Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. CIVDS905670, CIVDS907318, W. Robert Fawke, Judge.
The Law Offices of Patrick A. McCall and Patrick A. McCall for Plaintiff, Defendants and Appellants, Lee P. Wetzel and Pioneer Properties.
Best Best & Krieger, Christopher M. Pisano, Matthew R. Silver and Kira L. Klatchko for defendant, plaintiff and respondent CITY OF FONTANA.
OPINION
Codrington, J.
I
INTRODUCTION
Lee P. Wetzel is the general partner of Pioneer Properties, a California limited partnership (collectively Pioneer), operating industrial businesses at nine locations and 29 properties in the City of Fontana (City). Pioneer sued the City and the City sued Pioneer. The two cases have been consolidated. Pioneer appeals from an order granting a preliminary injunction against Pioneer. (Code Civ. Proc., § 904.1, subd. (a)(6).)
Pioneer argues the trial court abused its discretion by not granting Pioneer’s request to continue the City’s motion seeking a preliminary injunction and by granting the preliminary injunction. Pioneer also challenges the court’s evidentiary rulings. We conclude the City demonstrated the likelihood of prevailing on its claims and Pioneer failed to rebut the presumption favoring the City with evidence it would incur grave or irreparable harm. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 72.) There was no abuse of discretion and no error. We affirm the order granting the preliminary injunction.
II
FACTUAL AND PROCEDURAL BACKGROUND
Pioneer filed its complaint in April 2009. Pioneer’s complaint involves whether Pioneer was legally required to construct a workshop and whether it was permitted to maintain or store vehicles at 11184 Almond Avenue, City of Fontana, property that had been annexed by the County of San Bernardino.
The Almond Avenue property was identified as part of Site D in the City’s motion.
The City filed its complaint for nuisance per se and unfair business practices in May 2009. The complaint charges numerous violations of the Fontana City Code—including fire, building, plumbing, and electrical codes—discovered by the City during site inspections of Pioneer’s business operations in March 2009.
On July 23, 2010, the City filed a 448-page motion seeking a preliminary injunction. The hearing date was August 24, 2010. The motion was served by mail. As described by the City, the motion provided substantial evidence that Pioneer was “creating nuisances per se by: (1) operating an [sic] illegal heavy-use industrial businesses in residential neighborhoods; (2) storing harmful and explosive chemicals, trash and debris; (3) building and re-modeling structures, electrical systems, plumbing, and fencing without obtaining permits, approvals, or building and safety sign-offs; and (4) operating businesses without obtaining business licenses.”
A typographical error on a single page of the notice of motion lists the hearing date as August 10, 2010.
More particularly, the motion identified nine sites (“A” through “I”) where multiple code violations had continued for more than a year. The motion was supported by the declarations of five city employees, who performed inspections by helicopter and on the ground, and who photographed the violations. A sixth City employee declared that Pioneer did not have valid business tax certificates for the businesses operated on the properties. Six Fontana residents also submitted declarations and a petition by 40 neighbors attesting to the deleterious effects of the ongoing nuisances. The petition complains of an “illegal and unpermitted trucking operation” causing “excessive noise, traffic, glaring lights, diesel fumes, and depreciated property values.” J.W. Navarro, and the other declarants, described suffering the impact of nonstop trucking operations and the related traffic, noise, lighting, and diesel fumes.
On August 9, 2010, Pioneer made an ex parte application to continue the hearing on the motion for preliminary injunction until October 2010 because there was a typographical error in the hearing date on the notice of motion and because Fontana’s counsel had a conflict with a trial in family court in Orange County and numerous other family law matters, and a preplanned vacation over the Labor Day weekend, from September 2 through 6, 2010. Additionally, Lee P. Wetzel was out of the country until September 16, 2010. Furthermore, Pioneer asserted it needed additional time to conduct discovery and to respond to the lengthy motion. The City opposed the ex parte application, which the trial court denied.
Pioneer filed opposition to the injunction and multiple evidentiary objections to the City’s supporting declarations. Pioneer’s opposition was supported by the declaration of Tammi Wetzel, Wetzel’s daughter and a limited partner in Pioneer. Pioneer also filed a separate written response to the City’s requested orders.
