Opinion
D057995 Super. Ct. No. 37-2009-00076957-CU-MC-SC
10-11-2011
LAWRENCE S. GRAF, Plaintiff and Appellant, v. N. WILLIAMS et al., Defendants and Respondents.?
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed.
Graf sued three police officers employed by the San Diego Unified Port District (Port District), after these officers gave him citations for illegally anchoring his boat at Fort Emory Cove in South San Diego Bay. Graf sought injunctive and declaratory relief and damages. The court sustained the officers' demurrer without leave to amend. Graf appeals. We affirm.
Graf identified these officers as: (1) Kirk Sanfilippo, the Port District's police chief; (2) "N. Williams"; and (3) "R. Rodriguez." We refer collectively to these defendants as the officers.
FACTUAL SUMMARY
Background
In 1987, the Port District adopted San Diego Unified Port District Code section 4.30, which prohibits anchoring or mooring a boat within the South San Diego Bay. A person violating this section is "guilty of a misdemeanor" and the vessel is subject to removal and impound by Port District officers. (§§ 4.30(d)(1), (d)(2), 8.25(a)(1).)
All further section references are to the San Diego Unified Port District Code, unless otherwise specified.
Shortly after section 4.30 was adopted, Graf received a misdemeanor citation for violating section 4.30 by anchoring his boat at Fort Emory Cove in the South San Diego Bay. On behalf of himself and other neighboring boat owners, Graf sued the Port District, contending section 4.30 was unconstitutional and void. In two published decisions, this court rejected Graf's arguments and upheld the validity and constitutionality of section 4.30. (Graf v. San Diego Unified Port Dist. (1992) 7 Cal.App.4th 1224 (Graf II); Graf v. San Diego Unified Port Dist. (1988) 205 Cal.App.3d 1189 (Graf I).)
In the first decision, we held the trial court properly denied Graf's preliminary injunction motion, rejecting Graf's argument that the Port District did not have the authority to adopt section 4.30. (Graf I, supra, 205 Cal.App.3d 1189.) We explained the federal government created concurrent state and federal jurisdiction for the establishment and regulation of anchorage in the San Diego Bay, and the California Legislature delegated certain regulatory powers over the San Diego Bay to the Port District. (Id. at pp. 1193-1194, 1195-1197.) We noted the federal government specifically "recognizes" the Port District's "right" to establish regulatory provisions pertaining to the anchorages and "to punish" violations of these regulations under the criminal law. (Id. at p. 1193.) We additionally rejected Graf's contention that the ordinance adopting section 4.30 was unconstitutional "as a total prohibition of use . . . ." (Graf I, at p. 1198.) We reasoned the ordinance does not prohibit all long-term anchorage in the bay, but rather implements a comprehensive master plan to designate where anchorages are to be permitted and where anchorages are to be prohibited. (Id. at pp. 1198-1200.)
In Graf II, we upheld the trial court's nonsuit after Graf presented his case-in-chief on remand. (Graf II, supra, 7 Cal.App.4th 1224.) We held the Port District acted within its jurisdiction by establishing mooring and anchorage areas and declaring certain other areas restricted from use for anchorage. (Id. at p. 1231.) We also rejected Graf's argument that section 4.30 violated his claimed constitutional right to anchor freely in the bay's navigable waters. (Id. at pp. 1231-1233.) We found that section 4.30 was reasonably related to protecting general navigation in the bay: "[The] Port District determined that with the growth of population and resultant pressures on the resources of the bay, problems were created by continuing to allow unrestricted anchorage. It then undertook a six-year study, which identified problems caused by allowing boaters to anchor at will. Among its findings, the study showed that anchorage in South San Diego Bay was dangerous to the vessels anchored there. A study of the tides and currents indicated there was very little water circulation in the south bay, which intensified pollution caused by the vessels anchored in that section of the bay. [Citation.] Determining that free anchorage was detrimental to overall development and public use of the bay, Port District then developed a plan which provided eight mooring or anchorage areas in the bay and prohibited free anchorage in other areas. [The] Ordinances . . . enacting the plan . . . were a proper exercise of Port District's regulatory authority and were reasonably related to preserving the public interest in the bay." (Id. at p. 1232.)
