City of Norwalk v. City of Cerritos ( 2024 )

Filed 2/22/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
B327413
CITY OF NORWALK,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
22STCV33737)
v.
ORDER MODIFYING
CITY OF CERRITOS, OPINION AND DENYING
REHEARING
Defendant and
Respondent. NO CHANGE IN THE
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on February 1, 2024, be
modified as follows:
1. In the second full paragraph on page 19 beginning with
“First,” add the phrase “(San Leandro)” to the fifth
sentence, so the citation in that sentence reads as follows:
(San Leandro Rock Co. v. City of San Leandro (1982)
136 Cal.App.3d 25, 34-35 (San Leandro) [weight
limits on streets that pass into other cities valid];
2. On page 22, after the paragraph ending with “amendment
would be futile’”]).),” add the following new paragraph:
For the very first time in a petition for rehearing,
Norwalk argues that it can state a claim for relief
under Vehicle Code section 35703. Not only has
Norwalk waived this argument by asserting it in a
grossly untimely fashion (EpicentRx, Inc. v. Superior
Court (2023) 95 Cal.App.5th 890, 909, fn. 9 [“‘A
petition for rehearing is not the place to raise any
argument . . . for the first time’”]), the argument lacks
merit. As briefly noted above, Vehicle Code section
35703 explicitly limits the authority conferred upon
local governments by Vehicle Code section 35701
because it limits any local regulation of commercial
vehicles to the regulation of through traffic by
specifying that no local ordinance may prohibit
commercial vehicles “coming from an unrestricted
street having ingress and egress by direct route to
and from a restricted street when necessary for the
purpose of making pickups or deliveries of goods,
wares, and merchandise from or to any building or
2
structure located on the restricted street . . . .” (Veh.
Code, § 35703.) Norwalk is not entitled to add a
claim under Vehicle Code section 35703 because the
ordinance does not, as a matter of law, run afoul of
that statute; that is because the ordinance does not
prohibit the use of restricted routes to conduct
pickups and deliveries to locations within Cerritos.
Norwalk asserts that the ordinance prohibits the use
of Bloomfield Avenue to make pickups and deliveries
to and from a warehouse located on that street. But
that warehouse, by Norwalk’s own allegations, is
located in the City of Santa Fe Springs—not Cerritos.
As a result, the ordinance does not impermissibly
prohibit the use of any regulated route to make
pickups and drop offs to any location within Cerritos,
and hence does not violate Vehicle Code section
35703. To the extent Norwalk is arguing that Vehicle
Code section 35703 prohibits ordinances that
regulate through traffic along a specific route in a city
if there is a pickup or delivery location somewhere
along that route as that route continues into a
different city, that argument rests on a misreading of
the Vehicle Code that has already been squarely
rejected. (See San Leandro, supra, 136 Cal.App.3d at
pp. 34-35.)
* * *
There is no change in the judgment.
3
Appellant’s petition for rehearing is denied.
——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
4
Filed 2/1/24 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CITY OF NORWALK, B327413
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 22STCV33737)
CITY OF CERRITOS,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Linfield, Judge. Affirmed.
Alvarez-Glasman & Colvin, Stephen T. Owens, Eric G.
Salbert and Bruce T. Murray for Plaintiff and Appellant.
Rutan & Tucker, William H. Ihrke and Robert O. Owen for
Defendant and Respondent.
******
This is a tale of two cities. Way back in 1974, the City of
Cerritos (Cerritos) enacted an ordinance limiting commercial and
heavy truck traffic through the city to certain major arteries.
After two amendments to that ordinance in 2019 and 2020
removed one of those arteries, the neighboring City of Norwalk
(Norwalk) sued, claiming that the ordinance’s restrictions
constitute a public nuisance by shunting extra truck traffic
through Norwalk, and thereby causing the “adverse effects” that
accompany heavier traffic flow. Because a city is immune from
public nuisance liability for any acts “done or maintained under
the express authority of a statute” (Civ. Code, § 3482),1 and
because two sections of the Vehicle Code—namely, sections 35701
and 21101—explicitly authorize cities to regulate the use of their
streets by commercial or heavy vehicles, this appeal presents the
question: Is Cerritos immune from liability for the public
nuisance of diverting traffic into Norwalk? Yes, because the
immunity conferred by Civil Code section 3482 applies not only to
the specific act expressly authorized by statute (namely, enacting
an ordinance designating routes for commercial vehicles and
those exceeding weight limits), but also to the inexorable and
inescapable consequences that necessarily flow from that act
(namely, that drivers unable to use those routes will take
different routes, thereby causing adverse effects of heavier traffic
on those other routes). Where, as here, the authorized act and its
consequence are flip sides of the same coin, immunity applies to
both, and a public nuisance claim fails as a matter of law. We
accordingly affirm the judgment after demurrer for Cerritos.
