Chase v. Wizmann ( 2021 )

Filed 11/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JOSEPH CHASE et al., B307017
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC647861)
v.
BENJAMIN WIZMANN et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Susan Bryant-Deason, Judge. Affirmed.
Law Office of Lee David Lubin, Lee D. Lubin; and Paul
Kujowsky for Defendants and Appellants.
Fischbach & Fischbach, Joseph S. Fischbach; and Sylvia E.
Chase for Plaintiffs and Respondents.
_______________________
In this acrimonious noise dispute between neighbors,
defendants appeal the trial court’s grant of a preliminary
injunction requiring them to relocate certain air conditioning and
pool equipment to the opposite side of their property. The trial
court concluded that plaintiffs were likely to prevail on a private
nuisance claim at trial and that the balance of harms favored
moving the noisy equipment. On appeal, defendants contend
that only equipment noise that violates section 112.02,
subdivision (a) of the Los Angeles Municipal Code (LAMC or
Municipal Code) can be the basis for a nuisance action, there is
no substantial evidence supporting the trial court’s conclusion
that the interference was substantial or caused unreasonable
damage, and the trial court abused its discretion in finding that
plaintiffs were likely to prevail and the balance of harms favored
plaintiffs. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
I. The Parties and Properties
Plaintiff and respondent Joseph Chase and defendant and
appellant Benjamin Wizmann have owned adjacent residential
properties in the Hollywood Hills neighborhood of Mount
Olympus in Los Angeles for approximately 25 years. 1 Beginning
in 2013, Wizmann undertook a significant renovation of his
property. Among other things, in 2015 Wizmann installed new
pool and air conditioning equipment between the exterior wall of
his house and a retaining wall close to the property line of the
two lots, directly underneath Chase’s bedroom window. The hard
surfaces of the retaining wall and Wizmann’s house reflect and
amplify the noise of the equipment when it is operating.
1For ease of discussion we refer to Chase and Wizmann
singularly, in accordance with both parties’ briefs.
2
Chase is a senior citizen with cardiovascular disease,
emphysema, diabetes, and other health conditions which require
as much rest as possible during the day and a full night’s sleep.
Chase’s property has been his primary residence since 1987.
Since 2015, Wizmann has operated his property as a short-term
rental. Wizmann’s tenants tend to keep all of the pool and air
conditioning equipment operational at the same time. When the
Wizmanns lived at the property they would turn off the
equipment when it became too noisy, but the neighbors’
relationship deteriorated and Wizmann became unresponsive to
Chase’s noise concerns after moving out. Chase complained to
Wizmann about the noise several times, and on several occasions
Chase called the police, who would determine that the noise was
excessive and instruct the tenants to turn off the equipment.
In 2016, after complaints from Chase of noise and
unpermitted construction activity, the City of Los Angeles
ordered Wizmann to move the equipment so that it would be at
least five feet from the retaining wall.
In June 2018, the City of Los Angeles cited Wizmann’s
property as a public nuisance due to repeated large, unruly
parties by renters, illegal parking, burglary at the property,
refuse in the street, and neighbor complaints of public urination,
public intoxication, fistfights outside the property, and other
illegal activity. The city found Wizmann in violation of multiple
sections of the Municipal Code, including LAMC sections 41.57
(Loud and Raucous Noise Prohibited), 116.01 (Loud,
Unnecessary, and Unusual Noise), and 112.01, subdivision (b)
(amplified music in residential zone audible beyond 150 feet).
3
II. The Temporary Restraining Order
Chase and his wife, Sylvia Chase, filed the underlying
multi-claim complaint in this action against Wizmann and his
wife, Michelle Wizmann, on January 23, 2017, including a cause
of action for nuisance. 2
In 2020, Wizmann rented the property to tenants for a six-
month period, and when summer arrived the tenants began using
the pool equipment and air conditioning around the clock. On
June 6, 2020, the noise reached a level Chase found
“exceptionally unbearable for a prolonged period of time and it
felt like sitting under a jet engine.” Sylvia Chase likewise
declared it was “unbearable and lasted for hours,” “like someone
was gunning a jet engine under our window.” Chase hired an
acoustical expert who measured the equipment noise at 65
decibels on the afternoon of June 9, 2020. Chase also obtained a
personal sound level meter to monitor noise levels and measured
as high as 73.5 decibels during the day.
