Opinion
9-3-1971
Ira NESTLE et al., Plaintiffs and Appellants, v. CITY OF SANTA MONICA, a municipal corporation, Defendant and Respondent. Civ. 36917.
Fadem & Kanner and Michael M. Berger, Los Angeles, for plaintiffs and appellants. Robert G. Cockins, Santa Monica, Brill, Hunt, Debuys & Burby, Los Angeles, Mitchell L. Lathrop, Pasadena, and Milnor E. Gleaves, Los Angeles, for defendant and respondent.
Ira NESTLE et al., Plaintiffs and Appellants,
v.
CITY OF SANTA MONICA, a municipal corporation, Defendant and Respondent.
Sept. 3, 1971.
As Modified on Denial of Rehearing Sept. 29, 1971.
For Opinion on Hearing, see 101 Cal.Rptr. 568, 496 P.2d 480.
Fadem & Kanner and Michael M. Berger, Los Angeles, for plaintiffs and appellants.
Robert G. Cockins, Santa Monica, Brill, Hunt, Debuys & Burby, Los Angeles, Mitchell L. Lathrop, Pasadena, and Milnor E. Gleaves, Los Angeles, for defendant and respondent.
THOMPSON, Associate Justice.
Appellants are 37 of over 230 plaintiffs seeking damages as the result of jet aircraft flights from and to the Santa Monica Airport. They have appealed from a judgment of the trial court holding that the respondent is not liable to them in inverse condemnation and that counts in their complaint seeking damages for nuisance, negligence, and zoning violation fail to state a cause of action.
Facts
Stated in the light most favorable to the findings of fact of the trial court, the record discloses the following. Santa Monica Airport (airport) is a general aviation airport located on 215 acres mainly in the City of Santa Monica (city) but partly in the City of Los Angeles and bounded on the northeast and southeast by Los Angeles. There is one runway lying generally in an east-west direction. The usual takeoff and landing direction is east to west by reason of a prevailing westerly wind.
The airport has existed since 1920. While it is located in what was originally a relatively isolated area, the surrounding land has been through the years densely improved with single-family residences. At the time pertinent to this litigation, the improved surrounding area commenced immediately across streets bordering the east and west sides of the airport and there was no clear zone at either end. The airport is owned and controlled by respondent city. Jet aircraft using the airport are, however, subject to the direction of the Federal Aviation Agency from the Los Angeles Airport tower.
The use of the airport has varied during the term of its existence. During the decade of the 1940's, it was heavily used by four-engine and other military aircraft, many of which were manufactured or modified at a Douglas Aircraft plant located adjoining the airport. Flights of larger aircraft apparently declined for a period in the late 1940's and early 1950's. In the mid-1950's, the airport was again heavily used by four-engine airplanes and by military aircraft. During most of its history, the airport has been the base of operations of many private aircraft and of flying schools. The latter activity accounts for many touch-and-go landings and takeoffs which increase the impact of the airport upon surrounding property
Through most of its recent history, the airport has been a source of irritation to its neighbors and has resulted in many complaints ranging from those pertaining to noise, to allegations of unsafe flying by private pilots, to expressions of irritation at late night landings and takeoffs, to charges of drunken flying. The first jet aircraft appeared at the airport in 1959 when it was used by the MS 760, a jet airplane manufactured in France. The first complaint by a near resident to the airport of excessive noise from jets was made in 1965 by a person who had previously made a similar complaint with respect to propellor-driven aircraft in 1958 and who had demanded in 1962 that the airport be closed. Complaints of jet noise, fumes, and vibration increased in 1965 and reached 17 in number in the latter part of 1966.
Western Commander, a distributor of Aero Commander aircraft, occupied leased premises at the airport from the early 1940's to the end of 1968. In 1965, Aero Commander added an executive jet aircraft to its line. Aero Commander jets were sold and serviced by Western Commander from its base at the airport. In the period pertinent to this litigation, Western Commander and its customers accounted for approximately 75 percent of jet flights to and from the airport. The remaining jet flights were primarily by Lear Jets. The Aero Commander jet and the Lear jet are similar executive aircraft and both are powered by two General Electric engines rated at 2800 pounds thrust. They produce a greater noise level than the MS 760. The number of jet takeoffs and landings ranged from none to five in any one day in the period from mid-1965 to the date of trial. The frequency of jet flights increased somewhat in the last half of 1966. In June 1967, there were 109 jet flights into and out of the airport, an average of 3.6 per day of which approximately one-half were landings and the other one-half takeoffs. In June 1968, there were 136 flights, an average of 4.4 per day with approximately the same percentages of takeoffs and landings. Since landings and takeoffs are generally in the same direction, any one neighboring property is generally exposed to one-half the total number of jet flights as landings and the other one-half as takeoffs. Jet aircraft at the airport used a lower power setting and hence generated slightly less noise when landing than when taking off. The total of takeoffs and landings of aircraft of all types from the airport was approximately 400,000 per year, an average of over 1000 per day. The engines of piston-driven aircraft are accelerated or 'run up' on the ground prior to commencement of the takeoff roll, generally at the end of the runway. Jet aircraft engines are not 'run up' in that sense. Those engines were, on occasion, however, accelerated on the ground near Western Commander's facility for the purpose of testing. Western Commander employed noise baffling techniques in that process.