1 All further statutory references are to the Civil Code unless
otherwise indicated.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The City of Cerritos
Cerritos is a part of the Los Angeles megalopolis. Cerritos
is roughly U-shaped. All around the U are the cities of
Bellflower, Lakewood, La Palma, Buena Park, La Mirada, and
Santa Fe Springs. Nestled in the middle of the U are the cities of
Artesia and Norwalk. State Route 91 (Route 91) runs west and
east through most of Cerritos, then veers to the southeast.
Interstate 605 (I-605) runs north and south, bisecting the left
side of the U. Cerritos has six major west-east arteries and 10
major north-south arteries.
B. Cerritos’s 1974 ordinance
In 1974, Cerritos added section 10.18.010 to its municipal
code (the ordinance). The ordinance generally prohibits “any
commercial vehicle or any vehicle exceeding six thousand
pounds” that is traveling through Cerritos (as opposed to “making
pickups or deliveries” within the city)2 from driving on “any
street, road, or public right-of-way within the city” except “streets
. . . designated as truck routes.” (Cerritos Mun. Code, §
10.18.010, subds. (A) & (D), italics added.)
The ordinance then designates the city’s truck routes. As
noted above, Cerritos has 16 major arteries, which are the streets
most likely to be used by vehicles traveling through the city:
2 The ordinance’s restrictions also do not apply to any
vehicles “use[d] in the construction, installation or repair of any
public utility.” (Cerritos Mun. Code, § 10.18.010, subd. (E).)
3
Of the city’s six major west-east arteries:
● Two arteries—namely, Alondra Boulevard and Del
Amo Boulevard—are boundary streets that mark the border
between Cerritos and neighboring cities;
● One artery—namely, 166th Street—is not a
designated truck route along any of its length within the city;
● Two arteries are designated truck routes for some
portion of their length within the city—Artesia Boulevard is a
designated truck route from the western edge of the city to Route
91; and 183rd Street is a designated truck route from Route 91 to
the nearest north-south artery that is a designated truck route;
and
● One artery—namely, South Street—is a designated
truck route along its entire length through the city.
Of the city’s 10 major north-south arteries:
● Two arteries—namely, Palo Verde Avenue and Valley
View Avenue—are boundary streets that mark the border
between Cerritos and neighboring cities;
● One artery—namely, Gridley Road—is a street that
is a boundary street for only a portion of its length, but is not a
designated truck route;
● Two arteries—namely, Shoemaker Avenue and
Marquardt Avenue—are not designed truck routes for any of
their length within the city;
● Four arteries are designated truck routes for some
portion of their length within the city—Studebaker Road is a
designated truck route from the northern boundary of the city to
South Street, which connects with the I-605; Norwalk Boulevard
is a designated truck route from Route 91 to the nearest west-
east artery that is a designated truck route; Bloomfield Avenue is
4
a designated truck route from the northern boundary of the city
to Artesia Boulevard, which is a west-east artery and designated
truck route connecting with Route 91; and Carmenita Road is a
designated truck route from 183rd Street to South Street, which
is a west-east artery and designated truck route; and
● One artery—namely, Pioneer Boulevard—is a
designated truck route along its entire length through the city.
C. Cerritos’s 2019 and 2020 amendments
In December 2019 and February 2020, Cerritos enacted two
amendments to the ordinance, the net effect of which was to
eliminate Bloomfield Avenue as a designated truck route.
II. Procedural Background
A. Norwalk sues
On October 18, 2022, nearly 48 years after Cerritos adopted
its ordinance and nearly three years after its most recent
amendments, Norwalk sued Cerritos for a single claim of public
nuisance. Specifically, Norwalk alleged that the net effect of
Cerritos’s ordinance was to “divert commercial and freight traffic
away from Cerritos, while channeling it through Norwalk,
resulting in a very substantial increase in heavy truck traffic
through the streets of Norwalk, including residential streets,
with severe adverse effects on Norwalk residents, businesses and
property.”
B. Cerritos’s demurrer is sustained
On November 21, 2022, Cerritos filed a demurrer arguing,
as pertinent here, that because it adopted the ordinance “under
the express authority of a statute”—namely, Vehicle Code section
35701—Cerritos is statutorily immune pursuant to Civil Code
section 3482. After further briefing and a hearing, the trial court
issued an order sustaining the demurrer without leave to amend.
5
The court reasoned that Cerritos enacted the ordinance under the
authority granted to it by Vehicle Code sections 35701 and 21101,
and that this statutory authorization immunized Cerritos from
liability by virtue of Civil Code section 3482.
