Filed 8/23/17 City of Santa Ana v. Burcaw CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
|
CITY OF SANTA ANA,
Plaintiff and Respondent;
v.
MARK BURCAW,
Defendant and Appellant.
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G052169
(Super. Ct. No. 30-2012-00567205)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, James J. Di Cesare, Judge. Affirmed.
Rallo Law Firm, Arthur J. Travieso and Tin Kim Westen for Defendant and Appellant.
Sonia R. Carvalho, City Attorney, Sandra Flores-Schwarzmann and Tamara Bogosian, Assistant City Attorneys for Plaintiff and Respondent.
* * *
Mark Burcaw appeals from a civil judgment granting a permanent injunction enjoining him personally and as managing partner of Tap Group, LLC (Tap), from leasing the subject real property (the property) to any medical marijuana dispensary not having a business license or a certificate of occupancy or not meeting the zoning requirements. He contends the judgment should be reversed because he did not perform any activity to be enjoined and there is no legal basis to enjoin a property manager. We disagree and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND[1]
Because the trial court’s factual findings are not in dispute, we derive the factual background largely from the trial court’s statement of decision. The parties stipulated that Burcaw originally owned the property as his sole and separate property. In 2008, Burcaw transferred the property to Tap. Burcaw is the managing member of Tap and his wife and two adult children are the other members. Tap leased several units on the property to operators of medical marijuana dispensaries. Burcaw either personally collected the rent or had two of his employees do so.
In 2012, the City of Santa Ana (City) brought this nuisance action against Burcaw, individually and in his capacity as managing director of Tap, and five tenants (units 104, 107, 205, 208 and 209).[2] The complaint alleged two causes of action: (1) allowing or permitting a public nuisance to exist under Santa Ana Municipal Code (SAMC) section 1-13; and (2) nuisance (Civ. Code, §§ 3479, 3480).[3] Both causes of action sought a permanent injunction.
Following a bench trial, the trial court found the dispensaries constituted a public nuisance and Burcaw had shown “a pattern of willingness . . . to rent to medical marijuana dispensaries that do not conform to” City codes. It further determined Burcaw could be held responsible for the nuisance as the managing partner of Tap. Accordingly, the court granted the City a permanent injunction against Burcaw as an individual and as managing partner of Tap, “prohibiting him from leasing to any medical marijuana dispensaries . . . that do[] not have a business license, a certificate of occupancy or meet the zoning requirements . . . .”
DISCUSSION
Violations of California Rules of Court
At the outset, we address the City’s contention the appeal should be dismissed because the opening brief fails to comply with rule 8.204(a)(2) in that the statement of the case does not provide a summary of the material facts, information about the relief sought, a statement of the appealed from judgment or ruling, or notice of the issues on appeal. But as Burcaw notes, the rule requires the information be contained in the opening brief, not in the statement of the case and our review shows this was done.
Granting of Permanent Injunction Against Burcaw
Burcaw contends the court erred in granting the permanent injunction against him because he performed no activity to be enjoined and no legal basis exists for holding a property manager liable for a nuisance committed by tenants. We disagree.
“‘A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate.’” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.) The grant or denial of a permanent injunction rests within the trial court’s sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) The exercise of discretion must be supported by the evidence and, “to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard.” (Ibid.) We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court’s order. (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 688-689.) Here, the trial court properly concluded Burcaw could be held liable for nuisance.
Because the actual complaint has not been included in the record on appeal, we rely on the statement of decision. The first cause of action was for abatement of a nuisance under SAMC section 1-13. The second cause of action was for private and public nuisance. (§§ 3479, 3480.)
“‘“[T]he legislature has the power to declare certain uses of property a nuisance and such use thereupon becomes a nuisance per se.” [Citation.] . . . Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.’ [Citations.] [¶] Cities are constitutionally authorized to make and enforce within their limits all local, police and sanitary ordinances and other such regulations not in conflict with the general laws. [Citation.] Government Code section 38771 provides, ‘By ordinance the city legislative body may declare what constitutes a nuisance.’ ‘[And e]ven without this section cities would have the power to abate public nuisances [citation].’” (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382-383.)
Here, SAMC section 1-3 reads: “In addition to the penalties provided in this Code, any condition caused or permitted to exist in violation of any of the provisions of the Code shall be deemed a public nuisance and may be, by this city, summarily abated as such, and each such condition continues shall be regarded as a new and separate offense.” The SAMC provisions include prohibiting operation without a certificate of occupancy (SAMC 8-95) or without a business license (SAMC 21-5), or using the property for a purpose for which it was not zoned (SAMC 41-190(a)). The City alleged, and the trial court agreed, Burcaw was responsible for a public nuisance by violating these provisions.
Burcaw admits the evidence presented sufficed for the trial court to find the former tenants responsible under of causes of action alleged. But he claims there was no activity by him to be enjoined, as he was not operating the medical marijuana dispensaries, and there is “no legal basis to enjoin a manager for a landlord who not operating or allowing/permitting the operation of medical marijuana dispensaries at the [s]ubject [p]roperty.” Burcaw’s argument lacks merit. He may not have personally operated the dispensaries but he, as the manager of Tap, allowed or permitted the tenants to do so by leasing them the units in the first instance.
In People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1216-1217 (Pacific Landmark) the court held that a preliminary injunction enjoining a nuisance could properly be issued against both a limited liability company which owned the property on which a nuisance was maintained, and the manager of the limited liability company. “[W]hereas managers of limited liability companies may not be held liable for the wrongful conduct of the companies merely because of the managers’ status, they may nonetheless be held accountable . . . for their personal participation in tortious or criminal conduct . . . .” (Id. at p. 1213.) A manager or member of the company may also be personally liable to the extent he or she “ha[d] actual authority over, or significant responsibility for, the wrong.” (Id. at p. 1214.)
