Judge: Richard Y. Lee, Case: 30-2020-01127807, Date: 2023-07-20 Tentative Ruling

Defendants, Rick Sittig (“Sittig”) and Shelley Starr (“Starr”) (collectively “Defendants”) move for an order granting summary judgment in favor of Defendants and against Plaintiff, Mark Becker.

Defendants contend that they are entitled to summary judgment on all three of Plaintiff’s causes of action. As to the First Cause of Action for Nuisance, Defendants argue that the three-year statute of limitations has expired pursuant to Code of Civil Procedure section 338(b) for this permanent private nuisance, and that no private nuisance existed based on testimony from Matthew Cosylion, the Code Enforcement Supervisor for the City of Newport Beach, who stated there was no violation of any Newport Beach Municipal Code (“NBMC”) ordinance.

Defendants also argue that there is no triable issue of fact as to Plaintiff’s Second Cause of Action for Violation of Newport Beach Municipal Code sections as the noise from the two air conditioning units (the “Units”) has been thoroughly investigated by the City of Newport Beach (the “City”) who determined that no violation existed.

Finally, Defendants argue that there is no triable issue of fact as to Plaintiff’s Third Cause of Action for Negligence because a duty has not been breached since no ordinances have been violated, and that the two-year statute of limitations for negligence has expired pursuant to Code of Civil Procedure section 335.1.

Plaintiff contends that he may proceed under his First Cause of Action for Nuisance because the ordinance is not meant to be exclusive, and that while Defendants contend that the noise constitutes a permanent nuisance, it is a continuous nuisance that is easily abatable, such that the statute of limitations has not run. Plaintiff contends that his declaration creates a triable issue of material fact that the noise of the Units and the filing of his 2020 Complaint was timely under a continuous nuisance theory, and that the noise from the Units occurred within close proximity to the filing of the Complaint and continues to the present day.

As to the Second Cause of Action, Plaintiff contends that Defendants have not introduced adequate evidence to shift the burden of production to Plaintiff, as they establish that Mr. Cosylion tested the noise level in the bunkhouse and found a violation of NBMC 10.25.045(a), and argue that the bunkhouse was an improper measurement location based on inadmissible hearsay. Plaintiff also provides that there are triable issues as to whether a violation occurred as whether a measurement taken in the bunkhouse is an appropriate location under NBMC section 10.26.055(A) is at issue and Plaintiff provides evidence that it is, and that Mr. Cosylion took a sound measurement of the Units from the bunkhouse with an ordinance complaint sound meter and recorded a decibel level of 57 dB and 58 dB which are above levels permitted under NBMC. In addition, Plaintiff argues that there is a triable issue of whether Sittig has complied with the permit for the Units and the use of a timer that stops the Units from running between 10 p.m. and 10 a.m.

As to the Third Cause of Action for Negligence, Plaintiff argues it is not barred by the two-year statute of limitations for the same reasons the claim for nuisance is not barred.

In reply, Defendants argue that Plaintiff’s opposition contains immaterial “facts” which are conclusory and are mere statements of Plaintiff’s opinion without supporting evidence, and which do not establish a triable issue of fact; that Plaintiff’s bunkhouse is not the proper location for measurements to be taken; and that there is nothing to abate because there is no violation.

After the motion was continued to allow for discovery per Plaintiff’s request for a continuance, Plaintiff filed another opposition on July 6, 2023. Plaintiff provides that an inspection of Defendant’s home was finally conducted on January 12, 2023, so that the air conditioner noise could be measured, and that Plaintiff’s experts from Veneklasen Associates took measurements of noise levels of both air conditioner units, individually and together, and expert, John J. Loverde, an acoustical consultant in Orange County and Director of Architectural Acoustics for  Veneklasen Associates, opines that through a comparison of the sound measurement and the allowable NBMC levels, there is non-compliance with the NBMC during the day and night with the air conditioners operating individually or both at the same time, such that there is a triable issue of fact regarding Defendant’s claim that the motion for summary judgment must be granted because Plaintiff has no sound measurements establishing a violation of the noise ordinance. Plaintiff additionally provides that Mr. Loverde opines that both units are individually non-compliant and non-compliant together meaning that both pieces of equipment will require mitigation; that the mitigation options for the Units offered by Mr. Loverde create additional triable issues of fact that the air conditioners are a continuous nuisance, and that if a nuisance is continuous, the statute of limitations accrues after every occurrence.