C. Appeal
Norwalk filed a premature notice of appeal after entry of
the minute order, but that notice became effective once the trial
court entered a judgment in May 2023. (Heshejin v. Rostami
(2020) 54 Cal.App.5th 984, 991-992; Davaloo v. State Farm Ins.
Co. (2005) 135 Cal.App.4th 409, 413, fn. 7; Cal. Rules of Court,
rule 8.104(d).)
DISCUSSION
Norwalk argues that the trial court erred in sustaining
Cerritos’s demurer without leave to amend.
In assessing whether the trial court erred in this ruling, we
ask two questions: “(1) Was the demurrer properly sustained;
and (2) Was leave to amend property denied?” (Shaeffer v.
Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1134.) In
answering the first question, “we ask whether the operative
complaint ‘“states facts sufficient to constitute a cause of
action.”’” (California Dept. of Tax & Fee Administration v.
Superior Court (2020) 48 Cal.App.5th 922, 929; Loeffler v. Target
Corp. (2014) 58 Cal.4th 1081, 1100; Code Civ. Proc., § 430.10,
subd. (e).) In undertaking that inquiry, “we accept as true all
‘“‘“material facts properly pleaded”’”’” in the operative complaint
(Tax & Fee Administration, at p. 929) as well as facts subject to
judicial notice, giving “‘“precedence”’” to the judicially noticed
facts if they “‘“contradict the allegations”’” (Gray v. Dignity
Health (2021) 70 Cal.App.5th 225, 236, fn. 10; Scott v. JPMorgan
Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751-752; Brakke v.
6
Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767). In
answering the second question, we ask “‘“whether ‘“‘there is a
reasonable possibility that the defect [in the operative complaint]
can be cured by amendment.’”’”’” (Shaeffer, at p. 1134.) We
review the trial court’s ruling regarding the first question de novo
(Engel v. Pech (2023) 95 Cal.App.5th 1227, 1235), and review its
ruling regarding the second for an abuse of discretion (People ex
rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th
772, 777; Branick v. Downey Savings & Loan Assn. (2006) 39
Cal.4th 235, 242).
I. Was Norwalk’s Public Nuisance Claim Properly
Dismissed?
A “nuisance” is defined as “[a]nything which is injurious to
health . . . or is indecent or offensive to the senses, . . . so as to
interfere with the comfortable enjoyment of life or property.” (§
3479.) A nuisance is a “public nuisance” if it “affects at the same
time an entire community or neighborhood.” (§ 3480; Friends of
H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160
(Friends of H Street).) Because “‘“each individual in a community
must put up with a certain amount of annoyance, inconvenience
and interference . . . ,”’” a public nuisance is actionable only if the
requisite interference is “both substantial and unreasonable.”
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103, 1105,
italics omitted; Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th
292, 324.) Because “[a]nything which unlawfully obstructs the
free passage or use in the customary manner of a public street is
a nuisance” and because “a municipality may be held liable for
creating or maintaining a nuisance even though a governmental
activity is involved” (Phillips v. Pasadena (1945) 27 Cal.2d 104,
7
106), Norwalk’s allegations sufficiently allege that Cerritos’s
ordinance constitutes a nuisance.
However, section 3482 confers a statutory immunity that is
a complete defense to a nuisance claim. (§ 3482.) Because a
demurrer may be sustained on the basis of statutory immunity
(e.g., Leyva v. Nielsen (2000) 83 Cal.App.4th 1061, 1065-1066),
the viability of Norwalk’s claim turns on the following question:
Does section 3482 apply? We review this question de novo, as it
turns on issues of statutory construction and the application of
the law to undisputed facts. (Tansavatdi v. City of Rancho Palos
Verdes (2023) 14 Cal.5th 639, 652 [interpreting immunity statute
de novo]; Guardianship of Saul H. (2022) 13 Cal.5th 827, 846-847
[application of law to undisputed facts reviewed de novo].)
A. The statutory immunity conferred by section
3482
Section 3482 provides that “[n]othing which is done or
maintained under the express authority of a statute can be
deemed a nuisance.” (§ 3482.) Although its plain language refers
to statutory authority, the immunity conferred by section 3482
also applies to acts authorized by regulations and “other express
government approvals” (such as permits). (Williams v. Moulton
Niguel Water Dist. (2018) 22 Cal.App.5th 1198, 1205 (Williams).)
