The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter comes before the court on defendants City of Oroville (the "City"), David Goyer ("Goyer"), Sharon Atteberry ("Atteberry"), Jason Taylor ("Taylor"), and Mitchell Brown's ("Brown") (collectively "defendants") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs Walnut Hill Estate Enterprises, LLC ("Walnut Hill"), Jonothan Benefield ("Benefield"), and Julie Benefield (collectively "plaintiffs") oppose the motion. The court heard oral argument on the motion on November 6, 2009. For the reasons set forth herein, defendants' motion for summary judgment is GRANTED.
This case arises out of defendants' conduct relating to the Oroville Inn (the "Inn") located in downtown Oroville. Specifically, on June 29, 2006, defendants evacuated the tenants, some of whom were disabled and non-ambulatory, from the Inn, which contained 61 residential units, 57 of which were rented at the time. (See Decl. of Jonothan Benefield ("Benefield Decl."), filed Oct. 2, 2009, ¶ 8.) Plaintiffs allege the evacuation, and defendants' conduct in relation thereto, caused damages in the form of loss of business, loss of property rights, devaluation of their business and business opportunities, emotional distress, and physical injury to Benefield due to stress. (Compl. ¶ 13.)
On September 17, 2003, a document was recorded in Butte County purporting to transfer title to the Inn to Walnut Hill.
(UF ¶ 8.)*fn2 Plaintiffs Jonothan and Julie Benefield (the "Benefields") are the managing members of Walnut Hill. (UF ¶ 9.) Walnut Hill hired on-site managers to handle the day to day operation of the Inn. (UF ¶ 10.) At all relevant times, Robert White ("White") was the on-site manager. (UF ¶ 12.) The Benefields never lived at the Inn, nor did they visit the Inn on a daily basis while White was the on-site manager. (UF ¶¶ 13-14.) However, the Benefields visited approximately once or twice a month, and Jonothan Benefield spoke to White on the phone almost daily. (UF ¶ 14.)
Shortly after White became the on-site manager of the Inn, the elevator in the building failed an inspection by CalOSHA. (UF ¶ 15.) On January 19, 2006, White received a Preliminary Order to correct eight categories of conditions. (UF ¶ 15.) Subsequently, on February 27, 2006, White received an Order to Correct Unsafe Conditions or Show Cause from CalOSHA based upon the failure to correct the conditions set forth in the January 19, 2006 Preliminary Order. (UF ¶ 17.) For several months, while he waited for Walnut Hill to have the elevator repaired, White reset the elevator and adjusted the door sensors in order to keep the elevator operable; however, sometime before June 12, 2006, the reset switch broke. (UF ¶¶ 18-19.*fn3
Plaintiff Benefield contends repairs were made to the elevator on June 7, 2006. (Benefield Decl. ¶ 21.) It is undisputed, though, that sometime prior to June 12, 2006, the elevator became completely inoperable. (UF ¶ 20.) Several tenants began complaining to White. (UF ¶ 21.) Tenants also called defendant Goyer, a Code Enforcement Officer with the Oroville Police Department, to complain about the broken elevator. (UF ¶ 22.) Disabled and non-ambulatory tenants lived on the upper floors of the Inn and could not get out of the building without using the elevator. (UF ¶ 23.)*fn4 Subsequently, on or about June 20, 2006, Benefield learned that the elevator was malfunctioning again and scheduled an appointment for repair on June 30, 2006. (Benefield Decl. ¶ 23.)
On June 12, 2006, defendant Goyer received a phone call from the driver of a trash disposal truck, advising that there had been an electrical fire at the Inn and that PG&E had been notified to turn off power to the building until the wiring was repaired. (UF ¶ 24.) As a result of this call, Goyer and defendant Taylor, the Community Revitalization and Economic Development Officer ("CREDO") for the Oroville Police Department, visited the Inn. (UF ¶¶ 25-26.) Both PG&E and the fire department had just left the site. (UF ¶ 27.) Power to much of the Inn was off, pending repair of electrical wiring. (UF ¶ 29.) Goyer observed scorch marks on the wall, melted conduit, and melted insulation on the electrical wires where the conduit was broken; based upon these observations, he concluded that there had been an electrical fire. (Dep. of David Goyer ("Goyer Dep.") at 26:2-20.) Plaintiff contends that there is no evidence of fire but only evidence of electric "arcing." (Ex. D to Decl. of Frear Stephen Schmid ("Schmid Decl."), filed Oct. 2, 2009.)
White was already aware of the exposed wiring that led to the arcing at issue. (Decl. of Robert White ("White Decl."), filed Sept. 15, 2009, ¶ 5.) The arcing wires were in a conduit that ran along the top of a low part of the complex. Children used the conduit as a handhold or foothold to gain access to the first floor roof area at the rear of the building and the conduit had broken and fallen away from the building in the summer of 2005. During that summer, the power going to the air conditioners on the roof had to be turned off because roofers refused to go on the roof with the conduit arcing problem. White asserts that Benefield was aware of the conduit arcing problem at this time. White also told Benefield that a maintenance man was burned after the conduit at issue came into contact with water that was backing up on the roof due to a clogged drain. (Id.)
