Opinion
F085134
12-14-2023
J & D WILSON AND SONS DAIRY, LP et al., Plaintiffs and Respondents, v. J. G. BOSWELL COMPANY et al., Defendants and Appellants.
Herr Pedersen &Berglund, Leonard C. Herr and Ron Statler for Defendant and Appellant. Wanger Jones Helsley, John P. Kinsey, Amanda G. Hebesha and Marisa L. Balch for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County, No. 22C0067. Valerie R. Chrissakis, Judge.
Herr Pedersen &Berglund, Leonard C. Herr and Ron Statler for Defendant and Appellant.
Wanger Jones Helsley, John P. Kinsey, Amanda G. Hebesha and Marisa L. Balch for Plaintiffs and Respondents.
OPINION
PENA, J.
The parties to this case and the events from which it arises are known to this court from prior appeals. In this latest installment, J. G. Boswell Company claims the trial court erred by issuing a preliminary injunction. We affirm the challenged order.
FACTUAL AND PROCEDURAL BACKGROUND
On our own motion, we take judicial notice of this court's files and opinions in Tulare Lake Canal Company v. Stratford Public Utility District et al., No. F084228; J & D Wilson and Sons Dairy, LP et al. v. J. G. Boswell Company et al., No. F084326; and Tulare Lake Canal Company v. Sandridge Partners, L.P. et al., No. F084439. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Litigation History
Sandridge Partners, LP (Sandridge), owns thousands of acres of land in Kings County. Much of the land is used for growing crops, but certain parcels (the subject property) are used for cattle grazing. The subject property is integral to a joint "feeder cattle" venture between Sandridge and J &D Wilson and Sons Dairy, LP, which they describe as involving "the feeding of cattle and profiting off the weight gain." During relevant time periods, portions of the subject property were occupied by approximately 1,500 mature cattle and at least several hundred calves.
The Tulare Lake Canal Company (TLCC) owns and operates a canal that delivers water to multiple shareholders for the irrigation of over 100,000 acres of farmland. Part of the canal runs over and through part of the subject property by virtue of an easement in favor of TLCC. The president of TLCC's governing board is Mark Unruh, who is also employed by J. G. Boswell Company (Boswell).
In 2021, Sandridge began construction of a water pipeline that would connect to a preexisting irrigation system serving farmland owned by Sandridge. Had the project been completed, the pipeline would have crossed underneath TLCC's canal on the subject property. TLCC opposed the project after learning the plans called for trenching through the banks and channel of its canal and reconstruction of the same once the pipeline was installed.
On January 25, 2022, TLCC filed a civil complaint in Kings Superior Court case No. 22C-0019 (the first trespass action). In the first trespass action, TLCC sought to prohibit Sandridge from constructing the pipeline. TLCC alleged it could not make water deliveries with a trench cut across its canal and, if errors were made in the pipeline's construction, TLCC might not be able to make future water deliveries to its shareholders. The first trespass action focused on the nature of TLCC's easement and the legal rights held by TLCC and Sandridge in relation to the canal and the subject property.
On January 26, 2022, TLCC and others moved vehicles and heavy equipment onto the subject property to prevent Sandridge from proceeding with the trenching phase of its pipeline installation. Sandridge responded by filing a cross-complaint against TLCC for trespass, aiding and abetting trespass, and nuisance. Sandridge later amended its crosscomplaint to name Boswell as an additional cross-defendant based on Boswell's alleged participation in the "blockade." Sandridge also pursued injunctive relief to stop TLCC, Boswell, and others from further engaging in such behavior.
On February 16, 2022, TLCC petitioned the Kings Superior Court for writ of mandate. The petition alleged, with regard to Sandridge's pipeline project, noncompliance with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) On February 26, 2022, Sandridge cut through the canal's banks, trenched through its floor, and installed cofferdams upstream and downstream of the work. Sheriff's deputies were called out to the property and immediately halted all construction.
On March 1, 2022, TLCC filed an ex parte request for a temporary restraining order (TRO) to prevent further installation of the pipeline on the subject property. The request was granted the next day, and an order to show cause was made as to why a preliminary injunction should not issue. The TRO was to remain in effect until March 4, 2022, when the order to show cause was scheduled to be heard.
