Judge Ronald F. Frank, Case 19TRCP00166 2023-03-16 Tentative Ruling

Judge: Ronald F. Frank, Case: 19TRCP00166, Date: 2023-03-16 Tentative Ruling

Case Number: 19TRCP00166 Hearing Date: March 16, 2023 Dept: 8

Tentative Ruling

HEARING DATE: March 16, 2023¿

CASE NUMBER: 19TRCP00166

CASE NAME: City of Palos Verdes, People of the State of California v. Lucretia Zorotovich Duncan, et al.

MOVING PARTY: Plaintiffs, City of Palos Verdes Estates and the People of the State of California

RESPONDING PARTY: Defendants, James Duncan, Lucretia Z. Duncan

TRIAL DATE: May 16, 2023

MOTION:¿ (1) Motion Order to Show re Contempt

Tentative Rulings: (1) Granted. The Court Sets a Hearing in 30 days on the Order to Show Cause re Contempt, with the intention of giving Mr. Duncan the intervening four weeks to prepare and submit the Court-ordered Concept Plan for removal of the encroachments as a fact in mitigation of what appears to be a conscious and deliberate disregard for a lawful order of the Court. Waiting for Mom to pass away is not a sufficient excuse for further delay in addressing the Encroachments.

I. BACKGROUND¿

A. Factual¿

On February 13, 2020, the City of Palos Verdes Estates filed a Motion for Preliminary Injunction requesting an injunction enjoining Defendants during the pendency of this action from: (1) maintaining or allowing any public nuisances, within the meaning of Civil Code sections 3479 and 3480, on the Subject Property or the City’s adjacent rights-of-way; (2) maintaining or allowing any violations of Palos Verdes Estates Municipal Code (“PVEMC”) section 12.04.020, namely, unpermitted encroachments on City property or the City’s rights-of-way without the requisite City-issued encroachment permit; and (3) removing the numerous unpermitted encroachments into the City’s rights-of-way at the Subject Property including: (1) rock walls, (2) two pilasters, (3) a gate, (4) a driveway for ingress and egress on Via Horcada, and (5) landscaping, irrigation, and vegetation (collectively, “Encroachments”) without complying with the PVEMC and pursuant to City approved plans and City-issued permits. The Court found that the Encroachments are a nuisance per se under the PVEMC and public nuisances under the Civil Code and issued a preliminary injunction order (“Injunction”) on November 3, 2020.

City now argues that the Injunction has had no effect. It has been nearly five months since the Court issued the Injunction, and City contends that Defendants have failed to comply with the terms of the Injunction and have failed to submit a Concept Plan for Change to Parklands (“Concept Plan”) to the Palos Verdes Estates Parklands Committee for removal of the Encroachments.

B. Procedural

On February 14, 2023, City filed this Motion. On March 6, 2023, Defendants filed an opposition brief. On March 9, 2022, Plaintiffs filed a reply brief.

¿III. REQUEST FOR JUDICIAL NOTICE

City has requested that this Court take judicial notice of the following:

1. The Order for Preliminary Injunction entered and filed in the above-captioned case on November 3, 2020 (“Injunction”). The Court may properly take judicial notice of this matter as a court record pursuant to Evidence Code sections 451(f) and 452(d), as this document is a record of a Court of this State and is not reasonably subject to dispute. A true and correct copy of the Judgment is attached as Exhibit N to this RJN and is incorporated herein.

2. The Quitclaim Deed of Trust for the real property commonly known as 702 Via Horcada, Palos Verdes Estates, California (“Subject Property”), was recorded with the Los Angeles County Recorder as Document No. 20100010496 on January 5, 2010 (“Quitclaim Deed”). The City bases this request on Evidence Code sections 452(c), 452(h), 453, 1530, and 1600. Pursuant to Evidence Code section 452(c), the Court has the authority to take judicial notice of the Quitclaim Deed because it is maintained as an official record with the County of San Bernardino. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 [court may take judicial notice of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language]; Cooke v. Sup. Ct. (1989) 213 Cal.App.3d 401, 416 [records of a county are properly noticed under Evidence Code section 452(c) because counties are legal subdivisions of the State.].) A true and correct copy of the Quitclaim Deed of Trust is attached as Exhibit R to the Appendix of Exhibits filed concurrently herewith and is incorporated herein.

