The city of Santa Monica is immune to all claims brought against the seaside municipality by a local company that owns property on the Third Street Promenade and alleges rodents roaming in and around two topiaries sculpted as dinosaurs are a health threat to patrons, according to new court papers filed by Santa Monica against the assertions.
EJA Associates LP, which owns a commercial building in the 1300 block of Third Street Promenade, alleges in the Santa Monica Superior Court consolidated lawsuits brought last Aug. 17 and Oct. 15 against the city and Downtown Santa Monica Inc. that the decorative figures are a public nuisance.
But in court papers filed Feb. 1, lawyers for the Santa Monica City Attorney’s Office say the sculptures at issue represent one of three sets of metal-frame dinosaur topiaries covered in ivy and positioned on top of large planters located in the public right-of-way on the promenade. The sculptures and nearby water fountains are part of the promenade’s open-space landscaping design element and are considered a cultural arts resource for the city, according to the city’s court papers.
“In this instance the city is immune to nuisance liability … because its use of the topiary art sculptures as part of the promenade’s landscaping … are city acts expressly authorized by state law,” the city’s court papers state.
The property owner’s complaints of rodents and other pests and unsanitary trash areas in the parking structures were contemplated by the Legislature and as a matter of law they do not support a claim of nuisance against the city, according to the city’s court papers.
The “inescapable result” of operating a large outdoor pedestrian mall in an urban environment with landscaping that includes grass, plants and water running from fountains is that all of it may be attractive to pests and a homeless population, according to the city’s lawyers.
“As such, the city is immune to liability for nuisance and plaintiff’s nuisance claims fail as a matter of law,” the city’s lawyers maintain.
EJA, which leases storefronts to businesses that include Sunsations Travel Store and Hummus Bar Express, wants the city to strip off the ivy on one and the jasmine on the other and replace the underlying screening with a grating that would prevent the rodents from getting inside. The plaintiff also says the rodents should be poisoned or trapped.
The dinosaur topiaries have been in the promenade since the mid-1980s and are owned by the city and managed, operated and maintained by the city and DTSM, a private, nonprofit organization that works with the city to manage services and operations downtown, according to the lawsuits.
Last spring, EJA found out that the topiaries were “infested with swarms of rodents which were routinely running into, out of and around same in the early evening hours,” according to the company’s court papers, which say the rodents travel through wire screens forming the bodies of the topiaries that have holes large enough for them to enter and establish nests.
EJA maintains the rodents can spread disease to humans, noting they were the cause of the 14th century bubonic plague.