The Present Litigation
On March 4, 2022 (the same day as the hearing on injunctive relief discussed above), the current lawsuit was filed by Sandridge, J &D Wilson and Sons Dairy, LP, James Wilson, Jr., and Dylan Wilson (collectively, plaintiffs). Plaintiffs asserted causes of action for trespass, public nuisance, and private nuisance against Boswell and Mark Unruh (collectively, defendants). The complaint alleged that "[b]eginning in early January 2022, and continuing to [the date of filing], [defendants ... intentionally, recklessly and improperly operated [a helicopter owned by Boswell] over the [s]ubject [p]roperty at altitudes below those prescribed by law and so conducted their flights as to be imminently dangerous to persons and property, including [p]laintiffs' cattle." Defendants were further alleged to have engaged in such behavior "to interfere with [p]laintiffs' grazing cattle business and in retaliation against Sandridge . for its commencement of [the pipeline installation]."
On March 14, 2022, plaintiffs applied for a TRO and an order to show cause regarding the issuance of a preliminary injunction. As prayed for in the complaint, the application sought to prohibit defendants from flying any aircraft over the subject property. On March 17, 2022, the trial court ruled it could not issue an order conflicting with Federal Aviation Administration (FAA) regulations by effectively creating a no-fly zone over the subject property.
At the trial court's urging, the parties stipulated to a TRO that required defendants to comply with certain provisions of the FAA's Air Traffic and General Operating Rules. (14 C.F.R. §§ 89-107 (2023).) In particular, the rules provide that "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." (14 C.F.R. § 91.13(a) (2023).) Helicopters may be operated below the 500-foot minimum altitude otherwise applicable to aircraft flying over "sparsely populated areas," but only if done "without hazard to persons or property on the surface." (14 C.F.R. § 91.119(c), (d)(1) (2023).)
The TRO was to remain in effect until the hearing on plaintiffs' request for a preliminary injunction, originally scheduled for May 2022. In April 2022, defendants filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16 (the "anti-SLAPP motion"). On May 11, 2022, the anti-SLAPP motion was denied. Defendants appealed the ruling, but it was ultimately affirmed by this court. (J & D Wilson and Sons Dairy, LP et al. v. J. G. Boswell Company et al (July 25, 2023, F084326) [nonpub. opn.].)
Due in part to the anti-SLAPP appeal, plaintiffs' request for a preliminary injunction was not heard until August 22, 2022. The matter was submitted based on the parties' briefing, oral argument, and various declarations and exhibits filed between March and July of that year. There was no live testimony.
Plaintiffs' Evidence
Plaintiffs' evidence included sworn declarations by four individuals.
Dylan Wilson described himself as a "joint venturer" in the aforementioned feeder cattle business. He attested to spending "on average at least four (4) days a week at the [s]ubject [p]roperty managing and checking on the health of the cattle." He further attested to personally witnessing the Boswell helicopter fly over the subject property "on a consistent and ongoing basis" from approximately February 2022 through March 11, 2022 (the date of his declaration). Dylan Wilson's declaration also included the following statements:
"These flights take place at least every other day and are flown low to the ground, at what I estimate to be no more than 50 feet off the ground. [¶] In connection with these flights, I have observed Boswell's helicopter to travel at a slow rate of speed over the [s]ubject [p]roperty for approximately one (1) hour at a time. These flights result in significant noise and disturbance to the air and ground and cause the cattle to become frightened and [run] in different directions. In this process, I have seen several cattle run into and/or through the barbwire and cable fences surrounding the area."
James Wilson, Jr., also described himself as a "joint venturer" in the feeder cattle business. He attested to being on the subject property "almost daily" and personally witnessing the Boswell helicopter fly over the subject property "on a consistent and ongoing basis" from approximately January 2022 through March 11, 2022 (the date of his declaration). The declaration of James Wilson, Jr., also included the following statements:
"These flights take place almost every day and are flown low to the ground, at what I estimate to be an altitude of only 35-40 feet. [¶] In connection with these flights, I have observed Boswell's helicopter to hover, or move at a slow rate of speed, over the feed lot and cow pastures located in Stratford off of Laurel Avenue of the [s]ubject [p]roperty. On average, the helicopter hovers above these two (2) areas for approximately 30 minutes at a time, causing the cattle below to become frightened, scatter and stampede. As a result, the cattle have run in all directions .., including into and/or through the barbwire and electric cable fences surrounding the area. This has resulted in not only stress to the cattle but lacerations, contusions and at least three (3) cattle with hurt or dislocated shoulders as a result of running into poles or other obstructions on the property."
