County of Riverside v. Stanger CA4/1 ( 2024 )

Filed 2/27/24 County of Riverside v. Stanger CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE, D082764
Plaintiff and Respondent,
v. (Super. Ct. No. CVPS2102511)
GARTH L. STANGER, as Trustee, etc.,
et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Riverside County,
Kira L. Klatchko, Judge. Reversed and remanded.
Law Offices of Kevin E. Monson, Kevin E. Monson for Defendants and
Appellants.
Minh C. Tran, County Counsel, Bruce G. Fordon, Kathryn E. Romo,
and Braden Holly, Deputy County Counsels, for Plaintiff and Respondent.
Garth L. Stanger and Barbara Stanger (the Stangers), as trustees of
The Stanger Family Trust, as amended and restated March 20, 1998
(The Stanger Family Trust) appeal from a judgment in favor of the County of
Riverside (the County) in a lawsuit that the County brought to obtain an
injunction against the public nuisance allegedly posed by the unlawful
cultivation of cannabis on real property owned by The Stanger Family Trust.
Specifically, the Stangers contend that the trial court improperly granted
summary judgment in favor of the County on its sole cause of action for
nuisance per se, based on which it ordered a permanent injunction. We
conclude that summary judgment was improperly granted because triable
issues of material fact exist as to whether it is reasonably probable that
cannabis cultivation will recur if not enjoined. Accordingly, we reverse the
judgment and remand for further proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Stangers Own the Property as Trustees and Lease It to James Parks
The Stanger Family Trust owns an improved parcel of real property
(the Property) in an unincorporated area of the County. The Stangers are
trustees of The Stanger Family Trust, and they reside in Utah. According to
the Stangers, since 2003 they have leased the Property to James C. Parks,
who resides there. Parks states in his declarations that, among other things,
he is a former Palm Springs Police Department reserve officer, the General
Manager of the Salton Communities Service District, and a member of the
Church of Jesus Christ of Latter-day Saints, and he has never used cannabis.
B. The Events Leading Up to the Filing of the County’s Lawsuit
This lawsuit arises from the undisputed fact that between August 2020
and April 2021, County officials twice observed the unlawful commercial
cultivation of cannabis in greenhouses on the Property. Although County
ordinances allow commercial cannabis cultivation under certain
circumstances if the appropriate permits are obtained (Riverside County
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Ordinance (RCO) No. 348.4898), no such permits existed with respect to the
Property.
According to the declarations filed by the County in support of its
motion for summary judgment, after receiving a complaint from the sheriff’s
department, a County code enforcement officer went to the Property on
August 20, 2020, and was informed by Parks that the cannabis plants
belonged to Travis Pearson. The code enforcement officer spoke with Pearson
on the Property and was shown at least 300 cannabis plants in a greenhouse.
The County states that on October 14, 2020, it sent a cease and desist
letter to (1) the Stangers’ address in Utah, (2) Parks’s address at the
Property, and (3) an address associated with Pearson. The letter stated that
the County had determined that unlawful cannabis cultivation was occurring
at the Property. Both the Stangers and Parks contend, in their declarations,
that they never received the letter. However, Pearson apparently received
the letter, because, according to the County, Pearson called a County code
enforcement officer to schedule an inspection of the Property. According to
the code enforcement officer, on October 20, 2020, he met with Pearson at the
Property and observed that all of the cannabis plants were removed.
Approximately six months later, on April 8, 2021, a different code
enforcement officer was at the Property and observed what he claimed to be
approximately 2,000 cannabis plants in greenhouses.
On May 20, 2021, the County filed a complaint against the Stangers.