The City filed a reply and evidentiary objections.
On August 24, 2010, the court granted the preliminary injunction and signed the 26-page proposed order that had been prepared by the City’s lawyers.
III
DENIAL OF CONTINUANCE
As Pioneer recognizes, the trial court has broad discretion in deciding whether to grant a continuance: “‘[A] reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice.... “Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)” (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.)
Pioneer argues the trial court abused its discretion by not granting a continuance to give Pioneer more time to prepare. Pioneer asserts its lawyer was too busy and the motion was too complicated to allow Pioneer to oppose the motion in the limited time permitted. Pioneer’s reasons for wanting additional time may be understandable but they are not so compelling that denying the continuance constitutes a clear abuse of discretion and a miscarriage of justice. (Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at p. 170.) Pioneer does not establish the trial court abused its discretion in denying Pioneer’s request for a continuance.
The City’s motion for preliminary injunction involved illegal conditions that had existed for years and had been the subject of ongoing compliance efforts by the City. Even if Lee P. Wetzel was absent from the country, his daughter, Tammi Wetzel, declared that she was familiar with the subject properties and the alleged nuisances because Pioneer had delegated to her the responsibilities concerning them. Pioneer was not confronted with surprise evidence, denying a fair hearing. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) Furthermore, to the extent that Pioneer’s lead counsel, Patrick McCall, was unavailable, another lawyer in his firm, Marietta Raqueno, could represent Pioneer: “[t]he present proceeding is not one in which counsel suddenly was required to assume responsibility for his client’s case.” (Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at p. 172.)
Under these circumstances, we reject Pioneer’s argument that denying the continuance constituted a clear abuse of discretion and a miscarriage of justice. (Mahoney v. Southland Mental Health Associates Medical Group, supra, 223 Cal.App.3d at p. 170.)
IV
PRELIMINARY INJUNCTION
The trial court did not abuse its discretion in granting the preliminary injunction because the City established the likelihood of its success and Pioneer did not provide evidence of grave or irreparable harm. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 72.)
“A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) In determining whether there has been such an abuse, we cannot reweigh evidence or pass upon witness credibility. The trial court is the sole arbiter of such conflicts. Our role is to interpret the facts and to make all reasonable inferences in support of the order issued. [Citation.]” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420 [Fourth Dist., Div. Two].)
“Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449 (Whyte).)” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley, supra, 105 Cal.App.4th at p. 1420.)
In the matter of an injunction against a public nuisance, the second factor concerning relative harm usually does not apply because the trial court generally presumes the harm to the public outweighs the harm to the defendant if the public entity shows a likelihood of success: “Once a governmental entity establishes that it will probably succeed at trial, a presumption should arise that public harm will result if an injunction does not issue. However, some consideration must be given to the harm likely to be suffered by the defendant where that harm is alleged to be grave or irreparable.
“Accordingly, the propriety of an injunction must be judged by the following standard. Where a governmental entity seeking to enjoin the alleged violation of an ordinance which specifically provides for injunctive relief establishes that it is reasonably probable it will prevail on the merits, a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant. [Fn. omitted.] If the defendant shows that it would suffer grave or irreparable harm from the issuance of the preliminary injunction, the court must then examine the relative actual harms to the parties.
“Once the defendant has made such a showing, an injunction should issue only if — after consideration of both (1) the degree of certainty of the outcome on the merits, and (2) the consequences to each of the parties of granting or denying interim relief — the trial court concludes that an injunction is proper.” (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 72.)
Pioneer advances several reasons why it was an abuse of discretion to grant the preliminary injunction. Regarding the City’s likelihood of success, Pioneer argues that some of the provisions of the order granting the injunction relate to nuisances which it maintains are nonexistent. Regarding potential harm to Pioneer, Pioneer also objects to the order’s requirements that Pioneer acquire various permits within 60 days and that Pioneer remove erected structures. Pioneer further contends the order is vague and ambiguous, possibly subjecting Pioneer to criminal sanctions.
