Opinion
G054830
09-24-2018
JAMES MASON, Plaintiff and Appellant, v. TU QUANG BUDDHIST CENTER, INC., Defendant and Respondent.
Law Offices of Charles M. Farano and Charles M. Farano for Plaintiff and Appellant. KLT Legal and K. Luan Tran for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00818393) OPINION Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Affirmed. Law Offices of Charles M. Farano and Charles M. Farano for Plaintiff and Appellant. KLT Legal and K. Luan Tran for Defendant and Respondent.
* * *
James Mason appeals from the trial court's judgment in favor of Tu Quang Buddhist Center, Inc. (the Center) on Mason's claims for public and private nuisance seeking injunctive relief. Mason argues the court erred when it misapplied both public and private nuisance law. None of his contentions have merit, and we affirm the trial court's judgment.
FACTS
Mason owns two residential parcels at 7931 and 7941 14th Street in Westminster. He rents these properties. The Center owns two residential parcels at 7932 and 7942 14th Street in Westminster. One parcel has a residence, and the other parcel has a garage/shed. Mason's parcels and the Center's parcels face each other across 14th Street.
In September 2011, Mason filed a complaint to enjoin the Center from using its property as a Buddhist temple (Temple) without first obtaining a conditional use permit (CUP). Two years later, Mason dismissed the case. (Mason v. Tu Quang Buddhist Center, Inc. (Super. Ct. Orange County, 2011, No. 30-2011-00511904).)
In November 2015, Mason filed a complaint for public nuisance, private nuisance, nuisance per se, and receivership seeking damages, preliminary and permanent injunctions, and declaratory relief. Mason's theory was the Center operated its properties as a temple in violation of the Westminster Municipal Code and nuisance laws. The trial court denied Mason's request for a preliminary injunction, ruling he offered no evidence of interim harm. After Mason defeated the Center's summary judgment motion, there was a bench trial. At the bench trial, Mason offered the following evidence.
Simon Kim, a real estate broker and appraiser, testified the Temple would have a negative effect on Mason's properties if he tried to sell them, but quantifying the effect would be difficult. Jim Phan, a private investigator, testified he visited the Temple multiple times and took photographs of religious activities taking place there. William Kunzman, a traffic engineer, testified concerning possible increased traffic near the properties. He estimated the Temple could accommodate 70 people, which would result in 33 additional cars, and one-half mile of additional parking. Kunzman opined the possibility of increased traffic could lead to danger for pedestrians in the area.
In Vo v. Mason (Sept. 19, 2017, G054179) [nonpub. opn.], we affirmed the trial court's denial of Mason's special motion to strike Vo's invasion of privacy claim against Mason, Phan, and others.
During closing argument, Mason amended his complaint to seek only a permanent injunction and receivership and not monetary damages. After the trial court issued its tentative decision and considered Mason's objections to it, the court issued a statement of decision ruling for the Center on all of Mason's claims.
The trial court concluded the Center was operating a place of religious worship without a conditional use permit in violation of Westminster Municipal Code section 17.210.010. The court stated however this fact "[did] not by itself establish an actionable nuisance" or nuisance per se. With regard to Mason's public nuisance claim, the court cited to Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036 (Koll-Irvine), and concluded Mason's alleged harm "is not different in kind from the damage that would potentially be suffered by any other property in proximity to [the Center's] premises." As to Mason's private nuisance claim, the court cited San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893 (San Diego Gas), and concluded Mason failed to satisfy its elements. The court explained Mason failed to offer evidence the Center's interference with his land was substantial or unreasonable. The court opined San Diego Gas, supra, 13 Cal.4th 893, was applicable to both monetary and injunctive relief cases because both were sought in that case. Finally, the court answered the parties' list of controverted issues consistent with its rulings. The court later entered judgment for the Center.
