Thomas R. Curry, #50348
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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The Complaint filed by Kathleen R. ("Plaintiff") requests injunctive relief against the City of Livermore ("City") ". . . preventing it or its agents, servants, and employees from spending any public funds on the acquisition, use, and/or maintenance of any computer system connected to the Internet or World Wide Web for which it allows any person to access, display, and/or print obscene material or for which it allows minors to access, display, and/or print sexual material harmful to minors." (Complaint, pp. 5-6.) The Complaint also requests declaratory relief ". . . stating that the City of Livermore is legally liable for all future damage to plaintiffs children caused by the children accessing, acquiring, displaying, and/or printing sexual and other material harmful to minors on any library computer connected to the Internet or World Wide Web." (Id. at p.6.) These requests are based on causes of action alleging that the City is wasting public funds, creating a public nuisance and fostering potential damages claims by allowing minors to have unlimited access to the Internet.
The City has filed a Demurrer because the causes of action contained in the Complaint do not state facts sufficient to state a cause of action. (Code of Civ. Proc., § 430.10, subd. (e).) The Citys Demurrer does not concentrate on whether it is constitutional for a public library to provide limited or unlimited Internet access.1 The Citys Demurrer also does not concentrate on whether it is sound public policy for a public library to provide limited or unlimited Internet access. Instead, the Citys Demurrer only focuses on the procedural defects in the Complaint. These defects are numerous and incurable.
Not only are the causes of action contained in the Complaint preempted by the federal Communications Decency Act, they also ignore basic requirements of state law. Plaintiff [begin page 2] lacks standing to allege a waste of public funds or a public nuisance. Additionally, Plaintiffs request for declaratory relief and cause of action for "premises liability" are barred by the California Tort Claims Act.
While the Complaint, and the sexually explicit pictures contained in it, may be sufficient to make a social statement, they are not sufficient to state a legal cause of action. The Complaint should be dismissed without leave to amend.
A. State Law Relating to Municipal Libraries
The organization and operation of municipal libraries is governed by Education Code section 18900 et seq. These sections provide that the legislative body of a city may, by ordinance, establish a public library. (Id. at § 18900.) Public libraries must be managed by a five member library board (id. at §18910), which ". . . may make and enforce all rules, regulations, and bylaws necessary for the administration, government, and protection of the libraries under its management, and all the property belonging thereto." (Id. at § 18919.) Any person who violates any library rule, regulation or bylaw may be fined or excluded from the library. (Id. at § 18960.) Library boards may also purchase all necessary books, journals, publications and other materials. (Id. at § 18922.)
During the 1997-98 legislative session, a bill was introduced that would have added a new section to the Education Code to read:
(Assem. Bill No. 2350 (1997-1998 Reg. Sess.) (RJN, Exhibit B.)2 This bill was never enacted.
B. The Livermore Public Library
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Although a free library has existed in the City since 1896 (RJN, Exhibit C), the Livermore Public Library (the "Library") was established, pursuant to the above described state legislative grant of authority, in 1901 (RJN, Exhibit D). The Library Board of Trustees (the "Library Board") has adopted bylaws and conducts regular meetings which are noticed and open to the public pursuant to the Ralph M. Brown Act (Gov. Code, § 54950 et seq.). (RJN, Exhibit E.)
At a noticed public meeting on February 27, 1997 (RJN, Exhibit F), the Library Board unanimously adopted a policy governing the use of Internet access at the Library entitled the "Access to Electronic Information, Services and Networks Policy" (the "Librarys Internet Policy"). (RJN, Exhibit G.) The Librarys Internet Policy ". . . recognizes that freedom of speech and expression are central to the successful maintenance of a free society . . ." and provides that "Internet access is available for all users of the Livermore Public Library" including minors. At the same time, the Librarys Internet Policy states the following:
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The Librarys Internet Policy also contains a list of unacceptable uses, which include "[u]sing resources for other than educational, informational and recreational purposes" and "[u]sing resources for unauthorized, illegal or unethical purposes." (Id.)
