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Weiss v. People ex rel. Department of Transportation

California Court of Appeals, Fourth District, Third Division

March 1, 2018

EVAN WEISS et al., Plaintiffs and Appellants,
v.
THE PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondents.

         Appeal from a judgment of the Superior Court of Orange County, No. 30-2012-00605637 Kirk H. Nakamura, Judge. Reversed and remanded.

          Peterson Law Group, John S. Peterson and Joseph A. Schwar for Plaintiffs and Appellants.

          Woodruff, Spradlin & Smart, Gary C. Weisberg, Laura M. Morgan and Esther P. Lin for Defendants and Respondents.

          OPINION

          ARONSON, J.

         Plaintiffs[1] sued defendants People ex rel. Department of Transportation (CalTrans), and Orange County Transportation Authority (OCTA; collectively, Agencies), for inverse condemnation and nuisance. The complaint alleged a freeway sound wall the Agencies built directly across the freeway from Plaintiffs' homes increased the noise and dust Plaintiffs experienced, interfered with Plaintiffs' enjoyment of their homes, and diminished their property values.

         Shortly before trial, the Agencies moved to dismiss Plaintiffs' claims by filing a motion under Code of Civil Procedure section 1260.040, which provides for pretrial resolution of “issue[s] affecting the determination of compensation” in eminent domain cases, not inverse condemnation actions. (Id., subd. (a).) The Agencies did not expressly raise any compensation issues, challenging instead their takings liability. On the inverse condemnation claim, the Agencies argued Plaintiffs could not establish the essential element that the sound wall imposed a direct, substantial, and peculiar burden on Plaintiffs' properties that was not shared in common with the other properties in Plaintiffs' neighborhood. The Agencies argued the nuisance claim failed as a matter of law based on the statutory immunity Civil Code section 3284 provided. The trial court agreed and granted the Agencies' motions.

         We reverse. The Agencies now concede Code of Civil Procedure section 1260.040 applies by its terms and enactment in title provisions governing eminent domain only to eminent domain proceedings, not inverse condemnation actions. As we explain, we reject the Agencies' request that we “import[ section 1260.040] into the body of inverse condemnation law as a matter of judicial development.” In doing so, we disagree with Dina v. People ex rel. Dept. of Transp. (2007) 151 Cal.App.4th 1029 (Dina), which viewed the statute as applying to inverse condemnation actions. Nor do we see any basis to apply the statute to resolve Plaintiffs' nuisance claims, on which they were entitled to a jury trial absent a summary judgment motion or other statutorily-authorized manner of case disposition. We therefore remand the matter for further proceedings.

         I

         Facts and Procedural History

         Interstate 5 (I-5) is a freeway that runs north and south through a residential area in the City of San Clemente (City). Plaintiffs own four separate properties on the east side of I-5 near its intersection with El Camino Real. Three of the properties are single-family homes and the fourth is a small hotel. Approximately 600 feet separate the northernmost and southernmost of Plaintiffs' properties, with other residential and commercial properties located among and between Plaintiffs' properties. The terrain gently slopes up from where El Camino Real runs under I-5 toward Plaintiffs' properties and beyond.

         Under Streets and Highways Code section 215.5, CalTrans maintains a system for identifying and prioritizing locations for the possible installation of sound walls along California's freeways. Under this system, CalTrans conducts progressively more detailed studies of the locations. Construction begins when funding becomes available and the location satisfies all established criteria.

         In 1999, CalTrans measured the freeway noise on the west side of I-5 opposite Plaintiffs' properties after receiving complaints from area residents. The measurements, however, did not meet the 67-decibel threshold required for further action. In 2001, CalTrans again measured the freeway noise in the residential area west of I-5 after receiving further complaints. This time, the measurements exceeded the 67-decibel threshold in at least two locations. CalTrans therefore referred the matter to OCTA, which placed it on a waiting list of areas to undergo further noise and engineering analysis to determine whether constructing a sound wall could feasibly reduce noise west of I-5.

         In January 2004, the Agencies completed the “Traffic Noise Impact Technical Report” (Noise Impact Report) for the west side of I-5, and concluded construction of a sound wall could achieve the required noise reduction within the permissible cost range. In August 2004, the Agencies completed and approved the “Noise Barrier Scope Summary Report” (Scope Report) for the west side of I-5. This report examined multiple wall locations and heights to determine which combination would benefit the greatest number of households, and identified the specific size and location for a sound wall on the west side of I-5 to benefit the greatest number of households within the permissible budget. Although the report examined the wall's potential positive and negative impacts on the area west of I-5, it did not consider the impacts on the area east of I-5 where Plaintiffs' properties are located. Based on the Scope Report, the Agencies placed the sound wall on the waiting list for design and construction funding.

         In 2008, that location rose to the top of the waiting list. Through a cooperative agreement with CalTrans, OCTA hired an engineer to prepare the construction plans for the wall based on the size, location, and other specifications identified in the approved Scope Report. Using those plans, the Agencies completed construction of the wall in September 2012.