On June 17, 2020, Chase filed an ex parte application for a
temporary restraining order and order to show cause for a
preliminary injunction enjoining Wizmann from continuing to
maintain a noise nuisance. Chase contended that excessive
equipment noise from the Wizmann property interfered with his
everyday life and use and enjoyment of his property, depriving
The Chases sued for trespass, trespass to timber,
2
nuisance, removal of lateral and subjacent support, negligence,
and fraudulent transfer. (Chase v. Wizmann (June 25, 2019,
B290131) [nonpub. opn.] [2019 Cal.App.Unpub. LEXIS 4274*;
2019 WL 2590166] rehg. den. July 16, 2019.) The Chases
subsequently filed an amended complaint adding the Wizmanns’
adult daughter and Mount Management, Inc. as defendants.
(Ibid.)
4
him from rest, sleep, opening windows, and using the balcony or
the outdoors of the property while sheltering at home during the
COVID-19 pandemic. Chase declared that the effect of the noise
beneath his bedroom created “the impression that the house was
on an airport runway.” He also contended that the noise violated
LAMC section 112.02, subdivision (a), which the parties do not
dispute prohibits air conditioning and pool equipment noise
above 55 decibels during the day and 45 decibels at night in their
neighborhood. (LAMC, §§ 112.02, subd. (a), 111.03.)
Chase requested that the trial court issue a temporary
restraining order enjoining Wizmann from operating the
equipment above those decibel levels and issue an order to show
cause for issuance of a preliminary injunction requiring Wizmann
to relocate all mechanical equipment to the south side of the
property where there are no neighbors.
On June 22, 2020, the trial court issued a temporary
restraining order enjoining Wizmann from operating all
mechanical equipment in excess of 55 decibels during the day
from 7:00 a.m. to 10:00 p.m. and 45 decibels at night from 10:00
p.m. to 7:00 a.m., pending hearing on the motion for preliminary
injunction. The court noted that “[d]efendants provide[d] no
evidence disputing that the tenants run the machines
constantly,” and ordered Wizmann to appear and show cause why
the court should not order that the equipment be moved to the
other side of the property “if they cannot bring the decibel level of
the machinery into compliance with the law.” The trial court also
ordered the parties to meet with designated experts for each side
at the property with the parties’ counsel to take measurements of
decibel levels together.
5
The experts’ meeting and noise measurements occurred on
June 25, 2020, and both experts’ test results at the property line
showed decibel levels that exceeded the legal limits. Chase
subsequently moved ex parte to hold Wizmann in contempt for
violating the temporary restraining order. In opposition,
Wizmann claimed he was making good faith efforts to reduce the
noise and that certain combinations of equipment could be run
without violating the decibel limits. Wizmann requested two and
a half months until expiration of his tenants’ lease to move the
equipment and to reduce the noise level, so that his tenants could
have uninterrupted air conditioning during the summer months.
Wizmann declared that relocation of air conditioning condensers
was a very large job which would require time, breaking the
walls, and a city permit.
On June 29, 2020, the court found that the temporary
restraining order was intentionally violated by Wizmann and his
tenants and scheduled a hearing on the order to show cause for
contempt (which was continued and is not a subject of this
appeal).
By July 10, 2020, Wizmann had relocated his two air
conditioning condensers to a ledge on the west side of the house
and made other improvements to mitigate the equipment noise.
On July 13, 2020, after the air conditioning units were
moved, new sound measurements were performed by both
experts. Measurements were taken during the day at the
property line in Chase’s backyard, at the property line in the side
yard where the earlier measurements had been performed, and
near Chase’s patio door.
