Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG07342506
Lambden, J.
Paul Bostwick and Kimberly Chism are owners of real property in the McKillop Road and Sheffield Avenue neighborhood (the neighborhood) located in the City of Oakland. In 2006, a landslide occurred on the hillside in the neighborhood. The Alliance for McKillop Road (Alliance), Bostwick, and Chism (collectively, the homeowners or plaintiffs) filed a class action complaint for abatement of a nuisance against the City of Oakland, County of Alameda, the State of California, and the East Bay Municipal Utility District (collectively, the government agencies or Defendants). They requested the court enjoin the government agencies from maintaining and repairing the infrastructure in their neighborhood in such a manner that their property was subject to sliding, leaking, and erosion. The lower court sustained the government agencies’ demurrers against the homeowners’ pleading without leave to amend. It ruled that the injunctive relief sought by the homeowners violated the separation of powers. The homeowners appeal, and we affirm the judgment.
BACKGROUND
The neighborhood is comprised of residential lots located within one-quarter mile of the intersection of McKillop Road and East 29th Street in the City of Oakland. Since 1935, the neighborhood has experienced landslides. The City of Oakland maintains the McKillop Road right-of-way, and the related sewer lines and storm drains.
The facts are set forth as alleged in the homeowners’ pleadings.
The neighborhood lies to the east of the Central Reservoir. The Central Reservoir, currently owned and operated by the East Bay Municipal Utility District (EBMUD), was originally constructed in 1909, and improved intermittently in 1923, 1933, 1940, and 1955.
Sausal Creek is situated at the base of the McKillop Road hillside, and it is a natural watershed that has been partially improved as a drainage swale. It is part of the storm drainage system owned, operated, and maintained by the County of Alameda Water District.
On May 13, 2006, the neighborhood experienced landslides on the hillside. As a result, many private residences on McKillop Road, the road itself, and sewer and water lines were damaged. According to professional geotechnical reports commissioned by the City of Oakland, the causes of the periodic earth movement in the neighborhood included the following: soil erosion in Sausal Creek; water intrusion emanating through cracks and gaps in the storm drain, sewer, water, and flood control systems, and/or Sausal Creek conduit and watershed; blockage in such systems; and continuous leakage from the Central Reservoir.
After this landslide, property owners other than the homeowners in this action, filed lawsuits seeking monetary damages arising from their lost or damaged property.
Chism and Bostwick are owners of real property in the neighborhood. Alliance is a nonprofit benefit corporation that formed for the purpose of “sav[ing] McKillop Road and its right of way from continued landslide activity....” On August 24, 2007, the homeowners filed a class action complaint for injunctive relief on behalf of themselves and other property owners similarly situated against the government agencies. They alleged that the government agencies’ ownership, operation, and maintenance of their respective public improvement projects constituted a dangerous public condition.
The homeowners set forth causes of action for abatement of public and private nuisances and sought a preliminary and permanent injunction enjoining the government agencies “[f]rom continuing to maintain the property subject to sliding, leaking, and erosion, which includes all of McKillop Road, portions of Sheffield Avenue and East 29th Street, Lots owned by the City of Oakland, Lot 91 owned by the County of Alameda, Sausal Creek, and Central Reservoir, in a condition which results in plaintiffs’ and plaintiffs class members’ property being unsafe for permanent and continuous occupation, use and quiet enjoyment; [and] [f]rom continuing to maintain the property subject to sliding, leaking, and erosion, which includes all of McKillop Road, portions of Sheffield Avenue and East 29th Street, Lots owned by the City of Oakland, Lot 91 owned by the County of Alameda, Sausal Creek, and Central Reservoir, in a condition which results in a threat of property damage to the property owned by plaintiffs and plaintiff class members[.]” They also sought to require the government agencies “to forthwith take all action necessary to stabilize and restore to a safe condition, the property subject to sliding, leaking, and erosion... and/or otherwise abate the nuisance created by its own properties, easements, and/or rights of way....”
On October 5, 2007, the government agencies each demurred to the homeowners’ complaint. They asserted, among other things, that the injunctive relief sought required infrastructure improvements to public projects and was therefore barred by the separation of powers doctrine.
The trial court, on November 15, 2007, sustained the government agencies’ demurrers to the homeowners’ complaint with leave to amend. The court found that the injunctive relief sought violated the separation of powers doctrine. It explained: “Although the complaint contains allegations that plaintiffs ‘have incurred damages and losses’..., the relief sought therein is prospective only....” It stated that the homeowners failed to provide any authority to support the proposition that the court “may order injunctive relief, as opposed to damages, for an unsafe condition of public property.” It elaborated that “[i]mplementation of such relief would necessarily involve legislative action....”
The trial court consolidated the homeowners’ action for pretrial purposes with eight related cases.
On November 30, 2007, the homeowners filed their first amended class action complaint for abatement of nuisance (FAC). The factual allegations remained essentially the same as those set forth in the original complaint. However, the pleading contained two separate causes of actions: one for public nuisance under Civil Code sections 3479 and 3480 and one for private nuisance under Civil Code sections 3479 and 3481. The homeowners requested a preliminary and permanent injunction: “a. Enjoining EBMUD... from maintaining Central Reservoir and its appurtenant structures (including any water service lines emanating therefrom) in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of plaintiffs and plaintiff class members or which otherwise obstructs [their] free use and comfortable enjoyment of their persons and property; [¶] b. Enjoining County of Alameda... from maintaining the Sausal Creek channel, conduit, watershed and its appurtenant structures in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of plaintiffs and plaintiff class members or which otherwise obstructs [their] free use and comfortable enjoyment of their persons and property; [¶] c. Enjoining County of Alameda... from maintaining flood control and storm drain systems and appurtenant structures under its ownership or control in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of plaintiffs and plaintiff class members or which otherwise obstructs [their] free use and comfortable enjoyment of their persons and property; [¶] d. Enjoining City of Oakland... from maintaining the storm drains, sewers and water systems and their appurtenant structures under its ownership and/or control in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of plaintiffs and plaintiff class members or which otherwise obstructs [their] free use and comfortable enjoyment of their persons and property....”
