2014-00160293-CU-PO
George T. Burke vs. Mills Springs Park Apartments LLC
Nature of Proceeding:
Filed By:
Motion for Preliminary Injunction
Burke, George T.

Self-represented Plaintiff’s George T. Burke’s Motion for a Preliminary Injunction is
DENIED. The TRO is ordered VACATED.

On March 19, 2014, this Court granted plaintiffs’ ex parte application for TRO and
Order to Show Cause to defendant E&S Ring why they and their officers, agents,
servants, employees, and representatives, and all persons acting in concert or
participating with them, should not be enjoined and restrained during the pendency of
this action from engaging in, committing, or performing, directly or indirectly, any and
all of the following acts: (a) Commencing or continuing the application of the chemicals
referred to in the complaint at para. 9 or any similar foul ODOR chemical at Granite
Point Apartments; and (b) Commencing any unlawful detainer proceeding against
Burke outside the jurisdiction of this Court.

ComplaintPlaintiff’s complaint sets forth three causes of action: 1st for Temporary Restraining
Order, 2nd for Preliminary and Permanent Injunctions and 3rd for Public Nuisance.
The complaint alleges that defendant E&S Ring has been and intends to continue
applying chemicals for balcony concrete waterproofing to the outdoor common areas
of the Granite Point apartment complex, including breezeways.

The chemical material data safety sheets (“MSDS”) reflect use of a Pecora 802 base
coat, a BASF Sonolastic NPl and a Pecora 806 top coat. The Pecora 806 top coat is
alleged to be more toxic than the base coat and includes a “Skull and Crossbones”
warning sign on its MSDS. The Pecora 802 base coat vapors and the Pecora 806 top
coat vapors are alleged to be carcinogenic by inhalation and present acute inhalation
hazards. (Compl., para. 19.)

The chemicals are alleged to be heavy-duty industrial chemicals designed for
commercial application by construction workers wearing air-respirators who then
immediately exit the fume area after their application. The specifications sheets
provide that “Do not apply Pecora-Deck™: In enclosed occupied areas or where fumes
may be drawn into ventilation systems.”

Plaintiff alleges that the fumes from the initial applications have been drawn into
occupied areas and will be drawn in to those occupied areas again, resulting in
poisoning hundreds of people in the Granite Point Apartments, unless this Court
restrains the Defendants. (Compl., paras. 19-22.)

Preliminary Injunction

The granting or denial of a preliminary injunction rests in the sound discretion of the
trial court and may not be disturbed on appeal absent an abuse of discretion. IT Corp.
v. County of Imperial (1983) 35 Cal.3d 63, 69; California Satellite Systems, Inc. v.
Nichols (1985) 170 Cal.App.3d 56, 63.

In deciding whether to issue a preliminary injunction, a court must weigh two
“interrelated” factors: (1) the likelihood that the moving party will ultimately prevail on
the merits and (2) the relative interim harm to the parties from issuance of the
injunction. The greater the plaintiff’s showing on one, the less must be shown on the
other to support an injunction. Butt v. State of California (1992) 4 Cal.4th 668, 677-
678. A preliminary injunction may not be granted, regardless of the balance of interim
harm, unless it is reasonably probable that the moving party will prevail on the merits.
San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal. App. 3d 438,
442.

Plaintiff seeks an injunction against a public nuisance by the defendant’s application of
Pecora products 802, 804 and 806 to the outdoor common areas of the Granite Point
Apartment complex located at 4500 Truxel Rd., Sacramento, CA 95834, where he is a
tenant.

Public Nuisance

A nuisance is defined as: “Anything which is injurious to health, including, but not
limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free passage or
use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or
basin, or any public park, square, street, or highway, is a nuisance.” Civil Code § 3479
Civil Code § 3480 provides: “A public nuisance is one which affects at the same time
an entire community or neighborhood, or any considerable number of persons,
although the extent of the annoyance or damage inflicted upon individuals may be
unequal.” The term “public nuisance” comprehends an act or omission that interferes
with the interests of the community or the health, comfort, and convenience of the
general public. Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App. 3d 116,
123.

For a cause of action for public nuisance based on the presence of toxic odors in the
outdoor common areas of the apartment complex, plaintiff must show: (1) defendant
and the various related entities that manage and operate the apartment complex in
which plaintiff resides, by acting or failing to act, created a condition that was harmful
to health or obstructed the free use of the common areas of the apartment complex, so
as to interfere with the comfortable enjoyment of life or property; (2) the condition
affected a substantial number of people at the same time; (3) an ordinary person
would be reasonably annoyed or disturbed by the condition; (4) the seriousness of the
harm outweighs the social utility of defendant’s conduct; (5) plaintiff did not consent to
the conduct; (6) plaintiff suffered harm that was different from the type of harm suffered
by the general public; and (7) defendant’s conduct was a substantial factor in causing
plaintiff’s harm. (CACI No. 2020; Birke v. Oakwood Worldwide (2009)169 Cal. App.
4th 1540, 1548.)

