Preview
ROBERT H. PITTMAN #172154
County Counsel
IVAN R. JIMENEZ #313644
Deputy County Counsel
County of Sonoma
575 Administration Drive, Room 105
Santa Rosa, California 95403
Telephone: (707) 565-2421
Fax: (707) 565-2624
Ivan.Jimenez@sonoma-county.org
Attorneys for Plaintiff
COUNTY OF SONOMA
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SONOMA
11
12
COUNTY OF SONOMA, Case No. 23CV02161
13
Plaintiff,
14 MEMORANDUM OF POINTS AND
15 Vv. AUTHORITIES IN SUPPORT OF COUNTY
OF SONOMA’S EX PARTE APPLICATION
16 DAVID SCOTT HANSEN AND FOR A TEMPORARY RESTRAINING
REGINA VICTORIA HANSEN AS ORDER AND ORDER TO SHOW CAUSE
17
TRUSTEES OF THE HANSEN, FOR A PRELIMINARY INJUNCTION
18 FAMILY TRUST, DATED MARCH
16, 2011, AND THE HANSEN Date: January 18, 2024
19 FAMILY TRUST, DATED MARCH Time: 10:30 a.m.
16, 2011, and DOES 1 through 20, Dept. 18
20
inclusive, Honorable Christopher M. Honigsberg
21
Defendants.
22
23 I INTRODUCTION
24
Plaintiff County of Sonoma (“the County”) hereby submits this Ex Parte Application for a
25
Temporary Restraining Order (“TRO”) immediately enjoining Defendants David Scott Hansen and
26
Regina Victoria Hansen, Trustees of the Hansen Family Trust Dated March 16, 2011, and the
27
Hansen Family Trust Dated March 16, 2011 (collectively “Defendants”) and their employees,
28
County’s Ex Parte for TRO and OSC
agents, representatives, successors, and assigns, and all those acting in concert with them, from
creating any violations of the Sonoma County Building, Grading, Septic, or Zoning Codes or
regulations on the real property known as 8404 Brand Lane, Penngrove, California, Assessor Parcel
Number 047-202-044 (“the Property”), expanding the current violations that exist on the Property,
and engaging in any unpermitted construction, unpermitted grading, or unpermitted occupancy of
travel trailers on the Property. The Ex Parte Application also requests an Order to Show Cause
why a preliminary injunction should not issue (“OSC”), extending the TRO until the Court issues a
judgment in the pending public nuisance action filed by the County against Defendants.!
Violations of the Sonoma County Building, Grading, and Zoning Codes have existed on the
10
Property since June 2022.7 Defendants have refused to comply with an Administrative Decision
11
and Order, have violated a Stop Work Order, and have created more than 10 additional violations
12
on the Property after the Administrative Order and Stop Work Order were issued. Thus, a TRO is
13
necessary to immediately enjoin Defendants from continuing to violate the Sonoma County Code
14
1S (“SCC”), creating additional violations, and engaging in any unpermitted activity or uses on the
16 Property. Likewise, an OSC is necessary to enjoin Defendants from violating the SCC, pending
17 resolution of the public nuisance action.
18 The County has a strong likelihood of prevailing on the merits of the underlying public
19 nuisance action and balancing the parties’ respective harms if injunctive relief is issued/denied
20 weighs heavily in favor of issuing injunctive relief. Therefore, the Court should issue the TRO and
21 OSC requested herein.
22 IL. PERTINENT FACTS
23 On June 24, 2022, and June 30, 2022, the Sonoma County Permit and Resources
24
Management Department (“Permit Sonoma”) issued a Building Code violation due to an
25
unpermitted diesel fuel storage tank (“Unpermitted Tank”) and a Grading Code violation due to
26
27 1 The County filed a Complaint for enforcement of the administrative order, abatement of public nuisance, and for
costs and penalties with this Court, but as of the date of the filing of this Ex Parte, the Complaint has not been served
28 on Defendants.
? References to the Building, Grading, and Zoning Codes are to the Sonoma County Codes.
County’s Ex Parte for TRO and OSC
hazardous grading of excavating under a residence (“Hazardous Grading”), on the Property. Permit
Sonoma also issued a violation for unpermitted construction of a basement after receiving
complaints of an unpermitted framed structure placed underground and observing a large cut in the
ground, but subsequently closed this violation after Defendants informed Permit Sonoma they did
not intend to build a basement.
