Judge: Gary I. Micon, Case: PC056481, Date: 2024-06-11 Tentative Ruling

Case Number: PC056481    Hearing Date: June 11, 2024    Dept: F43

Dept. F43

Date: 6-11-24

Case # PC056481, People of the State of California vs. Barton Wayne Fishback

Trial Date: N/A

MOTION TO SET ASIDE/VACATE JUDGMENT

MOVING PARTY: Defendant Barton Wayne Fishback

RESPONDING PARTY: Plaintiffs People of the State of California and the County of Los Angeles

RELIEF REQUESTED

Defendant, in pro per, is requesting that the Court enter an order setting aside the judgment, permanent injunction, civil penalties, and costs and to stay proceedings

RULING: Motion denied

SUMMARY OF ACTION

In 2015, Plaintiffs People of the State of California and the County of Los Angeles (Plaintiffs) filed an enforcement action against Defendant Barton Wayne Fishback (Defendant) and his company ABC Waste after they converted over 100 acres of undeveloped mountainous land into a dump. Defendant was depositing construction waste material into the hillside without an approved conditional use permit from the County.

In 2019, this Court granted Plaintiffs’ motion for summary judgment against Fishback and ABC Waste, finding them liable for public nuisance for using the heavy agriculture zoned land as a waste disposal facility, as then defined by the County’s zoning code, without a conditional use permit, and for engaging in unpermitted grading and excavation activities.

After Plaintiffs drafted a proposed judgment with civil penalties, the Court permanently enjoined the public nuisance and unfair business practices on October 19, 2020. Judgment was entered the same day.

Defendant appealed the judgment on December 15, 2020. The Court of Appeal dismissed the appeal on April 20, 2022. In June 2022, the County amended its Zoning Code to enact the Green Zone Districts Ordinance. While the new Zoning Code replaced some definitions of categories, like waste disposal facility, it still requires a permit prior to engaging in grading and excavating.

On October 18, 2023, Defendant Fishback, in pro per, filed this motion to set aside/vacate judgment. He argues that provisions of the County zoning and grading codes are preempted by the California Integrated Waste Management Act (CIWMA), Division 7 of the Title 14 of the California Code of Regulations, State Housing laws, and the California Building Standards Code (CSBC). He also argues that the judgment is void due to lack of subject matter jurisdiction. He also claims that the abstract of judgment filed in this case amount to fraud on the Court.

Plaintiffs argue in their opposition, filed on February 27, 2024, that Defendant’s claims are baseless, and that Defendant cannot support his claims of preemption or his claims of fraud or lack of subject matter jurisdiction. Plaintiffs argue that Defendant has not demonstrated any conflict between the Zoning Code and the CIWMA. Plaintiffs also argue that he has not shown that there has been any violation of the State Housing Law and CBSC. Further, they argue that the judgment is not void on its face, and the abstract of judgment was properly filed with the Court.

No reply had been filed as of March 6, 2024. At the hearing on March 11, 2024, the Court continued the hearing on the motion to the current date of June 11, 2024, in order to allow Defendant opportunity to file a reply to Plaintiffs’ supplemental request for judicial notice that was filed on March 7, 2024.

Defendant appears to argue in his reply, filed on May 2, 2024, that the County has perpetuated some great fraud on Defendant and the State Commission through changes made to its Building Code. The arguments presented by Defendant in his reply have little to do with the main issue here, which is that he had created a dump in undeveloped mountainous land, which was not zoned for that purpose, without a conditional use permit. He also repeats his arguments that the County’s Zoning and Building Code ordinances violate federal and state statutes and would be preempted. Defendant also argues that the judgment would be void on its face because of lack of subject matter jurisdiction, but it is unclear why he argues this. Finally, Defendant argues that a fraud on the Court occurred, but his reasons for this argument are unclear.