Craig Andrew described himself as Sandridge's "Chief Operating Officer and Farm Manager." He attested to personally witnessing, "many times," Boswell's helicopter fly over the subject property "at dangerously low altitudes and in a manner that is dangerous to persons and property including [p]laintiffs' cattle." He further attested to having "personally witnessed, on more than one occasion, [p]laintiffs' cattle spook from the loud noise and wind from Boswell's helicopter, causing the herds to stampede, charge and run into, and over each other, and at times through the barbed wire and/or electric fencing containing them."
The declaration of Craig Andrew also included the following statements:
"On March 8, 2022, at approximately 2:15 p.m., I again personally witnessed Boswell flying its helicopter over a portion of the [s]ubject [p]roperty, and specifically the parcel located at Laurel Ave and California Highway 41.... [¶] This act of trespass .. caused [p]laintiffs' cattle, approximately 54 heifers and calves, to stampede and break through the five (5) wire electrified fence containing them. While [p]laintiffs' representatives attempted to locate and collect all the cattle that fled the pasture in an effort to escape Boswell's helicopter, one calf was able to hide thus preventing its relocation to the corrals. This calf later [wandered] onto Highway 41 at approximately 7:30 p.m. and was struck and killed by a towtruck."
James Wilson, Sr., described himself as the "Ranch Manager" for the feeder cattle venture and a daily visitor to the subject property. In his declaration of March 11, 2022, he attested to personally witnessing the Boswell helicopter fly over the subject property "on a consistent and ongoing basis" since early January of that year. His declaration also included the following statements:
"These flights are flown low to the ground, near the level of the power lines, at what I estimate to be at an altitude of only 50 feet."
"On average, the flights over the [s]ubject [p]roperty last for 30-40 minutes and create a loud noise and wind which spooks the cattle grazing below, causing them to stampede, charge and run into, and over each other, as well as at times into and/or through the barbed wire and/or electric cable fencing."
"On more than three (3) occasions, cattle have run through the barbed wire and/or electric cable fencing on the [s]ubject [p]roperty and onto various points of the neighboring California Highway 41. [¶] For instance, on or about February 23, 2022, Boswell's helicopter caused approximately 20 cows and calves to run through the fencing on the [s]ubject [p]roperty and onto California Highway 41; on or about March 1, 2022, another 15 cows and calves ran through the fencing onto the neighboring Highway; and on March 3, 2022, approximately 12 head of cattle ran onto the neighboring street."
The declaration of James Wilson, Sr., went on to discuss the incident of March 8, 2022, described in the declaration of Craig Andrew. James Wilson, Sr., stated, "I was called out to the scene of the accident by law enforcement and took [a] picture of the dead calf." The referenced photograph was attached as an exhibit.
On April 8, 2022, plaintiffs filed an amended version of James Wilson, Sr.'s declaration. This was done in response to defendants' submission of evidence showing the Boswell helicopter was not flown on February 23, 2022, nor on March 1 or March 3 of that year. The amended declaration stated, in pertinent part:
"On more than three (3) occasions, cattle have run through the barbed wire and/or electric cable fencing on the [s]ubject [p]roperty and onto various points of the neighboring California Highway 41. [¶] For instance, on or about February 24, 2022, Boswell's helicopter caused approximately 20 cows and calves to run through the fencing on the Subject Property and onto California Highway 41; Thereafter, during another flight by Boswell (I cannot recall the exact date) another 15 cows and calves ran through the fencing onto the neighboring Highway; and again, shortly thereafter (I cannot recall the exact date), approximately 12 head of cattle ran onto the neighboring street." (Boldface in original.)
In a supplemental declaration filed July 22, 2022, Craig Andrew attested that the Boswell helicopter had continued to fly over the subject property through at least May of that year.
Defendants' Evidence
Defendants' evidence included sworn declarations by three individuals. Most of the declarations had been filed in support of defendants' anti-SLAPP motion; they were relied upon again and incorporated by reference into defendants' briefing in opposition to injunctive relief.
