On 11/24/2020 STANFORD NEIGHBORHOOD ASSOCIATION, LLC filed a Property - Other Real Property lawsuit against MIRANDA LOGISTICS ENTERPRISE, INC . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
JAMES E. BLANCARTE
STANFORD NEIGHBORHOOD ASSOCIATION LLC
MIRANDA LOGISTICS ENTERPRISE INC.
UNITED PACIFIC WASTE
GRIT & GRAVEL INC.
12/11/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service
12/2/2020: Ex Parte Application (name extension) - Ex Parte Application For Temporary Restraining Order
12/3/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service
12/3/2020: Proof of Service by Substituted Service - Proof of Service by Substituted Service
12/4/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
12/4/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Ex Parte Application For Temporary Restraining Order) of 12/04/2020
12/4/2020: Minute Order - Minute Order (Hearing on Ex Parte Application For Temporary Restraining Order)
12/4/2020: Declaration (name extension) - Declaration VELEZ IN SUPPORT OF SPECIALLY APPEARING NAMED DEFENDANT MIRANDA LOGISTICS ENTERPRISE, INC.S
12/4/2020: Proof of Personal Service - Proof of Personal Service
12/4/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities
12/4/2020: Declaration (name extension) - Declaration OF MARCO ANTONIO MIRANDA IN SUPPORT OF SPECIALLY APPEARING
12/8/2020: Amendment to Complaint (Fictitious/Incorrect Name) - Amendment to Complaint (Fictitious/Incorrect Name)
11/24/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
11/24/2020: Complaint - Complaint
11/24/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
11/24/2020: Summons - Summons on Complaint
11/24/2020: First Amended Standing Order - First Amended Standing Order
11/24/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
DocketProof of Service by Substituted Service; Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Grit & Gravel Inc. (Defendant); Proof of Mailing Date: 12/09/2020; Service Cost: 1.00; Service Cost Waived: YesRead MoreRead Less
DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Grit & Gravel Inc. (Defendant)Read MoreRead Less
DocketUpdated -- Ex Parte Application For Temporary Restraining Order: Filed By: Stanford Neighborhood Association, LLC (Plaintiff); Result: Denied; Result Date: 12/04/2020Read MoreRead Less
DocketProof of Personal Service; Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Miranda Logistics Enterprise, Inc. (Defendant); Service Date: 12/02/2020; Service Cost: 1.00; Service Cost Waived: YesRead MoreRead Less
DocketMemorandum of Points & Authorities; Filed by: Miranda Logistics Enterprise, Inc. (Defendant)Read MoreRead Less
DocketDeclaration OF MARCO ANTONIO MIRANDA IN SUPPORT OF SPECIALLY APPEARING; Filed by: Miranda Logistics Enterprise, Inc. (Defendant)Read MoreRead Less
DocketDeclaration VELEZ IN SUPPORT OF SPECIALLY APPEARING NAMED DEFENDANT MIRANDA LOGISTICS ENTERPRISE, INC.?S; Filed by: Miranda Logistics Enterprise, Inc. (Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by: Miranda Logistics Enterprise, Inc. (Defendant); As to: Stanford Neighborhood Association, LLC (Plaintiff)Read MoreRead Less
DocketMinute Order (Hearing on Ex Parte Application For Temporary Restraining Order)Read MoreRead Less
DocketCertificate of Mailing for (Hearing on Ex Parte Application For Temporary Restraining Order) of 12/04/2020; Filed by: ClerkRead MoreRead Less
DocketDue to Clerical Error, Hearing on Ex Parte Application For Temporary Restraining Order scheduled for 12/04/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 12/04/2020 01:30 PMRead MoreRead Less
DocketComplaint; Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Miranda Logistics Enterprise, Inc. (Defendant); United Pacific Waste (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Miranda Logistics Enterprise, Inc. (Defendant); United Pacific Waste (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Miranda Logistics Enterprise, Inc. (Defendant); United Pacific Waste (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Stanford Neighborhood Association, LLC (Plaintiff); As to: Miranda Logistics Enterprise, Inc. (Defendant); United Pacific Waste (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketNon-Jury Trial scheduled for 05/24/2022 at 08:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/28/2023 at 08:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street CourthouseRead MoreRead Less
Case Number: 20STLC09822 Hearing Date: January 26, 2021 Dept: 85
Stanford Neighborhood Association, LLC v. Miranda Logistics Enterprise, Inc., et al., 20STLC09822
Tentative decision on application for preliminary injunction: denied
Plaintiff Stanford Neighborhood Association, LLC (“Association”) applies for a preliminary injunction enjoining Defendants Miranda Logistics Enterprise, Inc. (“Miranda”), United Pacific Waste (“UPW”) and Grit & Gravel, Inc. (“G&G”) from operating the concrete recycling business at 6510, 6600 and 6622 Stanford Avenue, Los Angeles, California (the “site”).
The court has read and considered the moving papers, supplemental brief, opposition, and reply, and renders the following tentative decision.
A. Statement of the Case
Plaintiff Association commenced this proceeding on November 24, 2020 against Defendants Miranda and UPW, alleging causes of action for trespass and nuisance. The Complaint alleges in pertinent part as follows.
