Cohen v. Super. Ct. - Case Brief

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Case Number: B330202
Court: California Court of Appeal, Second Appellate District, Division Four
Date Filed: 2025‑08‑31

Holding

The court held that Government Code § 36900(a) does not confer a private right of action on members of the public to enforce violations of municipal ordinances; consequently, the trial court’s order permitting the Schwartzes to sue the Cohens under that provision was vacated and the Cohens’ demurrer to the second and third causes of action was sustained. The decision expressly overruled Riley and limited civil enforcement of local ordinances to city authorities.

Narrative

Lead

In a decision that reshapes the enforcement landscape for California’s municipal codes, the Court of Appeal for the Second District held that ordinary citizens cannot sue under Government Code § 36900(a) to compel compliance with city ordinances. By overturning the two‑decade‑old Riley precedent, the court confined the civil‑enforcement mechanism to city officials, a move that will reverberate through countless nuisance and zoning disputes across the state.

Procedural History

The dispute began on a quiet Los Angeles residential street where Charles and Katyna Cohen trimmed hedges and installed landscaping that their neighbors, Thomas and Lisa Schwartz, alleged violated two provisions of the Los Angeles Municipal Code (LAMC): height limits in § 12.22(C)(20) and the Residential Parkway Landscaping Guidelines in § 62.129. The Schwartzes filed a complaint asserting (1) nuisance, (2) violation of LAMC § 12.22, (3) violation of LAMC § 62.129, and (4) declaratory relief. For the two ordinance‑based claims they invoked Government Code § 36900(a), relying on Riley’s holding that the statute “expressly permits violations of city ordinances to be redressed by civil action” by any private party.

The trial court sustained the Schwartzes’ demurrer to the nuisance and declaratory‑relief claims but, citing Riley, overruled the Cohens’ demurrer to the ordinance‑based causes of action, allowing the Schwartzes to proceed. The Cohens appealed, seeking a writ of mandate to vacate that order and to reinstate their demurrer. The appellate division granted the petition, issuing a peremptory writ and, in the process, overturning Riley.

Facts

Both families own single‑family homes directly opposite one another. The Schwartzes contend that the Cohens’ hedges exceed the 8‑foot height limit set by LAMC § 12.22(C)(20) and that the Cohens replaced parkway vegetation without the permits required by the Residential Parkway Landscaping Guidelines, thereby creating an “unreasonable interference” with the Schwartzes’ use and enjoyment of their property, diminishing its market value, and causing “severe annoyance, discomfort, and distress.” The complaint sought compensatory and punitive damages, injunctive relief, declaratory relief, and attorney’s fees.

Issues

  1. Statutory Construction: Does Government Code § 36900(a) create a private right of action for any member of the public to enforce municipal ordinances, or is the right limited to city authorities?
  2. Stare Decisis: Should the Court adhere to Riley’s interpretation, or is the precedent subject to reversal?
  3. Policy Considerations: If the statute does not create a private right, can private parties still enforce ordinances through other causes of action (e.g., nuisance)?

The Court’s Reasoning

1. Interpreting § 36900(a)

The Court applied the two‑part framework articulated in Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592: first, examine the statutory language for clear intent; second, turn to legislative history if the language is ambiguous.

  • Plain Language: The provision reads, “Violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” The Court noted that the first clause explicitly names “city authorities” as the actors; the second clause, written in the passive voice, does not name an actor. Relying on the principle that a passive construction following an active clause ordinarily refers to the same subject, the Court inferred that “civil action” is also meant for city authorities, not the general public. The Court rejected the Schwartzes’ reliance on the “last antecedent” and “expressio unius” doctrines, finding neither applicable.

  • Legislative History: The Court traced § 36900(a) to the Municipal Incorporation Act of 1883 (sections 769 and 867), which expressly limited both criminal prosecution and civil redress to “the authorities of such city.” When SB 750 (1949) codified the provision as Government Code § 36900, the California Code Commission’s reports repeatedly emphasized that the bill was a pure codification—a restatement of existing law without substantive change. The Commission’s drafts omitted the phrase “at the option of said authorities” only for stylistic brevity; they did not intend to broaden the class of actors. The Court found this historical context decisive: the Legislature never intended to create a private right.

