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Court of Appeal, Second District, Division 3, California.

GREATER WESTCHESTER HOMEOWNERS ASSOCIATION, etc., et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, etc., et al., Defendants and Appellants.

Civ. 51698.

Decided: February 28, 1979

Burt Pines, City Atty., Lawrence M. Nagin and James H. Pearson, Asst. City Attys., for defendants and appellants. Fadem, Berger & Norton and Michael M. Berger, Santa Monica, for plaintiffs and respondents.

Defendant, City of Los Angeles, appeals from a judgment awarding 41 specified neighboring homeowners and various members of their families a total of $86,800 in principal damages for essentially the mental and emotional distress caused them by the nuisance of excessive noise emanating from jet aircraft using the two north runways of the municipally-owned Los Angeles International Airport (LAX), and from the order after judgment for prejudgment interest in the total amount of $31,671.95, and for $200,000 in attorneys' fees.[FN1]

The City challenges the propriety of the judgment on only two grounds. The first of these is that the federal government has totally preempted the regulation of jet aircraft noise and the second is that the complained of use of jet aircraft on the two north runways of LAX is an activity done and maintained under the express authority of various statutes, etc., or their equivalent, and therefore the noise resulting from such use cannot, under Civil Code section 3482, be deemed a nuisance.

We believe both of these grounds to be without merit and will, therefore, affirm the judgment under appeal. We will, however, remand the order after judgment for the sole purpose of further proceedings to determine what attorneys' fees should be awarded plaintiffs' counsel.


I. The Cause of Action for Nuisance herein is not Federally Preempted

The City contends to the contrary on the basis of San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361, 136 Cal.Rptr. 557, a decision of our San Diego District. In this case our Supreme Court denied hearing in April 1977 and the United States Supreme Court denied certiorari in October 1977. (Id. at p. 378, 136 Cal.Rptr. 557.) Neither of these denials of review necessarily indicates, however, approval of this decision by the two high courts. (See People v. Triggs (1973) 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232; Maryland v. Baltimore Radio Show (1950) 338 U.S. 912, 919, 70 S.Ct. 252, 94 L.Ed. 562, 566.)

Our San Diego District concluded that nearby homeowners could not recover tort damages from an airport proprietor for harm caused by the noise of aircraft in flight because allowing such recovery “would permit local liability for conduct within exclusive federal control.” (San Diego Unified Port Dist. v. Superior Court, supra, 67 Cal.App.3d at pp. 363, 376-378, 136 Cal.Rptr. 557, 566.) The San Diego court based this conclusion primarily upon Burbank v. Lockheed Terminal (1973) 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547, a five to four decision of the United States Supreme Court in which the majority found implied federal preemption of aircraft noise control in the existence of a pervasive scheme of federal regulation of the subject.[FN2] (Id. at pp. 633, 638, 93 S.Ct. 1854.) The majority, therefore, struck down a municipal curfew ordinance prohibiting night takeoffs of jet aircraft from the airport involved (Id. at pp. 625-626, 93 S.Ct. 1854), apparently in the interest of national uniformity in jet aircraft flight scheduling. (Id. at pp. 639-640, 93 S.Ct. 1854.)

The majority were careful to say, though, that the court was not considering what limits, if any, apply in this area to a municipality as a proprietor. (Id. at p. 635, fn. 14, 93 S.Ct. 1854, fn. 14.) Since Burbank, the federal government has made clear in its monograph, entitled “Aviation Noise Abatement Policy”, dated November 18, 1976, and issued by its Department of Transportation and its Federal Aviation Administration, and in the administrative regulations regarding supersonic transports, that airport proprietors remain primarily responsible for planning and implementing action designed to reduce the effect of airport-associated noise on residents of surrounding areas (Aviation Noise Abatement Policy p. 5), and, as a result of congressional abstinence, airport proprietors remain responsible for regulation of their airports for noise abatement purposes through, among other things, noise-related airport use restrictions that are not unjustly discriminatory and do not impose an undue burden on foreign or interstate commerce. (43 Fed.Reg. 28417.)[FN3]

This deliberate federal refusal to preempt the local airport proprietor's responsibility for establishing and maintaining permissible levels of airport-associated noise was expressly recognized and affirmed in British Airways Bd. v. Port Authority of New York (2d Cir. 1977) 558 F.2d 75, 82-84. Likewise, in the second Concorde case, British Airways v. Port Authority of New York, Etc. (2d Cir. 1977) 564 F.2d 1002, 1010-1011, the court pointed out that the task of protecting the local population from airport noise falls upon the airport proprietor due to its intimate knowledge of local conditions, its ability to acquire the necessary property and easements and to assure compatible land use.

