JOSEPH CHASE et al. v. BENJAMIN WIZMANN et al.
No. B307017
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 11/1/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BC647861)
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.
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.
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 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
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 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
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.
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.
With all the pool equipment turned off and one air conditioner condenser running, Chase‘s expert measured 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
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 comfortable enjoyment of life or property’ ” under
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.”
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
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 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
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 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.” (
To prevail on an action for private nuisance, a plaintiff must first prove an interference with the plaintiffs 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 plaintiffs 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 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.)
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
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.” (
Wizmann contends that under
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
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 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
Here, the LAMC does not expressly immunize all equipment noise below the decibel level proscribed in
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
Accordingly, we decline to find that
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 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
Even after some mitigation efforts, it is undisputed that many configurations of the equipment noise still violated
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
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 the underlying lawsuit—and sought to enjoin the
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
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
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.
Notes
In full,
“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.”