City of Indian Wells v. Lawellin CA4/2 (2015) · DecisionDepot
City of Indian Wells v. Lawellin CA4/2
California Court of Appeal Jun 11, 2015 No. E060000Unpublished
Filed 6/11/15 City of Indian Wells v. Lawellin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
CITY OF INDIAN WELLS,
Plaintiff and Respondent, E060000
v. (Super.Ct.No. INC1206444)
DOUGLAS A. LAWELLIN et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Affirmed.
Franceschi Law Corporation and Ernest J. Franceschi, Jr. for Defendants and
Appellants.
Best Best & Krieger and Douglas S. Phillips for Plaintiff and Respondent.
I
INTRODUCTION
This matter concerns a tall ficus tree hedge located on defendants Douglas
Lawellin and Steven Rohlin’s (defendants) residential property. The hedge violates the 1
City of Indian Wells’ (City) zoning ordinance limiting the height of hedges to a
maximum of nine feet (Ordinance 652). After a neighbor complained the hedge was
blocking her view of the desert mountains, the City filed an application to abate the hedge
as a public nuisance. Defendants appeal from judgment entered following the trial court
defendants’ property. The hedge was 18 to 20 feet tall when defendants purchased their
property.
In February 2011, Aldridge submitted a citizen’s complaint to the City,
complaining that defendants’ hedge was too high and was blocking her view. In
September 2011, Aldridge sent the City an email noting that she was aware of the recent
passage of an ordinance limiting shrubs to nine feet. Aldridge requested assistance in
proceeding under the newly enacted ordinance.
The City referred Aldridge’s September 2011 complaint to the City’s code
enforcement department, which noted it had previously sent a letter to defendants
requesting defendants cut their hedge but defendants did not want to do so. City Code
Enforcement Officer Bruce Pelletier inspected the hedge in September 2011, took a photo
of the hedge, and sent defendants a notice of violation of IWMC section 21.50.051(c)(2),
limiting the height of hedges to nine feet. Pelletier estimated that, at that point,
defendants’ hedge exceeded the nine-foot height maximum by seven to 15 feet. The
notice of violation advised defendants they must comply with the hedge ordinance by
September 21, 2011. Pelletier met with Lawellin in September 2011, and explained he
was required to follow the hedge height ordinance. Pelletier requested defendants and
Aldridge to meet and come to an agreement on the matter. Lawellin told Pelletier he did
not intend to comply with the ordinance.
Defendants did not comply with the hedge ordinance by September 21, 2011.
Pelletier issued a City administrative citation, fining defendants $100 for violating IWMC
section 21.50.051, subdivision (c)(2). Defendants appealed the citation.
4
In October 2011, the City’s personnel and public safety director, Mel Windsor,
sent defendants a letter stating that, because of resident complaints, the City had begun
enforcing its hedge height ordinance. Windsor added that he hoped defendants and their
neighbors would work together to rectify the view and landscape issue.
In November 2011, defendants’ administrative appeal was heard and the
administrative officer upheld the citation. Pelletier issued defendants several more
citations for noncompliance with the hedge height ordinance. Defendants continued to
refuse to comply with Ordinance 652.
In January 2012, Windsor sent defendants a letter stating that, if defendants and
Aldridge entered into a signed, written, mutual agreement and complied with all terms of
the agreement, the City would waive all past citations. Defendants and Aldridge came to
an agreement in which defendants agreed to trim their hedge to 14 feet but the City would
not approve the proposed settlement because the proposed 14-foot hedge still violated the
nine-foot height maximum. In addition, the city council would not agree to waive
payment by defendants of the City’s attorney fees or pay defendants’ attorney fees.
In September 2012, the City filed in the trial court an application against
defendants for a warrant to abate public nuisance under Code of Civil Procedure section
731 and IWMC section 21.50.051, subdivisions (c)(2) and (e). The City alleged that
under the municipal code, defendants’ hedge, which exceeded nine feet in height,
constituted a public nuisance. Therefore the City had authority to seek summary
abatement of the nuisance.
5
The trial court conducted a four-day bench trial on the application, beginning in
June 2013. During the trial on the abatement application, defendants’ expert witness,
certified arborist Warren Miller, testified that defendants had recently trimmed the ficus
hedge to 14 feet and, if trimmed further, it would likely die. The City’s landscape
specialist and licensed landscape contractor Ryan Bowen testified that defendants’ hedge
could be trimmed to nine feet without injury.