The fundamental fallacy of the San Diego decision lies in its assumption that excessive airport noise results only from the presence of jet aircraft in flight without recognizing that such possibly objectionable presence is also due to the existence of an airport whose location, runways, and noise abatement procedures, among other things, are under the direct and immediate control (subject, of course, to federal supervision) of the airport proprietor. (See Griggs v. Allegheny County (1962) 369 U.S. 84, 89, 82 S.Ct. 531, 7 L.Ed.2d 585, 588-589; City of Los Angeles v. Japan Airlines Co., Ltd. (1974) 41 Cal.App.3d 416, 424, 116 Cal.Rptr. 69; National Aviation v. City of Hayward, Cal. (N.D.Cal.1976) 418 F.Supp. 417, 421.) In other words, airport noise control is essentially a shared responsibility of the federal government and the airport proprietor.

Moreover, the allowance of local nuisance actions against excessive airport noise constitutes a much lesser intrusion upon national aviation noise abatement policy than the local night curfew of jet aircraft takeoffs involved in the Burbank case.

Accordingly, we hold that the nuisance cause of action herein has not been federally preempted and, in this connection, we call attention to the following language in the Federal Aviation Act of 1958: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” (49 U.S.C. s 1506.)

II. Civil Code Section 3482 does not Immunize the City from Nuisance Liability in this Case

Civil Code section 3482 provides: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” The City contends that the excessive noise to plaintiffs, emanating from jet aircraft using the north runways of LAX, is expressly authorized by statute and therefore, under section 3482, cannot be deemed a nuisance.

Like the trial court, we disagree. We do not doubt that the use of these runways by jet aircraft has been duly authorized by the City, and by the state and federal governments as well, whether by way of charter, statute, regulation, permit, or otherwise. What is lacking, though, is express authority for the level of noise injurious to plaintiffs that the trial court found to have occurred in this case, and without such authority, as the trial court also concluded, section 3482's protection of the adverse effects of the activity involved, does not attach. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 938, fn. 16, 101 Cal.Rptr. 568, fn. 16, 496 P.2d 480, fn. 16; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291-292, 142 Cal.Rptr. 429, 572 P.2d 43; Hassell v. San Francisco (1938) 11 Cal.2d 168, 171, 78 P.2d 1021; Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 129, 99 Cal.Rptr. 350.)

III. The Award of Prejudgment Interest was Proper

Civil Code section 3288 provides, in pertinent part, that in an action for breach of an obligation not arising from a contract, interest may be given in the discretion of the jury. Where the trial involved is to the court, this discretion as to whether to award prejudgment interest rests with the court. (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 814, fn. 16, 148 Cal.Rptr. 22, 582 P.2d 109.)

We perceive no abuse of this statutory discretion in the awards of such interest here challenged. The starting dates for such interest that the trial court chose represent a midpoint between the start of the nuisance and the date of trial. (Cf. Amador Valley Investors v. City of Livermore (1974) 43 Cal.App.3d 483, 495, 117 Cal.Rptr. 749.) In view of the fact that this litigation took some eight years at the trial level, the addition of prejudgment interest, while perhaps unprecedented for injury to feelings in this state and elsewhere (see Comment, Interest as Damages in California (1958) 5 UCLA L.Rev. 262, 264, 271; Rest., Torts, s 913(2) ), seems justified in this exceptional situation. (Cf. Moore-McCormack Lines, Inc. v. Richardson (2d Cir. 1961) 295 F.2d 583, 592-595, cert. denied 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526, 370 U.S. 937, 82 S.Ct. 1577, 8 L.Ed.2d 806; Petition of City of New York (2d Cir. 1964) 332 F.2d 1006, 1008, cert. denied 379 U.S. 922, 85 S.Ct. 277, 13 L.Ed.2d 335.)

