Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV 236503
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
While a partition action was pending, the county issued orders requiring the owners of the property to either remove unpermitted improvements or bring the improvements into compliance with building codes. The parties were unable to agree on a scope of repairs to bring the conditions into compliance. The trial court granted the defendants’ request for a preliminary injunction restraining the plaintiffs from interfering with their efforts to make specified repairs that would satisfy the county’s order. We affirm the injunction as an exercise of the court’s authority to prevent waste.
BACKGROUND
The underlying proceeding is a partition action involving the Valley Ford Ranch (the property) in Sonoma County that Dorothy Bordessa and Barbara Lanker inherited from their parents. Each sister received an undivided one-half interest in the property and transferred that interest to a trust. The plaintiffs in this action are Alfred and Joseph Bordessa (the Bordessas), successor co-trustees of the Bruno Bordessa and Dorothy Bordessa Revocable Intervivos Trust (Bordessa Trust). The defendants are Fritz and Barbara M. Lanker (the Lankers), trustees of the Fritz and Barbara Lanker Living Trust.
The property has at least three structures: a bunkhouse, an implement shed (also called the calving shed or shop building) and a barn (also called the milk barn). Beginning in 1991, the Lankers leased the entire property to raise cattle, and their son, Ken Lanker, subleased the implement shed and surrounding area. The lease and sublease automatically renewed on July 1 of each year absent advance written notice of termination and were in effect in the 2004-2005 term with the Bordessas and the Lankers as co-lessors.
In April 2005, the Bordessas filed a complaint seeking partition of the property by sale. They alleged partition in kind was impractical because the property could not be subdivided under current zoning restrictions. The Lankers filed a cross-complaint seeking partition in kind. They alleged the property could be subdivided because it consisted of three legally established historical parcels.
In March 2007, we decided a prior appeal in this action. (Bordessa v. Lanker, A113226, filed March 27, 2007.) In about May 2005, the Lankers submitted to the Sonoma County Permit and Resource Management Department (PRMD) three applications for certificates of compliance with the Subdivision Map Act seeking recognition of the three historical parcels on the property. (Gov. Code, § 66499.35.) The Bordessas asked the PRMD to cancel the applications because they were co-owners of the property and did not join in the applications. The county put the applications on hold because of the Bordessas’ objections. The Lankers applied for a preliminary injunction ordering Bordessa to withdraw their objections to the applications and the court granted the injunction. (Bordessa v. Lanker, A113226, slip op. at 3-4.) We reversed because the injunction did not serve the purposes of interim relief: it did not preserve the status quo pending trial or protect any party’s interests pending trial. (Id. at pp. 7-8.) Moreover, the trial court made no findings that the Lankers would suffer irreparable harm if the administrative proceeding remained suspended or that they had a probability of success on the merits of their cross-complaint. (Id. at p. 8.) As a mandatory injunction that required the Bordessas to join in an application to which they objected, the order was subject to particularly strict scrutiny on appeal. (Ibid.) We observed that the court likely would have the power to issue the injunction after a partition trial if it concluded partition in kind was more equitable than partition by sale. (Id. at pp. 11-12.)
The Lankers’ request that we take judicial notice of our unpublished opinion in appeal number A113226 is granted. Their request that we take judicial notice of the trial court’s August 13, 2007 tentative decision on the manner of partition is denied on the ground it is not relevant. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262.)
In the meantime, the following developments occurred in the parties’ dispute. In addition to seeking partition of the property, the Bordessas alleged in their complaint that the Lankers allowed Ken to commit waste, including improper disposal of sewage and hazardous materials and unlawful and unpermitted use of the property, including the operation of a business in violation of county ordinances and the terms of the Lankers’ lease. They prayed for treble damages for waste as well as injunctive relief to prevent waste.
In April and May 2005, shortly after they filed the complaint, the Bordessas served the Lankers and Ken with 60-day notices to terminate their tenancies. They also served the Lankers with a three-day notice to comply with the terms of their lease by ceasing waste, unpermitted uses of the property, unpermitted alterations of the property and an impermissible sublease to Ken. The Bordessas sent a similar three day notice to Ken. They also stopped accepting rent payments from the Lankers.
In September 2005, Mark Friedman, a contractor hired by the Bordessas, inspected the property and identified numerous code violations and health and safety hazards. The structures had been illegally converted for unpermitted uses: the bunkhouse for residential use, the implement shed for welding or auto repair, and the barn for laundry and other applications. The most pressing dangerous conditions were electrical hazards and a faulty septic system. The electrical conditions placed the structures on the property in danger, and Friedman recommended that all electrical power on the property be shut off until the hazards were addressed.