The government agencies demurred to the homeowners’ FAC on the basis that the shift from a focus on a dangerous condition theory to a nuisance theory did not cure the separation of powers concerns. On January 28, 2008, the trial court sustained the government agencies’ demurrers without leave to amend. It concluded that none of the changes made to the homeowners’ FAC cured the defects in the original complaint. It explained that it was not providing the homeowners with leave to amend because, at the hearing, the court asked the homeowners what further changes they would make to their complaint if provided with another opportunity to amend their pleading, and their “response was limited to an offer to rearticulate their prayer for class-wide injunctive relief, without further factual allegations or different causes of action on either an individual or class-wide basis.” The court concluded that the homeowners’ “changes would not address the fundamental flaw in the complaint, i.e., that any attempt by the court to craft injunctive relief on a class-wide basis would necessarily impinge on the legislative arena.”
The trial court issued its judgment in favor of the government agencies and against the homeowners on February 25, 2008. The homeowners filed a timely notice of appeal.
The homeowners requested that this court take judicial notice of the pleadings in the actions that were consolidated with the present case for pretrial purposes. We granted this request on September 2, 2008.
DISCUSSION
The question presented by this appeal is whether the lower court properly sustained the demurrers by the government agencies without leave to amend. The lower court found that the homeowners could not state a cause of action for public or private nuisance because the only relief requested, an injunction, violated the separation of powers doctrine by necessarily involving legislative action. For the reasons set forth below, we agree with the lower court’s ruling. Additionally, we also affirm the judgment on the basis that the FAC is vague and uncertain.
I. Standard of Review
The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
II. The Requested Relief Violates the Separation of Powers
A. The Separation of Powers Doctrine
Article III, section 3 of the California Constitution provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
The principal purpose of the separation of powers doctrine “ ‘is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.’ ” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 557 (Manduley).) “ ‘The doctrine has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another.’ [Citation.] The separation of powers doctrine ‘recognizes that the three branches of government are interdependent, and it permits actions of one branch that may “significantly affect those of another branch.” [Citation.]’ [Citation.] The doctrine ‘ “is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch.” [Citation.]’ [Citation.]” (Ibid.)
However, the separation of powers doctrine does place limits upon the actions of the executive, legislative, and judicial branch. (See, e.g., Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 25 (Marine Forests Society.) “ ‘The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function. ’ ” (Ibid.) “The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch.” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297 (Carmel Valley).)
The separation of powers protects one branch against the overreaching of another branch of power by stopping one branch from assigning to itself the core functions of another branch. Accordingly, although there is a commingling of the functions of the three branches, the separation of powers doctrine prevents any delegation of power that would result in the “aggrandizement” or “encroachment” of one branch of power. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 493 (Kasler).)
“The core functions of the legislative branch include passing laws, levying taxes, and making appropriations. (Cal. Const., art. IV, §§ 1, 8, subd. (b), 10, 12....) ‘Essentials of the legislative function include the termination and formulation of legislative policy.’ [Citation.] Further, it is settled that ‘ “the power to collect and appropriate the revenue of the State is one peculiarly within the discretion of the Legislature.” ’ ” (Carmel Valley, supra, 25 Cal.4th at p. 299.) The legislative branch of government, may delegate some quasi-legislative or rule-making authority to administrative agencies. (Ibid.)
The doctrine of the separation of powers manifests itself in various ways. For example, courts may not compel a legislative body to act or not to act. (See, e.g., Serrano v. Priest (1976) 18 Cal.3d 728, 751; Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 618 [court held taxpayers could not invoke judicial power to force Franchise Tax Board to control the use of alcohol entertainment expenses as a business deduction on state income tax returns]; City Council v. Superior Court (1960) 179 Cal.App.2d 389, 394-395 [“The commanding of specific legislative action is beyond the power of the courts for it would violate the principle of division of powers of the three governmental departments”].) Courts also cannot inquire into the impetus or motive behind legislative action. (See, e.g., County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 726.) Similarly, budgetary functions are generally legislative. (See Steiner v. Superior Court (1996) 50 Cal.App.4th 1771, 1788; County of Butte v. Superior Court (1985) 176 Cal.App.3d 693, 698-699.)
The issue present here is whether the relief requested by the homeowners would require the judiciary to exercise the core functions of the legislative branch and to have power in an area where the court has no special knowledge or expertise. (See Carmel Valley, supra, 25 Cal.4th at p. 299; Kasler, supra, 23 Cal.4th at pp. 494-495.)