The Stangers were sued both in their individual capacity and as trustees of
The Stanger Family Trust. The complaint contained only one cause of action:
“Nuisance per se for illegal land use.” (Capitalization omitted.) That cause of
action alleged that the Stangers “did and do continue to cause, allow, permit,
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aid, abet, suffer, or conceal the unlawful Cannabis Cultivation at or from the
Property in violation of RCO No. 348.”1
The complaint sought the following remedies: (1) a judicial declaration
that “the existing conditions and activities” on the Property “are in violation
of [RCO] No. 348, and are public nuisances per se”; (2) a temporary
restraining order, preliminary injunction, and permanent injunction
enjoining and prohibiting the Stangers from unlawfully engaging in cannabis
cultivation at the Property or anywhere else in the County, including, if
necessary, an order authorizing appropriate personnel to enter the Property
to enforce the injunction and an order appointing a receiver for the Property
to abate the nuisance; (3) civil penalties up to $1,000.00 per violation per day
accruing from April 8, 2021;2 and (4) abatement costs, including reasonable
attorney fees.
C. The Preliminary Injunction
The County sought a preliminary injunction, which the Stangers
opposed. In opposition, the Stangers both submitted declarations, along with
1 Although the County refers to RCO No. 348, the more helpful citation is
to RCO No. 348.4898. That ordinance, which the County submitted to the
trial court in support of its motions, and which accordingly appears in the
appellate record (while RCO No. 348 does not), states that it is “an ordinance
. . . amending Ordinance No. 348 related to zoning.” (Capitalization omitted.)
2 The civil penalties were sought pursuant to RCO No. 725, section 11(b),
which states that “[a]ny person, whether acting as principal, agent, employee,
owner, lessor, lessee, tenant, occupant, operator, contractor or otherwise, who
willfully violates the provisions of any Land Use Ordinance or any rule,
regulation, order or conditions of approval issued thereunder by committing,
causing, allowing, maintaining, continuing or otherwise permitting a
violation of any Land Use Ordinance shall be liable for a civil Penalty not to
exceed $1,000.00 for each day or portion thereof, that the violation continues
to exist.” (Italics added.)
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a declaration from Parks. We detail the content of those declarations here
because the County subsequently relied upon them to support its summary
judgment motion.
In their declarations, the Stangers explained that they did not receive
the cease and desist letter that the County claimed to have sent in October
2020, and they had no knowledge of any cannabis cultivation at the Property
until the County served its lawsuit on them in June 2021. The Stangers both
stated that they would “take every action, including the eviction of Mr. Parks
if necessary, to prevent any further problem with cannabis at the Property.”
They also explained that they had not been at the Property for over 10 years.
In his declaration, Parks stated that, as the lessee of the Property, he
rented a greenhouse at the Property to Pearson, an acquaintance of Parks’s
adult son, so that Pearson could grow cannabis. According to Parks, Pearson
told him that he possessed valid medical permits that allowed him to grow
cannabis. Parks explained that (1) he never received a cease and desist letter
from the County; (2) fire and sheriff personnel who were at the property for
the suppression of a fire in June 2020 asked to see the greenhouse and the
cannabis plants, and they explained to him at the time that “the County’s
concern was illegal cannabis cultivation that steals power from County power
lines”; (3) the code enforcement officer who came to the Property in October
2020 did not tell him that cannabis cultivation at the Property was unlawful,
and he thought the officer was there to confirm that there was no stealing of
power; and (4) he was not informed until April 8, 2021, that Pearson’s
cultivation of cannabis at the Property was unlawful, which he learned when
his adult son told him that a County inspector came to the Property and told
a woman who worked with Pearson that Pearson’s medical permits were not
valid for growing cannabis. According to Parks, he immediately took action
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to ensure that, by April 10, 2021, all of the cannabis was removed from the
Property. Parks stated that it was not until he read the complaint in this
lawsuit that he learned that growing cannabis in the greenhouses on the
Property was in violation of County law, and that the issue was not merely
the validity of Pearson’s medical permits. Parks stated, “Had anyone simply
told me that no cannabis could be grown at the Property, it would never have
happened. I always acted in the good faith belief that Pearson had the
medical permits necessary to grow the cannabis.”