The Sonoma County PRMD issued three notices of violation on April 7, 2006. The first notice stated permits had not been issued for construction work on the property, including a kitchen in the bunkhouse, an improvement to a portion of the milk barn, and miscellaneous electrical work. The owners were ordered to remove the unlawful construction or legalize it by obtaining all required permits and inspections. The other two notices addressed problems with the septic system and the illegal conversion of the shed to an automobile repair shop.
The Lankers’ attorney met with a PRMD official to determine the specific actions required to comply with the notices of violation. In an April 18, 2006 letter, he set forth his understanding of the required actions. Those actions included removing the stove, sink and wasteline in the bunkhouse; pumping the septic tank; not occupying the bunkhouse unless and until the septic system had been repaired or replaced; not using the shed for the welding or repair of vehicles except for work incidental to the agricultural use of the property; and not storing the grinders and welders in the shed, although they could be stored in another building on the property. Additionally, the letter stated:
“With respect to the work done in the barn next to the bunkhouse, I understand that the following will satisfy the PRMD: (1) Either remove the wallboard installed in the barn or get a permit to have its installation approved; and (2) The washer and dryer need to be disconnected and the plumbing that connected them to the waste line needs to be removed.
“I understand that the ‘miscellaneous electrical’ problems referred to in the notice refer to conditions in the barn next to the bunkhouse . . . and that the following work needs to be done by a licensed electrician pursuant to a permit: (1) Any splices of electrical wires not in junction boxes need to be placed in junction boxes; and (2) Any open runs of romex cable below eight feet need to be either moved above eight feet or covered in compliance with the code.”
In a May 9, 2006 letter, the PRMD confirmed the substance of the Lankers’ letter with one exception: “Regarding the ‘miscellaneous electrical’ problems identified in our notice, please include the electrical service(s) and subpanels for the bunkhouse and barn, which require repairs and or replacement. Specifically, water conduit is being used for electrical conduit, conductors are tapped into the service side (unprotected) of the subpanel, the services are ungrounded, aluminum conductors are directly tied to copper conductors and the cabinet boxes have been repair[ed]/modified with unlisted parts.”
On May 9, 2006, the Lankers told the Bordessas that Ken and his girlfriend no longer lived on the property and that they planned to take all of the actions necessary to comply with the county notices as outlined in their April 18 letter, including performing the electrical work and obtaining a permit for the sheet rock in the barn.
On May 25, 2006, the county issued two notices and orders. One of those notices ordered the owners either to remove the improvement to a portion of the milk barn and miscellaneous electrical work or to legalize the construction with permits and inspections.
In May, July and October, 2006, Friedman inspected the property and found what he deemed to be evidence that the bunkhouse was still being used as a residence (furnishings, personal property, appliances and fresh trash were present, and on one occasion the television was on) and the shed was still being used for metalwork or vehicle repair (on various occasions metal machining tools, welding equipment, fresh metal shavings, fresh trash, and metal pipes or bars were present in and around the shed).
On January 25, 2007, the Bordessas charged the Lankers with misusing the property. They demanded the Lankers immediately remove from the property their personal property in the bunkhouse and all of the metalwork and vehicle repair items in and around the structures. They also asked the Lankers to remove all electrical meters and services except what was necessary to operate the water pump for livestock.
On February 7, 2007, Friedman again saw evidence that the bunkhouse was being used as a residence and that the shed and possibly the barn were being used for metalwork or vehicle repair. He also observed a large boat and other non-agricultural vehicles on the property. Moreover, the lock on the bunkhouse had been changed and there was a new lock on the implement shed.
The Bordessas again demanded that unlawful uses of the property cease and improper items be removed in a February 14, 2007 letter. If the conditions were not immediately remedied, they would seek injunctive relief from the superior court. The Lankers responded that the bunkhouse was not inhabited or used for cooking or overnight lodging. The Lankers sometimes rested, warmed up or prepared a snack there when they were on the property and Ken and his girlfriend were storing personal belongings there until they found a permanent place to live. The material and equipment in the shed and barn, including welding torch and grinder, were incidental to farm use. The boat had always been on the property for use in connection with the livestock operation (retrieving cattle from the estero) and it was being repaired.
The Lankers requested a meeting to work out an agreed scope of repair. They sought agreement on what they called relatively minor repairs: correcting the electrical problems in the bunkhouse, shed and barn and getting a permit for the sheetrock in the barn. They represented that these repairs were the only corrective actions required by the county that still needed to be done. The Lankers objected to a bid for electrical work the Bordessas had submitted because it went beyond the county’s requirements. The Bordessas responded by stating, “The issues have moved beyond what [the PRMD] may have been considering nearly a year ago. [¶] . . . [¶] In the context of the improper and undisclosed uses of the premises being made by the Lankers, the Bordessas are not receptive to paying for electrical work.”
