Filed 4/10/20 County of Butte v. Levine CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

—-

COUNTY OF BUTTE,

Plaintiff and Respondent,

v.

DANIEL ALEXANDER LEVINE,

Defendant and Appellant.

C083711

(Super. Ct. No. 160072)

This case arises out of grading work performed by a bulldozer on a rural property in Butte County, primarily for the purpose of marijuana cultivation. In July 2013, the County of Butte (County) filed an action to abate a public nuisance involving an 80-acre parcel of land located along Jordan Hill Road in an unincorporated area of Butte County in the upper portion of the West Branch Feather River, approximately three miles east of Paradise, California. The County alleged that the person and/or entity that owned, operated, possessed, and/or controlled the property created a public nuisance by causing or authorizing unpermitted grading work in excess of 50 cubic yards in violation of a County ordinance. The County sought nuisance abatement and injunctive relief.

Following the issuance of a preliminary injunction and a bench trial, the trial court found two defendants liable for creating a public nuisance and entered judgment in favor of the County. One of the defendants, Daniel Alexander Levine, appeals from the judgment, which, among other things, permanently enjoined defendants from engaging in unlawful grading work on the property and required them to abate the public nuisance by implementing certain mitigation measures. Levine, proceeding in propria persona, contends the judgment must be reversed because there was insufficient evidence presented at trial to support the conclusion that the grading work constituted a public nuisance. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We recite only the facts and procedural history necessary to the disposition of this appeal.

In July 2013, the County filed an action against LLL Ranch, LLC (hereafter, LLL Ranch) and Does 1-10 for nuisance abatement and injunctive relief. It alleged that the person and/or entity that owned, operated, possessed, and/or controlled the real property located along Jordan Hill Road in Butte County, identified by assessor’s parcel number 058-160-123 (the Property), created a public nuisance by causing or authorizing unpermitted grading on the Property in excess of 50 cubic yards in violation of chapter 13, article 1 of the Butte County Code (Grading Ordinance). The County alleged that the unpermitted grading work threatened the Feather River/Lake Oroville watershed due to mud and silt run off. It therefore asserted that injunctive relief was warranted, requesting an order enjoining defendants from performing any further grading work, unless a permit for such work was obtained. It also requested an order requiring defendants to take remedial measures.

On the same day as the complaint was filed, the County also filed a motion for a preliminary injunction. Evidence submitted in support of the motion showed that LLL Ranch was the owner of the Property. There was also evidence that, in response to a complaint of potentially unlawful grading work, a County employee had investigated the Property and determined that more than 50 cubic yards of earth had been graded. The evidence further showed that Levine, the purported president of LLL Ranch, had been notified by letter in May 2013 that the unpermitted grading work constituted a nuisance because it violated the Grading Ordinance. The letter demanded that Levine take certain remedial measures to address the violation.

In its motion for preliminary injunction, the County argued that injunctive relief was warranted because Levine and LLL Ranch had failed to restore the Property to the condition it was in prior to the unlawful grading work or apply for a grading permit. It asserted that a “significant amount of earth was illegally moved,” and that the condition of the Property “pose[d] a clear and present danger to the surrounding area in its current, unstable and exposed state.” The County maintained that the failure to address the unlawful grading work before the rainy season threatened to cause slope instability, erosion, siltation, and continued damage to the County’s resources.

In late August 2013, Levine filed a demurrer on behalf of himself and LLL Ranch. He claimed to be the “real party in interest,” since he was the president of LLL Ranch, had “a beneficial interest” in the Property, and was responsible for the “legal garden” on the Property, i.e., marijuana grow operation.

Levine did not file a written opposition to the County’s motion for preliminary injunction. However, he appeared at the hearing on the motion and attempted to represent himself as well as LLL Ranch. In response, the trial court advised him that he was not a named party in the action and could not represent LLL Ranch because it was a limited liability company. The court continued the matter to allow Levine to retain counsel and informed him that the tentative decision in favor of the County on the motion for preliminary injunction would be adopted if he failed to hire counsel for LLL Ranch. When Levine inquired about the demurrer, the trial court indicated that it was improperly filed.

At the continued hearing in September 2013, counsel specially appeared on behalf of LLL Ranch. After denying counsel’s request for a continuance, the trial court granted the County’s motion for preliminary injunction, finding that LLL Ranch and Levine (collectively, defendants) had caused the unlawful excavation and movement of more than 50 cubic yard of material at the Property without a grading permit as required under the Grading Ordinance. In so finding, the court determined that defendants owned, operated, possessed, and/or controlled the Property. The court, among other things, enjoined defendants from directly or indirectly performing any “earthmoving” or related work on the Property during the pendency of the suit. It also ordered that the defendants, upon 24 hours’ notice, grant the County access to the Property for evaluation, analysis, and remediation. The court further ordered that defendants develop and implement a grading plan for the Property within 10 days that complied with all applicable County regulations, such that the County could issue the necessary permits. In the event that a grading plan could not be feasibly prepared/engineered in compliance with applicable regulations, the court ordered defendants to advise the County of this determination within 10 days and restore the Property to “the status quo ante condition” within 20 days. The court denied the County’s request for an order requiring the removal of “all plants, structures, equipment and infrastructure from the [Property].”

Following the filing of a motion for reconsideration and an ex parte application for stay of preliminary injunction, the trial court issued an order staying portions of the preliminary injunction order and continued the matter for an evidentiary hearing in October 2013. After the evidentiary hearing, the trial court issued a written order, concluding that more than 50 cubic yards of material had been moved on the Property. As a result, the court denied the motion for reconsideration and vacated the partial stay of its preliminary injunction order. It also ordered defendants to submit a remediation plan within 10 days. Neither LLL Ranch nor Levine did so.