Mark Unruh admitted the Boswell helicopter had been flown over the subject property numerous times during the relevant period. He insisted, however, that all such flights were done for purposes of investigation and evidence gathering in connection with TLCC's first trespass action and the CEQA writ proceeding. Mark Unruh denied ever flying the helicopter himself. According to his declaration, the flights at issue were piloted by one of two Boswell employees: Harold Graebe or Tim Bienlien. The declaration also included these statements:
"I have never seen a Boswell pilot harass or attempt to harass livestock. I have never seen cattle appear to be distressed by any of the flights I was on. I have never heard a Boswell pilot talk about harassing livestock until they reviewed documents from this case in which Sandridge Partners and joint venturers of Sandridge implicitly accuse them of harassing livestock. This includes Harold Graebe and Tim Bienlien."
Harold Graebe described himself as Boswell's "Chief Pilot" and noted his 33 years of FAA licensure as a helicopter pilot and prior experience as a "military pilot." He admitted to flying the Boswell helicopter on March 8, 2022, but stated the purpose of that flight "was to observe and possibly photograph the continued construction, if any, of [Sandridge's pipeline on the subject property]." He also admitted there was "a dairy facility" located along or adjacent to the flight path, but he denied flying over it.
Harold Graebe's declaration of April 6, 2022, included exhibits containing data obtained from "FlightAware," which is described elsewhere in the record as "the world's largest flight tracking and data platform." The FlightAware data was said to "comport[] with [his] memory" of neither hovering over any dairies nor flying the helicopter at low altitudes on March 8, 2022. Harold Graebe attested to believing he had maintained speeds of at least 85 miles per hour and altitudes roughly at or above 500 feet, i.e., "nowhere near the 50 feet alleged [in the declarations of Craig Andrew and James Wilson, Sr.]."
Although both sides proffered evidence obtained from FlightAware, the accuracy and reliability of the FlightAware data was a disputed issue. The trial court ultimately ruled the evidence was admissible "only as further proof" that the helicopter was flown on certain dates but not as proof "of altitude or exact flight pattern of the aircraft." We thus view the FlightAware evidence as having minimal relevance to the issues on appeal and have no reason to further summarize or discuss it.
The April 2022 declaration of Harold Graebe also included these statements:
"I am a licensed pilot with the FAA. My license is how I make a living. I like my job and do not want to lose that license. Mark Unruh has been accused of conduct that would subject him to discipline by the FAA, if he were a rated pilot. Reading the complaint and the declarations [filed by plaintiffs], it appears the person being accused of that conduct is actually me. I did not do that."
"Occasionally, my job requires that I fly low, particularly when the purpose of my flight is to inspect irrigation practices, irrigation results, and crop growth. When I must do so, I monitor the area around me to first identify potential safety issues like structures, trees, power lines, or the like. I also look for any cattle or other livestock that may be affected by the low flight. I have bene [sic] doing this a long time and am familiar with how to minimize the effect a low flight might have on nearby livestock. I then follow those practices. I do not harass cattle. It is both illegal and, frankly, being mean to animals is not my idea of fun."
"No one affiliated with J. G. Boswell, and that includes Mark Unruh ..., has ever asked me to harass cattle or other livestock in the [h]elicopter and, for the reasons stated above as well as a general sense of decency, if anyone did, I would say no and fly on, following my ordinary practice of avoiding livestock where possible and minimizing the effect of a low flight when I must do so near livestock."
Tim Bienlien declared he is employed by Boswell as a pilot and Harold Graebe is his supervisor. Tim Bienlien admitted to flying the Boswell helicopter on February 25 and 27, 2022, for the purpose of enabling his passengers to take photographs of Sandridge's pipeline project. As to both flights he attested, "At no time did I fly in a manner that would endanger people or property." He admitted to "fl[ying] as low as 20 feet" on the earlier flight to view activity in "the area around [TLCC's canal] with the pipeline on either side of it," but denied seeing any cattle nearby.
The declaration of Tim Bienlien also included the following statements:
"I am aware of two dairy facilities that are in the general area of the flight path. ... I was at about 500 feet as I flew more than a football field to the east of [one of the facilities]. I do not believe I have ever flown over the dairy facility west of Stratford at the northwest corner of Laurel and Highway 41."
"I am a trained and licensed helicopter pilot. When I see animals, I do my best to avoid them. When I fly near the community of Stratford, I fly at appropriate altitudes. I do not go over dairies or harass animals. When I see my helicopter is approaching a herd of cattle or other livestock, I climb at a reasonably safe speed to avoid them or, if it is safer, I go around them."
"Helicopters are used for various purposes in agriculture, including inspection of properties, their irrigation, their crops, and their water sources. From time to time, this will occasionally require flight near livestock. When this is necessary, I undertake measures to reduce the effect the [h]elicopter will have on the livestock to avoid spooking them. I do not cause cattle or other livestock to stampede."