On February 21, 2007, the Bordessas applied for a preliminary injunction preventing the Lankers from using the septic system on the property; from using electrical service to the barn or to any residential units, workshops or garages; from using the property for metalwork or for the storage or service of boats or non-agricultural vehicles; and from using the property for any purpose without adequate insurance. The requested injunction also required the Lankers to shut off all electrical power on the property except what was needed to service or operate water pumps for livestock; to remove personal property, vehicles and tools not reasonably necessary for livestock operations; and to provide proof of adequate insurance. The court issued an order to show cause why a preliminary injunction should not issue and ordered the parties to meet and confer prior to the hearing.
In a February 23, 2007 letter, the Bordessas conditionally agreed to certain repairs. They agreed to the removal of wallboard in the barn if personal property items (jewelry repair items) were removed as well. They agreed to the electrical work identified in the Lankers’ April 18, 2006 letter to the PRMD and the PRMD’s May 9, 2006 response on the following conditions: the hiring of a mutually agreed upon contractor; the Bordessas’ paying one-half the cost up to a maximum $7,000; an understanding that agreement to the work would not waive the Bordessas’ objections to improper uses of the property; the Lankers’ agreement not to use the bunkhouse for residential purposes absent a written lease agreement with all owners; the Lankers’ agreement not to do metalwork on the premises; removal of all personal property from the bunkhouse; removal of nonagricultural vehicles, auto parts, barrels, metal piping, and scrap metal from the property; and the Lankers’ producing keys and copies of insurance policies for the Bordessas.
The parties met and conferred on March 5, 2007. The Bordessas again refused to agree to electrical work unless all of the demands in their attorney’s February 23 letter were met.
On March 8, 2007, the Lankers applied for a preliminary injunction preventing the Bordessas from interfering with the Lankers’ hiring Ray Coleman to perform the electrical repairs identified in the Lankers’ April 18, 2006 letter to the PRMD and the PRMD’s May 9 response; from interfering with the Lankers’ hiring a licensed contractor to obtain a permit and perform necessary work to obtain approval of the sheetrock in the barn; from objecting to the issuance of building permits for the work described above; and from interfering with the performance of said electrical and other work.
The Lankers’ proposed injunction also prevented the Bordessas from using keys they had been provided to access buildings on the property without providing 24 hours notice, except in an emergency and the court granted this part of the injunction. The Bordessas do not challenge this aspect of the injunction on appeal. Therefore, we do not again refer to it.
Barbara and Ken Lanker averred that all of the corrective work required to satisfy the county had been performed except for the electrical repair work identified in the correspondence between their attorney and the PRMD and the inspection of the sheetrock in the barn. The Lankers were willing to pay for the electrical and sheetrock work and for any required permits, “without waiving the right to request reimbursement or credit from the court in connection with the partition of this property.” Barbara Lanker averred that permits for the work could not be obtained unless all owners signed for it.
At a March 28, 2007 hearing, the court granted the Lankers’ requested injunction and a modified version of the Bordessas’ requested injunction. The court issued a written order granting the Lankers’ injunction on April 13, 2007. The Bordessas did not submit a written order on their injunction for the court’s signature and they have not sought to enforce the injunction. They appeal from the order granting the Lankers’ injunction. An order granting a preliminary injunction is immediately appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6).
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Discussion
A preliminary injunction is an order providing temporary relief pending full adjudication of the merits of a claim. (White v. Davis (2003) 30 Cal.4th 528, 554 (White).) The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the underlying claims. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) The party moving for a preliminary injunction is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending adjudication on the merits. (White, at p. 554.) The trial court must consider two factors: the likelihood the plaintiff will prevail on the merits; and the relative balance of harms that is likely to result from the granting or denial of interim relief. (Ibid.) The greater the 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, 678.) We review an order granting a preliminary injunction for abuse of discretion. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)
The Bordessas argue the injunction was not warranted because it was designed to changerather than maintain the status quo pending full adjudication of the merits of the action.