Graf's 2009 Complaint
Seventeen years after the Graf II decision, Graf, representing himself, filed a new complaint against the Port District's police chief and two Port District police officers. Graf alleged that on October 9 and 10, 2008, the officers cited him for unlawfully anchoring his boat in Fort Emory Cove in South San Diego Bay in violation of section 4.30, and that the officers threatened him with arrest and/or to impound his boat if he did not move the boat from this location. In an attached declaration, Graf claimed that several days later, defendant Sanfilippo stated that: " 'I promise that if you do not immediately leave the area, I will use these ordinances as the authority to arrest you and tow your boat to the impound yard.' " Graf claimed defendants' actions forced him to "constantly move his floating residence Cream Puff " and "seek refuge in the Pacific Ocean, where his disabled wife has, and will in the future, suffer physical and emotional damages by the experience of challenging the open ocean in a much too small boat that was designed for calmer waters."
Graf attached numerous exhibits to his complaint, including documents showing the district attorney dismissed the October 9 and 10 misdemeanor citations and declined to prosecute. Another exhibit indicated that Graf registered his boat with the federal government on July 10, 2008. Additionally, as Exhibit 10, Graf attached: (1) a United States Navy map, dated 1984; and (2) a document recorded in 1984 showing the California Legislature accepted the federal government's request for establishment of concurrent federal and state jurisdiction over various areas in San Diego County, including the South San Diego Bay, and accepted the federal government's request for partial "retrocession" (relinquishment) of these areas (1984 Retrocession Agreement).
Based on these allegations and exhibits, Graf claimed the officers' actions in enforcing section 4.30 were unconstitutional and unlawful because Fort Emory Cove in the South San Diego Bay is federal land not subject to the Port District's jurisdiction, and the threatened impound was inconsistent with California Harbors and Navigation Code section 500. Graft sought damages and various forms of equitable relief, including a declaration that: (1) "The lands and waters of Fort Emory Cove, its channel and its added lands, are not owned by the State, or the San Diego Port District, or any city or county, but, in fact, belong in fee, with exclusive jurisdiction, to the United States"; (2) "Graf and the general public are entitled to occupy and reside on the above-described lands and waters until . . . Congress objects to that use or Congress finds another military use for the area"; and (3) the officers should be ordered to refrain from enforcing section 4.30.
After unsuccessfully seeking to remove the action to federal court, the officers demurred to Graf's complaint, arguing the complaint failed to allege facts sufficient to constitute a cause of action. The officers asserted several arguments, including that Graf's claims had already been decided against him in the Graf I and Graf II decisions; there was no legal support for Graf's assertions that his constitutional rights were violated; and there was no legal support for Graf's claim that section 4.30 is preempted by federal law and/or that it conflicts with state law.
After a hearing, the court sustained the demurrer without leave to amend. The court found Graf's claims had been resolved against him in the Graf I and Graf II decisions, and Graf did not allege facts showing a valid cause of action based on subsequent events. The court further found Graf's reliance on the 1984 Navy Map and the 1984 Retrocession Agreement did not support his claims or establish a viable cause of action. The court also denied Graf's motion to strike the demurrer.
DISCUSSION
I. Standard of Review
In reviewing a judgment after a demurrer is sustained without leave to amend, a reviewing court must determine whether the complaint alleged facts sufficient to state a cause of action under any legal theory. (Koszdin v. State Comp. Ins. Fund (2010) 186 Cal.App.4th 480, 487.) In conducting this review, we assume the truth of the alleged facts and all facts that may be reasonably inferred from the allegations. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) However, we do not assume the truth of contentions, deductions or conclusions of fact or law. (Evans, supra, at p. 6.) We may consider documents subject to judicial notice and exhibits attached to the complaint. (See Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1101.) We exercise our own independent judgment as to whether a cause of action has been stated under any legal theory. Additionally, " 'it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.' " (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 403.)