In July 2021, a code enforcement officer inspected the Property and
confirmed that no cannabis cultivation was present. In its October 6, 2021
reply memorandum in support of the motion for a preliminary injunction, the
County argued that a preliminary injunction was nevertheless still
warranted, despite the cessation of cannabis cultivation at the Property,
because of “the clear pattern of unlawful cannabis cultivation over the past
year in order to prevent further unlawful cannabis cultivation.”
The trial court issued a preliminary injunction on October 13, 2021,
which enjoined the Stangers from engaging in unlawful cannabis cultivation
at the Property or anywhere else in the County.
D. The County’s Summary Judgment Motion
The County then filed a motion for summary judgment. The County
argued that, based on the undisputed facts, it was entitled to a permanent
injunction based on a theory of nuisance per se. The County argued that
“[t]he undisputed facts are that [the Stangers] cultivated and/or allowed the
cultivation of cannabis plants at the Property and such cultivation is
unlawful under RCO Nos. 348 and 725,” which created a public nuisance
under a theory of nuisance per se. The County relied, among other evidence,
on the declarations filed by the Stangers and Parks in connection with the
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preliminary injunction proceedings, which, according to the County,
established that cannabis cultivation had occurred at the Property. Although
it specifically sought a permanent injunction in connection with the summary
judgment motion, the County did not argue in its summary judgment motion
for the award of any civil penalties against the Stangers.
In opposition, the Stangers argued that the County’s summary
judgment motion should be denied because “[t]here is no cannabis cultivation
(or any other cannabis-related activity) at the Property, no cannabis-related
equipment at the Property, and no intent to engage in any cannabis-related
activity at the Property. There was no cannabis or cannabis-related activity
at the Property when [the County] filed this lawsuit. Most important, [the
County] presents no admissible evidence to indicate that [the Stangers] had,
in any manner, any participation in or notice of the existence or cultivation of
cannabis that was completely abated from the Property before this lawsuit.”
(Emphasis omitted.)
The Stangers submitted a supplemental declaration from Parks in
support of their opposition. Parks reiterated that he did not know that
Pearson’s cultivation of cannabis on the Property was unlawful, and he was,
in fact, led to believe by County officials that the cultivation was allowed.
“At no time before April 8, 2021, did I receive any notice, written
or otherwise, from the County that the presence of cannabis was
illegal or in violation of any County ordinance. Had I received
any such notice I would have ripped out and disposed of any and
all cannabis on the Property. When I heard on April 8, 2021, that
Mr. Pearson did not have legal permits for the cannabis, I kicked
Mr. Pearson off the Property and destroyed all of the cannabis.
“Not only did I not receive any notice before April 8, 2021, that
the presence of cannabis on the Property was not permitted, I
was told before April 8, 2021, that the cannabis was legal and
permitted. After the suppression of the fire at the Property in
June of 2020, County fire and sheriff personnel (including
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Marijuana Task Force personnel) inspected the Property for any
other fire hazards, including the greenhouses that had cannabis
plants inside. I saw the fire and sheriff personnel inspect the
greenhouses. I saw the fire and sheriff personnel talk with Mr.
Pearson and inspect his medical permit paperwork. After the
County personnel returned the paperwork to Mr. Pearson, the
County personnel told me that they saw that there was no boot-
legged electrical wiring or other problems with the greenhouses.
After the inspection, Mr. Pearson told me that the County
personnel told him that there were no problems with the
cannabis. Based on my conversations with the County personnel
and Mr. Pearson following the fire, my state of mind was that the
cannabis was fully legal. Not once did the County personnel (or
anyone else) say that the cannabis in the greenhouse was illegal
or in violation of County regulations.”
In its reply memorandum, the County argued that despite the fact that
cannabis cultivation was no longer present at the Property, “[a] permanent
injunction should issue against [the Stangers] based on the pattern of
unlawful cannabis cultivation, in order to prevent further unlawful cannabis
cultivation at [the Property].”
The trial court granted the motion for summary judgment as to the
Stangers in their capacity as trustees, but not in their individual capacities.
