San Bernadino County v. Mejia

Filed 5/14/07 San Bernadino County v. Mejia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Christopher J. Warner, Judge. Affirmed.

Aviles & Associates and Moises A. Aviles for Defendants and Appellants.

Ruth E. Stringer, Acting County Counsel, and Paymon Z. Bidari, Deputy County Counsel, for Plaintiff and Respondent.

1. Introduction^[1]

The County of San Bernardino sued defendants Jorge Mejia and Rosa Mejia and obtained a preliminary injunction prohibiting them from conducting a commercial truck repair business and allowing commercial parking on their residential real property located contiguously at 17791 and 18023 Santa Ana Avenue in Bloomington. Defendants appeal, arguing that granting the injunction was an abuse of discretion and raising new issues on appeal that sections of the County Code are unconstitutional, and challenging the power of county counsel to bring an action to abate a public nuisance or to prosecute a code enforcement action.

The trial court did not abuse its discretion. We reject defendants other contentions and affirm the judgment.^[2]

2. Factual and Procedural Background

Defendants statement of facts in their 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(2)(C).) We have reviewed the record to summarize it for this opinion but defendants 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, 435-436, fn. 2.)

The subject property was zoned for agricultural use from 1956 to 1989. Truck parking or repair was not allowed. In 1989, the zoning was changed to RS-1AA (Single Residential with an additional agriculture overlay.) Again no truck parking or repair was allowed. The Mejias purchased the two parcels in September 2002 and December 2004.

The Countys complaint alleges that the Mejias property is located in a single-family residential district but since November 11, 2002, they have operated a commercial truck parking and repair business and committed other violations of San Bernardino County Code sections 23.0602, 33.032, 33.1210, 35.0111, 33.08155, 63.063, 84.0105, 84.0325, 84.0510, subdivision (h), and 87.0635; Health and Safety Code sections 17920.3 and 25503.5; and Civil Code section 3480. These sections govern certain prohibited land uses for which permits are required ( 84.0105) and commercial vehicle parking in a residential land use district. ( 84.0325 and 87.0635.) Other alleged violations involved illegal construction; dumping, improper storage, and accumulation of trash, junk, and illegal vehicles; substandard housing; the generation and discharge of hazardous waste without a generator permit or a business emergency/contingency plan; and the maintenance of a public nuisance.

The Countys motion for a preliminary injunction was supported by the declaration of code enforcement officer, Philip Salazar. He inspected the property in June 2006 and observed it was being used for commercial truck parking and repair. Parked on the property were 37 commercial trailers and 26 commercial truck tractors. A number of mobile homes and travel trailers were being used as residences. Also located on the property were junked cars, automobile parts, salvage, other junk and trash, overflowing sewage, illegal construction, hazardous electrical wiring, storage of motor oil and automobile batteries, cargo containers, and piles of combustible materials. The use of the property constituted a severe nuisance, threatening public health and safety. The Salazar declaration included 87 photographs documenting the problems. One of the photographs is of a sign blatantly announcing Truck & RV Parking For Rent with a telephone number.

The Mejias filed opposition to the motion for injunction, arguing that the relief sought was mandatory not prohibitory and the objectionable conduct was a legal nonconforming use.

On July 24, 2006, the court granted a preliminary injunction, enjoining defendants from [c]onducting a commercial truck/trailer parking business, [c]onducting an auto/truck repair business, [p]arking commercial trucks, and [u]nlawfully using properties, and directing defendants to remove all trucks and trailers, junk and trash, inoperable vehicles, and all travel trailers and mobile homes.

3. Discussion

On appeal, defendants attempt a variety of arguments that differ from those they asserted in the trial court, some 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, subd. (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 Builders 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 courts 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 courts 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

Defendants admit they kept trucks parked on their property. They maintain they did not have notice of the zoning changes that occurred before they bought the property. Their main argument seems to be that because some agricultural uses--row, field, tree, and nursery crop cultivation--are permitted by section 84.0325, subdivision (a), trucks are necessarily permitted also. But defendants do not assert they are engaged in permitted agricultural uses. Finally, they assert they are being targeted for political reasons and there was no immediate necessity for relief. 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 defendants have 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 defendants are 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. Defendants ignore these points and instead indulge in unsupported accusations about the County embarking on a political vendetta.^[3]

Defendants only arguments in the lower court were that they did not know about the zoning restrictions and their use was nonconforming but legal. The evidentiary record does not support their contentions. Defendants do not offer any discussion about notice of zoning changes.

Instead, defendants argue that sections 84.0325 and 87.0635, read together, permit trucks to be used on residential property if farming is allowed. In the case they cite, 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 with no evidence in the record of farming being conducted on defendants property. Defendants are operating a commercial trucking and repair business, not parking a single truck that they own, an activity that would have been allowed under section 87.0635. The County ordinances specifically prohibit commercial truck parking and do not permit other similar uses. Scarpitti does not assist defendants.

Defendants other activities are also legally prohibited. Code of Civil Procedure section 525 states that [a]n injunction is a writ or order requiring a person to refrain from a particular act. Defendants were enjoined to cease illegal parking, illegal storing and dumping, and illegal housing. As to defendants assertion a mandatory injunction should not have been granted because it directed defendants to remove certain items, we observe the injunction actually prohibits defendants from violating the zoning laws. An act of removal, while seemingly mandatory in character, may be incidental to an injunctions prohibitive objective of restraining further statutory violations. (People v. Mobile Magic Sales, Inc. (1979) 96 Cal.App.3d 1, 13.)

On appeal for the first time, defendants advance a new argument that the office of County Counsel cannot prosecute code enforcement actions and such prosecutions must be handled by the district attorney. The case law cited by defendants is opposed to their position. In Rauber v. Herman (1991) 229 Cal.App.3d 942, 947, the court held: Government Code section 26529 provides that in counties which have a county counsel, the county counsel shall discharge all the duties vested in the district attorney by Sections 26520, 26522, 26523, 26524, and 26526. The county counsel shall defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned . . . . Government Code section 27642 provides that whenever the board of supervisors appoints a county counsel pursuant to Government Code section 27640 . . . he shall discharge all the duties vested by law in the district attorney other than those of a public prosecutor. County counsel was entitled to bring the present action against defendants.

4. Disposition

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Richli

J.

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^[1] All statutory references are the San Bernardino County Code unless stated otherwise.

^[2] We take judicial notice of a similar case pending in this court, County of San Bernardino v. Antonia Bivings, E040677. Bivingss appellate lawyer, Moses Aviles, is the same as appellants lawyer in this case. He has filed a brief in this appeal that copies most of the appellants brief in Bivings. Therefore, our opinion here will adopt much of the same discussion as in Bivings.

^[3] 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.