Harris v. >County> of >Los
Angeles





















Filed 3/7/13 Harris v. County of Los Angeles CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>

PRESTON THOMAS HARRIS et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

B239113 (Los Angeles County Super. Ct. No. BC438196)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. William F.
Highberger, Judge. Affirmed.>



Law Offices
of A. George Glasco and A. George Glasco for Plaintiffs and Appellants.



Lawrence
Beach Allen & Choi, Michael D.
Allen and Matthew P. Allen for Defendant and Respondent.





____________________



Plaintiffs
and appellants Rarebreed Motorcycle Club, Inc. (Rarebreed) and its officers
Preston Thomas Harris (Harris), Kenneth Williams and Lanny Thomas (sometimes
collectively appellants) appeal from the summary judgment granted in favor of
defendant and respondent County of Los
Angeles (County).
We affirm, finding no triable issue of material fact on appellants’
cause of action for nuisance.

FACTUAL AND PROCEDURAL BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">[1]

Rarebreed has a motorcycle club
located in a commercial and industrial district on South
Broadway Street in an unincorporated area of Gardena. Rarebreed’s clubhouse has a capacity of 250
to 300 people. It has two entrances, a
front door on Broadway and a roll-up back door on a public alley. Rarebreed planned a 20-year anniversary
celebration over three days on June 24, 25 and 26, 2009. Due to a history of violence at Rarebreed’s
clubhouse, including shootings, the Compton and Carson stations of the Los
Angeles County Sheriff’s Department (LASD) prepared operations plans to ensure
that the anniversary celebration was conducted in a safe, secure and
law-abiding manner, to prevent property damage, and to keep traffic in the area
safely flowing.

June 24, 2009>

On the night
of June 24, 2009, a
sheriff’s sergeant set up a command post in a parking lot near Rarebreed’s
clubhouse, and LASD personnel were in constant communication with the command
post. Rarebreed’s party started at 8:00 p.m. and its members placed cones in the
alley behind the clubhouse to block cars from parking in the alley. They did not have a permit to do so. Over the next few hours, LASD personnel
observed the following: Motorcycles
parked on the street outside of designated parking areas and illegally parked
on the sidewalks; motorcycles and attendees blocking streets and sidewalks;
attendees drinking alcohol on public sidewalks; motorcyclists speeding and
“revving” their engines loudly; loud music from both inside the clubhouse and
outside on motorcycle radios, and attendees yelling and shouting.

LASD
personnel received a complaint call from the public to respond to Rarebreed’s
clubhouse. LASD personnel notified the
event organizer that laws were being violated.
At approximately 11:30 p.m.,
LASD personnel asked the crowd to disperse, explaining that the crowd was an
unlawful assembly. LASD personnel took a
video of the dispersal, which was conducted in an orderly fashion.

June 25, 2009>

There were no
large parties at Rarebreed’s clubhouse on June 25, 2009. That
evening, Rarebreed held a “Meet-and-Greet” at the nearby Magic Wheels clubhouse
at 6:00 p.m., which also had a
front door and pull-up back door. None
of the individual appellants attended this event. At approximately 7:30 p.m., LASD personnel arrived at Magic Wheels’s
clubhouse and observed motorcycles and attendees blocking streets and
sidewalks; attendees drinking alcohol in public; attendees yelling and
shouting; and speeding motorcycles. At 10:30 p.m., LASD personnel asked the
crowd to disperse, explaining the reason for the dispersal.

June 26, 2009>

On June 26, 2009, Rarebreed held an
event at a Harley Davidson dealership from 6:00 p.m.
to 9:00 p.m. The event “turned out great” and was not shut
down by the LASD. After the Harley
Davidson event, attendees headed over to Rarebreed’s clubhouse and a crowd
developed. LASD personnel observed the
same problems as they had at the June
24, 2009 event, including blocked streets and sidewalks, public
consumption of alcohol, speeding motorcycles, and loud noise and music. At
approximately 11:30 p.m., LASD
personnel dispersed the crowd.

The Pleadings

Appellants
sued the County and others as a purported class action, alleging various causes
of action including racial discrimination, nuisance and emotional
distress. The County moved for summary
judgment on the causes of action against it for emotional distress and
nuisance. As to nuisance, the County
argued that (1) appellants could not prove the elements of nuisance, and (2)
the County was statutorily immune from liability for nuisance. The County supported its motion with
declarations from 11 LASD personnel, deposition testimony of the three
individual appellants, documentary evidence, and colored photographs taken
during the three evenings. Appellants
opposed the motion, addressing only the first ground raised, and relied
primarily on the declaration of Harris, a retired sergeant with the LASD. As noted, the trial court granted most of the
County’s objections to Harris’s declaration.
The trial court tentatively granted the motion for summary judgment, but
allowed the parties to file further briefing on the issue of whether the County
had immunity for nuisance liability.
After a further hearing on the matter, the trial court adopted its
tentative ruling and granted summary judgment in favor of the County. This appeal followed.