II. The Res Judicata Doctrine Bars Graf's Claims
The essential foundation for each of Graf's claims is his allegation that section 4.30 cannot be validly enforced. This allegation is barred by res judicata principles.
The res judicata doctrine gives " 'conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.' " (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247, italics omitted.) This doctrine bars all later claims that were, or could have been, brought in the prior litigation. (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.) "If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable." (Ibid.; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 576.)
In Graf II, we held section 4.30 is a valid and enforceable regulation properly promulgated by the Port District, and rejected Graf's jurisdictional, constitutional and statutory challenges to the rule. (Graf II, supra, 7 Cal.App.4th at pp. 1228-1233.) In his current complaint, Graf asserts section 4.30 is unenforceable for similar reasons, including that it is beyond the Port District's jurisdiction, it is unconstitutional, it is preempted by federal law, and its enforcement conflicts with federal and state law. Each of these allegations was, or could have been, asserted in the Graf II litigation. Thus, Graf is barred from raising them in this action. "Matters decided by the Courts of Appeal are entitled to res judicata effect." (Beckstead v. International Industries, Inc. (1982) 127 Cal.App.3d 927, 934.)
In his opening appellate brief, Graf provides no basis for challenging the trial court's conclusion that the action is barred by the Graf I and Graf II decisions. In his reply brief, Graf argues the prior decisions are not binding because these decisions and the Port District ordinances have been "overturned by the mandatory federal rules for anchoring in San Diego Bay, as provided in the MSO Bulletin 6-97." In support, Graf cites to an exhibit attached to his complaint titled "MSO San Diego Safety Bulletin." This July 1997 bulletin, contained on United States Coast Guard letterhead, sets forth various safety and environmental rules applicable to the use of anchorages in San Diego Bay, Mission Bay, and Oceanside Harbor.
This document does not support Graf's claim that section 4.30 and/or the Graf decisions have been "overturned." As we held in Graf I, federal and state governments have "concurrent" jurisdiction to establish and enforce anchorages in San Diego Bay. (Graf I, supra, 205 Cal.App.3d at p. 1193; accord Barber v. State of Hawaii (9th Cir. 1994) 42 F.3d 1185, 1190; Beveridge v. Lewis (9th Cir. 1991) 939 F.2d 859, 864.) Thus, a local anchorage ordinance is preempted by federal law only to the extent it actually conflicts with federal law. (See Brown v. Mortensen (2011) 51 Cal.4th 1052, 1059-1060.) There is no conflict between the safety rules set forth in the Coast Guard bulletin and section 4.30's prohibition against anchoring or mooring in South San Diego Bay. Thus, section 4.30 remains valid and controlling, despite the subsequently promulgated federal safety rules.
We reach a similar conclusion with respect to Graf's reliance on Exhibit 10 to his complaint, which includes the 1984 Navy Map and the recorded 1984 Retrocession Agreement. The 1984 Navy Map appears to depict the Fort Emory Cove area as within the federal boundary line. In the 1984 Retrocession Agreement, the California Legislature accepted the federal government's retrocession (relinquishment) of partial jurisdiction over certain areas in San Diego County (including the South San Diego Bay and the Fort Emory Cove area) and accepted the federal government's establishment of "concurrent" jurisdiction over those areas. This document and the 1984 Navy Map were in existence at the time the Graf cases were decided and therefore they do not affect the binding nature of the Graf decisions. In any event, these documents support our prior conclusion that California has concurrent jurisdiction to regulate anchorages in the South San Diego Bay, including in the Fort Emory Cove area.
Graf argues the superior court engaged in "[o]bstruction of justice" by failing to include a complete copy of the 1984 Navy Map in the clerk's transcript. The argument is without merit. Graf acknowledges he was told by the superior court clerk's office that the office was not capable of reproducing maps larger than 8 1/2" x 11" and he should use his own copy of the map for appeal. He thereafter included a copy of that map (with highlights) with his reply brief. We have reviewed the map in deciding the appeal.
