CITY OF MODESTO v. PUTNEY (1985)

OPINION

Petitioner City of Modesto (the City), having been denied its motion for summary judgment in the respondent court, seeks a peremptory writ of mandate ordering that court to enter a partial summary judgment for petitioner.   James Charles Putney, a minor represented by his guardian ad litem, is the real party in interest.   This court issued an order to show cause.

Putney is the plaintiff in a tort action against various defendants, including the City.   While riding his bicycle, Putney (plaintiff) was injured when he was struck by an automobile at an intersection in Modesto.   Plaintiff claims that excessive vegetation growing at the corner of the intersection blocked the views of plaintiff and the driver, precipitating the accident.

He alleges two causes of action against the City.   In the second cause of action he pleads liability under Government Code section 835 for the maintenance of a dangerous condition.¹  The viability of this cause of action is not questioned on this review.  (See Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 206 Cal.Rptr. 136, 686 P.2d 656.)

Under the sixth cause of action, plaintiff claims the City's failure to fulfill its mandatory duty to keep the corner clear of vegetation proximately caused his injury.   He predicates this duty upon two Modesto municipal ordinances.²  The first ordinance, as part of the zoning code, decrees that a clear vision triangle shall exist at each corner.³  The second ordinance establishes that enforcement responsibilities of the zoning code lie with three municipal officers.⁴

Each party moved for summary judgment on the sixth cause of action.   Plaintiff argued that each of the legal and factual questions raised by his pleadings, except for proximate causation, were satisfied as a matter of law.   The City urged that no mandatory duty existed;  that it was immune from liability;  that the municipal code section was not designed to protect against the type of injury suffered by plaintiff;  and, finally, that the accident was not proximately caused by the City's act or omission.

The trial court denied the City's motion for summary judgment and partially granted plaintiff's.   Specifically, the court found the City had a mandatory duty to enforce the “Clear Vision Triangle” (CVT) ordinance and the CVT ordinance was designed to protect against the kind of risk of injury suffered by the plaintiff.

In California, governmental tort liability must be based on statute.  (§ 815;  Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409, 205 Cal.Rptr. 1.)   Plaintiff here bases liability upon section 815.6 which 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 an 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.”

Plaintiff, to recover, must show that (1) the City was under a mandatory duty to enforce the CVT ordinance;  (2) the CVT ordinance was designed to protect against the risk of the kind of injury suffered by plaintiff;  and (3) that the failure of the City to discharge its duty proximately caused the accident.   Plaintiff sought and received summary judgment on the first two points.

The City unsuccessfully contended that liability conditions did not exist as a matter of law.   Additionally, the City claimed immunity under section 818.6.   Section 818.6 reads:

“A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.”

In denying summary judgment based upon the City's immunity claim, the court stated this case was appropriately characterized as a “negligent enforcement case as opposed to a negligent inspection case․”

I. MANDATORY DUTY.

 “In sorting out the issues presented, it is important to consider first things first.   Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201–202, 185 Cal.Rptr. 252, 649 P.2d 894.)   Whether the enactment concerned is intended to create or impose a mandatory duty of care toward the plaintiff is a question of law.  (Morris v. County of Marin (1977) 18 Cal.3d 901, 136 Cal.Rptr. 251, 559 P.2d 606.)

“As used in section 815.6, the term ‘mandatory’ refers to an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which a governmental entity may exercise or not as it chooses.”   (Morris, at p. 908, 136 Cal.Rptr. 251, 559 P.2d 606.)   The word “shall” is of consequence, but is not conclusive.   We again quote from Morris:

“In concluding that Labor Code section 3800 embodies a ‘mandatory’ duty, we do not hold that every statute which uses the word ‘shall’ is obligatory rather than permissive.   Although statutory language is, of course, a most important guide in determining legislative intent, there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity's or officer's exercise of discretion.  (See, e.g., Gov.Code, § 26501 (‘[a] district attorney shall institute proceedings ․ for the arrest of persons ․ reasonably suspected of public offenses when he has information that such offenses have been committed’), construed in Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 757 [6 Cal.Rptr. 813].)  Our observations here, of course, pertain only to the case before us.”  (Id., 18 Cal.3d at pp. 910–911, fn. 6, 136 Cal.Rptr. 251, 559 P.2d 606.)