Pacific Landmark concluded the defendant manager was personally liable because of “his personal involvement in allowing the nuisance to persist.” (Pacific Landmark, supra, 129 Cal.App.4th at p. 1216.) This was evidenced by, among other things, the fact that he had “authority over the property where the nuisance [an illegal massage parlor] occurred,” “authorized counsel to appear at the meeting with the City’s attorney,” “leased the premises to [the operator],” retained the right to inspect the premises “to determine its compliance with the lease and all laws and ordinances,” and “failed . . . to inspect the premises to ascertain whether defendants had complied with the notice” to perform covenant by discontinuing the illegal use. (Ibid.) Under these facts, the manager “had the knowledge and the responsibility to prevent the nuisance” and was “not insulated from liability by virtue of Corporations Code section [17701.01 et. seq., the California Revised Uniform Liability Company Act]. (Id. at p. 1217.) Therefore, “[t]he preliminary injunction was properly issued against [him].” (Ibid.)
The same applies to the issuance of the permanent injunction against Burcaw. Burcaw does not challenge the summary of the facts set forth in the statement of decision. Those facts show that although Tap was the record landowner, Burcaw, as its manager, was the person in control of the real property where the nuisance, i.e., the illegal operation of the medical marijuana dispensaries, occurred. He was the one who leased the units to the operators of the dispensaries. Only he and two of his employees had authority to collect the rent for the units. As the manager, Burcaw received several notices from the City advising him that the dispensaries were operating illegally in the units, yet he failed to take corrective action and continued to lease to the operators. Burcaw admitted he knew the tenant in unit 104 was and had been operating a medical marijuana dispensary there since 2013, as did the prior tenant. And although Burcaw testified the medical marijuana dispensary in unit 209 had moved out three to four months before trial, City Investigator Yvette Aguilar-Portugal testified she had inspected the unit around the time of trial and found the dispensary was still operating.
We conclude that under these facts, Burcaw, as the manager of the property, “had the knowledge and the responsibility to prevent the nuisance.” (Pacific Landmark, supra, 129 Cal.App.4th at p. 1217.) He thus can be held personally liable for the nuisance and be personally enjoined from eschewing that obligation. (See ibid.)
In its statement of decision, the trial court found “the evidence demonstrated a pattern of willingness on the part of . . . Burcaw to rent to medical marijuana dispensaries that do not confirm to the codes of the City . . . . In particular, the evidence of the number of suites at this property, similar conduct at another property owned by [Burcaw], [and] his correspondence with the City as to the status of marijuana and marijuana dispensaries in the community. Further, the evidence presented demonstrated that . . . Burcaw has chosen not to pursue unlawful detainer actions against his tenants at the property and [has] over $20,000 worth of fines that the City levied against [him].”[4] Burcaw does not dispute these facts, which constitute substantial evidence to support the granting of the permanent injunction against him.
Burcaw claims Pacific Landmark is distinguishable because it held that “managers of limited liability companies are not immune from personal liability if they have participated in tortious or criminal conduct while performing duties as managers” (Pacific Landmark, supra, 129 Cal.App.4th at p. 1207) and the trial court here did not find he committed such conduct. But he ignores the remainder of Pacific Landmark’s analysis, as well as the trial court’s determination “that as a managing partner of Tap . . . Burcaw can be held responsible for the alleged nuisance on the property, even if Tap . . . owned the property . . . because” he had “‘actual authority over or significant responsibility for, the wrong.’” Burcaw’s tortious conduct was allowing the nuisance to persist despite his authority and responsibility to preclude that from happening.
DISPOSITION
The judgment is affirmed. The City shall recover its costs on appeal.
IKOLA, J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
[1] In their respective briefs, both parties cite matters outside of the record on appeal. California Rules of Court, rule 8.204(a)(2)(C) (all further rule references are to the California Rules of Court) provides that an appellant’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record.” Burcaw’s opening brief violates this rule when he cites to the superior court’s file as support for several of his facts. The respondent’s brief fares no better. It cites “RA” throughout, apparently referring to a respondent’s appendix, which the City unsuccessfully attempted to file along with its brief inasmuch as this appeal is not proceeding by way of rule 8.124. “‘In reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief.’” (Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890.)
[2] Burcaw states that only three illegal dispensaries were listed on the caption of the complaint. But according to the uncontested findings in the statement of decision, the complaint alleged the operation of medical marijuana dispensaries at units 104, 107, 208, and 209, with unit 205 later added to conform to proof.
[3] All undesignated statutory references are to the Civil Code.
[4] Burcaw asserts it was improper for the trial court to consider the other property allegedly owned by him because it “is not a party to the current matter on appeal.” He forfeited this issue because he did not raise it in his objections to the proposed statement of decision. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59 [“if a party fails to bring omissions or ambiguities in the statement of decision’s factual findings to the trial court’s attention, then ‘that party waives the right to claim on appeal that the statement was deficient in these regards’”].) Burcaw’s only objection to the proposed statement of decision was that it “contains many misstatements, and does not accurately reflect or portray the events at trial and of the Court’s ruling.” In any event, to the extent Burcaw means the other property was not relevant (rather than not being a party) to the granting of the permanent injunction, we disagree, as it was relevant to show his pattern of renting to medical marijuana dispensaries that did not conform to the SAMC.
