## Facts

- John and Cecilia Zipperer built a solar-heated home in Los Gatos, California in the mid-1980s after obtaining County building permits.
- In 1991, Santa Clara County acquired adjacent land for a park or parks reserve that contained a grove of several trees.
- The trees allegedly grew substantially, and by 1997 they shaded the Zipperers’ solar collectors, causing malfunction and reduced solar access.
- The Zipperers repeatedly complained to County officials and alleged they received verbal assurances the problem would be corrected, but the County did not trim or remove the trees.
- In April and May 2004, the Zipperers filed tort claims with the County, asserting the injury was continuing; the County rejected the claims.
- The Zipperers sued, alleging nuisance, trespass, negligence (including negligence per se based on the Solar Shade Control Act), and intentional infliction of emotional distress.
- Santa Clara County had adopted an ordinance exempting itself from the Solar Shade Control Act within its jurisdiction.

## Issues

1. Whether the County’s ordinance validly exempted it from the Solar Shade Control Act so that the Act imposed no duty on the County regarding shading from its trees.
2. Whether the plaintiffs could maintain tort claims, including negligence per se, despite the exemption and allegations that shading began before the exemption ordinance.
3. Whether the complaint’s defects could be cured by amendment such that demurrer should have been sustained with leave to amend.

## Decision

- The Court of Appeal affirmed the judgment of dismissal following the trial court’s order sustaining the County’s demurrer without leave to amend.
- The County’s exemption ordinance was valid under the Solar Shade Control Act’s express opt-out mechanism.
- Because the County was exempt, the Act did not impose a statutory duty on the County, defeating negligence-per-se allegations based on the Act.
- The court concluded no pleaded theory stated a viable cause of action against the County and there was no reasonable possibility of curing the defects by amendment.

## Legal Principles

- When a statute expressly authorizes local governments to exempt themselves by ordinance, a valid exemption removes the statute’s operative obligations and associated statutory duties within that jurisdiction.
- Negligence per se requires an applicable statutory duty; if the statute does not apply to the defendant due to a valid exemption, negligence per se cannot be predicated on that statute.
- Denial of leave to amend after sustaining a demurrer is proper when the plaintiff cannot show a reasonable possibility that amendment would cure the legal defects.

## Conclusion

The court held that Santa Clara County’s valid ordinance exempted it from the Solar Shade Control Act, leaving no statutory duty to support negligence per se and supporting dismissal of the action without leave to amend.


Zipperer v. County of Santa Clara, 133 Cal. App. 4th 1013 (Cal. Ct. App. 2005)