United States District Court, N.D. California
November 1, 2005.
DANIEL KEEGAN and BETH KEEGAN, Plaintiffs,
IRENE S. KIVITZ, Defendant.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
In an August 22, 2005, Order, the Court issued its findings on
plaintiffs' numerous claims for summary judgment and granted
plaintiffs' motion for summary judgment on the question of
violation of San Francisco Health Code § 581(b). The Court denied
plaintiffs' motion for summary judgment for nuisance so far as it
relied on a violation of California Health & Safety Code §
17920.10. The parties were permitted to provide supplemental
briefing on the issue of the relationship between the San
Francisco ordinance and the California statute. Having considered
the supplemental briefing submitted by both plaintiffs and
defendant, the Court GRANTS plaintiffs' motion with respect to
violation of the San Francisco ordinance, and DENIES plaintiffs'
motion for summary judgment on the issue of violation of state
In 2003, plaintiffs Dan and Elizabeth Keegan entered into a
one-year lease agreement with defendant Irene Kivitz. This action
arises as a result of a dispute between the Keegans and Ms.
Kivitz concerning alleged lead contamination at the premises.
Plaintiffs claim that the lead contamination constituted a lead
hazard under both state and federallaw. On June 24, 2005, they brought a
motion seeking summary judgment on this issue, among others.
The Court granted plaintiffs' motion in part, finding that they
had established that the lead contamination constituted a
violation of the San Francisco municipal ordinance. The Court
denied plaintiffs' motion, however, with respect to their claims
that the lead contamination violated California Health & Safety
Code § 17920.10. Specifically, the Court found that section
17920.10 required both "lead contaminated dust levels [above] the
amounts established by law," and that "the lead contaminated dust
`is likely to endanger the health of the . . . occupants.'"
August 22, 2005 Order, at 11. Because plaintiffs had provided no
evidence that the lead contamination endangered the health of the
occupants, the Court denied plaintiffs' motion for summary
judgment on the state law claim.
Given the appearance of possible preemption issues, the Court
invited further briefing on the relationship between the San
Francisco ordinance and the California statute. Both plaintiffs
and defendant submitted supplemental briefing. Plaintiffs claim
that the ordinance and the statute have exactly the same
requirements, while defendant claims that the statute preempts
California has a policy against preemption. Thus, before
finding a municipal ordinance to be preempted, courts should
carefully ensure that a genuine conflict exists between the
competing claims of the municipal and state governments. See
S.D. Myers v. City and County of San Francisco, 336 F.3d 1174,
1177 (9th Cir. 2003) (citing Cal. Fed. Sav. & Loan Ass'n v. City
of Los Angeles, 54 Cal. 3d 1, 16-17 (1991)). "A conflict exists
[only] if the local legislation  duplicates,  contradicts,
or  enters an area fully occupied by general law, either
expressly or by legislative implication." Id. (quoting
Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893,
In their supplemental briefing, plaintiffs argue, as they did
in their original summary judgment papers, that the statute and
the ordinance are coextensive. Plaintiffs claim that the Court
misinterpreted California Health & Safety Code § 17920.10 when it ruled that the statute
requires proof of endangerment of the health of the occupants, in
addition to lead levels above a certain amount. According to
plaintiffs' reading of the statute, the focus of the inquiry is
on "proximity," indicating that the law presumes endangerment
when an individual is actually exposed to lead contaminated dust.
The Court continues to abide by its original interpretation of
the statute; plaintiffs' strained reading would render an entire
clause of the statutory text meaningless. The statute clearly
requires "lead-contaminated dust . . . in amounts that are equal
to or exceed the amount of lead established [by California
Regulations] . . . and that are likely to endanger the health of
the public or the occupants thereof as a result of their
proximity to the public or occupants thereof." As the plain text
of the statute makes clear, endangerment is the second element of
the statute, not exposure.
Having determined that the San Francisco ordinance and the
California statute are not coextensive, the Court must now turn
to defendant's argument that the statute preempts the ordinance.
Defendant claims that the statute preempts the ordinance because
California Health & Safety Code § 17920.10 is a section of the
State Housing Law. With the State Housing Law, California courts
have found that the California Legislature intended to fully
occupy the field of building standards. See Leslie v. Superior
Court, 73 Cal. App. 4th 1042, 1048 (Cal.App. 1999); Bldg.
Indus. Ass'n v. City of Livermore, 45 Cal. App.4th 719, 724
(Cal.App. 1996) ("[O]ur state legislature has clearly expressed
the intent to fully occupy the field of building standards.").
When the legislature has intended to fully occupy the field,
municipal legislation on the same subject matter is preempted.
Leslie, 73 Cal. App. 4th at 1048.
This case, however, does not involve building standards.
Rather, the San Francisco ordinance is public health measure that
classifies a public nuisance. Thus, the San Francisco ordinance
is very different from the ordinance at issue in Building
Industry Ass'n, which involved a municipality's amendments to
the Uniform Building Code to require automatic fire-extinguishing
systems in all new constructions. Bldg. Indus. Ass'n,
45 Cal. App.4th at 722. Unlike the ordinance in that case, the San
Francisco ordinance does not purport to alter the building
standards established by California law. The state's occupation
of the field of building standards thus does not invalidate the
local ordinance. See id. at 724 ("[A] local government is
precluded from enacting building standards that differ from
state standards. . . .") (emphasis added). Although San Francisco's ordinance is not a "building standard"
it may nonetheless be preempted if it contradicts the California
statute. See City of Watsonville v. State Dept. of Health
Serv., ___ Cal. Rptr. 3d ___, 2005 WL 2769514, at *2 (Cal.App.
2005). The Court finds that compliance with § 581(b) does not
prevent compliance with California Health & Safety Code §
17920.10; the statutes are entirely consistent. Moreover, San
Francisco's ordinance, which only involves the exposure of
children up to 72 months of age, is very narrowly tailored to
protect a limited population. Given that it is completely
possible to comply with both the San Francisco ordinance and the
California Statute, the Court finds that the San Francisco
ordinance is not preempted. Compare City of Watsonville, 2005
WL 2769514, at *4 (finding city ordinance that made the addition
of any substance into the public water supply a public nuisance
to be preempted, where ordinance directly conflicted with state
statute requiring fluoridation of water).
Finally, the Court finds it unlikely that the California
legislature would intend to preempt a narrowly drawn municipal
ordinance directed at preventing childhood lead poisoning such as
the San Francisco ordinance. Indeed, the California legislature
has declared that "childhood lead exposure represents the most
significant childhood environmental health problem in the state
today." Cal. Health & Safety Code § 124125.
For the foregoing reasons and for good cause shown, the Court
hereby maintains its prior decision to GRANT summary judgment
with respect to violation of San Francisco Health Code § 581(b),
and DENY plaintiffs' motion for summary judgment based upon
California Health & Safety Code § 17920.10.
IT IS SO ORDERED.
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