The owners and lessees of 6483, 6493, 6511, 6517, 6535, 6624, 6625, 6701, and 6901 Stanford Ave, Los Angeles, California (“Plaintiffs’ Properties”) have assigned their rights to obtain injunctive relief against Defendants to Plaintiff Association. UPW is the owner of the Site and leases them to Miranda. Miranda operates a building materials salvage yard at the Properties. Miranda’s operations cause large amounts of concrete particulate to come onto Plaintiffs’ Properties, which is caused by its failure to abide by the zoning code regulations for its operation.
Miranda fails to comply with Los Angeles Municipal Code (“LAMC”) section 12.18(B)(3), which requires that building materials salvage yards be conducted wholly within a completely enclosed building or within an area enclosed on all sides with a solid wall or solid fence not less than eight feet in height, when no materials or equipment is stored to a height greater than that of the enclosing wall or fence. Defendants are not in compliance because they do not have a completely enclosed building, do not have an area enclosed on all sides with a solid wall, do not have an area enclosed on all sides with a solid fence, the cloth fence erected by Defendants is lower than the materials and has large gaps, and the cloth fence is not a solid fence.
The cloth fence erected by Defendants was not permitted and is not up to code. Defendants are also operating in violation of LAMC noise ordinances that prohibit sound levels above 65 decibels. Association used decibel measuring equipment and has found that Defendants operate routinely at a higher decibel level than 65 decibels. Defendants may also be operating without the necessary permits from the City of Los Angeles (“City”) and/or the County of Los Angeles (“County”).
2. Course of Proceedings
On December 4, 2020, Department 25 denied Association’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”). The court found that Association sought permanent injunctive relief, depriving Department 25 of jurisdiction over the matter. Department 25 ordered the matter reclassified and transferred to an I/C court.
On December 22, 2020, Department 1 denied Association’s ex parte application for TRO but set an OSC re: preliminary injunction for the instant date. The court directed Association to serve all moving and supplemental papers, the Summons and Complaint, and the OSC by December 28, 2020, filing the proof of service by December 31, 2020.
According to proofs of service on file, Miranda and UPW were served with the Summons, Complaint, and the moving papers on December 2, 2020 via substituted service. G&G was served with the Summons and Complaint on December 9, 2020 via substituted service. No proof of service is on file showing service of the OSC on any Defendant.
B. Applicable Law
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. 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). 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.
C. Statement of Facts
1. Association’s Evidence
Association represents the owners and lessees of Plaintiffs’ Properties, who have assigned their claims to Association in order to obtain collective injunctive relief and to allow for a single consolidated court action rather than a multiplicity of lawsuits. Eilenberg Supp. Decl., ¶2, Ex. A.
According to the most recently recorded grant deeds, Defendant UPW owns the site. Eilenberg Decl., ¶3, Ex. 1. UPW leased the site to Miranda. Eilenberg Decl., ¶4. According to Miranda, G&G is the operator of the concrete recycling business at the site. Eilenberg Decl., Ex. 2.
Association checked with the City’s Sanitation Department and could not locate any permits issued to Miranda or G&G. Eilenberg Decl., ¶31. Miranda did not have a permit with the County and the permit for G&G was for equipment only. Id.
The site is zoned MR-2. Eilenberg Decl., ¶14, Ex. 5. Pursuant to the LAMC, a concrete recycler in an MR-2 zone is required to enclose their entire operation in a solid wall or solid fence that is higher than the materials being processed. Eilenberg Decl., ¶15, Ex. 6.
Defendants have not put up a solid wall or fence and have instead put up a fabric fence with large gaps, missing panels, and holes cut throughout. Eilenberg Decl., ¶¶ 16-17; Smith Decl., ¶¶ 25-26; Sitita Decl., ¶¶ 24-25. The fabric fence is insufficient and does not comply with the LAMC because it is significantly shorter than required, is not on all four sides of the site, has holes cut throughout, and is periodically missing panels. Eilenberg Decl., ¶¶ 20-21, Ex. 7; Smith Decl., ¶26; Sitita Decl., ¶¶ 28-30. It also appears that Defendants never pulled a permit to erect the fence around the site. Eilenberg Decl., ¶¶ 22-23.
Under the LAMC, MR-2 properties are required to keep below 60 decibels. Eilenberg Decl., Ex. 8. Defendants’ operations have also been regularly exceeding the noise regulations for the region. Eilenberg Decl., ¶24; Smith Decl., ¶¶ 29-30; Sitita Decl., ¶¶ 16-18. The general noise level on the street, excluding the concrete recycling, is approximately 40-50 decibels. Smith Decl., ¶33. Association has, on multiple occasions, recorded Defendants’ operations exceeding 60 decibels and approaching 100 decibels. Eilenberg Decl., ¶¶ 26-27, Exs. 9a, 9b; Smith Decl., ¶¶ 31.
