City & County of San Francisco v. Grant Co.

Opinion

Rosebud’s English Pub is a restaurant and bar in San Francisco owned by 370 Geary, Inc., a California corporation, and operated on prem

Background

The facts are undisputed. The restaurant came into being through an extensive remodeling of the leased premises in 1976 and 1977, for which the city building department issued a construction permit and conducted site inspections. Due evidently to the building department’s mistaken assumption that state handicap access requirements then in effect applied only to completely new construction and not to remodeling, the department never discussed the requirements with Rosebud’s before or during the work. As remodeled, the premises violated handicap access requirements principally in that telephones and restrooms were situated on the restaurant’s second floor without provision for wheelchair access from the first floor. Also, the first floor itself had two levels but no ramp or other means of wheelchair access between them. The state-licensed architects and construction people on the project similarly did not inform Rosebud’s of the access requirements, and Rosebud’s was not independently aware of them.

The access problem did not surface until 1978, when a person in a wheelchair attempted to use the restaurant’s phones and later complained to the State Department of Rehabilitation. That agency then notified the city and county’s department of public works, which in turn notified Rosebud’s by a letter of November 20 of that year. Both the state and the city thereafter made on site inspections of the restaurant and discussed with Rosebud’s possible solutions for compliance. The state had been unaware of the city’s issuance of the construction permit and (so far as the record shows) the construction itself.

When Rosebud’s did not voluntarily comply with the access requirements in the face of city demands, the city ordered an administrative hearing before its director of public works. As a result of that hearing, the restaurant was declared a public nuisance, and Rosebud’s was given 180 days to effect compliance. Rosebud’s failed to comply.

The city filed the instant action in superior court, seeking to abate the nuisance and compel compliance. The state intervened, and the case was tried to the court on February 7 and 8, 1983. Rosebud’s defenses were economic hardship and equitable estoppel. Evidence showed that the cost

The trial court found, apart from the question of public policy restraints on estopping the government, that the elements of estoppel were lacking as against the state. That conclusion is not only supportable on the evidence but is compelled as a matter of law for three of the four necessary elements. Undisputed evidence establishes that (1) the state was not apprised of the fact of the remodeling, (2) the state did nothing to induce Rosebud’s reliance let alone intend to create such reliance, and (3) Rosebud’s therefore could not have been injured by such reliance. The absence of any one of those elements is fatal to the claim. (California Sch. Employees Assn. v. Jefferson Elementary Sch. Dist. (1975) 45 Cal.App.3d 683 , 692-693 [ 119 Cal.Rptr. 668 ].)

Rosebud’s does not argue the evidence; rather, it argues that once the city is estopped, so is the state since enforcement by either entity in this case furthered the same interest, that of providing handicap access. Thus, it reasons, “If the government is estopped . . ., the identity of the enforcing officer is irrelevant.” No authority is cited except for People v. Department of Housing & Community Dev. (1975) 45 Cal.App.3d 185 [ 119 Cal.Rptr. 266 ], which does not support the argument. There, the defense of laches was upheld against the state for its delay in seeking to invalidate a permit

Here, on the other hand, the city was not acting as an arm or agent of the state. While both the city and the state were authorized to bring an action to enjoin violations of the law (Civ. Code, § 55.1; Health & Saf. Code, § 19958.5), it was specifically the city’s responsibility, through its building department, to initially insure enforcement within its territory (Health & Saf. Code, § 19958; Gov. Code, § 4450 et seq.). Rosebud’s cannot impute the city’s negligence to the state. It has been held, in the context of governmental immunity, that even the state’s mandatory duty to “work[] with” and “educate)]” local government officers regarding handicap access laws (Gov. Code, § 4455) “does not impose a mandatory duty to inform city officers of the provisions of [the] Health and Safety Code requiring them to enforce the handicap accessibility requirements.” (State of California ex rel. Dept, of Rehabilitation v. Superior Court (1982) 137 Cal.App.3d 282 , 285 [ 187 Cal.Rptr. 1 ].) Similarly, then, Rosebud’s should not be allowed to convert the city’s ignorance of handicap access laws into a failure of the state to speak sufficient to support an estoppel. (Lix v. Edwards, supra, 82 Cal.App.3d 573 , 580-581.)

Furthermore, there is no identity of legal right between the city and state sufficient to bind one by its “privity” to the other. (See, e.g., Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382 , 398-399 [ 29 Cal.Rptr. 657 , 380 P.2d 97 ] [city school board bound by state board’s waiver of reinstatement statute of limitations where, following state board’s revocation of teacher’s credential, city board had automatically discharged teacher in “subordinate” reliance on state board action].) None of the city’s actions in this case were taken in reliance or dependence on the state’s actions. (Cf. California Tahoe Regional Planning Agency v. Day & Night Electric, Inc. (1985) 163 Cal.App.3d 898 , 903-905 [ 210 Cal.Rptr. 48 ] [no estoppel of state planning agency to enforce its ordinance where building permit had been issued in defiance of state agency’s jurisdiction].)

There being insufficient facts to make out an estoppel against the state, any discussion of whether public policy might prevent an estoppel from arising (State of California v. Superior Court (Fogerty), supra, 29 Cal.3d 240 , 244; Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813 , 819-824 [ 110 Cal.Rptr. 262 ]; see policy discussions in In re Marriage of Carney (1979) 24 Cal.3d 725 , 738 & fn. 10 [ 157 Cal.Rptr. 383 , 598 P.2d 36 , 3 A.L.R.4th 1028 ], and People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d 123 , 135-136) would be academic. Even if policy would allow an estoppel

Because we find the instant appeal to be only “meritless” and not quite “frivolous” in the sense required under the guidelines set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637 , 649-651,653 [ 183 Cal.Rptr. 508 , 646 P.2d 179 ] (see also Custom Craft Carpets, Inc. v. Miller (1982) 137 Cal.App.3d 120 , 124-125 [ 187 Cal.Rptr. 78 ]), we deny the city and state’s joint request for sanctions against Rosebud’s (Code Civ. Proc., § 907; Cal. Rules of Court, rule 26(a)).

Disposition

The interlocutory judgment is affirmed.

Rouse, J., concurred.

This is not one of the exceptional cases in which the doctrine of equitable estopel may be applied against a governmental body. In those few cases which hold that a governmental body may be estopped by the conduct of its officers, “the facts clearly established that a grave injustice would be done if estoppel were not applied, and it did not appear that use of the doctrine would defeat any strong public policy or result in the indirect enforcement of an illegal contract.” (County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817 , 826 [ 186 P.2d 124 , 175 A.L.R. 747 ]; see also, City of Long Beach v. Mansell (1970) 3 Cal. 3d 462 [ 91 Cal.Rptr. 23 , 476 P.2d 423 ].)

Here the local state governmental agencies did not affirmatively or for a considerable period encourage reliance by appellants on the nonenforcement of state handicap access laws. (Cf. City of Imperial Beach v. Algert (1962) 200 Cal.App.2d 48 , 52 [ 19 Cal.Rptr. 144 ].) Moreover, said laws embody “a strong rule of policy adopted for the benefit of the public.” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720 , 725 [ 125 Cal.Rptr. 896 , 543 P.2d 264 ].) Though the belated enforcement of those laws would doubtless work a hardship on appellants, it would not work a “grave injustice.” The doctrine of equitable estoppel therefore would have no application in this case even if the elements of estoppel could technically be made out against either or both of the governmental bodies.