On November 3, 2022, an administrative hearing occurred to consider Defendants’ appeal
of the violations of Unpermitted Tank and Hazardous Grading. Defendants were represented by
counsel and submitted evidence and testimony during this hearing. On December 16, 2022, an
Administrative Hearing Decision and Order (“Admin Order’) was issued, which upheld the
10
County’s determinations. (See Exhibit 1 to Declaration of Nathan Peacock.) Pursuant to the
11
Admin Order, Defendants had to apply for permits to abate the Unpermitted Tank and Hazardous
12
Grading, reimburse the County its abatement costs incurred in the administrative process, and pay
13
civil penalties for the violations.
14
15 Defendants did not seek judicial review of the Admin Order. (Declaration of Ivan
16 Jimenez.) As of the date of the filing of this Ex Parte Application, Defendants have not complied
17 with any portion of the Admin Order — they have not abated the Unpermitted Tank or Hazardous
18 Grading and have not paid costs or penalties ordered. (Decl. of N. Peacock.)
19 On October 20, 2023, Permit Sonoma issued a Building Code violation due to unpermitted
20 construction of an accessory structure (“Unpermitted Construction”) and a Zoning Code violation
21 due to junkyard conditions (“Junkyard Conditions”) (collectively “October 2023 Violations”).
22 (Exhibits 2-4 to Decl. of N. Peacock.) On October 24, 2023, Defendants timely appealed these
23 violations. In their appeal, Defendants allege a well permit authorizes the construction activity
24 occurring on the Property as well as Defendants’ planned construction of adding water tanks,
25
electrical, pipes, a shed, two 1,000-gallon diesel tanks, and a backup generator, among other work.
26
(See Exhibit 5 to Decl. of N. Peacock.) On November 3, 2023, Permit Sonoma issued a Stop Work
27
Order indicating that Defendants must immediately stop all unpermitted construction on the
28
Property and reminding Defendants that permits are required prior to construction activities
County’s Ex Parte for TRO and OSC
resuming. (Exhibit 7 to Decl. of N. Peacock.) On December 14, 2023, Permit Sonoma obtained
imagery showing that Defendants violated the Stop Work Order, continued building the above-
ground structure, Junkyard Conditions continue to exist on the Property, and that Defendants are
trenching throughout the Property. (Decl. of N. Peacock.)
On December 29, 2023, Permit Sonoma applied for an Inspection Warrant from this Court.
On January 2, 2024, the Court issued the requested Inspection Warrant. (Exhibit 8 to Decl. of N.
Peacock.) On January 10, 2024, Permit Sonoma executed the Inspection Warrant and issued the
following previously unidentified violations on the Property: unpermitted water tank in violation of
the Building Code, three violations of the Building Code due to unpermitted electrical and
10
plumbing in three accessory structures, unpermitted construction of a subterranean mechanical
il
room with hazardous electrical in violation of the Building Code, two violations of the Building
12
Code due to unpermitted construction of two accessory structures within 50 feet of each other, a
13
dangerous building in violation of the Building Code, a Zoning Code violation due to unpermitted
14
occupancy of a travel trailer, and a Grading Code violation due to unpermitted trenching of 70
15
16 cubic yards (collectively “January 2024 Violations”). (Exhibits 11 and 12 Decl. of N. Peacock.)
17 Permit Sonoma also confirmed the October 2023 Violations remained on the Property. (Decl. of N.
18 Peacock.)
19 As of the date of the filing of this Ex Parte Application, Defendants have not abated any
20 violations issued by Permit Sonoma on the Property.
21 TIL. STANDARD OF REVIEW
22 “Where a governmental entity seeking to enjoin the alleged violation of an ordinance which
23 specifically provides for injunctive relief establishes that it is reasonably probable it will prevail on
24 the merits, a rebuttable presumption arises that the potential harm to the public outweighs the
25
potential harm to the defendant.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 72
26
(emphasis added).) If the nonmoving party shows “it would suffer grave or irreparable harm from
27
the issuance of the preliminary injunction, the court must then examine the relative actual harms to
28
County’s Ex Parte for TRO and OSC
the parties[,]” weigh the degree of certainty in the outcome on the merits with the relative harm to
the parties, and rule on the injunctive relief requested. (/d., at 72.)
IV. ARGUMENT
A. The Court Should Issue the Requested TRO and OSC Because the County Has a
Strong Likelihood of Prevailing on the Merits of the Underlying Nuisance Action.