In law enforcement, enactments which command an officer with “shall” language, are sometimes interpreted as directory, or permissive because discretion is inherent in the activity concerned.   In case of a district attorney, “both as to the investigation and prosecution that effort is subject to the budgetary control of boards of supervisors or other legislative bodies controlling the number of deputies, investigators and other employees.”  (Taliaferro v. Locke, supra, 182 Cal.App.2d 752, 756, 6 Cal.Rptr. 813, failure to abate a nuisance;  see also State of South Dakota v. Brown (1978) 20 Cal.3d 765, 144 Cal.Rptr. 758, 576 P.2d 473.)

Returning to Morris:

“As Chief Justice Gibson explained in Pulcifer v. County of Alameda, supra, 29 Cal.2d 258, 262, [175 P.2d 1], there is no simple, mechanical test for determining whether a provision should be given ‘directory’ or ‘mandatory’ effect.  ‘In order to determine whether a particular statutory provision ․ is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent.   In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time.  [Citation.]  When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]․’ ”  (Morris, supra, 18 Cal.3d at pp. 909–910, 136 Cal.Rptr. 251, 559 P.2d 606, fn. omitted.)

With that admonition in mind we turn to the argument of amicus curiae for a public advocate's characterization of the problem:

“This ․ cause of action is the focus of this proceeding and is of great concern to all cities throughout California.   The trial court's ruling that the municipal code provisions created a mandatory duty as a matter of law is diametrically opposed to the legitimate goals and purposes of municipalities and in direct conflict with the legislative intent in adopting municipal regulations of this nature.

“․

“․ The question simply stated is:  Did the City Council intend tort liability to attach upon the failure of certain officials to ensure compliance through enforcement of any one of the multitude of zoning regulations?   The answer is quite obviously no.   To answer otherwise would mean that the City Council desired that the public at large act as the ultimate insurer for all injury damages arising out of violations of zoning regulations on private property.   Such a position is inherently unsound and totally unsupportable.”

Counsel's advocacy is needed in this case only because a city attorney had not anticipated the importance of modifying these ordinances in a manner which would make the legislative intent clear.   Two cases have noted, and one has used, exculpatory provisions which state an intent not to self-impose liability when using “shall” language.  (Grenell v. City of Hermosa Beach (1980) 103 Cal.App.3d 864, 875, 163 Cal.Rptr. 315;  New Hampshire Ins. Co. v. City of Madera (1983) 144 Cal.App.3d 298, 306–307, 192 Cal.Rptr. 548.)   No similar disclaimer provision is present in the ordinances before us.

If a public agency may avoid liability when engaging in discretionary functions merely by making its intent clear, one wonders why they do not all do so.   Unfortunately, easily made statements of intent are overlooked, possibly in many cases.

“Liability of a public entity for its failure to discharge a mandatory duty (Govt C § 815.6) is predicated on identifying such a duty as imposed on the public entity by enactment․  In some situations, however, it may not be clear whether a statute or regulation establishing performance standards is intended to impose mandatory duties upon the public entity, as such, or only upon its employees.   Neither is the law clear as to whether an enactment imposing mandatory duties on public employees necessarily also imposes the same mandatory duties on the employing public entity, which can only act through its employees.   Moreover, there may be a measure of doubt whether the prescribed standards or criteria are designed to be obligatory or merely directory.   See Engel v. McCloskey (1979) 92 CA [Cal.App.] 3d 870, 155 CR [Cal.Rptr.] 284.”  (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1984) § 284, pp. 104–105.)

In our review we first noted the applicable Government Code sections, then the case law, and again turned to the statutory language.   On first blush, section 815.6 seems to give credibility to the cities' position.   The section commences:  “Where a public entity is under a mandatory duty imposed by an enactment․”  (Emphasis added.)   Simple logic dictates that if discretionary, an activity is not mandated.   The mere choice to engage in it would not seem to change its discretionary nature.   However, that may not be so.   The section 810.6 definition of “enactment” includes ordinances.   Thus, reading the two sections together permits self-mandating to become possible, even though unintended.

When the longstanding ordinances concerned here were enacted, the liability aspect of “mandatory duty” was not a consideration, governmental immunity being assumed.   Later, after the enactment of section 815.6, the ordinances remained unchanged except for minor modifications.   The City failed to recognize the potential liability the “shall” language presented.   While the property concerned was in county jurisdiction, the plantings appeared to be lawful.   However, upon annexation to the city the ordinances became applicable and required preexisting nonconforming conditions be corrected, presumably under the police power.   This is quite a different assignment to city officials than the control of new private property conditions by the permit process.