  • Conclusion on Statutory Intent: Because the language is ambiguous and the legislative history shows a clear intent to limit enforcement to city authorities, the Court held that § 36900(a) does not create a private cause of action.

2. Overruling Riley

The Court acknowledged the doctrine of stare decisis but emphasized that it is not immutable. Citing People v. Hardin (2024) 15 Cal.5th 834, the Court explained that a precedent may be abandoned when (a) it is old, (b) it has been sparsely relied upon, and (c) it is contrary to the statutory text and history. Riley had been cited in only twenty decisions since 2002, with merely two appellate opinions adopting its reasoning. The Court therefore found no practical reliance that would be disrupted by reversal.

3. Private Enforcement via Other Causes of Action

The Court clarified that its holding does not preclude private parties from suing under traditional tort theories—nuisance, public nuisance, or private rights created by specific ordinances—when the plaintiff can demonstrate a special injury or a class‑based interest protected by the ordinance. The Schwartzes’ complaint, however, failed to allege the requisite “special injury” or “class‑member” facts, and the trial court’s earlier dismissal of the nuisance claim was therefore proper.

4. Policy Arguments

The Schwartzes argued that limiting enforcement to city officials would leave many violations unaddressed due to resource constraints. The Court dismissed this as a legislative matter, not a judicial one, reiterating that policy considerations belong to the Legislature, not to courts interpreting statutes.

Impact and Unresolved Questions

The decision narrows the avenue for private enforcement of municipal codes, compelling cities to rely on their own enforcement units or criminal prosecutions. Practitioners will need to reassess strategies in zoning, landscaping, and other ordinance disputes, focusing on (1) demonstrating a concrete, particularized injury that gives rise to a nuisance or other tort claim, or (2) lobbying legislatures for statutory amendments that expressly create private rights where policy dictates.

The ruling also raises a question for future litigation: how far will courts go in interpreting similar “or redressed by civil action” language in other statutes (e.g., certain provisions of the Health & Safety Code or the Building Code)? The Court’s analytical template—plain‑language analysis, legislative history, and a willingness to overturn under‑utilized precedent—provides a roadmap, but each statute will present its own factual and historical nuances.

Finally, the decision may prompt municipal governments to revisit internal enforcement policies. Cities that previously relied on citizen suits as a backstop may need to allocate additional resources to civil enforcement divisions or consider inter‑agency agreements that allow designated city officials to act on behalf of the public.

Bottom Line for Practitioners

  • No private right under § 36900(a): Plaintiffs cannot sue solely on the basis of that provision.
  • Focus on traditional tort theories: To succeed, a plaintiff must allege a concrete, particularized injury or a protected class interest.
  • Re‑evaluate case strategy: Review pleadings for sufficient factual support of nuisance or other tort elements; consider settlement or administrative remedies where civil enforcement is unavailable.
  • Monitor legislative activity: The decision leaves the door open for statutory amendment; advocacy may be necessary to restore a private enforcement mechanism.

Referenced Statutes and Doctrines

  • Government Code § 36900(a) – “Violation of a city ordinance may be prosecuted by city authorities … or redressed by civil action.”
  • Lu v. Hawaiian Gardens Casino, Inc., 50 Cal.4th 592 (2010) – Private‑right‑of‑action analytical framework.
  • Moradi‑Shalal v. Fireman’s Fund Ins. Co., 46 Cal.3d 287 (1988) – Stare decisis flexibility.
  • Last Antecedent Rule – White v. County of Sacramento, 31 Cal.3d 676 (1982).
  • Expressio Unius Est Exclusio Alterius – Center for Community Action & Environmental Justice v. City of Moreno Valley, 26 Cal.App.5th 689 (2018).
  • Passive‑Voice Interpretation – Coso Energy Developers v. County of Inyo, 122 Cal.App.4th 1512 (2004).
  • Stare Decisis Limits – People v. Hardin, 15 Cal.5th 834 (2024).
  • Nuisance and Ordinance Enforcement Cases – Pacifica Homeowners Assn. v. Wesley Palms Retirement Community, 178 Cal.App.3d 1147 (1986); Nestle v. City of Santa Monica, 6 Cal.3d 920 (1972); Major v. Silna, 134 Cal.App.4th 1485 (2005).