Injunctive relief is appropriate because the County can meet its burden of demonstrating it
is reasonably probable to prevail on the merits of the pending nuisance abatement action. Section
1-7 of the SCC authorizes the County to seek injunctive relief to enjoin the violation of any
provision of the SCC. Therefore, the County only needs to show it is reasonably probable to
10 prevail on the merits of the pending nuisance action to create a presumption that the harm to the
11 public if injunctive relief is denied outweighs the harm to Defendants if injunctive relief is granted.
12 UT Corp., supra, at 72.)
13 Not only is the County reasonably probable to prevail on the merits of the underlying
14 nuisance action, but it has a strong likelihood of prevailing on the merits. The County’s nuisance
15 action is for enforcement of the Admin Order, abatement of public nuisances, and for costs and
16
civil penalties associated with the nuisances. Defendants did not seek judicial review of the Admin
17
Order within 90 days of service, pursuant to Code of Civil Procedure sections 1094.5 and 1094.6.
18
Therefore, the County will prevail on the merits of the causes of action related to enforcement of
19
the Admin Order.
20
The County also has a strong likelihood of succeeding on the merits of the causes of
21
action seeking abatement of public nuisances. When a law expressly declares something to be
22
a nuisance, the mere existence of that condition is a nuisance per se and no inquiry beyond its
23
existence is necessary to establish the nuisance. (Beck Development Co. v. Southern Pacific
24
Transportation Co. (1996) 44 Cal.App.4th 1160, 1206-07.) Pursuant to SCC section 1-7,
25
26 every violation of the SCC constitutes a public nuisance. As stated in the Declaration of
27 Inspector Peacock, Defendants have created multiple violations of the SCC on the Property in
28 violation of the Building, Grading, and Zoning Codes. The Unpermitted Tank and Hazardous
County’s Ex Parte for TRO and OSC.
Grading are final determinations and their existence cannot be contested. The County’s
evidence regarding the October 2023 and January 2024 Violations clearly shows Defendants
have created multiple public nuisances on the Property. (See Exhibits 3, 4, 9, 10, 12 to Decl.
of N. Peacock.) It is undisputable that Defendants did not have active building, grading, or
zoning permits that authorized the construction, grading, and other activity and uses on the
Property, at the time the October 2023 and January 2024 Violations were issued. (Decl. of N.
Peacock.) Thus, the County will most likely succeed on the merits.
Defendants have attempted to dispute the October 2023 and January 2024 Violations by
alleging a well permit authorizes the unpermitted activity and uses on the Property. (Exh. 5 to
10
Decl. of N. Peacock.) However, Defendants’ consultant filed a well completion report in
ll
November 2022, indicating all work authorized under the well permit had been completed by
12
November 10, 2022. (Exh. 6 to Decl. of N. Peacock.) Therefore, Defendants’ purported
13
defense is not cognizable. The existence of the violations proves Defendants have created
14
public nuisances and the lack of a cognizable defense indicates the County has a strong
1s
likelihood of succeeding on the merits in the nuisance action. Given the County’s strong
16
17 likelihood of succeeding on the merits, the Court should issue the requested injunctive relief.
18 B. Balancing the Parties’ Harms Weighs in Favor of Issuing the TRO and OSC
Because Injunctive Relief Will Not Cause Defendants to Suffer Any Harm, Let
19 Alone Irreparable Harm.
20 The Court should also issue the TRO and preliminary injunction because injunctive relief
21 will not cause Defendants to suffer any harm. A TRO and preliminary injunction will require
22 Defendants to stop violating the County’s ordinances. Being restrained from violating the law is
23 not a cognizable harm, indicating that Defendants will not suffer irreparable harm ifa TRO and
24 preliminary injunction are issued.
25 Defendants have previously alleged their unpermitted activity is part of a fire suppression
26
system. (Exh. 5 to Decl. of N. Peacock.) Therefore, Defendants may allege that injunctive relief
27
will cause irreparable harm by increasing the likelihood a wildfire might damage the Property.
28
Such harm, if alleged, is purely speculative. There is no imminent danger of a wildfire or
County’s Ex Parte for TRO and OSC
reasonable basis to believe that fire suppression agencies would not respond to a wildfire, to protect
the Property. Admittedly, wildfires are difficult to predict and could cause significant damage.
