Opinion
A146586
09-20-2019
COUNTY OF NAPA, Plaintiff and Respondent, v. BRIAN R. SILVER, ET AL., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 26-66540)
This appeal arises from a public nuisance abatement action. Respondent's nuisance abatement efforts with respect to appellants' vineyard began in 2010, but this dispute stems from a nuisance abatement notice that respondent issued to appellants in 2015. Dissatisfied with appellants' response, respondent brought suit against appellants to abate public nuisances caused by abandoned or neglected plants or crops that are host plants of, or provide a favorable or likely harbor for, any pest (Food & Agr. Code, § 5551, subd. (c) and Napa County Code, § 8.42.020) and by "[o]vergrown, dead, decayed or diseased trees, weeds and other vegetation that . . . . [¶] [i]s likely to harbor rats, vermin, and other similar nuisances" (Napa County Code, § 1.20.022(A)(1)).
All further statutory references are to the Food and Agriculture Code unless otherwise specified.
Pursuant to an infrequently utilized statutory scheme in Chapter 7 of Division 4 of the Food and Agriculture Code, the trial court issued an order to show cause why the abandoned and neglected plants or crops alleged to be a public nuisance should not be removed or destroyed. At the conclusion of a multi-day evidentiary hearing, the court issued an order of abatement requiring appellants to remove dead and dying plants from their vineyard and to implement and continue to adhere to a minimal farming schedule to prevent their vineyard from being a public nuisance. Appellants' first notice of appeal challenges the court's abatement order and its later order denying their request to dissolve this abatement order.
Chapter 7 of Division 4 consists of sections 5551-5555, 5561-5564, 5571-5581, 5601-5605, and 5631-5645.
The proceedings below continued while appellants' appeal was pending. In the face of appellants' noncompliance with the abatement order, the court ultimately issued an abatement warrant and allowed respondent to abate the dead and dying vines on appellants' vineyard. The court then granted respondent's motion for judgment on the pleadings on all of its claims, entered judgment with an award of prevailing party attorney's fees to respondent, and then later granted respondent prevailing party costs. Appellants amended their notice of appeal to challenge the judgment and these orders.
On appeal, appellants present the following claims of error: 1) insufficient evidence supported the court's findings that portions of appellants' vineyard contained neglected plants that were favorable or likely harbors for pests and that abatement thereof was necessary and essential; 2) the court improperly excluded impeachment evidence; 3) the court erred in denying appellants' motion to dissolve the abatement order; 4) the court erred in allowing proceedings to continue after appellants filed their first notice of appeal in violation of the automatic stay; 5) the court erred in granting respondent judgment on the pleadings; 6) the court's award of prevailing party attorney's fees and costs to respondent was improper. We conclude that appellants' challenge to the court's ruling granting judgment on the pleadings with respect to respondent's claim under Napa County Code section 1.20.022(A)(1) is moot; we otherwise reject appellants' claims of error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants have owned a vineyard in Napa Valley since 1989. Their vineyard consists of rows of grapevines planted on terraced hills and in a lower rectangular area in front of these hills. Appellants stopped farming their vineyard to produce a crop in 2010 because of the struggling economy, an accident that wrecked their tractor and spray rig, and because their vines had reached the end of their productive life.
In 2009, the European grapevine moth, a harmful vineyard pest, first appeared in Napa County, and respondent embarked upon a county-wide effort to eliminate the moth from Napa Valley. As part of this effort, respondent placed moth traps throughout vineyards in Napa County, including on appellants' vineyard
In 2010, respondent discovered a European grapevine moth on appellants' vineyard, and it declared the vineyard to be a public nuisance under section 5401. Respondent gave appellants three abatement choices: 1) spray the vineyard with pesticides; 2) pull the vineyard out; or 3) drop the crop. Appellants did not want to spray pesticides or pull the vineyard out, so they chose to drop the grapes, which was an effective abatement measure because the moth feeds exclusively on the grapevine's fruit and flowers.