A city has the right to regulate by ordinance and to enforce those ordinances by seeking an injunction against violations. (Sullivan v. City of Los Angeles (1953) 116 Cal.App.2d 807, 810; City of Stockton v. Frisbie & Latta (1928) 93 Cal.App. 277, 289-290.) The City showed a likelihood of success by offering overwhelming amounts of detailed evidence of longstanding code violations and nuisances on Pioneer’s properties. In addition to evidence that Pioneer was operating a 24-hour truck stop and vehicle storage facility, the supporting declarations were replete with information about unpermitted and derelict structures, junked cars, harmful chemicals, fuel containers, hazardous and combustible materials, unsafe wiring and water heaters, inadequate water supply, trash, and debris. Pioneer’s properties unquestionably posed public health and safety risks. The City amply met its burden of showing a likelihood of success on the merits of its complaint for nuisance and unfair business practices.
In contrast, Pioneer argues it may be forced to dismantle some existing structures and it may be difficult to obtain required permits within 60 days. Pioneer conceded most of the violations but argued it was trying to fix the problems. The injunction quite reasonably required Pioneer to obtain permits and to accomplish remediation. But Pioneer did not provide any evidence of grave or irreparable harm that would be caused by the injunction. The trial court was required to presume the public harm outweighed the private harm to Pioneer. Pioneer utterly failed to rebut the presumption in favor of the City. The trial court did not abuse its discretion in granting the injunction against Pioneer. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 72.)
V
EVIDENTIARY OBJECTIONS
“The standard of review of any ruling by a trial court on the admissibility of evidence is abuse of discretion.” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.) Pioneer must affirmatively show prejudicial error resulting in a manifest miscarriage of justice. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419.) A miscarriage of justice occurs only if the reviewing court finds it is reasonably probable, based on the entire record, that a party would have achieved a more favorable result absent error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.)
In its appellant’s brief, Pioneer devotes 22 pages, citing no legal authority, to a series of repetitive and duplicative attacks on the court’s evidentiary rulings regarding the declarations of the City employees and the Fontana residents. In summary, Pioneer contends that it has been prejudiced by multiple errors. It claims the declarations of the City employees were “rife with conclusionary statements that were not supported by facts” or foundation. The residents’ declarations were “equally lacking in foundation; they consisted of speculation and hearsay. Yet, the Court erroneously allowed these statements in. The cumulative effect of all of the evidentiary errors has severely prejudiced [Pioneer]. If the statements were properly omitted, a preliminary injunction would not issue.” Pioneer fails, however, to explain on appeal the grounds for its blanket objections and Pioneer also fails to show any prejudice.
The City witnesses all based their declarations on their personal qualifications and their personal knowledge of the conditions on Pioneer’s properties. (Evid. Code, § 702; Weingetz v. Cheverton (1951) 102 Cal.App.2d 67, 73.) Robert Mendez and Neal Mansilla are fire prevention specialists who inspected the properties for violations in 2009 and 2010. Paul Gonzales is a City planner, responsible for conditional use permits, who also inspected the properties. Luis Tejeda is a code compliance inspector who documented compliance problems in 2009 and 2010. The declarations by the Fontana residents also included detailed, specific information about their residences, the nuisances they observed on Pioneer’s properties, and the harm suffered by them and the surrounding community. Pioneer’s blanket objections based on foundation and vagueness wholly lack merit.
Pioneer also fails to support its blanket conclusionary objections. The City employees could properly describe the physical conditions they observed, which were supported by photographs, and give their opinions that the conditions were illegal. It was not an abuse of discretion to admit their testimony to explain why public safety concerns warranted an injunction. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112-113 [Fourth Dist., Div. Two]; People v. Mixon (1982) 129 Cal.App.3d 118, 127.)
Even if the trial court erred in ruling on the evidentiary objections, Pioneer cannot plausibly argue the error was prejudicial, causing a miscarriage of justice. We reject Pioneer’s claims of evidentiary error.
VI
DISPOSITION
The City met its burden of establishing the likelihood of success on its claims. Pioneer did not rebut the presumption of harm to the public by supplying opposing evidence of grave and irreparable private harm. Pioneer did not establish prejudicial evidentiary error.
We affirm the order granting the preliminary injunction. The City shall recover its costs on appeal as the prevailing party.
We concur: McKinster, Acting P.J., King, J.