However, pecuniary compensation could remedy any such damage, indicating that even this
speculative harm cannot constitute irreparable harm. (See DVD Copy Control Assn., Inc. v.
Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 722.)
Defendants cannot meet their burden of showing they will suffer irreparable harm if a TRO
and/or preliminary injunction are issued. Therefore, the Court does not need to balance the parties’
harms and should grant injunctive relief solely because the County is reasonably probable to
succeed on the merits. (See /T Corp., supra, at 72.)
10
Even if injunctive relief would cause Defendants to suffer irreparable harm, balancing the
il
relative harms of the parties supports the issuance of a TRO and preliminary injunction. Public
12
interest will suffer if the Court denies the County’s requested injunctive relief. “The public has a
13
strong and vital interest in the enforcement of the land use laws enacted by its elected
14
representatives[.]” (Schafer v. City of Los Angeles (2015), 237 Cal.App.4th 1250, 1265.) Public
15
16 policy will be adversely affected if the “legally established substantive and procedural requirements
17 for obtaining permits[,]” are ignored. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 313.)
18 The Building and Grading Codes require Defendants to obtain permits before engaging in any
19 construction or grading on the Property. (SCC sections 7-5 and 11.04.010.) The Zoning Code
20 prohibits Defendants from engaging in unpermitted uses on the Property. (SCC section 26-92-
21 200.) By engaging in unpermitted construction, grading, and uses on the Property, Defendants
22 have violated the County’s laws and the public is being harmed.
23 In addition, without a TRO, there is a risk of irreparable injury to the health and safety of
24 the public. The protection of health and safety is the primary issue in the adoption of building
25
codes that regulate the construction, repair, and occupancy of buildings and other structures.
26
(Schilling & Hare, Code Enforcement: A Comprehensive Approach, p. 20.) The County’s
27
Building, Grading, and Zoning Codes are meant to protect the public health, safety, and general
28
welfare. (See SCC sections 7-1, 11.02.020, and 26-02-010 (describing the purpose of the Sonoma
County’s Ex Parte for TRO and OSC
County Building, Grading, and Zoning Codes).) In fact, Permit Sonoma has observed hazardous
electrical and a dangerous building with buckling support beams. (Decl. of N. Peacock.) These
violations pose a danger not only to any individual who enters the unpermitted underground
structure, but to the neighboring community as hazardous electrical can create a risk of wildfire.
(Decl. of N. Peacock.) Therefore, the public interest will be harmed if the Court denies the
requested TRO and OSC.
Balancing the harm to public interest if injunctive relief is not issued with the nonexistent
harm to Defendants if injunctive relief is issued, weighs strongly in favor of granting injunctive
relief. Therefore, the Court should issue the requested TRO and preliminary injunction.
10
C. A TRO and OSC Are Necessary Because Defendants Have Demonstrated a Pattern
11 of Disregard for the County’s Ordinances, the Administrative Order, and a Stop
12 Work Order.
The Court has discretion to issue injunctive relief at any point prior to a judgment on the
13
14 merits if grounds exist, as demonstrated in affidavits. (Code of Civ. Proc. § 527.) The Court
15 should issue the requested TRO and OSC immediately because Defendants have violated the
16 County’s Ordinances and Stop Work Order, and have refused to comply with the Admin Order.
17 (Decl. of N. Peacock.) In addition, the County provided timely notice of this Ex Parte to
18 Defendants. (Decl. of I. Jimenez.) As a government agency, the County is not required to post a
19 bond or make an undertaking. (See Cal. Code Civ. Proc. §§ 529, subd. (b)(3) and 995.220, subd.
20 (b).) Therefore, the requested TRO and preliminary injunction are necessary and appropriate.
21
Vv. CONCLUSION
22 Based on the foregoing, the County respectfully requests the Court issue a TRO
23
immediately enjoining Defendants and their employees, agents, representatives, successors, and
24
assigns from expanding the current violations or creating new violations of the SCC on the
25
Property, and set an OSC why a preliminary injunction should not issue to enjoin Defendants and
26
their employees, agents, representatives, successors, and assigns from expanding the current
27
28
County’s Ex Parte for TRO and OSC
1 violations or creating new violations of the SCC on the Property, pending resolution of the pending
2 || public nuisance action filed by the County against Defendants.