"No one affiliated with J. G. Boswell, and that includes Mark Unruh . . ., has ever asked me to harass cattle or other livestock in the [h]elicopter and, for the reasons stated above as well as a general sense of decency, if anyone did, I would say no and fly on, following my ordinary practice of avoiding livestock where possible and minimizing the effect of a low flight when I must do so near livestock."
Trial Court's Ruling
On October 3, 2022, the trial court issued a written order partially granting plaintiffs' request for a preliminary injunction. Plaintiffs' request was denied in relation to defendant Mark Unruh due to insufficient evidence of him flying the helicopter or having "the authority to force the pilots ... to act [unlawfully]" during the flights.
Defendant Boswell, however, was enjoined as follows until entry of judgment in the case or the issuance of some other terminating order:
"When flying over the subject property, [Boswell] is ... restrained from operating the helicopter bearing tail number N531B in a careless or reckless manner so as to endanger the life or property of another, in a manner which is imminently dangerous to persons or property lawfully on the land beneath, and/or in a manner which carelessly or recklessly interferes with Plaintiffs' use of the same for the grazing of their feeder cattle." (Fn. omitted.)
Regarding plaintiffs' likelihood of prevailing on their claims, the trial court gave weight to the personal observations attested to by declarants Craig Andrew, James Wilson, Jr., Dylan Wilson, and James Wilson, Sr. The declarations of Harold Graebe and Tim Bienlien were impliedly given less weight. The ruling included these statements regarding the defense evidence:
"Tim Bienlien ... confirms that he has flown the aircraft as low as 20 feet to view activity on the canal by humans and heavy equipment. [Citation.] He also confirms that he flew 'about 500 feet' as he flew over dairy facilities in the area just [south] of Laurel Avenue [citation], but he did not believe that he ever flew over the [dairy] facility west of Stratford at the northwest corner of Laurel and Highway 41 [citation]. This conditional statement by Tim Bienlien is far from an express denial of the same. Furthermore, Mr. Bienlien confirms that the Boswell [h]elicopter was flown on February 25, 27, and March 8, 2022."
"Harold Graebe confirms that the Boswell [h]elicopter was [flown] on March 8, 2022 'to observe and possibly photograph the continued construction, if an[y], of a pipeline that was the subject of ongoing litigation between [Boswell] and Sandridge Partners, LLP [sic].' He also confirms that he flew in the area of a dairy facility that lies about a mile east of Stratford."
Regarding the necessity of injunctive relief, the trial court noted "that while the last date on which a disruptive flyover is specifically alleged to have occurred was in March 2022, Craig Andrew's [d]eclaration filed on July 22, 2022 indicates that the Boswell [h]elicopter continues to fly over the [s]ubject [p]roperty [citation]. Although flying over the [s]ubject [p]roperty is not, without more, a violation of either the law or the temporary restraining order issued by the court, the Boswell [h]elicopter's continued use of a flight path over or near the [s]ubject [p]roperty raises concerns regarding potential future incidents likely to lead to a multiplicity of judicial proceedings."
The trial court found Boswell would likely suffer "no harm" from the granting of injunctive relief since it is already obligated to comply with relevant FAA regulations and sections 21403 and 21407 of the Public Utilities Code. (See further discussion, post.) "[In contrast], denial of injunctive relief [would leave plaintiffs] subject to the Boswell [h]elicopter continuing to be flown over the [s]ubject [p]roperty in a manner which unreasonably interferes with [p]laintiffs' use of the same (potentially causing cattle thereon to be spooked and resulting in stampeding and/or escaping of cattle from the property onto neighboring parcels and/or rights-of-way) and/or places property or the public in danger."
DISCUSSION
Boswell identifies two issues to be decided in this appeal: "1. Whether the trial court's findings are supported by substantial evidence" and "2. Whether there is any evidence that non-issuance of the injunction would result in harm to [plaintiffs]." I. Legal Overview
Preliminary injunctive relief is authorized "[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." (Code Civ. Proc., § 526, subd. (a)(2).) "'As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits of its claim. [Citation.]' [Citation.] The purpose of such an order 'is to preserve the status quo until a final determination following a trial.'" (Costa Mesa City Employees Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305.)