Initially, the Court notes that subsequent to the filing of the instant motion on March 28, 2022, Plaintiff filed a Request for Dismissal, without prejudice, as to Defendant Shelley Starr only. (ROA 148.) Therefore, the only defendant remaining is Defendant, Rick Sittig.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “A summary judgment may be granted only where it is shown that the entire ‘action’ ‘has no merit.’ [Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 834.) In order to be entitled to summary judgment, a moving party must defeat all theories asserted as to a cause of action alleged in a complaint. (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613 [“in order to be entitled to summary judgment, respondent had to defeat that theory [fraud based on concealment] in addition to the fraud based on affirmative misrepresentation” and the burden as on respondent to negate at least one element of the action for fraud based on concealment].)

There is a three-step process in reviewing a summary judgment motion. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638.) The court first “ ‘identif[ies] the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.][¶].’ ” (Ibid.) Second, the court “ ‘determine[s] whether the moving party’s showing has established facts which negate the opponent’s claim and justif[ies] a judgment in movant’s favor. [Citations.] . . . [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]’ [Citation.]” (Ibid.)

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.)

In determining a motion for summary judgment, the court is “required to view the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment motion; doubts as to whether there are any triable issues must be resolved in favor of the opposing party; and equally conflicting evidence or inferences require denial of a summary judgment motion.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522.) Declarations provided in opposition to motions for summary judgment or summary adjudication are liberally construed while the moving party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)

Defendant’s Request for Judicial Notice (ROA 57)

Defendant requests that the Court take judicial notice of the Complaint filed in this action by Plaintiff, Mark Becker, and which is attached as Exhibit 1 to the request.

The request is GRANTED. The Court takes judicial notice of the Complaint filed in this action pursuant to Evidence Code section 452(d) as a court record.

Plaintiff’s Objections to Defendant’s Evidence (ROA 71)

The Court OVERRULES all objections, consisting of Objection Nos. 1-15.

In moving for summary judgment, “a defendant may rely on the complaint’s factual allegations, which constitute judicial admissions. [Citations.] Such admission are conclusive concessions of the truth of the matter and effectively remove it from the issues. [Citations.]” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3.)

Defendant’s Objections to Plaintiff’s Evidence (ROA 111)

Declaration of Mark Becker

The Court OVERRULES Objection Nos. 2-7, 19, 20-21, 23-24, and 26.

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).)

A ruling as to Objection Nos. 1, 8-18, 22, and 25  is not material to the disposition of the motion.

Declaration of Christopher J. Ohlsen

A ruling as to these objections is not material to the disposition of the motion at this juncture.

Allegations in the Complaint

The Complaint alleges that in or about March 2014, two air conditioning units were installed on Defendant’s property, 408 Belvue Lane, by prior owners of the property; that the units are located approximately two yards from the bunkhouse on Plaintiff’s property, 410 Belvue Lane; and that the noise generated by the units prevents Plaintiff’s guests from sleeping in the bunkhouse and significantly impacts Plaintiff’s ability to have outdoor gatherings in his backyard. (Ex. 1 to Defendant’s Notice of Lodging (“NOL”), Complaint, ¶¶ 1, 2, 8.) It is alleged that on or about November 11, 2014, permits were issued for the units based upon false information as the information submitted to the City failed to identify Plaintiff’s bunkhouse and the adjoining patio area, and thus, misrepresented the distance between the units and the areas used for “normal human activity” on Plaintiff’s property. (Id, ¶ 10.) Plaintiff alleges that he made a formal complaint in or about July 2014 to the City that the units were not in compliance with noise ordinance; and that in or about July 2015, the City notified Plaintiff that timers were installed on the Units so that one of them would not run at night, but that both units continued to run at night. (Id., ¶¶ 11-12.) Plaintiff alleges that in or about May 2016, the prior owners of Defendant’s property moved out without relocating the units and that upon moving in, Defendant ran the units continuously. (Id., ¶¶ 14-15.) The Complaint alleges that Defendant operates the units so that they generate constant noise at approximately 59dBA at all hours, and that this violates NBMC and the noise ordinances in NBMC sections 10.26.005 through 10.26.100 [Second Cause of Action], and constitutes a nuisance in violation of Civil Code section 3479 [First Cause of Action]. (Id., ¶¶ 15-16, 20-29.) Plaintiff bases the Third Cause of Action for Negligence based on the same foregoing allegations. (Id., ¶¶ 30-32.)