Stanford Ventures, LLC (“Stanford Ventures”) is one of the entities who has assigned its claims to Association for seeking injunctive relief. Smith Decl., ¶1. Stanford Ventures owns four parcels in the affected are and has for many years. Smith Decl., ¶¶ 2-3. Its current tenants are a food truck commissary which is a home base for food trucks and is expected to open in January 2021 and a licensed cannabis cultivation tenant. Smith Decl., ¶5, Ex. 1. The recent creation of the concrete grinding/recycling business has caused significant problems for both tenants and the landlord, Stanford Ventures. Smith Decl., ¶6; Sitita Decl., ¶¶ 3, 7.
The food truck commissary will provide clean, potable ice for its food trucks. Smith Decl., ¶11. As the commissary will be hosting over 100 food trucks upon opening, it is required to provide a large quantity of potable ice for the trucks on premises. Smith Decl., ¶12. The food truck commissary has already built a housing for the custom ice machine as part of its requirements with the County Department of Public Health. Smith Decl., ¶14. Once the ice machine is installed, the concrete dust migrating onto the property will contaminate the ice. Smith Decl., ¶15.
Despite providing assurances that they would address the matter, Defendants have failed to do so. Smith Decl., ¶¶ 21-24.
Kareem Cart Commissary & Manufacturing Co. (“Kareem”) is a manufacturer and lessor of food trucks. Sitita Decl., ¶¶ 1, 5. On a near daily basis, all the vehicles at the commissary are covered in a fine concrete dust from the concrete grinding. Sitita Decl., ¶8. While the concrete company is operating, concrete particulate routinely come onto Plaintiffs’ properties. Sitita Decl., ¶¶ 9-10. If the commissary does not expend significant effort to clean up the concrete dust, the vehicles and carts could become unusable. Sitita Decl., ¶12.
Defendants have been routinely double and triple parking, often blocking any access through the street. Eilenberg Decl., ¶¶ 32-33; Smith Decl., ¶35; Sitita Decl., ¶¶ 19-20, 34.
2. Defendants’ Evidence
Miranda is a permitted waste hauler in the City. Marco Decl., ¶2. Miranda does not operate the concrete recycling plant at the site. Marco Decl., ¶2, Exs. A, B. Miranda rents equipment to G&G, which is an approved inert debris recycling center. Id; Stephanie Decl., ¶7, Ex. B. Miranda transports source-separated, Type A inert debris to be recycled at G&G’s facility. Stephanie Decl., ¶8, Ex. C. Miranda transports source-separated, Type A inert debris such as concrete and asphalt to be recycled at G&G’s facility. Marco Decl., ¶4, Ex. C.
G&G does not collect, remove, or transport solid waste, including source separated material, to be recycled at its facility. G&G operates as an inert debris recycling center and only receives Type A inert debris, such as concrete and asphalt, that is source-separated at the point of generation. Stephanie Decl., ¶¶ 2-3. G&G has been approved as an inert debris recycling center. Stephanie Decl., ¶6, Ex. A.
Defendants exchanged emails with representatives of the City and the County regarding the concrete recycling facility and the fact that such use is allowed under M2 zoning and LAMC section 12.18.A. Marco Decl., ¶29, Exs. P-Q. Whether a permit is required is determined by the Local Enforcement Agency (“LEA”) after the site is running and the LEA inspects it. Id.
The site is completely enclosed by a permanent ten-foot tall fence. Marco Decl., ¶5. The fence at the site is solid and does not allow passersby to clearly view the activity. Id. Much of the site is surrounded by buildings on adjacent properties, which are taller than the fence. Marco Decl., ¶6. A 30-foot tall privacy screen has been erected in a U-shape around the area on the site where the material is stored. Marco Decl., ¶7. The material stored at the site does not exceed the height of 30-foot tall privacy screen. Marco Decl., ¶8, Ex. D.
To provide a more solid fence, corrugated steel fence panels are being installed around the Site. The corrugated steel fence panels will be 30 feet tall. Marco Decl., ¶9, Ex. E. Installation of the corrugated steel fence is anticipated to be completed by January 28, 2021. Id.
To prevent the generation of excessive dust, the inert debris is sprayed with water on the crusher plant transfer belt. Marco Decl., ¶10, Ex. F. In addition to the water hose spraying the inert debris on the crusher plant transfer belt, dust suppression equipment has been installed throughout the site. Marco Decl., ¶11.
Under Rule 403 of the rules of the South Coast Air Quality Management District (“SCAQMD”), particulate matter (“PM10”) levels measured in micrograms per cubic meter (“µg/m3”) may not exceed 50 µg/m3. Marco Decl., ¶13. Between December 29, 2020 and January 9, 2021, PM10 levels were measured using a TSI DustTrak Environmental Monitor—an approved high-volume particulate matter sampler per the South Coast Air Quality Management District—at various locations on and around the Site. Marco Decl., ¶14. The average PM10 level measured during this period was 21 µg/m3, lower than the standard set by Rule 403. Marco Decl., ¶¶ 15-16, Ex. H. According to historical data of the SCAQMD, the average PM10 level measured between December 29, 2020 and January 9, 2021 in Central Los Angeles was 33.96 µg/m3. Marco Decl., ¶17, Ex. I.