In the proceedings below, Graf argued the res judicata doctrine was inapplicable because the defendants here (the officers) are different parties than the defendant in the Graf I and Graf II litigation (the Port District). However, California law requires only substantial identity between the parties to establish the applicability of the res judicata doctrine. (See Servente v. Murray (1935) 10 Cal.App.2d 355, 361.) For purposes of res judicata, "generally a political subdivision and the officers, boards, commissions, agents and representatives thereof form but a single entity." (Ibid.)In this case, Graf's allegations against the officers pertain to actions committed within the course and scope of their employment with the Port District. Accordingly, there is a substantial identity between the defendant in the prior action and the defendants in this action such that res judicata is applicable here.
In any event, res judicata applies if the party against whom the doctrine is asserted was a party in the prior action even if the asserting party was not. (See Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812; Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1477.) Because Graf was a party in the prior action, he is bound by the prior judgment.
III. New Authorities Submitted at Oral Argument
During oral argument, Graf requested that we allow him to submit new factual documentation (including maps and photographs) and additional legal authorities in support of his argument that federal law now preempts the Port District from establishing and enforcing anchorage rules in the South San Diego Bay. Graf's reliance on these new authorities is untimely. Appellate courts generally do not consider new arguments and materials raised for the first time at oral argument. (See Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6; Dudley v. Department of Transportation (2001) 90 Cal.Appp.4th 255, 265 fn. 3; Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1311, fn. 4.)
In any event, even if we were to consider the new submissions, they do not support Graf's contentions pertaining to the federal preemption issue. After Graf I and Graf II, numerous courts have recognized that local communities have the authority to regulate anchorage and mooring and there is no federal preemption on this subject absent a specific conflicting federal law or regulation. (See Barber v. State of Hawaii, supra, 42 F.3d at p. 1190; see also Renard v. San Diego Unified Port Dist. (9th Cir. July 8, 2009, No. 08-55412) [2009 U.S. App. LEXIS 15059, nonpub. opn.]; Doucette v. San Diego Unified Port Dist. (9th Cir. Oct. 10, 1997, No. 95-56126) [1997 U.S. App. LEXIS 28476, nonpub. opn., p. *4] ["Anchorage and mooring is not a federally sensitive subject area . . . 'the Supreme Court's longstanding recognition that anchorage and mooring rules are best left to the states in the absence of compelling government interests to the contrary' "]; Beveridge v. Lewis, supra, 939 F.2d at p. 864; Vestal, Dueling with Boat Oars, Dragging Through Mooring Lines: Time for More Formal Resolution of Use Conflicts in States' Coastal Waters? (1999) 4 Ocean & Coastal L.J. 1, 20 [discussing a 1993 Coast Guard legal opinion "concluding that there is no 'clearly preemptive federal regulatory scheme' so 'states may regulate anchoring on waters under their jurisdiction' "].)
Graf's newly-cited authorities do not suggest a different conclusion. For example, Graf relies on 33 United States Code section 471, which permits the Secretary of Homeland Security to "define and establish" anchorage grounds for vessels in navigable waters of the United States. However, as the Ninth Circuit held in 1994, this statute "does not indicate that such regulation was to be exclusive or that in the absence of regulation . . . , no other regulation was permissible." (Barber v. State of Hawaii, supra, 42 F.3d at p. 1192.) Although this federal statute was amended after Barber to identify the Secretary of Homeland Security, instead of the Secretary of Transportation, as the agency empowered to author the regulations, this amendment did not affect the Barber court's conclusion that the statute does not preempt a state's authority to issue anchorage regulations.
Graf's reliance on 33 Code of Federal Regulations 110.90 is also misplaced. This regulation defines the anchorage grounds for vessels in San Diego Bay. However, the regulation recognizes local authority to regulate the anchorages, noting that "[m]ariners anchoring in these anchorages . . . should consult applicable local ordinances of the San Diego Unified Port District." (33 C.F.R. § 110.90.)
