Opinion
B320388
02-23-2024
CITY OF AGOURA HILLS Plaintiff and Respondent, v. SHAHNAZ BINA et al., Defendants and Appellants
FisherBroyles; Paul J. Beard II, for Defendants and Appellants. Dapeer, Rosenblit &Litvak; William Litvak and Eric P. Markus, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LC106878 Huey P. Cotton, Jr., Judge. Affirmed.
FisherBroyles; Paul J. Beard II, for Defendants and Appellants.
Dapeer, Rosenblit &Litvak; William Litvak and Eric P. Markus, for Plaintiff and Respondent.
MORI, J.
Defendants and appellants Shahnaz Bina and Falcon Hill Vineyard, LLC (collectively "appellants") appeal from a judgment entered in favor of plaintiff and respondent City of Agoura Hills (the City) finding that when appellants used heavy equipment to grade at least 281 cubic yards of earth, without obtaining the requisite permits, they created a public nuisance. Following a bench trial, the trial court granted declaratory and injunctive relief, ordering appellants to remediate the nuisance by either restoring the property to its pre-grading condition or by obtaining the permits necessary to legalize and complete the earthwork.
On appeal, appellants contend the trial court's determination that the earthwork performed on the property constituted "grading"-requiring both grading and conditionaluse permits under the City's municipal codes-was unsupported by the evidence and based on an erroneous interpretation of the codes. Appellants argue that the heavy equipment was brought on to the property to perform various tasks that did not require permits, including routine weed abatement and preparation for the planting of a vegetable garden. Appellants further contend the trial court abused its discretion in issuing various evidentiary rulings admitting and excluding testimony. Finally, appellants contend that even if they violated any sections of the City's municipal code, the City failed to separately establish they created or maintained a nuisance. We disagree with their contentions and discern no reversible error.
BACKGROUND
A. Factual Background
1. Original Purchase of Property in 2013
On or about September 12, 2013, Shahnaz Bina purchased 2.81 acres of undisturbed, rolling hillside in Agoura Hills. The vacant parcel sloped at an average of 30 percent. No access road or pathway had ever existed on the property.
The zone in which the property is located is the City's residential, very low-density district (RV District). (Agoura Hills Municipal Code, (AHMC) § 9221, et seq.) The RV District is "intended for large lot development suitable for equestrian and agricultural oriented uses as well as areas with 25 percent or greater slope which require careful design consideration to minimize grading and visual impact." (AHMC, § 9221.) "Only those uses which are complimentary to and can exist in harmony with such limitations shall be permitted." (AHMC, § 9221.)
The property is also subject to the regulations of several overlay zoning districts (zoning overlays). Zoning overlays supplement requirements applicable in the zone in which a particular parcel is located. One zoning overlay is the Hillside and Significant Ecological Areas District (Hillside Ordinance). The Hillside Ordinance is designed to "preserv[e] the natural character of the hillsides and valleys" and "ensure[ ] the preservation of the scenic viewshed." Its purpose is also to "protect residents from geologic hazards, such as unstable soils and erosion" and "[e]ncourage minimal grading which relates to the natural contours of the land." (AHMC, § 9551, et seq. [OA codes]); AHMC, § 9652, et seq. [Hillside codes].) Even if a specific use may be expressly permitted in the RV District, (AHMC, §§ 9221.1-9221.2) it can only be undertaken on a hillside if it comports with the City's Hillside Ordinance, in addition to any other applicable regulations.
"Hillside area" is defined as any parcel of land with an average slope of greater than 10 percent. (AHMC, § 9652.12(B).)
2. Denial of Conditional Use Permit for Large-Scale Residential Development in May 2016
On October 21, 2014, Bina submitted an application to the City to obtain a conditional use permit authorizing the construction of a large-scale residential development on the property consisting of (1) a 4,374-square-foot single family residence, (2) an 800-square-foot detached garage, (3) a 700-square-foot second dwelling unit, (4) a 1,160-square-foot storage/utility room with a basement, (5) a 300-square-foot tack room, and (6) a 5,356-square-foot swimming pool. The City's Planning Department worked with Bina, providing plan checks and guidance regarding necessary changes to her development plans and reports and subsequently recommended that the City's Planning Commission approve the application.
However, Bina's proposed development was opposed by nearby property owners who testified to the Planning Commission that the project was inconsistent with the character of their neighborhood. In May 2016, after hearing from numerous interested parties, the Planning Commission denied Bina's application.