Construction is ongoing directly across the street from the site at 6535 (food commissary) and 6517 Stanford Avenue. The construction creates noise and dust in the neighborhood. Marco Decl., ¶12, Ex. G. At 6535 Stanford Avenue, the food commissary has been constructing, assembling, and/or modifying vehicles such as potential food trucks. Marco Decl., ¶19. Workers at the location have been: (1) using torches and saws to cut metal and generate noise, metal particles, and dust; (2) using welding torches to weld metal and create fumes; (3) using mini excavators to break asphalt/concrete, dig trenches, auger holes, and set steel, which created noise and dust; and (4) painting vehicles and accessories to vehicles and or accessory commissary equipment, which created fumes. Id.
On December 9, 2020, sound deadening measures were installed around the crusher plant to further reduce the noise levels resulting from the inert debris recycling center at the Site. Marco Decl., ¶20, Ex. J. Defendants measured the sound level at the site and at several neighboring businesses using an iPhone application compliant with NIOSH and OSHA standards called Decibel X. Marco Decl., ¶¶ 21-25, Exs. K-O; Borja Decl. Exs. 1-37. Based on these measurements, the average sound level at the site is 57.61 decibels, which is lower than the average sound level on Stanford Avenue between E. Gage Avenue and E. Florence Avenue, which is 69.001 decibels. Marco Decl., ¶¶ 25-28.
The property at 6510 Stanford Avenue has a 20-foot setback from the street curb on Stanford Avenue. Marco Decl., ¶30, Ex. R. In the last month, Miranda parked its vehicles on the 20-foot setback at 6510 Stanford Avenue. Id. To the extent that it appears that trucks are double-parked, the trucks are parked on the property of 6510 Stanford Avenue. Id.
On September 4, 2020, Martin Smith (“Smith”), who is associated with Plaintiff in this matter, called Defendants to discuss his concerns regarding Defendants’ operation— namely dirt being tracked on to the street by trucks leaving the Site. Marco Decl., ¶31, Ex. S. Smith did not raise any concerns with the fence and privacy screen enclosing Defendants’ operation or the generation of concrete dust by Defendants’ operation. Id. In response to Smith’s call, Defendants installed shaker plates and purchased a street sweeper to prevent vehicles from tracking dirt from the Site on to Stanford Avenue. Marco Decl., ¶32, Ex. T.
If Miranda were enjoined from operating at the site, it would be harmed because it would lose $180,000.00 per month on average in revenue, and it would still incur $186,350.62 in expenses per month for a combined loss of $366,350.62 per month. Marco Decl., ¶33, Ex. U. Miranda employs 31 employees at that site who would be out of work for the time of the injunction. Id.
If G&G were enjoined from operating at the site, it would be harmed because it would lose $142,136.00 per month on average in revenue, and it would still incur $87,480.00 in expenses per month for a combined loss of $229,616.00 per month. Stephanie Decl., ¶9, Ex. D. G&G employs four employees who would be out of work for the time of the injunction. Id.
3. Reply Evidence
As of January 21, 2021, portions of the fence still have holes, the concrete pile still is higher than the fence line, and entire sides of the Defendants’ Properties have no fencing whatsoever. Eilenberg Reply Decl., ¶5, Ex. 2.
Association had soil testing performed on samples from properties neighboring Defendants’ Properties and the results showed elevated levels of arsenic, lead, and silicon. Eilenberg Reply Decl., ¶6, Ex. 5.
Association investigated ZIMAS regarding fence permits and found open code cases against Defendants at their property. Eilenberg Reply Decl., ¶7, Ex. 4.
Plaintiff Association applies for a preliminary injunction enjoining Defendants from operating the concrete recycling business at the site until they provide evidence that they are operating the business in compliance with applicable LAMC provisions. Defendants Miranda and G&G oppose.
1. Procedural Issue
As a preliminary matter, Association failed to comply with the court’s directions as to service of process. The court directed Association to serve Defendants with the Summons, Complaint, moving papers, and the OSC and to file the proofs of service by December 31, 2020. There is no proof of service on file showing service of the OSC on any Defendant. As Defendants acknowledge receiving the OSC (Opp. at 4), the court will not deny the application on this ground. Nonetheless, Association’s counsel is admonished to comply with the court’s instructions regarding service in the future.
a. Probability of Success
Association argues that it has demonstrated a probability of success on its claims for trespass and/or nuisance based on Defendants conduct in causing concrete dust to migrate onto Plaintiffs’ Properties, failing to maintain fencing in compliance with LAMC section 12.18(B)(3), failing to maintain sound levels in compliance with LAMC section 111.03, blocking the street by double and triple parking, and failing to obtain the necessary permits required to operate a concrete recycling business.
Trespass is an unlawful interference with possession of property. The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. Ralphs Grocery Store v. Victory Consultants Inc., (2017) 17 Cal.App.5th 245, 261-62.