Graf also cites to 33 Code of Federal Regulations 1.05-1(e). Although the regulation prohibits the Coast Guard from "redelegat[ing]" certain authority regarding the establishment of anchorage grounds, this same prohibition was in existence for the past 40 years, and does not indicate a new intention for the federal government to preempt local government authority to establish anchorage regulations. (See 35 Fed.Reg. 8279 (May 27, 1970).)
Based on the language of this regulation, the redelegation prohibition appears to apply solely to transfers of authority within the federal government and not between the federal and state governments.
Graf's reliance on two United States Supreme Court decisions filed after Graf II is also unavailing because those decisions do not show the Port District's anchorage regulations are preempted. (See Alaska v. United States (2005) 545 U.S. 75 [holding federal government expressed its intent upon Alaska's statehood to retain title to certain submerged areas of Alaskan coast]; United States v. Locke (2000) 529 U.S. 89, 99 [Washington state's regulatory scheme governing oil tankers in Puget Sound preempted by federal law where federal law addressed same subject and had same purpose, and federal interest regarding oil tanker transport "has been manifest since the beginning of our Republic and is now well established"].)
Finally, Graf's citation to various maps, permits, and photographs do not show the court erred in granting the demurrer or that there is a reasonable possibility the defects in the complaint can be cured by an amendment. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
IV. Harbors and Navigation Code
In his complaint, Graf alleged the officers acted improperly in citing him for violating section 4.30 because his boat was recently "federally documented" with the United States Coast Guard and federally documented vessels "are exempt from prosecution for violation of local district ordinances." (Underscoring omitted.) Graf waived the issue on appeal because he did not reassert the argument in his appellate briefs.
Additionally, we find the argument is without merit. In support of this argument, Graf cited provisions of the Boaters Lien Law. (See Harb. & Nav. Code, § 500 et seq.) This state law governs procedures for enforcing a lien on a "vessel," defined to mean watercraft required to be registered with the Department of Motor Vehicles, but the definition excludes vessels having a "valid marine document issued by the United States." (Harb. & Nav. Code, § 501, subd. (e).) Even assuming Graf has a "valid marine document issued by the United States," this fact does not show the officers acted improperly. The complaint alleges the officers cited Graf for violating section 4.30 and threatened him with arrest and to impound the boat. There is no allegation that the Port District or the officers invoked or attempted to invoke the lien procedures under the Boaters Lien Law. Thus, this law is inapplicable to Graf's claims.
V. Additional Procedural Arguments Are Without Merit
Graf raises several additional procedural arguments in his appellate brief. We have examined each of these contentions, and find they are unsupported by the law. We discuss two of those arguments below.
First, Graf argues the court erred in granting the demurrer because defendants did not "timely file[ ] an answer" with the court. Graf states the court "abused its discretion" because it dismissed "the action before plaintiff had his rightful opportunity to file a notice of default . . . ." However, a defendant may file a demurrer as an alternative to answering the complaint. (See Code Civ. Proc., §§ 430.10, 585, subd. (a).) The demurrer is a functional equivalent to an answer for purposes of objecting to the complaint. When a demurrer is properly filed, a default occurs only if the court overrules the demurrer and the defendant then fails to timely file an answer. (See Code Civ. Proc., §§ 472a, subd. (b), 472b, 586, subd. (a)(2).) Where, as here, a court sustains a demurrer without leave to amend, the court must enter a judgment of dismissal and no default may be taken.
Graf also complains that he was not provided oral argument because defense counsel said only " 'Good Morning' " at the hearing. However, the record shows Graf had the opportunity to argue his points at the hearing before the court. The court asked Graf questions and discussed its tentative ruling with Graf, and permitted Graf to explain his concerns at the hearing. The fact that opposing counsel chose not to argue at this hearing does not show Graf's rights were violated. Graf had the full opportunity to present his arguments to the court orally and in writing.
DISPOSITION
Judgment affirmed. The parties to bear their own costs on appeal.
HALLER, Acting P. J. WE CONCUR:
O'ROURKE, J.
IRION, J.