all federal and state courts, Riley has only been cited in 20 decisions. Of those decisions, only two are published California appellate court opinions adopting Riley’s interpretation of section 36900, subdivision (a).”
He concluded that the case is a rare one where the court is justified in revisiting a prior opinion to determine “whether a private right of action exists” under the section.
Plain Language
Currey said that the 2010 California Supreme Court case Lu v. Hawaiian Gardens Casino, Inc. established the “two-part analytical framework governing the question whether a private right of action exists under a statute.” In an opinion by Justice Ming W. Chin (now retired), the court declared:
“[W]hether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute….Such legislative intent, if any, is revealed through the language of the statute and its legislative history.”
The Schwartzes contend that the plain language of §36900(a) unambiguously reflects an intent to authorize a private right of action because “while the first clause of the statute’s second sentence expressly states ‘city authorities’ may prosecute violations of ordinances, the second clause does not likewise mention ‘city authorities’ when specifying those violations may also be ‘redressed by civil action.’”
Unpersuaded, Currey reasoned:
“Even assuming…the Schwartzes’ interpretation of the statute is reasonable, it does not render unreasonable…the Cohens’ proffered interpretation….[T]he Cohens argue—and we agree—that when read in context with the statute’s first sentence and the first clause of the second sentence, which collectively grant ‘city authorities’ the right to prosecute the violation of an ordinance as a misdemeanor, the second clause of the second sentence could reasonably be interpreted as affording only those same authorities the right to utilize civil lawsuits as an alternative enforcement mechanism.”
Legislative Intent
Having concluded that the statutory language is ambiguous, Currey turned to the legislative intent and noted that “the relevant legislative history shows section 36900, subdivision (a)’s predecessor statutes afforded only city authorities the right to redress violations of ordinances by way of civil action.”
The justice examined the history of Senate Bill 750, which added §36900 to the code in January 1945, and cited multiple sources indicating that the Legislature did not intend to make substantive changes in existing law and only enacted the bill to restate and rearrange those laws in simplified language. He remarked:
“[S]ection 36900’s predecessor statutes explicitly granted only city authorities—rather than all members of the public—the right to enforce violations of local ordinances by filing suit. These predecessor statutes contained the same language verbatim when Senate Bill No. 750…was introduced….”
Under these circumstances, he declared:
“[W]e reject the contention that, by enacting section 36900, subdivision (a), the Legislature intended to recognize a private right of action as a new, alternative means of enforcing city ordinances. Instead, we conclude the Legislature removed the phrase ‘at the option of said authorities’ from the clause stating violations of ordinances may be ‘redressed by civil action’ to simplify the statutory language and avoid unnecessary repetition….It intended no change in meaning.”
Procedural Objections
Currey dismissed the Schwartzes contention that the petition should be dismissed as moot due to their desire to dismiss the case in the trial court, saying “[t]his ‘wish’ is insufficient to moot the case” and that, even if they had actually dismissed, “[t]he key question before us is of significant public interest.”
He also rejected the plaintiffs’ contention that writ review was unavailable to the court, as final judgment had not yet been entered. Currey explained that writ review is appropriate in such cases only if the remedy by appeal from a final judgment would be inadequate and the writ presents a significant issue of law or public interest.
Finding both circumstances to be present, he concluded that the case presents a significant issue of law and “this court’s issuance of an order to show cause” determined that the Cohens’ remedy at law was inadequate.
The case is Cohen v. Superior Court of Los Angeles County (Schwartz), 2024 S.O.S. 1827.
The Cohens were represented by Joel Kozberg of the Century City firm Kotzberg & Bodell, and Rex S. Heinke and Jessica Weisel of the downtown Los Angeles office of Complex Litigation Group LLP. The Schwartzes were represented by Keith J. Turner and Justin Escano of the Santa Monica-based Turner Law Firm.
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