First Cause of Action for Nuisance

Defendant argues that the three-year statute of limitations has expired pursuant to Code of Civil Procedure section 338(b) for this permanent private nuisance, and that no private nuisance existed based on testimony from Matthew Cosylion, the Code Enforcement Supervisor for the City, who stated there was no violation of any NBMC ordinance.

Plaintiff contends that contrary to Defendant’s contention, this is not a permanent nuisance, but is a continuous nuisance that is easily abatable, such that the statute of limitations has not run. Plaintiff also contends that the Declaration of Mark Becker creates a triable issue of material fact that his Complaint was timely under a continuous nuisance theory, and that the noise from the Units occurred within close proximity to the filing of the Complaint and continues to the present day. Plaintiff additionally contends that he may proceed under his First Cause of Action for Nuisance because the ordinance is not meant to be exclusive.

Initially, Defendant fails to establish that the non-existence of a violation of any NBMC ordinance precludes a separate cause of action for nuisance, and therefore, fails to meet its initial burden as to this argument. Indeed, Defendant cites to no authority in support of this contention. Additionally, Plaintiff cites to authorities supporting that the alleged noise disturbance may still constitute a nuisance even if it may not violate an NBMC ordinance, and Defendant does not address this argument or authorities citied by Plaintiff in reply.

As noted in Chase v. Wizmann (2021) 71 Cal.App.5th 244, where the Court of Appeal declined to find that a Los Angeles Municipal Code section necessarily implied a limitation on private nuisance actions for equipment noise as a matter of law, “ ‘[d]efendant has provided no authority suggesting that, absent an ordinance violation, a certain noise level could not be considered a nuisance. Thus, irrespective of an ordinance violation, plaintiff may claim the existence of a nuisance.’ [Citations.]” (Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257.)

The parties appear to agree that the three-year statute of limitations for injury to real property applies. The issue is whether there exists a permanent nuisance or continuous nuisance.

A nuisance is “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance. (Civ. Code. § 3479.)

To prove an action for private nuisance, the plaintiff must prove (1) an interference with his use and enjoyment of his property; (2) a substantial invasion of the plaintiff’s interest in the use and enjoyment of the land, i.e., that causes plaintiff to suffer substantial actual damage; and (3) that the interference with the protected interest is not only substantial but also unreasonable, i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.) The latter two elements are judged by an objective standard, and are questions of fact that are determined by considering all of the circumstances of the case. (Id. at pp. 263-264.)

“There is a three-year statute of limitations in a nuisance action brought by a private party. [Citations.]” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1216 (“Beck”).) “With respect to a permanent nuisance, the statute of limitations begins to run on the creation of the nuisance and bars all claims after its passage, while each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based upon the new injury. [Citation.]” (Id. at pp. 1216-1217.)

“Two distinct classifications have emerged in nuisance law which determines the remedies available to injured parties and the applicable statute of limitations.” (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868 (“Baker”).) “On the one hand, permanent nuisances are of a type where ‘by one act a permanent injury is done, [and] damages are assessed once and for all.’ [Citations.]” (Id. at pp. 868-869.)

“The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff’s land [citation], a steam railroad operating over plaintiff’s land [citation], or regrade of a street for a rail system [citation]. In such cases, plaintiff ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected. [Citations.]” (Id. at p. 869.) Damages are complete when the nuisance comes into existence and are not dependent upon any subsequent use of the property. (Ibid.)

“On the other hand, if a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated. [Citation.]” (Baker, supra, 39 Cal.3d at p. 869.) Recovery is limited to actual injury suffered prior to commencement of each action and prospective damages are unavailable. (Ibid.) “The classic example of a continuing nuisance is an ongoing or repeated disturbance, . . . , caused by noise, vibration or foul odor. [Citation].” (Ibid.)

