Judge: Armen Tamzarian, Case: BC647861, Date: 2023-08-09 Tentative Ruling

Case Number: BC647861    Hearing Date: August 9, 2023    Dept: 52

Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizman, and Mount Management, Inc.’s Motion to Modify or Dissolve Preliminary Injunction

Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizman, and Mount Management, Inc. move to modify or dissolve the preliminary injunction the court issued on July 22, 2020.  Plaintiffs Joseph Chase and Sylvia Chase assert, among other claims, a cause of action for nuisance arising from the noise produced by defendants’ air conditioning (AC) and pool equipment.  The court ordered defendants to move all their AC and pool equipment to the area on the south side of their property—away from plaintiffs’ property to the north.  Defendants now seek an order dissolving the injunction or modifying it to permit them to relocate their two AC condensers to the roof of their property. 

A court may modify or dissolve a preliminary injunction “upon a showing of a material change in the facts” or a change in the law “upon which the injunction… was granted,” “or that the ends of justice would be served by the modification or dissolution of the injunction.”  (CCP § 533.)

This preliminary injunction’s purpose is to abate a nuisance.  Civil Code section 3479 defines nuisance to include “[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…  .”  Nuisances can include “[e]xcessive and inappropriate noise.”  (Schild v. Rubin (1991) 232 Cal.App.3d 755, 764.)  The Los Angeles Municipal Code prohibits operating AC or pool equipment that makes noise over 55 decibels during the day or 45 decibels at night.  (LAMC, §§ 112.02(a), 111.03.)  Complying with that decibel limit, however, “does not mean” the noise “may not otherwise constitute a nuisance.”  (Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257.)    

When the court issued the injunction, the record included Joseph Chase’s declaration describing the noise as “unbearable.”  (Lubin Decl., Ex. C, J. Chase Decl., June 16, 2020, ¶ 2.)  He stated, “I cannot rest or sleep.”  (Ibid.)  Sylvia Chase’s declaration also described the noise as “unbearable” and said it “sounded like someone was gunning a jet engine under our window.”  (Lubin Decl., Ex. B, S. Chase Decl., June 16, 2020, ¶ 15.)  Defendants’ expert witness, acoustical consultant Steve Rogers, measured the noise of the two AC condensers at 48 decibels between the two properties’ pools.  (Lubin Decl., ¶ 5, Ex. D, Further Supp. Rogers Decl., July 17, 2020, ¶ 8.)

Defendants show a material change in the facts upon which the injunction was granted and that modifying the injunction to permit having their AC condensers on the property’s roof would serve the ends of justice.  In May 2023, defendants moved the AC condensers from their property’s west balcony to the roof.  (B. Wizmann Decl., ¶ 2.)  Rogers returned to measure the sound.  (Rogers Decl., ¶¶ 10-12.)  As measured from between the properties’ pools during the day, the AC units’ sound level was 44.1 decibels.  (Id., ¶ 10.)  From the same location at night, the AC units’ sound level was 41.8 decibels.  (Id., p 11.)

Plaintiffs contend this change in the facts is not material because the reduction was only four decibels.  The court finds reducing the noise level by four decibels is significant and material.  (The parties do not discuss whether decibels are on a logarithmic scale.) 

Plaintiffs’ declarations in opposition to this motion illustrate the significance of the reduction.  As discussed above, when the court granted the injunction, the record included plaintiffs’ testimony that the noise from the AC units (and defendants’ pool equipment, which has now been disconnected) was “unbearable” and like “a jet engine.”  Joseph Chase stated the noise kept him from sleeping.  Now, both plaintiffs simply state they “could hear the noise from” defendants’ AC units and that “[t]he noise was such that it would interfere with our enjoyment of the property.”  (J. Chase Decl., ¶ 3; S. Chase Decl., ¶ 5.)  Instead of describing the noise as severely disturbing, as they once did, they now only use subdued legal terminology.  And they state the noise “would,” not even that it does “interfere with [their] enjoyment of the property.” 

Moreover, plaintiffs state they turned off their own air conditioning when they evaluated the noise caused by defendants’ AC after it was relocated to the roof.  (J. Chase Decl., ¶ 3; S. Chase Decl., ¶ 5.)  The Chases’ air conditioning is substantially louder than defendants’.  (Rogers Decl., ¶ 6, Ex. K.)  While defendants’ AC units were off and plaintiffs’ two AC units were running, acoustical consultant Steve Rogers measured the sound level at two spots along the property line at 63.5 and 58.8 decibels.  (Ibid.)     

Plaintiffs also present no evidence rebutting Steve Rogers’s testimony that moving the AC units reduced the noise audible to plaintiffs.  They argue Rogers’s measurements are not valid because he measured from the ground instead of at the height of plaintiffs’ balcony or defendants’ roof, which are at about the same level.  (S. Chase Decl., ¶ 4.a, Exs. 8-9.)  They do not, however, present evidence—neither objective measurements nor their own subjective evaluations—that the AC is not quieter than before.  And though it seems logical that moving the AC units to the south side of the property (with defendants’ house between the AC units and plaintiffs’ property) as ordered would be quieter, plaintiffs do not present evidence of that.       

Modifying the injunction will serve the ends of justice.  Before the court issued the preliminary injunction, it issued a temporary restraining order on June 22, 2020, prohibiting defendants them from operating the machines “in excess of the [decibel] limit allowable by law.”  That order further required defendants to show cause why they should not be ordered to move the machines “if they cannot bring the decibel level of the machinery into compliance with the law.”  By disconnecting the pool equipment and moving the AC units, defendants have been able to bring the decibel level into compliance with the Los Angeles Municipal Code.  Though that does not necessarily mean the noise cannot constitute a nuisance, the evidence shows defendants significantly reduced the noise and greatly mitigated its impact on plaintiffs.  The court therefore finds that defendants show good cause to modify the preliminary injunction to permit them to keep their AC units on the roof instead of requiring them to move the AC units to the south side of their property.

The court considered whether it should apply the disentitlement doctrine.  (See Stoltenberg v. Ampton Investments, Inc. (2013) 215 Cal.App.4th 1225, 1229-1230.)  Defendants should have sought permission before moving the AC units to the roof.  Defendants have already been punished with contempt for violating this preliminary injunction.  But under the totality of circumstances, the court finds modifying the injunction serves the ends of justice.  Moving the AC units to the roof accomplished the injunction’s goal of reducing the noise.

Plaintiffs’ reliance on Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1508 is misplaced.  There, the Court of Appeal held the moving party “did not establish that the ends of justice required a termination of the restraining order” against him.  (Ibid., fn. omitted.)  At this stage, the issue is not whether the ends of justice require modifying the injunction, but whether modifying the injunction serves the ends of justice.  Trial courts have “broad discretion” in issuing or fashioning a preliminary injunction.  (Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 394.)  Modifying the injunction may not be required based on the evidence in the record, but the court concludes doing so serves the ends of justice.

Finally, plaintiffs contend this motion constitutes a motion for reconsideration under Code of Civil Procedure section 1008.  Assuming it does, moving the AC units to the roof and reducing the noise audible from plaintiffs’ property constitutes “new or different facts” sufficient for reconsideration under section 1008(b).   

Disposition

Defendants Benjamin Wizmann, Michelle Wizmann, Caroline Denise Wizman, and Mount Management, Inc.’s motion to modify the preliminary injunction is granted.  The court will sign defendants’ proposed order after striking the text regarding dissolving the injunction on page 2, lines 5-6.