County of San Bernadino v. Bivings

Filed 4/10/07 County of San Bernadino v. Bivings CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.

Aviles & Associates and Moises A. Aviles for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Paymon Z. Bidari, Deputy County Counsel, for Plaintiffs and Respondents.

The County of San Bernardino sued defendant Antonia Bivings and obtained a preliminary injunction prohibiting her from conducting a commercial trucking business and allowing commercial parking on her residential real property located at 10917 and 10943 Larch Avenue in Bloomington. Bivings appeals, arguing that granting the injunction was an abuse of discretion and raising a new issue that sections of the county code are unconstitutional. (Code Civ. Proc., 904.1, subd. (f).)^[1]

I

FACTUAL AND PROCEDURAL BACKGROUND

Defendants statement of facts in her appellants opening brief is deficient. The single paragraph, with no citations, does not [p]rovide a summary of the significant facts limited to matters in the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We have reviewed the record in an attempt to summarize it for this opinion but defendant cannot be heard to complain that we have overlooked any disputed or undisputed material facts. [Citation.] (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435, fn. 2.)

The Countys complaint alleges that Bivingss property is residential but since November 21, 2003, she has operated a commercial trucking business and commercial parking on the Larch property in violation of San Bernardino County Code sections 84.0105, 84.0325, and 87.0635. These sections govern certain prohibited land uses for which permits are required (San Bernardino County Code, 84.0105) and commercial vehicle parking in a residential land use district. (San Bernardino County Code, 84.0325 and 87.0635.)

The Countys motion for a preliminary injunction was supported by the declaration of code enforcement officer Philip Salazar who inspected the property in October 2005 and observed it was being used as a commercial truck and trailer parking lot. Additionally, there were multiple violations of grading and dumping of piles of dirt and rock fill on the subject properties, and other violations and hazards constituting a public nuisance and threatening irreparable harm to the residential area. The Salazar declaration included seven photographs documenting the problems.

The court granted a preliminary injunction on February 28, 2006, which it dissolved on April 17 when it also vacated the default against defendant. The motion for preliminary injunction was reset to May 10. In the meantime, the County executed a search and inspection warrant at the property on March 14, 2006.

Bivings filed a general denial on April 28, 2006. She filed opposition to the motion for injunction, arguing that the relief sought was overbroad and should not include an injunction against disposing of or storing concrete or construction material. The opposition also challenged as uncertain any prohibition under San Bernardino County Code section 84.0105.

At the hearing on May 10, defendants counsel made some cursory comments about wanting to pursue discovery and suggesting defendant was never given notice of zoning changes. The court granted a preliminary injunction, enjoining the operation of a commercial trucking or truck-parking business on Defendants property and the parking of commercial trucks on that property except in compliance with Development Code [sic] Section 87.0635. The written order included a prohibition against [u]nlawfully using properties except in accordance with the Development Code Section 84.0105. The court further ordered the trucks removed from defendants property within 30 days.

Defendant filed her notice of appeal on June 7, 2006.

Although not pertinent to the resolution of this appeal, we note there have been further trial proceedings involving contempt and a receivership concerning defendants failure to comply with the preliminary injunction.

II

ANALYSIS

On appeal, defendant attempts a variety of arguments that differ from those she asserted in the trial court, many of which are based on matters outside the record. We only consider whether granting the injunction was an abuse of discretion based on the record. (Cal. Rules of Court, rule 8.204(a)(2)(C); Banning v. Newdow (2004) 119 Cal.App.4th 438, 453.)

A. Standard of Review

Code of Civil Procedure section 526, subdivision (a)(2) allows for issuance of an injunction [w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. Whether a preliminary injunction shall be granted rests largely in the discretion of the trial court and will not be reversed on appeal unless there is a manifest abuse of discretion. (Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4th 1013, 1019, citing American Builder's Assn. v. Au-Yang (1990) 226 Cal.App.3d 170, 175-176.)

Additionally, [i]f the evidence conflicts, we must construe it in the light most favorable to the trial court's decision. But if no issue of fact is presented, we determine whether the granting of the preliminary injunction was error as a matter of law. The party challenging the injunction bears the burden of showing a clear abuse of discretion or error of law. [Citations.]