Jet aircraft of the type using the airport are noisier than propellor-driven aircraft or turbo-prop aircraft which also use the airport. Respondent City of Santa Monica commissioned the firm of Bolt, Beraneck and Newman, Inc. (BB&N) to survey and report upon the impact of aircraft noise on the area surrounding the airport. Aircraft noise is measured in terms of decibels (dB), a measure of the physical impact of sound waves, perceived noise level decibels (PNdB), a measure which adds to dB psychological effects and considers frequency of sound waves as well as the degree of noise, and composite noise response (CNR), which adds the time at which a noise occurs and its duration to the formula used to determine PNdB and calculates a scale of anticipated community reaction to the exposure to noise. Both dB and PNdB are measured by a scale which increases exponentially. Thus, 110 dB is twice as loud as 100 dB and 110 PNdB is deemed to have twice the psychological impact of 100 PNdB. The science of computation of PNdB and CNR is still in a state of development. BB&N issued its report to respondent in late 1966. The report compares the noise levels produced by various types of aircraft and also compares noise levels in the vicinity of the airport in the mid-1950's with the noise level in 1966. It uses PNdB computed on the ground as the basis of comparison and develops CNR 'contours.' In an area about two blocks wide from the west end of the runway and extending about two and one-half blocks to the west, the PNdB level of executive jets using the airport is reported as 120 and that of four-engine aircrafts as 110 PNdB. In an area about twice as wide and extending the next three and one-half blocks westward, jets are reported to generate 115 PNdB and four-engine aircraft 110 PNdB. From that point westward and over an area again approximately twice as wide, four-engine aircraft and executive jets are given approximately the same measurement of 110 PNdD reducing to 105 PNdB as the takeoff path crosses the coastline and proceeds over the ocean. A similar series of measurements appears in the glide scope of the landing pattern to the east of the runway. For a distance of approximately three blocks to the east, jets are reported to produce 115 PNdB and four-engine propellor aircraft 105 PNdB. For the next five blocks to the east, the respective measurements are 110 and 105, and for the next five blocks 105 and 100. A comparison in the BB&N report of executive jet aircraft noise to that of aircraft in general, using the airport (as contrasted with four-engine aircraft), shows a higher PNdB of jets varying from 10-15 PNdB near the ends of the runway and reducing to the noise level of aircraft in general as the distance from the airport increases. A comparison of general noise levels at the airport in the mid-1950's with that in 1966 shows that in 1966 the area of the 115 PNdB noise level had advanced one block to the east with a corresponding increase in width, that the area of the 100 PNdB level had remained the same on the west because of the coastline but had increased in width and that it had spread approximately five blocks to the east.
On August 8, 1967, a number of plaintiffs, which by subsequent amendments rose to over 230, filed a complaint against the City of Santa Monica claiming damages alleged to have resulted from jet noise, vibration, and fumes. The complaint is framed in four counts, the first for inverse condemnation claiming damages to property, the second in nuisance claiming damages to property and person, the third in negligence, and the fourth based upon zoning violation. The court adopted a procedure by which the lawsuits of plaintiffs occupying ten of the affected parcels of residential property would be severed from the remaining causes of action and tried first while the remainder of the cases was held in abeyance. The properties occupied by plaintiffs, which are designated parcels 1 and 3 by the parties, are located in the City of Los Angeles in the area immediately to the east of the airport in which jets produce noise of 115 PNdB and four-engine aircraft noise of 105 PNdB. Parcels 4, 5, and 8 are located to the west of the airport in the area in which jets produce noise of 115 PNdB and four-engine aircraft 110 PNdB. Parcel 6 is located to the south of the west end of the airport in the area in which the noise level of both jets and four-engine piston aircraft is approximately 105 PNdB. Parcels 2 and 7 are located to the southwest of the airport in an area of about that same noise level. Parcel 8 is located to the west of the airport in an area in which jets produce a noise of 115 PNdB and four-engine propellor aircraft a level of 110 PNdB. Parcel 9 is located to the east of the airport in an area where the noise level from jet aircraft is 105 PNdB and the noise level for four-engine piston aircraft is 100 PNdB. Parcel 10 is located immediately to the west of the airport runway and is exposed to a noise level of 120 PNdB from jet aircraft and 110 PNdB from four-engine piston aircraft. Some of the parcels are directly under the traffic pattern and some are not.
The plaintiffs whose cases are before us suffered annoyance and emotional distress in varying degrees by reason of aircraft noise in general and jet noise in particular. There is conflicting evidence with respect to hearing loss by some of them but no finding on that subject.
Appellants and respondent agreed to a procedure by which the trial court, prior to the commencement of trial, would determine whether the second, third, and fourth counts of the complaint state a cause of action. The court reserved its ruling on count 2 (alleging nuisance) and held that the third and fourth counts (sounding in negligence and breach of zoning) fail to state a cause of action. It denied appellants' motion to amend their complaint as to those counts. The parties agreed that in count 1 of their complaint appellants sought damages and compensation in inverse condemnation only for the increased intrusion upon their rights caused by flights of jet aircraft. They stipulated that for the purpose of count 1, the date of July 1, 1966, should be used as 'the date of valuation' but that appellants would 'not be limited to showing noise as of that date' but could show noise 'as of the date of its peak, November 30 of that same year.' Appellants and respondent presented their evidence bearing upon the first cause of action as in an eminent domain proceeding. The evidence culminated in expert opinion on behalf of appellants that the value of the ten parcels of real property was a stated sum before July 1, and that each was of a stated lesser value after that date. Appellants' appraiser concluded that each of the subject parceis had suffered a diminution in value due to jet noise, fumes, and vibration. The amount of decrease ranges from 4 percent to 20 percent of the pre-July 1 value of the respective properties. Respondent's appraiser, utilizing the same general approach of determining values before and after July 1, concluded that none of the properties had been diminished in value as of that date by exposure to jet noise, fumes, and vibration.