Section 5401 provides: "Any premises, plants, conveyances or things which are infected or infested with any pest, or premises where any pest is found, are a public nuisance, and shall be prosecuted as such in all actions and proceedings. All remedies which are given by law for the prevention and abatement of a nuisance apply to such a public nuisance."
In 2011, respondent trapped two European grapevine moths in appellants' vineyard and gave appellants the same abatement options as in 2010. Again, appellants did not want to spray or pull out the vineyard, so they agreed to drop the fruit. In 2012, respondent provided appellants with pheromone dispensers that interrupt the mating cycle of the European grapevine moth. Appellants put out the dispensers, but they did not drop their crop, prune the vines, spray for pesticides, or mow the vineyard that year.
In 2013, respondent issued appellants a notice of public nuisance for their vineyard under section 5551. This notice stated that appellants' vineyard was in general neglect and disrepair with unpruned vines, unharvested fruit, weeds, and crumbling terraces, and the vineyard could harbor pests and diseases like powdery mildew, mealybugs, and leaf roll disease. Respondent ordered appellants to abate the nuisance by: (1) removing the vineyard, or (2) developing a detailed plan for approval that addressed removal of old, mummified grapes, pruning, mowing or removal of weeds, insecticide treatment for the European grapevine moth, and fungicide treatments for powdery mildew. Appellants met with respondent, and, as a result, pruned the lower section of their vineyard and most of the terrace. They also did some weeding and dropped the fruit.
Section 5551 provides in full: "Any neglected or abandoned plant or crop is a public nuisance in any of the following circumstances: [¶] (a) It is a menace to the agriculture of the county, district, or vicinity because of the existence of any pest, in or on it. [¶] (b) It is a menace to the agriculture of the county, district, or vicinity because of the existence of any other condition than the condition described in subdivision (a). [¶] (c) It is a host plant of, or provides a favorable or likely harbor for, any pest."
In February 2015, respondent issued another notice of public nuisance for appellants' vineyard, again under section 5551. This notice stated that appellants had done the bare minimum to abate the public nuisances on their property for years, they had not applied preventative insect or fungicide treatments, and they had neglected or abandoned their vineyard as evidenced by the same conditions observed in 2013. Respondent ordered appellants to: 1) remove the vineyard and dispose of all grape vine plant materials; or (2) develop and present a plan to provide for fungicide treatments for powdery mildew and other diseases, insecticide treatments, weed management, active farming of a commercial vineyard in accordance with standard commercial farming practices, and erosion control measures for the crumbling terraces. If appellants did not take steps to abate the nuisance within thirty days, respondent warned that it would seek a court order requiring abatement. The parties exchanged correspondence, had multiple in-person meetings, and respondent gave appellants additional time to come up with an abatement plan, but the parties ultimately did not reach any agreement.
On May 28, 2015, respondent filed a petition and complaint for abatement of a public nuisance alleging claims under section 5551 et seq. and sections 8.42.020 and 1.20.022(A)(1) of the Napa County Code. Pursuant to the procedure set out in section 5574, respondent sought an ex parte order to show cause why appellants should not be ordered to remove or destroy the abandoned or neglected plants on their vineyard, and the court issued the order and set a hearing date. Appellants opposed the setting of the order to show cause hearing and filed a verified answer to respondent's petition and complaint. The court continued the order to show cause hearing to July 2015.
Napa County Code section 8.42.010 et seq. allows the county to abate a public nuisance as defined under section 5551 pursuant to the provisions set forth in section 5551 et seq. (Napa County Code, §§ 8.42.010, 8.42.020, 8.42.030, 8.42.040.) Napa County Code section 1.20.022(A)(1) declares "[o]vergrown, dead, decayed or diseased trees, weeds and other vegetation that . . . . [¶] [i]s likely to harbor rats, vermin, and other similar nuisances" to be a public nuisance, and Napa County Code section 1.20.020(C) authorizes county counsel to bring a civil nuisance abatement action.