A public nuisance is one which affects the entire community or neighborhood or any considerable number of people, even if the extent of the annoyance or damage inflicted is unequal among individuals. Civil Code §3480. A public nuisance may be abated by any public body or officer authorized thereto by law. Civil Code §3494. To be enjoinable, the interference with collective social interests must be both substantial and unreasonable. People ex rel. Gallo v. Acuna, (1997) 14 Cal.4th 1090, 1105. An interference is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted. County of Santa Clara v. Atlantic Richfield Co., (2006) 137 Cal.App.4th 292, 305.
Causation is an essential element of a public nuisance claim. Citizens for Odor Nuisance Abatement v. City of San Diego, (2017) 8 Cal.App.5th 350, 359. A plaintiff must establish a “connecting element” or a “causative link” between the defendant’s conduct and the threatened harm. Id. Public nuisance liability does not hinge on whether the defendant owns or controls the property or whether the defendant was in the position to abate the nuisance. Id. Rather, the critical question is whether the defendant created or assisted in the creation of the nuisance. Id.
Every nuisance not included in the definition of a public nuisance is private. Civil Code §3481. For a private nuisance, plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public. Kroll-Irvine Center Property Owners Assn. v. County of Orange, (1994) 24 Cal.App.4th 1036, 1041. A private person may sue to enjoin a public nuisance which has caused him special damage not incurred by the general public. Civil Code §3493; Mangini v. Aerojet General, (1991) 230 Cal.App.3d 1125, 1137.
(i) Proper Permits
Association asserts that Defendants are operating unlawfully because they are required to obtain a permit to operate as a construction and demolition (“C&D”) waste processor but Defendants do not have this permit. App. at 9. Defendants also do not have a waste hauler permit which is required to move materials to and from the site. Id. G&G is listed as a concrete recycler by the County, but it only has a permit for the equipment and does not have the permit required to operate within the City’s limits. Id. All of this is illegal and a nuisance per se. App. at 11.
Association wrongly assumes that a lack of permits automatically makes a business or property into a nuisance. Where a property owner or business lacks a required permit, the issuing agency may enforce its ordinance through an administrative or court process. Another property owner may not, however, sue the offending owner or business for failing to have a permit. Only the public agency can do that. A business or property’s lack of a necessary permit is relevant in another property owner’s nuisance lawsuit only insofar as it reflects on the existence of a nuisance. Defendants’ lack of permits would be relevant to the existence of a nuisance, but it would not show that Defendants are causing damage to Association in the enjoyment of their properties.
In any event, G&G is approved as an inert debris recycling center by the County. Stephanie Decl., ¶6, Ex. A; Eilenberg Decl., ¶31, Ex. 12. G&G is not required to obtain a C&D permit, which is required for the operation of a construction and demolition and inert debris transfer/processing operation or facility, inert processing, or wood debris chipping and grinding facility. LAMC §191.03. As Defendants note, G&G does not operate in any of these functions as defined by 14 CCR section 17381 and it is not required to obtain a C&D permit. Opp. at 6.
G&G is also not required to obtain a waste hauler permit because it does not transport the debris to be recycled at the site; the debris is transported by Miranda, which does have a waste hauler permit. Marco Decl., ¶¶ 2, 4, Exs. A, C; Stephanie Decl., ¶8.
Association has not shown a probability of success on its claims that Defendants lack the required permits to operate the concrete recycling business at the site.
Association argues that Defendants are not maintaining proper fencing around the site as required by LAMC section 12.18(B)(3) and this failure constitutes a nuisance per se. App. at 8; Supp. at 3-4; Reply at 3-5.
“The concept of a nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of police power, expressly declares a particular object or substance, activity or circumstance, to be a nuisance. . . [W]here the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se.” Jones. v. Union Pacific Railroad, (2000) 79 Cal.App.4th 1053, 1066; Paul v. Wadler, (1962) 209 Cal.App.2d 615, 625. Further, “when a legislative body has authorized the injunctive remedy for the violation of a statute, it has determined as a matter of law that irreparable injury attends the violation of the statute.” Id.
A building materials salvage yard must be completely enclosed within an area enclosed on all sides with a solid wall or solid fence not less than eight feet in height, when no materials or equipment is stored to a height greater than that of the enclosing wall or fence. LAMC §12.18(B)(3).
Association asserts that the existing fence is non-compliant with LAMC section 12.18(B)(3) because it is not solid, has holes cut throughout and gaps between panels, is lower than the stored materials, has missing panels, and only faces the streets and does not enclose the site on all sides. App. at 8, Ex. 7; Supp. at 3-4, Ex. C; Reply at 3-5, Ex. 2.
As Defendants note, LAMC section 12.18(B)(3) does not expressly declare the maintenance of a fence in violation of its requirements to be a nuisance. Opp. at 9. The fencing is not a nuisance per se. Association incorrectly asserts that People v. Wheeler, (1973) 30 Cal.App.3d 282, 286 holds that any unpermitted construction in violation of local ordinances is a nuisance per se. Reply at 5. The ordinances in that case expressly stated that any violation is a public nuisance. Id. at 288.