Maintaining the status quo is only one of several grounds for issuing a preliminary injunction. (§ 526, subd. (a).) A preliminary injunction may also be issued “[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.” (§ 526, subd. (a)(2), italics added.) The Bordessas themselves allege that the continuing presence of unpermitted improvements on the property constitutes waste. In an amended and supplemental complaint filed on April 11, 2007, the Bordessas specifically identify the unpermitted electrical wiring and unpermitted alteration of physical structures as waste. We agree these conditions constitute waste. First, the conditions led to the issuance of county notices and orders that required the owners to either remove the improvements or bring them up to code. Failure to comply with the county orders could result in mandatory civil penalties, and charges for the costs of abatement and investigative fees; the recording of a notice of abatement on the property; and a lawsuit against the owners. Thus, the electrical conditions and the sheetrock alone placed the property in danger of incurring the financial burdens of county action. Second, the Bordessas themselves submitted evidence that the unpermitted electrical wiring constituted a dangerous condition on the property. Their contractor averred that the electrical conditions placed the bunkhouse, shed and barn in danger and in February 2007 recommended that all electrical power be shut off until the hazards were addressed. That is, the electrical conditions posed an imminent danger of physical damage or waste.
The Bordessas present the argument that there was no urgency in correcting these conditions, citing Barbara Lanker’s February 2007 averment that “there is no greater danger today caused by these [electrical] conditions than there was a year ago.” The fortuity that a hazard has not led to actual physical damage in a year’s time does not eliminate the hazard’s threat to the property. The Bordessas’ own contractor averred in February 2007 that the electrical conditions placed the structures in danger and it was his then-current opinion that all power be shut off until the hazards were addressed. And the Bordessas themselves sought injunctive relief in February 2007 based in part on the existence of health and safety hazards on the property.
The Bordessas also claim that issuance of the county orders did not cause the Lankers any harm since the orders did not interfere with their use of the ranch. The potential harm, however, was the imposition of penalties for violations and the failure to remediate, as well as physical damage to the structures. It would be unreasonable to assume without express assurances from the county that the orders would never be enforced or to assume the ongoing hazards would never result in damage to the property.
The Bordessas make the argument that the Lankers failed to demonstrate these particular repairs were the only way to comply with the county orders, as opposed to making other repairs or demolishing the unpermitted work. They suggest that disconnecting the illegal wiring would also satisfy the county. The Lankers, however, offered that it was necessary to have electrical power to the structure for purposes incidential to their agricultural use of the property. Because the Lankers demonstrated that some action was necessary to comply with the orders and that their proposed repair work would satisfy the county, the trial court did not abuse its discretion by deciding the Lankers’ proposed repair work was the best proposed interim measure to prevent waste to the property.
The Bordessas next assert that the repair work authorized by the injunction goes beyond what was necessary to comply with the county orders. This assertion is not supported by the record. The injunction expressly refers to the scope of work set forth in the April 18 and May 9, 2006 letters exchanged by the Lankers’ attorney and the PRMD, which expressly discussed the scope of repairs necessary to comply with the county orders. Barbara and Ken Lanker averred that all other required corrective action had been completed. The evidence in the record, therefore, shows that the repair work authorized by the injunction would eliminate the risk of county penalties based on a failure to comply with the orders for remediation.
The Bordessas also argue the injunction is vague because item four of the injunction refers to unspecified “electrical and other work.” We construe this phrase to refer to the work otherwise identified in the injunction: the scope of electrical repair work set forth in the April 18 and May 9, 2006 letters and “work needed to obtain county approval of the sheetrock in the barn.” We reject the Bordessas’ argument that the electrical repair is inadequately specified because it has not been translated into a contractor’s bid or work proposal. The electrical work identified in the April 18 and May 9 letters is sufficiently well identified.
The Bordessas cite the Lankers’ delay in seeking the injunction (11 months after the April 2006 notices of violation and 10 months after the May 2006 orders for remediation) as demonstrating the absence of any urgency. But during that 10-month period, the Lankers consulted with the county about what specific actions would comply with the notice and order, took action to comply with other aspects of the county notices and orders, and negotiated with the Bordessas over an appropriate scope of additional repairs. When a party seeking injunctive relief delays in order to seek a compromise with its opponent, the trial court does not abuse its discretion in refusing to deny relief on the ground of laches. (Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368, 1376.)
Although the Bordessas maintain the trial court failed to make any finding that there was a probability of success on the Lankers’ cross-claim for partition by sale, no such express finding was required. (Conover v. Hall (1974) 11 Cal.3d 842, 850.) First, we presume the court made the requisite findings if there is substantial evidence in the record to support them. (Ibid.; MCA Records, Inc. v. Newton-John (1979) 90 Cal.App.3d 18, 23.) Secondly, the proper focus of the court’s inquiry was the Lankers’ allegation of waste, not the partition dispute, which was irrelevant to the purpose of the injunction. For the reasons stated above, the Lankers made that showing.
