Quinn v. County of San Luis Obispo CA2/6 ( 2021 )


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  • Filed 6/21/21 Quinn v. County of San Luis Obispo CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    MAUREEN QUINN,                                               2d Civ. No. B309170
    (Super. Ct. No. 20CVP-0095)
    Plaintiff and Appellant,                              (San Luis Obispo County)
    v.
    COUNTY OF SAN LUIS
    OBISPO,
    Defendant and Respondent.
    Plaintiff claimed the crowing of her neighbors’ roosters
    constitutes a public nuisance. She sued the county in propria
    persona for failure to abate the alleged nuisance. The trial court
    granted the county judgment on the pleadings on plaintiff’s
    second amended complaint, and refused to issue a preliminary
    injunction requiring the county to abate the alleged nuisance.
    We affirm.
    FACTS
    Maureen Quinn’s second amended complaint against the
    County of San Luis Obispo (County) alleged as follows:
    Quinn lives in a mobile home in a rural part of the County.
    Her home is separated by one lot from property owned by people
    who are not parties to this action (neighbors). The neighbors
    keep roosters in a battery of cages. The roosters crow day and
    night. The crowing causes Quinn to suffer severe sleep
    deprivation, headaches, agitation, and difficulty focusing.
    Quinn called the County’s animal services several times to
    complain about the noise. The County sent her a form to request
    that the County issue a citation to the neighbors. Quinn filled
    out the form and returned it to the County, but the County
    refused to investigate.
    Quinn had a number of confrontations with her neighbors
    over the noise. The neighbors have a video on which Quinn says,
    “Shut your fucking roosters up. I’ll go get my gun.” The
    neighbors obtained a restraining order against Quinn. Quinn
    claimed the video had been tampered with.
    Quinn contacted the County animal services again. She
    spoke with the head of animal services, Eric Anderson. Anderson
    told her that his duties do not include addressing complaints
    about roosters, especially in rural areas. Quinn continued to
    complain to animal services.
    Quinn alleges her mental health continued to deteriorate.
    She felt mentally ill. She sought help from a number of mental
    health providers. They could not help her because her problem
    was caused by external stimuli.
    The County’s district attorney charged Quinn with six
    counts of violating the restraining order obtained by her
    neighbors. A jury trial is pending.
    2.
    Quinn filed a tort claim with the County for failure to abate
    the nuisance caused by the roosters. The County denied the
    claim.
    Quinn alleges: “Plaintiff established that the procedural
    steps within [County Code section] 9.04.080, in conducting an
    investigation to determine if a public nuisance exists was
    CONDUCTED and CONCLUDED by the duly appointed
    employees (officers) and that investigation did DETERMINE
    THAT THE PUBLIC NUISANCE DOES EXIST.”
    The complaint prayed for $1 million in damages for pain
    and suffering.
    Motion for Preliminary Injunction
    Quinn made a motion for a preliminary injunction to
    require the County to impound the roosters and cite the roosters’
    owners.
    In opposition to the motion, Anderson declared under
    penalty of perjury that at no time did he or any other animal
    services officer make a determination that a nuisance exists on
    the neighbors’ property. Quinn did not contest the truth of
    Anderson’s affidavit.
    DISCUSSION
    I
    Judgment on the Pleadings
    A motion for judgment on the pleadings is in the nature of
    a general demurrer; thus, the rules governing demurrers apply.
    (Smiley v. Citibank (1995) 
    11 Cal.4th 138
    , 146.) We
    independently review the complaint to determine whether it
    alleges facts sufficient to state a cause of action. (Id. at pp. 145-
    146.) In doing so, we accept all material facts alleged in the
    complaint as true. (Id. at p. 146.) But we do not accept as true
    3.
    contentions, deductions, or conclusions of law. (Stevenson v. San
    Francisco Housing Authority (1994) 
    24 Cal.App.4th 269
    , 273.)
    II
    Duty to Abate the Nuisance
    Quinn contends that she alleged facts sufficient to show
    that the County breached its mandatory duty to abate the
    nuisance.
    Quinn argues that County Code section 9.04.080 imposes a
    mandatory duty on the County to abate the nuisance. That
    section provides: “Whenever it shall be affirmed in writing by
    three or more persons living in separate dwelling units in the
    neighborhood that any dog, cat or household pet is a habitual
    nuisance by reason of frequent, persistent or long-continued
    howling, barking or other noise, or is in any other manner
    causing undue annoyance, by reason of chronic leash law
    violations or unsanitary conditions, that shall constitute a public
    nuisance to exist, the division, through investigation, if it finds
    such public nuisance to exist, shall serve written notice upon the
    owner or custodian that the public nuisance shall be abated or
    the animal shall be impounded in a legal manner. If the
    nuisance and annoyance is not successfully abated, as affirmed in
    writing by the original petitioner(s), the division shall present the
    results of the investigation of such nuisance to the officer
    responsible for prosecution within the jurisdiction wherein such
    nuisance is being maintained.”
    A public entity is liable for an injury proximately caused by
    its failure to discharge a mandatory duty unless the public entity
    establishes that it exercised reasonable diligence to discharge the
    duty. (Gov. Code, § 815.6.) In order to give rise to liability, the
    duty must be mandatory rather than discretionary or permissive.
    4.
    (Haggis v. City of Los Angeles (2000) 
    22 Cal.4th 490
    , 498.) It is
    not enough if a public entity is obligated to perform a function if
    the function itself involves an exercise of discretion. (Ibid.)
    Here the trial court properly granted the County judgment
    on the pleadings for at least two reasons, either of which would
    be sufficient to uphold the judgment.
    First, County Code section 9.04.080 requires as a
    prerequisite of any duty, mandatory or discretionary, complaints
    “in writing by three or more persons” living in separate dwelling
    units. Quinn alleges only her own complaint.
    Second, the County Code requires that the annoyance
    complained of must be caused “by reason of chronic leash law
    violations or unsanitary conditions.” Quinn’s complaint alleges
    neither violations of the leash law nor unsanitary conditions.
    Quinn does not suggest how she can amend her complaint
    to state a cause of action. The trial court did not err in granting
    judgment to the County.
    III
    Motion for Preliminary Injunction
    Quinn contends the trial court erred in refusing to issue the
    preliminary injunction requiring the County to abate the
    nuisance.
    Quinn’s motion for a preliminary injunction is based on
    County Code section 9.04.080. For the same reasons that the
    trial court properly granted the County’s motion for judgment on
    the pleadings, the trial court properly refused to issue the
    injunction.
    One additional reason is that under the County Code, the
    County has a duty to abate the nuisance only if through an
    investigation the County finds a public nuisance to exist. Quinn’s
    5.
    unverified complaint alleges the County investigated and
    declared the roosters to be a nuisance. But Anderson’s affidavit
    in opposition to the motion declared that there had been no
    declaration of a nuisance. Anderson’s affidavit was
    uncontradicted.
    The judgment is affirmed. Costs are awarded to
    respondent.
    NOT TO BE PUBLISHED.
    GILBERT, P. J.
    We concur:
    PERREN, J.
    TANGEMAN, J.
    6.
    Linda D. Hurst, Judge
    Superior Court County of San Luis Obispo
    ______________________________
    Maureen Quinn, in pro. per., for Plaintiff and Appellant.
    McCarthy & Kroes, R. Chris Kroes, and Linda Elias-
    Wheelock for Defendant and Respondent.
    7.
    

Document Info

Docket Number: B309170

Filed Date: 6/21/2021

Precedential Status: Non-Precedential

Modified Date: 6/21/2021