On November 7, 2013, the trial court granted the City’s abatement application,
authorizing the City to abate the public nuisance, which consisted of defendants’ hedge
exceeding nine feet in height, in violation of IWMC sections 21.50.051 and 21.50.053.
As the prevailing party, the City filed an application for an award of attorney fees and
costs. Defendants opposed the motion. After hearing oral argument and taking the
matter under submission, the trial court issued an order on December 19, 2013, granting
the City’s application for attorney fees and costs. The court awarded the City $97,835.84
in attorney fees and costs.
III
PUBLIC NUISANCE
Defendants contend the City failed to prove defendants’ hedge constituted a public
nuisance under Civil Code sections 3479 and 3480.
A. Standard of Review
The City has the burden of proof of the nuisance and the necessity for its
abatement. (Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 718.) We review
factual issues underlying the trial court’s abatement warrant authorizing the City to abate
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a public nuisance under the substantial evidence standard. Issues of pure law are subject
to de novo review. (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1164
(Kruse); People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136-1137.) This case
presents issues of pure law because it is undisputed defendants’ hedge violated the City’s
nuisance ordinance, Ordinance 652, codified as IWMC section 21.50.051. Whether the
hedge constitutes a public nuisance under Ordinance 652 and whether the ordinance is
valid and enforceable, are questions of law which we review de novo. (City of Dana
Point v. California Coastal Com. (2013) 217 Cal.App.4th 170, 187.)
B. Definition of Nuisance
Civil Code section 3479 defines a nuisance in general terms as “Anything which is
injurious to health, . . . 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,
. . .” A public nuisance is defined in Civil Code section 3480 as “. . . 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.” A private nuisance is defined in Civil Code section 3481 as every nuisance
not included in the definition of public nuisance in Civil Code section 3480. (Civ. Code,
§ 3481.)2 “[I]n this state activities that disturb or prevent the comfortable enjoyment of
property have been held to constitute nuisances even though they did not directly damage
2We recognize the City incorrectly states in its abatement application that Civil Code section 3479 defines a public nuisance. Section 3479 only provides a definition of “nuisance.” Section 3480 defines “public nuisance.”
7
the land or prevent its use.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22
Cal.App.3d 116, 126 (Venuto).)
C. Negligence Per Se
The City pleaded in its application for a warrant to abate a public nuisance that
defendants’ hedge of ficus trees, which was within the setback on the defendants’
property, constituted a public nuisance. The hedge, which was over nine feet high, in
violation of IWMC section 21.50.051, obscured defendants’ neighbor’s view of the
mountains. Defendants argue the City did not provide substantial evidence the hedge was
“injurious to health,” “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.) Citing Venuto, supra, 22 Cal.App.3d 116, defendants assert that a
hedge blocking the view from a neighboring property does not constitute a public
nuisance as a matter of law.
“As a general rule, a landowner has no natural right to air, light or an unobstructed
view and the law is reluctant to imply such a right. [Citations.] Such a right may be
created by private parties through the granting of an easement [citations] or through the
adoption of conditions, covenants and restrictions . . . or by the Legislature [citations].
Local governments may also protect views and provide for light and air through the
adoption of height limits. [Citations.]” (Pacifica Homeowners’ Assn. v. Wesley Palms
Retirement Community (1986) 178 Cal.App.3d 1147, 1152.)
In Venuto, the plaintiffs sued a fiberglass manufacturing company, alleging public
nuisance caused by emissions from the plant severely polluting the air, obstructing the
8
public view of the hills, and injuring the public’s health. The Venuto court held the view
obstruction or interference caused by the emission of smoke and other waste matter did
not constitute a nuisance. (Venuto, supra, 22 Cal.App.3d at p. 127.) The Venuto court
stated that a building or structure is not a nuisance merely because it obstructs the view
from neighboring property or interferes with the passage of light and air to adjoining
premises. (Ibid.)