Irreparable harm and the balance of hardships were also well established by the record. As we have explained, if the county imposed financial consequences for failure to comply with the notices of violation and orders for remediation, or if structures burned down because of the electrical hazards, the total value of the property would have diminished. Because the Bordessas and Lankers each owned equal interests in the property, they would both suffer harm if waste occurred. The balance of hardships clearly favored granting the injunction.
The Bordessas argue that as co-owners of the property they had the right to withhold their consent to the electrical and sheetrock repair work and that the injunction infringed on that right. They cite a case holding that a cotenant cannot compel another cotenant to join in making improvements on common property. (Higgins v. Eva (1928) 204 Cal. 231, 238.) There are several reasons Higgins does not assist the Bordessas. First, the decision does not hold that one cotenant cannot unilaterally improve common property at its own expense. The injunction restrains the Bordessas from objecting to or interfering with the repairs, but does not require them to contribute to the costs of the work. Although the Lankers reserved the right to seek reimbursement from the Bordessas for the work, that issue has not yet been presented to or decided by the trial court. Nothing in the injunction predetermines the outcome of the issue. Second, Higgins holds that a cotenant in possession can unilaterally take action to protect common property and later obtain reimbursement from other cotenants for the expense. (Id. at p. 238.) Here, the repair work allowed by the injunction is designed to protect the property by satisfying the requirements of the county orders and eliminating physical hazards. If upon full adjudication of the action the court determines the repair work was in fact necessary to prevent waste, under Higgins the Lankers would have the right to reimbursement from the Bordessas.
The Bordessas’ practical objection to the Lankers’ requested injunction is that it denied them the right to impose remediation of their choosing, which they unsuccessfully sought in negotiations with the Lankers over the scope of repairs and other changes to the property. The Bordessas’ apparent goal in those negotiations was to completely eliminate what they perceived as improper uses of the property, specifically residential use of the bunkhouse and metalwork or vehicle repair in the shed or barn. Withholding their consent to the repair work was an available bargaining chip, however, only if the Lankers did not have the legal right to perform the work unilaterally without interference from the Bordessas. For the reasons already stated, the trial court correctly made a preliminary determination that the Lankers had that right. Regarding the Bordessas’ concerns about the Lankers’ alleged continuing improper uses of the property, the Bordessas could have pursued their own legal remedies for the alleged misuse. In fact, they did apply for a preliminary injunction to address those concerns and the trial court granted the injunction in large part. The Bordessas have neither sought to enforce the injunction nor appealed the court’s modification of the requested injunction. This appeal is not the proper forum to pursue their underlying concerns.
The Bordessas object to the injunction as having an unwarranted mandatory effect. A preliminary mandatory injunction is rarely granted and is subject to stricter review on appeal. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) In fact, the granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established. (Ibid.; Slatkin v. White (2002) 102 Cal.App.4th 963, 972; Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 448.)The Bordessas cite Barbara Lankers’ averment that the county requires all property owners to sign applications for building permits, arguing that the injunction impliedly compels them to sign an application for a permit for the covered repair work. We do not read the injunction this way. The injunction prevents the Bordessas from “[o]bjecting to issuance of building permits” for the electrical and sheetrock work. It does not expressly require them to sign for the permits. Assuming for purposes of argument that Barbara Lanker’s declaration is competent evidence of the county’s ordinary building permit practices or requirements, we do not anticipate that the county would refuse to issue permits on the Lankers’ signatures alone in the face of the injunction. In any event, even if the injunction required the Bordessas to sign for the permits, it would be justified by the clear evidence of an imminent physical danger to the structures on the property and the pending county orders threatening the imposition of financial burdens on the property.
Finally, the injunction challenged in this appeal is easily distinguishable from the injunction we reversed in the Bordessas’ last appeal. Here, the injunction is designed to prevent waste to the property pending final adjudication of the merits of the partition action. In the prior appeal, the injunction was not designed to minimize harms pending adjudication of the action; instead, it deferred legal issues that were central to the partition action to a county administrative proceeding. Here, permitting the stalemate over the scope of repairs to continue would have posed a risk of waste, i.e., irreparable injury to the financial interests of both parties. In the prior appeal, permitting the administrative proceeding to remain suspended did not present a risk of irreparable injury, nor did it impede the trial court from adjudicating the merits of the action. Here, the injunction simply restrains the Bordessas from interfering with repair work on the property. In the prior appeal, the injunction required the Bordessas to take a legal position contrary to their theory of the partition action. Here, the trial court clearly had the authority to issue a preliminary injunction to prevent waste. In the prior appeal, we were unable to identify any legal authority justifying the court’s injunction.
Disposition
The April 13, 2007 order granting the preliminary injunction requested by the defendants and cross-complainants is affirmed.
We concur JONES, P.J., NEEDHAM, J.