After the parties had rested, the trial court found for respondent city on count 1 alleging inverse condemnation, concluding that appellants had failed to establish that their properties were diminished in value by jet flights. It concluded that count 2 alleging nuisance, upon which it had reserved its ruling as to legal sufficiency, fails to state a cause of action. The trial court entered its judgment for respondent on count 1 and dismissing counts 2, 3, and 4. This appeal followed.
Issues on Appeal
Appellants contend: (1) the evidence is not sufficient to support the judgment for respondent on count 1; (2) the trial court failed to find on material issues of fact; (3) the trial court erred in dismissing counts 2, 3, and 4, and in denying their motion to amend counts 3 and 4; (4) appellants were denied a fair trial by failure of respondent's counsel to comply with provisions of the pretrial order requiring an exchange of complete appraisal reports; (5) they were denied a fair trial by failures of respondent to answer interrogatories and to admit facts as required by requests for admissions; and (6) the trial court erred in not assessing costs against the successful respondent.
Inverse Condemnation
Appellants' first cause of action is in inverse condemnation and is based upon the principle that California Constitution, article I, section 14, requires compensation to the owner whose property is taken or damaged by governmental action in circumstances that are the equivalent of the exercise of the power of eminent domain.
The law applicable to the question of inverse condemnation in the context of airport noise is as of now in its early stages of development. The Supreme Court of the United States has dealt with the subject on two occasions. In United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, the Court held that the Fifth Amendment to the United States Constitution imposes a duty upon government to pay just compensation for aircraft noise damage. In Causby, the claimant's commercial chicken farm was located immediately adjacent to an airport used by government military aircraft and was subject to frequent low level overflights. The noise, nighttime glare, and vibration from the aircraft destroyed the use of the property as a commercial chicken operation. In upholding the right of the landowner to compensation, the Supreme Court in Causby discussed both the proposition that the military aircraft flew directly over the claimant's property and had thereby taken a flight easement and the concept that the flights constituted a 'direct and immediate interference with the enjoyment and use of the land.' (328 U.S. 256, 266, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206.) Six years after Causby, the Supreme Court of the United States held that a county operating an airport must pay compensation for property loss resulting from extreme noise caused by regular, commercial jet aircraft flights at low altitudes (from 30 to 300 feet) above the claimant's home which had made it wholly uninhabitable. (Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585; see discussion of Causby and Griggs in Van Alstyne, Just Compensation of Intangible Detriment, 16 UCLA L.Rev. 491, 523 et seq.) Lower federal courts have applied Causby and Griggs narrowly, limiting their rule of compensation to situations of direct overflight or total impairment of utility. (Batten v. United States, 306 F.2d 580 (10th Cir., 1962) cert. den. 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed.2d 502; Avery v. United States, 330 F.2d 640, 165 Ct.Cl. 357 (1964); Aaron v. United States, 311 F.2d 798, 160 Ct.Cl. 295 (1963); see 18 So.Carolina L. Rev. 320.)
While the restrictive view of Batten and other lower federal court decisions is followed by some state courts (Ferguson v. City of Keene, 108 N.H. 409, 238 A.2d 1; Bowling Green-Warren County Airport Board v. Long, Ky., 364 S.W.2d 167), other state decisions do not restrict the Causby-Griggs rule to situations of direct overflight and total impairment of use. In dealing with compensation for diminution in property values due to aircraft noise, in property values due to aircraft noise, the Supreme Court of Oregon states: 'The proper test to determine whether there has been a compensable invasion of the individual's property rights * * * is whether the interference with use and enjoyment is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to support a conclusion that the interference has reduced the fair market value of the plaintiff's land by a sum certain of money.' Oregon applies that test whether or not the diminution in value is the result of a direct overflight. (Thornburg v. Port of Portland, 244 Or. 69, 415 P.2d 750, 752.) The State of Washington has adopted a similar approach permitting compensation on the theory of inverse condemnation for specific and peculiar diminutions in property values caused by aircraft noise generated in other than a direct overflight. (Ackerman v. Port of Seattle, 55 Wash.2d 400, 348 P.2d 664; Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540.)
The matter at bench appears to be the first California case involving the problem of compensation for jet aircraft noise to reach an appellate court. The signposts, however, indicate that the California law is that expressed in Thornburg, Ackerman, and Martin rather than the restricted approach of Batten. In Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d 548, property owners in the vicinity of the San Diego Airport sought an injunction against airlines using that airport to prohibit annoying and dangerous flights in the traffic pattern 'within the airspace immediately above or in close proximity to the homes of residents of the Loma Portal area.' While denying injunctive relief for reasons of public policy, our Supreme Court said: 'Nothing herein is intended to be a determination of the rights of landowners who suffer from airplane annoyances to seek damages from the owners or operators of aircraft or to seek compensation from the owner or operator of an airport.' (61 Cal.2d 582, 590-591, 39 Cal.Rptr. 708, 714, 394 P.2d 548, 554). No trespassory limitation is included in the statement.