With all the pool equipment turned off and one air
conditioner condenser running, Chase’s expert measured
6
45 decibels in the backyard and 46 decibels with two condensers
running; Wizmann’s expert measured 45 decibels in the backyard
for a single condenser running and 48 decibels for both. With two
condensers and the filtration and spa pumps running, Chase’s
expert measured 56 to 57 decibels in the side yard and 50 to 51
decibels in the backyard; Wizmann’s expert measured 49 decibels
in the side yard and 52 decibels in the backyard. With two
condensers, the filtration and spa pumps running, and the
waterfall running, Chase’s expert measured 57 decibels in the
backyard, 57 to 60 decibels in the side yard, and 50 decibels at
the patio door; Wizmann’s expert measured 57 decibels in the
backyard and 54 decibels in the side yard. With two condensers,
the filtration and spa pumps running, the waterfall running, and
the spa heater running, Chase’s expert measured 57 decibels in
the backyard and in the side yard, and 51 decibels at the patio
door; Wizmann’s expert measured 57 decibels in the backyard
and in the side yard.
Both sides agreed that many of these decibel levels still
exceeded the limits of 45 decibels at night and 55 decibels during
the day allowed by LAMC section 112.02, subdivision (a).
On July 16, 2020, Chase was awakened before 6:00 a.m. by
equipment noise.
III. The Preliminary Injunction
On July 20, 2020, the trial court granted the preliminary
injunction and ordered the equipment moved to the south side of
the property.
On the likelihood of prevailing on the merits, the trial court
found that “[p]laintiffs’ evidence shows they are likely to win at
trial on the claim that the machines’ noise is ‘injurious to health,’
‘indecent or offensive to the senses,’ or ‘interfere[s] with the
7
comfortable enjoyment of life or property’ ” under Civil Code
section 3479.
The trial court noted that according to Wizmann’s own
acoustical consultant, “the only machines that could run at night
without violating the Municipal Code’s noise ordinance were the
air conditioning condensers.” Although “[s]ome combination of
machines could be operated during the day” without violating
LAMC section 112.02, subdivision (a), this was true only if the
motor speed settings of the variable speed pool pumps were
operating at the same or lower speed as when measured.
In any event, the trial court found that compliance with the
LAMC does not constitute a defense to the nuisance claims. The
court explained: “Though Municipal Code section 112.02(a)
prohibits operation of machines above a certain decibel level, it
does not expressly authorize operation of machines below that
level. Noise can constitute a nuisance under Civil Code Section
3479 even if it does not violate Municipal Code section 112.02(a).”
Noting that Chase and his wife described the noise directly
outside their bedroom window as “unbearable,” that Chase was
unable to rest, sleep, or open the window, and that even after
mitigation efforts Chase was awakened before 6:00 a.m. by
equipment noise, the court concluded Chase was likely to win at
trial.
Considering the balance of harm, the trial court found that
the evidence “strongly favors granting the injunction. The only
harm defendants have shown would occur from ordering to move
the machines would be financial. . . . Any harm to them could be
remedied after trial. Denying the injunction, meanwhile, would
result in plaintiffs continuing to regularly suffer from offensive
8
noise that interferes with the enjoyment of their home and
wellbeing.”
Accordingly, the trial court granted the preliminary
injunction and ordered Wizmann to “move all air conditioning
and pool equipment and machinery and waterfall pumps” to the
south side of the property.
This appeal followed, and the injunction was stayed.
DISCUSSION
I. Standard of Review
“ ‘Pursuant to long-standing Supreme Court case law, “trial
courts should evaluate two interrelated factors when deciding
whether or not to issue a preliminary injunction. The first is the
likelihood that the plaintiff will prevail on the merits at trial.
The second is the interim harm that the plaintiff is likely to
sustain if the injunction were denied as compared to the harm
that the defendant is likely to suffer if the preliminary injunction
were issued.” [Citation.] We review a trial court’s application of
these factors for abuse of discretion.’ ” (Urgent Care Medical
Services v. City of Pasadena (2018) 21 Cal.App.5th 1086, 1092.)
The party challenging the injunction has the burden to make a
clear showing of an abuse of discretion, and “[a] trial court will be
found to have abused its discretion only when it has ‘ “exceeded
the bounds of reason or contravened the uncontradicted
evidence.” ’ ” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63,
69.)
Additionally, “questions underlying the preliminary
injunction are reviewed under the appropriate standard of
review. Thus, for example, issues of fact are subject to review
under the substantial evidence standard; issues of pure law are
9
subject to independent review.” (People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1136–1137.)