Association does not argue that the fencing creates a private or public nuisance, but the court will address the issue anyway. Defendants argue that the fence sufficiently complies with the purpose of LAMC section 12.18(B)(3), which is a privacy screen from public view. Opp. at 7. Defendants admit that the fence is not made of a solid material, and they contend that it is sufficiently screened to accomplish the ordinance objective when combined with the fact that other buildings surround the site and there is an additional 30-foot privacy screen around the area where the material is stored. Opp. at 7; Marco Decl., ¶¶ 5-8, Ex. D.
The court does not agree that LAMC section 12.18(B)(3)’s requirement of a solid wall or fence exists solely for privacy. There would be no need for the wall or fence to be solid if privacy were the only issue; any opaque material would suffice. Association shows that LADBS interprets this requirement to mean a wall/fence constructed of inherently solid materials with no opening. Eilenberg Supp. Decl., Ex. B. Defendants’ fabric with panels missing, holes cut in it, and non-existent on some sides of the property is non-compliant.
The parties also have a factual dispute whether the material is stored at a greater height than the fence, with the Association providing photographs showing the material is visible over the fence and Defendants providing its own photographs showing that it is not. App. Ex. 7; Supp. Ex. C; Marco Decl., Ex. D. If Association is correct, the fence is also non-compliant for this reason.
The wall’s non-compliance with LAMC section 12.18(B)(3) is not controlling for the nuisance issue because Association has not shown damages from the violation. Specifically, Association has not shown that the migration of concrete dust (see infra) is the result of a non-compliant wall. Importantly, Defendants are taking steps to bring the fence into compliance with LAMC section 12.18(B)(3) by installing 30-foot high corrugated steel fence panels around the site which should be in place by January 28, 2021. Marco Decl., ¶9, Ex. E.
Association acknowledges this fact in reply, but contends that the new fence is still non-compliant because the concrete pile is still higher than the fence, entire sides of the property remain unfenced, and the fence still has sections with holes cut through the cloth. Reply at 5. This evidence fails to address the damages issue.
Association has not shown a probability of success on its claim for nuisance per se based on Defendants non-compliance with LAMC section 12.18(B)(3), and also has failed to show a private or public nuisance.
(iii) Migration of Concrete Dust
Association contends that Defendants’ operation of its concrete recycling business at the site causes concrete dust to migrate to Plaintiffs’ Properties, constituting trespass and a nuisance. App. at 10; Supp. at 6-7; Reply at 6-7.
After the court’s rulings on Defendants’ objections, Association’s evidence of dust from the recycling business is weak. The food truck commissary, which is not yet open, will be hosting over 100 food trucks. Smith Decl., ¶12. The concrete dust migrating onto the property will contaminate the ice once the ice machine is installed. Smith Decl., ¶15. Kareem is a manufacturer and lessor of food trucks. Sitita Decl., ¶¶ 1, 5. On a near daily basis, all the vehicles at the commissary are covered in a fine concrete dust from the concrete grinding. Sitita Decl., ¶8. While the concrete company is operating, concrete particulate routinely come onto Plaintiffs’ properties. Sitita Decl., ¶¶ 9-10.
Defendants dispute that the purported concrete dust is coming from its operation, pointing out that Association’s evidence is conclusory and is not based on any objective measurements. Opp. at 9. Defendants note that measurements of the particulate matter levels between December 29, 2020 and January 9, 2021 establish that the site has a lower PM10 level that the limit set forth in Rule 403 of SCAQMD. Opp. at 9-10; Marco Decl., ¶16. The site levels are also lower than the average for the Central City for the same period. Opp. at 10; Marco Decl., ¶¶ 17-18. Moreover, Defendants have implemented methods to prevent the migration of concrete dust, including dampening material as it is transferred and installing additional dust suppression equipment throughout the site. Marco Decl., ¶¶ 10-11, Ex. F.
Defendants also note that Association fails to mention that construction is ongoing at 6535 (soon to open food truck commissary) and 6517 Stanford Avenue, directly across the street from Defendants. Marco Decl., ¶¶ 12, 19, Ex. G. Defendants assert that Association cannot demonstrate that they are responsible for the dust of which Association complains. Opp. at 13-14.
Based on the evidence provided, Association has not established that Defendants’ operation is the source of the concrete dust harming Association’s businesses, which is a necessary element for both trespass and nuisance. Association’s claim is based on conclusory assertions without expert testimony, and Defendants have sufficiently rebutted this assertion based on its air particulate measurements, methods of preventing dust migration, and the fact that construction is occurring elsewhere in the vicinity.
Association has not shown a probability of success on its claim for nuisance and trespass based on migration of concrete dust.
(iv) Noise Levels
Association asserts that Defendants’ operation consistently generates noise in excess of the 60-decibel limit imposed by LAMC section 111.03, thereby constituting a nuisance or nuisance per se. App. at 10.
Areas zoned MR-2 are presumed to have ambient noise levels of 60 decibels during the day and 55 decibels during the night. LAMC §111.03.
As Defendants argue, LAMC section 111.03 sets presumed noise levels and does not indicate that noise levels above that level are a violation of law. Opp. at 11. A plaintiff must show that the defendant exceeds the ambient noise level and that it is a nuisance causing harm. The fact that Defendants exceed the ambient noise level, if true, is not a nuisance per se because LAMC section 111.03 does not expressly declare it as such. Nor is it even a public or private nuisance without evidence that it has caused harm. Association fails to present any harm from excessive noise.