The trial court ruled that, as against the Stangers as trustees, the County
was “entitled to judgment as a matter of law for a permanent injunction.”
The permanent injunction prohibited the Stangers, as trustees, from
unlawfully cultivating cannabis at the Property or anywhere in the County.
It also specifically required that the Stangers, as trustees: “a. Cease any
unlawful Cannabis Cultivation at or from the Property and any other
property within the unincorporated areas of [the County], [¶] b. Remove all
cannabis, cannabis plants, cannabis-related equipment and supplies, and any
and all personal property related to or used in conjunction with the unlawful
cannabis cultivation . . . at the Property, and [¶] c. Lawfully remove any
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construction without permit at the Property, which is related to the unlawful
Cannabis Cultivation.” The trial court also ordered that the Stangers pay
“costs of suit, including but not limited to Code Enforcement costs and
reasonable attorney’s fees.”
The Stangers appeal from the judgment.
II.
DISCUSSION
A. Standards Governing a Plaintiff’s Motion for Summary Judgment
A motion for summary judgment shall be granted “if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) As the plaintiff bringing the motion, the County has
the initial burden of “showing that there is no defense to a cause of action if
that party has proved each element of the cause of action entitling the party
to judgment on the cause of action.” (Id., subd. (p)(1).) Once the County
satisfies that burden, the burden shifts to the Stangers to “set forth the
specific facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.” (Ibid.) “There is a triable issue of
material fact if, and only if, the evidence would allow a reasonable trier of
fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.)
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections have been
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made and sustained.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)3
“We liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.”
(Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717.)
B. The County Is Not Entitled to Summary Judgment Because a Triable
Issue of Material Fact Exists as to Whether It Is Reasonably Probable
That Unlawful Cannabis Cultivation Will Recur
The sole cause of action alleged by the County is based on a theory of
public nuisance per se. A nuisance is defined by statute as “[a]nything which
is injurious to health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the free passage or use,
in the customary manner, of any navigable lake, or river, bay, stream, canal,
or basin, or any public park, square, street, or highway.” (Civ. Code, § 3479.)
“ ‘A nuisance may be a public nuisance, a private nuisance, or both.’ ” (People
ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512, 1524.) “ ‘A public
nuisance is one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although the extent of
the annoyance or damage inflicted upon individuals may be unequal.’ ”
(Ibid.)
3 The Stangers filed evidentiary objections to some of the evidence
submitted by the County in support of the summary judgment motion. The
appellate record contains no indication that the trial court ruled on those
objections. “[I]f the trial court fails to rule expressly on specific evidentiary
objections, it is presumed that the objections have been overruled, [and] the
trial court considered the evidence in ruling on the merits of the summary
judgment motion . . . .” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)
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“The concept of a nuisance per se arises when a legislative body with
appropriate jurisdiction, in the exercise of the 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. . . . [T]o be considered a nuisance
per se the object, substance, activity or circumstance at issue must be
expressly declared to be a nuisance by its very existence by some applicable
law.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996)
44 Cal.App.4th 1160, 1206–1207, citations omitted.) “ ‘ “Where [a legislative
body] has determined that a defined condition or activity is a nuisance . . . the
function of the courts in such circumstances is limited to determining
whether a statutory violation in fact exists, and whether the statute is
constitutionally valid.” ’ ” (People ex rel. Dept. of Transportation v. Outdoor
Media Group (1993) 13 Cal.App.4th 1067, 1076.) “ ‘A legislatively declared
public nuisance constitutes a nuisance per se against which an injunction
may issue without allegation or proof of irreparable injury.’ ” (Ibid.)
The Stangers do not dispute that applicable County ordinances
establish that unlawful commercial cultivation of cannabis within the County
is a public nuisance. Specifically, RCO No. 348, as amended by RCO No.
