Sea Lion Waste Not a Public Nuisance

Every so often an appellate decision from another area of law will catch my eye. This is one of those instances. It falls under the category of cases where you realize that there are problems that you had no idea people had until you read about them in a published opinion. Such as battling over sea lion poop.

Apparently La Jolla has a long and sordid history as the lavatory of migratory animals. Originally, flocks of birds were the primary culprit of the offending odors. The stench was bad enough for San Diego Mayor Bob Filner to issue an emergency finding in 2013 declaring bird odors from “cormorants, gulls, pigeons and pelicans” a public health hazard and contracted with an outside company to remove the bird excrement requiring remediation. That plan worked, but that’s when public enemy #2 joined the party. “[T]he sea lion population at La Jolla Cove has grown exponentially in recent years, resulting in significant waste buildup on the bluffs” that was bad enough to affect residents and business owners, who formed CONA (“Citizens for Odor Nuisance Abatement (CONA)”).

When the City didn’t treat sea lions with the same urgency as sea gulls, CONA finally decided that enough was enough and in January 2014 sued the City of San Diego for failing to eliminate “an alleged public nuisance caused by noxious sea lion waste odors permeating the picturesque La Jolla Cove.” The crux of their argument was that the City had built fences to prevent humans from accessing parts of the cove, making those areas overly sea lion friendly.

The fence proved a barrier to the City’s ability to dismiss the case at the pleading stage, as a fence is not a “natural condition” and therefore could be the cause of a public nuisance. However, the trial court subsequently granted the City’s motion for summary judgment, finding that pursuant to Civil Code 3482 (which declares that anything done “under the express authority of a statute can be deemed a nuisance”), the sea lions’ waste — or more to the point, the functioning of their digestive processes — was protected under the Marine Mammal Protection Act. Ergo, no nuisance.

The Court of Appeal affirmed. It took issue with the Court’s reasoning on Section 3482, pointing out that merely because sea lions were protected by statute “does not imply authorization for noxious odors emanating from sea lion waste buildup.” Indeed, there can be “circumstances in which a public entity’s
actions in connection with wild animals give rise to public nuisance liability” and, moreover, the City could be held liable for the odors if its actions were “a substantial factor in causing the alleged harm.” Here, however, summary judgment was proper because of lack of causation. The evidence presented showed that the “uncontrolled habitation” of sea lions on the bluffs was not caused by the fence, which had been there for decades (the sea lions were a more recent phenomenon). Also, the City’s environmental expert showed that the protection of local fisheries and the physical properties of the cove itself led to the sea lions’ prosperity and their decision to settle on the bluffs. These were “natural population dynamics.” And although the City perhaps could have scooped the poop, there was no legal requirement for it to act.

This is one of those cases where it would be hard to imagine a court ruling in favor of the plaintiff. As bad as the odors might be, what CONA really wanted was for the City to get the sea lions to pack up and relocate elsewhere. That’s probably not something a judge wants to direct a public entity to do, so absent some extreme negligence on the City’s part, the residents of La Jolla Cove were likely doomed from the start. You do have to feel for them somewhat, though — the stench must have been pretty bad for them to go to this amount of trouble.

On the plus side, perhaps this is the one place in California where home prices are going down…

Citizens for Odor Nuisance Abatement v. City of San Diego (Cal. Ct. App. 4th Dist. Feb. 9, 2017) 2017 S.O.S. 652, available at

9th Circuit Finds Arbitration Agreement Enforceable Where Unconscionable Clauses Are Severable

Plaintiff Poublon filed suit in state court against her employer, C.H. Robinson. Robinson removed to federal court. Likely anticipating a motion to compel arbitration, Poublon filed a First Amended Complaint, which added a claim on under the Private Attorneys General Act (PAGA), which are non-arbitrable under settled law because a PAGA claim is filed on behalf of the State of California.

The Ninth Circuit reversed the district court’s finding of unconscionability. First, the fact that the arbitration rules were not attached to the agreement and were simply incorporated by reference may, at most, gave rise to a “greater degree of procedural unconscionability” under Baltazar, 62 Cal. 4th at 1246. And the 9th Circuit further held that “parties may validly incorporate by reference into their contract the terms of another document” provided certain conditions are met.

Interestingly, the Court also disputed that language requiring Plaintiff’s signature “In consideration for Your continued employment” to not indicate that signing was a condition of employment, as it was merely “boilerplate.” This is a somewhat difficult holding, as contracts are supposed to mean what they say, boilerplate or not. Yet the Ninth Circuit did not find oppression here. Moreover, the existence of representative claim waivers, a carve-out allowing the company (but not Plaintiff) to go to court to seek injunctive relief, and a venue provision setting arbitration in Minnesota were not enough to tip the balance to substantive unconscionability. Those that were one-sided could be severed, preserving the remainder.

It seems to us that were this case decided by the California Court of Appeal, it would likely have been decided in favor of the employee given the number of arguably unconscionable or one-sided provisions. The Ninth Circuit, however, generally displays a greater degree of deference to the preemptive quality of the Federal Arbitration Act. This is likely a case that will be cited to by employer defendants for some time, particularly in federal court, while plaintiffs will look to distinguish it with inconsistent state appellate authority.

One thing is certain: The arbitration morass is unlikely to leave us anytime soon.

Poublon v. C.H. Robinson Company (9th Cir. Feb. 3, 2017)
2017 S.O.S. 15-55143,

Non-Severability Clause Dooms Arbitration Agreement

A case that was published two years after it was decided is an unusual turn of events, but that’s the situation in Montano v. Wet Seal. The holding is straightforward, and should be instructive to employers and their counsel drafting arbitration provisions: Do not under any circumstances include a non-severability clause. Here, the arbitration agreement barred arbitration of representative claims, including claims under the Labor Code Private Attorney Generals Act, contrary to the state’s public policy per Iskanian. This need not have been fatal except that the agreement also contained a non-severability clause that prevented the offending PAGA waiver from being severed: “In terms of severing the PAGA waiver provision, the paragraph in which it is contained states that if the waiver is found to be unenforceable for any reason by a court, then the entire arbitration agreement is void and unenforceable by the parties.” Under these circumstances, the Court of Appeal held that trial court correctly ruled that the agreement was unenforceable as to all of the plaintiff’s claims, not just PAGA. Bad news for Wet Seal.

The case also confirms another point — that unless there is a formal stay of proceedings, the parties can conduct discovery and the court can rule on a discovery motion at the same time it rules on the petition to compel arbitration. Wet Seal had objected to responding to discovery pending the hearing on its motion. Plaintiff moved to compel, and the court heard that motion immediately after denying the motion to compel arbitration: “When the court ruled on the discovery motion, the motion to compel arbitration was no longer pending, and the request for arbitration had been denied.” Moreover, regardless of the outcome of the motion to compel arbitration, the discovery motion was not moot in light of Montano’s intention to pursue her representative PAGA action, which could not be arbitrated. Plaintiff’s counsel in this case (Scott Cole & Associates) certainly deserve a round of applause on all counts.

Montano v. The Wet Seal Retail, Inc. (Cal. Ct. App., 2nd Dist. Jan. 30, 2017) 2017 S.O.S. 482. Click here for full opinion.