Bina appealed the decision of the Planning Commission to the City Council, and in August 2016, after a public hearing, the City Council voted to uphold the Planning Commission's denial. Bina was notified of the City Council's decision by the Planning Department and further informed of her option to seek judicial review of the decision. Bina did not seek judicial review.
Bina was also informed that she could submit a new development application for consideration to the City of Agoura Hills.
3. In 2017, Bina Incorporates and Transfers Title to Falcon Hill Vineyard, LLC, Claims Right to Farm, and Commences Earthwork on Property
In April 2017, Bina formed Falcon Hill Vineyard, LLC and transferred title on the property to Falcon Hill in May 2017. That month, Bina obtained a Certified Producer's Certificate from the California Department of Food and Agriculture authorizing her to sell eucalyptus, peppercorn, and sage, all of which grow naturally on the property, at farmers' markets.
In July 2017, after being cited twice by the City for installing an unpermitted storage container on the property, Bina sent the City a "Notice of Legal Claim" in which she expressed her grievances over the denial of her previous conditional use application and claimed the property is "important farmland." According to Bina, this entitled her to have "storage, barns, and farm related structures" on the property "with no need for a permit."
On January 10, 2018, the City received multiple complaints that Bina was using heavy equipment to grade the property. A City inspection the following day found appellants used a bulldozer to cut a road into the uppermost, steepest portion of the hillside on the property. The City's inspection further revealed that dirt had been distributed down the slope using Bobcat loaders.
During the inspection, City staff requested that Bina stop her work until she explained why she was grading. When Bina ignored the City's requests, it issued a Stop Work Order. Later that same day, Bina sent an email to the City's Director of Public Works, Ramiro Adeva, asserting she had "the stamp [of] approval" of the Fire Department "for the road I am putting in," and claimed the City had no jurisdiction to prevent her from "preparing my land for planting." The next morning, Bina's son, Babak Bina, followed up with an email to Adeva, stating the City had no authority to regulate "significant farm [sic] land."
Adeva responded on January 12, 2018, stating the work that had been done required a grading permit and explained the City wanted the work to stop until appellants could "clarify why all the grading [was] being done." Adeva invited Bina to meet with him so that he could learn about the scope of her work and help her prepare the appropriate documents for City review and approval.
Bina did not respond to Adeva's invitation. Instead, she installed an opaque fence along the perimeter of the property and resumed her earthwork on February 15, 2018. On February 15, 2018, witnesses reported what appeared to be a six-foot-wide driveway had been cut into the hillside. When a Los Angeles County Sheriff's Deputy responded to the Property to assist the City in serving a second Stop Work Order, Bina told him "she did not need permits to do the work she wanted to do" because the property was agricultural land. Bina stated that absent a court order, she would not stop. The City commenced this action the next day.
B. Procedural History
1. In February 2018, the City Files Suit and Seeks Injunctive Relief
The City filed its complaint on February 16, 2018, a first amended complaint on October 30, 2019, and a second amended complaint on February 22, 2021, alleging causes of action for public nuisance and violations of the AHMC. The City sought declaratory and injunctive relief. The second amended complaint (SAC) alleged appellants violated the AHMC by (1) grading without a permit, (2) using the property without first obtaining the required approvals, (3) encroaching into the protected zone of an oak tree without an oak tree permit, and (4) maintaining a nonpermitted storage container on the property.
Concurrently with the complaint, the City filed an application for a temporary restraining order and a preliminary injunction. In opposition, Bina asserted she was preparing and tilling for farming purposes and required no permits. Bina further stated she was planning on bringing in "top soil . . . from outside to fill the naturally eroded areas" and did not get the chance to complete the tilling and install retaining walls where needed because the City prevented her from completing her work.
On February 20, 2018, and March 12, 2018, respectively, the trial court issued a temporary restraining order and a preliminary injunction. The trial court found the City had shown a reasonable probability appellants had performed grading without required permits and maintained an unpermitted storage container at the property. Appellants were enjoined from violating the City's Stop Work Order and performing any further work on the property without first obtaining required permits. Appellants were also ordered to allow the City to enter the property, without notice or a warrant, to ensure compliance with the terms of the injunction.
2. Trial Court Conducts Bench Trial
From September 13, 2021, to September 16, 2021, the trial court conducted a bench trial remotely. The main issue was whether the earthwork undertaken by appellants constituted unpermitted grading under the City's regulations.