The Communications Decency Act of 1996 (the "Act"), part of the Telecommunications Act of 1996, was signed into law and became effective on February 8, 1996. The Act represents an initial federal effort to define the appropriate scope of federal regulation of the Internet. Section 230 of the Act preempts any state law cause of action that would make an Internet service provider liable for information originating with a third-party. (47 U.S.C. § 230; see Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, certiorari denied June 22, 1998, ___ U.S. ___ (Mem), 1998 WL 111522; and Blumenthal v. Drudge (D.D.C. 1998) 992 F.Supp. 44.)3
Federal preemption of state law under the Supremacy Clause (U.S. Const., art. VI, cl. 2) can occur in three circumstances : (1) where ". . . Congress has made its intent known through explicit statutory language . . ."; (2) where Congress ". . . regulates conduct in a field that Congress intended the Federal Government to occupy exclusively."; and (3) where state law ". . . actually conflicts with federal law." (English v. General Electric Co. (1990) 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65.)
By the plain language of Section 230, the type of preemption intended by Congress in the section is actual or direct conflict preemption. Subdivision (d) (3) of Section 230 provides, in relevant part, that "[n]o cause of action may be brought and no liability may be imposed under any [begin page 5] State or local law that is inconsistent with this section." Subdivision (c) (1) of Section 230 provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Read together, these two subdivisions preempt all causes of action contained in the Complaint - - all causes of action contained in the complaint treat the provider of an interactive computer service as a publisher or speaker of obscene or harmful information.
Subdivision (d) (3) of Section 230 extends the scope of preemption to both "liability" and "causes of action" that may be stated under state law. Therefore, it makes no difference in this case that Plaintiff is requesting equitable relief in the form of an injunction rather than damages,4 because Plaintiffs requests for injunctive relief are all based on causes of action. The distinction between causes of action and injunctive relief is an important one: while a cause of action consists of the tort or other wrongful act pleaded in the Complaint, an injunction is an equitable remedy available to a person aggrieved by the torts or other wrongful acts. (See 5 Witkin Cal. Proc. (4th ed. 1997) Pleading, § 781, p. 238; § 778, p. 235.) "Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted [citation]. (Emphasis added.)" (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.)
2. The Library is a Provider of an Interactive Computer Service.
The allegations in this case relate to a public library. Under Section 230, a public library can be a provider of an "interactive computer service." Subdivision (e) (2) of Section 230 defines the term "interactive computer service " to mean ". . . any information service, system, or access software provider that provides or enables computer access by multiple users to a computer [begin page 6] server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. (Emphasis added.)" Here, the Library clearly falls within this definition.
Because the causes of action contained in the Complaint allege that the City is committing a tortious or wrongful act by distributing, or maintaining computers and services which distribute, obscene and harmful material, they treat the Library as a ". . . publisher or speaker of . . . information provided by another information content provider." (47 U.S.C.A. § 230, subd. (C) (1).) The causes of action therefore are preempted by Section 230.
In Zeran v. America Online, Inc., supra, 129 F.3d 327, the court squarely addressed the preemptive scope of Section 230. In that case, the plaintiff filed suit against a commercial interactive computer service provider alleging that the provider unreasonably and negligently delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter. Holding that the plaintiffs claims were barred by Section 230, the Zeran court concluded that "[b]y its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." (Id. at p. 330.) The court, relying on the express language of Section 230, went on to point out the Congressional purpose in establishing this statutory immunity:
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(Id. at pp.330-331.)
The plaintiff in Zeran attempted to avoid the preemptive scope of Section 230 by arguing that the section did not apply to "distributors" of offensive material, but only to "publishers of such material. (Id. at pp. 331-334.) The court unequivocally disagreed, finding that legally "distributor" and "publisher" liability were indistinguishable, and that to hold otherwise would be contrary to the clear intent of Congress in enacting Section 230. (Id.)
All causes of action contained in the Complaint attempt to make the City liable for material that originates with a third-party. Immunity from this type of liability is exactly what Congress had in mind when it enacted Section 230.
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Plaintiffs second and third causes of action request declaratory relief ". . . stating that the City of Livermore is legally liable for all future damage to plaintiffs children caused by her children accessing, acquiring, displaying, and/or printing sexual and other material harmful to minors on any library computer connected to the Internet or World Wide Web." (Complaint, pp. 4-5.)