The significant language in Loma Portal contrasts with an earlier decision of our Supreme Court denying compensation on the theory of inverse condemnation for the diminution in value of property caused by noise and fumes from an adjacent freeway. (People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451; see also Lombardy v. Peter Kiewit Sons' Co., 266 Cal.App.2d 599, 72 Cal.Rptr. 240.) The theory underlying Symons is that not every diminution of value in private property caused by public improvement is compensable, and that the owner of property adjoining but not encroached upon by the improvement no less than the general public must suffer some forms of diminution without compensation. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 617, 37 P. 750, cited in Symons.) A decision of the United States Supreme Court supplies the formula for determining the dividing line between noncompensable diminution in value pursuant to the rule of Symons and the direct and peculiar intrusion upon the use and enjoyment of private property for which the Constitution requires compensation. In Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, the claimant owned land along the tracks of a railroad which had the power of eminent domain. A portion of the land lay near the mouth of a tunnel. He sued in inverse condemnation contending that his property had been damaged by two categories of conduct by the railroad: (1) by smoke, dust, cinders and vibration along the whole of the land which adjoined the track, and (2) by a concentrated blast of smoke, dust, and cinders which emitted from the mouth of the tunnel. The Supreme Court of the United States held that the first category of intrusion was not compensable because it represented a harm to property suffered in common by all persons along the track. The Court held, however, that damage to property value caused by the second category of harm, the blast from the tunnel, was compensable, reasoning that the harm was 'special and peculiar' and of a kind not suffered generally by those affected by the public enterprise. (233 U.S. 546, 557, 34 S.Ct. 654, 58 L.Ed. 1088; see Stoebuck, Condemnation by Nuisance, 71 Dick. L.Rev. 207, 213-214.) There is a close parallel between the two categories discussed by the Supreme Court in Richards and the Symons-Loma Portal dichotomy. The diminution in value to property adjoining a freeway caused by noise and fumes from the traffic flow is an intrusion suffered in common by all property along the freeway. The intrusion of aircraft noise upon property immediately adjoining an airport is special and peculiar and is not shared in common by the property of all persons who live along the airways.
It is significant also that the trespassory limitation upon inverse condemnation adopted in Batten leans heavily upon the language of the Fifth Amendment to the United States Constitution which requires compensation only when property is taken for public purposes. The governing language of article I, section 14 of the California Constitution is broader, requiring compensation when property is taken or damaged.
Our conclusion that inverse condemnation is an appropriate remedy for special and peculiar damage caused by aircraft noise and that the Batten limitation of overflight is not applicable in California does not dispose of the case at bench. Damage in the form of diminution in the value of property is a necessary element of a cause of action in inverse condemnation. The trial court found that none of appellants' properties was damaged. If the finding is supported by substantial evidence, appellants' first cause of action founders. We find that support in the record.
The case at bench is in a peculiar setting. By agreement of the parties, appellants seek compensation only for the damaging results of jet aircraft noise, fumes and vibration as of July 1, 1966, although the assessment of that compensation may take into account the frequency of jet flights in the last half of the year. The parties have, in effect, stipulated that for the purposes of this case, only those diminutions in the values of appellants' respective properties over and above those caused by the use of the airport by propellor and turbo-prop aircraft and by the use of jet aircraft prior to July 1, 1966, are compensable. They have presented their evidence attempting to show the values of the properties before and after July 1, 1966.
In that special context, there is substantial evidence to support the trial court's finding that there was no damage. An expert witness, a qualified real property appraiser, called by respondent so testified. The opinion of that witness is founded upon a substantial factual base. He supported his opinion with evidence of sales of comparable properties before and after the agreed valuation date and with interviews of a great number of persons who had been involved in the purchase or sale of real property (including the 'comparables') in the critical area. The expert applied property value trends based upon credible data and otherwise applied an acceptable method of appraisal. While appellants contend on appeal that respondent's appraiser failed to take into account the knowledge of various buyers of comparable properties of the effect of jet noise, that contention is not supported by the record. To the contrary, respondent's appraiser queried the persons interviewed by him concerning the effect of the airport and its use upon their decision to buy or sell and noted all comments concerning jets. Appellants complain of the process of selection of comparable sales used by respondent's appraiser and his method of computation of trends in real property values. At most, appellants have raised an issue going to the credibility of the expert's ultimate opinion but no reason why that opinion should be disregarded.
It is significant that in many respects the appraiser retained and called by appellants employed methods which appellants contend should result in our treating the opinion of value given by respondent's appraiser as totally without validity. In interviewing property owners and parties to property sales in the area, he emphasized an assumed 'damage from jets' and underplayed the impact of the airport in general. Appellants' appraiser was very selective in his choice of comparable transactions. He treated sales after July 1 which were at a relatively high price and therefore unfavorable to his opinion as 'uninformed,' while treating those at a low price as 'informed' and hence significant although the buyer was unaware of any specific problem of jet noise. His reconstruction of the trend of real property value is computed on a basis similar to that used by respondent's appraiser.
Since it is appellants' burden to establish damage, we cannot reverse the case at bench by refusing to accept respondent's appraisal opinion for reasons that would also require us to reject the opinion testimony on behalf of appellant. We thus conclude that substantial evidence supports the finding of the trial court that appellants' properties were not diminished in value by jet aircraft flights as of July 1, 1966, over and above the diminution in value, if any, of those properties caused by use of the airport by other forms of aircraft and the flights of jets prior to that date.
Appellants' argue that the record establishes as a matter of law that they are entitled to damage for inverse condemnation because 'uncontradicted evidence' establishes that the noise levels to which they were subjected are 'intolerable' thereby rendering their properties uninhabitable. The argument is without merit. While an expert called by appellants testified that the noise levels are 'intolerable,' he used the term not in its ordinary sense but as indicative of an unpleasant environment that should be corrected. As used by the expert, 'intolerable' and 'annoying' are essentially synonymous. Damages in inverse condemnation are limited to recovery of diminution in the value of property; they do not include recovery for annoyance or emotional distress. (People v. Symons, supra, 54 Cal.2d 855, 859, 9 Cal.Rptr. 363, 357 P.2d 451; Lombardy v. Peter Kiewit Sons' Co., 266 Cal.App.2d 599, 603, 72 Cal.Rptr. 240.)
