Opinion
A148562
03-05-2018
NOEL YI, Plaintiff and Respondent, v. AFRIKA TOWN GARDENING COLLECTIVE et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15793420)
Respondent Noel Yi is the owner of a vacant lot in Oakland. In 2015, he sued appellants Afrika Town Garden Collective and its members to stop them from maintaining a community garden on his property. The trial court issued a preliminary injunction enjoining appellants and anyone acting on their behalf from entering onto or remaining on respondent's property. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The evidence before the trial court on respondent's motion for preliminary injunction established the following.
Respondent is the owner of the real property located at 2311 San Pablo Avenue, Oakland (the "subject property"). The subject property is a vacant lot enclosed by a chain link fence that for years has been the source of public complaints about trash, debris, and overgrown vegetation. In addition, locals have observed health hazards on the subject property including hypodermic needles, condoms, human waste, and rats.
In 2012, residents in the neighborhood cleaned up the subject property and began using the land for a community garden. Residents in the neighborhood constructed raised planter beds, planted crops, and generally maintained the garden as well as the surrounding area. A community center adjacent to the subject property provided water and secured commercial and liability insurance on the subject property. The community garden eventually became a social gathering place in the neighborhood and produced crops that were distributed free or at low prices to upwards of sixty people. Gardeners erected a sign that read "Afrika Town," which is the name given to this area of Oakland by some of its residents.
As we will explain, this arrangement appears to have occurred with respondent's tacit permission until March 2015.
On March 26, 2015, respondent arrived at the subject property with bulldozers and informed those present that they needed to leave and remove the planter beds. Appellants' members were surprised by this confrontation and proceeded to block the bulldozers in order to protect the garden. The next day, respondent's representative returned to the property and told appellants that respondent would take no further action against them if they left and removed their belongings on or before April 3, 2015. Instead of leaving the subject property however, appellants declared April 3, 2015 to be "Liberation Day" and vowed to defend against respondent's attempts at removal.
On November 16, 2015, respondent filed the instant action for ejectment and trespass to real property. Respondent alleges that due to appellants' possession and trespassory conduct, he has been damaged in the amount of the fair rental value of the subject property of $1,500 per month, has been unable to sell the subject property at its fair market value of $995,000, and has been deprived of the interest on this sum in the amount of $136.30 per day since March 7, 2015.
On April 21, 2016, respondent filed a motion for preliminary injunction seeking to enjoin appellants and those acting on their behalf from their continued possession of the subject property. On May 23, 2016, appellants filed an answer to the complaint, generally denying the allegations therein and asserting affirmative defenses of consent, estoppel, necessity, unclean hands, and statute of limitations/laches.
At the May 24, 2016 hearing on the preliminary injunction, the trial court granted appellants' request for an extension of time to file their opposition papers and continued the hearing to June 7, 2016. On May 31, 2016, appellants filed their opposition papers, which included several declarations from residents of the neighborhood familiar with the subject property and the community garden.
Prior to the continued hearing, the trial court issued a tentative ruling granting respondent's motion for preliminary injunction. The trial court held that respondent's moving papers established a strong probability of prevailing on the merits of his claims for trespass and/or ejectment because his declaration established that appellants' agents occupied the subject property without his permission since March 7, 2015. The trial court found that appellants submitted "no admissible evidence demonstrating that [respondent] ever consented in writing to the occupation of the subject real property, or that [respondent] orally or otherwise consented to the occupation at any time since March 7, 2015." The trial court further held that even if there was consent to appellants' occupation of the subject property prior to 2015, appellants failed to "provide any legal basis under which [respondent] would [be] estopped from changing his mind and withdrawing consent to [appellants'] continued occupation of the subject real property in 2015 and thereafter." The trial court further found that appellants' gardening activities on the subject property prevented respondent from using his property for other purposes, which constituted irreparable injury. Based on these findings, the trial court issued a preliminary injunction restraining and enjoining appellants and all persons acting on their behalf from entering onto or remaining on the subject property. Appellants did not contest the tentative ruling, which became the order of the court on June 7, 2016.
On June 10, 2016, appellants filed a notice of appeal and request to stay the preliminary injunction pending appeal. On June 14, 2016, appellants filed a petition for writ of supersedeas and request for temporary stay, which we denied on June 16, 2016.
On June 29, 2016, the trial court granted appellants' motion to stay the injunction pending the appeal and ordered appellants to post an undertaking in the amount of $10,000.
II. DISCUSSION
A. Standard of Review
"In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. [Citation.]" (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402. (14859 Moorpark Homeowner's Assn.).) "The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. [Citation.]" (Butt v. State of California (1992) 4 Cal.4th 668, 678 (Butt).)