To ensure that section 3482-based immunity goes no further than
the Legislature “‘“contemplated,”’” courts construe that immunity
“narrow[ly].” (Greater Westchester Homeowners Assn. v. City of
Los Angeles (1979) 26 Cal.3d 86, 100-101 (Greater Westchester);
Today’s IV, Inc. v. Los Angeles County Metropolitan
Transportation Authority (2022) 83 Cal.App.5th 1137, 1177
(Today’s IV).) Consequently, immunity from public nuisance
liability under section 3482 applies only if “‘the acts complained
8
of [as a nuisance] are authorized’” either (1) “‘by the express
terms of the statute under which the justification is made,’” or (2)
“‘by the plainest and most necessary implication from the powers
expressly conferred.’” (Hassell v. San Francisco (1938) 11 Cal.2d
168, 171 (Hassell); Varjabedian v. City of Madera (1977) 20
Cal.3d 285, 291 (Varjabedian); Greater Westchester, at p. 101.)
Applying this standard requires a “particularized assessment of
each authorizing statute in relation to the act which constitutes
the nuisance.” (Varjabedian, at p. 291, fn. 6; Greater Westchester,
at p. 102.)
Although courts can readily assess whether the alleged
nuisance in a particular case is “‘authorized by the express terms
of [a] statute [authorizing conduct]’” by looking to the plain
language of the statute, assessing whether an alleged nuisance is
a “‘necessary implication’” of the statute’s express authorization
has proven more challenging. (Hassell, supra, 11 Cal.2d at p.
171.) Thus far, the courts have developed two rules of thumb to
address this challenge.
One line of cases draws a distinction between the “activity
authorized” and “the manner in which the activity is performed”;
under this line of cases, section 3482’s immunity applies to the
former, but may not apply to the latter. (Venuto v. Owens-
Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 129; Greater
Westchester, supra, 26 Cal.3d at p. 101; Today’s IV, supra, 83
Cal.App.5th at p. 1189; Jones v. Union Pacific Railroad Co.
(2000) 79 Cal.App.4th 1053, 1067 (Jones); Friends of H Street,
supra, 20 Cal.App.4th at p. 160; Chase v. Wizmann (2021) 71
Cal.App.5th 244, 259-260.)
A second line of cases draws a distinction between “the act”
authorized by the statute, and “the consequences of [that] act”;
9
under this line of cases, section 3482’s immunity applies to the
former, but may not apply to the latter. (Williams, supra, 22
Cal.App.5th at p. 1207 [discussing cases].)
These rules of thumb, while drawing distinctions that are
easy to remember (“act versus manner” and “act versus
consequence”), nevertheless fall short of accurately assessing
whether an alleged nuisance falls within the ambit of section
3482. There are times when there is only one manner to
undertake an act; in that instance, the act and the manner are
one in the same, section 3482’s immunity applies to both, and
drawing any distinction between the two is an artificial and
potentially misleading construct. (E.g., Orpheum Building Co. v.
San Francisco Bay Area Rapid Transit Dist. (1978) 80 Cal.App.3d
863, 875-876 (Orpheum) [where defendant had no choice in how
to undertake construction, immunity applied to construction as
well as to manner of construction].) And there are times when a
consequence is the inevitable result of the act; in that instance,
the act and its consequence are also one in the same, section
3482’s immunity applies to both, and drawing any distinction
between the two is an artificial and potentially misleading
construct. (E.g., Farmers Ins. Exchange v. State of California
(1985) 175 Cal.App.3d 494, 503 (Farmers) [where defendant was
authorized to spray pesticide in a particular area, immunity
applied to the consequential damage caused to paint on cars
within that area].)
In our view, courts assessing whether an alleged nuisance
is a “necessary implication” of a statute’s express authorization
should ask the following question: Is the alleged nuisance an
inexorable and inescapable consequence that necessarily flows
from the statutorily authorized act, such that the statutorily
10
authorized act and the alleged nuisance are flip sides of the same
coin?
The precedent applying section 3482 becomes a coherent
whole when we apply this formulation.