"The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court." (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) "[T]rial courts should evaluate two interrelated factors[:] 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." (Id. at pp. 69-70; accord, White v. Davis (2003) 30 Cal.4th 528, 554.) "A trial court will be found to have abused its discretion only when it has '"exceeded the bounds of reason or contravened the uncontradicted evidence."'" (IT Corp., at p. 69.)
Boswell concedes the standard of review is abuse of discretion. However, because no live testimony was given below, Boswell alleges the trial court "never took the opportunity to evaluate the credibility of witnesses." Boswell thus purports to reason we are "in the same position as the trial court in determining the merits" of plaintiffs' request for injunctive relief. If Boswell is suggesting this court should evaluate the evidence de novo, we reject the argument. "[T]he applicable standards of appellate review of a [decision] based on affidavits or declarations are the same as for a [decision] following oral testimony." (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.)
"'Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. "[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, whether express or implied, 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.'" (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300, italics added.)
II. Analysis
A. Plaintiffs' Likelihood of Success on Their Claims
Plaintiffs have asserted three causes of action against Boswell: trespass, public nuisance, and private nuisance. "'The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.'" (Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 90-91.) Boswell presents no arguments regarding the first, third, or fourth elements.
"In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient." (San Diego Gas &Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) "In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements." (Ibid.) First, "the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., ... it caused the plaintiff to suffer 'substantial actual damage.'" (Id. at p. 938.) Second, "'[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable.'" (Ibid.) Boswell's briefing does not specifically address these issues.
To state a cause of action for public nuisance, "a plaintiff must allege [(1)] that a defendant created (or had active involvement in creating) a condition that was harmful to health or interfered with the comfortable enjoyment of life or property; [(2)] that the condition affected a substantial number of people at the same time; [(3)] that an ordinary person would be reasonably annoyed or disturbed by the condition; [(4)] that the seriousness of the harm outweighs the social utility of the defendant's[] conduct; [(5)] that the plaintiff did not consent to the conduct; [(6)] that the plaintiff suffered harm that was different from the type of harm suffered by the general public; and [(7)] that the defendant's conduct was a substantial factor in causing the plaintiff's harm." (Gregory Village Partners, L.P. v. Chevron U.S.A., Inc. (N.D.Cal. 2011) 805 F.Supp.2d 888, 901; see Civ. Code, §§ 3479, 3480, 3493; Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059.) Boswell addresses, in general terms, only the first and last elements.
"Under California law, an owner of real property owns not only the land but also the 'free or occupied space for an indefinite distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.' [Citation.] Under the Public Utilities Code, aircraft have a right to use airspace over private property 'unless at altitudes below those prescribed by federal authority, or ... conducted so as to be imminently dangerous to persons or property lawfully on the land or water beneath." (Powell v. County of Humboldt (2014) 222 Cal.App.4th 1424, 1441-1442, citing Pub. Util. Code, § 21403, subd. (a).) The Public Utilities Code also prohibits operating aircraft "in a careless or reckless manner so as to endanger the life or property of another." (Id., § 21407.) As previously discussed, FAA regulations are generally in accord. (14 C.F.R. §§ 91.13(a), 91.119(c), (d) (2023).) Plaintiffs' claims do not appear to be preempted by federal law or precluded by California law, and Boswell does not argue otherwise.
Boswell offers two arguments regarding plaintiffs' likelihood of success on their claims. First, it contends there was "no evidence that [Boswell] or its employees flew the helicopter near cattle." Second, it denies there was any showing of "a causal connection between [Boswell's] conduct and any actual harm suffered." In restating the latter argument, Boswell submits the causes of action are based on "the entirely coincidental events of a helicopter flying at around the same time that some cows jumped a fence."
Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (Edison Co. v. Labor Board (1938) 305 U.S. 197, 229.) Without supporting authority, Boswell argues the trial court needed to give greater weight to the declarations of Harold Graebe and Tim Bienlien because theirs were "direct and specific," while those of plaintiffs' declarants were "generalized" and "unspecific." Such arguments concern the evaluation of the weight of the evidence, not its legal sufficiency. Again, "we do not 'weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.'" (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1492.)
The individual plaintiffs, as well as Craig Anderson and James Wilson, Sr., all attested to personally seeing the helicopter fly low to the ground near cattle; observing the helicopter generate significant noise and wind while doing so; and watching cattle respond by stampeding and breaking through barbed wire and electric fencing. This evidence was not legally insufficient to prove what Boswell calls the missing element of "aeronautical misconduct." "Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact." (Evid. Code, § 411; see In re Marriage of Mix (1975) 14 Cal.3d 604, 614 ["'The testimony of a witness, even the party himself, may be sufficient'"].)