"The determination whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. [Citation.] 'Discretion is abused when a court exceeds the bounds of reason or contravenes uncontradicted evidence. [Citation.]' [Citation.]" (14859 Moorpark Homeowner's Assn., supra, 63 Cal.App.4th at p. 1402.)
"In reviewing an order granting a preliminary injunction, we do not reweigh conflicting evidence or assess witness credibility, we defer to the trial court's factual findings if substantial evidence supports them, and we view the evidence in the light most favorable to the court's ruling. [Citation.] To the extent the plaintiff's likelihood of prevailing on the merits turns on legal rather than factual questions, however, our review is de novo. [Citation.]" (City of Corona v. AMG Outdoor Advertising, Inc. (2016) 244 Cal.App.4th 291, 298-299.)
B. Likelihood of Success on the Merits
"As a general rule, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership." (Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390.) To prevail on his claims for trespass and ejectment, respondent must prove: (1) he owned, occupied, controlled, or exclusively possessed the subject property, (2) appellants intentionally, recklessly, or negligently entered the subject property, (3) respondent did not give appellants permission for the entry or appellants exceeded respondent's permission, (4) respondent was actually harmed by appellants' entry, and (5) appellants' entry was a substantial factor in causing respondent's harm. (See CACI No. 2000 [trespass]; Agar v. Winslow (1899) 123 Cal. 587, 591 [ejectment].)
As proof of ownership, respondent submitted a grant deed dated March 4, 2004 transferring the subject property to him and his wife. To prove unauthorized entry by appellants, respondent averred in his declaration that appellants' entry on the subject property in March 2015 was unauthorized, and that he instructed appellants to leave the subject property on or about March 26, 2015.
Appellants argued that their presence on the subject property was lawful because (1) respondent consented to it, and (2) it was necessary to protect life and property due to the hazardous condition of the subject property. Appellants further argued that respondent should be estopped from removing them because they relied on respondent's consent to their detriment by working on the garden and improving and maintaining the property.
1. Consent
"Where there is a consensual entry, there is no tort, because lack of consent is an element of the wrong." (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16-17.) "Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor." (Rest.2d Torts, § 892, subd. (1).)
We see no abuse of discretion in the trial court's finding that appellants failed to submit admissible evidence of either written consent or oral or other forms of consent since March 7, 2015. The 2012 gardening permit that appellants submitted as evidence of consent was not adequately authenticated by their counsel (Evid. Code, § 1400 et seq.), did not purport to be published by a public entity and was not a certified copy of an official record (id. § 1530, subd. (a)(1), (2)), and on its face was not a written agreement between the parties. Appellants submitted no further competent evidence of an oral agreement.
We note, however, that respondent did not deny appellants' claim that he permitted the community gardening activities to occur on the subject property prior to March 2015 and going back to 2012. In his moving declaration, respondent established only that unauthorized entry occurred on or about March 7, 2015. Respondent's conduct, including his passive acceptance to appellants' gardening activities prior to March 2015, could have constituted apparent consent. (See Rest.2d Torts § 892, subd. (2), com. c.) Nevertheless, as the trial court noted, respondent was still free to terminate his consent, and appellants' continued presence on the subject property thereafter would constitute trespass. (See Rest.2d of Torts, § 171, subd. (b).) Respondent's declaration was substantial evidence of his termination of consent as of March 26, 2015, when he arrived at the subject property and informed appellants that they needed to leave.
Even then, respondent's power to terminate consent is subject to the privilege of reasonable egress and removal of things. (See Rest.2d Torts, §§ 171, 176-177.)
2. Necessity
The trial court also implicitly rejected appellants' necessity defense. Under the defense of private necessity, "[o]ne is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to [¶] (a) the actor, or his land or chattels, or [¶] (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action." (Rest.2d Torts, § 197, subd. (1).)
We conclude that appellants did not adequately establish a defense of necessity to respondent's claims of trespass and ejectment. Appellants' reliance on People v. Ray (1999) 21 Cal.4th 464 (Ray) is misplaced because that case deals with the exigent circumstances exception to the warrant requirement. Not only is the instant matter factually inapposite to a warrantless search by law enforcement, but appellants have not shown that the condition of the subject property was an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property. (See People v. Ramey (1976) 16 Cal.3d 263, 276 [defining exigent circumstances].)
Furthermore, both the exigent circumstances exception and the defense of private necessity are reasonably limited in time and manner to the existence of the exigency or harm. (See Ray, supra, 21 Cal.4th at p. 477; Rest.2d Torts, § 197, com. on subd. (1).) Even if the subject property's blighted and unsanitary condition constituted an emergency, the privilege to remain on the property would last only so long as reasonably necessary to abate the harm. It would not justify continued occupation of the subject property for other purposes such as maintaining a community garden and hosting social gatherings.