Where an alleged nuisance does not inexorably and
inescapably flow from the statutorily authorized act—typically
because the alleged tortfeasor has some leeway in how to
undertake the authorized act—then section 3482’s immunity does
not apply. In Varjabedian, supra, 20 Cal.3d at p. 292, a
defendant was not immune from public nuisance liability for the
noxious odors emitting from its statutorily authorized operation
of a sewage treatment plant because it is possible to operate a
plant without such odors. In Greater Westchester, supra, 26
Cal.3d at pp. 100-102, a defendant was not immune from public
nuisance liability for noise pollution emitting from its statutorily
authorized operation of an airport because it is possible to
operate an airport with noise abatement measures in place. In
Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th
123, 129, 157-159, a defendant was not immune from public
nuisance liability for allowing “uncontrolled stray electrical
currents” to enter others’ property, despite its statutorily
authorized construction of an electrical substation, because stray
currents were not an unavoidable “byproduct” of the authorized
construction. In Otay Land Co., LLC v. U.E. Limited, L.P. (2017)
15 Cal.App.5th 806, 817-818, 846-847, a defendant was not
immune from public nuisance liability for environmental
contamination, despite its statutorily authorized operation of a
gun shooting range, because it is possible to operate a range
without leaving toxic bullet casings in the ground. In Jones,
supra, 79 Cal.App.4th at p. 1067, a defendant was not immune
11
from public nuisance liability for blowing train horns and
whistles as well as idling trains for days in front of homes,
despite its statutorily authorized operation of a train line,
because the horns, whistles and idling were unnecessary to that
operation. In Jacobs Farm/Del Cabo, Inc. v. Western Farm
Service, Inc. (2010) 190 Cal.App.4th 1502, 1531-1532, a defendant
was not immune from public nuisance liability for harm caused
by pesticides sprayed on neighboring properties, despite its
statutorily authorized use of pesticides on its own property,
because it is possible not to overspray onto others’ property.
Conversely, where an alleged nuisance inexorably and
inescapably flows from the statutorily authorized act, then
section 3482 immunity does apply. Thus, in Williams, supra, 22
Cal.App.5th at pp. 1206-1207, a defendant was immune from
public nuisance liability for damage to copper piping caused by
chloramines in the water when it had statutory authorization to
insert chloramines into the water supply. In Farmers, supra, 175
Cal.App.3d at p. 503, a defendant was immune from public
nuisance liability for damage to the paint on cars caused by a
pesticide when it had statutory authorization to spray that
pesticide in the area where the car was located.3 In Pekarek v.
City of San Diego (1994) 30 Cal.App.4th 909, 917-918, a
defendant was immune from public nuisance liability for allowing
ice cream trucks to be operated on public streets under certain
3 Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th
1245, 1258-1259, mentions section 3482 immunity, but ultimately
finds no public nuisance liability for operating a wastewater
treatment plant due to a lack of causal link between the
discharge of effluents and the alleged public nuisance of excessive
overgrowth of plants in the waterways into which the effluent
was discharged.
12
conditions when it had authority to allow their operation. And,
most pertinent here, in Today’s IV, supra, 83 Cal.App.5th at pp.
1182-1183, in Orpheum, supra, 80 Cal.App.3d at pp. 875-876, and
in Harding v. State of California ex rel. Dept. of Transportation
(1984) 159 Cal.App.3d 359, 362-363 (Harding), the defendants
were immune from public nuisance liability for the noise, dust,
fumes, and access limitation caused by the construction of transit
stations (Today’s IV and Orpheum) and a highway (Harding)
when they had statutory authorization to undertake that
construction.
B. Section 3482 immunity applies to the public
nuisance alleged in this case
Under the analytical framework set forth above, our task is
to assess whether the public nuisance alleged in this case—
namely, the “adverse effects” attendant to the “heavy truck
traffic” diverted into Norwalk by virtue of the ordinance—
inexorably and inescapably flows from any statutorily authorized
act.
At the threshold, Cerritos asks us to narrow the focus of
our inquiry to only that portion of the public nuisance caused by
the 2019 and 2020 amendments rather than to the ordinance as a
whole. We decline to do so. Although Norwalk has proffered no
reason for sitting on its proverbial hands for nearly half a century
while the bulk of the ordinance has been in full effect, public
nuisance liability has no statute of limitations because such
nuisances are a continuing wrong. (§ 3490; Mangini v. Aerojet-
General Corp. (1991) 230 Cal.App.3d 1125, 1142 [“Section 3490
has been construed to mean that the statute of limitations is no
defense to an action brought by a public entity to abate a public
nuisance”], superseded on other grounds by Bus. & Prof. Code, §
13
17200; Zack’s, Inc. v. City of Sausalito (2008) 165 Cal.App.4th
1163, 1191 (Zack’s) [same].) As a consequence, we must evaluate
the nuisance occasioned by the ordinance as a whole.
Although the state has, as a general rule, “preempted the
field of motor vehicle traffic regulation” (Save the Sunset Strip
Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172,
1177; Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 550
(Rumford); see Veh. Code, § 21), the state has nevertheless
delegated to local governments (such as cities and counties) the
authority “to regulate traffic within their jurisdictions by
specified means” (Friends of H Street, supra, 20 Cal.App.4th at p.