II. Nuisance Law
Under the Civil Code, a private nuisance includes
“[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.” (Civ. Code, § 3479.) “ ‘[E]xcessive and
inappropriate noise may under certain circumstances constitute
an interference with the present enjoyment of land amounting to
a nuisance.’ ” (Mendez v. Rancho Valencia Resort Partners, LLC
(2016) 3 Cal.App.5th 248, 264 (Mendez) [citing cases].)
To prevail on an action for private nuisance, a plaintiff
must first prove an interference with the plaintiff’s use and
enjoyment of his or her property. (San Diego Gas & Electric Co.
v. Superior Court (1996) 13 Cal.4th 893, 938 (San Diego).)
Second, “the invasion of the plaintiff’s interest in the use and
enjoyment of the land [must be] substantial, i.e., that it cause[s]
the plaintiff to suffer ‘substantial actual damage.’ ” (Ibid.) Third,
“ ‘[t]he interference with the protected interest must not only be
substantial, but it must also be unreasonable’ [citation], 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.’ ” (Ibid.; accord, Mendez, supra, 3 Cal.App.5th at pp. 262–
263.)
“[T]he elements of substantial damage and
unreasonableness necessary to making out a claim of private
nuisance are questions of fact that are determined by considering
all of the circumstances of the case” according to an objective
10
standard: Specifically, whether a person of “ ‘normal health and
sensibilities living in the same community’ ” would be
substantially damaged by the interference and whether an
impartial reasonable person would consider the interference
unreasonable. (Mendez, supra, 3 Cal.App.5th at pp. 263–264;
San Diego, supra, 13 Cal.4th at pp. 938–939.)
III. The LAMC Does Not Preclude Nuisance Actions
for Equipment Noise that Does Not Violate
Section 112.02, Subdivision (a).
Wizmann’s primary argument is that as a matter of law the
equipment noise was not subject to nuisance liability because
“virtually none” of the equipment noise rose beyond the decibel
levels specified in LAMC section 112.02, subdivision (a).
The LAMC states: “It shall be unlawful for any person,
within any zone of the city to operate any air conditioning,
refrigeration or heating equipment for any residence or other
structure or to operate any pumping, filtering or heating
equipment for any pool or reservoir in such manner as to create
any noise which would cause the noise level on the premises of
any other occupied property or if a condominium, apartment
house, duplex, or attached business, within any adjoining unit to
exceed the ambient noise level by more than five (5) decibels.”
(LAMC, § 112.02, subd. (a).) The parties agree that “presumed
ambient noise” levels of 40 decibels at night and 50 decibels
during the day apply to their neighborhood, thus pool and air
conditioning equipment noise above 55 decibels during the day
and 45 decibels at night is prohibited. (LAMC, §§ 112.02, subd.
(a), 111.03.)
Wizmann contends that under Civil Code section 3482,
which states that “[n]othing which is done or maintained under
11
the express authority of a statute can be deemed a nuisance,”
equipment noise that does not violate LAMC section 112.02,
subdivision (a), cannot be a nuisance. Although he concedes that
the LAMC does not expressly state that any equipment noise is
permissible so long as it does not violate section 112.02,
subdivision (a), Wizmann argues that the ordinance presents a
“binary choice” such that this conclusion is necessarily implicit.
We reject this contention. Our Supreme Court has
“consistently applied a narrow construction to [Civil Code] section
3482 and to the principle therein embodied.” (Greater
Westchester Homeowners Assn. v. City of Los Angeles (1979) 26
Cal.3d 86, 100 (Westchester).) “ ‘ “A statutory sanction cannot be
pleaded in justification of acts which by the general rules of law
constitute a nuisance, unless the acts complained of are
authorized by the express terms of the statute under which the
justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be
fairly stated that the legislature contemplated the doing of the
very act which occasions the injury.” ’ ” (Friends of H Street v.
City of Sacramento (1993) 20 Cal.App.4th 152, 160; Hassell v.