3. Palos Verdes Estates Municipal Code section 12.04.020 (“PVEMC Section”). The City bases this request on Evidence Code sections 452(b), 452(h), and 453. The Court has the authority to take judicial notice of PVEMC Section because “regulations and legislative enactments are issued by or under the authority of…any public entity in the Unites States,” and they are not reasonably subject to dispute, and are capable of immediate and accurate determination by resort to sources of reasonable indisputable accuracy. (See Martin v. City of Corning (1972) 25 Cal.App.3d 120, 131–133; Unfair Fire Tax Comm. v. City of Oakland (2006) 136 Cal.App.4th 1424, 1430.)

This Court grants City’s request and takes judicial notice of the above.

IV. ANALYSIS ¿

A. Legal Standard

A court may find a person in contempt for disobedience of a lawful court order. (Code Civ. Proc., §§ 1209, subd. (a)(6), 1218.) “ ‘The elements of proof necessary to support punishment for contempt are: (1) a valid court order, (2) the alleged contemnor’s knowledge of the order, and (3) noncompliance. [Citation.]’ ” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1548-1549 (Koshak).) A finding of contempt must be based on a “clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt citation.” (Van v. Language Line Services, Inc. (2017) 8 Cal.App.5th 73, 82.) “Unless the citee has concealed himself from the court, he must be personally served with the affidavit and order to show cause; otherwise, the court lacks jurisdiction to proceed.” (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286-1287.)

“When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.” (Id.) In the context of an affidavit or statement of facts submitted in connect with a contempt motion “[i]f no objection is made to the sufficiency of such affidavit or statement during the hearing on the charges contained therein, jurisdiction of the subject matter shall not depend on the averments of such affidavit or statement, but may be established by the facts found by the trial court to have been proved at such hearing, and the court shall cause the affidavit or statement to be amended to conform to proof.” (Code Civ. Proc. § 1211.5(a).)

B. Discussion

Valid Order

Here, City argues that the first prong is met, because the Court issued an injunction. (RJN, Ex. K [Judgment].) Additionally, City submitted accompanying declarations of Acting Community Development Director Seims and Attorney Sanchez. City asserts that said declarations show that Defendants, with actual knowledge of the Court’s Injunction and the ability to comply, have willfully disobeyed this Court’s Injunction. Accordingly, City asserts that Defendants should be held in contempt of court after a hearing on the facts.

Knowledge of the Order

City further asserts that Defendants have knowledge of the injunction. City claims that Defendants have acknowledged the Injunction, exhibited by their communications with the City and its counsel regarding the obligations imposed by it, feeble attempts to comply with it, and their unsuccessful attempt to modify the Injunction. (Seims Decl., ¶¶ 29–35.) City also notes, that on November 4, 2020, the City Attorney’s Office served Defendants with a Notice of Entry of Judgment along with a copy of the Injunction entered on November 3, 2020. (Seims Decl., ¶ 30; Sanchez Decl., ¶ 4, Exh. Q.) City contends that on March 1, 2021, the City Attorney’s Office issued a letter to Defendants notifying them to submit the Concept Plan as required by the Injunction within 30 days of this letter to avoid enforcement proceedings (“Breach Letter”). (Seims Decl., ¶ 30; Sanchez Decl., ¶ 5, Exh. P.) City submits that he Injunction was enclosed with the Breach Letter. (Seims Decl., ¶ 30; Sanchez Decl., ¶ 5, Exh. P.) Based on this, City argues that it is indisputable that Defendants had knowledge of the Injunction.