161; Rumford, at p. 550). Two of those delegating statutes are at
issue here. First, Vehicle Code section 35701, in pertinent part,
authorizes “[a]ny city . . . by ordinance . . . [to] prohibit the use of
a street by any commercial vehicle or by any vehicle exceeding a
maximum gross weight limit . . .” as long as that street is within
the city’s “exclusive jurisdiction” (Veh. Code, § 35701, subd. (a);4
cf. Veh. Code, § 35702), although any such ordinance must
exempt vehicles “making pickups or deliveries” within the city
(id., § 35703) as well as vehicles being used “in the construction,
installation, or repair of any public utility” (id., § 35704).
(Accord, Ratkovich v. City of San Bruno (1966) 245 Cal.App.2d
4 The predecessor statute to Vehicle Code section 35701 was
Vehicle Code section 713, which premised the imposition of
weight limits on the city’s designation of an alternate permissible
route through the city. (E.g., McCammon v. City of Redwood City
(1957) 149 Cal.App.2d 421, 422-425; Skyline Materials, Inc. v.
City of Belmont (1961) 198 Cal.App.2d 449, 454-455 (Skyline).)
When our Legislature replaced Vehicle Code section 713 with
Vehicle Code section 35701, it did not carry forward the
“alternate route” requirement.
14
870, 877 (Ratkovich) [noting that this “grant to cities of authority
to legislate in this field is . . . clear”]; City of Redwood City v.
Dalton Constr. Co. (1990) 221 Cal.App.3d 1570, 1572 [“A city may
generally prohibit use of a street by a vehicle exceeding a
maximum gross weight limit”].) Second, Vehicle Code section
21101, subdivision (c), in pertinent part, authorizes “[l]ocal
authorities” to “adopt rules and regulations by ordinance” that
“[p]rohibit[] the use of particular highways by certain vehicles”
“for those highways under their jurisdiction.” (Veh. Code, §§
21101, subd. (c), 360 [“highway” defined to include street].)
Vehicle Code sections 35701 and 21101, subdivision (c),
expressly authorized Cerritos to enact its ordinance limiting
through-traffic by commercial vehicles and vehicles exceeding a
certain weight to designated arteries within the city: Vehicle
Code section 35701 does so explicitly, and Vehicle Code section
21101, subdivision (c), does so by implication because the
ordinance “[p]rohibit[s] the use of particular highways by certain
vehicles”—namely, commercial vehicles and those exceeding a
specified weight.
But the alleged public nuisance is not the enactment of the
ordinance, but rather the diversion of “heavy truck traffic”—and
the attendant “severe adverse effects” of that heavier traffic (e.g.,
noise, dust, congested roads)—into Norwalk occasioned by the
ordinance. As explained above, Civil Code section 3482’s
immunity applies to that nuisance only if the diversion of traffic
and its attendant, deleterious effects inexorably and inescapably
flow from the enactment of the ordinance expressly authorized by
the two Vehicle Code provisions. So we ask: Are the deleterious
effects of heavier traffic in Norwalk the flip side of the same coin
as the enactment of the ordinance in Cerritos?
15
We hold that they are. The closure of one artery to through
traffic necessarily diverts that traffic to a different artery. When
one channel of a river is blocked, the water necessarily finds a
different channel. Life finds a way; so does traffic. What is more,
the deleterious effects that Norwalk alleges as a further aspect of
the public nuisance are the “unavoidable byproducts” of that
diverted traffic. (Today’s IV, supra, 83 Cal.App.5th at p. 1182 [so
holding, as to additional “noise, dust, and access limitation”
attendant to heavier traffic]; Lombardy v. Peter Kiewit Sons’ Co.
(1968) 266 Cal.App.2d 599, 605 [same], overruled on other
grounds by Southern California Edison Co. v. Bourgerie (1973) 9
Cal.3d 169.) Norwalk’s chief rejoinder is that “the act
constituting the nuisance is the purposeful shifting of heavy
vehicle traffic to Norwalk, which is not expressly authorized by
statute,” but this ignores that section 3482’s immunity reaches
beyond the act specifically authorized to the consequences
inexorably flowing from that act.
C. Norwalk’s further arguments
Norwalk makes what boils down to two further arguments.
Although Norwalk in its briefs characterizes these arguments as
justifying granting leave to amend, its arguments are part and
parcel of its already alleged public nuisance claim. As a result,
the arguments are more properly characterized as challenging
the dismissal of that claim rather than a basis for amending the
complaint.
1. Failure to engage in a reasonableness analysis
Norwalk makes a three-step argument: (1) section 3482’s
immunity applies only if Cerritos’s ordinance was reasonable; (2)
Cerritos’s ordinance was unreasonable because it “effectively
prohibit[ed] ‘any commercial vehicle or any vehicle exceeding six
16
thousand pounds’ from traveling through Cerritos on its local
streets”; and (3) a total ban of commercial vehicles in a city is per
se unreasonable under Neary v. Town of Los Altos Hills (1959)
172 Cal.App.2d 721, 726-727 (Neary).
We reject this argument.
