Filed 4/21/20 McGill v. Webb CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

JOHN P. McGILL, Individually and as Trustee, etc., et al.,

Plaintiffs and Respondents,

v.

GENE WEBB,

Defendant and Appellant.

A158900

(Napa County

Super. Ct. No. 19-CV-000903)

Gene Webb appeals the trial court’s grant of a preliminary injunction order. Due to a landslide upon a driveway, the court ordered Webb to “take immediate remedial/repair action to prevent his property from further encroaching and sliding over . . . [a] driveway.” At a later hearing, the court ordered Webb to build a retaining wall at a cost of “$56,386 with the need for possible additional work.” Webb appeals. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In June 2019, John P. and Wanda E. McGill, individually, and as trustees for The McGill Family Trust 2018 (the McGills) filed a complaint against Webb asserting causes of action for injunctive relief, nuisance, negligence, and declaratory relief. The McGills own property in Napa County, California, which includes a right-of-way over Webb’s property. This right-of-way is the only access to the McGills’s home.

The McGills alleged that in February or March 2019, “[t]rees, dirt, mud and debris [from Webb’s property] . . . have slid or moved onto the driveway” leading to the McGills’s home. This material encroached three or four feet onto the driveway “limiting and obstructing access, causing the driveway asphalt to uplift . . . [and] interfering with drainage.” Webb “refused . . . to remediate the condition.” The McGills sought “issuance of an immediate Injunction directing [Webb] to remove and remediate/repair the landslide condition obstructing the driveway.”

Webb denied the allegations and asserted affirmative defenses including contributory negligence.

I. The Request for a Preliminary Injunction

In August 2019, the McGills moved for an order to show cause “why an injunction should [not] issue directing [Webb] to remediate and correct the slide condition.” In support of their request, the McGills submitted an affidavit by John P. McGill (McGill), and photographs of “the slide and the area of the slide before the condition manifested.”

A. The McGill Affidavit

In his affidavit, McGill averred he has lived at the location since March 2000. A driveway over Webb’s property is the only access to the McGills’s home and it is on “a deeded right of way.”

In March 2019, McGill “noticed the hillside along the driveway . . . was moving and encroaching onto the area where I had placed hay wattles to direct runoff.” The hillside “continued to move, pushing the hay wattles up into a mud mass and also pushing the asphalt driveway . . . into a hump . . . . The slide appeared to be moving both over and under the driveway at that location.” McGill’s measurements indicated the slide had moved 10 to 12 inches.

McGill met with Webb a number of times, but, according to McGill, Webb “did not intend . . . to repair or remediate the condition.” By the end of April, McGill’s measurements revealed the slide “had moved another foot.” McGill has “pictures of the area where the slide exists now and pictures of the same area before it began. The area covered by the slide encroaches approximately 3-4 feet from its earlier location.” The driveway has been narrowed from twelve to eight feet. “[I]f the slide reactivates when it rains again, it will not be possible to get in or out.”

Fifteen years earlier, there was a similar slide that “moved over and onto the right of way in front of our home.” “In 2005, after forcing us to file a lawsuit, [Webb] eventually constructed an 8’ high retaining wall along his property in front of our house.” The McGills intended to sell their home, and they “only want [Webb] to fix the condition so that the access is not threatened.”

B. The Raines Declaration

Webb opposed the motion. In support of his opposition, Webb submitted a declaration from Jeff Raines, a civil and geotechnical engineer. Raines visited the location of “the alleged reactivation of the old slope failure.” According to Raines, the head scarp of the old slope failure “is located 20 to 30 feet uphill of the driveway,” and it did not indicate “any additional movement over the past year.” “Hence, any sloughing of soil onto the driveway, if any has occurred over the past year, does not represent the reactivation of the old slide. Rather it represents sloughing of the cut slope onto the driveway.”

Raines opined that the old, existing slope failure “was caused by the installation of the driveway. The driveway has damaged Mr. Webb’s property, not the other way around as claimed by Mr. McGill.” Raines did “not expect the uphill slide to move significantly in the future.”

C. The Glomb Declaration

In reply, the McGills submitted a declaration by Jim Glomb, an engineering geologist. According to Glomb, “an active landslide exists on the slope above the driveway . . . . The slide has apparently moved onto the driveway shoulder and [onto the] edge of [the] driveway since April of this year. The landslide is considered to be unstable and will likely continue to move downslope onto the driveway, particularly during periods of continued rainfall. This occurrence will likely further damage the driveway and may obstruct access to [the McGills’s] property. Another possible contributory cause of future landsliding would be uncontrolled drainage from upslope areas.”