Boswell fares no better with its causation argument. "Although a finding of causation may not be based on mere speculation or conjecture, such finding may be predicated on reasonable inferences drawn from circumstantial evidence." (Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780.) The eyewitness accounts of plaintiffs' declarants self-evidently permit inferences of a causal connection between the helicopter activity on the one hand, and the injuries to plaintiffs' cattle on the other. The possibility those events were coincidental hardly means the trial court was obligated to reject plaintiffs' evidence and place all weight upon the declarations of Mark Unruh, Harold Graebe, and/or Tim Bienlien. (See People v. Turner (2017) 13 Cal.App.5th 397, 410 ["evidence impeaches a witness's testimony if it reveals that the believability of that testimony depends on the occurrence of a major coincidence"].)
B. Balancing of Relative Harms
"The second factor that must be considered in determining whether to grant a preliminary injunction is 'the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.'" (Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554, 577, quoting White v. Davis, supra, 30 Cal.4th at p. 554.) In other words, "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, supra, 35 Cal.3d at pp. 69-70.) "The ultimate goal of this balancing process is 'to minimize the harm which an erroneous interim decision may cause.'" (Anderson, at p. 577, quoting IT Corp., at p. 73.)
Boswell argues plaintiffs would suffer no harm in the absence of the preliminary injunction. To be clear, Boswell is not claiming plaintiffs would suffer no harm if Boswell violated the injunction. Rather, it contends the "idea that [plaintiffs] now enjoy[] some enhanced protection is, at best, illusory" because "[w]hat they got was an order requiring that [Boswell] do exactly what the law already requires." Put differently, Boswell argues the preliminary injunction does nothing to deter the enjoined conduct.
Boswell is partially correct. The preliminary injunction is couched in language taken from an FAA regulation (14 C.F.R. § 91.13(a) (2023)) and the Public Utility Code (id., §§ 21403, subd. (a), 21407), and it merely requires Boswell to obey those laws. We do not agree, however, that the injunction has no deterrent value. The argument ignores the consequences of violating a preliminary injunction.
Parties may be held in contempt for violating an injunctive order. (Code Civ. Proc., § 1209, subd. (a)(5).) Civil contempt is punishable by a fine of up to $1,000. (Id., § 1218, subd. (a).) "In addition, a person who is subject to a court order as a party to the action, or any agent of this person, who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney's fees and costs incurred by this party in connection with the contempt proceeding." (Ibid., italics added.) As any civil litigator knows, the prospect of an attorney's fees award is a powerful motivator. The specter of liability for such fees can have an equally disincentivizing effect. As such, we disagree with Boswell that the preliminary injunction does not give plaintiffs "any protection they [did] not already enjoy."
The other side of the equation is the harm Boswell is likely to suffer from the injunctive order. The trial court concluded there is no risk of harm because compliance with the injunction merely requires it to obey the law. In an argument made for the first time on appeal, Boswell says the trial court overlooked the "ignominy" of being "under the pall of a preliminary injunction." In simpler terms, Boswell now complains of reputational harm. However, its briefing focuses on the possibility of such harm to nonparties (Harold Graebe and Tim Bienlien) rather than to itself.
Plaintiffs suggest the reputational harm argument was waived due to defendants' failure to assert it below. Boswell says the argument was impliedly made through statements in the declarations of Harold Graebe and Tim Bienlien. Regardless of any forfeiture, the argument is objectively weak. According to Boswell's own briefing below, the March 2022 incident involving the death of a calf led to some type of FAA investigation into one or more Boswell pilots. Boswell fails to explain how issuing the preliminary injunction might have caused further reputational harm beyond what would have already resulted from the filing of plaintiffs' lawsuit, the subsequent FAA investigation, and the trial court's denial of the anti-SLAPP motion. (The latter ruling included a finding plaintiffs had made "a prima facie showing of facts which, if credited by the trier of fact, would sustain [a judgment in their favor and] against the [d]efendants.")
In summary, Boswell has not met its burden "to make a clear showing of an abuse of discretion." (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 69.)
DISPOSITION
The order granting injunctive relief is affirmed. Plaintiffs shall recover their costs on appeal.
WE CONCUR: LEVY, Acting P. J., SMITH, J.