Appellants contend that Code of Civil Procedure section 1239.3 permits recovery for discomfort and inconvenience where the inverse condemnation action is based upon airport noise. That contention misreads the statute upon which it relies. Section 1239.3 is part of Title VII of the Code of Civil Procedure which codifies the California law of eminent domain. Section 1239.3 states: 'Airspace above the surface of property or an air easement in such airspace may be acquired under this title by a county, city, port district, or airport district if such taking is necessary to provide an area in which excessive noise, vibration, discomfort, inconvenience or interference with the use and enjoyment of real property located adjacent to or in the vicinity of an airport and any reduction in the market value of real property by reason thereof will occur through the operation of aircraft to and from the airport.' It thus defines one public use which authorizes condemnation. The section does not purport to establish a special measure of compensation if the power is exercised. That measure remains the fair value of the property taken plus appropriate net severance damage (Code Civ. Proc. § 1248, also part of Title VII). The measure does not include the items of damage to which appellants contend they are entitled.
FINDINGS OF FACTS
Appellants requested a series of special findings of fact in several categories: (1) three special findings concerning the effect of jet aircraft noise upon emotional stability, upon intra-family relations, loss of sleep, and 'self-mutiliation'; (2) eleven findings concerning the nature of annoyance caused by jet and other aircraft noise and fumes, whether jet noise, fumes, and vibration obstruct the free use of the appellants' properties and the comfortable enjoyment of their 'lives and their property,' and whether jet use depreciated or damaged their properties; (3) the nature and extent of use of the airport by jet aircraft; and (4) the extent of the right of respondent to deny the use of the airport to jets.
Appellants contend that the trial court prejudicially erred in not finding on the issues to which the requests for special findings were directed. The contention misstates the record in a significant respect. The trial court did in fact find on the issue of depreciation and damage to appellants' properties albeit adversely to them. The other requests seek findings on irrelevant or evidentiary matters and hence were properly denied. Impairment of emotional stability and its symptoms is not directly in issue in a proceeding in inverse condemnation. Neither is annoyance or discomfort. The extent of jet usage of the airport is evidentiary as it bears upon the ultimate determination of the extent of diminution in value of appellants' properties at the stipulated date by reason of the stipulated cause but is not an ultimate fact on which a finding must be made. (See Witkin, California Procedure (1954 ed., 1967 supp.) Trial, § 112, and cases there cited.) Any deficiency in the failure to find on the right of respondent to deny the use of the airport to jets is nonprejudicial in view of the key finding that appellants' properties were not diminished in value.
Dismissal of Counts Two, Three, and Four
The second, third, and fourth counts of appellants' complaint purports to state causes of action in nuisance, negligence, and violation of zoning ordinance. Respondent asserted at pretrial that each of those counts fails to state a cause of action. The issue was not resolved at the formal pretrial hearings and is treated in the pretrial order as preserved for resolution by the trial court. In an in-chambers discussion immediately prior to trial, respondent argued that the three counts fail to state a cause of action because they show on their face that they are barred by the rule of governmental immunity to suit provided in Government Code section 815. Counsel for all parties stipulated that the trial court might rule in advance of trial upon the validity of the three purported causes of action. The trial court ruled that counts three and four fail to state a cause of action but reserved ruling upon count two until the completion of trial. Appellants' motion to amend counts three and four was denied. At the conclusion of trial, the second count was dismissed for failure to state a cause of action. The third and fourth counts were also dismissed.
Appellants contend that the trial court erred in ruling that each of the counts fails to state a cause of action and in denying their motion to amend counts three and four. We conclude that the court's ruling that no cause of action is stated is correct but that it erred prejudicially in denying leave to amend counts three and four.
Nuisance. The second count of appellant's complaint sounds in nuisance. It alleges the ownership and control of the airport by respondent city and that the noise, fumes, and vibration of the take-off and landing of jet aircraft 'have proximately caused injury to health, is indecent, offensive to the senses, an obstruction to the free use of property and interferes with the comfortable enjoyment of life and property of all [appellants].' The second cause of action seeks property damage and damage for 'personal injury, pain, suffering, and emotional distress.'
On this appeal, appellants contend that the trial court erred in determining that the second count of the complaint shows on its face that it is barred by the governmental immunity set forth in Government Code section 815, and for that reason fails to state a cause of action. They argue also that respondent waived its immunity by failing to assert it as an affirmative defense and that section 815, as here applied, is unconstitutional. We conclude that the trial court's ruling was correct.