Several perplexing questions arise.   The local public agency chooses to do something not required by state law.   The public body voluntarily undertakes the task and details it with “shall,” “must,” and “may” directions to the employees charged with the duty.   Should courts presume the choice was made with knowledge of the risk of tort liability?   Does the absence of exculpatory language signify an intent to assume liability for delayed or failed services?   Or does the lack of expressed intent merely indicate an assumption that such liability will not be imposed without an express legislative statement accepting the liability?

What judicial explanation can be given a driver passing, for example, through Richmond, Berkeley, Oakland and then south, regarding his right of action against the public in several but not all the cities?   Superficially, the answer would turn on which cities were wisely advised to include an exculpatory clause, or to avoid “shall” and “must” words in the ordinance.   Since these services were not mandated by higher authority, the better answer may be that no liability will be presumed even in the absence of exculpatory language.

A checkerboard of liability which depends upon the selection of particular words in the assignments of responsibility or statements of intent found in ordinances may not comport with the Legislature's express intent, in passing the California Tort Claims Act, that “the terms and conditions of liability of public entities are matters of statewide concern and should be subject to uniform rules established by the action of the Legislature.”  (Legis. committee com. (Senate) to Gov.Code, § 815, 32 West's Ann.Gov.Code (1980 ed.) pp. 168–169.)

Mandatory duty cases have been concerned with various kinds of legislative enactments and most often with state legislation and regulations which permit no discretion.  Section 815.6 then applies by its own clear terms.   For example, a state law requiring the county to verify that certain applicants for building permits carry workers' compensation insurance imposes a “mandatory duty.”  (Morris v. County of Marin, supra, 18 Cal.3d 901, 910–911, 136 Cal.Rptr. 251, 559 P.2d 606;  also see Young v. City of Inglewood (1979) 92 Cal.App.3d 437, 154 Cal.Rptr. 724.)

Looking to the local level, several courts of appeal have reviewed contentions that ordinances created mandatory duties.   We find cases in which the court assumed that section 815.6 liability could be brought about by local, self-imposed ordinance duties “mandated” in the performance of discretionary governmental activity.   In only one was the assumption necessary to the holding of the court.  (Green v. City of Livermore (1981) 117 Cal.App.3d 82, 172 Cal.Rptr. 461, disapproved on another point in Davidson v. City of Westminster, supra, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894.)   In Green the court held that local police regulations satisfied the “enactment” requirement of section 815.6.

In each of the other cases involving ordinances the appellate analysis turned to a disclaimer or immunities, making the dictum on mandatory duty unnecessary.  (Cochran v. Herzog Engraving Co., supra, 155 Cal.App.3d 405, 205 Cal.Rptr. 1;  New Hampshire Ins. Co. v. City of Madera, supra, 144 Cal.App.3d 298, 192 Cal.Rptr. 548;  Grenell v. City of Hermosa Beach, supra, 103 Cal.App.3d 864, 163 Cal.Rptr. 315;  Chaplis v. County of Monterey (1979) 97 Cal.App.3d 249, 158 Cal.Rptr. 395;  Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 136 Cal.Rptr. 748;  Curreri v. City etc. of San Francisco (1968) 262 Cal.App.2d 603, 69 Cal.Rptr. 20.)

Therefore, there is substantial precedent for holding section 815.6 liability may be self-imposed by ordinance.   In our following discussion we find the ordinance language fails to reveal an intent to create a mandatory duty.⁵  Nevertheless, we suggest the need for a legislative clarification of whether section 815.6 includes or excludes self-imposed, “shall” type duties found in such ordinances.   The viability of exculpatory clauses should be similarly reviewed.

 The Modesto City ordinance provides that three named officials are authorized and charged with enforcement of all provisions of the zoning code.   “They shall enforce all of the provisions of this chapter․”  Nonconforming uses are specifically included.   The same three officials “may order such use or occupancy discontinued․”  (Emphasis added.)   Also, if upon notice the use is not discontinued within 10 days, the same officials may allow such additional time as may be reasonable under the circumstances.   No matter how energetic the enforcement effort, compliance orders are stayed by an appeal or request for variance.   We need not suggest the variables to be encountered should court enforcement become necessary.

We construe these words to be directory and a grant of authority.   No particular person is assigned a mandatory duty of a ministerial type.   Because no provision is made to “grandfather” nonconforming uses, the police power must be invoked to compel private owners to conform to the ordinance requirements;  local officials are designated to assure that it is done.