DISCUSSION
"'"A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate." [Citation.] The grant or denial of a permanent injunction rests within the trial court's sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion.' [Citations.] [¶] '"[T]o the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts [in exercising its discretion with respect to the granting or denying of a permanent injunction], [we] review such factual findings under a substantial evidence standard." [Citation.] We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order.' [Citation.] [¶] However, we exercise independent judgment when addressing a pure question of law . . . . [Citation.]" (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 260-261 (Mendez).) I. Public Nuisance
"A nuisance is broadly defined as '[a]nything which is injurious to health, 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 . . . .' [Citation.] 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.' [Citation.] A private party can maintain an action based on a public nuisance 'if it is specially injurious to himself, but not otherwise.' [Citation.] The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public. [Citations.]" (Koll-Irvine, supra, 24 Cal.App.4th at p. 1040, fn. omitted, italics added.)
Mason acknowledges the above italicized language, which the trial court relied on to conclude he did not satisfy his burden, is legally correct. Additionally, he concedes, "[t]he [t]rial [c]ourt . . . was probably correct in finding [he] suffered the same type of damage as might have been suffered by other properties in the immediate vicinity." These concessions end our inquiry.
Nonetheless, we address his related arguments. Mason did not offer any evidence the Temple caused him any damage. Although Kunzman testified there could be as many as 33 additional cars parked on 14th Street because of the Temple, there was no evidence that occurred. (See Corp. Presiding Bishop v. City of Porterville (1949) 90 Cal.App.2d 656, 659 [common knowledge churches increase pedestrians and traffic].) Additionally, although Kim testified the Temple would negatively effect his properties' values if he tried to sell, there was no evidence he tried to sell and his property suffered a diminution in value. Thus, Mason failed to establish he suffered any damage at all.
Contrary to Mason's claim otherwise, he was not burdened with proving the existence of a negative, or something that was "counterintuitive." He was required to prove that of the members of the community who were allegedly damaged by the Temple, he suffered a different damage than them, and not merely the same damage to a greater degree. He asserts the Temple would not damage property owners "five miles away." True. But he had the burden to demonstrate the Temple caused him damage different than his next door neighbor or the neighbor down the street. Mason's admission the "[n]egative effects on parking and on property values from zoning violations are specific to the area immediately surrounding the offending properties[]" illustrate why his public nuisance claim fails. "A public nuisance may be abated by civil or criminal actions brought by public officers [citation], but a private person has no direct remedy unless the public nuisance is specially injurious to him or her [citation.]." (13 Witkin, Summary of Cal. Law (11th ed. 2017) Equity, § 154, p. 488.)
Mason relies on Smith v. Collision (1931) 119 Cal.App. 180 (Smith), to argue "illegal land use gives owners of properties near the illegal use a right to pursue an action based upon public nuisance." Smith is inapposite.
In Smith, defendants began to construct two stores in an area zoned for residences, and plaintiffs filed a complaint to enjoin defendants from completing the construction. (Smith, supra, 119 Cal.App. at p. 183.) The trial court granted the injunction, concluding the stores would cause excessive noise, impair public safety, increase loiterers, and cause health and hygiene issues. (Ibid.) The Smith court affirmed, ruling plaintiffs offered evidence, though some of it meager, to support the trial court's findings. (Id. at p. 184.) The court ruled, "Private persons may not resort to equity to prevent criminal acts unless the facts substantiate the claim that the person has suffered some exceptional damage to property other than that suffered by the public generally. [Citation.]" (Ibid.) After stating the stores would cause certain conditions described above and result in a depreciation of value in the residences property, the Smith court opined the following: "All of the property in the zoned area would not be so affected, but the residence property near the proposed stores certainly would be and hence these respondents would suffer exceptional damage other than that suffered by the public generally in that particular community." (Ibid.)
Unlike in Smith, here Mason offered no evidence he suffered "some exceptional damage" different from what the public suffered. As Mason states, "[I]n this instance however, the trial court did not attempt to place the line between properties which would be negatively affected and those which would not be negatively affected in that no evidence was offered on this issue." As the trial court stated, "the evidence failed to establish any negative traffic, parking or noise issues, or anything else that constituted an obstruction to the free use of property or that interfered with the comfortable enjoyment of life or property. [Citation.]" The court properly applied public nuisance law and concluded Mason failed his burden to offer evidence he suffered damage different in kind from the public. II. Private Nuisance
"Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. [Citation.] . . . [T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public. [Citation.]" (Koll-Irvine, supra, 24 Cal.App.4th at p. 1041.)