Following a four-day evidentiary hearing on the order to show cause, the court declared parts of appellants' vineyard to be a public nuisance under section 5551, and it ordered abatement for the neglected parts. The court also ordered appellants to adopt a minimum farming schedule and imposed enforcement conditions requiring appellants to mow the property in late spring as needed, engage in crop-eliminating pruning, monitor for pests and diseases by placing traps bi-weekly from March through September, spray fungicide and other disease controls as needed, minimally irrigate the vines for survival, remove dead or dying plants quarterly, and execute a multi-year contract with a professional vineyard manager who would manage the vineyard and report to respondent regarding appellants' compliance.
In September 2015, contending that the court's abatement order constituted an injunctive order, appellants sought dissolution of the injunction on the ground that recent inspections had established that injunctive relief was no longer necessary. Respondent opposed the motion, and the court denied it. In October 2015, appellants appealed the court's abatement order and its order denying the motion to dissolve the injunction.
Respondent then moved for an abatement warrant based on appellants' failure to remove dead and dying vines from their vineyard. The court granted respondent's motion, and respondent abated the dead and dying vines in January 2016.
Thereafter, respondent moved for judgment on the pleadings. The court took judicial notice of its orders and records and granted judgment on the pleadings. It found that, through its initial abatement order and its order granting respondent's motion for an abatement warrant, respondent had obtained all of the relief that it sought for its claims under the Food and Agriculture Code and Napa County Code section 8.42.020; it also found that its prior orders satisfied the remaining allegations under Napa County Code section 1.20.022(A)(1). Appellants filed an amended notice of appeal from this order.
The court granted respondent's request for entry of judgment and an award of attorney's fees and also granted respondent's subsequent request for costs. Appellants filed a second amended notice of appeal from the judgment and the court's order awarding costs.
DISCUSSION
Appellants raise numerous claims of error in their appeal. We address each below, starting with appellants' central claim that insufficient evidence supported the factual findings underlying the court's abatement order. I. The Court's Findings in Support of the Abatement Order
Respondent urges us to conclude that appellants' failure to set out all of the evidence in favor of the court's findings constitutes waiver (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881), but we exercise our discretion to decide this matter on the merits.
A. The Statutory Scheme
Food and Agriculture Code section 5551 et seq. sets forth circumstances under which neglected or abandoned plants or crops constitute public nuisances and provides a special statutory procedure for abatement thereof. An abandoned or neglected plant or crop constitutes a public nuisance if: (a) it is a menace to the agriculture of the county, district, or vicinity because of the existence of any pest, in or on it; (b) it is a menace to the agriculture of the county, district, or vicinity because of the existence of any other condition than the condition described in subdivision (a); or (c) it is a host plant of, or provides a favorable or likely harbor for, any pest. (§ 5551, subd. (a)-(c).) "It is unlawful for any person to maintain any neglected or abandoned plant or crop which is a public nuisance." (§ 5553.)
" 'Pest' means any of the following things that is, or is liable to be, dangerous or detrimental to the agricultural industry of the state: (a) Any infectious, transmissible, or contagious disease of any plant, or any disorder of any plant which manifests symptoms or behavior which the director, after investigation and hearing, finds and determines is characteristic of an infectious, transmissible, or contagious disease[;] (b) Any form of animal life[;] (c) Any form of vegetable life." (§ 5006.)
If the county agriculture commissioner determines a public nuisance exists under section 5551, the county must give notice of the determination to the property owner or possessor and request that the owner/possessor abate the nuisance. (§§ 5561-5563.) If the owner/possessor does not abate the nuisance, the commissioner will submit a report to county counsel requesting the institution of civil proceedings praying for a court order to remove or destroy the neglected or abandoned crop or plant. (§§ 5555, 5571.) This judicial proceeding is initiated by petition. (§ 5573.) "Upon the filing of the petition, the court shall issue a citation which requires that the owner or person that is in charge or in possession of the property appear at a time and place which is specified to show cause why the neglected or abandoned plant or crop should not be removed or destroyed." (§ 5574.) The county then must serve the petition and citation on the property owner/possessor, encumbrancer, or the state, as necessary. (§§ 5575-5581.)