Nearly two and a half years later, a court trial commenced in February 2016. It lasted several days and concluded in April 2016. As relevant to the disposition of this appeal, the evidence presented at trial showed that the hillslopes on the Property were of moderate steepness (35 to 50 percent hillslope gradient), and that four cut and fill pads had been created or altered by unpermitted grading work in late April 2013. The grading work related to the four pads, which exceeded 50 cubic yards, was performed by a bulldozer at the direction of Levine, primarily for the purpose of marijuana cultivation.

In May 2016, the trial court issued an interlocutory judgment in favor of the County and against defendants. The court concluded that the County had established a public nuisance, finding that the expert report submitted by each party demonstrated that more than 50 cubic yards of grading work had been done on the Property at defendants’ direction in violation of the Grading Ordinance. The court found that, while the grading work did not constitute a nuisance per se, as the County had not explicitly declared a grading violation to be a nuisance in Butte County, the evidence established the existence of the elements of a public nuisance cause of action in that the grading work scarred the landscape and posed a risk of harm to the nearby waterways and to downhill property owners. The court ordered abatement of the nuisance “by means of mitigating measures to eliminate, insofar as possible, both the risk of harm to the waterways, and to defendants’ downhill neighbors, as well as to the scarring of the landscape caused by the unpermitted grading.” The court also set a hearing for a review of the status of the mitigation measures defendants had already undertaken and entry of judgment.

In October 2016, final judgment was entered in favor of the County and against defendants. Among other things, defendants were permanently enjoined from grading activity on the Property, unless such activity was in compliance with state and County legal requirements. The defendants were also ordered to implement the specific mitigation measures set forth in their expert’s report.

Levine filed a timely notice of appeal.

DISCUSSION

Levine contends that reversal is required because there was insufficient evidence to support the conclusion that the unpermitted grading work constituted a public nuisance. We disagree.

Civil Code section 3479 defines a nuisance as follows: “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. . . .” “A nuisance may be a public nuisance, a private nuisance, or both.” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341.) “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.” (§ 3480.)

A county has the constitutionally recognized power to determine the appropriate use of land within its borders, which allows it to define nuisances for local purposes, and to seek abatement of such nuisances. (City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 761.) “An act or condition legislatively declared to be a public nuisance is ‘ “a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury.” [Citation.]’ [Citation.] ‘[T]o rephrase the rule, to be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law.’ [Citation.] Thus, the only issues for the court’s resolution in a nuisance per se proceeding are whether the statutory violation occurred and whether the statute is constitutional.” (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1086-1087.)

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. (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 721.) A decision whether to issue, and how to phrase, a permanent injunction is essentially discretionary but, like any judgment, a permanent injunction must be sufficiently supported by the evidence in the record. (Ibid.; see Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964.) Where the appellant challenges the sufficiency of the evidence, our review is limited to whether there is substantial evidence contradicted or uncontradicted that will support the challenged factual finding. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)

Here, the County’s suit alleged that the unpermitted grading work performed at the Property constituted a public nuisance under the Grading Ordinance. The stated purpose of the Grading Ordinance was “the control of erosion and siltation, the enhancement of slope stability, the protection of [natural] resources and the prevention of related environmental damage by establishing standards and requiring permits for grading.” (Grading Ordinance, § 13-1.) Section 13-3 of the Grading Ordinance, titled “Permit [R]equired,” provided: “Except as otherwise provided herein, it shall be unlawful for any person to commence or perform any grading of more than fifty (50) cubic yards without first having complied with the conditions and requirements of this article.” Under the Grading Ordinance, a permit was not required “if the amount of grading [was] fifty (50) cubic yards or less” or met any one of the 15 specified exemptions. (Grading Ordinance, § 13-5.) “ ‘Grading’ ” was defined to mean “any earth movement, including excavation and filling, or any combination thereof.” (Grading Ordinance, § 13-2.) Section 13-16, subdivision (b) of the Grading Ordinance provided: “Any grading in violation of the terms of this article or any permit issued hereunder is hereby declared to be a public nuisance and may be abated in the manner provided by law.”

The evidence presented at trial established that defendants caused grading work to be performed on the Property which exceeded more than 50 cubic yards without having first obtained a permit for that work. Levine testified that a bulldozer graded the Property over the course of several days in late April 2013 at his direction, and that he did not obtain a permit for that work. The expert report submitted by each party demonstrated that the grading work—related to the four cut and fill pads on the Property—involved earth movement that exceeded 50 cubic yards. Because this grading work was, by definition, a public nuisance under section 13-16, subdivision (b) of the Grading Ordinance, it constituted a nuisance per se and no further inquiry was necessary. (City of Monterey v. Carrnshimba, supra, 215 Cal.App.4th at pp. 1086-1087; see Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1207 [“[W]here the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se.”]; City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382.) Accordingly, we find no merit in Levine’s sufficiency of the evidence claim.

We recognize that the trial court did not enter judgment in favor of the County based on a nuisance per se theory, although it was raised by the County in its pleading, trial brief, and during closing argument at trial. Instead, the judgment was predicated on the trial court’s determination that the County had established that the unpermitted grading work at the Property qualified as a public nuisance under the Civil Code. We need not and do not consider Levine’s contention that the trial court erred in making this determination because “ ‘we review the judgment, not the rationale, and may affirm if the judgment is correct on any theory.’ [Citation.] ‘In other words, it is judicial action, and not judicial reasoning or argument, which is the subject of review; and, if the former be correct, we are not concerned with the faults of the latter.’ ” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 805.)

DISPOSITION

The judgment is affirmed. The County is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

BUTZ, J.

We concur:

/s/

RAYE, P. J.

/s/

RENNER, J.