Moreover, Association’s evidence that Defendants generate excess noise is again conclusory. Defendants’ operations have also been regularly exceeding the noise regulations for the region. Eilenberg Decl., ¶24; Smith Decl., ¶¶ 29-30; Sitita Decl., ¶¶ 16-18. The general noise level on the street, excluding the concrete recycling, is approximately 40-50 decibels. Smith Decl., ¶33. Association has, on multiple occasions, recorded Defendants’ operations exceeding 60 decibels and approaching 100 decibels. Eilenberg Decl., ¶¶ 26-27, Exs. 9a, 9b; Smith Decl., ¶¶ 31. As Defendants note, Association fails to provide any foundational evidence regarding its measurements of decibel level near Defendants’ business. Opp. at 10.
In contrast, Defendants took measurements both at the site and at neighboring businesses, taking sound levels from 37 readings at ten locations and of two to three minutes’ duration per reading. See Borja Decl. ¶¶ 2–10; Marco Decl., ¶¶ 25-26, Ex. O. The average sound level measurement at the site was approximately 57.61 decibels, compared to averages of approximately 69 decibels for the neighboring businesses. Id. As Defendants persuasively argue, Association has not demonstrated that the site generates noise greater than the surrounding neighborhood. Opp. at 11.
Finally, Defendants have continued to implement methods to reduce the levels of noise generated by installing sound deadening measures around the equipment on site. Marco Decl., ¶20. The installation occurred on December 9, 2020 and Association’s measurements prior to that date would not reflect the mitigation measures or current noise levels.
Association has not shown a probability of success on its claim for nuisance based on Defendants’ generation of excessive noise.
(v) Parking and Blocking the Street
Association alleges that Defendants regularly block portions of Stanford Avenue or the entire street when parking or conducting maintenance on their vehicles. App. at 10. Association believes that the City’s Parking Enforcement has instructed Defendants on multiple occasions to move their vehicles. App. at 10. By blocking access through the street, Defendants are creating a nuisance and trespass. App. at 11.
While blocking the street can be a trespass or nuisance, Association does not provide sufficient evidence to support its claim. Its evidence consists only of the conclusion that Defendants have been routinely double and triple parking, often blocking any access through the street. Eilenberg Decl., ¶¶ 32-33; Smith Decl., ¶35; Sitita Decl., ¶¶ 19-20, 34.
Defendants note that the site has a 20-foot setback from the street curb on Stanford Avenue, and they assert that the trucks are parked on its property, 6510 Stanford Avenue, to the extent that it appears that trucks are double-parked. Marco Decl., ¶30, Ex. R. Opp. at 12.
Parking on Defendant’s own property is not necessarily an excuse. Many zones do not permit parking on the setback of a property, residential or commercial. The parties do not address the MR-2 zoning requirements for parking and the court cannot say whether Defendants’ parking is illegal.
Association has not shown a probability of success on its claim for trespass or nuisance based on Defendants’ trucks blocking the street.
2. Balance of Hardships
In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that 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. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.
Defendants allege only monetary harm if an injunction is issued. Marco Decl., ¶33, Ex. U. Stephanie Decl., ¶9, Ex. D. Association only alleges unspecified monetary and resource harm as a result of the migration of concrete dust and does not allege any harm from the other purported violations.
The balance of hardships favors the denial of an injunction.
3. Unclean Hands
Defendants argue that the doctrine of unclean hands should bar Association’s application. Opp. at 13-14.
A plaintiff who has been guilty of improper conduct connected with the controversy at hand will be denied by equity any recognition or relief with regard to the controversy. Moriarty v. Carlson, (1960) 184 Cal.App.2d 51. While equity does not demand that a plaintiff lead a blameless life as to other matters, it does require that he have acted fairly and without fraud or deceit as to the controversy in issue. The defense of unclean hands applies to both equitable and legal claims. Pond v. Insurance Co. of North America, 151 Cal.App.3d at 290.
Defendants assert that Association is guilty of unclean hands applies because Association, seeks to hold Defendants solely responsible for migration of concrete dust when Association members also create dust from construction. Opp. at 13-14.
Defendants do not show that Association acted fraudulently or deceitfully in pursuing its application, or even that dust generated by the food commissary construction is the cause of any dust problem in the area. Association is not guilty of unclean hands.
The application for a preliminary injunction is denied.
 The court has not read or considered the footnotes in Defendants’ opposition brief because they do not meet the 12-point type requirement of CRC 2.104.
 Association amended the Complaint on December 8, 2020 to add G&G as a Defendant.
 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.
 However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).
 Association requests judicial notice of: (1) recorded deeds of trust (Ex. 1); (2) a Declaration of Marco Miranda filed in this case (Ex. 2); (3) California Secretary of State Statements of Information for Miranda and G&G (Ex. 3); (4) Printouts from the Los Angeles Zimas System (Ex. 5); (5) LAMC section 12.18 (Ex. 6); (6) LAMC sections 111.00-111.05 (Ex. 8); (7) the City of Los Angeles website on Construction and Demolition Recycling (Ex. 10); (8) the City of Los Angeles website on waste hauler permits (Ex. 11); and (9) a Construction and Demolition Debris Recycling Facilities List for Los Angeles County (Ex. 12).