"On the day on which the citation is made returnable, the court shall hear the cause and decide whether or not the neglected or abandoned plant or crop shall be destroyed or removed. The hearing shall have precedence over all matters other than injunctions, older matters of the same character, and matters which are otherwise given precedence by law." (§ 5601.) "If the court is satisfied that the conditions which are set forth in the petition exist on the property and that the removal or destruction of the neglected or abandoned plant or crop is necessary and essential for the welfare of the agriculture of the county, district, or vicinity, it shall order the removal or destruction, within a certain time, of the neglected or abandoned plant or crop which is located upon the property described in the order." (§ 5602.) The court's order must be served on the property owner/possessor (§ 5603), and in the event of noncompliance, the court shall hold the property owner/possessor in contempt (§ 5605) and "shall cause the removal or destruction of the neglected or abandoned plant or crop which is mentioned in the order." (§ 5604.) Along with the remedies provided in section 5602, "[a]ll remedies for the prevention or abatement of nuisances apply to any such nuisance." (§ 5554.)
B. Respondent's Evidence at the Hearing
Respondent introduced testimony from Greg Clark (Clark), the Napa County Agriculture Commissioner, and Martin Mochizuki (Mochizuki), an expert in viticulture, vineyard development, and pest management.
1. Clark's Testimony
Clark had experience as a vineyard manager, an agricultural biologist, and the assistant and current Agriculture Commissioner. He described the history of public nuisances at appellants' vineyard starting in 2010, and appellants' election to proceed with minimal remedial efforts in 2010 and 2011. In the previous five years, Clark testified that appellants had not proactively maintained their vineyard and had responded only in piecemeal fashion to resolve issues that respondent required them to address.
In 2015, respondent declared appellants' vineyard to be a public nuisance because of heavy weeds, dead or dying vines, and lack of maintenance, including lack of pruning, mowing, and pesticide spraying. Clark visited the vineyard prior to testifying and observed spots of powdery mildew on the vines, native plant growth that made areas of the vineyard unreachable, and trellises in disrepair. At the time of his visit, not all of the vines had been pruned and appellant Brian Silver intimated that not all of the vineyard had been sprayed to treat the powdery mildew.
Clark testified that fungus, bacteria, and boring insects can feed on dead or dying wood. Dead vines have no beneficial qualities, and it is more harmful to leave them in a vineyard because they are a source for infestation. Accordingly, the best practice is to remove the dead wood. Unpruned, live vines attract bacteria, fungi, and a variety of insects, as do unsprayed, pruned vines. Untreated pests pose a harm to the vineyards near appellants' property, and all vineyard pests are a concern for local industry because of the negative impact they have on the industry.
Clark observed minimal pests at appellants' vineyard, including a few mealybugs and leafhoppers. He conceded that similar pest levels can exist on well-maintained vineyards, and that some degree of insect, bacterial, and fungal activity does not establish a problem. However, due to the overgrowth of native vegetation, Clark was unable to inspect the entire vineyard. The county declared the vineyard to be a nuisance because it was not consistently maintained and because it provided a favorable and likely harbor for pests.
2. Mochizuki's Testimony
Mochizuki worked with appellants in 2010, 2011, and 2012 while he assisted respondent in its efforts to eradicate the European grapevine moth from Napa Valley. He testified that when appellants dropped their fruit in 2010 and 2011, they did not remove all of the fruit or do so in the timeframe calculated to prevent the moth's spread. Back then, appellants' vineyard looked untouched, with high grass, no pruning or tractor work, and bush growth.