Norwalk is wrong in suggesting that a reasonableness
analysis is part and parcel of the inquiry into immunity from
public nuisance liability under section 3482. To be sure, where
the state delegates to local governments some of its otherwise
plenary authority to regulate, that delegation will be “strictly
construed” (Rumford, supra, 31 Cal.3d at p. 550) and an exercise
of that authority by a local government can be invalidated if that
exercise is “so unreasonable as to make it void” (Neary, supra,
172 Cal.App.2d at p. 726; Ratkovich, supra, 245 Cal.App.2d at p.
884 [“the Legislature cannot empower a municipality to enact
arbitrary or unreasonable ordinances”]; accord, Orpheum, supra,
83 Cal.App.3rd at p. 876 [section 3482 immunity applied where
manner of construction was “unreasonable”]). But as 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 and is instead entrusted to the
policy preferences of the local legislative branch. (Skyline, supra,
198 Cal.App.2d at p. 454 [“‘The wisdom of the prohibitions and
restrictions [of traffic] is a matter for legislative determination,
and even though a court may not agree with that determination,
it will not substitute its judgment for that of the zoning
authorities if there is any reasonable justification for their
action’”]; Friends of H Street, supra, 20 Cal.App.4th at p. 165
[“under the separation of powers doctrine, courts lack power to
17
interfere with legislative action at either the state or local
level”].)5
We conclude that Cerritos’s ordinance is not “so
unreasonable as to” make void the delegation of regulatory
authority to the city by virtue of Vehicle Code sections 35701 and
21101, subdivision (c). Judicially noticed documents flatly
contradict Norwalk’s allegation that the ordinance “effectively
prohibit[s]” all traffic by heavy trucks through Cerritos, so the
ordinance is unlike the ordinance struck down as unreasonable in
Neary. To the contrary, the ordinance allows for unrestricted
truck traffic on (1) the full length of three of the six west-east
arteries and three of the 10 north-south arteries; and (2) some
portion of two other west-east arteries and three other north-
south arteries, typically to enable travel between a freeway (such
as Route 91 or the I-605) and an intersecting artery; the
ordinance prohibits use of the entire length of an artery for only
five of its 16 major arteries. Given that the arteries are the only
streets likely to be used by trucks traveling through the city, the
ordinance does not prohibit such a volume of commercial and
heavy truck traffic as to render it “so unreasonable as to [be]
5 A handful of cases have upheld section 3482 immunity
after commenting that the local government’s conduct was
“reasonable.” (Orpheum, supra, 80 Cal.App.3rd at p. 876;
Harding, supra, 159 Cal.App.3d at pp. 362-363.) However, these
cases make no effort to explain whether they are assessing the
validity of delegated authority or instead offering a gratuitous
observation of reasonableness; neither purports to authorize a
free-ranging inquiry into reasonableness despite the separation
of powers, and we will not imply such an endorsement from their
silence.
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void.” Further inquiry into the reasonableness of the ordinance is
therefore prohibited.
Norwalk resists this conclusion with two further
arguments.
First, Norwalk argues that the ordinance is unreasonable
because many of the arteries it regulates are streets that
continue into adjacent cities, such that the ordinance is
unreasonably interfering with regional traffic. To be sure, the
“regulation of traffic” that continues into other cities undoubtedly
has a regional impact. (Zack’s, supra, 165 Cal.App.4th at p. 1183
[noting that public streets are not solely “‘“a municipal affair”’”];
City of Hawaiian Gardens v. City of Long Beach (1998) 61
Cal.App.4th 1100, 1109 (Hawaiian Gardens) [noting “the
importance of a regional approach to traffic problems”].) But it is
well settled that cities can nevertheless regulate the portion of
such streets existing within their city limits. (San Leandro Rock
Co. v. City of San Leandro (1982) 136 Cal.App.3d 25, 34-35
[weight limits on streets that pass into other cities valid]; Pacific
Ready-Mix, Inc. v. City of Palo Alto (1968) 263 Cal.App.2d 357,
360-361 (Pacific Ready-Mix) [streets “wholly within [a] city” may
be regulated, even if those streets cross into other cities].) As
long as those regulations are not so unreasonable as to render the
delegation of authority void (San Leandro, at pp. 34-35), their
regional impact alone will not invalidate them.
Second, Norwalk argues that the ordinance is unreasonable
because several cases have required an inquiry into the policy
wisdom of traffic regulations and their impact on neighboring
cities under what is now subdivision (g) of Vehicle Code section
21101, which allows cities to enact ordinances “[p]rohibiting
entry to, or exit from, or both, from any street” (Veh. Code, §
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21101, subd. (g); Hawaiian Gardens, supra, 61 Cal.App.4th at pp.