Until the enactment of California's Tort Claims Act in 1963, governmental entities were liable for nuisance without regard to sovereign immunity. (Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 219, 11 Cal.Rptr. 89, 359 P.2d 457.) The 1963 legislation, however, changed what had been the prevailing rule. Government Code section 815 provides: 'Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. * * *' The Senate Legislative Comment on the enactment of section 815 (West, California Codes, Government Code § 815) states in pertinent part: 'This section abolishes all common law or judicially declared forms of liability for public entities, except such liability as may be required by the state or federal constitution, e. g., inverse condemnation. In the absence of a constitutional requirement public entities may be held liable only if a statute * * * is found declaring them to be liable. * * * In the following portions of this division, there are many sections providing for liability of governmental entities under specified conditions. In other codes there are a few provisions providing for the liability of governmental entities. * * * But there is no liability in the absence of a statute declaring such liability. For example, there is no section in this statute declaring that public entities are liable for nuisance, even though the California courts have previously held that public entities are subject to such liability even in the absence of statute. Under this statute, the right to recover damages for nuisance will have to be established under the provisions relating to dangerous conditions of public property or under some other statute that may be applicable to the situation. * * *' The Law Revision Commission Comment on Government Code sections 830 et seq., dealing with dangerous conditions of public property, states: 'Under the previous law, public entities were liable for maintaining a nuisance; but under this statute liability for conditions that would constitute a nuisance will have to be based on the somewhat more rigorous standards set forth in this chapter. Liability for such conditions cannot be imposed upon a nuisance theory because Section 815 provides public entities with immunity from liability unless liability is imposed by an enactment, and there is no enactment imposing liability on a nuisance theory. * * *'
The legislative intent that governmental liability on the theory of traditional nuisance has been abolished by Government Code section 815 seems clear. Language in the one California case which has considered the problem is indicative of a construction of the section in accord with the Legislative Comment and Law Revision Commission report. Our Supreme Court in Loma Portal Civic Club v. American Airlines, Inc., supra, 61 Cal.2d 582, 590-591, 39 Cal.Rptr. 708, 714, 394 P.2d 548, 554, while denying injunctive relief against commercial airlines on the theory of nuisance, stated: 'Nothing herein is intended to be a determination of the rights of landowners who suffer from airplane annoyances to seek damages from the owners or operators of aircraft or to seek compensation from the owner or operator of an airport.' The distinction between 'damages' recoverable against the owners or operators of aircraft and 'compensation' recoverable from the (there public) owner or operator of the airport is significant. 'Damages' are the means of recompense for nuisance. 'Compensation' is the term used in article I, section 14, of the California Constitution to define that to which a property owner is entitled if his property is taken for a public purpose. The protective language of our Supreme Court in Loma Portal thus seems a studied and precise effort to tailor the nature of recoupment permitted to the appropriate remedy. It is a strong indication that inverse condemnation and not nuisance is the appropriate remedy against a governmental entity operating an airport under the circumstances there present.
Appellants seek to avoid the bar of section 815 on three grounds. They argue: (1) that causes of action for damages resulting from a dangerous condition of public property and violation by the public entity of a duty imposed by a specific statute (here the zoning ordinance) have been preserved by Government Code section 830 et seq.; (2) that governmental immunity is an affirmative defense which is waived if not raised in the answer; and (3) to the extent that section 815 limits recovery to compensation recoverable in inverse condemnation, it violates the Fifth Amendment to the United States Constitution and article I, section 14 of the California Constitution.
Appellants' argument that a public entity is liable for a dangerous condition of its property while true (Gov.Code, § 830 et seq.) is inapplicable to appellants' second cause of action. No facts supporting liability on that theory are there pleaded. (Biltgen v. City of San Mateo, 127 Cal.App.2d 474, 274 P.2d 21.) The same is true of the zoning violation as applied to that cause of action.
We thus conclude that the trial court correctly determined that Government Code section 815 is applicable to appellants' second cause of action. There is, however, a significant problem, somehow ignored in the over 300 pages of appellants' opening and reply briefs. Appellants may well have been prejudiced by the reservation of the trial court's ruling on the applicability of the statutory bar until the conclusion of the trial. That procedure precluded appellants from amending the second cause of action in a fashion which could have rendered it legally sufficient, as for example by properly alleging that the claimed damage was caused by a dangerous condition of public property. Since we conclude in a later portion of this opinion that the case at bench must be reversed to permit such a theory to be alleged by an amendment to appellants' third cause of action and because appellants have not asserted the problem as a basis of appeal, we note but do not decide the issue.
We reject appellants' argument that respondent waived its right to assert the governmental immunity of Government Code section 815 by failing to plead it as an affirmative defense. While failure to plead governmental immunity is ordinarily deemed a waiver of that defense by the public entity, there is no waiver if the issue is subsequently introduced without objection. (Van Alstyne, 'Government Tort Liability' C.E.B., § 261.) Where the defense of governmental immunity appears from the face of the complaint it may be raised by demurrer as well as by affirmative allegations in an answer. (See Teall v. City of Cudahy, 60 Cal.2d 431, 435, 34 Cal.Rptr. 869, 386 P.2d 493; 2 Chadbourn, Grossman and Van Alstyne, California Pleading (1961) §§ 1262, 1270.) In the case at bench, the defense of governmental immunity as provided in Government Code section 815 appears from the face of the second cause of action of the complaint and was raised by the equivalent of a demurrer with appellants' consent. The second cause of action alleges ownership and control of the airport by a municipality and thus contains facts establishing governmental immunity to suit for nuisance. The parties agreed to a procedure by which the sufficiency of the second, third, and fourth causes of action of the complaint would be tested a against the immunity of section 815 by submission of the pleadings to the court prior to the commencement of trial. That procedure is the essential equivalent of a demurrer raising the defense. (3 Witkin, California Procedure (2d ed.), p. 2456, and cases there cited.)
Appellants' argument that Government Code section 815 as applied in the case at bench violates the provisions of the Fifth Amendment of the United States Constitution and article I, section 14 of the California Constitution is without substance. The United States Constitution prohibits the governmental taking of property without compensation and the California Constitution expands the prohibition to include the damaging of property. The constitutional safeguards are satisfied by the processes of inverse condemnation since neither document guarantees the right to be compensated for damages other than those to property. The property damage which appellants here seek on the theory of nuisance could, for all practical purposes, be recovered on the theory of inverse condemnation as alleged in appellants' first cause of action if any such damage occurred. (Stoebuck, Condemnation by Nuisance, 71 Dick.L.Rev. 207.) The governmental immunity of section 815 has been held constitutional as applied to matters other than those in inverse condemnation. (Hayes v. State of California, 231 Cal.App.2d 48, 41 Cal.Rptr. 502 hear. den.)