B. The Homeowners’ FAC and the Separation of Powers Doctrine
The homeowners’ FAC included causes of action for public nuisance under Civil Code sections 3479 and 3480 and for private nuisance under Civil Code sections 3479 and 3481. In the FAC, the homeowners alleged that the following areas were subject to “sliding, leaking, and erosional activity”: all of McKillop Road; portions of Sheffield Avenue and East 29th Street; lots owned by the City of Oakland; Lot 91; the Sausal Creek channel, the underground conduit, and the watershed; and the Central Reservoir. The homeowners requested a preliminary and permanent injunction enjoining EBMUD from “maintaining Central Reservoir and its appurtenant structures (including any water service lines emanating therefrom) in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of [the homeowners] or which otherwise obstructs [the homeowners’] free use and comfortable enjoyment of their persons and property[.]” Additionally, they sought to enjoin the County of Alameda “from maintaining the Sausal Creek channel, conduit, watershed and its appurtenant structures in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of” the homeowners and “from maintaining flood control and storm drain systems and appurtenant structures under its ownership or control in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of” the homeowners. With regard to the City of Oakland, they sought to enjoin it “from maintaining the storm drains, sewers and water systems and their appurtenant structures under its ownership and/or control in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being” of the homeowners.
We agree with the trial court that the granting of the requested injunction would require the court to intrude impermissibly on the legislative branch. The FAC seeks to have the court oversee how the government agencies repair and maintain the Central Reservoir, the City of Oakland’s public sewer system, the municipal water distribution piping system, and the public storm drainage systems. Consequently, the court would have to determine, at least to some extent, how public improvement projects should be owned, operated, and maintained.
The California Constitution makes it clear that public entities are vested with the discretionary authority to determine how public monies are budgeted and spent in connection with operating and maintaining public improvement projects. (Cal. Const. art. XI, § 9; art. IV, § 1; art. XI, §§ 1, 2.) Further, the legislative branch is vested with the power to direct the use of public funds. (Carmel Valley, supra, 25 Cal.4th at p. 299.) “The budgetary process entails a complex balancing of public needs in many and varied areas with the finite financial resources available for distribution among those demands. It involves interdependent political, social and economic judgments which cannot be left to the individual officers acting in isolation; rather, it is, and indeed must be, the responsibility of the legislative body to weigh those needs and set priorities for the utilization of the limited revenues available.” (County of Butte v. Superior Court, supra, 176 Cal.App.3d 693, 699.)
As Division Four of our court has stated: “ ‘ “Governmental decisions to spend money to improve the general public welfare in one way and not another are ‘not confided to the courts. The discretion belongs to [the legislative branch], unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.’ ” ’ ” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1466-1467.) Thus, the decisions on how public monies will be spent to improve the general public infrastructure are within the legislative core functions.
In the FAC, the homeowners do not allege that the decisions on how the government agencies have allocated the money to repair or maintain the sewer system, reservoir, and other portions of the infrastructure are unlawful or arbitrary. Rather, they generally allege that the maintenance and repair of various parts of the infrastructure in the neighborhood have created a nuisance condition; they do not specify any particular action that they want the government agencies to take. In essence, they are requesting the court to oversee this process and substitute its own judgment for the government agencies. Moreover, the court would have to order the government agencies to allocate some portion of the public fund to make repairs or, if insufficient money were available, order the appropriation of funds. (See, e.g., City of Sacramento v. California State Legislature (1986) 187 Cal.App.3d 393, 397-399 [courts cannot mandate that the Legislature appropriate money for specific purposes].) This would be an improper usurpation of the functions belonging to the legislative branch and an impermissible broadening of the judicial branch’s functions.
The homeowners argue that the expenditure of public funds is not the same as the appropriation of public funds and all branches of government have the authority to expend public funds. They claim when a government agency expends money, the agency is acting in its administrative capacity, not its legislative capacity. Further, they maintain that the necessity of an appropriation is not apparent on the face of the FAC. They assert that the costs of abatement are unknown and will be established at trial.
A review of the homeowners’ FAC reveals that they want the government agencies to repair all alleged leaking in the Central Reservoir, public sewer system, public storm drainage system, and water distribution piping system. Such repair would require a significant amount of money and therefore the decision to spend this money on a particular project is part of the government agencies’ legislative, not administrative, function. (See, e.g., O’Connell v. Superior Court, supra, 141 Cal.App.4th at p. 1466.) If the court orders the government agencies to do certain repairs and maintain the infrastructure in a certain manner, it is telling them how to budget their money, which is a legislative function. Such an order would be within the court’s authority if the government agencies were not acting as required by a statute or by the Constitution, but that is not the case in the present situation.
Further, the relief requested by the homeowners is prospective. When the court intervenes in legislative action, the court’s action must be “directed toward the right to undo what the legislative or quasi legislative body has done, not toward directing it to perform an act which is prospective in operation.” (City Council v. Superior Court, supra, 179 Cal.App.2d at p. 394.) Here, the injunction requested by the homeowners would have the court tell the government agencies to spend money in a particular manner. This commanding of specific legislative action is beyond the power of the courts. (See id. at pp. 394-395.) “ ‘It is within the legitimate power of the judiciary, to declare the action of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the courts have no means, and no power, to avoid the effects of non-action. The Legislature being the creative element in the system, its action cannot be quickened by the other departments. Therefore, when the Legislature fails to make an appropriation, we cannot remedy that evil....” (Id. at p. 395.)
Indeed, deciding how to budget money for repairs to maintain the sewer system and other parts of the infrastructure is not an area in which judges have special knowledge or expertise. (See Kasler, supra, 23 Cal.4th at p. 494.) Thus, the Legislature has enacted statutes prohibiting trial courts from imposing injunctive relief that would infringe upon the legislative acts of public entities. (Code Civ. Proc., § 526, subd. (b)(7); Civ. Code, § 3423, subd. (g).)