3
4 Dated: January 18, 2024 ROBERT H. PITTMAN, Sonoma County Counsel
5
By
Iv: R. Jims
Attorneys forPlaintiffs
COUNTY OF SONOMA
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
County’s Ex Parte for TRO and OSC
Preview
ROBERT H. PITTMAN #172154 County Counsel IVAN R. JIMENEZ #313644 Deputy County Counsel County of Sonoma 575 Administration Drive, Room 105 Santa Rosa, California 95403 Telephone: (707) 565-2421 Fax: (707) 565-2624 Ivan.Jimenez@sonoma-county.org Attorneys for Plaintiff COUNTY OF SONOMA SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SONOMA 11 12 COUNTY OF SONOMA, Case No. 23CV02161 13 Plaintiff, 14 MEMORANDUM OF POINTS AND 15 Vv. AUTHORITIES IN SUPPORT OF COUNTY OF SONOMA’S EX PARTE APPLICATION 16 DAVID SCOTT HANSEN AND FOR A TEMPORARY RESTRAINING REGINA VICTORIA HANSEN AS ORDER AND ORDER TO SHOW CAUSE 17 TRUSTEES OF THE HANSEN, FOR A PRELIMINARY INJUNCTION 18 FAMILY TRUST, DATED MARCH 16, 2011, AND THE HANSEN Date: January 18, 2024 19 FAMILY TRUST, DATED MARCH Time: 10:30 a.m. 16, 2011, and DOES 1 through 20, Dept. 18 20 inclusive, Honorable Christopher M. Honigsberg 21 Defendants. 22 23 I INTRODUCTION 24 Plaintiff County of Sonoma (“the County”) hereby submits this Ex Parte Application for a 25 Temporary Restraining Order (“TRO”) immediately enjoining Defendants David Scott Hansen and 26 Regina Victoria Hansen, Trustees of the Hansen Family Trust Dated March 16, 2011, and the 27 Hansen Family Trust Dated March 16, 2011 (collectively “Defendants”) and their employees, 28 County’s Ex Parte for TRO and OSC agents, representatives, successors, and assigns, and all those acting in concert with them, from creating any violations of the Sonoma County Building, Grading, Septic, or Zoning Codes or regulations on the real property known as 8404 Brand Lane, Penngrove, California, Assessor Parcel Number 047-202-044 (“the Property”), expanding the current violations that exist on the Property, and engaging in any unpermitted construction, unpermitted grading, or unpermitted occupancy of travel trailers on the Property. The Ex Parte Application also requests an Order to Show Cause why a preliminary injunction should not issue (“OSC”), extending the TRO until the Court issues a judgment in the pending public nuisance action filed by the County against Defendants.! Violations of the Sonoma County Building, Grading, and Zoning Codes have existed on the 10 Property since June 2022.7 Defendants have refused to comply with an Administrative Decision 11 and Order, have violated a Stop Work Order, and have created more than 10 additional violations 12 on the Property after the Administrative Order and Stop Work Order were issued. Thus, a TRO is 13 necessary to immediately enjoin Defendants from continuing to violate the Sonoma County Code 14 1S (“SCC”), creating additional violations, and engaging in any unpermitted activity or uses on the 16 Property. Likewise, an OSC is necessary to enjoin Defendants from violating the SCC, pending 17 resolution of the public nuisance action. 18 The County has a strong likelihood of prevailing on the merits of the underlying public 19 nuisance action and balancing the parties’ respective harms if injunctive relief is issued/denied 20 weighs heavily in favor of issuing injunctive relief. Therefore, the Court should issue the TRO and 21 OSC requested herein. 22 IL. PERTINENT FACTS 23 On June 24, 2022, and June 30, 2022, the Sonoma County Permit and Resources 24 Management Department (“Permit Sonoma”) issued a Building Code violation due to an 25 unpermitted diesel fuel storage tank (“Unpermitted Tank”) and a Grading Code violation due to 26 27 1 The County filed a Complaint for enforcement of the administrative order, abatement of public nuisance, and for costs and penalties with this Court, but as of the date of the filing of this Ex Parte, the Complaint has not been served 28 on Defendants. ? References to the Building, Grading, and Zoning Codes are to the Sonoma County Codes. County’s Ex Parte for TRO and OSC hazardous grading of excavating under a residence (“Hazardous Grading”), on the Property. Permit Sonoma also issued a violation for unpermitted construction of a basement after receiving complaints of an unpermitted framed structure placed underground and observing a large cut in the ground, but subsequently closed this violation after Defendants informed Permit Sonoma they did not intend to build a basement. On November 3, 2022, an administrative hearing occurred to consider Defendants’ appeal of the violations of Unpermitted Tank and Hazardous Grading. Defendants were represented by counsel and submitted evidence and testimony during this hearing. On December 16, 2022, an Administrative Hearing Decision and Order (“Admin Order’) was issued, which upheld the 10 County’s determinations. (See Exhibit 1 to Declaration of Nathan Peacock.) Pursuant to the 11 Admin Order, Defendants had to apply for permits to abate the Unpermitted Tank and Hazardous 12 Grading, reimburse the County its abatement costs incurred in the administrative process, and pay 13 civil penalties for the violations. 