Prior to trial, the court granted summary adjudication in favor of appellants for claims based on the unpermitted storage container and oak tree encroachment. The court noted the oak tree encroachment was now moot because appellants had relocated the storage container and further found any separate claim based on an unpermitted storage container failed as a matter of law because the small storage structure itself did not require separate permits or approvals.
The City's expert George Mekhaiel, a California licensed civil engineer with a focus on grading and a land surveyor with 15 years of experience, opined that grading had been conducted at the property that disturbed 281 cubic yards of earth material. Specifically, Mekhaiel testified that "cuts of three to four feet" into the property were so severe he could not think that "anything but grading had occurred" on the property. To assist the trial court in visualizing the volume of earth that was disturbed, Mekhaiel explained that 250 cubic yards of dirt, stacked vertically, would be as tall as the towers on the Golden Gate Bridge. Mekhaiel testified the grading performed by Bina was consistent with the grading that would have been performed for the project outlined in Bina's previous conditional use application for her proposed residence. Based on his personal visit to the Property in 2018, Adeva opined that grading had "[a]bsolutely" occurred.
Thomas, the Community Development Director for the City of Agoura, testified as both an expert and as the City official charged with implementation of the City's zoning laws. Thomas testified regarding the history, purpose, interpretation, and implementation of the City's municipal code, as well as the customs and practices of the planning and land use community. She also testified that grading need not be related to any structure or building to require a permit. For example, the grading can be related to paths, referred to as "berms," or "roads."
Turner, a neighboring property owner, testified that no path or road had ever existed on the property and that residents in the area, including Bina, had typically performed weed abatement in or around May of each year, rather than in January. Turner also described photographs that she took in January 2018, which depict the earthwork that occurred on the property.
Bina testified that heavy machinery was brought on to the Property to perform weed abatement and prepare a 160-square-foot area for a vegetable garden. Bina testified she intended to place the 160-square-foot vegetable garden at the steepest part of the property because the flatter lower portion would be too close to allow the installation of a septic tank near the house she wanted to construct.
The parties filed their closing briefs on October 18, 2021.
3. Trial Court Enters Final Judgment in 2022
On February 4, 2022, the trial court entered judgment in favor of the City. Citing provisions of the AHMC, the court found that appellants' use of heavy equipment to move at least 281 cubic yards of earth material, cutting what appeared to be an access road into the steepest part of the hillside, constituted grading in violation of the AHMC. The court further found that the failure of appellants to obtain a grading permit and a conditional use permit prior to grading the property violated provisions of the City's municipal code. As a result, appellants' conduct qualified as a public nuisance under section 1200 of the AHMC. The judgment included detailed injunctive orders requiring appellants to remediate the public nuisance by restoring the property to its condition as of November 17, 2017 or by obtaining the permits necessary to legalize the earthwork and complete it.
On April 4, 2022, appellants timely appealed.
DISCUSSION
A. Relevant Standards of Review
First, an appellant challenging the sufficiency of the evidence must demonstrate that there is no substantial evidence to support the challenged findings. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 364-365; see also Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Under this deferential standard, findings of fact are liberally construed to support the judgment, and evidence is considered in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the trial court's findings. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613 [applying substantial evidence review in context of bench trial].)
Second, we review "questions of law de novo." (RSCR Inland, Inc. v. State Dept. of Public Health (2019) 42 Cal.App.5th 122, 131.) Thus, "[w]here there is an issue of statutory interpretation, courts will review such questions de novo and apply the 'principles of statutory construction.'" (Fair Education Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884, 895.) Similarly, a court "review[s] de novo rulings on questions of law such as interpretation of . . . municipal codes." (Sieg v. Fogt (2020) 55 Cal.App.5th 77, 88.)
Third, a trial court's evidentiary rulings, including the admission or exclusion of expert testimony, are reviewed for abuse of discretion. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281; see also Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) Even if error is shown, prejudice is not presumed; an appellant has the burden of affirmatively demonstrating prejudicial error. (Code Civ. Proc., § 475; Evid. Code, § 354; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 336 [reversal only warranted when appellant shows prejudice and the probability of a more favorable outcome].)
B. The Trial Court's Finding that Appellants Violated the City's Municipal Code by Failing to Obtain a Grading Permit is Supported by Substantial Evidence
The trial court found appellants failed to obtain a grading permit, as required under Appendix J of the California Building Code and the AHMC. The record and relevant regulations and codes support this conclusion.