In their reply brief, the homeowners state that Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228 (Hicks) “confirms that courts are not disabled from providing relief against a legislative body in the face of a claim that the body’s action was a part of its budgeting process.” In Hicks, the Court of Appeal invalidated a county resolution transferring 22 members of the investigative staff of the district attorney’s office to the sheriff. The resolution was not undertaken as part of the budgetary process; nor was it “proposed or considered by the board as a budget item.” (Hicks, supra, at pp. 232-233.) The Hicks court recognized and validated the budgetary power of a county board of supervisors, but determined that the resolution was essentially a transfer of functions rather than a budgetary measure, transferring control “of one officer’s statutory function to another.” (Id. at p. 244.) The court held that this resolution was in excess of the jurisdiction of the board of supervisors because the board had no statutory or constitutional power of control over the district attorney. (Ibid.)
Hicks, supra, 69 Cal.App.3d 228 is inapposite. In Hicks, the court carried outs its proper function of determining that the board’s action was not a budgetary function and that the board acted in excess of its authority. Here, the requested relief would place the court in the position of telling the government agencies to prioritize the repairs to the infrastructure in the neighborhood and to allocate sufficient funds to this project. It would also require the court to oversee the project and determine that the repairs were adequate to stop any further erosion, leaking, or landslides.
Besides relying upon Hicks, the homeowners in their opening and reply brief recite the facts and holdings of various cases concerned with the separation of powers doctrine. They argue that the “doctrine is a fluid concept designed to prevent the concentration of governmental power in the hands of one branch and to similarly prevent any branch from exercising the ‘core functions’ of another.” They point out that the doctrine permits actions of one branch that may “ ‘significantly affect those of another branch.’ ” (Carmel Valley, supra, 25 Cal.4th at p. 298.) They emphasize that courts have rejected separation of powers claims when no material impairment appeared. (Ibid.)
The homeowners detail the facts and analyses of the following cases that held there was no violation of the separation of powers doctrine: Davis v. Municipal Court (1988) 46 Cal.3d 64, 76-77 (providing the prosecutor with the authority to approve local misdemeanor diversion programs did not violate the separation of powers doctrine, as it did not unconstitutionally enlarge the district attorney’s role beyond the district attorney’s legitimate executive sphere); Manduley, supra, 27 Cal.4th at pages 552-557 (providing the prosecutor with the authority to file felony charges against minors in the criminal court rather than the juvenile division did not violate the separation of powers doctrine, because such a decision constitutes an aspect of traditional prosecutorial charging discretion and does not intrude upon the judicial function); Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1203-1211 (a statute conferring authority on an executive branch agency to enter into a memorandum of understanding with a nonprofit organization to obtain private funds to defray the costs of implementing the Marine Life Protection Act did not impermissibly delegate legislative power in violation of the separation of powers doctrine); Kasler, supra, 23 Cal.4th at pages 491-498 (the court rejected a claim that the Roberti-Roos Assault Weapons Control Act violated the separation of powers doctrine insofar as it delegated to the courts the power to determine whether an unlisted firearm is an assault weapon and the delegation did not aggrandize the judicial branch); Carmel Valley, supra, 25 Cal.4th at pages 297-309 (an enactment that suspended the operation of certain administrative regulations was within the authority of the Legislature even though it was a matter that incidentally affected the authority of the executive branch and could have been undertaken by the executive branch); and Marine Forests Society, supra, 36 Cal.4th at pages 24-46 (the appointment of executive officers is not an exclusively executive function and therefore giving legislative entities the authority to make appointments to the Coastal Commission did not violate the separation of powers provisions of the state Constitution).
We do not quarrel with the homeowners’ discussion of cases setting forth the parameters of the separation of powers doctrine. Rather, we conclude that the relief requested by the homeowners, if granted, would require the court to carry out a legislative function. As already discussed, the decision about how to budget and allocate the money to fix and maintain the infrastructure is a core function of the legislative branch and therefore an injunction requiring the court to intrude into this area would materially impair the legislative branch. The present case is not one where the granting of the requested relief would have an “ ‘ “incidental effect of duplicating a function or procedure delegated” ’ ” to the legislative branch. (Manduley, supra, 27 Cal.4th at p. 557.) The court cannot order the government agencies to make repairs; it can only order a public entity to do what is necessary to ensure that it is acting according to the requirements of a statute or the Constitution. “It is within the legitimate power of the judiciary, to declare the action of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the courts have no means, and no power, to avoid the effects of non-action. The Legislature being the creative element in the system, its action cannot be quickened by the other departments.” (Myers v. English (1858) 9 Cal. 341, 349, disapproved on other grounds in Mandel v. Myers (1981) 29 Cal.3d 531, 551, fn. 9.)
Further, as already mentioned, this is not a situation where the court is being asked to issue an injunction to require the public entity to comply with the law. Such an order would clearly be within the court’s authority. The homeowners argue that the government agencies are not following the law because they are creating a nuisance and violating Civil Code section 3479. This, however, is not a situation where there is any allegation that the government agencies are not carrying out their duty by violating a requirement mandated by a statute or by the Constitution. The general nuisance statute does not impose a particular duty or requirement on government agencies.