Trial courts evaluate two interrelated factors when deciding whether to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail [on the merits] at trial; the second, the interim harm that the plaintiff will likely sustain if the injunction were denied as compared to the harm that the defendant will likely suffer if the injunction were issued. By balancing the respective equities, the trial court should conclude whetherpending trial on the meritsthe defendant should or should not be restrained from exercising his or her claimed right. [Citation.] Thus, on appeal from an order granting a preliminary injunction, the question generally is whether both irreparable harm and the likelihood of prevailing on the merits are established. [Citation.] (California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 302.)

Finally, [o]n review of the trial court's ruling, the appellate court does not reweigh conflicting evidence or determine the credibility of witnesses. The reviewing courts task is simply to ensure that the trial courts factual determinations are supported by substantial evidence. (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 320.)

B. Abuse of Discretion

Defendant admits she kept trucks parked on her property. She argues, however, it was an abuse of discretion to grant an injunction because she was not causing any damage, in fact she was performing a neighborly service. In other words, there was no interim harm to justify granting an injunction: In Lagunitas W. Co. v. Marin County W. Co. (1912), 163 Cal. 332, the court . . . stated: [] [A] preliminary injunction is not a matter of right. It is addressed to the discretion of the court. In denying it the court does not necessarily determine anything as to the merits of the main controversy. It may conclude that from the evidence produced on the application for a preliminary injunction it does not appear that pending a trial any possible injury can result to the plaintiff, and may decline to grant an injunction until after the trial of the cause (pp. 336-337). (Alvarez v. Eden Township Hospital Dist. (1961) 191 Cal.App.2d 309, 312.)

What defendant has failed to refute below or on appeal is the trial courts express and implied findings the County is likely to prevail and that there is interim harm to the public. In its motion, the County unquestionably established that defendants property is residential and that defendant is using the property for commercial purposes incompatible with residential uses. The code enforcement officer identified many negative effects, including hazardous waste and air and water contamination. Defendant ignores these points and instead indulges in unsupported accusations about the County embarking on a political vendetta.^[2]

Defendants only arguments below were that the injunction could not cover illegal dumping or storage and that San Bernardino County Code section 84.0105 was uncertain in its meaning and scope. The trial court did not extend the injunction to include dumping or storage. The argument about San Bernardino County Code section 84.0105 was entirely undeveloped in the trial court and is not discussed on appeal. Nor does defendant supply any briefing on the issues of discovery or notice of zoning changes.

Instead, defendant seems to be arguing that San Bernardino County Code sections 84.0325 and 87.0635, read together, permit trucks to be used on residential property if farming is allowed. In the case she cites, In re Scarpitti (1981) 124 Cal.App.3d 434, the appellate court held defendant was improperly convicted of a misdemeanor violation of county zoning ordinances for parking his large commercial dump-truck on his property, zoned rural residential, which was not a permitted accessory use. There was no ordinance specifically prohibiting the parking of trucks of specified type or tonnage upon rural residential property and the ordinances permitted other similar uses and did not contain other regulations justifying the prohibition against trucks. Furthermore, the Scarpitti defendant could claim a legitimate and important property right incident to home ownership, the right to park his truck, used to earn a living. (Id. at pp. 439-442.)

The present case involves residential property, not rural residential property. There is no evidence in the record of farming being conducted on defendants property. Defendant was apparently operating a commercial trucking business, not parking a single truck that she owns, an activity that would have been allowed under San Bernardino County Code section 87.0635. The ordinances specifically prohibit commercial truck parking and do not permit other similar uses. Scarpitti does not assist defendant.

Defendants reply brief repeats verbatim most of her opening brief. The reply brief also advances a brand new argument that the office of County Counsel cannot prosecute code enforcement actions and such prosecutions must be handled by the district attorney. We decline to discuss this final contention: Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission. (Sacramento Cable Television v. City of Sacramento (1991) 234 Cal.App.3d 232, 244.) (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)

III

DISPOSITION

We affirm the judgment. The County as prevailing party recovers its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Richli

J.

We concur:

s/McKinster

Acting P. J.

s/Miller

J.

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^[1] We give no consideration to defendants arguments relating to a contempt motion brought by the County after defendant filed her notice of appeal from the order granting the preliminary injunction. Any issue concerning contempt is not an issue on appeal.

^[2] We are neither persuaded nor impressed by the histrionics employed by defendants counsel. Evocations of Chernobyl, communism, Will Smith, Governor Schwarzeneggar, and Jerry Brown are not helpful.