San Francisco (1938) 11 Cal.2d 168, 171.) “A requirement of
‘express’ authorization embodied in the statute itself insures that
an unequivocal legislative intent to sanction a nuisance will be
effectuated, while avoiding the uncertainty that would result
were every generally worded statute a source of undetermined
immunity from nuisance liability.” (Varjebedian v. Madera
(1977) 20 Cal.3d 285, 291.)
Thus, no “immunity from traditional nuisance liability” is
conferred by statutes or regulations unless they specifically
authorize the exact act complained of. (Westchester, supra, 26
12
Cal.3d at pp. 101–102 [in airport noise context, “statutes which
broadly authorize or regulate airports and aircraft flights do not
create a legislative sanction for their maintenance as a nuisance”
or “necessarily impl[y] legislative approval of aviation noise
which results in interference with neighboring land uses”].)
Moreover, “[e]ven though acts authorized by statute cannot
give rise to nuisance liability, ‘the manner in which those acts are
performed may constitute a nuisance.’ ” (Jones v. Union Pacific
Railroad Co. (2000) 79 Cal.App.4th 1053, 1067.) In Jones, the
Court of Appeal rejected the argument that Civil Code section
3482 precluded railway adjacent homeowners’ nuisance action for
frequent loud train noise throughout the day and night, including
train horns blowing in front of their home for no apparent reason
and train engines idling in front of their home for hours and days.
(Id. at p. 1057.) Although federal regulations authorized railway
operation and use of train safety horns above a certain decibel
level, a nuisance cause of action could arise from “allegedly
unnecessary activity, serving no legitimate purpose, and/or
activity allegedly committed for the sole purpose of harassing
plaintiffs.” (Id. at pp. 1065, 1067–1068.)
Here, the LAMC does not expressly immunize all
equipment noise below the decibel level proscribed in section
112.02, subdivision (a), nor does it preclude nuisance liability for
otherwise excessive or inappropriate equipment noise below that
level that unreasonably interferes with the use and enjoyment of
property. On the contrary, at the end of the Noise Regulation
chapter in which section 112.02, subdivision (a) is found, the
LAMC includes a “catchall” provision proscribing “any loud,
unnecessary, and unusual noise which disturbs the peace or quiet
of any neighborhood or which causes discomfort or annoyance to
13
any reasonable person of normal sensitiveness residing in the
area,” with consideration of a variety of factors,
“[n]otwithstanding any other provisions of this chapter.” (LAMC,
art. 6 (General Noise), § 116.01, italics added.) “The level of
noise” is only one among many possible factors, including
“proximity of the noise to residential sleeping facilities,” “level
and intensity of the background noise,” “duration of the noise,”
and “time of the day and night the noise occurs.” 3
3 In full, LAMC section 116.01 states:
“Notwithstanding any other provisions of this chapter and
in addition thereto, it shall be unlawful for any person to willfully
make or continue, or cause to be made or continued, any loud,
unnecessary, and unusual 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. The standard which may be considered in determining
whether a violation of the provisions of this section exists may
include, but not be limited to, the following:
“(a) The level of noise;
“(b) Whether the nature of the noise is usual or unusual;
“(c) Whether the origin of the noise is natural or unnatural;
“(d) The level and intensity of the background noise, if any;
“(e) The proximity of the noise to residential sleeping
facilities;
“(f) The nature and zoning of the area within which the
noise emanates;
“(g) The density of the inhabitation of the area within
which the noise emanates;
“(h) The time of the day and night the noise occurs;
“(i) The duration of the noise;
“(j) Whether the noise is recurrent, intermittent, or
constant; and
“(k) Whether the noise is produced by a commercial or
noncommercial activity.”
14
Inclusion of catchall language in a statute or regulation
indicates that a legislative body does not intend its enumerated
provisions to be deemed exclusive. (Moore v. California State Bd.
of Accountancy (1992) 2 Cal.4th 999, 1019; see McNair v. City
and County of San Francisco (2016) 5 Cal.App.5th 1154, 1165
[“ ‘catchall provision’ ” in statutory scheme “ ‘legitimizes a myriad
of situations the Legislature may not have cared to spell out’ ”].)