IV. The Award of Attorneys' Fees must be Remanded for Further Proceedings

Counsel for plaintiffs were awarded $200,000 in attorneys' fees. They requested $352,960.50. The City has challenged this award as being excessive and otherwise improper,[FN4] and the trial court never explained what portion of this tripartite litigation its award of attorneys' fees covered direct condemnation, inverse condemnation, and nuisance. Indeed, there is some question as to whether the plaintiffs in this case are entitled to recover their litigation expenses in direct condemnation under what is now Code of Civil Procedure section 1250.410. On the other hand, they are clearly entitled, pursuant to what is now Code of Civil Procedure section 1036, to the recovery of reasonable attorneys' fees for the work they did in the inverse condemnation aspect of this case.[FN5] But there would appear to be no basis whatsoever upon which they could be awarded attorneys' fees for the work they did in the nuisance phase of the case. (See Code Civ.Proc., s 1021; Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1, 5, 148 Cal.Rptr. 419, 582 P.2d 1010; Twentieth Century-Fox Film Corp. v. Harbor Ins. Co. (1978) 85 Cal.App.3d 105, 112-113, 149 Cal.Rptr. 313.)


The judgment under appeal is affirmed. The order after judgment under appeal is affirmed in all respects except the provision therein for attorneys' fees, as to which it is reversed. The case is remanded to the trial court for the sole purpose of further proceedings to determine the proper amount of attorneys' fees to be awarded counsel for plaintiffs in this case, including what, if any, fees should be awarded them for their services on this appeal. Plaintiffs are otherwise awarded their costs on appeal.


1.  The dispute over attorneys' fees includes the question whether the compensated services of plaintiffs' counsel were rendered, at least in part, in the nuisance phase of the consolidated action as opposed to the direct condemnation portion thereof and the inverse condemnation part.The City does not challenge on appeal any of the other costs awarded plaintiffs' counsel, nor do they challenge the sufficiency of the evidence in support of the trial court's findings and conclusions regarding the existence of the nuisance.

2.  In this connection we note, though, that total federal preemption of an area of regulation has been rejected by the United States Supreme Court in several other fields where a pervasive scheme of federal regulation exists. (See De Canas v. Bica (1976) 424 U.S. 351, 356, 96 S.Ct. 933, 47 L.Ed.2d 43, 49 (immigration); Farmer v. Carpenters (1977) 430 U.S. 290, 295-297, 97 S.Ct. 1056, 51 L.Ed.2d 338, 346-348; Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, 198, 98 S.Ct. 1745, 56 L.Ed.2d 209, 225 (labor relations); Askew v. American Waterways Operators (1973) 411 U.S. 325, 329, 336-337, 93 S.Ct. 1590, 36 L.Ed.2d 280, 284, 288-289 (ocean oil spills).)

3.  According to the just-mentioned Department of Transportation-Federal Aviation Administration Aviation Noise Abatement Policy, dated November 18, 1976, much of the noise problem is airport-specific (p. 50) and there are at least 22 actions which an airport proprietor may wish to consider in developing an airport noise control plan. (See pp. 55-57.)

4.  Counsel for the City challenged 2,345.2 hours of the 4,296.4 hours claimed. The challenged time items were circled in red for the guidance of the trial court. Counsel for plaintiffs argued that they were entitled to twice their normal hourly rate because of the extraordinary length of the case and the uncertainty of their compensation. In addition, they pointed out that the case was unusually complex and had originally involved some 600 plaintiffs.

5.  According to counsel for the City, the recovery in the direct condemnation phase of this case (14 parcels) totals $720,000, which was only $56,000 more than the total amount of money the City offered for those parcels. Counsel for plaintiffs charged their clients according to their time records, $90,492.28 for their work in the direct condemnation proceedings, and $12,366.64 for their work in the inverse condemnation proceedings.

COBEY, Associate Justice.

KLEIN, P. J., and ALLPORT, J., concur.

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Docket No: Civ. 51698.

Decided: February 28, 1979

Court: Court of Appeal, Second District, Division 3, California.

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