The Venuto court noted that the nuisance rules originated from “the repudiation of
the English doctrine of ‘ancient lights’ under which a landowner acquired, by interrupted
user, an easement over adjoining property for the passage of light and air on the basis that
‘it is not adapted to the conditions existing in this country and could not be applied to
rapidly growing communities without working mischievous consequences to property
owners.’ [Citations.] Accordingly, in this state an owner of property may construct or
erect on his land any sort of structure provided it is not such as the law will pronounce it
a nuisance, but it is not a nuisance merely because it obstructs the passage of light and air
to the building of the adjoining owner or merely because it obstructs his view of
neighboring property. [Citations.]” (Venuto, supra, 22 Cal.App.3d at p. 127.)
In the instant case, the City’s application for a warrant to abate a public nuisance is
founded on a view obstruction caused by defendants’ hedge. The instant case, however,
is distinguishable from Venuto, supra, 22 Cal.App.3d 116, in that defendants’ hedge
violated IWMC section 21.50.051, which provides that the violation constitutes a
nuisance and authorizes abatement by the City code enforcement officer. IWMC section
21.50.051, subdivision (c)(2) states: “Allowed Height . . . (2) Side and Rear yards.
9
Neither hedge(s) nor screen planting(s) shall be allowed to grow over nine feet (9’) in
height within the side and rear yard building setback area. This limitation shall be
applicable only to any hedge located adjacent to a single family residential lot.”
IWMC section 21.50.051, subdivisions (e) and (f), provide: “(e) Conditions that
are Nuisances. It is a public nuisance for any person owning, leasing, occupying or
having charge of any premises in the City to maintain such premises in such manner that
is in violation of, or failure to comply with any provisions of this Section. [¶]
(f) Enforcement. Upon written complaint from an homeowners’ association or a person
directly affected by a hedge(s) or screen planting(s) or upon independent investigation,
the Code Enforcement Officer or designee may determine that such hedge(s) or screen
planting(s) is maintained contrary to one or more of the provisions of Section 21.50.051
and may cause the abatement thereof pursuant to Section 8.08.070.”
The City argues it is not claiming the hedge is a public nuisance under Civil Code
sections 3479 and 3480. Instead, the City is claiming the hedge is a nuisance per se
under IWMC section 21.50.051, subdivisions (c) and (e). “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.” (Beck Development Co. v. Southern Pacific
“Evidence of a writing made as a record of an act, condition, or event is not made
27
inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶]
(a) The writing was made in the regular course of a business; [¶] (b) The writing was
made at or near the time of the act, condition, or event; [¶] (c) The custodian or other
qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The
sources of information and method and time of preparation were such as to indicate its
trustworthiness.”
Phillips’ declaration provided a sufficient foundation for applying the business
records hearsay exception to the billing statement. The trial court therefore did not abuse
its broad discretion in relying on the billing statements under Evidence Code section
1271. “The trial judge is invested with wide discretion in determining whether a proper
foundation has been laid for the admission of business records under Evidence Code
section 1271. [Citations.] The exercise of that discretion will not be disturbed on appeal
absent a showing of abuse. [Citation.] Where the trial court has determined that the
foundation laid was sufficient to support the introduction of evidence under the business
records exception, and the record reasonably supports this determination, its conclusion is
binding on the appellate court.” (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d
1439, 1450.) Because the trial court’s fee determination shall not be disturbed unless this
court is convinced it is clearly wrong, we affirm the award of attorney fees and costs in
this matter. Defendants have not established error in awarding the City $97,835.84 in
attorney fees and costs. (Alnor, supra, 165 Cal.App.4th at p. 1322.)
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V
DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
HOLLENHORST Acting P. J.
MILLER J.
29
AI Brief
AI-generated · verify before citing
Holding. The court held that the City's ordinance limiting hedge height is a valid exercise of police power, is not preempted by state law, and that a hedge exceeding the height limit constitutes a nuisance per se subject to abatement.
Issues
Whether the City's hedge height ordinance is a valid exercise of police power and not preempted by state law.
Whether a hedge exceeding the ordinance's height limit constitutes a nuisance per se.
Whether the trial court abused its discretion in awarding attorney fees and costs to the City.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude Ordinance 652, limiting the height of hedges on residential property, is enforceable as a valid exercise of the City’s police power related to promoting public welfare and comfort, and is not preempted by state law.”
“It is undisputed defendants’ hedge violates Ordinance 652 and therefore constitutes a nuisance per se subject to abatement under the ordinance.”
“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.”