Judge James C. Chalfant, Case Number: 24STCV15002, Date: 2024-07-16 Tentative Ruling

City of Whittier, et al. v. Romero Investments LLC, 24STCV15002

Tentative decision on application for preliminary injunction: granted

Plaintiff City of Whittier (“City”), on behalf of itself and the People of the State of California, seeks a preliminary injunction to enjoin Defendant Romero Investments, LLC (“Romero”) from continuing to hold unpermitted events at a property.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Plaintiff City filed this action on June 14, 2024 against Defendant Romero alleging causes of action for (1) public nuisance under state law and (2) public nuisance under City’s Whittier Municipal Code (“WMC”). The Complaint alleges in pertinent part as follows:

Defendant Romero, a California limited liability company, owns, leases, or otherwise occupies a property located at 14081 Summit Drive in the City (“the Property”). Compl., ¶¶ 3-4. The City has zoned the Property as Housing-Residential (“H-R”). Compl., ¶4. Romero illegally operates a business at the Property by renting it out as an event space. Compl., ¶5.

In the course of its business, Defendant is violating at least eight municipal regulations in at least 16 different ways, including (A) illegal grading & import of untested soils, (B) activities causing stormwater/runoff issues, (C) activities creating erosion issues, D) unpermitted paving, (E) unpermitted construction of a deck-type structure with no safety rails on hillside edge that was graded without permits, (F) storage of what appears to be a dozen cords of firewood up against a hillside immediately adjacent to protected Habitat Authority open space, (G) unpermitted and intensified use of area zoned for single-family hillside residential use, including (1) noise, (2) lighting, (3) vehicular access, (4) lack of fire approvals/fire protection or evacuation routes, and (5) environmental & biological impacts on sensitive and protected resources, and (H) unpermitted and unlicensed business activity, including (1) construction, advertisement, and rental of ‘event center’, (2) unpermitted assembly/event of hundreds of people, (3) unknown status of health permits, (4) unknown status of ABC licenses, and (5) unknown status of fire marshal approvals/assembly use approvals. Compl., ¶5.

Around October 16, 2022, the City was notified that Romero was illegally performing grading or construction at the Property without proper permits. Compl., ¶13. Around October 21, 2022, the City received notice of the same violations again. Ibid. Around October 24, 2022, the City inspected the Property, verified illegal work was taking place, and issued a Stop Work notice. Ibid. Defendant failed to respond or stop unpermitted activities. Ibid.

Around November 22, 2022, the City issued a Notice of Non-Compliance letter to Defendant. Compl., ¶14, Ex. 1. The Non-Compliance letter gave Defendant notice to stop illegal grading activities in a landslide zone and to (1) submit a remediation plan for grading work already performed, (2) submit an erosion control plan to address current and future erosion issues, (3) submit a Standard Water Pollution Prevention Plan, and (4) cover, remove, or recompact soil stockpiles or potentially disturbed soils. Ibid. The letter also gave notice of a storm event the week of November 8, 2022 that had caused stormwater and runoff pollution from the Property. Ibid. The letter demanded a response within ten days and gave Defendant notice of a possible public nuisance abatement action, receivership, or criminal prosecution for failure to comply. Compl., ¶ 15.

Around February 15, 2023, the City sent Defendant a Notice of Violation letter. Compl., ¶17, Ex. 2. The Notice of Violation letter gave notice of the same violations and the same possible repercussions for failure to comply as the November 2022 Notice of Non-Compliance. Compl., ¶¶ 17-18.

In September of 2023, Defendant’s engineer submitted grading plans to the City to correct the illegal grading that was performed at the Property without a permit. Compl., ¶19. The plans were deficient, and the City rejected them. Ibid. At the time of this Complaint, Defendant still has not submitted compliant plans. Compl., ¶20.