Mochizuki visited appellants' vineyard days before testifying and saw evidence of grape clusters on the vines, botrytis, eutypa fungus, branch and twig bore or cane bore, and phomopsis. He testified that dead and dying vines can have eutypa fungus, branch and twig bore, and phylloxera, and that 50% of appellants' vines were dying or dead. Eutypa will eventually kill vines. Mochizuki opined that dead vines increase the risk of borer pest infestation and that dead and dying vines need to be removed to ensure that no pests spread to neighboring vineyards. On the vines, he saw powdery mildew, which can also spread. Some mowing had been done in the vineyard's rows and terraces, but no effort had been made to control weeds on the berm under the vines. Mochizuki was unable to access portions of the vineyard due to overgrowth of natural vegetation.
Mochizuki testified that maintained vineyards have a pest monitoring program and do not have dead and dying vines or vegetal overgrowth. A pest maintenance program is very important to prevent outbreaks that can affect the health of the vineyard and neighboring vineyards. Mochizuki considered appellants' vineyard to be abandoned or neglected based on the lack of management, pruning, and spraying. Based on his experience and scientific knowledge of different pests and how they enter and spread, he also opined that the vineyard is a harbor for pests that can spread to neighboring vineyards.
C. Appellants' Evidence at the Hearing
Appellants introduced testimony from Noah Silver, their son, Hector Bedolla (Bedolla), an expert in vineyard operations and pest control management, and appellant Brian Silver.
1. Noah Silver's Testimony
Noah Silver had been in charge of maintenance for appellants' vineyard since 2010. He had a degree in literature, not in viticulture, pest management, or vineyard management, although he had taken three or four viticulture classes at a local community college. Noah Silver was active on the vineyard in 2010 for about 20 days and for a week or two in 2011 dropping the grapes. He testified that respondent came to inspect both years after he dropped the fruit and did not ask that anything further be done.
In 2012, appellants met with respondent and put plastic pheromone devices on their vineyard; no European grapevine moths were found that year. After taking a course on pruning, Noah Silver pruned some rows in the vineyard's lower section, but appellants did not drop the fruit that year.
In 2013, respondent expressed concern that appellants had not dropped their fruit the prior year. So, Noah Silver pruned the lower section of the vineyard and most of the terrace, weeded the lower front part, and dropped the fruit. He looked for pests in the vineyard and testified that if he saw powdery mildew, he thought it sufficient to remove the mildewed leaves. In 2014, Noah Silver was at the vineyard five days a week pruning the lower section, terraces, and the back hill. The August 2014 earthquake, however, took his time from the vineyard and he went less thereafter.
In March 2015, appellants met with respondent after receiving the public nuisance abatement notice. Respondent allowed appellants extra time to provide a plan to carry out respondent's abatement requests. Noah Silver testified that appellants hired a consultant to spray the powdery mildew and put up pest traps, and they weeded the front part of the vineyard, the terraces, and started work on the back hill.
2. Bedolla's Testimony
Appellants hired Bedolla in June 2015 to treat the powdery mildew on their vineyard with spray and to put up pest traps. He did not place traps in the back overgrown part of the vineyard, which he believed represented 25% of the vineyard and which he described as untended. Bedolla found two mealybugs in his traps prior to the hearing, but nothing that really concerned him.
Appellants also hired Bedolla as their vineyard manager in response to the court's subsequent abatement order.
Bedolla testified that appellants' vineyard suffered from water stress and many vines were dried and dead. He did not believe the soil could be dry farmed and suspected that the volcanic soil and water deposits therein were killing the vines. He opined that the vineyard may contain more than 10% to 25% of dead vines, and he had not ruled out the presence of phylloxera, which if present, would eventually kill the vines.
Bedolla confirmed that all grapevines are hosts, and dead, infested vines can be a threat to agriculture. For example, he testified that a dead vine can create dry rot, and if that occurs, the vine should be severed from the root and burned. However, Bedolla testified that appellants' vines were not infested. He also confirmed that vines, live and untreated or dead, can harbor bacteria, fungi, and insects.
With respect to powdery mildew, Bedolla stated that he did not look at every vine on the vineyard, but based on those he inspected, appellants' infestation was medium- light. He testified that it is standard practice to spray fungicide on vineyards from March through September to prevent powdery mildew and that most vineyards have some powdery mildew. On June 22, 2015, appellants sprayed a fungicide, but Bedolla was unsure if they sprayed the entire vineyard. The fungicide sprayed could stop a light powdery mildew infestation. Bedolla conceded that powdery mildew can spread to other vineyards.