3. Estoppel
The trial court held that appellants provided no legal basis under which respondent would be estopped from withdrawing his consent to their continued occupation of the subject property in 2015. Appellants argue the trial court's ruling was erroneous because they did assert a legal basis in the form of their estoppel defense, and the only factual requirements to establish an estoppel against removal in trespass are consent and reliance, which they established.
Courts have the authority to exercise their equity powers to fashion protective interests in land belonging to another. (See Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1008-1009 [affirming grant of equitable easement].) " 'In general, four things are essential to the application of the doctrine of equitable estoppel: first, the party to be estopped must be apprised of the facts; second, he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; third, the other party must be ignorant of the true state of facts; and fourth, he must rely upon the conduct to his injury.' [Citation.]" (Safway Steel Products, Inc. v. Lefever (1953) 117 Cal.App.2d 489, 491.) Moreover, "[t]o give rise to equitable estoppel, the promisee's reliance must be reasonable." (Phillippe v. Shapell Industries (1987) 43 Cal.3d 1247, 1262.)
Richardson v. Franc (2015) 233 Cal.App.4th 744 (Richardson)—cited by appellants for the first time on appeal—is an opinion of this division discussing the necessary elements to perfect an irrevocable license, which is based in the doctrine of estoppel. (See Cooke v Ramponi (1952) 38 Cal.2d 282, 286.) "An otherwise revocable license becomes irrevocable when the licensee, acting in reasonable reliance either on the licensor's representations or on the terms of the license, makes substantial expenditures of money or labor in the execution of the license, and the license will continue 'for so long a time as the nature of it calls for.' [Citations.]" (Richardson, supra, 233 Cal.App.4th at pp. 757-758.)
As these authorities show, there are factors beyond consent and reliance for determining the appropriate exercise of a court's equitable powers under the doctrine of estoppel. Appellants did not argue below that they had perfected an irrevocable license or any other permanent right or interest in the subject property. Nor did they address several pertinent factors discussed in the above case law including respondent's being apprised of the facts, their ignorance of the true facts, the reasonableness of their reliance, the approximate amount of money and/or labor expended, and whether and for how long justice and equity should require their use of the subject property to continue. (See Richardson, supra, 233 Cal.App.4th at pp. 751-758.) The trial court could have reasonably concluded that appellants' showing was legally incomplete and therefore did not justify fashioning an equitable right or interest in the subject property that would estop respondent from removing them. On this record, we see no abuse of discretion.
For these reasons, we conclude the trial court did not err in finding that respondent showed a likelihood of prevailing on the merits. We now turn to the issue of interim harm.
C. Balance of Harms
"An evaluation of the relative harm to the parties upon the granting or denial of a preliminary injunction requires consideration of: '(1) the inadequacy of any other remedy; (2) the degree of irreparable injury the denial of the injunction will cause; (3) the necessity to preserve the status quo; [and] (4) the degree of adverse effect on the public interest or interests of third parties the granting of the injunction will cause.' [Citation.]" (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 435.)
"Irreparable injury" is harm that cannot be fully compensated by money damages. (Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471.) In support of his showing of irreparable harm, respondent stated in his moving declaration that "[g]iven my current financial situation, I desperately need to utilize my property for income, which I am unable to do because of the conduct of Afrika town in taking over my property."
Respondent's additional claims of harm (i.e., lost rental value, inability to sell the property at fair market value) were not supported by a verified complaint or other supporting evidence in the moving or reply papers. Respondent's counsel stated there was no buyer for the subject property at the time of the May 24, 2016 hearing. Our review is confined to the evidence that was actually before the trial court at the time of the decision being challenged. (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1081.)
Appellants argue this evidence was too speculative to support a finding of irreparable harm. It was by no means a strong showing. However, as we have stated, our review does not include reweighing evidence or witness credibility, and we must view respondent's declaration in the light most favorable to the ruling. The trial court could have reasonably inferred from this evidence that respondent was facing sudden financial difficulties and would be significantly harmed if he was not allowed to use his property for income. Also, the trial court could have reasonably concluded that any amount of compensation needed to afford adequate relief under these circumstances would be extremely difficult to ascertain. (See Code Civ. Proc., § 526, subd. (a)(5).) Furthermore, a lesser showing of irreparable harm may be sufficient where the moving party demonstrates a high likelihood of prevailing on the merits. (See Butt, supra, 4 Cal.4th at p. 678 [discussing sliding scale of factors for preliminary injunction].) Here, the trial court found that respondent showed a "strong" probability of prevailing, and substantial evidence supports this finding. Because the trial court's finding of irreparable harm was reasonably drawn from the evidence and was within the scope of its broad discretion, we see no abuse of discretion.