Defendant rents out the Property for events such as parties, weddings, and large social gatherings, sometimes with hundreds of attendees. Compl., ¶21. Defendant has not obtained proper permits, nor a business license for an H-R zone. Ibid. The events are loud and boisterous and cause considerable disturbance to residences in the vicinity. Compl., ¶21. Disturbances include fireworks, farm animals, and excessive noise in both day and nighttime hours. Ibid. The City’s police department has been called to the Property on nuisance calls numerous times. Compl., ¶22. Residents also have complained to the City Council. Ibid.

Defendant ignored the City’s various notices and continued to plan and conduct events through the filing of this Complaint. Compl., ¶21.

Plaintiff City seeks an order (1) requiring Defendant Romero to show cause, if any, why it should not be immediately, preliminarily and permanently enjoined from the activity set forth in the Complaint, (2) declaring the Property a nuisance and enjoining Defendant from further nuisance activity, (3) temporarily, preliminarily, and permanently enjoining Defendant from operating, conducting, using, occupying, or permitting unpermitted grading and/or construction or events at the Property, (4) enjoining Defendant from transferring any ownership interest and/or leasehold interest in the Property and structures thereon unless there has been approval of its compliance with all applicable court orders and requests by the City, (5) requiring Defendant to abate all conditions that cause nuisances on the Property, (6) awarding costs and fees, including costs of investigation, and (7) other just and proper relief. Compl., pp. 15-16.

On June 26, 2024, the court issued a temporary restraining order (“TRO”) and an order to show cause (“OSC”) restraining Defendant. from continuing to hold unpermitted events at the Property. The City’s application also sought a TRO/OSC against illegal grading, excavation, and construction work at the Property which the court denied as not emergent.

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable 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. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

A “city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Cal. Const. art. XI, § 7. A city’s general police power enables it to “make and enforce ordinances to regulate or prohibit a thing or act which is of such a nature that it may become a nuisance or may be injurious to the public health if not suppressed or regulated.” Sullivan v. City of Los Angeles, (1953) 116 Cal. App. 2d 807, 810.

A “public nuisance” is defined as “behavior constituting a violation of the provisions of: (1) Chapter 11 of Title 7 of the California Penal Code, and (2) Sections 407 or 415 of the California Penal Code, and (3) Section 8.32.030 of the WMC, or (4) noise that is unreasonably loud, raucous, excessive or jarring to persons within the area of audibility in a residential area which disturbs the peace or quiet of any neighborhood.” WMC §9.56.020.

“A violation of this chapter is hereby declared to be a public nuisance, which may be abated by the city in the manner provided by the laws of the State of California and the ordinances of this city ... , and the city shall also have all rights provided by such laws and ordinances to recover damages suffered from any such nuisance and to recover from the owner of the property upon which such nuisance is located the cost of any abatement thereof by the city.” WMC §8.32.150(B).

Business and Professions Code section 16000(a) permits a city to license and regulate businesses. Businesses operating within the City shall obtain licenses. WMC §05.04.010.

Defendant Romero owns the Property. RJN, Ex. 1. Social media postings as of June 18, 2024 indicate the Property is available for rental as an event space. Ballard Decl., ¶¶ 4-5, Exs. 4-5. The Property is promoted as “one of the best venues in LA”, with “amazing views” and the reader is encouraged to “book it now”. Ballard Decl., ¶4, Ex. 4. A wedding is scheduled to be held at the Property on June 22, 2024 from 5:30 p.m. to 2:00 a.m. Ballard Decl., ¶5, Ex. 5. A search of the City’s public records shows no City permit or license issued to Romero or anyone else to host or rent the Property for large parties and events. Garcia Decl., ¶4.

Since May 2022, Whittier Police Department (“WPD”) has received multiple noise complaints from residents of the City about the Property and has responded 24 times. Bar Decl., ¶3. WPD has issued 15 WMC violations due to the noise complaints. Bar Decl., ¶4. For example, on Jun 8, 2024, WPD was dispatched six times to the Property due to loud noise complaints from residents located as far as a mile from the Property. Bar Decl., ¶4. There was a live band playing for an estimated 500 people. Bar Decl., ¶4. On May 11, 2024, WPD was dispatched twice to the Property due to a band, party lights and loud music. Bar Decl., ¶4. On April 21, 20243, WPD was dispatched three times to the Property due to noise complaints. Bar Decl., ¶4. Notice of Loud Party Violations were issued on each occasion. Bar Decl., ¶5, Ex. 6.