In so doing, the LAMC contemplates the possibility of
unreasonable noise violations on a case-by-case basis,
irrespective of any particular decibel level. (Mann v. Mack (1984)
155 Cal.App.3d 666, 674 [“A determination as to what constitutes
a ‘loud, unnecessary and unusual noise’ requires common sense,
not a decibel meter”].)
Wizmann contends that the conjunction “and” in “any loud,
unnecessary, and unusual noise” limits the scope of LAMC
section 116.01 solely to noise that is simultaneously loud and
unnecessary and unusual, thus it should not be read as a catchall
provision that applies to every other part of the Noise Regulation
chapter. We decline to interpret section 116.01 in so restrictive a
fashion. In the same clause pointed to by Wizmann, the word
“any” connotes broad applicability. (See Fierro v. State Bd. of
Control (1987) 191 Cal.App.3d 735, 741 [“The word ‘any’ has
consistently been interpreted as broad, general and all
embracing.”]; accord, California State Auto. Assoc. Inter-
Insurance Bureau v. Warwick (1976) 17 Cal.3d 190, 195.) An
expansive, not restrictive interpretation is also in line with the
broad public policy of the LAMC Noise Regulation, as declared at
the beginning of the chapter, “to prohibit unnecessary, excessive
and annoying noises from all sources.” (LAMC, § 111.00.)
15
Accordingly, we decline to find that LAMC section 112.02,
subdivision (a) necessarily implies any decibel-specific limitation
on private nuisance actions for equipment noise as a matter of
law, especially when read in context of the overall Noise
Regulation chapter. (See Jensen v. iShares Trust (2020) 44
Cal.App.5th 618, 633 [“ ‘ “the words of a statute must be read in
their context and with a view to their place in the overall
statutory scheme” ’ ”].) That equipment noise under a certain
decibel range may not be illegal under section 112.02, subdivision
(a), does not mean it may not otherwise constitute a nuisance, as
the trial court correctly concluded. As in cases addressed by
other jurisdictions, “[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.” (Capitol Props. Group, LLC v. 1247 Ctr. St., LLC
(2009) 283 Mich.App. 422, 429 [770 N.W.2d 105, 110–111];
accord, Kitsap County v. Kitsap Rifle & Revolver Club (2014) 184
Wash.App. 252, 280 [337 P.2d 328, 341] [“a nuisance can be found
even if there is no violation of noise ordinances”].)
IV. Substantial Evidence Supports Unreasonable
Interference and Substantial Damage to Chase,
and the Trial Court Did Not Abuse Its Discretion
in Concluding Chase Was Likely to Win at Trial.
Wizmann also contends that there is no substantial
evidence supporting unreasonable interference or substantial
damage to Chase because the only evidence of damage is from
Chase’s testimony. He argues that Chase’s and his wife’s
comparisons of the noise to a “jet engine” or “airport runway” are
16
inherently not credible, and indicate that Chase is not reasonable
and has a personal vendetta against Wizmann.
However, under California law, the testimony of a single
witness, even a party, may alone constitute substantial evidence.
(In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) And absent an
express credibility finding, we must infer the trial court resolved
questions of credibility in a manner that supports its findings and
order. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) “We
resolve all factual conflicts and questions of credibility in favor of
the prevailing party and indulge in all legitimate and reasonable
inferences to uphold the finding of the trial court if it is supported
by substantial evidence which is reasonable, credible and of solid
value.” (Ibid.) In so doing, we need not infer that the trial court
believed the equipment noise reached the actual decibel level of a
jet engine, merely that the trial court found the Chases’
description of unreasonable disturbance and damage from the
equipment noise credible, given all the evidence before the court,
including the experts’ actual decibel measurements.
Even after some mitigation efforts, it is undisputed that
many configurations of the equipment noise still violated LAMC
section 112.02, subdivision (a) during both the night and day.
According to Wizmann’s own expert, the air conditioning
condensers could not be operated at the same time as the pool
equipment at night without violating the noise ordinance, and
only certain combinations of equipment could be operated during
the day without violating the noise ordinance (and only if the
motor speed setting of the variable speed pumps was the same or
lower than when measured). And according to Chase, Wizmann’s
tenants tended to run all the pool and air conditioning at the
same time, especially during the summer months, a configuration
17
which would undisputedly violate LAMC section 112.02,
subdivision (a) at all times of day or night.