Appellants hired Bedolla to monitor the vineyard and to make pest abatement recommendations for an undefined amount of time. Bedolla confirmed, however, that he did not have authority to perform abatement on his own. On June 29, 2015, Bedolla prepared a minimal maintenance schedule for appellants' vineyard that included the placement of pest traps, bi-weekly, March through September; mowing in late spring as needed; crop elimination pruning; fungicide spray applications and other disease controls, as needed; and minimal irrigation for vine survival. He conceded that appellants' minimal farming in 2010 and 2011 was not sufficient when measured by this schedule. He also conceded that, as of the date of the hearing, appellants had not implemented all of his recommendations. Although Bedolla believed that the danger to Napa Valley from appellants' vineyard was minimal given the vineyard's drainage patterns and location, he conceded that, under certain conditions, a vineyard that lacks continuous pruning, infestation control, and has a lot of dead or dying vines could be considered abandoned or neglected.
3. Brian Silver's Testimony
Brian Silver (Silver) testified that he shut his vineyard down in 2010 and pursued a minimal schedule of maintenance because an employee crashed his tractor, his vines were near the end of their useful life, and the economy was poor. He testified that his vineyard was not neglected, and that he prudently decided to minimally maintain it because it made no sense to use resources required to commercially farm the vineyard when the grapes would not be sellable and commercial farming would require irrigation and would waste water, fuel, and fertilizer.
Silver conceded that when he first received respondent's abatement notice in 2015, he asked that respondent leave him alone about weeds and wrote that controlling mildew required extraordinary effort. He did not feel that respondent's request for a detailed abatement plan was valid. He testified that it would not be good for his vineyard or Napa Valley if he removed the dead and dying vines; that removing the grapes could control powdery mildew (although he conceded he would spray if he saw powdery mildew); and that pruning and weeding were unnecessary. Silver testified that he informed respondent that if there were a threat, he would abate the threat but not the vineyard.
Silver testified that he wrote a letter to respondent in April 2015 indicating that he was interested in replanting and that his plan was to spray the terraces as needed in May and throughout the season. He testified that respondent requested a plan that was sustainable year after year. In May 2015, Silver told respondent that he would clear the brush, weeds, and mold, and mow, and that he should have the job done in a few days. By the time of the hearing, the overgrown part of the vineyard had not been cleared, though Silver stated that he was trying to find someone to do so. He conceded that the grapes in that area had not been removed. He conceded that irrigation was necessary for the vines' survival and he was not irrigating, though he said he planned to start minimal irrigation. He also conceded that the rootstock on his vineyard was susceptible to phylloxera.
4. Respondent's Rebuttal
Clark testified on rebuttal that an understaffed vineyard is more likely to develop pest problems and that removing leaves that have powdery mildew on them is not an appropriate eradication practice because microscopic mildew is present on many surfaces and is often established by the time that it can be seen on a leaf.
D. The Court's Ruling
The court ruled orally after the hearing and then issued a written order. The court found that respondent had not satisfied its burden of proving that appellants' entire vineyard constituted a public nuisance such that the vineyard had to be abated or civil penalties imposed. "Nevertheless, the evidence demonstrates there are significant portions of the vineyard . . . that are so neglected that they provide a favorable or likely harbor for pests." Citing testimony establishing the overgrowth and inaccessibility of parts of the vineyard, the court found "[t]his level of neglect—and borderline abandonment—of these areas of the vineyard goes beyond what is acceptable even for a Minimal Farming Schedule."