Nothing in the ordinances suggests that the City intended to cause the public to assume or share liability for delayed upgrading of existing building and planting conditions.   As to this specific portion of the zoning code, many variations would be expected in terms of budget, personnel, workload when county property is annexed, degree of cooperation by private owners, availability of court process, and delay in accomplishing full conformity.   We therefore assume the Modesto City Council anticipated the need for a variety of actions to meet the uncertain situations contemplated by the ordinance.   Thus, the manner of execution of duties would be discretionary once the responsible official was selected.   For similar analysis see Cochran v. Herzog Engraving Co., supra, 155 Cal.App.3d 405, 205 Cal.Rptr. 1;  Shelton v. City of Westminster (1982) 138 Cal.App.3d 610, 188 Cal.Rptr. 205;  Curreri v. City etc. of San Francisco, supra, 262 Cal.App.2d 603, 69 Cal.Rptr. 20.

In one case involving time limits, the rules provided that a committee “shall” do certain things within certain time periods and “must” complete a hearing within 90 days of notice.   However, the chairperson was authorized to extend the time limitations “for good cause.”   The appellate court held simply:  “Section 110 shows that the various time limits in rule X are not inflexible or mandatory.   They may be extended for discretionary reasons.   The existence of such discretion prevents the duty from being a mandatory (nondiscretionary) one.”  (Engel v. McCloskey (1979) 92 Cal.App.3d 870, 879, 155 Cal.Rptr. 284, emphasis in original.)   We find similar discretion present in the Modesto ordinance.

Let a writ of mandate issue directing the Superior Court of Stanislaus County in action No. 190278 to set aside its order denying petitioner a summary judgment on the sixth cause of action, and to enter a partial summary judgment in favor of petitioner City of Modesto as to said sixth cause of action.

Petitioner to be awarded costs.

FOOTNOTES

1.   All statutory references are to the Government Code unless otherwise indicated.

2.   The City requests that we take judicial notice of the municipal enactments.   The record on appeal does not affirmatively show that the trial court officially took judicial notice of the enactments.   However, we must assume the trial court did so, and we similarly take notice.   (Evid.Code, §§ 452 and 453.)

3.   Modesto Municipal Code section 10–2.1609 reads:“In all zones which require a front yard, no obstruction to view in excess of three (3) feet in height measured from the top of the curb adjacent to said front yard shall be placed on any corner or reversed corner lot within a triangular area formed by the boundary lines between the street rights-of-way and the abutting property and a line connecting them at points twenty-five (25) feet from the intersection of the boundary lines between the street rights-of-way and the abutting property, except that street trees are permitted which are pruned at least eight (8) feet above the top of the curb adjacent to said front yard so as not to obstruct clear view by motor vehicle drivers.   If no curb exists adjacent to said front yard, the City Engineer shall establish the grade of the curb.”

4.   Modesto Municipal Code section 10–2.2504 reads:“(a) The Chief Building Official, Chief of Police, and the Director of Planning and Community Development are hereby designated and authorized as the officers charged with the enforcement of this chapter.   They shall enforce all of the provisions of this chapter, and their failure to do so shall not legalize any violation of such provisions.   The Chief Building Official shall not issue any permit unless the plans of and for the proposed erection, construction, reconstruction, alterations and use fully conform to all provisions of this chapter.“(b) In addition to any other remedy provided by law, whenever any building, structure or land is being used or occupied contrary to the provisions of this chapter, the Chief Building Official, Chief of Police, or Director of Planning and Community Development may order such use or occupancy discontinued and the building, structure or land or portion thereof to be vacated by serving notice on any person or persons causing such use or occupancy to be continued.   Such person or persons shall discontinue such use or occupancy within ten (10) days after the receipt of such notice or make the use of the building, structure or land or portion thereof comply with the requirements of this chapter.   The Chief Building Official, Chief of Police, or Director of Planning and Community Development may allow more than ten (10) days for compliance and designate a compliance date he deems reasonable under the circumstances.   Such notice and order shall be stayed pending the completion of any appeal therefrom or any request for a variance.”

5.   As we find no mandatory duty bound the City, we need not reach the question of whether the City was immune under section 818.6.   However, we note that the conduct complained of appears protected under the expansive reading given the immunity provision in Cochran v. Herzog Engraving Co., supra, 155 Cal.App.3d 405, 411–412, 205 Cal.Rptr. 1.

WOOLPERT, Associate Justice.

PAULINE DAVIS HANSON, Acting P.J., and BEST, J., concur.