Anderson v. County of Santa Barbara

Case Number

22CV01299

Case Type

Hearing Date / Time

Wed, 01/10/2024 - 10:00

Nature of Proceedings

1) Hrg on return on Remittitur; 2) County’s req to lift the stay; 3) to dissolve the prelim injunction; 4) to deny the Petition for writ of mandate; and, 5) to reconsider this Court’s ruling on the 1st cause of action in the County’s Cross-Complaint

Tentative Ruling

For the Petitioners [“Petitioners”]: A. Barry Cappello; David L. Cousineau; G. Michael Brelje

For the Respondent [“County”]: Barbara A. Carroll; Callie Patton Kim

Issue

(1) Hearing on return on Remittitur; (2) County’s request to lift the stay; (3) to dissolve the preliminary injunction; (4) to deny the Petition for writ of mandate and (5) to reconsider this Court’s ruling on the 1st cause of action in the County’s Cross-Complaint.

Rulings

1. The Court lifts the stay of the litigation in its entirety imposed on June 12, 2023.

2. The Court immediately dissolves the preliminary injunction.

3. The Court vacates its June 1, 2023 ruling granting the petition for writ of mandate, and instead denies the petition for writ of mandate. 

4. The Court has accepted the County’s invitation to reconsider its December 15, 2022 ruling on Petitioners and Cross-Defendants’ demurrer to the cross-complaint in which the Court sustained the demurrer to the first cause of action for public nuisance (Str. & Hwy Code, §§ 1482, 1484), but reaches its original conclusion and will again sustain the demurrer to that cause of action.

Analysis

The Motion

County’s Motion was filed 12/5/23; 11 pages; summarized; on April 4, 2022, Petitioners filed a petition for writ of mandate against the County and sought a preliminary injunction seeking to prevent the County Road Commissioner from removing unpermitted private encroachments from the public right of way.

The preliminary injunction was granted on May 6, 2022, and the County appealed. While the appeal of the grant of the preliminary injunction was pending, the writ proceeding continued. 

On August 22, 2022, the County filed a Cross-Complaint against Petitioners for public nuisance and trespass.

On May 3, 2023, the Court granted the petition for writ of mandate.

On June 21, 2023, the Court stayed the litigation in its entirety and directed the County to notify the Court and all other parties within 30 days after the preliminary injunction appeal has been decided whether County will dismiss or move forward with its Cross-Complaint. 

On July 19, 2023, the Court of Appeals for the Second District of California issued a decision reversing the grant of a preliminary injunction in this case.  The Court of Appeal reversed on the preliminary injunction for multiple reasons and remanded the matter to the trial Court for further proceedings consistent with the decision.

On August 16, 2023, the County filed a status report notifying the Court and Petitioners that it intended to continue to pursue its Cross-Complaint and, upon remittitur, intended to request the Court lift the stay, dissolve the injunction, and vacate its ruling on the writ of mandate and demurrer to the Cross-Complaint.

Based on the ruling by the Court of Appeal, the County requests that the Court immediately dissolve the preliminary injunction imposed on May 6, 2022, and that the Court vacate its prior ruling on the merits of the writ of mandate dated May 3, 2023. 

This Court previously ruled that the County must comply with its CEQA obligations with respect to its trailhead parking creation project. This ruling should be reconsidered now that the appellate Court has held “Respondents are not correct on the merits of their CEQA claim.” 

Although the parties have continued settlement discussions since the Court of Appeal’s ruling, they have been unable to resolve the case.

The County now asks this Court to lift the stay of the litigation to allow the case to proceed.

The County requests that the Court reconsider its December 15, 2022 ruling on Petitioners’ Demurrer to County’s Cross-Complaint. This Court previously sustained the demurrer to the County’s first cause of action for public nuisance under Streets & Highways Code section 1484 without leave to amend so long as the preliminary injunction remained in place.  The Court overruled the demurrer on all other bases. Now that the preliminary injunction has been reversed by the Court of Appeal, the County requests the Court reconsider its ruling sustaining the demurrer to the first cause of action.

The County requests the following relief:

1. That the Court lift the stay of the litigation in its entirety imposed on June 12, 2023.

2. That the Court immediately dissolve the preliminary injunction.

3. That the Court vacate its June 1, 2023 ruling granting the petition for writ of mandate, and instead deny the petition for writ of mandate.

4. That the Court reconsider its December 15, 2022 ruling on Petitioners and Cross-Defendants’ demurrer to the cross-complaint in which the Court sustained the demurrer to the first cause of action for public nuisance (Str. & Hwy Code, §§ 1482, 1484), and instead overrule the demurrer to that cause of action.

Supported by the Declaration of Barbara Carroll

Response

Filed 12/27/23; 8 pages; summarized; Petitioners do not oppose the request to dissolve the preliminary injunction or vacate the ruling granting the petition for writ of mandate and instead deny the petition for writ of mandate. They do oppose County’s request to (1) lift the litigation stay, contending they are already working through the encroachment permit process with County, and should not be required to incur legal expenses while they do so, or (2) reconsider the Court’s 12/15/22 ruling on their demurrer to the cross-complaint, contending the Court of Appeal did not alter the Court’s analysis on the demurrer to the cross-complaint, and that it was correct and should not be disturbed, particularly since no new notices pursuant to Sts. & Hwys Code 1482 could have been served prior to dissolution of the injunction and serving them at that time would simply be retaliatory, given their cooperation with County processes, and the fact that some of the parking County is seeking creates dangerous conditions.