Noting that parts of the vineyard had only recently been tended to, the prior presence of European grapevine moth, the current presence of powdery mildew and mealybugs, and appellants' continued failure to take meaningful, long-term corrective measures to abate the neglected condition of the property, the court found that "portions of the Wild Horse property provide a favorable or likely harbor for pests that is detrimental to Napa County and the surrounding vicinity, including the remaining portions of Silver's vineyard. The Court concludes that portions of the vineyard, in its current state, pose a threat to Napa County agriculture, and at a minimum, to agriculture in the vicinity of the vineyard, including the remaining portions of [Silver's] property."
The court ordered appellants to abate the vineyard's neglected areas and to maintain the remaining portions of the vineyard. Appellants were required to implement a minimal farming schedule and to monitor for pests and diseases by placing traps bi-weekly from March through September; mow the vineyard in late spring as needed; implement crop-eliminating pruning; spray fungicide and other disease controls as needed; minimally irrigate the vines for survival; and remove all dead or dying plants quarterly. Appellants were also to hire a reputable vineyard manager/consultant to implement the schedule by September 15, 2015, and to submit quarterly reports to respondent documenting their compliance.
E. Substantial Evidence Supports the Court's Abatement Order
Appellants' main challenge to the court's abatement order is that clear and convincing evidence did not establish: 1) the presence of abandoned or neglected plants that are host plants of, or provide a favorable or likely harbor for, any pest; and 2) that abatement was necessary and essential for the welfare of Napa County agriculture. While appellants frame this as a question of whether clear and convincing evidence exists, that standard was adopted for the edification and guidance of the trial court. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) " 'The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.' [Citations.]" (Ibid; see also People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 22 (Reisig) [the court's factual findings in support of an injunction to abate a criminal street gang nuisance are reviewed for substantial evidence, resolving all factual conflicts and credibility questions in favor of the prevailing party and indulging all reasonable inferences in support of the injunction].)
It is not obvious that the clear and convincing burden of proof applied below. A plaintiff must generally prove a nuisance claim by a preponderance of the evidence. (Cal. Jur. 3d, Nuisances § 58; see People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th 1512, 1520, 1524-1525; cf. Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711, 719; Evid. Code, § 115.) Courts have applied a heightened burden in certain cases due to the importance of the interests sought to be enjoined. (People ex rel. Cooper v. Mitchell Bros' Santa Ana Theater (1982) 128 Cal.App.3d 937, 938-941 [obscenity must be established by clear and convincing evidence in an action to abate a nuisance created by obscene films]; People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1256 [the necessity for injunction targeting ordinary, non-criminal activity and the right to association had to be established by clear and convincing evidence].) Appellants do not show that the interests affected here are similar to those at issue in Santa Ana Theater or Englebrecht. (See People v. Englebrecht, supra, 88 Cal.App.4th at p. 1256 [distinguishing cases involving mere disputes over property or money].)
In this case, substantial evidence supports the court's findings that parts of appellants' vineyard were neglected and constituted favorable or likely harbors for pests. The back area of appellants' vineyard was untended and overgrown. Until shortly before the hearing, tall weeds grew throughout the vineyard, mummified grapes were present on unpruned vines, many vines were dead or dying, and appellants' inexperienced son served as their only source of pest control and maintenance. Appellants were not irrigating to keep the vines alive, the vineyard had a medium-light powdery mildew infestation, and not all of the vineyard had been sprayed with fungicide. Respondent's expert testified that maintained vineyards do not exhibit these conditions, and appellants' expert conceded that these conditions, coupled with a lack of pest control, could indicate neglect. Although the court properly credited appellants' position that they did not need to farm their vineyard for commercial production, appellants did not adhere to even the minimal farming practices their expert deemed safe to prevent harm to surrounding vineyards. Finally, all experts agreed that grapevines—dead or alive, unsprayed or unpruned—are sources for a variety of pests, including fungus such as eutypa, insects such as phylloxera, and bacteria.