Glomb recommended “the slope should be stabilized by construction of a retaining wall similar to the wall previously constructed to the north of the subject slide area or by grading and constructing an earth fill buttress.”

II. Trial Court Rulings on the Request for a Preliminary Injunction

On September 10, 2019, the court issued a tentative ruling indicating its “initial inclination” was “to grant plaintiffs the request they seek. The plan about how to carry out the requested relief may best be resolved cooperatively by the parties, rather than have the Court craft one, especially due to the fact that there has been a past remediation of a slide condition that appears to have worked to stabilize the area.” The court ordered the parties to file a joint meet and confer declaration detailing their efforts to reach an agreement regarding the “repair and remediation of the slide condition” and “a plan or options” to carry it out.

In their declaration, the parties filed individual statements detailing their failed efforts to mediate their dispute. The McGills proposed a schedule of work to repair or remediate the slide condition. Webb submitted a supplemental declaration from Raines, who took issue with Glomb’s analysis, and who reiterated his belief that the uphill slide would not move significantly in the future.

On September 27, 2019, the court granted the McGills’s request for a mandatory preliminary injunction. The court refused to consider Raines’s supplemental declaration because its prior order did not request additional evidence. For the court, Raines’s initial declaration was not “compelling,” and the court was skeptical as to why the driveway—built almost fifty years earlier—would suddenly cause a slide.

On the other hand, the court found the photographs were “convincing significant evidence” of “an encroachment onto the driveway.” The court was persuaded by Glomb’s conclusion that the hillside would likely continue to move downslope onto the driveway. The court continued: “Although disfavored, this is a case where a mandatory preliminary injunction is warranted because plaintiffs have established Webb’s property is unstable, likely to move again, and must be repaired before substantial damage occurs to the driveway and blocks plaintiffs’ only access to their property.”

The court deferred ruling on whether the McGills were required to post a bond because Webb “failed to offer a plan to remedy the situation in the joint meet-and-confer declaration as requested,” and the costs of remediation were unknown. The court ordered Webb to “take immediate remedial/repair action to prevent his property from further encroaching and sliding over the driveway leading to plaintiffs’ home.” The court scheduled a hearing to review the plan.

In response, Webb’s engineer, Raines, proposed a two-step plan for winterization and slope stabilization. Winterization involved covering the slide area in plastic. A construction company, RWR Construction, estimated the cost of winterization would be $14,245.51. Slope stabilization involved collecting soil samples and designing a retaining wall “to pin the bottom of the . . . landslide.” Raines provided no cost estimate for slope stabilization. According to Raines, “[w]e have not analyzed the stability of the slope above the driveway cut. It likely has a very small factor of safety and could fail at any time. This is also true of the down slope side of the driveway cut. To stabilize the entire hillside . . . would be a monumental undertaking costing millions of dollars.”

On October 11, 2019, in its review of the plan, the court found Webb’s plan was not “fully developed for implementation.” The court noted discrepancies between Raines’s recommendations and the winterization plan submitted by RWR Construction. The court faulted Webb for failing to submit a time or cost estimate for designing and installing a retaining wall. The court found that Raines’s concession that the slope above the driveway cut “ ‘could fail at any time’ ” conflicted with his earlier declaration in which he stated he did not expect the uphill slope to move significantly in the future. According to the court, “Raines has effectively conceded a dangerous condition exists on the property and must be repaired now.”

The court ordered Webb to obtain bids from RWR Construction and two other companies for the construction of the retaining wall. The court ordered the parties to meet and confer “to see if they can agree on one of these companies to start the project on an expedited basis. If the parties cannot agree, Webb shall submit the three bids/proposals to the Court as part of a revised plan. The Court will then make the selection.” In addition, the court ordered a revised winterization plan to provide “a stop-gap back-up plan if the slope stabilization cannot be completed on an expedited basis.”

In response, Webb submitted two bids for building a retaining wall. In addition, Webb sought to depose Glomb, and the McGills filed a motion to quash the deposition subpoena.