On June 11, 2024, five City residents complained at a City Council meeting about excessive noise and music at the Property. Garcia Decl., ¶3, Ex. 3.

The City’s counsel sent Romero a letter on June 13, 2024, entitled “Cease and Desist from all Illegal Events and Unpermitted Construction”, informing it that criminal charges were being prepared for both illegal events and unpermitted construction. Do Decl., ¶2, Ex. 7.

Romero owns property encompassing approximately 7.94 acres located at 14081 Summit Drive, City of Whittier, County of Los Angeles, State of California (the Property). Jacobo Decl., ¶2. Romero also owns the 7.55 acres of property located in the County of Los Angeles (“County”) immediately west of and adjoining the Whittier Property (“County Property”). Jacobo Decl., ¶3. The only means of access to the County Property is via the Property. Jacobo Decl., ¶4.

Romero purchased the Property and County Property on or about May 2022 and thereafter began contemplation and design of horse stables and landscaping at the Property. Jacobo Decl., ¶5. Collaboration with the City remains Romero’s priority and our cooperation with the City continues today and despite the initiation of the City’s Complaint. Jacobo Decl., ¶9.

While Romero’s envisioned plans for the County Property remain under development, they include enclosed/contained structures for music in order to contain noise and mitigate any adverse noise impacts. The use of the County Property may also include ancillary social activities and/or private recreation events as may be permitted by Los Angeles County. Jacobo Decl., ¶12. Romero has not submitted any development application to the County or sought a business license from the County but intends to do so once its development plans are complete. Jacobo Decl., ¶13.

It remains Romero’s intent to continue to work with the relevant administrative agencies to secure the necessary entitlements and licenses respectively applicable to the Property and County Property. Jacobo Decl., ¶14. Romero hopes that this court’s involvement will not only provide a means to assure the City that any development of the Romero properties will occur in an orderly and permitted fashion, but also ensure that the planned use of them will not be frustrated or delayed by arbitrary or capricious denials, or selective regulatory enforcement amounting to a compensable taking under California law. Jacobo Decl., ¶15.

While events have been held at the Whittier Property, such events have been limited to those held for immediate family, co-workers and friends. The Property is not a commercial venue available to the general public. Jacobo Decl., ¶16. Krystal Sosa and Fernando Arroyo, the bride and groom described in the wedding of Krystal and Fernando are close family friends of Romero’s operations director. Jacobo Decl., ¶17. While costs of such events were recovered, no persons or entities associated with Romero profited from these events. Jacobo Decl., ¶18.

Upon information and belief, individuals not associated with Romero and without Romero’s consent have published inaccurate information on various social media outlets describing the Property as presently open for business to the general public. Jacobo Decl., ¶20. Such posts are not accurate as the Property is not a venue open to the general public. Nor do such individuals speak for Romero. Jacobo Decl., ¶21.

Romero acknowledges that it should comply with applicable noise restrictions relevant to the Property and County Property. Jacobo Decl., ¶22.

Upon information and belief, Romero will use the Property in a manner consistent with the WMC H-R Zone requirements and work diligently with the City to secure any permits and/or licenses that may be required in the event that Romero’s desired use deviates from those described in the H-R Zone. Jacobo Decl., ¶23.

Plaintiff City seeks to enjoin Defendant Romero’s illegal use of the Property as an event space to rent for extremely loud parties, events, and receptions that go on into the early pre-dawn hours.

A civil action to abate a public nuisance may be brought by a city or district attorney on behalf of the People of the State of California. CCP §731. An “[i]njunction is the method of abatement in equity and the most frequent instances of employment of mandatory injunction include the removal of nuisances.” Katenkamp v. Union Realty Co., (1936) 6 Cal. 2d 765, 776. To obtain injunctive relief to abate a public nuisance, the applicant must show the defendant’s conduct “can be brought within the terms of the statutory definition of public nuisance” and that the nuisance is substantial and unreasonable. In re Englebrecht, (1998) 67 Cal.App 4th 486, 492. A nuisance is substantial if it is “definitely offensive, seriously annoying or intolerable.” People v. Acuna, (1997)14 Cal.4th 1090, 1105. Unreasonableness is determined by comparing the social utility of the activity to the gravity of the harm it inflicts. Id.