"Title 24, part 2 of the California Code of Regulations is also known as the California Building Code and is published separately under that name." (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 259, fn. 2.) At the time of the events at issue in this case, the City had adopted as its building code, with some modifications, the 2016 edition of the California Building Code (CBC) (AHMC, § 8100). As pertinent here, the City adopted the provisions of Appendix J of the CBC (Appendix J) which apply to "grading, excavation and earthwork construction, including fills and embankments." (CBC § J101.1; AHMC, §§ 8100, 8103.) The relevant definitions of "grading" under the CBC are as follows: "excavation," which is also referred to as a "cut," is the removal of earth material by artificial means; "fill" is the deposition of earth materials by artificial means; and "grading" is an excavation or fill or a combination of both. (CBC, § J102.1.)
Subject to certain exemptions, Appendix J provides that no grading shall be performed without first obtaining a grading permit. The exemptions set forth in section 103.2 include, among other things, grading in isolated areas and disposal sites and for cemetery graves and mining. (CBC, § J103.2.)
Citing AHMC section 8100 and CBC section 101.2, appellants argue that the City's adoption of the CBC had the effect of limiting the City's grading regulations to "building-related earthwork." Section 101.2 of the CBC (entitled "scope") provides: "The provisions of this code shall apply to the construction, alteration, relocation, enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every building or structure or any appurtenances connected or attached to such building[s] or structure[s]" throughout the State of California. (CBC, § 101.2.) Section 8100 provides that the City's adoption of various codes, including the CBC, are "[f]or the purpose of prescribing regulations for erecting, construction, enlargement, alteration, repair, improving, removal, conversion, demolition, occupancy, equipment use, height and area of buildings and structures." (AHMC, § 8100.) In adopting the CBC, the City added a provision entitled "Grading" stating, "Grading requirements and permits shall be as required by Appendix 'J' of this code or the City of Agoura Hills regulations whichever is more restrictive." (AHMC, § 8103(c).)
Appellants argue that since Bina never constructed a building or structure on the property-and ostensibly never had any intent to do so-the City's grading laws did not apply to any earthwork she performed. However, as noted by the trial court, "nothing in Appendix J indicat[es] that its application is limited to instances of construction of a building." Moreover, as further observed by the trial court, appellants' contention that "the City's grading laws only apply when buildings or structures will be constructed on the finished grade" would lead to the absurd result of allowing an individual "to excavate the entirety of the [p]roperty-millions of cubic yards of earth-so long as they don't intend to build a house." (Italics added.) (See Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 437 [stating legal maxim that statutes should be construed so as to avoid absurd results].)
Next, appellants argue that even if their earthwork constituted grading, it was exempt from the permitting requirements under CBC section J103.2, which states that "[a] grading permit shall not be required for . . . ¶ [g]rading in an isolated, self-contained area, provided there is no danger to the public and that such grading will not adversely affect adjoining properties." The trial court, however, found "the evidence adduced at trial proved otherwise." The trial court noted the property was "located squarely in the middle of a residential neighborhood, surrounded by occupied residences" and was also "directly-up slope from an occupied residence." The court further found persuasive the City's expert, Thomas, who opined that the "isolated, self-contained exemption" would not excuse appellants from the grading requirements in light of the property's hillside location. Appellants have failed to demonstrate the trial court's interpretation was either unreasonable or unsupported by the evidence adduced at trial. (Sieg v. Fogt, supra, 55 Cal.App.5th at pp. 88-89 [stating reviewing court will accord "deference . . . to the degree the agency's decision is persuasive"]; see also Arterberry v. County of San Diego (2010) 182 Cal.App.4th 1528, 1536 [observing specific statutes control over general statements].) We note the court's interpretation is consistent with the Hillside Ordinance, which not only seeks to preserve the natural contours of hillsides but also to protect property owners and neighbors from geologic hazards created by unstable soils and erosion.