Negligence and Violation of Zoning. Appellants' third cause of action alleges that respondent was negligent in permitting the airport to be used for take-off and landing by jet aircraft. Their fourth cause of action alleges that a portion of the airport runway is located within an area of the City of Los Angeles zoned for single-family residential use and is in violation of the zoning ordinances of the City of Los Angeles. By agreement of the parties, the trial court ruled upon the sufficiency of the third and fourth causes of action prior to trial and held them legally insufficient. Appellants moved to amend 'Counts 3 and 4' to indicate that 'they are brought under the theories of Government Code sections 815.2, 815.6, 830, 834, 835 and Civil Code 3479.' The court denied the motion to amend, stating: 'I think that that area is preserved by Count 2 anyway, in the nuisance count, insofar as the plaintiff is concerned.'
The determination of the trial court that the third and fourth counts of the complaint fail to state a cause of action is correct. Neither alleges facts as opposed to conclusions which support a cause of action under the Tort Claims Act. (Biltgen v. City of San Mateo, 127 Cal.App.2d 474, 274 P.2d 21.) The denial of appellants' motion to amend those causes of action presents a much more serious problem. The trial court's stated reason for denying the amendment--that 'the area is preserved by Count 2' (nuisance)--is not in accord with precedent. Facts supporting theories of liability against a government entity sounding in dangerous condition of its property, statutory liability and vicarious liability must be stated in separate causes of action from a purported cause of action in nuisance and are not encompassed within the latter. (City of Burbank v. Superior Court, 231 Cal.App.2d 675, 684, 42 Cal.Rptr. 23.)
We are thus required to determine whether the exercise of the trial court's discretion in denying the right to amend is sustainable upon some other ground. We conclude, under the peculiar situation of the case at bench, that it is not.
Essentially, the problem which we here face was created when the case at bench was scheduled for trial without an adequate disposition of issues at pretrial. The pretrial order preserved as an issue the legal sufficiency of the complaint. In so doing, it in effect continued a fundamental part of the pretrial proceedings for determination immediately prior to trial. In that context, the trial judge was required, by Rule 212, subdivision (2), California Rules of Court, to consider an application for any necessary amendment of the pleadings. He was also required to exercise his discretion liberally in favor of permitting amendments to correct defective allegations. (Simons v. County of Kern, 234 Cal.App.2d 362, 44 Cal.Rptr. 338.) Thus, the trial court's denial of the right to amend must be overturned unless a substantial reason for its action appears in the record. We find no such reason here.
While the application to amend came late in the proceedings, its timing was due in part to the failure of the court to resolve the issue of the sufficiency of the pleadings at pretrial. More significantly, the delay in reaching the issue was caused in no small part by a disregard of counsel for respondent of the obligations imposed upon them by the requirements of civil discovery. The file is replete with unjustified refusals of respondent to answer many interrogatories and with evasive answers to innumerable others. If full and truthful answers had been given, the issue of the sufficiency of the pleadings would have been noted at a much earlier stage. The record thus fails to establish such inexcusable delay on the part of appellants in moving to amend their complaint as to justify the trial court's denial of their motion.
Respondent argues that the trial court's denial of appellants' request to amend must be sustained because the proposed amendments purport to state causes of action wholly new and different from those in the unamended complaint. The argument is without merit. The proposed amendments do no more than correct defective allegations of governmental liability and enlarge the legal theory of the complaint. They seek recovery upon the same general facts as those stated in the unamended complaint. The 'wholly new and different' bar to amendment is thus not present. (Witkin, California Procedure (2d ed.) 66, 1065-1082.)
There is another reason requiring that permission to amend be granted in the interest of justice. The case at bench reaches us in a unique fashion. Appellants are a small percentage of many plaintiffs in the same cause of action. By order of the trial court, their cases were tried first with the lawsuits of the remaining plaintiffs held in abeyance awaiting the result here. The record contains no stipulation that the results of the litigation here will be binding upon the other plaintiffs when the litigation is resumed by them. The case at bench is thus dispositive as to the claims of appellants but is, in a sense, advisory with respect to the claims of the other plaintiffs. Presumably, regardless of any holding in the case at bench sustaining the denial of appellants' right to amend, the trial court will be required to permit amendment of the complaint as it refers to the other plaintiffs. If we do not permit amendment here, appellants will be unfairly singled out from others in a similar position in the same litigation.
We thus conclude that the trial court erred in not permitting appellants to amend their complaint to attempt to allege facts constituting causes of action sounding in vicarious liability for actions of a governmental employee (Gov.Code, § 815.2), failure of a governmental entity to discharge a mandatory duty (Gov.Code, § 815.6), and dangerous condition of public property (Gov.Code, § 830 et seq.).
Respondent's Appraisal Report
The first pretrial conference order in the case at bench requires the parties to submit the appraisal reports upon which they intend to rely at the time of trial to the court so that those reports may be exchanged. The order requires that if a party subsequently discovers information which should have been submitted with the appraisal report, he must immediately supply the information to his adversary. The order states that no party may call an expert to testify to value unless the report of the witness has been submitted as required by the order.
The appraiser-witness called by respondent testified with respect to matter not included in his report submitted to the court for exchange. The excluded matter consists of a chart correlating comparable sales data which had been supplied in a form uncorrelated to the parcels involved in the litigation, descriptions of the interiors of the ten parcels, comparable sales information developed after the appraisal report was deposited in court, photographs of various properties, some graphs and charts, and information contained in marginal notes of the appraiser relating to the subjective effect of aircraft noise upon persons in the area. Counsel for appellants objected to the omissions. The correlation of comparable sales information, and the later-developed comparable sales data were delivered to him to aid his preparation for cross-examination of respondent's appraiser. The marginal notes had been obliterated from the report on the instructions of counsel for respondent. The deficiency in the report so created was not cured during the course of the trial.