The record thus contains substantial evidence of near-
constant equipment noise invading Chase’s property at all hours,
mostly at decibel levels in violation of LAMC section 112.02,
subdivision (a). Reasonable persons of normal sensibilities would
find this to be an unreasonable amount and duration of noise
near their bedroom window and in their yard. And the damage
from the constant noise interference described by Chase was
substantial, reasonably affecting Chase’s everyday life and use
and comfortable enjoyment of the property by depriving him from
rest, sleep, opening windows, and freely using the balcony or
outdoors of the property. Viewing the facts in the light most
favorable to Chase, the evidence supports the trial court’s
conclusion that Chase was likely to prevail at trial. (See People v.
Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 301, quoting
City and County of San Francisco v. Evankovich (1977) 69
Cal.App.3d 41, 54 [“ ‘The substantial evidence rule applies to
preliminary injunctions, as well as the additional rule requiring
us, when weighing the question of a trial court’s exercise of
discretion in granting a preliminary injunction, to view the facts
most favorably to the court’s disposition’ ”].)
We also reject Wizmann’s argument that the length of time
from the installation of the equipment until Chase sought to
enjoin the noise in June 2020 suggests Chase’s noise concerns are
not credible. On the contrary, the record indicates that Chase
made ongoing and repeated attempts over several years to
address noise concerns at the property—via informal
communication with Wizmann and his tenants, formal
complaints to the City of Los Angeles and to the police, and via
18
the underlying lawsuit—and sought to enjoin the equipment
noise only after failing to reach a resolution directly with
Wizmann after the six-month tenants moved in and began
operating the equipment around the clock.
Thus, given the substantial evidence supporting
unreasonable interference and substantial damage due to the
equipment noise, the trial court did not abuse its discretion by
concluding that Chase was likely to prevail at trial.
V. The Trial Court Did Not Abuse Its Discretion By
Concluding that the Balance of Harms Favored
Chase.
In balancing the hardships, the trial court stated that the
only harm to Wizmann was financial, which could be remedied
after trial, whereas denying the injunction “would result in
plaintiffs continuing to regularly suffer from offensive noise that
interferes with their enjoyment of their home and wellbeing.”
Wizmann contends that the trial court abused its discretion in
granting the preliminary injunction because any noise violation
was “minor” and “controllable,” and there were less burdensome
alternatives than forcing him to relocate all the equipment, such
as ordering him to run only certain equipment at certain times.
As previously discussed, there is substantial evidence that
the equipment frequently operated all at the same time, at all
hours of the day and night, and the trial court did not abuse its
discretion in concluding the noise interference was substantial.
That some limited combinations of equipment theoretically could
operate at decibel levels in compliance with LAMC section
112.02, subdivision (a) does not render the actual interference
experienced by Chase “minor,” especially since violation of the
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ordinance is not a necessary prerequisite to Chase’s nuisance
claim in the first place.
More to the point, that the noise was to some extent
“controllable” does not guarantee that the noise would in fact be
adequately controlled if the equipment remained in place.
Wizmann had already been ordered to comply with the decibel
levels of LAMC section 112.02, subdivision (a), and did not
comply: The trial court found that the temporary restraining
order was intentionally violated by Wizmann and his tenants.
And even after some mitigation efforts, Chase was awakened
before 6:00 a.m. by equipment noise. Overall, the record reflects
endemic noise issues at Wizmann’s property and insufficient
response by Wizmann and his short-term tenants to Chase’s
equipment noise concerns. It seems unlikely that an order
restricting the use of the equipment would provide relief to a
reliable or significant extent under the circumstances. In seeking
an order that would provide appropriate relief to Chase, the trial
court did not abuse its discretion by concluding that if the
equipment remained it would result in plaintiffs continuing to
regularly suffer from offensive and substantial noise interference.
In sum, the trial court did not abuse its discretion in
concluding the balance of harms favored the issuance of a
preliminary injunction.
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DISPOSITION
The trial court’s order granting the request for a
preliminary injunction is affirmed. Respondents shall recover
their costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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