Civil Code section 3479 provides: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
The homeowners are asking the court to remedy the government agencies’ inaction in solving the water seepage and water sewer problems. It is not asking the court to issue an injunction to order the government agencies to do whatever they need to do, including making the appropriate expenditures, to comply with their duty mandated by a statute or the Constitution. Since the injunctive relief requested in the homeowners’ FAC would require the court to take over the core duties of the legislative branch, we conclude that the trial court correctly sustained the demurrers against the homeowners’ FAC.
C. The Homeowners’ Cases on Abating a Nuisance Are Inapposite
The homeowners contend that the separation of power doctrine does not bar a request for an injunction based on abating a private or a public nuisance against a public entity. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 936-937.) They detail the decisions in L.A. Brick etc. Co. v. City of Los Angeles (1943) 60 Cal.App.2d 478 (L.A. Brick), People v. City of Los Angeles (1948) 83 Cal.App.2d 627 (Los Angeles I), and People v. City of Los Angeles (1958) 160 Cal.App.2d 494 (Los Angeles II), superseded by statute on other grounds. Moreover, they maintain that courts have the authority to order a public entity to remedy a massive or complex problem. (See Center for Biological Diversity, Inc. v. FPL Groups, Inc. (2008) 166 Cal.App.4th 1349 (Center for Biological Diversity).)
We agree with the homeowners that actions seeking an injunction to abate a public or private nuisance against a public entity are not automatically barred. Government Code section 815, which limits government tort liability, does not bar nuisance actions against public entities to the extent such actions satisfy the requirements of Civil Code section 3479. (Nestle v. City of Santa Monica, supra, 6 Cal.3d at pp. 936-937.) However, depending upon the context of the situation, such an action may be barred if it violates the separation of powers. For example, in Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152 (Friends), a case not cited by either party, the reviewing court affirmed the lower court’s dismissal of an action against the city for injunctive relief for a nuisance. One of the two independent bases for the trial court’s dismissal of the lawsuit was that the action violated the separation of powers. The plaintiffs in Friends sought to require the defendant city to abate the alleged nuisance resulting from the city’s inaction in response to complaints regarding traffic conditions on a street. (Id. at pp. 157-158.) The plaintiffs sought injunctive relief requiring the city to reduce traffic speed and volume on that street. (Ibid.) The trial court sustained the city’s demurrer without leave to amend, stating: “ ‘The routing of traffic on city streets is basically a legislative function. To the extent that traffic is rerouted from H Street, it must be routed onto another street or highway. The selection among alternatives is a legislative act.’ ” (Id. at p. 158.) The reviewing court affirmed the lower court’s judgment for the city because the traffic changes sought by the plaintiff were matters of public policy for the legislative branch and beyond the power of the judicial branch. (Id. at pp. 164-166.)
The court also held that the defendant city’s acts were authorized by statute and therefore the plaintiffs’ action was barred by Civil Code section 3482. (Friends, supra, 20 Cal.App.4th at p. 159.)
Thus, the question of whether the requested relief improperly requires the court to usurp the core functions of another branch depends upon the context of each situation. Indeed, an examination of the cases relied upon by the homeowners reveals that these cited cases are distinguishable from the present situation.
The homeowners devote a significant portion of their brief to a detailed discussion of L.A. Brick, supra, 60 Cal.App.2d 478. In L.A. Brick, the court held that despite the fact that the defendant municipality was acting pursuant to a statute in constructing a street improvement, the plaintiff could state a cause of action for injunction to abate a storm water nuisance because the municipality had wrongfully dumped storm water upon the plaintiff’s property. (Id. at pp. 485-486.) The bases for the municipality’s appeal were “insufficiency of the complaint, variance of findings from the pleading, defendants’ prescriptive easement, laches, statutory limitation and the court’s failure to find on the issue of plaintiff’s negligence in grading its tract.” (Id. at p. 484.) This case is not authority for the issue before us because in L.A. Brick no party raised––and the court gave no consideration to––the application of the separation of powers doctrine.
Similarly unavailing is the homeowners’ reliance on the Los Angeles cases. Los Angeles I, supra, 83 Cal.App.2d 627, involved an action in equity by the people of the State of California. They sought the following: to restrain the cities from maintaining, without a permit from the State Board of Public Health, any sewage treatment works, sewers and pipes or conduits; to restrain them from discharging into the bay sewage; and to restrain them from maintaining a public nuisance on the bay by depositing sewage. (Ibid.) In Los Angeles II, supra, 160 Cal.App.2d 494, two municipalities sought judicial abatement of a nuisance created by the discharge of sewage into the bay and the court held that the administrative remedies did not have to be exhausted because the statutes did not give the control boards the exclusive right to determine “either what does or does not constitute a nuisance or to invoke the equity powers of the courts of this state to abate a public nuisance.” (Id. at pp. 502-503.) These two cases involved an action to abate a nuisance caused by the City of Los Angeles by its discharge of sewage into the bay.
The Los Angeles cases, according to the homeowners, show that the court may fashion a remedy that is prospective as the courts in these two cases stated that it could prevent the city from creating a public nuisance that endangers the health and comfort of the inhabitants. (Los Angeles II, supra, 160 Cal.App.2d at pp. 509-510.) The homeowners ignore, however, that in both Los Angeles cases, the cities had violated the Health and Safety Code. As already highlighted, determining whether a government entity’s acts comply with the law is clearly within the core function of the court. Further, the courts did not prescribe the manner in which the City of Los Angeles had to abate the nuisance; the city just had to act in accordance with the statutory requirements. (Los Angeles, I, supra, at p. 646.)