Ability to Obey the Order

Next, City argues that Defendants have the ability to comply with the Injunction. City claims that despite amply opportunity to bring the Subject Property into compliance with the Injunction, Defendants have failed and refused to comply with the Court’s Injunction. (Seims Decl., ¶ 33.) At minimum, City asserts that Defendants could have easily complied with the first order found in the compliance timeline by submitting the required Concept Plan. City argues that submitting the Concept Plan is well within the ability of Defendants. Furthermore, the City claims it provided Defendants with a reasonable time to comply with the Injunction before seeking enforcement, but it has been met with nothing but continuous disregard for the law and the Court’s Injunction while Defendants continue to illegally maintain the Encroachments. Accordingly, City asserts that Defendants have had ample opportunity and the ability to comply with the Injunction but have failed to do so.

Willful Disobedience of the Order

Lastly, City argues that Defendants willfully disobeyed the injunction. City asserts that the Injunction enjoined and restrained Defendants from maintaining the Encroachments and PVEMC violations at the Subject Property. (Seims Decl., ¶ 27; RJN, Exh. N [Injunction], p. 3-4.) Furthermore, City contends that the Injunction expressly ordered Defendants to take steps to bring the Subject Property into compliance with the PVEMC in accordance with a compliance timeline that was set forth by the Court’s Injunction. (RJN, Exh. N [Injunction], p. 3-4.)

City’s Request

City has requested this Court impose the maximum punishment permissible for Defendants. City argues that his Court should impose punishment to compel Defendants’ compliance with and for violation of the Injunction. Code of Civil Procedure section 1218(a) provides that contempt is punishable by a $1,000 fine payable to the court, or imprisonment not exceeding five days, or both. Under Code of Civil Procedure section 1218(a), the Court is permitted to fine an individual found to be in contempt, for each separate contemptuous act committed. As such, City has requested the Court should impose penalties against Defendants for each separate violation of the PVEMC and corresponding violation of the Court’s Injunction. City submits that Defendants violated the PVEMC and Injunction in the following ways:

1. Defendants, maintain or allow violations of the PVEMC, namely, unpermitted Encroachments on City Property or the City’s rights-of-way without the requisite City issued encroachment permit, thereby violating the Injunction on a daily basis.

2. Defendants failed to submit a Concept Plan to the Palos Verdes Estates Parklands Committee for removal of the Encroachments, as required by the Injunction.

Opposition

In opposition, Defendants assert that since the process has been detailed by the City, Defendants have diligently contacted all potentially affected neighbors, and obtained express approval from many local neighbors or had the neighbors agree they were not opposed to the request and put together a petition to abandon the walkway between 702 and 704 Via Horcada in the City of Palos Verdes Estates, and restore the walkway ½ to each parcel owner, and augment their own fee acreage. Mr. Duncan states he has gathered letters from his neighbors. Defendants also assert that despite the City labeling the wall a nuisance, there is nothing dangerous about the wall. Of course, the merits of that issue have already been decided against Defendants and the Court will not re-open the merits of the underlying dispute. Further, Defendants contend that the City had initially agreed that since Mrs. Duncan is 101 years of age, and has resided in the property since 1977, the wall removal, if ultimately necessary would follow her death.

Defendants assert that Mr. Duncan spends hours a day in caring for his mother, and their respective ailments and doctors appointments. Defendants argue that the wall is functional and secure, and that the only problem with it was that it was built without a permit. Defendants, thus, have asked this Court to allow the permit process with the City to proceed, to see if the walkway will be abated.

Reply Brief

In City’s reply brief, City argues that: (1) Defendants continue to willfully disobey the Court’s Injunction; (2) Defendants do not dispute any of the elements of contempt; (3) The sole issue at the motion hearing is whether the City has shown an OSC re Contempt must be issue; the ultimate issue of whether Defendants are guilt of contempt will be determined at a future hearing; (4) Defendants can be filed up to $1,000 for each and every day that they violate the preliminary injunction; That the Court should disregard Defendant’s opposition because it was timely; and (5) If the City prevails, the Court should order Defendants to pay the City’s attorneys’ fees and cost incurred in connection with the contempt hearings.

III. CONCLUSION

¿ For the foregoing reasons, Defendants’ Motion for OSC re Contempt is GRANTED. Moving party is ordered to give notice. The Court will discus the exact scheduling of the hearing with counsel to accommodate their calendars.