Oral arguments were delivered Jan. 10 to appeal the decision in the La Jolla-based Citizens for Odor Nuisance Abatement (CONA) vs. the City of San Diego lawsuit, but the attorney representing the appellants is pessimistic about the outcome.
The CONA suit seeks clean-up duty by the City to remove the pervasive sea lion excrement at La Jolla Cove, which is causing noxious odors that are detrimental to nearby restaurants and businesses. La Jolla Shores-based attorney Norm Blumenthal, who has been representing CONA since it filed the lawsuit in December 2013, argued the appeal of the trial court’s ruling, which granted the City summary judgment and dismissed the CONA case.
In March 2015, Superior Court Judge Timothy Taylor rejected CONA’s claims and ruled that the City doesn’t have a duty to control any nuisance caused by wild animals, and that the City isn’t the cause of the odor.
Speaking to the issues of causality and duty during the appeal, Blumenthal said that by having the fence along Coast Boulevard in place without a gate for a substantial period of time, the City created the sea lion sanctuary that started a chain of events that led to the current stench situation, and now, the City has a duty to be a good neighbor and reduce the nuisance posed to those nearby.
Since recording devices in the court room were prohibited, Blumenthal told La Jolla Light the day after the appeal hearing, “My impression is that the panel is very much in favor of what the trial court did (in 2015) and rather than look at the facts in a light most favorable to the party that did not win (which they are supposed to do in cases like this), they looked at it in terms of the facts most favorable to the City.
“In doing that, they dismissed the fact that up until 2013, after we filed our lawsuit, there was no gate in the fence. … Only after we filed the lawsuit did the City put the gate in to allow people on to the cliffs to discourage the congregation of sea lions there (which took place January 2014). They also ignored the fact that the City, like anybody else, has to be a good neighbor.
“If anyone else had a piece of property and had animal excrement on it that was offensive to their neighbors, the City would be the first one there to order them to remove the excrement. But because it’s the City, because it’s a government entity, they have the backing, in my opinion, of other government entities.”
During the oral arguments, which were held in downtown San Diego, Blumenthal referenced the California Supreme Court case, Milligan vs. City of Laguna Beach, which he said determines, “While the government has immunity for (when) people are injured on their property, the government does not have immunity for people that are injured on adjacent property for acts on their property.”
“That’s exactly what we have here,” he added. “We have an odor nuisance emanating from City property. No one is saying the sea lions are physically coming onto their property, but the odor does.”
Thus far, City efforts to reduce the noxious smells include the installation of the gate, which some have argued caused the sea lions to become acclimated to humans, and the spraying of a chemical agent that eliminates bird guano. However, with the sea lion waste, rather than bird droppings causing the stench, the CONA suit wants the City to clean up the sea lion excrement, too. The suit does not ask the City to remove the sea lions or discourage them from congregating, simply to clean up their mess.
Blumenthal said he is doubtful that the three-member appeal panel will hear CONA pleas and reverse the decision that the City is not responsible for the Cove odors, and therefore has no responsibility to clean up the excrement.
“My guess is that they’ve already written the decision, and judging from their hostility toward the citizens, in my opinion we’re going to lose. We should expect the decision in the next couple of weeks,” he said. “My expectation is that there is nothing left to do. When a court decides it is an Issue of Fact (aka a Discretionary Decision), it’s very difficult to overturn at a higher level.”
The only CONA recourse left is to petition local government for action, he said. “Mayor Kevin Faulconer has been in office for going on four years with this smell issue in place, and he has done nothing (to resolve it). It was said at the hearing this is a political issue, the only hope we have as citizens is to force the political issue. If they don’t get anything done in the near future … it will come down to recalls and replacements.”
Restauranteur George Hauer of George’s At the Cove — and president of CONA — said he would like to “see where the lawsuit goes” before jumping to a conclusion or opinion. “I don’t think anyone can predict what the City will do,” he said. “So right now, we’ll look at first things first.”
Due to its ocean-side location, George’s At The Cove, bears the brunt of the marine odors, which have been consistently nauseating for the last few summers.
Regardless of the outcome of the appeal process, Hauer said the “hazard” posed at The Cove needs to be resolved. “There might be some solution out there right now (beyond the lawsuit),” he said. “But I would hope the community and the City could come together and agree that having these animals take over the walkways, beach and the cliffs, is a hazard. The presence of the animals has caused events to be canceled, and there have been illnesses reported from lifeguards (allegedly) due to the fecal matter in the water. Most locals won’t swim there anymore. I would think the City would be acting to remove a health hazard, because that’s what this is.”