1109-1111; City of Poway v. City of San Diego (1991) 229
Cal.App.3d 847, 857-867; Committee to Relocate Marilyn v. City of
Palm Springs (2023) 88 Cal.App.5th 607, 624-628 [treating a
three-year “temporary” closure as a permanent closure under
subdivision (e)]), and because, in Norwalk’s view, there is “no
rational basis” not to apply the same analysis to subdivision (c) of
Vehicle Code section 21101. This argument ignores a
fundamental tenet of statutory construction—namely, that our
Legislature’s decision to use different language in different parts
of the same statute evinces an intent to adopt a different rule.
(Turner v. Victoria (2023) 15 Cal.5th 99, 115; Limon v. Circle K
Stores Inc. (2022) 84 Cal.App.5th 671, 701.) Thus, although
Norwalk is correct that cases involving street blockages under
what is now Vehicle Code section 21101, subdivision (g), have
engaged in a more probing inquiry into reasonableness, those
cases have at the same time expressly acknowledged that lesser
forms of regulation authorized by Vehicle Code section 21101—
including the restricting of certain vehicles on certain streets
under subdivision (c)—do not warrant such an inquiry into
reasonableness. (Poway, at p. 867.) We decline Norwalk’s
invitation to ignore persuasive precedent directly on point or
basic canons of statutory construction.
2. Failure to obtain state’s permission
Norwalk makes a second, three-step argument: (1) Vehicle
Code section 35702 requires a city seeking to regulate any street
“not under [its] exclusive jurisdiction” to obtain written approval
from the California Department of Transportation (CalTrans), (2)
the ordinance does not expressly exclude from its reach several
highways and streets over which Cerritos does not have exclusive
20
jurisdiction—namely, I-605, Route 91, and five of the arteries
that mark the border between Cerritos and other cities, such that
(3) the ordinance is invalid as to those routes because Cerritos
never obtained CalTrans approval for those routes.
This argument fails because its second step is wrong.
Route 91 and I-605 are state and federal highways, respectively,
and are never within a city’s power to regulate under Vehicle
Code sections 35701 and 21101 (Sts. & Hy. Code, §§ 231, 391; 23
U.S.C. § 103(c)); Cerritos’s failure to expressly disclaim
jurisdiction over thoroughfares over which it has no jurisdiction
is irrelevant (and does not create a factual dispute). Border
streets are also outside a city’s power to regulate (Skyline, supra,
198 Cal.App.2d at p. 458), but Cerritos did not purport to
regulate those streets. The ordinance refers to “any street, road,
or public right-of-way within the city” (italics added), and case
law has drawn a distinction between streets “within” a city and
streets constituting its border(s). (Pacific Ready-Mix, supra, 263
Cal.App.2d at pp. 360-361 [distinguishing streets “wholly within
[a] city” from “a boundary street”]; Skyline, at p. 458 [same].) We
may presume that Cerritos was aware of this precedent. (Leider
v. Lewis (2017) 2 Cal.5th 1121, 1135 [“We presume the
Legislature was aware of existing judicial decisions directly
bearing on the legislation it enacted”]; KB Salt Lake III, LLC v.
Fitness International, LLC (2023) 95 Cal.App.5th 1032, 1048
[“interpret[ing] ordinances . . . the same way [as] statutes”].)
Even if the ordinance is ambiguous on this point, we may
construe that ambiguity in a manner that renders the ordinance
valid (People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003)
111 Cal.App.4th 102, 118-119 [construing “ordinance” to
“comport[] with its validity”]; Kraus v. Trinity Management
21
Services, Inc. (2000) 23 Cal.4th 116, 129 [same, as to statutes])—
and we choose to do so here. Although the ordinance specifically
designated one border street as a designated truck route (namely,
Valley View Avenue), its superfluous act of doing so does not—by
negative inference—somehow indicate an intent to regulate all
other border streets as well as state and federal highways,
thereby risking partial invalidity of the ordinance.
II. Was Leave to Amend Properly Denied?
Norwalk’s sole remaining argument seeking leave to amend
is that it can add a writ of mandamus cause of action to compel
Cerritos to obtain permission from CalTrans under Vehicle Code
section 35702 to regulate the state highways and border arteries.
Because we have rejected the merits of this argument, amending
to add a cause of action to support those merits would be futile.
(Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1437 [“‘[L]eave
to amend should not be granted where . . . amendment would be
futile’”].)
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DISPOSITION
The judgment is affirmed. Cerritos is entitled to its costs
on appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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