ANALYSIS

Plaintiffs’ Request for Judicial Notice: Plaintiffs have requested that the Court take judicial notice of prior documents filed in this case with the Court and the Los Angeles County Ordinance 2022-2023 that outlines Green Zone Districts. Plaintiffs make this request pursuant to Evidence Code §§ 452-453. The Court grants Plaintiffs’ request.

Plaintiffs’ Supplemental Request for Judicial Notice: Plaintiffs have requested that the Court take judicial notice of Title 25 of the Los Angeles County Code and a letter of acceptance from the California Building Standards Committee of Title 26 of the LA County Code determining the County’s express findings and modifications acceptable and enforceable. The Court takes judicial notice of these documents.

Preemption

Conflicts amounting to preemption exist if an ordinance duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. (Big Creek Lumber Co. v County of Santa Cruz (2006) 30 Cal 4th 1139.) “Local legislation is ‘duplicative’ of general law when it is coextensive therewith and ‘contradictory’ to general law when it is inimical thereto. Local legislation enters an area ‘fully occupied’ by general law when the Legislature has expressly manifested its intent to fully occupy the area or when it has impliedly done so in light of recognized indicia of intent.” (Id. at 1150.)

Courts are “‘reluctant to infer legislative intent to preempt a field covered by municipal regulation when there is a significant local interest to be served that may differ from one locality to another.’’ (Big Creek Lumber, supra, 38 Cal.4th at 1149.) When a local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute. (Ibid.) The party claiming state law preempts a local ordinance has the burden of demonstrating preemption. (Ibid.)

Defendant contends that the land use amendments provisions recently added to the County Zoning Code would be preempted by CIWMA. However, CIWMA authorizes local governments to adopt reasonable land use regulations concerning solid waste provided that the land use regulations do not conflict with CIWMA. (See Public Res. Code § 40053.) CIWMA permits the County to adopt zoning regulations to establish the location of solid waste and recycling uses within its jurisdiction. Despite Defendant’s arguments to the contrary, there are no conflicts between the Zoning Code’s definition of solid waste and CIWMA’s definition of solid waste. (See Zoning Code § 22.14.190-S and Public Res. Code § 40191(a).) The provisions of the Zoning Code are consistent with state law and are therefore not preempted.

Defendant has not met his burden to show preemption for CIWMA.

Defendant also argues that County Zoning and Building Codes enforced against him violate state housing law and CBSC. However, Defendant failed to indicate which provisions of these laws would conflict with the County Zoning Code. Therefore, his argument is unsupported. Further, the State Housing Code expressly allows local jurisdictions to regulate and enforce local zoning and land use regulations. (See Health and Safety Code § 17922(c).) Defendant also fails to show that the County did not adopt the grading standards set forth in the CBSC.

Defendant’s preemption arguments are without merit.

Void Judgment

Defendant argues that because there were changes made to the Zoning Code nearly two years after judgment against him was entered, then that would make the judgment against him void.

A defendant normally has six months after judgment is entered to file a motion to set aside the judgment. (CCP § 473(b).) If a judgment is void on its face, the six month time limit does not apply. (CCP § 473(d); see Calvert v Al Binal (2018) 29 Cal.App. 5th 954, 960.) Under CCP § 473 (d), a judgment or order is void on its face when the invalidity is apparent upon an inspection of the judgment roll without consideration of extrinsic evidence. (Morgan v. Clapp (1929) 207 Cal. 221, 224; Kremerman v. White (2021) 71 Cal.App.5th 358, 370.)

The judgment in this case is not void on its face. Though some definitions in the Zoning Code changed with the 2022 amendments, Defendant would still have been required to obtain a conditional use permit for the dumping. The changed definitions did not affect the permitting requirements.

Furthermore, the abstract of judgment was properly filed with the Court and does not amount to fraud on the Court.

The judgment is not void on its face.

Defendant has not presented any meritorious grounds upon which to set aside or vacate the judgment against him. Defendant’s motion is denied.

Moving party to give notice.