Although the Los Angeles I court does not directly refer to the separation of powers, it explained: “We are in accord with the claim of appellants that the court does not possess the power to indicate or prescribe the means or facilities that shall be constructed or used to abate the nuisance. However, an examination of the record herein reveals that the court did not decree or prescribe the means or facilities to be used, nor require that any particular plant be built....” (Los Angeles I, supra, 83 Cal.App.2d at p. 644.) The court concluded: “Appellants are permitted to adopt some other method of disposing of their sewage, subject only to the statutory requirement that such method be approved by the State Board of Public Health.” (Id. at p. 646.)
In their reply brief, the homeowners discuss Center for Biological Diversity, supra, 166 Cal.App.4th 1349, but this case also is inapposite. In Center for Biological Diversity, the plaintiffs asserted that various businesses violated the public trust by operating their windmills in a manner that was killing birds. The Court of Appeal did not consider the adequacy of the allegations in the complaint because it concluded that the plaintiffs should have brought their action against the County of Alameda or a state agency rather than several business entities. (Id. at p. 1367.) The court noted that the public trust doctrine placed a duty upon the government entities to protect the natural resources and therefore the public may file a legal action against them to compel compliance with their duty. (Id. at p. 1368.)
The present case is very different from Center for Biological Diversity. The government entities in the Center for Biological Diversity were not complying with their duty under the public trust doctrine. There is no allegation that the government agencies in the present case have not complied with their duty under the public trust doctrine, the Constitution, or a statute. Rather, the homeowners are asking the court to monitor the repair to the infrastructure to remedy an alleged continuing nuisance.
In a footnote in their reply brief, the homeowners refer to Serrano v. Priest (1971) 5 Cal.3d 584 (the Supreme Court reversed the lower court’s dismissal of the complaint and remanded for trial on the claim that the school financing system violated equal protection), Serrano v. Priest, supra, 18 Cal.3d 728 (the Supreme Court affirmed the lower court’s finding that the financing system was invalid), Serrano v. Priest (1977) 20 Cal.3d 25 (the Supreme Court held that California courts have jurisdiction to award attorney fees on a private-attorney-general theory to persons who have vindicated important constitutional rights). The Serrano cases concerned an equal protection challenge to the financing of public schools and the Supreme Court concluded that courts could properly require the government entities to comply with the law. The Serrano cases are inapplicable because, in the case before us, there is no allegation by the homeowners that the government agencies acted unlawfully.
We therefore conclude that the cases mentioned by the homeowners occurred in a different context. Moreover, as already noted, none of the cases relied upon by the homeowners ruled on the separation of powers issue. Recognizing that none of the cases cited by them is directly concerned with the separation of powers, the homeowners state in their brief: “[A] full exposition on the separation of powers doctrine is not required to yoke the [L.A. Brick, Los Angeles I, and Los Angeles II] cases to this one, especially in light of the fact that... the courts or the parties could have raised it at any time. Surely the California Attorney General and the city attorney of a major city such as Los Angeles were aware of the separation of powers doctrine and would have raised it if they had thought it provided an available defense....”
The homeowners also maintain that the Supreme Court in Phillips v. City of Pasadena (1945) 27 Cal.2d 104, expressed approval of a court’s providing injunctive relief against a public entity when the public entity violates the public nuisance statute. In Phillips, the defendant had erected a gate, which unlawfully obstructed a road. The Supreme Court held that “[t]he unlawful barricading of a public street constitutes a nuisance for which a person specially injured may maintain an action [citations omitted] and where such an obstruction cuts off all means of ingress and egress the nuisance is especially injurious within the meaning of the rule.” Phillips did not involve a claim for injunctive relief; nor did it address the issue of separation of powers. Phillips simply stands for the unremarkable position that, in the proper context, injunctive relief may be sought against a public entity that violates the nuisance statute.
As already discussed, the context and the general request for relief in the present case distinguish it from the cases cited by the homeowners. Moreover, it is axiomatic that cases are not authority for propositions not expressly considered. (Honey Baked Hams, Inc. v. Dickens (1995) 37 Cal.App.4th 421, 428, disapproved on another issue in Santisas v. Goodin (1998) 17 Cal.4th 599, 614 & fn. 8.) Since none of the cases relied upon by the homeowners addressed the violation of the separation of powers, they are not authority for the issue before us.
Additionally, the homeowners argue that their action was consolidated with eight related cases for pretrial purposes. All of these cases had a claim for damages; seven of them included causes of action for nuisance and seven sought injunctive relief. At the hearing on the demurrers on the FAC, the court discussed with the parties a common agreement about a remedy for the nuisance. The homeowners assert that the lower court was inconsistent in rejecting their relief based on their seeking a prospective remedy while allowing the other litigation to go forward simply because those plaintiffs’ requests for relief included a claim for monetary damages. The other eight actions are not before us, and we therefore express no opinion as to whether the relief requested by these plaintiffs was proper.
Finally, the homeowners argue that public policy supports their action for injunctive relief and that a governmental entity should not be able to maintain a nuisance. We agree that in the present situation the result may seem somewhat harsh, but the homeowners may pursue an action for damages. Further, we express no opinion as to whether a narrowly tailored request for injunctive relief could be sought.
D. The Homeowners’ Action Against EBMUD
The homeowners argue that, even if the separation of powers bars their action against the City of Oakland, County of Alameda, and State of California, the doctrine does not apply to their claim against EBMUD. EBMUD maintains the reservoir that is alleged to be one of the sources of the landslide problem. The homeowners assert that the separation of powers does not apply to utilities and they cite Calif. Oregon Power Co. v. Superior Court (1955) 45 Cal.2d 858 (Calif. Oregon Power).
