Local Ordinances Can Only Be Enforced by Government, Not Private Citizens

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A dispute between neighbors over the City of Los Angeles’ height limits for trees and plants led to a district court decision that ruled private parties are barred from bringing civil suits to enforce local ordinances.

The ordinance in question was section 36900 (a) of the Los Angeles Municipal Code, which states: “Violation of a city ordinance is a misdemeanor unless by ordinance it is made an infraction.” It goes on to say that violations of city ordinances may be prosecuted by city authorities in the name of the people, or redressed by civil action. Relying on a 20-year-old precedent, petitioner Charles Cohen and his wife Katyna sued their neighbors Thomas and Lisa Schwarz, believing that anyone could sue to redress violations of local government ordinances. The justices in Division 4 of California’s 2nd District Court of Appeals disagreed, overruling the previous decision.

Writing for a unanimous 3-0 panel on June 5, Presiding Justice Brian S. Currey ordered Los Angeles Superior Court, the defendant, to vacate an order by Judge Lisa Sepe-Wiesenfeld who had overruled a demurrer to the Municipal Code’s causes of action and to enter an order that would sustain it.

The district court’s decision overruled Riley v. Hilton Hotels Corporation (Riley), 100 Cal.App.4th 599, decided by then-Justice Norman L. Epstein, who held in 2002 that Section 36900 does create a private right of action to enforce municipal code violations. Currey said, “…the doctrine of stare decisis (let the decision stand) does not prevent us from reexamining and disagreeing with Riley. Thus we overrule Riley and disavow its recognition of a private right of action by members of the general public.”

The Schwartzes sued the Cohens not only for exceeding permissible height limitations for plants and trees; they also objected to the Cohens’ removal of foliage from the parkway between their homes and the replacement of the trees and plants in a manner that was “non-compliant” with the Residential Parkway Landscaping Guidelines adopted by the Los Angeles Board of Public Works, in violation of LAMC section 62.129.”

The Schwartz’s sued under four causes of action: nuisance; violation of two LAMC sections and declaratory relief. They sought compensatory damages, punitive damages, injunctive relief, and declaratory relief, along with attorneys’ fees and costs. The Cohens’ demurred to all of these and the Schwatzes amended their complaint. The district court also “invited” the City of Los Angeles to file their own briefs.

The district court opinion first discussed the Schwartzes’ motion to dismiss the Cohens’ petition on two grounds--the mootness of the Cohens’ case and their belief that the district court lacks jurisdiction. Both were denied by Currey, who then turned to the district court’s reasons to revisit Riley, which he faulted for its “perfunctory recognition of a private right of action” and its failure to clearly define exactly what a private right of action legally means.

Currey then turned to Lu v. Hawaiian Gardens Casino, Inc. (Lu) (2010) 50 Cal.4th 592, a California Supreme Court case that provided a framework for deciding whether a private right of action exists under a statute. Here, legislative intent was paramount and after explaining Lu’s reasoning, the district court concluded, “…section 36900, subdivision (a) does not “contain ‘“clear, understandable unmistakable terms,”’ which strongly and directly indicate that the Legislature intended to create a private cause of action.”

In addition, the legislative history of section 36900 demonstrates that the statutes that preceded it contain the same language as the bill that added section 36900. The legislators also repeatedly said that SB 750, the new legislation under consideration, was not intended to make any changes to existing law. Further support for this interpretation came from memos from the Attorney General, legislative memoranda, and briefs submitted by the City of Los Angeles.

One primary reason for its interpretation stemmed from concerns that “the widespread invocation of a private right of action under section 36900, subdivision (a) could profoundly affect cities in this state… (that would) would lose their ability to monitor and influence courts’ interpretation of their ordinances once enacted.”

Currey then turned to the public policy implications of interpreting section 36900 as the Schwartzes advocated. They argued that city authorities cannot be counted on to enforce code violation because of their limited resources and allowing citizens to do so… (and their ability) to file suit will ‘encourage compliance with the law.’” Both of these arguments were not persuasive to the district court. Currey wrote that they were unsupported by legal authority and stated that the Schwartzes “misunderstood” the district court’s role as a reviewing court. Their role, he wrote, was to “interpret the statute (as written), not to establish policy.” (Parentheses in original).

Currey then summarized that the language of section 36900 is ambiguous regarding who can enforce it. However, the court’s review of the legislative history convinced the justices that the lawmakers had no intent to give private citizens the “right to redress violations of local ordinances.” Any contrary holdings stemming from Riley were therefore overruled.

Finally, the opinion dismissed two additional arguments by the Schwartzes that might have been allowed under a different precedent. According to Pacifica Homeowners’ Assn. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152-1153), they believed they could sue the Cohens if they “suffered a special injury…of a different kind from that suffered by the general public” or they were community members “for whose particular welfare the ordinance was enacted.” Currey rejected these arguments as well because the Schwartzes did “not allege any facts (that would) satisfy either of the requisite criterion.”

Currey concluded that this case is a rare one about which the court is justified in revisiting a prior opinion to determine “whether a private right of action exists.”

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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