Opinion
2d Civil No. B194659
4-14-2008
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. SOUTHSIDE CHIQUES, etc. et al., Defendant and Appellant, MARIO DeLUCAS, Movant and Appellant.
Kenneth I. Clayman, Public Defender and Michael C. McMahon, Chief Deputy, for Appellant. Gregory D. Totten, District Attorney, County of Ventura and Michael D. Schwartz, Special Assistant District Attorney, for Respondent.
NOT TO BE PUBLISHED
The People of the State of California, respondent, sought injunctive relief to abate a nuisance caused by Southside Chiques, a criminal street gang active in Oxnard. Mario DeLucas appeals from an order denying his application for leave to file a complaint in intervention opposing the issuance of an injunction. We affirm.
The order is appealable. (Noya v. A.W. Coulter Trucking (2006) 143 Cal.App.4th 838, 841.)
Factual and Procedural Background
Southside Chiques was the only defendant named in respondents complaint for injunctive relief. The complaint sought to enjoin Southside Chiques, its members, and all other persons acting in concert with the gang from engaging in various activities within an area of Oxnard designated as the "Safety Zone." The complaint listed 18 active members of the gang, but appellant was not included in this list. Ten of the listed gang members were personally served with a copy of the complaint.
Concurrently with the filing of the complaint, respondent filed the following documents:
(1) A request for judicial notice of "138 adult criminal convictions of defendant Southside Chiques criminal street gang members . . . ." Four of these convictions had been sustained by appellant. The request for judicial notice was granted.
(2) A declaration of Detective Neail Holland describing a violent robbery committed by appellant in August 2005. Holland opined that appellant is a member of Southside Chiques. He stated that appellants gang moniker is "Lucky," and he has "numerous gang tattoos."
(3) A declaration of Officer Manuel Vega characterizing the August 2005 robbery as "a gang assault." According to Vega, "it was determined that those responsible for the crime were Southside Chiques gang members [appellant] and Justin Jimenez (aka `Boogs)."
(4) A declaration of Officer Victor Boswell. Boswell related a conversation that he had had with appellant in March 2002. Appellant admitted that "he was from the Southside [Chiques] gang." Boswell noted that appellant had "Southside Chiques gang tattoos on his arms."
Southside Chiques did not file an answer to the complaint. On August 29, 2006, its default was entered.
On September 18, 2006, appellant filed an application for leave to intervene in the proceedings. Appellant alleged: "[Respondent] pertinaciously identifies [appellant] as a member of the Southside Chiques . . . . [¶] As a person [respondent] seeks to enjoin, [appellant] has an obvious interest in the subject of this action." Appellant denied that he was a gang member and that he had actively participated in the alleged nuisance activities: "[Appellant] alleges that he is not a person who participates in or acts in concert with any association or group which has, as one of its primary activities, the commission of the acts which [respondent] alleges constitute the public nuisance. Any group participation by [appellant] has been merely nominal, passive, inactive or purely technical."
On October 23, 2006, the trial court denied the application for leave to intervene because of appellants "contradictory position" that "he is not a gang member" and because "he would have later opportunities to be heard should [the injunction] ever be enforced against him." That same day, the court entered judgment for respondent and signed the permanent injunction.
According to respondent, the permanent injunction has been served on 54 persons. Appellant acknowledges that it has not been served on him.
In a footnote in his brief, respondent requests that we "take judicial notice of the fact that on January 2, 2007, appellant was sentenced in case 2005027600 to six years in state prison, with credit for 762 days." We deny the request because respondent has failed to comply with rule 8.252(a) of the California Rules of Court.
Mandatory Intervention
"Intervention is mandatory (as of right) or permissive." (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547.) Code of Civil Procedure section 387, subdivision (b), provides that intervention is mandatory" if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that persons ability to protect that interest, unless that persons interest is adequately represented by existing parties . . . ."
All statutory references are to the Code of Civil Procedure unless otherwise stated.
