City of Norwalk v. City of Cerritos (2024) 99 Cal.App.5th 977

In City of Norwalk v. City of Cerritos (2024) 99 Cal.App.5th 977, the Court of Appeal for the Second District addressed the appeal of a public nuisance action brought by the City of Norwalk (“Norwalk”) against the City of Cerritos (“Cerritos”) for increased traffic in Norwalk resulting from amendments to a Cerritos city ordinance limiting commercial and heavy truck traffic through Cerritos. The Court of Appeal held that Cerritos is shielded from public nuisance liability under Civil Code section 3482 because the increased traffic was an inexorable and inescapable consequence flowing from a statutorily authorized act.

In 1974 Cerritos enacted an ordinance limiting commercial and heavy truck traffic through the city to certain major arteries. In 2019 and 2020 Cerritos issued amendments removing one of those arteries. Following these amendments Norwalk sued Cerritos, asserting the ordinance’s restrictions constitute a public nuisance by diverting extra truck traffic through Norwalk, causing the “adverse effects” that accompany heavier traffic flow. In response, Cerritos filed a demurrer arguing that because it adopted the ordinance “under the express authority of a statute,” in this case Vehicle Code sections 35701 and 21101, it is statutorily immune pursuant to Civil Code section 3482. The trial court sustained the demurrer without leave to amend. Norwalk appealed, arguing the trial court erred in (1) sustaining Cerritos’ demurrer, and (2) in sustaining without leave to amend. The Court of Appeal for the Second district addressed each of these arguments in turn.

Norwalk’s Public Nuisance Claim Was Properly Dismissed

Section 3482 provides that “[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Though courts construe the immunity granted narrowly so as to ensure it goes no further than the legislature intended, it is accepted that the immunity can extend to certain consequences resulting from statutorily authorized acts. In the court’s view, the appropriate question for a court to ask in determining if an alleged nuisance is immune is whether “the alleged nuisance [is] an inexorable and inescapable consequence that necessarily flows from the statutorily authorized act, such that the statutorily authorized act and the alleged nuisance are flip sides of the same coin[.]” Where an alleged nuisance does not inexorably and inescapably flow, section 3482’s immunity does not apply. This frequently occurs when an alleged tortfeasor has some leeway in how to undertake the authorized act.

Vehicle Code sections 35701 and 21101 expressly authorized Cerritos to enact its ordinance closing an artery to through traffic, therefore the ordinance itself was a statutorily authorized act warranting immunity. The question then became whether the resulting consequences likewise warranted immunity. The court explained that closure of one artery to through traffic necessarily diverts that traffic to a different artery. The adverse effects Norwalk alleged were the “unavoidable byproducts” of that diverted traffic. Because the adverse effects inexorably and inescapably flowed from the ordinance the resulting public nuisance warranted immunity.

Norwalk argued that section 3482’s immunity only applied if Cerritos’ ordinance was “reasonable,” but the court rejected this assertion. The court explained that so long as the local government’s conduct is not so unreasonable as to “invalidate the state’s delegation of regulatory authority, further inquiry into the reasonableness of that local government conduct is off limits to judicial review.” Because the court found that the ordinance was not “so unreasonable” further inquiry into its reasonableness was precluded.

Norwalk’s subsequent petition for review was denied by the California Supreme Court.

Diane Kindermann is the Principal Shareholder, Gage Marchini is a Senior Associate Attorney, and Jack Sandage is a Law Clerk at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.