In Calif. Oregon Power, supra, 45 Cal.2d 858,the public utility attempted to enjoin the Attorney General’s lawsuit against the public utility to abate a nuisance arising from its maintenance and use of dams on the Klamath River. The Attorney General contended that the fish it regularly stocked in the river died and that 14 people drowned because the power company caused the river’s flow to fluctuate through the operation of its hydroelectric plants. (Id. at p. 860.) Among several arguments in support of its petition, the utility contended the superior court lacked jurisdiction to entertain the nuisance action because the subject matter was legislative, not judicial. (Id. at p. 861.) Specifically, it argued the nuisance action should be restrained because the court would be required to “legislate for the future with respect to the regulation of hydroelectric installations on navigable streams and to declare the state’s policy in regard to the adjustment of the competing interests, that is, the preservation of fish and maintenance and operation of such dams.” (Id. at p. 870.) The public utility asserted that it was subject to exclusive regulation by the California Public Utilities Commission. (Id. at pp. 870-871.) The Supreme Court rejected the utility’s argument and held that the Attorney General’s action was not barred by the separation of powers doctrine because the nuisance action did not require the court to choose between conflicting policies. Instead, the case “merely present[ed] the question of what relief if any may be had for the condition which is dangerous to the lives of persons as shown by prior drownings and the destruction of fish.” (Id. at p. 871.)
We agree with the homeowners that courts may have jurisdiction to abate a nuisance created or maintained by a public utility. (See, e.g., Calif. Oregon Power, supra, 45 Cal.2d at p. 870, citing Yolo Water etc. Co. v. Superior Court (1919) 43 Cal.App. 332, 341 [the superior court can abate a public nuisance by a public utility although such utilities are subject to regulation by the state Public Utilities Commission].) However, the court must determine on a case by case basis whether the requested relief violates the separation of powers. In Calif. Oregon Power, the Attorney General was not asking the court to oversee repairs and maintenance to dams or hydroelectric generating plants. Rather, it merely asked to the court to force the power company to alter its operations so that fish and people would not be killed. Further, the Attorney General was not interfering in any policy decision. In contrast, here, the homeowners are asking the court to oversee unspecified repairs that would necessarily require the court to tell the utility company how to budget its money and to make a policy decision to prioritize repairs to the infrastructure in the neighborhood over other projects. Consequently, in the present case, the remedy sought by the homeowners directly interferes with EBMUD’s legislative function and the court lacks power to grant the requested relief.
The government agencies distinguish the present case from Calif. Oregon Power by pointing out that EBMUD, unlike California Oregon Power Co., is a public utility. The defendant in Calif. Oregon Power, was a public utility and a California corporation engaged in the production and sale of electricity. (Calif. Oregon Power, supra, 45 Cal.2d at p. 860.) The government agencies state that EBMUD is a Municipal Utility District, created by East Bay voters in 1923 under the Municipal Utility District Act (Cal. Publ. Util. Code, ch. 764, Div. 6). They assert that, as a publicly-owned utility, EBMUD is a “public entity” as defined in Code of Civil Procedure section 416.50, subdivision (b), and therefore cases such as Calif. Oregon Power that address the scope of the court’s jurisdiction over privately owned companies are inapplicable. We need not address this distinction because we conclude that the requested relief in Calif. Oregon Power did not impermissibly require the court to assume any functions of the legislative branch.
III. The Homeowners’ Pleading is Vague and Indefinite
We also affirm the lower court’s ruling on a completely independent basis: The injunction requested by the homeowners is impermissibly vague and indefinite in both its scope and the type of relief sought.
An injunction properly issues only where the right to be protected is clear, injury is impending and so immediately likely as only to be avoided by issuance of the injunction. (City of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal.App.3d 160, 179.) Further, when an injunction is sought, the “judicial remedy must be tailored to the harm at issue [citations],” and the “court should always strive for the least disruptive remedy adequate to its legitimate task.” (Butt v. State of California (1992) 4 Cal.4th 668, 695-696.)
Here, the trial court found that the homeowners’ FAC lacked any specificity regarding any injury impending. The court explained: “In their opposition plaintiffs argue that a private plaintiff may maintain a suit for abatement of nuisance.... While the court has no quarrel with this general proposition, it is an oversimplification of the issue here presented. The only definition contained in the instant complaint of the nuisance allegedly maintained by defendants is ‘property subject to sliding, leaking, and erosion.’ Furthermore, apart from the physical damages suffered [by] a very small sampling of putative class members, all of whom are pursuing their remedies in separate actions, the complaint only alleges generally that the alleged nuisance has ‘adversely affected’ plaintiffs’ properties, ‘pose[s] a threat to the health, well being, and comfortable enjoyment of plaintiffs... [and] threaten[s] the free use of their real property,’ and that the economic value of [plaintiffs’] individually owned properties will be substantially diminished.’ Plaintiffs’ focus lacks any apparent consideration of the pragmatic concepts that apply to injunctive relief generally. In other words, what, exactly, would the injunctive relief sought by plaintiffs look like?”