14 15 Defendants did not seek judicial review of the Admin Order. (Declaration of Ivan 16 Jimenez.) As of the date of the filing of this Ex Parte Application, Defendants have not complied 17 with any portion of the Admin Order — they have not abated the Unpermitted Tank or Hazardous 18 Grading and have not paid costs or penalties ordered. (Decl. of N. Peacock.) 19 On October 20, 2023, Permit Sonoma issued a Building Code violation due to unpermitted 20 construction of an accessory structure (“Unpermitted Construction”) and a Zoning Code violation 21 due to junkyard conditions (“Junkyard Conditions”) (collectively “October 2023 Violations”). 22 (Exhibits 2-4 to Decl. of N. Peacock.) On October 24, 2023, Defendants timely appealed these 23 violations. In their appeal, Defendants allege a well permit authorizes the construction activity 24 occurring on the Property as well as Defendants’ planned construction of adding water tanks, 25 electrical, pipes, a shed, two 1,000-gallon diesel tanks, and a backup generator, among other work. 26 (See Exhibit 5 to Decl. of N. Peacock.) On November 3, 2023, Permit Sonoma issued a Stop Work 27 Order indicating that Defendants must immediately stop all unpermitted construction on the 28 Property and reminding Defendants that permits are required prior to construction activities County’s Ex Parte for TRO and OSC resuming. (Exhibit 7 to Decl. of N. Peacock.) On December 14, 2023, Permit Sonoma obtained imagery showing that Defendants violated the Stop Work Order, continued building the above- ground structure, Junkyard Conditions continue to exist on the Property, and that Defendants are trenching throughout the Property. (Decl. of N. Peacock.) On December 29, 2023, Permit Sonoma applied for an Inspection Warrant from this Court. On January 2, 2024, the Court issued the requested Inspection Warrant. (Exhibit 8 to Decl. of N. Peacock.) On January 10, 2024, Permit Sonoma executed the Inspection Warrant and issued the following previously unidentified violations on the Property: unpermitted water tank in violation of the Building Code, three violations of the Building Code due to unpermitted electrical and 10 plumbing in three accessory structures, unpermitted construction of a subterranean mechanical il room with hazardous electrical in violation of the Building Code, two violations of the Building 12 Code due to unpermitted construction of two accessory structures within 50 feet of each other, a 13 dangerous building in violation of the Building Code, a Zoning Code violation due to unpermitted 14 occupancy of a travel trailer, and a Grading Code violation due to unpermitted trenching of 70 15 16 cubic yards (collectively “January 2024 Violations”). (Exhibits 11 and 12 Decl. of N. Peacock.) 17 Permit Sonoma also confirmed the October 2023 Violations remained on the Property. (Decl. of N. 18 Peacock.) 19 As of the date of the filing of this Ex Parte Application, Defendants have not abated any 20 violations issued by Permit Sonoma on the Property. 21 TIL. STANDARD OF REVIEW 22 “Where a governmental entity seeking to enjoin the alleged violation of an ordinance which 23 specifically provides for injunctive relief establishes that it is reasonably probable it will prevail on 24 the merits, a rebuttable presumption arises that the potential harm to the public outweighs the 25 potential harm to the defendant.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 72 26 (emphasis added).) If the nonmoving party shows “it would suffer grave or irreparable harm from 27 the issuance of the preliminary injunction, the court must then examine the relative actual harms to 28 County’s Ex Parte for TRO and OSC the parties[,]” weigh the degree of certainty in the outcome on the merits with the relative harm to the parties, and rule on the injunctive relief requested. (/d., at 72.) IV. ARGUMENT A. The Court Should Issue the Requested TRO and OSC Because the County Has a Strong Likelihood of Prevailing on the Merits of the Underlying Nuisance Action. Injunctive relief is appropriate because the County can meet its burden of demonstrating it is reasonably probable to prevail on the merits of the pending nuisance abatement action. Section 1-7 of the SCC authorizes the County to seek injunctive relief to enjoin the violation of any provision of the SCC. Therefore, the County only needs to show it is reasonably probable to 10 prevail on the merits of the pending nuisance action to create a presumption that the harm to the 11 public if injunctive relief is denied outweighs the harm to Defendants if injunctive relief is granted. 