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C.A. Upholds Judgments Against Owner of Bonaventure
By a MetNews Staff Writer
The company that owns the Bonaventure Hotel in downtown Los Angeles yesterday failed in its challenge to adverse judgments in its action against Los Angeles County Metropolitan Transportation Authority and Regional Connector Constructors in connection with their activity in constructing a 1.9-mile tunnel subway connector tunnel downtown, causing it to incur an alleged $27.3 million loss of revenues.
A portion of that tunnel runs under Flower Street. The east side of the Bonaventure is on that street (with the west side being on Figueroa, and the full-block site being bounded by Fourth and Fifth streets).
The 75-page opinion was authored by Justice Maria E. Stratton of Div. Eight. It affirms judgments awarded the defendants by Los Angeles Superior Court Judge Richard L. Fruin Jr.
Today’s IV, owner of the Bonaventure, complained of unfairness to it created by the terms of a settlement agreement between the Metropolitan Transportation Authority (“Metro”) and FSP-South Flower Street Associates, LLC, owner of City National Plaza, a block south of the hotel. The plaintiff averred that the agreement provided for Metro “doing noisy work…at nights and on weekends” when those staying at the hotel “would be sleeping but when CNP’s office would be empty.”
Loss of Sleep
Nighttime construction, it contended “guaranteed that the Bonaventure’s guests would have to bear the brunt of the unreasonable construction impacts by having their sleep—the principal reason for staying at a hotel—disturbed.”
It elaborated that “noise level was so high, including from jackhammering, that the Bonaventure’s own managers staying at the hotel could not sleep, numerous guests complained and demanded to be moved, and guests had to be compensated for their discomfort.”
The pleading averred that the plaintiff lost a contract with an airline because the noise “interrupted flight crew sleep.” It emerged that this was a $3.3 million loss.
Entering into the settlement was “unreasonable,” Today’s IV alleged, in light of the prejudicial impact on it.
Closing off Flower Street at nights and on weekends, it protested, “resulted in unreasonably complex and sometimes irrational detours which made it difficult for hotel guests and event invitees to reach the Bonaventure.”
It also contended that “cut and cover” method of construction, enabling traffic to proceed on temporary street coverings, was unreasonable because tunneling would have been quicker and less noisy.
Causes of Action
The suit was against Metro for inverse condemnation and against both Metro and Regional Connector for nuisance. Fruin sustained a demurrer without leave to amend to the former cause of action and granted judgment on the pleadings as to the latter.
In her opinion affirming the judgments, Stratton said Fruin properly determined that the pleading did not state a cause of action for nuisance, pointing out that nowhere does the complaint “allege that the loss of business to the Bonaventure and loss of a lucrative airline contract is a harm suffered by appellant that outweighed the social utility of the Project constructing light rail lines,” adding:
“Nothing was provided as to whether the seriousness of the purported harm outweighs the social utility of the construction method utilized in building a major public transit project. The pleading is devoid of any allegation that compares or weighs the harm suffered versus social utility.”
Civil Code Section
She noted that Civil Code § 3482 provides:
“Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”
Construction of rail lines for public transit, she said, is authorized by Public Utilities Code §30631, reasoning:
“The burdens complained of by appellant (noise, dust, and access limitation) are unavoidable byproducts of the statutorily authorized acts.”
There is no evidence, she proclaimed, that Regional Connector is liable based on “collusion” with Metro to so arrange construction days and hour to cause Today’s IV harm.
Stratton also declared that inasmuch as there was no invasion of or damage to the hotel, “appellant necessarily relies upon the intangible intrusion theory” in support of its cause of action for inverse condemnation.
“To recover under this theory,” she explained, “appellant must be able to establish its property suffered from an intangible intrusion burdening the property in a way that is direct, substantial, and peculiar to the property itself.”
Today’s IV argued that there is impairment of access.
“The right of ingress and egress is not absolute,” Stratton responded. While the pleading asserts that “unreasonably complex and sometimes irrational detours...made it difficult for hotel guests and event invitees to reach the Bonaventure,” Stratton said:
“This is not enough. How difficult? What was the length of time by which a delay was caused? When did the detours or delays happen? How often?”
She said the pleading does not satisfy the requirement “that intrusion upon the right of access must result in a burden on the property that is direct, substantial, and peculiar to the property itself,” elaborating:
“Traffic detours and delays cannot be characterized as burdens that are direct and substantial such that it is not far removed from a direct physical intrusion.”
The pleading also complained of noise and dust. Stratton commented that this “does not sufficiently plead the intrusion suffered by the Bonaventure was “unique, special or peculiar” in comparison with other stakeholders in the area.”
There was no abuse of discretion in denying leave to amend, the presiding justice said, because Today’s IV failed to show what it could add that would render its cause of action viable.
The case is Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority, B306197.
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