Finally, citing CBC section 105.2(6), appellants assert, in a conclusory manner, that no permit was required because the "dirt driveway" constructed by Bina was "less than 30 inches above grade." Subsection six of 105.2 provides that a permit is not required for "[s]idewalks and driveways not more than 30 inches (762 mm) above adjacent grade, and not over any basement or story below and [that] are not part of an accessible route." (CBC, § 105.2(6).) However, this exemption does not provide carte blanche to do any and all grading or other work needed to make such a sidewalk or driveway possible. Section 105.2 makes it clear that permit exemptions "shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction." In addition, the City amended this section of the CBC to add that "[g]rading requirements and permits shall be required by Appendix 'J' of this code or City of Agoura Hills regulations whichever is more restrictive." (AHMC, § 8103(c) [amending CBC, § 105.2].) As such, appellants have failed to demonstrate the trial court's determination that Appendix J required a grading permit was unsupported by the evidence or otherwise erroneous. (General Mills, Inc. v. Franchise Tax Bd. (2012) 208 Cal.App.4th 1290, 1305-1308; see also Sieg v. Fogt, supra, 55 Cal.App.5th at pp. 88-89; Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 896-897 [agency interpretation accorded greater deference when agency has expertise and technical knowledge].)
To the extent appellants argue the City failed to prove they violated the "site plan" requirement, we need not address the issue. The trial court found in favor of the City on the grounds that the appellants maintained a public nuisance by failing to obtain a grading permit and conditional use permit prior to performing the earthwork on the property. The trial court's injunctive orders require appellants to obtain the necessary permits, authorizations, and approvals to remediate the nuisance, noting this may or may not include a site plan review.
C. The Trial Court's Finding that Appellants Violated the City's Municipal Code by Failing to Obtain a Conditional Use Permit is Supported by Substantial Evidence
Section 9652.5 of the AHMC provides: "Either a conditional use permit or an architectural review approval shall be obtained before the issuance of any building or grading permit, approval of minor land subdivision, [or] importation of fill material for the purpose of altering natural terrain . . . in[ ] a hillside area."
After it determined grading was done without a permit under Appendix J, the trial court found a conditional use permit was required under the Hillside Ordinance. The trial court separately observed that Bina testified she intended to import fill material for the purpose of altering the natural terrain of the property, which itself triggers the need for a conditional use permit under section 9625.5.
Appellants contend no conditional use permit was required because they did not erect or construct a building and thus engaged in no "[d]evelopment" of the property as required under section 9222.4. Appellants' contention fails for several reasons.
Section 9222.4 of the AHMC provides: "The following uses may be permitted subject to a conditional use permit: ¶ . . . G. Development of property with an average slope of 10 percent or greater, subject to the provisions of section 9652 et seq."
First, the trial court found the contention forfeited because it was not raised as an affirmative defense in appellants' answer to the complaint. Appellants provide no argument as to why this finding was in error. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418-420.)
Second, and as also noted by the trial court, even if the argument were not forfeited, "it is a non-sequitur." Section 9652.5 expressly requires a conditional use permit prior to obtaining a grading permit, even if no building is constructed. As previously discussed, a grading permit was necessary under Appendix J.
Third, appellants' claim that they engaged in no "development" as required under section 9222.4(G) is based on the conclusory assertion that the term "development" in that provision is "narrower" than the definitions set out by the City for purposes of the RV district/zoning law. (AHMC, § 9120.) However, appellants cite no legal authority for this proposition. Moreover, the trial court found that appellants' use of heavy equipment to grade at least 281 cubic yards of earth material constituted "use and development of the property" pursuant to sections 9120.4, subdivision (J) and 9120.20 of the AHMC, which are the only AHMC definitions cited by both parties for these terms. Under the AHMC, "[d]evelopment" means "the activity of preparing land and constructing buildings or other facilities and improvements in order to establish a land use." (AHMC, § 9120.4(J).) "Improvement" means "any man-made actions which add to or enhance the value of land or buildings." (AHMC, § 9120.9(D).) "Use" means "the purpose for which land or a building is occupied, arranged, designed or intended, or for which either land or a building is or may be occupied or maintained." (AHMC, § 9120.20(B).) These definitions support the court's finding that Bina developed the land by preparing it and taking man-made action to enhance it for her use.
Finally, the trial court accorded significant weight to the opinion and testimony of Thomas in finding that a conditional use permit may be required even if a building is not erected. Thomas testified that section 9222.4(g) and 9652.5 read together, do not "create any opening" to obviate the need for a conditional use permit for grading. (See Berkeley Hills Watershed Coalition v. City of Berkeley, supra, 31 Cal.App.5th at pp. 896-897; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 (Yamaha) [courts should give more weight to agency interpretations when "the legal text to be interpretated is technical, obscure, complex, open ended, or entwined with issues of fact, policy, and discretion"].) In so doing, the trial court recognized it was not bound by Thomas' opinion, but found her "unchallenged agency interpretation" on the point was consistent with overall rules of statutory interpretation, which include the general rule that in the event of any potential conflict a specific provision will control over a broader provision. (Arterberry v. County of San Diego, supra, 182 Cal.App.4th at p. 1536.)