"The critical phrase in section 387, subdivision (b) is `the property or transaction which is the subject of the action. " (California Physicians Service v. Superior Court (1980) 102 Cal.App.3d 91, 96.) Here there is no property that is the subject of respondents action for injunctive relief. "As to `transaction, Blacks Law Dictionary defines the term as: . . . `Something which has taken place, whereby a cause of action has arisen. [Citation.]" ( Ibid .; see also Knight v. Alefosio (1984) 158 Cal.App.3d 716, 727.) Pursuant to this definition, the transaction that is the subject of respondents action involves the alleged nuisance activities of gang members and their associates in the Safety Zone. (See Mylan Laboratories Inc. v. Soon-Shiong (1999) 76 Cal.App.4th 71, 79 [subject of action alleging breach of fiduciary duty "is the alleged breach of fiduciary duty"].) Appellant did not claim an interest in this transaction; he denied that he was a gang member and that he had actively participated in the nuisance activities. As a matter of law, therefore, appellant was not entitled to mandatory intervention under section 387, subdivision (b).
Permissive Joinder
Section 387, subdivision (a), is the permissive joinder statute. Pursuant to this provision, "the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. [Citation.]" (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.)"
The requirement of a "direct" and "immediate" interest means that the interest must be of such a direct and immediate nature that the moving party " `will either gain or lose by the direct legal operation and effect of the judgment. [Citations.]" "A person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation." [Citations.] Conversely, "An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner." [Citation.]" (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1505.)
"Because the decision whether to allow intervention is best determined based on the particular facts in each case, it is generally left to the sound discretion of the trial court. [Citations.] We therefore review an order denying leave to intervene under the abuse of discretion standard. [Citation.] Under this standard of review, a reviewing court should not disturb the trial courts exercise of discretion unless it has resulted in a miscarriage of justice. [Citation.] "[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered." (City and County of San Francisco v. State (2005) 128 Cal.App.4th 1030, 1036-1037; see also Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 650, fn. 7 ["a trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice"].)
"A miscarriage of justice occurs when it appears that a result more favorable to the appealing party would have been reached in the absence of the alleged errors. [Citations.] The burden is on the appellant in every case to show that error has resulted in a miscarriage of justice. [Citation.] Further, `appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. [Citation.]" (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945.) "`Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there. [Citation.]" (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)
We need not resolve the issue of whether the trial courts denial of leave to intervene constituted an abuse of discretion. Even if the court had abused its discretion, a reversal would be unwarranted because appellant has failed to carry his burden of establishing that the trial courts ruling resulted in a miscarriage of justice. Appellant has made no showing that, if he had been permitted to intervene, a result more favorable to him would have been reached in the underlying action.
Appellant claims, without supporting argument, that "[t]he injunction sought here is unconstitutionally vague and overbroad." However, with one exception, we recently upheld the constitutionality of a virtually identical gang injunction in People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31 (hereafter Colonia Chiques). The one exception was a curfew provision that we held to be unconstitutionally vague. ( Id ., at pp. 46-49.) Appellant does not explain why a different result would be appropriate in this case. He need not be concerned about the curfew provision here, since that provision is unenforceable pursuant to the binding authority of Colonia Chiques.
Moreover, "a decision [appellant] should have been allowed to intervene would create great delay and necessitate a wholly new proceeding in the trial court. We do not make such a decision absent a showing of significant prejudice." (Coalition for Fair Rent v. Abdelnour (1980) 107 Cal.App.3d 97, 116.) Appellant has not suffered any prejudice because he has not been served with the injunction. The Oxnard Police Department has stated that the injunction will be enforced only against persons who have been so served: "[The gang injunction is] enforceable ONLY AGAINST GANG MEMBERS who have been SERVED, and who are in the SAFETY ZONE, and in violation of one or more of the prohibitions as outlined in the injunction."
The statement appears on the Oxnard Police Departments website at http://www.oxnardpd.org/news/newsdetail.asp?NewsId=1011. Pursuant to Evidence Code sections 452, subdivision (h), and 459, we take judicial notice of the statement. (Colonia Chiques, supra, 156 Cal.App.4th at p. 38, fn. 3; see also Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1573-1574, fn. 2 [pursuant to same Evidence Code sections, appellate court took judicial notice of companys postings on its website].)
During oral argument before this court, counsel for respondent stated several times that appellant is not subject to the injunction because he was not served with the injunction. Therefore, counsel declared, the injunction has "no direct or immediate effect on him."
Disposition
The order denying appellants application for leave to file a complaint in intervention is affirmed. The parties shall bear their own costs on appeal.
We concur:
GILBERT, P.J.
PERREN, J.