During a conversation on June 12, 2006, Goyer, Taylor, and White spoke at length about the numerous, serious maintenance issues with the building that had not been corrected. (UF ¶ 30; White Decl. ¶ 6.) Goyer and Taylor mentioned that all of the problems at the building were starting to add up and could lead to an evacuation. (UF ¶ 30.) The Inn was issued two Correction Notices, detailing eleven items for corrections. (Ex. 2 to Benefield Decl.) There were no deadlines given for the repair within these notices. (Id.; Benefield Decl. ¶ 22.)
Over the next two weeks, either White or a maintenance person from the Inn accompanied Goyer and other personnel from the City to inspect the building; they worked with Goyer and the city personnel on a daily basis to resolve problems identified by Goyer and city personnel. (White Decl. ¶ 7.) White asserts that the city staff were always professional and courteous in their dealings with him. (White Decl. ¶ 8.) White was in constant communication with Benefield about the status of the inspections and informed him that the City was contemplating evacuating the building if unsafe conditions were not corrected immediately. (White Decl. ¶ 7.) Benefield asserts that he had no notice of the potential for evacuation prior to June 29, 2006. (Dep. of Jonothan Benefield ("Benefield Dep."), at 16-21.)
Two or three days prior to June 29, 2006, Goyer and Taylor approached defendant Brown, Chief of the Oroville Police Department, regarding the Inn. (UF ¶ 34.) They informed him that there were a number of unsafe conditions at the Inn, which required an emergency evacuation. (UF ¶ 35.) Brown initially declined to declare an emergency and ordered Taylor and Goyer to closely monitor the situation and maintain close contact with White regarding the repairs. (UF ¶ 36.)
On the morning of June 29, 2006, Goyer met with White about the status of the repairs. (UF ¶ 37.) The elevator was not working. (UF ¶ 39.) Defendants present evidence that in response to his inquiry regarding when the repairs would be made, White told Goyer that the elevator repair company told him that no repairs had been scheduled or would be scheduled until the Inn's delinquent account was paid. (UF ¶ 37.) Goyer also contacted the elevator repair company and was given the same information. (UF ¶ 38.) Plaintiffs present evidence that Elevator Technology, Inc., an elevator repair company that performed work at the Inn, never has refused service based upon delinquent accounts, and that it did not receive any phone calls from the City of Oroville with respect to the Inn. (Decl. of Peggy Bates ("Bates Decl."), filed Oct. 2, 2009, ¶¶ 4-6.) However, nothing in the record clarifies whether White or Goyer called Elevator Technology, Inc. or a different elevator repair company.
Brown met with Fire Chief Pittman ("Pittman") and learned that Pittman did not have enough personnel to evacuate the eleven non-ambulatory tenants from the Inn in case of an emergency and did not have the staff to put the building on a fire watch. (UF ¶ 40; Decl. of David Pittman ("Pittman Decl."), filed Sept. 15, 2009, ¶ 3.*fn5 ) As a result of his inspection of the Inn on June 12, 2009, Pittman had determined that various code violations, including (1) the failure to maintain emergency egress for occupants from the multiple floors of the structure; (2) the failure to remove and correct electrical and structural fire hazards; and (3) the failure to replace previously fire-protected open shafts, constituted emergency conditions requiring the Inn to be immediately evacuated. (Ex. 1 to Frear Decl.)
On June 29, 2006, defendant Brown ordered the evacuation of the Inn after he concluded that conditions at the building posed an immediate, continuing, and potentially life-threatening danger to human occupants. (UF ¶ 33.) After Brown ordered the evacuation, he notified the City Administrator of the evacuation order. (UF ¶ 42.) Goyer served White with a Notice of Substandard Building and Order of Abatement of the public nuisance and posted the notice at the Inn. (UF ¶ 43.) Taylor contacted or attempted to contact all of the other lien holders and interested parties in title. (UF ¶ 44.) The City paid the costs of relocating, housing, and feeding the displaced tenants while the abatement order was in effect. (UF ¶ 45.)
On June 30, 2006 and in the days that followed, City staff met with White and Benefield regarding the repairs that needed to be done to lift the evacuation order. (UF ¶ 46.) The evacuation order was in effect for approximately seven or eight days. (UF ¶ 47.) Walnut Hill initially appealed the nuisance abatement order, but withdrew the appeal after correcting the code violations. (UF ¶ 49.) The evacuation order was lifted by Brown after repairs were made, and when the Fire Chief and code enforcement staff were comfortable concluding that the building was no longer unsafe for human habitation. (UF ¶ 47.)
Plaintiffs contend that none of the conditions at the Inn constituted an emergency/imminent peril condition that required evacuation. (Benefield Decl. ¶¶ 24-36; Decl. of Byron D. Foster ("Foster Decl."), filed Oct. 2, 2009, ¶ 9.) Plaintiffs bring claims under 42 U.S.C. § 1983 for alleged violations of their First, Fourth, Fifth, Ninth,*fn6 and ...