Condition That Is Harmful To Health

Plaintiff has asserted that the chemicals used are harmful to health, but the evidence
provided is limited to his declaration and his interpretation of the Pecora MSDS sheets.
In opposition, defendants assert that at all times the defendant’s application of the
Pecora Products has been in accordance with the law and the manufacturer’s
requirements. (Delarosa Dec., para. 7, Exh. 3.)

Although plaintiff asserts that the products have been applied in enclosed, occupied
areas, the defendant presents evidence that the products were only applied to outdoor
balconies and breezeways of the buildings. None of the breezeways contain a
ventilation system allowing fumes into the apartments.

The Sacramento Metropolitan Air Quality Management District (“Air Quality Rules”)
sets VOC limits for different types of coatings. The chemicals here are Industrial
Maintenance Coatings, for which the Rules limit the VOC to 304. Defendant provides
evidence that the VOC for Pecora 802 is 192g/L and the VOC for Pecora is 225g/L.
Pecora 806 is also under 340g/L. The “physical hazard” for each of the coatings is
listed as “slight”, while the “health hazard” is “moderate”. (Delarosa Dec., para. 4, Exh.
2)

Defendant further explains that due to a merger by the manufacturer, even lower VOC
levels will be produced by the new products defendant intends to use to complete the
project. (Kinney Dec., para. 30, Exh. Q)Substantial Number of People
This project has been ongoing for over six months, since Sept. 2013. Although plaintiff
purports to represent all others similarly situated, he has failed to submit any
declarations from any of the other residents of the 400 unit apartment complex, to
reflect that a “substantial number of people” have been adversely affected.
E&S provided three notices prior to the commencement of work on each building, and
made the MSDS sheets available to any resident who wished to review them.
Defendant warned the residents to keep their windows and doors closed to avoid
exposure to the fumes.(Kinney Dec., paras. 19, 27, Exh. O.)

Ordinary Person Reasonably Disturbed

As above, plaintiff has failed to provide evidence that the residents of approximately
400 apartment units have been disturbed or annoyed by the project. Nor has plaintiff
established that an “ordinary person” would be disturbed by the project.
In opposition, defendant presents evidence that only two residents (including plaintiff)
have complained. Both residents have been reimbursed for hotel costs to avoid the
fumes. The other resident complimented EDS on the good maintenance work it was
doing for the building. (Kinney Dec., paras. 12, 39, Exh. G.)

Harm Outweighs the Utility

Plaintiff declares that the odor emitted by the Pecora products is tantamount to
noxious “gas,” but fails to provide a basis for this claim. He has failed to address the
utility of the project.

The defendants have shown that the Pecora Products are well under the limits
imposed by the Air Quality Rules and the new products that will be used to complete
the project are even milder.

The subject property is a multifamily residential housing, with almost 400 units. The
landlord has an obligation to maintain the habitability of the property for the benefit of
all of the residents, including the present remediation of water damage.

Plaintiff Did Not Consent To the Conduct; Plaintiff Suffered Harm That Was Different
Plaintiff has failed to provide evidence of the harm he has suffered, failed to show that
his harm is different from the type of harm suffered by the general public and therefore
failed to show that defendant’s conduct was a substantial factor in causing plaintiff’s
harm. Preliminary injunctions, of course, require evidentiary support (White v. Davis
(2003) 30 Cal.4th 528, 554).

No citation to the defendant’s violation of any statutes, regulations or Air Quality Rule
is made in the moving papers.

The Court notes that the evidence provided by defendant reflects that defendant
offered to engage in the interactive process with plaintiff , if he is sensitive to chemical
exposure, to arrive at a reasonable accommodation, including during the work, early termination of the lease agreement, or installing barriers to help minimize odors. This
offer was rejected by plaintiff. (Kinney Dec., paras. 33, 34, Exhs. T, U.)
Plaintiff has failed to either allege or prove a purely private nuisance, therefore the
Court does not address it.

Irreparable Injury

An injunction may be granted when 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. Code Civ. Proc. § 526 If no
damages at all could be computed, the injury alleged by the plaintiff is irreparable in
nature. People v. Mitchell Brothers’ Santa Ana Theater (1981) 118 Cal. App. 3d 863,
871.

Here, monetary damages would be adequate to compensate plaintiff for his alternative
lodging costs during the periods when the odors are offensive to him. To obtain a
preliminary injunction Plaintiff must demonstrate that monetary damages would not be
an adequate remedy for the alleged wrongdoing. Code Civ. Proc. § 526(a)(4)
[injunction may be granted (4) When pecuniary compensation would not afford
adequate relief.]; Estes v. Rowland (1993) 14 Cal.App.4th 508, 535 [“”There is no right
to equitable relief or an equitable remedy when there is an adequate remedy at
law.” (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 3, p. 681 italics in
original); Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405,
410 [there must be an injury that “cannot be compensated by an ordinary damage
award”].)”]

However, Defendant is suffering significant daily monetary losses due to the delays in
performing its contract while the project is abated. (Delarosa Dec., para. 5.)
Additionally, the incomplete work has created a slip and fall hazard, exposing
defendants to significant potential liability. (Kinney Dec., para. 43, Delarosa Dec. para.
9.)

As the Court finds that the plaintiff has an adequate remedy at law for monetary
damages, the TRO is vacated and the Preliminary Injunction is denied.