This request for prospective damages is precluded by the California Tort Claims Act (the "Tort Claims Act") (Gov. Code, § 810 et seq.). The Tort Claims Act makes government tort liability dependant on statute. (Id. at § 815(a) ["[e]xcept as otherwise provided by statute, [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."].) Under the Tort Claims Act, an action for "money or damages" may not be maintained against the City unless a written claim has first been timely presented to the City and rejected in whole or in part. (Id. at §§ 905, 905.2, 945.4.) Compliance with this procedure must be alleged by Plaintiff to state a cause of action; failure to do so is subject to demurrer. (See Dujardin v. Ventura County General Hospital (1977) 69 Cal.App.3d 350, 355; Chase v. State (1977) 67 Cal.App.3d 808, 812.) Here, the Complaint fails to properly allege compliance with the claims-filing procedures of the Tort Claims Act.5
Furthermore, recovery under the Tort Claims Act is limited to actual injury suffered before the commencement of the suit. Prospective damages cannot be recovered. (See Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 869.)
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Plaintiffs first cause of action alleges that "[u]sing public funds to access, display, and/or prints [sic] matter harmful to minors at the request of or for the use of a minor is a waste of public funds." (Complaint, p. 4.)
This cause of action is based on Code of Civil Procedure section 526a, which provides in relevant part that:
The explicit language of section 526a and case law make it clear that, in order to properly allege standing under the section, Plaintiff must allege that she: (a) is a resident of the City; and (b) has been assessed for and is liable to pay, or, within one year before the commencement of the action, has paid property taxes on real property located in the City. (Cornelius v. Los Angeles County Metropolitan Transportation Authority (1996) 49 Cal.App.4th 1761, 1774.) Plaintiff only alleges that she is a "taxpayer." (Complaint, p. 2, line 1.) This is not sufficient to state a cause of action under section 526a.
In Cornelius, supra, 49 Cal.App.4th 1761, the court conclusively set forth the requirement that a plaintiff must allege the payment of property taxes in order to have standing under Code of Civil Procedure section 526a. There, the plaintiff argued that he established sufficient standing as a taxpayer under section 526a because he paid state income taxes as well as gasoline taxes and sales taxes when he was in Los Angeles County. (Id. at p. 1774.) The court disagreed, recognizing that gasoline and sales taxes are generally construed to be taxes on the retailer, not the consumer. (Id. at pp. 1777-1778.) As for the defendants state income tax argument, the [begin page 10] court aptly stated that it did not believe that ". . . it would be sound public policy to permit the haphazard initiation of lawsuits against local public agencies based only on the payment of state income taxes." (Id. at pp. 1778-1779.) In Cornelius, the court found as a matter of law that the defendant had no standing under section 526a. (Id. at p.1780.)
Notwithstanding the failure to meet the minimum prerequisites of section 526a, this cause of action is subject to demurrer for another very simple reason: if anyone is wasting public funds, as alleged in the Complaint, it is Plaintiffs son - - not the City. As was pointed out by the United States Supreme Court in Reno, supra, ___ U.S. ___, 117 S.Ct. 2329, 138 L.Ed.2d 874, it is the user of the Internet who decides what to read or view, not the provider of the computer or the service:
(Fns. omitted.) (Id. at 117 S.Ct. 2336.)
By bringing this lawsuit, Plaintiff continues the waste of public funds her son started.
Plaintiffs second cause of action alleges that "[a]llowing minors to use the computers to access, acquire, display, and/or print sexual and other material harmful to minors is a public nuisance." (Complaint, p. 4.)
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Under the facts alleged, Plaintiff has no standing to sue for a public nuisance.6 The California Supreme Court recently provided a rather exhaustive discussion of public nuisance law in People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1102, 60 Cal.Rptr.2d 277. Civil Code section 3493 specifically provides that "[a] private person may maintain an action for public nuisance, if it is specially injurious to himself, but not otherwise." In applying section 3493 to a particular case, the first thing that must be determined is whether the public nuisance alleged is also a private nuisance to the plaintiff:
(Venuto v. Owens-Corning Fiberglas Corporation (1971) 22 Cal.App.3d 116,124.)
Plaintiff has not properly alleged a private nuisance because she has not alleged any interference with the use and enjoyment of her property. In fact, there are no allegations in the Complaint that Plaintiff owns property, much less property within or adjacent to the City. Absent such an allegation, Plaintiff cannot claim that providing unfettered Internet access to minors is a private nuisance to her. (See Id. At pp. 124-125; Koll-Irvine Center Property Owners [begin page 12] Association v. County of Orange (1994) 24 Cal.App.4th 1036, 1041; Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.)