12 UT Corp., supra, at 72.) 13 Not only is the County reasonably probable to prevail on the merits of the underlying 14 nuisance action, but it has a strong likelihood of prevailing on the merits. The County’s nuisance 15 action is for enforcement of the Admin Order, abatement of public nuisances, and for costs and 16 civil penalties associated with the nuisances. Defendants did not seek judicial review of the Admin 17 Order within 90 days of service, pursuant to Code of Civil Procedure sections 1094.5 and 1094.6. 18 Therefore, the County will prevail on the merits of the causes of action related to enforcement of 19 the Admin Order. 20 The County also has a strong likelihood of succeeding on the merits of the causes of 21 action seeking abatement of public nuisances. When a law expressly declares something to be 22 a nuisance, the mere existence of that condition is a nuisance per se and no inquiry beyond its 23 existence is necessary to establish the nuisance. (Beck Development Co. v. Southern Pacific 24 Transportation Co. (1996) 44 Cal.App.4th 1160, 1206-07.) Pursuant to SCC section 1-7, 25 26 every violation of the SCC constitutes a public nuisance. As stated in the Declaration of 27 Inspector Peacock, Defendants have created multiple violations of the SCC on the Property in 28 violation of the Building, Grading, and Zoning Codes. The Unpermitted Tank and Hazardous County’s Ex Parte for TRO and OSC. Grading are final determinations and their existence cannot be contested. The County’s evidence regarding the October 2023 and January 2024 Violations clearly shows Defendants have created multiple public nuisances on the Property. (See Exhibits 3, 4, 9, 10, 12 to Decl. of N. Peacock.) It is undisputable that Defendants did not have active building, grading, or zoning permits that authorized the construction, grading, and other activity and uses on the Property, at the time the October 2023 and January 2024 Violations were issued. (Decl. of N. Peacock.) Thus, the County will most likely succeed on the merits. Defendants have attempted to dispute the October 2023 and January 2024 Violations by alleging a well permit authorizes the unpermitted activity and uses on the Property. (Exh. 5 to 10 Decl. of N. Peacock.) However, Defendants’ consultant filed a well completion report in ll November 2022, indicating all work authorized under the well permit had been completed by 12 November 10, 2022. (Exh. 6 to Decl. of N. Peacock.) Therefore, Defendants’ purported 13 defense is not cognizable. The existence of the violations proves Defendants have created 14 public nuisances and the lack of a cognizable defense indicates the County has a strong 1s likelihood of succeeding on the merits in the nuisance action. Given the County’s strong 16 17 likelihood of succeeding on the merits, the Court should issue the requested injunctive relief. 18 B. Balancing the Parties’ Harms Weighs in Favor of Issuing the TRO and OSC Because Injunctive Relief Will Not Cause Defendants to Suffer Any Harm, Let 19 Alone Irreparable Harm. 20 The Court should also issue the TRO and preliminary injunction because injunctive relief 21 will not cause Defendants to suffer any harm. A TRO and preliminary injunction will require 22 Defendants to stop violating the County’s ordinances. Being restrained from violating the law is 23 not a cognizable harm, indicating that Defendants will not suffer irreparable harm ifa TRO and 24 preliminary injunction are issued. 25 Defendants have previously alleged their unpermitted activity is part of a fire suppression 26 system. (Exh. 5 to Decl. of N. Peacock.) Therefore, Defendants may allege that injunctive relief 27 will cause irreparable harm by increasing the likelihood a wildfire might damage the Property. 28 Such harm, if alleged, is purely speculative. There is no imminent danger of a wildfire or County’s Ex Parte for TRO and OSC reasonable basis to believe that fire suppression agencies would not respond to a wildfire, to protect the Property. Admittedly, wildfires are difficult to predict and could cause significant damage. However, pecuniary compensation could remedy any such damage, indicating that even this speculative harm cannot constitute irreparable harm. (See DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 722.) Defendants cannot meet their burden of showing they will suffer irreparable harm if a TRO and/or preliminary injunction are issued. Therefore, the Court does not need to balance the parties’ harms and should grant injunctive relief solely because the County is reasonably probable to succeed on the merits. (See /T Corp., supra, at 72.) 