Reply

Filed 1/3/24; 5 pages; summarized; the Reply is directed specifically to addressing Petitioners’ “response” to: 1) lifting the stay of the litigation; and 2) reconsideration of the Court’s December 15, 2022 ruling on Petitioners’ demurrer to the cross-complaint in which the Court sustained the demurrer to the first cause of action for public nuisance (Str. & Hwy Code, §§ 1482, 1484).

Based on the Court of Appeal decision, the County requests that this Court lift the stay of litigation and overrule the prior demurrer ruling such that the County’s first cause of action for public nuisance stands. The County realizes costs of litigation are an area of concern, but the costs of delaying resolution is a reality for the County and has been over the last approximately two years.  On February 7, 2022, the County sent letters seeking the removal of unpermitted private encroachments to homeowners in the Hot Springs trailhead area The preliminary injunction issued on May 6, 2022. The Court of Appeal filed its decision on July 19, 2023, and it is now January 2024. 

Petitioners were served with notices on June 22, 2022, informing them of the need to remove their unpermitted encroachments. Although the Court ordered the County to withdraw those notices, the Court of Appeal ruling found that the encroachments were within the enforcement authority of the Roads Commissioner. Thus, the Court of Appeal has affirmed the County’s cause of nuisance cause of action under the Streets and Highways Code. There is no notice or damage calculation issue here. Rather, Petitioners have been on notice since at least the June 22, 2022 notices that they were in violation of the law and have failed to rectify the issue.

The Court’s Conclusions

Petitioners’ argument about the costs of lifting the stay is a stark reality – but the Court has decided, on balance, it is time now to lift the stay because the matter has been pending so long. There are very experienced lawyers in this case, and the fact they have been unable to resolve the issues remaining is decisive to the Court on this issue; the Court finds it is time to move forward. The stay should be lifted.

As for the issue that the Court should reconsider its decision on the demurrer, this Court accepts the invitation. The request is made thoughtfully, and this Court should take the time to look back on what it did and why.

Demurrer to First Cause of Action in County’s Cross-Complaint

County’s first cause of action is for public nuisance in violation of Streets & Highways Code section 1484. It alleges that East Mountain Drive is a County Highway, within the meaning of Streets & Highways Code section 1480, and that each of the cross-Defendants maintain encroachments on East Mountain Drive, as that term is defined by Streets & Highways Code section 1450, without having a permit to do so.

It alleges further that maintaining an encroachment without a permit is a public nuisance per se pursuant to section 1484 and common law, which can be enjoined in a civil action. The County Road Commission, by notice, required the removal of cross-Defendants’ unpermitted encroachments from East Mountain Drive, but they have refused to remove or allow the removal of the unpermitted encroachments.

The County Road Commissioner has commenced this action in the name of the County, to abate the unpermitted encroachments as a public nuisance, as provided in Section 1484, and to enjoin their continued maintenance.

The prayer seeks, among other things, the imposition of civil penalties of $350/day against each cross-Defendant for each day that the encroachments remain after service or posting of notice.

Cross-Defendants’ demurrer contends that the cause of action necessarily fails, because the statutory claim depends upon the provision of notice, the Court required County to withdraw the notices which had been provided, and County in fact withdrew the notices.

County responds that the demurrer confirms that cross-Defendants received notice compliant with Section 1482, and cross-Defendants (a) provided no authority to support their assumption that notice is jurisdictional, (b) do not intend to cure the violations, which would make notice irrelevant; and (c) waived notice. 

Section 1480(a) defines a “highway” to include all or any part of the entire width of right of way of a county highway, whether or not such entire area is actually used for highway purposes. Subdivision (b) defines “encroachment” to include any structure or object of any kind or character placed, without the authority of law, either in, under or over any county highway.

Section 1480.5 authorizes the road commissioner to immediately remove, or by notice require the removal of, specific types of encroachments articulated therein. Section 1481 provides that the road commissioner may, by notice, require the removal of any other encroachment not specified in Section 1480.5 from any county highway.

Pursuant to section 1482, any such notice shall be served upon the occupant or owner of the land, or the person causing, controlling or owning the encroachment, or shall be left at the place of residence of such occupant, owner or person if he resides in the county and is known to the person giving such notice.

If the person lives outside the county, the notice must be posted on the encroachment. The notice must specify the breadth of the highway, the place and extent of the encroachment, and must require removal of the encroachment within 10 days.

Pursuant to Section 1483, if the encroachment is not removed, or its removal is not commenced and diligently prosecuted, prior to the expiration of 10 days after service or posting of the notice, the person causing, owning, or controlling the encroachment forfeits $350 for each day the encroachment continues unremoved.

Section 1484 provides that, if the encroachment is denied, and the owner or occupant of the land, or the person causing, owning or controlling the alleged encroachment refuses to either remove it or permit its removal, the road commissioner shall commence an action in the name of the county to abate the encroachment as a nuisance.

If judgment is received, the commissioner may, in addition to having the nuisance abated, recover a penalty of $350/day for each day the nuisance remained after service or posting of notice, and also costs in the action, as provided in section 1496 (which requires any recovered penalties to be paid into the road fund).

This Court agrees with the cross-Defendants that any action brought pursuant to these provisions of the Streets and Highways Code, can only be brought after service upon them of a valid notice pursuant to Section 1482. The Court further agrees with cross-Defendants that the County’s withdrawal of the notice that it had served upon them—regardless of whether it was made voluntarily or solely to comply with the order of this Court compelling it to do so—means that there exists no valid notice to support any cause of action against them pursuant to the provisions of the Streets and Highways Code, and no valid notice to support any request for daily penalties under the statutory scheme.

The Court will – again -- sustain the demurrer to the first cause of action.

The Court will make the rulings requested by County on all other issues.