In their FAC, the homeowners alleged that they wanted an injunction to stop the government agencies from maintaining various sewers and water systems in a manner that constitutes a nuisance and/or in a manner that threatens the health and well being of the homeowners. Their request is vague and fails to provide what precisely they want the government agencies to do to prevent landslides in the future. Thus, unlike the situation in Center for Biological Diversity, supra, 166 Cal.App.4th 1349, where the court could easily determine whether there had been compliance with the injunction by looking to see whether wildlife were no longer being killed, there is no way for the court in the present case to determine whether any action of the government agencies cured the alleged nuisance. Landslides are not an ongoing activity; there may not be another landslide for many years. The complaint has provided no guidance as to how the court is to evaluate whether the government agencies have complied with the proposed injunction.
The government agencies also argue that injunctive relief is improper when it is predicated on the proponents’ fear of something that may happen in the future. (See, e.g., Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 748-750; Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1083-1086.) The homeowners, however, have already suffered an injury from the landslides and therefore the allegations are not based simply on a fear that something may happen in the future.
The homeowners argue that the government agencies “did not raise [an objection based on the requested injunctive relief lacking the requisite specificity] in the trial court and, thus, it should be deemed waived.” They cite Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, footnote 6, which articulates the basic proposition that new defenses not raised in the trial court may not be asserted for the first time on appeal. The government agencies in their demurrers did generally assert that the pleading was vague. Further, “we may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court.” (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252 & fn. 1.)
In response, the homeowners cite cases where the court did order an injunction. (See, e.g., Los Angeles I, supra, 83 Cal.App.2d 627; Los Angeles II, supra, 160 Cal.App.2d 494; City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 513 [court rejected argument that the terms of the injunction, which included a provision that it make “all arrangements necessary” to finance a plant or pay the City of Los Angeles, were uncertain when the injunction specified that the payment was to be based on a usage formula and payment was to be made to the City of Los Angeles].) As already explained, in Los Angeles I and Los Angeles II, the cities had violated the Health and Safety Code and the court could clearly determine whether the cities were complying with the injunction by assessing whether they were meeting the statutory requirements. (See Los Angeles, I, supra, at p. 646.) Here, there is no statute that dictates the minimal requirements necessary to abate the nuisance.
The homeowners assert that the injunction is not vague and what must be done is simple. They maintain that the government agencies simply need to “abate the nuisance by repairing the improvements, defects in some of which have been known for five decades.” The question remains: How will the court assess whether such improvements have been made? As already explained, landslides do not occur frequently and therefore no landslide may occur for years to come. Thus, what specific changes and/or repairs are the homeowners seeking? The complaint does not identify what repairs need to be made. Accordingly, we conclude that the request for an injunction is too vague and uncertain.
The government agencies also contend that we can affirm on the basis that the trial court may properly refuse the requested relief because it would require substantial court monitoring or judicial determinations involving complex subject matters outside the expertise of the judiciary. The homeowners responded that the trial court did not abstain from adjudicating the claims set forth in their FAC. We need not consider whether there is a third basis for affirming the judgment.
IV. Amending the Pleading
After sustaining the original demurrers against the homeowners’ complaint, the trial court permitted them to amend. They filed their FAC, but this pleading did not cure the defects of the original pleading. At the hearing on the demurrers on the FAC, the court asked the homeowners what further changes they would make if provided with another opportunity to amend their pleading. The court stated that their “response was limited to an offer to rearticulate their prayer for class-wide injunctive relief, without further factual allegations or different causes of action on either an individual or class-wide basis.” The court concluded that the homeowners’ “changes would not address the fundamental flaw in the complaint, i.e., that any attempt by the court to craft injunctive relief on a class-wide basis would necessarily impinge on the legislative arena.”
The record does not indicate that the homeowners asked for leave to amend in a specified manner. “[A]bsent an effective request for leave to amend in specified ways,” an abuse of discretion can be found “only if a potentially effective amendment were both apparent and consistent with the plaintiff’s theory of the case” (CASMI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542), and the pleader did not have “ ‘ “ a fair prior opportunity to correct the substantive defect.” ’ [Citations.]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1387.) Here, the homeowners had a fair opportunity to correct the defect and they failed to do so.
The homeowners may, for the first time on appeal, show the manner in which the complaint can be amended (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748), but to succeed on appeal, they must demonstrate not only the manner in which the complaint can be amended, but also how the amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) In their briefs in this court, the homeowners have not proposed any amendment to their FAC. Accordingly, we conclude that the lower court did not abuse its discretion in refusing to provide the homeowners with another opportunity to amend their pleading.
DISPOSITION
The judgment is affirmed. The homeowners are to pay the costs of appeal.
We concur: Haerle, Acting P.J., Richman, J.
These cases are not factually similar to the present case. They simply set forth the principle that the separation of powers doctrine does not apply unless one branch is assuming a core function of another branch. Indeed, other than set forth the facts and reasoning of these cases, the homeowners make little effort to analogize them to the facts of the present case.
The limits on the relief ordered by the court was again recognized by the court in Los Angeles II. The court stated: “Undoubtedly the court could not, in the subject action, indicate or prescribe the means or facilities that the city should use in treating and disposing of its sewage, nor enjoin the city from entering into contracts for the construction of facilities for the treatment and disposal of its sewage. [Citation.] On the other hand, however, it may enjoin the defendant city from, through the use of its facilities, creating a public nuisance endangering the health and comfort of the inhabitants of the plaintiff cities, and where as alleged here, the defendant has by its past acts, invaded the rights of the plaintiffs by the creation of a nuisance and now actually threatens by further acts, to aggravate that nuisance, the plaintiffs need not await the doing of the threatened acts, but may enjoin them.” (Los Angeles II, supra, 160 Cal.App.2d at pp. 509-510.)