Appellants also argue that the trial court's finding of irreparable harm was erroneous because there was no allegation of waste. However, the cases cited by appellants simply hold that "a trespass irreparable in its character" may be sufficient to justify a mandatory injunction. (See Aspen Grove Condominium Assn. v. CNL Income Northstar LLC (2014) 231 Cal.App.4th 53, 63 [injunction required removal of retention basin that caused water to flow onto neighbor's property]; Allen v. Stowell (1905) 145 Cal. 666, 668 [injunction required removal of dams diverting water to plaintiff's land].) Neither case mandates a showing of waste or irreparable harm to the property in order to obtain a preliminary injunction against trespass. Indeed, waste is only one of several alternative statutory bases for a preliminary injunction. (See Code Civ. Proc., § 526, subd. (a)(2) [injunction may be granted where act to be enjoined "would produce waste, or great or irreparable injury"].)
Appellants further contend that the trial court committed legal error by not balancing the harms at all. While we acknowledge the lack of an express ruling on this factor, we must presume the trial court made the necessary finding in respondent's favor since the issue of balancing harms was briefed below. (See 14859 Moorpark Homeowner's Assn., supra, 63 Cal.App.4th at pp. 1402-1403; but see Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342-345 [remanding where trial court expressly declined to address preliminary injunction factor].) Appellants submitted several declarations establishing that many low-income individuals in the community depend on the garden for organic produce and medicinal herbs, and also benefit from appellants' maintenance of the subject property and surrounding area. These are certainly positive benefits to the community that will be impacted if appellants are enjoined. Nevertheless, the trial court's weighing of the mix of potential-merit and interim-harm is to be disturbed on appeal only if there was an abuse of discretion, and here, the trial court could have reasonably concluded that respondent's high likelihood of prevailing on the merits justified the injunction despite even a strong showing of countervailing harm to appellants and the community. (See NewLife Sciences, LLC v. Weinstock (2011) 197 Cal.App.4th 676, 687-688 [affirming preliminary injunction on plaintiff's strong likelihood of prevailing notwithstanding balance of harms tipping in defendant's favor].) The trial court's implied balancing did not exceed the bounds of reason and was within the permissible scope of its discretion.
Finally, appellants argue the trial court erred by issuing a preliminary injunction that did not preserve the status quo. "Although the status quo for these purposes can be easily defined as ' " ' "the last actual peaceable, uncontested status which preceded the pending controversy," ' " ' [citation], determining whether a particular order alters the status quo can be more difficult." (Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1184.) Appellants view the status quo in this case as the time period between 2012 and March 2015 when gardening activities peacefully took place on the subject property. However, during this time, respondent always had the power to terminate consent, which he eventually did in March 2015 prior to filing suit. The preliminary injunction, issued after respondent had terminated consent, did not fundamentally alter a revocable—and eventually revoked—arrangement to use the subject property.
Our conclusion is consistent with the case law analyzing whether an injunction is mandatory or prohibitory. A prohibitory injunction " 'seeks to restrain a party from a course of conduct or to halt a particular condition' " (People ex rel. Brown v. iMergent, Inc. (2009) 170 Cal.App.4th 333, 342), whereas a mandatory injunction "has the effect of compelling the performance of a substantive act and necessarily contemplates a change in the relative position or rights of the parties at the time the injunction is granted or the decree entered." (Johnston v. Superior Court (1957) 148 Cal.App.2d 966, 970, italics added.) The preliminary injunction at issue is prohibitory in that it seeks to restrain appellants and those acting on their behalf from a course of conduct, namely, entering onto or remaining on the subject property. At the time the preliminary injunction was issued, respondent had already terminated his consent to appellants' occupation of the subject property, so the relative positions and rights of the parties are not changed by the injunction. Although the practical effect of the injunction is to return possession of the subject property to respondent, this is merely incidental to the prohibitive objective of restraining further trespasses. (See People v. Hill (1977) 66 Cal.App.3d 320, 330-331 [injunction against false advertising was prohibitory despite requiring affirmative action to remove words].) The preliminary injunction does not compel the surrender of the "lawful" possession of real property (see Byington v. Superior Court (1939) 14 Cal.2d 68, 70) since appellants have not established a lawful right of possession, and no court has yet fashioned an equitable possessory interest which appellants can currently claim. Thus, we conclude the trial court's preliminary injunction is simply prohibitory against a repeated trespass and does not alter the status quo for purposes of the balance of harms analysis.
III. DISPOSITION
The order granting respondent's motion for preliminary injunction is affirmed. Each party shall bear its own costs on appeal.
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
STREETER, J. /s/_________
SCHULMAN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.