DISCUSSION

I. Standard of Review.

We
review a grant of summary judgment de novo, considering “‘all of the evidence
set forth in the [supporting and opposition] papers, except that to which
objections have been made and sustained by the court, and all [uncontradicted]
inferences reasonably deducible from the evidence.’” (Artiglio
v. Corning Inc. (1998) 18 Cal.4th 604, 612.) A defendant “moving for summary judgment bears an
initial burden of production to make a prima facie showing of the nonexistence
of any triable issue of material fact.”
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) The
moving defendant may meet this burden either by showing that one or more
elements of a cause of action cannot be established or by showing that there is
a complete defense thereto. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.) “‘[A]ll that the defendant need do is to show
that the plaintiff cannot establish at least one element of the cause of action
. . . [;] the defendant need not himself conclusively negate any
such element . . . .’
[Citation.]” (>Mills v. U.S. Bank (2008) 166
Cal.App.4th 871, 894.) Once the moving
party’s burden is met, the burden shifts to the plaintiff to demonstrate the
existence of a triable issue of material fact.
(Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) The plaintiff must produce “‘>substantial’” responsive evidence
sufficient to establish a triable issue of fact. (Leek
v. Cooper (2011) 194 Cal.App.4th 399, 417.)
“A party cannot avoid summary judgment based on mere speculation and
conjecture [citation], but instead must produce admissible evidence raising a
triable issue of material fact.” (>Vournas v. Fidelity Nat. Tit. Ins. Co.
(1999) 73 Cal.App.4th 668, 672; Code Civ. Proc., § 437c, subd. (d).)

II. Appellants Did Not Create a Triable
Issue of Fact on Their Nuisance Claim.

Appellants
challenge the summary judgment only with respect to their nuisance cause of
action.

>A. >Applicable
Law

Civil Code
section 3479 defines nuisance as follows:
“Anything 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, is a
nuisance.”

To recover
damages for nuisance on an obstruction theory, the plaintiff must prove not
only that the obstruction interfered with the use and enjoyment of property,
but the two “additional elements” that the interference was substantial and
unreasonable. (San Diego Gas & Electric Co. v. Superior Court (1996) 13
Cal.4th 893, 937; Fashion 21 v. Coalition
for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138,
1154.) To demonstrate the interference
was substantial, the plaintiff must provide evidence that he or she suffered
“‘substantial actual damage.’” (>San Diego Gas & Electric Co., supra, 13
Cal.4th at p. 938.) To demonstrate the
interference was unreasonable, the test “is whether the gravity of the harm
outweighs the social utility of the defendant’s conduct.” (Ibid.)

>B. >No
Obstruction

The first
amended complaint alleged that the County (acting through the LASD) created a
nuisance by closing Rarebreed’s and Magic Wheels’s clubhouses and “by
interfering with the use and/or enjoyment by the members of RAREBREED of the
streets of the county of Los Angeles.”
But appellants did not produce admissible evidence of any physical
obstruction.

In the separate statement of
undisputed facts, appellants conceded that on the first day of the anniversary
celebration, June 24, 2009, no sheriff’s deputies were blocking the back door
of Rarebreed’s clubhouse, and when LASD personnel left the clubhouse, a few
Rarebreed members stayed inside to break down equipment and help close up. Appellants also conceded that on the second
day of the anniversary celebration, June 25, 2009, neither of the two entrances
to Magic Wheels’s clubhouse were blocked in any way, and LASD personnel
observed people entering and exiting the clubhouse after the crowd
dispersed. Finally, appellants conceded
that on the final day of the anniversary celebration, June 26, 2009, LASD
personnel did not physically block entry to Rarebreed’s clubhouse nor were they
ordered to block entry to the clubhouse, and appellant Kenneth Williams entered
the clubhouse 10 minutes after the crowd dispersed and there were still people
inside cleaning up.