10 Even if injunctive relief would cause Defendants to suffer irreparable harm, balancing the il relative harms of the parties supports the issuance of a TRO and preliminary injunction. Public 12 interest will suffer if the Court denies the County’s requested injunctive relief. “The public has a 13 strong and vital interest in the enforcement of the land use laws enacted by its elected 14 representatives[.]” (Schafer v. City of Los Angeles (2015), 237 Cal.App.4th 1250, 1265.) Public 15 16 policy will be adversely affected if the “legally established substantive and procedural requirements 17 for obtaining permits[,]” are ignored. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 313.) 18 The Building and Grading Codes require Defendants to obtain permits before engaging in any 19 construction or grading on the Property. (SCC sections 7-5 and 11.04.010.) The Zoning Code 20 prohibits Defendants from engaging in unpermitted uses on the Property. (SCC section 26-92- 21 200.) By engaging in unpermitted construction, grading, and uses on the Property, Defendants 22 have violated the County’s laws and the public is being harmed. 23 In addition, without a TRO, there is a risk of irreparable injury to the health and safety of 24 the public. The protection of health and safety is the primary issue in the adoption of building 25 codes that regulate the construction, repair, and occupancy of buildings and other structures. 26 (Schilling & Hare, Code Enforcement: A Comprehensive Approach, p. 20.) The County’s 27 Building, Grading, and Zoning Codes are meant to protect the public health, safety, and general 28 welfare. (See SCC sections 7-1, 11.02.020, and 26-02-010 (describing the purpose of the Sonoma County’s Ex Parte for TRO and OSC County Building, Grading, and Zoning Codes).) In fact, Permit Sonoma has observed hazardous electrical and a dangerous building with buckling support beams. (Decl. of N. Peacock.) These violations pose a danger not only to any individual who enters the unpermitted underground structure, but to the neighboring community as hazardous electrical can create a risk of wildfire. (Decl. of N. Peacock.) Therefore, the public interest will be harmed if the Court denies the requested TRO and OSC. Balancing the harm to public interest if injunctive relief is not issued with the nonexistent harm to Defendants if injunctive relief is issued, weighs strongly in favor of granting injunctive relief. Therefore, the Court should issue the requested TRO and preliminary injunction. 10 C. A TRO and OSC Are Necessary Because Defendants Have Demonstrated a Pattern 11 of Disregard for the County’s Ordinances, the Administrative Order, and a Stop 12 Work Order. The Court has discretion to issue injunctive relief at any point prior to a judgment on the 13 14 merits if grounds exist, as demonstrated in affidavits. (Code of Civ. Proc. § 527.) The Court 15 should issue the requested TRO and OSC immediately because Defendants have violated the 16 County’s Ordinances and Stop Work Order, and have refused to comply with the Admin Order. 17 (Decl. of N. Peacock.) In addition, the County provided timely notice of this Ex Parte to 18 Defendants. (Decl. of I. Jimenez.) As a government agency, the County is not required to post a 19 bond or make an undertaking. (See Cal. Code Civ. Proc. §§ 529, subd. (b)(3) and 995.220, subd. 20 (b).) Therefore, the requested TRO and preliminary injunction are necessary and appropriate. 21 Vv. CONCLUSION 22 Based on the foregoing, the County respectfully requests the Court issue a TRO 23 immediately enjoining Defendants and their employees, agents, representatives, successors, and 24 assigns from expanding the current violations or creating new violations of the SCC on the 25 Property, and set an OSC why a preliminary injunction should not issue to enjoin Defendants and 26 their employees, agents, representatives, successors, and assigns from expanding the current 27 28 County’s Ex Parte for TRO and OSC 1 violations or creating new violations of the SCC on the Property, pending resolution of the pending 2 || public nuisance action filed by the County against Defendants. 3 4 Dated: January 18, 2024 ROBERT H. PITTMAN, Sonoma County Counsel 5 By Iv: R. Jims Attorneys forPlaintiffs COUNTY OF SONOMA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 County’s Ex Parte for TRO and OSC