In sum, we find unpersuasive appellants' contention that no conditional use permit was required because they never engaged in "development" within the meaning of section 9222.4. We accordingly discern no error in the trial court's finding that appellants' failure to obtain a conditional use permit prior to grading the property violated provisions of the AHMC.
D. Appellants Have Failed to Demonstrate the Trial Court's Evidentiary Rulings Resulted in Reversible Error
Appellants argue that various witnesses and experts proffered by the City were allowed to testify to questions that "were within [the] sole province of the trial judge." Appellants also argue the trial court erred in excluding the testimony of their proffered expert witness. We discern no reversible error.
1. Admission of City's Expert Testimony
Although appellants' opening brief complains of error regarding the admission of testimony by "a myriad of witnesses and 'experts,'" it is only by reference to the cited portions of the record that the identity of the witnesses can be ascertained as Thomas, Turner, and Mekhaiel. Appellants generally argue these witnesses testified to ultimate legal questions.
In opposition to appellants' motion in the trial court, the City observed that courts routinely consider evidence of city officials' interpretation of their own ordinances and regulations, citing Yamaha, supra, 19 Cal.4th at p. 7 and Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 928 (Stolman) [based on Yamaha, court could consider zoning director's interpretation, but was not bound by it].)
Here, as in Stolman, Thomas testified regarding the City's interpretation and application of its own codes. And, as in Stolman, it was within the purview of the trial court to determine the degree of deference, if any, that should be afforded to Thomas' interpretation. (Stolman, supra, 114 Cal.App.4th at p. 928; see also Evid. Code, § 805 [expert testimony is not objectionable simply because it embraces the ultimate issue to be decided by the trier of fact].)
In its statement of decision, the trial court recognized the City's interpretation of its own code was not binding on the court, and appellants have failed to demonstrate the court failed to independently review the issue or acted contrary to this edict. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ["'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'"].)
2. Admission of Turner's Testimony
Appellants also cite to an objection raised to the testimony of Turner, a neighbor, on the grounds she testified to an "ultimate legal question." Turner testified to living adjacent to the property for many years, seeing a piece of equipment she referred to as "a small grader" on the property, and the visible changes to contours of the land. Appellants have failed to demonstrate the trial court considered this testimony for an improper purpose or otherwise deferred to Turner on any legal questions within the court's exclusive province.
3. Admission of Mekhaiel's Testimony
Appellants contend the testimony of the City's expert and surveyor, Mekhaiel, was "tainted" because it was based on information gathered in violation of their Fourth Amendment rights to be free of unreasonable searches and seizures. We disagree.
First, in its statement of decision, the trial court stated that appellants appeared to have waived any claim of a Fourth Amendment violation because such a claim was not timely asserted prior to trial. Appellants do not challenge this conclusion on appeal.
Second, the court found no credible evidence of a Fourth Amendment violation, and the record supports the court's ruling. Appellants argue that Mekhaiel relied on a survey "performed on or around April 6, 2018" and then argue that Bina never consented to any inspection "on that day." However, as the trial court aptly observed, nothing in the record establishes that the fieldwork performed as part of Mekhaiel's survey was performed on April 6, 2018, or that anyone entered Bina's property on that day. Appellants have failed to cite to any testimony that demonstrates otherwise. (Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1027-1028 [noting testimony must be read in context, accepting as true all inferences that might reasonably be drawn in favor of the judgment/relevant finding].)
Appellants reference testimony by Bina wherein she stated she consented to, and personally supervised, an inspection that took place on March 29, 2018.
4. Exclusion of Expert Testimony Proffered by Appellants
The trial court granted the City's motion in limine to exclude the testimony of appellants' expert, Keith Farrell. In its motion, the City argued that Farrell was not qualified to opine on the volume of earthwork performed by appellants. The City pointed out that in his deposition, Farrell admitted he had not received any significant training in surveying and was not licensed to conduct surveys. Farrell further conceded it was not within his expertise to determine if there were methods other than those employed by the City's expert and surveyor, Mekhaiel, to determine the volume of the grading. Farrell testified he did not know what Appendix J of the California Building Code was and had no experience or expertise regarding the City's municipal codes.