In its November 1, 2019 order, the court admonished Webb for failing to comply with the court’s prior order. Nevertheless, to move the process forward, the court selected a proposal from RWR Construction to build a retaining wall “for $56,386 with the need for possible additional work.” The court stated: “Webb is under court order to remediate/repair his property from further encroaching and sliding over the driveway leading to plaintiffs’ home. The court understands the cause of and responsibility for any soil instability has not yet been determined. The Court realizes Webb’s position is that any soil instability is the result of slope cutting by plaintiffs’ predecessors in installing or maintaining the road. Webb will be able to develop this defense through discovery and the next stage of this litigation.”

Webb filed a notice of appeal. The court stayed further proceedings, including its review of the plan to build a retaining wall, Webb’s motion for leave to file a cross-complaint for indemnity, and the McGills’s motion to quash the Glomb deposition subpoena.

DISCUSSION

On appeal, Webb contends: (1) the mandatory preliminary injunction was a final adjudication on the merits; (2) the McGills failed to demonstrate they would prevail on the merits; and (3) the McGills failed to show the balance of hardships tipped in their favor. We disagree and affirm.

I. Governing Law and Standard of Review
II.
Trial courts “evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69–70¬¬.) The court has discretion to grant or deny a preliminary injunction. (Id. at p. 69.) “[T]he burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion.” (Ibid.)

Injunctions may be classified as prohibitory or mandatory: “an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) When “the preliminary injunction mandates an affirmative act . . . . we scrutinize it even more closely for abuse of discretion.” (Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295.) “Although . . . subject to stricter review on appeal, [citation], ‘[t]he principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied.’ ” (Ryland Mews Homeowners Assn. v. Munoz (2015) 234 Cal.App.4th 705, 712, fn. 4.)

III. No Final Adjudication on the Merits
IV.
Webb protests that “the granting of the preliminary injunction was an abuse of discretion because it was a de facto adjudication on the merits. By ordering [Webb] to construct a retaining wall, the trial court could not have ordered him to do more.”

We disagree. Although the court ordered Webb to perform the affirmative act of building a retaining wall, the court made no adjudication regarding the cause of the slide condition, or who—ultimately—will be responsible for the costs of remediation. According to Webb, the installation of the driveway caused the soil instability, but the court expressly noted that Webb can develop “this defense through discovery and the next stage in this litigation.” Moreover, Webb sought leave to file a cross-complaint for indemnity, an issue that has yet to be determined. The preliminary injunction order was not a final adjudication on the merits.

V. No Abuse of Discretion in Determining the McGills Were Likely to Prevail on the Merits of Their Nuisance Claim
VI.
“Anything which is . . . 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 . . . of any . . . street, or highway, is a nuisance.” (Civ. Code, § 3479.) “An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 . . . , and by the judgment in that action the nuisance may be enjoined or abated . . . .” (Code Civ. Proc., § 731.)

“There are few ‘forms of action’ in the history of Anglo–American law with a pedigree older than suits seeking to restrain nuisances, whether public or private.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.) “ ‘Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land.’ ” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) To prevail on a private nuisance claim, the plaintiff must prove a substantial and unreasonable interference with the plaintiff’s use and enjoyment of property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937–938.) “ ‘[A]ctual physical interference with land use constitutes the most obvious and common type of nuisance.’ ” (Rancho Viejo v. Tres Amigos Viejos (2002) 100 Cal.App.4th 550, 561.)

In their complaint, the McGills claim the slide condition “constitutes a nuisance within the meaning of [section] 3479 of the Civil Code.” McGill’s affidavit and the photographs provided evidence of a landslide from Webb’s property that was encroaching on the McGills’s driveway. Glomb opined that it is likely this landslide will further encroach on the driveway and it could cut off access to the McGills’s home. Based on this evidence of a substantial and unreasonable interference with the McGills’s use and enjoyment of their property, the court did not abuse its discretion in determining they were likely to prevail on the merits of their nuisance cause of action. (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625 [when reviewing grant of preliminary injunction, our task is to ensure that factual determinations are supported by substantial evidence].)

In arguing the McGills failed to show a reasonable probability of prevailing, Webb complains “there had been no evidentiary hearing, and neither the consultants nor the parties themselves had been deposed.” But an interlocutory decision on the likelihood that the plaintiff will prevail at trial “reflects nothing more than the superior court’s evaluation of the controversy on the record before it at the time of its ruling.” (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1109.)