In San Diego Gas, supra, 13 Cal.4th at pages 937-938, our Supreme Court stated there are two additional elements to establish a private nuisance, relying in part on the Restatement Second of Torts. "The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff's interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer 'substantial actual damage.' [Citations.]" (Id. at p. 938.) "The second additional requirement for nuisance is superficially similar but analytically distinct: 'The interference with the protected interest must not only be substantial, but it must also be unreasonable' [citation], i.e., it must be 'of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.' [Citations.]" (Ibid.)
Mason asserts the trial court erred by relying on San Diego Gas because its holding there are two additional requirements was premised on the Restatement Second of Torts, which draws a distinction between a claim for damages and a claim for injunctive relief, and its applicability is thus limited.
Restatement Second of Torts, section 821F, concerns significant harm, i.e., substantial actual damage. Comment b states, "The rule stated in this [s]ection applies only to tort liability in an action for damages." Restatement Second of Torts, section 822, comment d provides, "Action for damages distinguished from suit for injunction. A potent cause of confusion as to the meaning and scope of private nuisance lies in the failure to distinguish the action at law from the suit for injunction in equity. Cases in equity are cited as precedents in actions at law without regard to their differences." --------
Although the San Diego Gas court cited to the Restatement Second of Torts, in addition to other treatises, the court did not expressly limit its holding to claims for damages. In fact, plaintiff in San Diego Gas originally sought injunctive relief in addition to damages, although plaintiff later dismissed that claim. (San Diego Gas, supra, 13 Cal.4th at pp. 910, 912, 935, fn. 25.) Additionally, Mason cites to no case, and we found none, that limits San Diego Gas to an action for damages. To the contrary, Mendez, supra, 3 Cal.App.5th 248, a case from the Fourth District, Division One, applied San Diego Gas's two additional requirements to a case involving solely a request for injunctive relief.
In Mendez, plaintiffs homeowners filed a complaint against defendant resort for inter alia private nuisance seeking a permanent injunction for violation of zoning and noise ordinances. (Mendez, supra, 3 Cal.App.5th at pp. 254-255, 258.) The Mendez court held San Diego Gas's two additional requirements, substantial damage and unreasonableness, were applicable and consequential in a complaint seeking only a permanent injunction. (Mendez, supra, 3 Cal.App.5th at pp. 262-263.) The Mendez court stated, "plaintiffs still must demonstrate that the use of this public address system in this way constitutes an interference with plaintiffs' use and enjoyment of their land that is substantial and unreasonable." (Id. at p. 270.) We agree with the Mendez court that San Diego Gas's two additional requirements are applicable and consequential in a case seeking only injunctive relief. Here, based on the record before us, we conclude Mason did not present any evidence to demonstrate substantial damage and unreasonable invasion of his interest in the use and enjoyment of his property. Thus, the trial court did not err by relying on San Diego Gas to conclude Mason failed to present sufficient evidence to establish his claim for private nuisance. III. Miscellaneous Claims
Mason claims the trial court erred by denying injunctive relief to abate the nuisance. His argument really is one of substantial evidence, which we have considered and rejected. As we explain above, Mason failed to offer evidence he suffered damage different in kind from the public to support a claim for public nuisance. Additionally, he failed to offer evidence of substantial damage and unreasonableness to support a claim for private nuisance.
Additionally, Mason relies on Anderson v. Souza (1952) 38 Cal.2d 825, 833-834, Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 418, and Fretz v. Burke (1967) 247 Cal.App.2d 741, 746, to support his contention that difficulty in ascertaining damages favors granting injunctive relief. We do not dispute this, but it does not relieve Mason of offering evidence to prove the elements of a private nuisance and a public nuisance. As we discuss above, he failed to do that. Therefore, the trial court properly entered judgment for the Center.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.