Nor has Plaintiff alleged that she has suffered damages different in kind from the general public. The Library is open to the public and Internet access is available to all users of the Library. To the extent that Plaintiff is alleging that the Librarys Internet Policy is harmful, it is harmful not only to Plaintiff and her son, but to the community in general. There can be no special damages alleged here, and therefore no cause of action stated.
Even if Plaintiff had standing to bring a public nuisance action, such action would be precluded by Civil Code section 3482, which bars an action for nuisance against a public entity where the alleged wrongful acts are expressly authorized by statute. The Librarys Internet Policy, having been adopted by the Library Board within the scope of authority conferred upon it by the Legislature (Ed. Code, § 18919), has the same force within the City as a statute passed by the Legislature has throughout the state. (Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 370.)
The application of Civil Code section 3482 was discussed in some detail in Friends of H Street v. City of Sacramento, supra, 20 Cal.App.4th 152. In that case, the plaintiffs sought injunctive relief against the city to reduce traffic speed on their street on the ground that the condition of the street constituted a public nuisance. (Id. at pp. 156-159.) The court held that the trial court properly sustained the Citys demurrer without leave to amend on the basis that the complaint was barred by Civil Code section 3482. This holding was based on the courts finding that:
(Id. at p. 163.)
The court in Friends of H Street also refused to remedy the Citys alleged inaction in [begin page 13] solving the traffic problem through injunctive relief based on separation of powers principles, citing Myers v. English (1858) 9 Cal. 341:
(Friends of H Street v. City of Sacramento, supra, 20 Cal.App.4th at p. 165.)
Here, Plaintiff is not asking the court to declare the Librarys Internet Policy unconstitutional. Rather, in effect, Plaintiff is asking the court to enjoin the Library from providing Internet access altogether because she is dissatisfied with the inaction of the Legislature and the Library Board.7 The Librarys Internet Policy is within the authority conferred upon the Library Board by the Legislature. The Library Board has been given the authority to declare public policy and has done so. This policy is not unconstitutional and may not be judicially amended.
Plaintiffs third cause of action alleges that the library premises are unsafe for children and requests injunctive relief to prevent a multiplicity of damage suits. (Complaint, p. 5.)
As stated above, the Tort Claims Act makes government tort liability dependent on statute. (See discussion, ante, at pp. 7-8; Gov. Code § 815, subd. (a).) What Plaintiff terms [begin page 14] "premises liability" is referred to in the Tort Claims Act as liability for a dangerous condition of public property, the limitations of which are set forth in Government Code section 835:
The term "dangerous condition" is defined in subdivision (a) of section 830 of the Government Code as ". . . a condition of property that creates a substantial (as distinguished form a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used."
To the extent Plaintiff is arguing that providing unfettered Internet access to minors is a dangerous condition of public property because it increases the possibility that minors will be exposed to obscene and harmful material posted on the Internet by third-parties, her argument is precluded by the Tort Claims Act. It is settled law that a public entity cannot be held liable for a dangerous condition of public property based on third-party conduct alone, whether that conduct is criminal or merely negligent. (See Hayes v. State of California (1974) 11 Cal.3d 469, 472.) Instead, in order for liability to be imposed, the third-party conduct must be coupled with a physical defect of the property. (Id., see also State v. Superior Court (Young) (1995) 32 Cal.App.4th 325, 327-328 [Holding that demurrer should have been sustained without leave to amend because a public entity was not liable for injuries to a plaintiff who was thrown from her horse when a bicyclist came speeding down the same state park trail.]; Lompoc Unified School District v. Superior Court (1993) 20 Cal.App.4th 1688, 1696-1697 [Existence of football field, [begin page 15] unscreened from passing motorists, does not constitute a dangerous condition merely because a motorists attention may be drawn to the activity on the premises.]; Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 291-294 [Lack of supervision of school dormitory where alcoholic beverages were consumed is not dangerous condition of public property.]
Plaintiff has not, and cannot, allege that the Librarys computers are physically defective. The Tort Claims Act precludes any suit for damages. Therefore, injunctive relief is not necessary, or available, to prevent a multiplicity of lawsuits. (See Code of Civ. Proc., § 526, subd. (a) (6).)
Both federal and state law require that the Complaint in this case be dismissed without leave to amend. On the federal level, Congress has made a clear policy choice to immunize the City and other Internet service providers from lawsuits such as this. On the state level, the Legislature and the courts have established basic requirements for bringing taxpayer, public nuisance and tort related lawsuits against a city. Plaintiffs Complaint ignores these controlling laws.