Webb argues the McGills refused to agree to Glomb’s deposition. According to Webb, “[g]iven that the parties, through their experts, have sharply differing opinions about the state of the hillside, Respondent cannot show that he will prevail on the merits.”

This argument has no merit. “ ‘[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court’s province to resolve conflicts.’ [Citation.] Our task is to ensure that the trial court’s factual determinations . . . are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order.” (Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at p. 625.)

In his initial declaration, Raines opined that he did “not expect the uphill slide to move significantly in the future,” but the court did not find his opinion compelling. On the other hand, McGill’s affidavit and the photographs indicated a slide was already occurring, and Glomb opined it could cut off access to the McGills’s home. Interpreting this evidence in the light most favorable to the McGills, they are likely to prevail on the merits of their nuisance claim. (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1137 [“the broad language of section 3479 sanctions recovery for direct injury to a plaintiff’s property constituting ‘an obstruction to the free use of property’ ”].)

VII. No Abuse of Discretion in Determining the Balance of Hardships Favored the McGills
VIII.
Webb argues the balance of hardships tipped in his favor because the McGills failed to prove their injury was “ ‘[i]mmediate, certain, and great,’ ” while the order granting the preliminary injunction exposes Webb to “significant financial outlays.”

We are not persuaded. “ ‘[A] public or a private nuisance may be enjoined because harm is threatened that would be significant if it occurred, . . . although no harm has yet resulted.’ ” (In re Firearm Cases (2005) 126 Cal.App.4th 959, 988.) “[P]laintiffs are not required to wait until they have suffered actual harm before they apply for an injunction, but may seek injunctive relief against the threatened infringement of their rights.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) “The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.” (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 73.)

Webb contends that “almost a year after [the McGills] first noted the alleged instability of the hillside, the parties are still arguing about the extent of the damage and its causes.” But “a nuisance is a nuisance regardless of cause.” (People v. Greene (1968) 264 Cal.App.2d 774, 778.) Here, there was evidence the landslide has already encroached four feet onto the McGills’s twelve-foot driveway. Thus, the McGills’s driveway and property was “injuriously affected.” (Code Civ. Proc., § 731.)

Webb claims that “[t]o date, there has been no further movement of the hillside.” But the fortuity that the landslide has not encroached further does not eliminate the threat that it may do so. If the landslide were to block access to the McGills’s home, they would suffer significant harm. On the other hand, the only hardship Webb identifies is the cost of building a retaining wall. Moreover, these are costs Webb may recoup if, as he contends, installing and maintaining the driveway caused the soil instability. The trial court did not abuse its discretion in determining the balance of hardships tipped in favor of granting the injunction. (Wilms v. Hand (1951) 101 Cal.App.2d 811, 816 [affirming grant of preliminary injunction because “if defendants’ claim . . . is correct, they will suffer little damage from the preliminary injunction”].)

V. Webb’s Remaining Arguments Fail

Webb complains that Glomb’s report was “unsigned, conclusory and lacked detail,” and that “[h]ad the court been willing to review Raines’ supplemental declaration, its findings might well have been different.” We cannot consider this argument, which “in effect asks this court to reweigh the evidence.” (Ryland Mews Homeowners Assn. v. Munoz, supra, 234 Cal.App.4th at p. 712.)

We reject the McGills’s argument that the preliminary injunction is prohibitory. The injunction requires Webb to build a retaining wall and is therefore mandatory, not prohibitory. (Ryland Mews Homeowners Assn. v. Munoz, supra, 234 Cal.App.4th at p. 712, fn. 4.) As Webb points out, mandatory injunctions are “not permitted ‘except in extreme cases where the right thereto is clearly established.’ ” Webb contends the right to an injunction was not clearly established because “the cause of and responsibility for any soil instability had not yet been determined.” But, as explained ante, this analysis conflates the McGills’s entitlement to a preliminary injunction with questions relating to the cause of, or responsibility for, the landslide. While courts are more reluctant to grant mandatory injunctions, “in a proper case it is never denied.” (Allen v. Stowell (1905) 145 Cal. 666, 669.) Having closely scrutinized the court’s mandatory injunction order, we discern no abuse of discretion in requiring Webb to build a retaining wall pending a trial on the merits.

DISPOSITION

We affirm. The McGills are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

 

_________________________

Jones, P. J.

WE CONCUR:

_________________________

Needham, J.

_________________________

Burns, J.

A158900