“The critical test of a continuing nuisance is whether the offensive condition can be discontinued or abated at any time. [Citations].” (Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744.) “ ‘In case of doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing.’ [Citation.]” (Ibid.) However, the plaintiff’s election must be supported by evidence that makes it reasonable under the circumstances. (Beck, supra, 44 Cal.App.4th at p. 1217.) “A plaintiff cannot simply allege that a nuisance is continuing in order to avoid the bar of the statute of limitations, but must present evidence that under the circumstances the nuisance may properly be considered continuing rather than permanent. [Citation.]. It is only where the evidence would reasonably support either classification that the plaintiff may choose which course to pursue. [Citation.]” (Ibid.)

“[T]he key question is whether the trespass or nuisance can be discontinued or abated and there are a number of tests used to answer this question. A respected legal treatise summarizes the various tests as follows: ‘[W]hether (1) the offense activity is currently continuing, which indicates that the nuisance is continuing, (2) the impact of the condition will vary over time, indicating a continuing nuisance, or (3) the nuisance can be abated at any time, in a reasonable manner and for reasonable cost, and is feasible by comparison of the benefits and detriments to be gained by abatement.’ ” (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 593-594.)

Here, Defendant argues that the Units were installed in March 2014 and have remained in the same location to the present time, but fails to establish that the nuisance complained of, i.e., Defendant’s operation of the Units so that they generate constant noise at approximately 59dBA at all hours, is a permanent nuisance.

Additionally, an ongoing or repeated disturbance caused by noise is a classic example of a continuing nuisance, it is alleged that the Units generate constant noise at all hours; it is undisputed that prior to filing the Complaint in 2020, Defendant routinely ran both air conditioners all night [Defendant’s Response to Plaintiff’s Opposition to SSUMF, No. 156, ROA 113]; that Defendant’s pattern of running the Units all night has continued on a weekly basis up to the filing of the Complaint and through the present day [Defendant’s Response to Plaintiff’s Opposition to SSUMF, No. 158. ROA 113]; that at the time the case was filed Sittig owned another home in the Los Angeles area and often allows both Units to run day and night when he is not staying at 408 Belvue Lane [Defendant’s Response to Plaintiff’s Opposition to SSUMF, No. 160, ROA 113]; that Sittig often allows guests to stay at his house when he is away and these guests run both air conditioners all night [Defendant’s Response to Plaintiff’s Opposition to SSUMF, No. 161, ROA 113]; and that noise from the Units can clearly be abated or discontinued at any time [Defendant’s Response to Plaintiff’s Opposition to SSUMF, No. 163, ROA 113; Plaintiff’s Supplemental Separate Statement, No. 194, ROA 205.]

Based on the foregoing, Defendant fails to meet his burden on summary judgment as he fails to establish his arguments and show that Plaintiff’s nuisance claim may not be separately and independently maintained from any alleged violation of any NBMC ordinance, and to show that Plaintiff’s claim is a permanent nuisance and is therefore barred by the three-year statute of limitations. In addition, there is authority supporting that a nuisance claim may be maintained irrespective of a violation of an ordinance, and the evidence submitted supports that the noise from the Units is a continuing, not permanent, nuisance for which Plaintiff may bring successive actions for damages until the nuisance is abated, and as the noise was continuing up to the filing of the Complaint, to the present, the First Cause of Action is not barred by the statute of limitations.

Where a defendant fails to establish every fact necessary to show the causes of action against them are without merit, they fail to meet their initial burden and the motion must be denied. (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1310.) As Defendant has moved only for summary judgment as to the entire Complaint and has failed to show that the entire action is without merit by failing to show he is entitled to summary judgment as to the First Cause of Action, the Court DENIES Defendant’s Motion for Summary Judgment.

In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 498.) “A summary adjudication motion tenders only those issues or causes of action that are specified in the notice of motion and may only be granted as to these specified matters. A judge must deny the motion if the moving party fails to establish an entitlement to summary adjudication on the specified matters and cannot summarily adjudicate other issues or claims even if a basis to do so appears from the papers.” (California Judges Benchbook:  Civil Proceedings-Before Trial § 13.45 Summary Judgment and Summary Adjudication Motions, citing Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)

In light of the foregoing, the Court need not address the Second and Third Causes of Action.

Plaintiff to give notice.