         As approved by the Scope Report and constructed, two overlapping walls were constructed along the west side of I-5. The first is a 14- to 16-foot tall masonry wall that runs along the El Camino Real onramp to southbound I-5 and further south along the freeway's western shoulder until it meets an existing sound wall south of El Camino Real. The second wall is 14 feet tall and extends approximately 860 feet along the western shoulder where I-5 crosses over El Camino Real. The wall is constructed of masonry block before and after it crosses the freeway's bridge over El Camino Real. The portion on the bridge is constructed of Paraglass, which is a clear Plexiglas-type material. Paraglass was used on the bridge because (1) it is much lighter and the Agencies were concerned the bridge could not support the weight of a 14-foot tall masonry wall, and (2) a masonry wall would have required closing several traffic lanes for an extended period while the mortar cured. According to Plaintiffs, Paraglass is much more reflective of sound and light than masonry blocks. Plaintiffs' properties are located approximately 365 to 480 feet from the Paraglass portion of the wall on the opposite side of I-5 and most have a direct line of sight to the wall.

         In 2011, while the wall was under construction, some Plaintiffs and other residents from the east side of I-5 complained to the City that the wall increased the freeway noise on the east side of I-5. The City hired a consultant to determine whether the wall increased the noise on the east side, but it did not hire the consultant until after the Agencies began construction. The consultant therefore did not take any sound readings for the noise levels east of I-5 before construction began. The consultant measured the noise levels before and after construction of the Paraglass portion of the wall, and concluded “it appears that the presence of the soundwall has increased the freeway noise level in the residential community [east of I-5] by 0.9 to 2.1 [decibels].” But the consultant explained there were a number of factors affecting the noise levels that could not be accounted for in the analysis, and therefore the consultant could not definitively conclude the sound wall increased the freeway noise on the east side of I-5. A CalTrans noise study protocol explains, “It is widely accepted that the average healthy ear... can barely perceive noise level changes of 3 [decibels].” (Underlining removed.)

         Plaintiffs filed this lawsuit in October 2012, alleging claims for inverse condemnation, trespass, and nuisance against the Agencies.[2] The complaint alleged the sound wall increased the impact of freeway noise, vibration, glare, and dust on Plaintiffs' properties, obstructed Plaintiffs' ocean views, interfered with Plaintiffs' enjoyment of their properties, and diminished their properties' values. Plaintiffs focused on the Paraglass portion of the wall, claiming it reflected a greater amount of noise toward Plaintiffs' properties than the masonry block portions. The trial court sustained without leave to amend the Agencies' demurrers to the trespass claim and overruled their demurrers to the other claims. The court also granted without leave to amend the Agencies' motion to strike the allegations regarding view obstruction.

         In January 2015, the Agencies filed two motions under Code of Civil Procedure section 1260.040 seeking to dismiss Plaintiffs inverse condemnation and nuisance claims. The Agencies argued Plaintiffs' inverse condemnation claim failed because they could not establish the essential element that the sound wall imposed a direct, substantial, and peculiar burden on Plaintiffs' properties that differed from the burden imposed on other properties in Plaintiffs' neighborhood. The Agencies argued Plaintiffs' nuisance claim failed because they could not overcome two different statutory immunities. First, the Agencies claimed they were immune from liability under Civil Code section 3482 because the sound wall was designed and constructed under the express authority of Streets and Highways Code sections 90 et seq. and 215.5. Second, the Agencies asserted they were entitled to design immunity under Government Code section 830.6.

         In support, the Agencies asked the trial court to judicially notice (1) the minutes from two of the City's council meetings showing Plaintiffs and several other City residents complained about the increased noise allegedly caused by the wall, and (2) another lawsuit that 20 other property owners filed against the Agencies making the same claims as Plaintiffs. The Agencies also submitted Plaintiffs' deposition testimony and discovery responses showing Plaintiffs' claims regarding the wall's impacts were similar to the complaints of other residents in Plaintiffs' neighborhood. Finally, the Agencies submitted declarations from the engineer who designed the wall and the other supervisors who approved the wall to show it was designed according to the Agencies' established procedures and the wall's design was reasonable.

         Plaintiffs opposed the motions. On the inverse condemnation claim, Plaintiffs argued the sound wall imposed unique and peculiar burdens on their properties because they had a direct line of sight to the sound wall and the increased amount of noise and dust they experienced was different from other residents. According to Plaintiffs, the noise they experienced before the wall was significant, but tolerable. After the wall, Plaintiffs contend they must sleep in different rooms in their homes to minimize the noise, cannot sleep with the windows open, experience difficulty having conversations outside, and even experience difficulty having telephone conversations.

         Plaintiffs argued that Civil Code section 3482's immunity did not apply because the relevant Streets and Highways Code provisions authorize the Agencies to construct sound walls to reduce freeway noise, not increase it. Plaintiffs also argued the immunity did not apply because the unreasonable design of the wall increased the noise for some properties. Finally, Plaintiffs argued the design immunity of Government Code section 830.6 ...


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