With
respect to blocking the streets, the County produced evidence that on
June 24, 2009, LASD personnel observed motorcycles and other vehicles
parked on public streets outside of designated parking areas blocking the
streets, motorcycles illegally parked on the sidewalk which prevented
pedestrians from walking on the sidewalk, and attendees congregated on the
street “creating a crowd which prevented the free flow of traffic.” Although appellants attempted to dispute this
evidence, the County’s objections to appellants’ evidence were sustained. Thus, these facts remained undisputed. The County also produced evidence that on
June 25, 2009, the streets around Magic Wheels’s clubhouse were blocked and
created a fire safety hazard and that on June 26, 2009, numerous vehicles
were parked outside of designated parking areas blocking the streets around
Rarebreed’s clubhouse. Appellants
attempted to dispute this evidence by relying on Harris’s declaration that the
streets were blocked only by LAPD patrol cars.
But again, objections to appellants’ evidence were sustained, thus
leaving these facts undisputed.

While
appellants disputed the County’s evidence that the crowds grew beyond 500
people, relying on Harris’s declaration that only half this number attended,
the number is immaterial. Regardless of
the actual number of attendees, the above facts are uncontroverted. Additionally, the County produced photographs
posted online by Rarebreed member Will Free (Free), which showed crowds of
attendees congregating in the streets and alleys, and motorcycles parked on the
sidewalk. LASD personnel corroborated
that these photographs accurately depicted what they observed. Although appellants relied on Free’s declaration
that “none of those photographs had anything to do with any events held by
Rarebreed during the years 2009 to and including 2010,” the County provided
evidence that Free had produced these photographs himself in response to a
subpoena, and the trial court sustained the County’s objections to appellants’
evidence.

Accordingly,
appellants have not produced specific, admissible evidence to create a genuine
issue of material fact as to whether a physical obstruction was created.

>C. >No
Substantial Interference

To meet the second element of their
nuisance claim based on an obstruction theory, appellants must provide evidence
that they suffered “‘substantial actual damage.’” (San
Diego Gas & Electric Co., supra, 13 Cal.4th at p. 938.) The degree of harm is determined
objectively. (Ibid.) Appellants failed to
produce evidence of damage.

Appellants did not produce any
evidence of expenses incurred as a result of the crowd dispersal, any evidence
of lost ticket revenue, or any evidence of wasted food or alcohol. Indeed, the celebrations lasted many hours
each night before the LASD dispersed the large crowds. Thus, there is no evidence of any damages,
much less of “substantial actual damage.”

>D. >No
Unreasonable Interference

The final element of their nuisance
claim requires appellants to show that the interference with the use and enjoyment
of their property was unreasonable. To
prove this element, appellants must show that the gravity of the harm they
suffered outweighs the social utility of the LASD’s conduct. (San
Diego Gas & Electric Co., supra, 13 Cal.4th at p. 938.) Again, the test is objective. (Ibid.)

Even assuming appellants suffered
harm, the social utility of the LASD’s conduct outweighed such harm. (See Cox
v. Louisiana (1965) 379 U.S. 536, 554–555 [“Governmental authorities have
the duty and responsibility to keep their streets open and available for
movement”].) It is undisputed that the
anniversary celebrations created large crowds that spilled onto and blocked
public streets, sidewalks and alleys, that there was public consumption of
alcohol, speeding motorcycles, and loud noise, music and yelling. It cannot be said that the LASD’s decision to
take control of the situations by dispersing the large crowds was objectively
unreasonable under these circumstances.
The County produced evidence that given the large size of the crowds and
the numerous legal violations occurring, it was not feasible to make individual
arrests.

Moreover, appellants conceded that
the LASD’s operations plans were necessary “to ensure that the 2009 Anniversary
Celebration was conducted in a safe, secure and law-abiding manner, to prevent
property damage and to keep traffic in the area of the Rarebreed clubhouse
safely flowing”; that prior planning by
the LASD “was a necessary and essential safeguard to ensure that the 2009
anniversary celebration was not marred by violence and would be conducted in a
safe and legal manner”; and that the
LASD “engaged in traffic control to ensure attendees left in an orderly
manner.” Indeed, unlike the violence
that occurred at past Rarebreed events, there were no shootings at the 2009
anniversary celebrations.

Because appellants failed to create
a genuine issue of material fact on their nuisance cause of action, the trial
court properly granted summary judgment on this claim.href="#_ftn2" name="_ftnref2" title="">>[2]

DISPOSITION

The summary judgment is
affirmed. The County is entitled to
recover its costs on appeal.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.









______________________________,
J.

ASHMANN-GERST





We concur:







_______________________________,
P. J.

BOREN







_______________________________,
J.

CHAVEZ