There is no need to request judicial notice of documents in the instant case file (Ex. 2). A judge can always review the court file for the case at hand. The requests are granted as to Exhibits 1, 3, 6, and 8. Evid. Code §452(b), (c). However, Exhibit 6 is incomplete. The requests are denied as to Exhibits 5, 10, 11-12, which are not official acts. Evid. Code §452(c).
In support of its Supplemental Brief, Association requests judicial notice of the City of Los Angeles Department of Building and Safety (“LADBS”) Zoning Code Manual and Commentary. The request is granted. Evid. Code §452(c).
The court has incorporated Department 1’s rulings to the evidence presented at the ex parte hearing and has ruled on Defendants’ objections to Association’s supplemental evidence. The clerk is directed to scan and file the court’s hard copy rulings.
In violation of CCP section 2015.5, the Smith declaration fails to have a signature page and the Sitita declaration fails to state the location at which it was executed. As Defendants have not objected, the court has considered both declarations. The court also has reviewed the video that is Association Exhibit 9b. See Eilenberg Decl., ¶26.
 Defendants request judicial notice of: (1) a proof of service of summons by substituted service on Miranda dated December 2, 2020 (Ex. A); (2) a notice and ex parte application for a TRO and OSC re: preliminary injunction dated November 30, 2020 (Ex. B); (3) Miranda’s opposition to the ex parte application (Ex. C); (4) the Department 25 minute order for the ex parte application (Ex. D); (5) a proof of service of summons by substituted service on G&G dated December 9, 2020 (Ex. E); (6) a notice and ex parte application for a TRO and OSC dated December 21, 2020 (Ex. F); (7) Miranda and G&G’s opposition to the ex parte application (Ex. G); (8) rulings on objections to evidence by the court hearing the ex parte application (Ex. H); (9) the order denying the TRO dated December 28, 2020 (Ex. I); and (10) a demurrer to the Complaint, dated January 11, 2021 (Ex. J). There is no need to request judicial notice of documents in the instant case file. The judge can always review the file for the case at hand.
 In reply, Association requests judicial notice of the following exhibits attached to its reply brief: (1) Zimas system records For Defendants’ properties (Ex 3); (2) All active code investigation statuses from the Zimas System (Ex. 4); (3) Cement Dust Exposure and Perturbations in Some Elements and Lung and Liver Functions of Cement Factory Workers, Journal of Toxicology, Volume 2016, Article ID 6104719 (Ex. 6); (4) Construction Workers: It’s Not Just Dust!...Prevent Silicosis, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (Ex. 7); (5) Los Angeles Times December 19, 2020 article on California suit to recover costs for Exide lead cleanup (Ex. 8); and (6) California DTSC v. NL Industries et al., (CACD Case # 2:20-cv-11293) Complaint filed 12/14/2020 (Ex. 9).
Exhibits 3-4, 6-8 are not official acts. While a newspaper article (Ex. 8) and a civil complaint can be judicially notice for their existence, they are irrelevant without consideration of the truth of their contents, which the court cannot do. Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551 (judicial notice of findings in court documents may not be judicially noticed). The requests are denied.
 Association does not specify whether its claim is for public or private nuisance.
 Neither party provides a copy of this ordinance.
 Defendants also note that Association does not cure its evidence on this subject in its Supplemental Brief, which waives the issue. Opp. at 5.
 Association argues that Defendants did not obtain a permit for the existing fence but fails to cite to any authority establishing that one is required. App. at 8. In reply, Association notes that there is an open code violation against Defendants for their existing fence. Reply at 5, Ex. 4. This evidence should have been included in Association’s moving papers and the court has not considered it. See Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. Association further notes that there is an open code violation for the new fence. Reply at 5, Ex. 4. This code enforcement for a “building or wall that could fall down”, the status of which is “pending scheduling” is too vague to be considered.
 Part, but not the pertinent part, of LAMC section 12.18 is attached to the Association’s application as Exhibit 6.
 Association’s video would have been dispositive if admissible, because it clearly shows the material at a greater height than the fence.
 For the first time in reply, Association provides soil test results for dust samples retrieved from properties neighboring the site, which show elevated levels of arsenic, lead, and silicon. Reply Ex. 5. Association’s exhibit is inadmissible, Association fails to provide any expert testimony to support its interpretation, and the issue and supporting evidence of toxic soil should have been presented with Association’s moving papers and has not been considered. See Regency Outdoor Advertising v. Carolina Lances, Inc., supra, 31 Cal.App.4th at 1333.
 This provision is attached to Association’s application as Exhibit 8.
 Once again, in Association attempts to present new matter in reply -- harm to the health of employees and customers from toxins in the dust – and the evidence has not been considered. Regency Outdoor Advertising v. Carolina Lances, Inc., supra, 31 Cal.App.4th at 1333.
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