348.4898, section 19.501, states that “[a]ny Commercial Cannabis Activity
that is not expressly provided for in both an approved conditional use permit
and a valid Cannabis license issued by the State is prohibited in all zones and
is hereby declared a public nuisance that may be abated by the County and is
subject to all available legal remedies, including but not limited to civil
injunctions.” The Stangers also do not dispute that, in the past, cannabis
was being cultivated on the Property in violation of County law. Therefore, it
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is undisputed that a public nuisance existed on the property during the
period of cannabis cultivation.
The parties’ dispute centers on whether there is a triable issue of
material fact regarding the showing needed to obtain a permanent injunction
based on a theory of a nuisance per se. The County concedes in its
respondent’s brief that “injunctions shall not issue where nuisances . . . are
unlikely to recur.” The County is correct to make that concession, as the
principle is well supported by case law. “Because [an] injunction is an
extraordinary remedy, the remedy should not be exercised unless it is
reasonably probable the acts complained of will recur. ‘Injunctive power is
not used as punishment for past acts and is ordered against them only if
there is evidence they will probably recur. . . . A court of equity will not
afford an injunction to prevent in the future that which in good faith has been
discontinued in the absence of any evidence that the acts are likely to be
repeated in the future.’ ” (Feminist Women’s Health Center v. Blythe (1995)
32 Cal.App.4th 1641, 1658 (Feminist Women’s Health Center).) Consistent
with this principle, RCO No. 725, section 11(a), authorizes the County to seek
civil injunctive relief only when a person “is engaged in or about to engage in”
a violation of a land use ordinance or other applicable law.
Accordingly, to prevail on its lawsuit seeking a permanent injunction
based on a theory of nuisance per se, the County must prove that it is
reasonably probable that unlawful cannabis cultivation will recur on the
Property. (Feminist Women’s Health Center, supra, 32 Cal.App.4th at p. 1658
[“the remedy should not be exercised unless it is reasonably probable the acts
complained of will recur”].) As we will explain, the evidence presented during
the litigation of the summary judgment motion reveals a triable issue of fact
on that subject.
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Parks and the Stangers explain that (1) they were unaware that
unlawful cultivation was occurring, (2) they took action as soon as they
learned of the unlawful cultivation, and (3) they will not allow any unlawful
cultivation in the future. If a finder of fact credits those statements, it is
quite possible that the County will be unable to prove a reasonable
probability that unlawful cannabis cultivation will recur. The County argues
that the “repeated confirmed occurrences” of unlawful cannabis cultivation at
the Property support an inference that unlawful cannabis cultivation will
recur. According to the County, “[w]here there is a pattern of violation, a
reoccurrence is likely.” We understand the argument, but the County’s view
of the evidence is only one possible interpretation. It is also possible, from
the evidence, to conclude that the repeated unlawful cannabis cultivation on
the Property was the result of a series of miscommunications and
misunderstandings, as Parks details in his declarations. Under that
interpretation of the facts, unlawful cannabis cultivation would be unlikely to
recur.
As a triable issue of material fact exists as to whether it is reasonably
probable that unlawful cannabis cultivation will recur, the trial court erred in
granting summary judgment in favor of the County in the form of a
permanent injunction based on a theory of nuisance per se.4
4 Because we reverse the judgment on the ground that a triable issue of
material fact exists regarding the reasonable probability that unlawful
cannabis cultivation will recur, we need not, and do not, consider the
Stangers’ additional contention that the judgment should be reversed because
a triable issue of fact exists as to whether, as absentee landowners who
allegedly lacked any relevant knowledge about the cannabis cultivation, they
“created or assisted in the creation of the nuisance.” (City of Modesto
Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38; but
see McClatchy v. Laguna Lands, Limited (1917) 32 Cal.App. 718, 725 [“all
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DISPOSITION
The judgment is reversed, and this matter is remanded with directions
that the trial court enter an order denying the County’s motion for summary
judgment and that it conduct further proceedings consistent with this
opinion. The Stangers shall recover their costs on appeal.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
parties to a nuisance per se, he who creates it and he who maintains it, are
responsible for its effect”].)
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