During trial, appellants proffered the testimony of Farrell to show "the nature and apparent purpose of the soil movement that occurred in January and February 2018." The trial court excluded the proffered testimony as speculation.
On appeal, appellants contend the trial court's exclusion of Farrell's testimony was error and resulted in prejudice because it would have "buttress[ed] Bina's testimony as to the intent and purpose behind the work on her vacant property in early 2018- namely, to till, smooth out a direct road into the property, and abate weeds[.]" (Italics added.) However, the trial court properly excluded such testimony as speculative and appellants have not shown Farrell was otherwise qualified to testify as to any matters that would have resulted in a more favorable outcome. (Evid. Code, § 354; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596; Sargon Enterprises, Inc. v. University of Southern California, supra, 55 Cal.4th at pp. 771-772 [trial court appropriately acts as gatekeeper by excluding expert testimony based on types of matters on which an expert may not reasonably rely or testimony that is speculative]; Paterno v. State v. California (1999) 74 Cal.App.4th 68, 106 [court's duty to examine entire cause arises "when and only when the appellant has fulfilled his duty to tender a proper prejudice argument"].)
E. The City Established Appellants Created or Maintained a Nuisance Per Se
Section 38771 of the Government Code states that "[b]y ordinance the city legislative body may declare what constitutes a nuisance." (Gov. Code, § 38771.) Under that authority, the City enacted section 1200 of the City's municipal code which provides, in relevant part, that "any condition caused or permitted to exist in violation of any of the provisions of this Code shall be deemed a public nuisance." (AHMC, § 1200.) The trial court determined appellants created or maintained a public nuisance per se under section 1200 of the AHMC by failing to obtain a grading permit and conditional use permit as required by various provisions of the AHMC.
AHMC section 1200, subdivision (c) provides in full: "(c) Public Nuisances. In addition to the penalties hereinabove provided, any condition caused or permitted to exist in violation of any of the provisions of this Code shall be deemed a public nuisance and may, by this city, be summarily abated as such, and every day such condition continues shall be regarded as a new and separate offense."
"Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance." (Italics omitted.) (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382.)
Notwithstanding section 1200, appellants argue the City was required to separately prove their conduct satisfied the criteria of Government Code sections 3479 and 3480 that define a public nuisance as being injurious to health, offensive to the senses, and/or obstructed another's free use of their property.
California Civil Code section 3479 defines a "nuisance" 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." California Civil Code section 3480 defines a "public" nuisance as: "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."
In Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, the court summarily rejected an argument like that which appellants make here, stating:
"The Club complains its development is not a 'public nuisance' as defined by Civil Code section 3479, providing a 'nuisance' is '[a]nything which is injurious to health, ....' That definition is not at issue. Violations of a planning code constitute a public nuisance .... [Citation.]" (Id. at p. 255.)
As in Golden Gate, no additional proof was required in this case in light of the City's own nuisance ordinance. (Ibid; see also Clary v. City of Crescent City (2017) 11 Cal.App.5th 274, 289 [observing that "[A]rticle XI, section 7 of the California Constitution, establishing local governments' police powers, provides local governments with authority to impose and enforce land use regulations, through a nuisance ordinance, or otherwise, without regard to whether the prohibited use falls within the Civil Code definition of nuisance," italics added]; City of Los Angeles v. Silver (1979) 98 Cal.App.3d 745, 750 ["[I]t is within a legitimate province of a city to legislatively declare violation of its zoning ordinances to be a public nuisance subject to abatement by injunction"].)
Moreover, the trial court found that appellants used heavy machinery to grade at least 281 cubic yards of earth and change the topography of a hillside in a residential area without the requisite inspections, authorizations, or permits. The City's expert testified the amount of earth moved, if stacked, would exceed the height of the towers of the Golden Gate Bridge. Appellants have failed to demonstrate the City's nuisance and summary abatement ordinance targeted conditions that fall outside the broad definitions of public nuisances outlined in sections 3479 and 3480-or otherwise exceeded the City's regulatory authority under California nuisance law. (See Clary v. City of Crescent City, supra, 11 Cal.App.5th at pp. 289-290; Golden Gate Water Ski Club v. County of Contra Costa, supra, 165 Cal.App.4th at pp. 255-256.)
Accordingly, and for the reasons discussed throughout this opinion, we discern no reversible error in the trial court's judgment.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: CURREY, P.J., ZUKIN, J.