Appellants' counsel, while objecting to the omissions from the report, made no notion to strike the testimony of the appraiser. When asked to state whether his clients' cause had been prejudiced by the omissions, he refused to take a position. He made no motion for mistrial but permitted the case to be submitted to the court for decision on the merits. Having now received an adverse decision, appellants contend that the judgment must be reversed because respondent's breach of the order denied them a fair trial.
The record supports appellants' contention that respondent failed to comply with the pretrial order. That order requires that full and complete appraisal reports be submitted for exchange and that they be kept current by delivery of information to the adverse party as new data is developed. The order did not permit counsel for respondent to engage in a process of selection, culling out data from the report to be sprung upon their opponents at a psychological moment during trial. (Swartzman v. Superior Court, 231 Cal.App.2d 195, 41 Cal.Rptr. 721; Regents of University of California v. Morris, 266 Cal.App.2d 616, 631, 72 Cal.Rptr. 406.)
We conclude, however, that while the record establishes conduct of respondent's counsel violating, probably by mistake, the pretrial order, appellants have waived their right to assert that misconduct as a ground of appeal by failing to move to strike the testimony of the appraiser. The provision of the pretrial order violated by respondent contains its own sanction in the form of a bar to testimony. The record indicates that counsel for appellants openly considered the possibility of invoking that sanction by a motion to strike but decided not to do so. We cannot permit counsel deliberately to refrain from pursuing a remedy for failure of pretrial compliance in the trial court and then to assert that failure as a basis of reversal on appeal. To do so would allow a party to gamble with the result of trial and to assert error on appeal only if he loses. The same comment is pertinent to the refusal of appellants' counsel to respond to the inquiry concerning the nature of prejudice to his clients resulting from noncompliance with the order. By deliberately refusing to respond and thereby precluding the court from taking corrective action at the time of trial, he has waived the right to assert on appeal that the misconduct of opposing counsel was prejudicial.
Discovery
Appellants contend that the case at bench must be reversed because of the failure of respondent properly to respond to interrogatories. They contend also that denials by respondent in response to requests for admissions served upon it were improper in a fashion which calls for reversal. The contentions are without merit. Appellants, while raising the point of improper response to interrogatories in the trial court in the form of extended conversation, at no point made an appropriate and timely motion for sanctions. As to some interrogatories, appellants failed to make a timely motion for further response. Not having moved properly for sanctions pursuant to Code of Civil Procedure section 2034, appellants cannot raise, on appeal, the failure of respondent to comply with the requirements of discovery.
The contention that the case at bench must be reversed because respondent put appellants to their proof by denying various requests for admissions is frivolous. Code of Civil Procedure section 2034, subdivision (c) establishes the sole sanction for a denial without good reason of requests for admissions. While, pursuant to that section, a party may recover his costs of proving unjustifiably denied facts by a proper proceeding in the trial court, he may not, on appeal, achieve a reversal because he was able to prove a fact necessary to his case with such ease that his opponent should have admitted its existence.
Costs
The judgment of the trial court as modified provides that each party shall bear its own costs. Appellants contend that the judgment is erroneous and that because the action at bench sounds in inverse condemnation they are entitled to costs. Since we reverse the case at bench to the extent that the judgment dismisses the third and fourth causes of action of the complaint, the contention has become premature. We, therefore do not decide the issue.
Disposition
The judgment for respondent on the first cause of action of the complaint and the judgment dismissing the second cause of action are affirmed. The judgment dismissing the third and fourth causes of action is reversed.
WOOD, P. J., and LILLIE, J., concur. --------------- 1 Because the results of the case at bench will influence but not determine the trailing cases, we discuss all legal issues raised although some of them are not determinative of the appeal at bench. 2 The state of the art in such that the number of law review articles on the subject probably exceeds the number of appellate decisions. See Stoebuck, Condemnation by Nuisance: The Airport Cases in Retrospect and Prospect, 71 Dick.L.Rev. 207 (1967); 7 Wake Forest L.Rev. 271 (1971); 43 So.Cal.L.Rev. 631 (1970); 51 Minn.L.Rev. 1087 (1967); 8 Nat. Resources J. 561 (1968); Huard, The Roar, The Whine, The Boom and The Law: Some Legal Concerns About the SST, 9 S.Clara Lawyer 189 (1969); Dygert, Economic Approach to Airport Noise, 30 J.Air L. 207 (1964); Van Alstyne, Just Compensation of Intangible Detriment: Criteria for Legislative Modifications in California, 16 UCLA L.Rev. 491 (1969); Alekshun, Aircraft Noise Law: A Technical Perspective, 55 ABAJ 740 (1969); Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wisc.L.Rev. 3; Port Noise Complaint, 6 Harv.Civ. Rights L.Rev. 61 (1970). 3 See IIoltz v. Superior Court, 3 Cal.3d 296, 303, 90 Cal.Rptr. 345, 349, 475 P.2d 441, 445, 'The decisive consideration [in applying article I, section 14] is whether the owner of the damaged property if uncompensated would contribute more than his proper share to the public undertaking.' 4 While the trial court made findings of fact on issues raised by the third and fourth counts, it cannot be said that those findings render the error in denial of permission to amend nonprejudicial. Those findings of necessity may have resulted from the strictures on evidence arising from the dismissal of the counts. We, of course, express no opinion on the legal sufficiency of appellants' as yet unfiled amended pleadings. Rather, we hold that appellants should be given the opportunity of filing legally sufficient pleadings if they can.