The City presents evidence that WPD has been notified many times, and many residents have complained, about excessively loud and boisterous events at the Property that can be heard up to a mile away with music from DJs and bands that blare until 3 a.m. or later with laser light shows, ATVs. staging equipment, and thumping techno music. The Property is not zoned for commercial events as it is located in a hillside-residential (H-R) zone. Romero has no conditional use permit or business license to rent out the Property for these events which have up to 500 attendees. See App. at 7.

“It shall be unlawful for any person to willfully make or continue, or cause to be made or continued, any excessive or unreasonable noise, which disturbs the peace or quiet of any neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitiveness residing in the area.” WMC §8.32.030. A “public nuisance” is defined as including noise that is unreasonably loud, raucous, excessive or jarring to persons within the area of audibility in a residential area which disturbs the peace or quiet of any neighborhood.” WMC §9.56.020.

The City’s unrebutted evidence shows that Romero is violating WMC section 8.32.030 and therefore the Property is a public nuisance under WMC section 9.56.020. Additionally, the Property is not zoned for commercial use and Romero has no permit or business license. See WMC §05.04.010.

Romero’s opposition argues that it is not holding commercial events at the Property and a business license is not required. See Jocobo Decl., ¶16. While Romero plans to use the County Property for such purposes, the County, not the City, is the proper authority for licensure. Opp. at 8. Romero acknowledges that it should comply with the City’s noise restrictions, but the City must not be arbitrary or capricious in its enforcement. There are numerous nearby venues that have the potential to cause noise to residences, including a college football stadium. It would be unfair to vigorously enforce the noise ordinance against Romero and not other adjacent landowners. Further, no injunction is required because the WMC provides adequate enforcement tools such as damages, fines, and contempt proceedings. Opp. at 9-10.

Romero’s arguments do not undermine the fact that there have been numerous noise complaints and WPD actions at the Property. There is nothing wrong with the City’s invocation of injunctive relief to abate the excessive noise problem and Romero has failed to show selective enforcement. The City has shown a reasonable probability that the events at the Property are a public nuisance.

There is no need for the City to show irreparable harm. A showing of irreparable harm is not required where the Legislature by statute or a city by ordinance has determined that a defined condition is a public nuisance; the only showing necessary is the statutory violation. City of Bakersfield v. Miller, (1966) 64 Cal.2d 93, 100. The court should not engage in the usual balancing of irreparable harms test for injunctions; the only issues to decide are whether the statutory violation exists and whether the statute is constitutionally valid. People v. Dept. of Transportation, (1993) 13 Cal.App.4th 1067, 1076; Amusing Sandwich, Inc. v. City of Palm Springs et al., (1985)165 Cal.App.3d 1116, 1129; City of Bakersfield v. Miller, (1966) 64 Cal.2d 93, 100. Violations of city planning and zoning requirements are a public nuisance which may be enjoined by injunction without a showing of irreparable harm. See City and County of San Francisco v. Padilla, (1972) 23 Cal.App.3d 388, 401.

Romero argues that the balance of harms works in its favor but fails to show why. It argues that restraints against non-commercial gatherings would preclude its full use and enjoyment of the Property, but that full use has resulted in the excessive loud noises which the City seeks to abate. See Opp. at 11-12.

The application for a preliminary injunction is granted. Defendant Romero and its agents are enjoined during the pendency of this action from hosting, allowing, or renting the Property for events, parties, and receptions. No bond is required for a public agency.

[1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[3] The City seeks judicial notice of a grant deed (Ex. 1) recorded with the Los Angeles County Recorder’s Office on May 27, 2022. The request is granted. Evid. Code §452(c).