Citing section 5401, appellants argue that a grapevine cannot be a public nuisance unless a pest is found on it or it is infested with pests. Section 5401 addresses, among other things, when a pest infestation on a plant constitutes a public nuisance and provides, in relevant part, "[a]ny premises, plants, conveyances or things which are infected or infested with any pest, or premises where any pest is found, are a public nuisance . . . ." In contrast, section 5551 addresses when a neglected or abandoned plant or crop constitutes a public nuisance, and this statute does not require that the abandoned or neglected plant or crop be infested with pests. (§ 5551, subd. (a)-(c).) As respondent sought abatement of a public nuisance under section 5551, section 5401 does not assist appellants.
Appellants next challenge the court's finding that removal or destruction of dead or dying vines was essential and necessary to the welfare of Napa Valley agriculture. (§ 5602.) Apart from the powdery mildew infestation, there were no additional pest infestations on appellants' vineyard, and Bedolla testified that abatement was not necessary or essential. But respondent's witnesses testified that unmonitored vineyards pose a threat because of their potential to harbor spreadable pests, and all experts agreed that dead and dying vines are favorable hosts for pests. A significant amount of dead and dying vines existed on the vineyard. Respondent's witnesses also testified that dead vines serve no purpose, they increase the risk of infestation to surrounding live vines, and fungus such as eutypa and other pests that live therein can destroy vineyards. Because of the risk of harm, Clark testified that the best practice was to remove and burn dead vines.
Although appellants maintained that they would monitor their vineyard and deal with any pests they found, history called this assertion into question. Notably, despite the confirmed presence of the harmful European grapevine moth for two consecutive years on appellants' property, when respondent did not supervise appellants in 2012, they failed to take even the simple preventative measure of dropping their fruit. From 2011 to 2014, appellants relied solely on their son to monitor their vineyard. His methodology for preventing the spread of the powdery mildew was ineffective, and he had taken less than a handful of courses in viticulture. From this evidence, the court could reasonably infer that appellants' son did not have the expertise required to responsibly maintain the vineyard. Further, appellants' son conceded that the August 2014 earthquake took his time away from the vineyard. Even Bedolla, whom appellants hired only after respondent sued, did not have a contract of set duration or authority to perform pest abatement. Respondent's issuance of repeated nuisance abatement notices, appellants' failure to implement reasonable monitoring and maintenance, and their five-year failure to use a safe minimal farming schedule all support the conclusion that abatement was necessary and essential to prevent harm to Napa Valley agriculture.
Appellants urge us to find that removal or destruction of abandoned or neglected plants under section 5602 is only necessary and essential where an emergency threatens the welfare of nearby agriculture. But section 5564 states, "[t]his article shall not prevent the commissioner from proceeding under any other provision of law for the purpose of abating a nuisance that constitutes an immediate hazard to adjoining or nearby property," and section 5563 generally allows the property owner 60 days to abate the nuisance before a petition is brought under section 5572. (§ 5563.) By acknowledging the county's authority to proceed under laws that provide more expedient remedies for nuisances that threaten immediate harm, the statutes necessarily contemplate that the county may seek abatement of a public nuisance under section 5551 et seq. in other than emergent situations. As previously established, substantial evidence supports the court's abatement order in this case.
Section 5563 allows the 60-day period to be shortened by county ordinance. (§ 5563.)
Appellants make passing reference to the alleged unconstitutionality of the procedures used to obtain a public nuisance determination and judicial remedies under sections 5551 et seq. These passing references present no issue for appellate review. (Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 537 [an issue that is unsupported by pertinent or cognizable legal argument may be deemed abandoned].)
Skinner v. Coy (1939) 13 Cal.2d 407 (Skinner), also relied on by appellants, does not persuade us otherwise. Skinner involved the application of former Agriculture Code sections 141-148, from which section 5551 et seq. derive. The county agriculture commissioner determined that trees on Skinner's peach farm had a deadly, contagious disease and sought to abate the trees summarily. Skinner made special efforts to save the trees, but experts testified that the disease had no cure. (Skinner, at pp. 410-411, 413.) The trial court enjoined the commissioner from destroying the trees, and one argument Skinner made on appeal in defense of the injunction was that his trees could only be destroyed pursuant to former Agriculture Code sections 141-148, which required the trees be abandoned and neglected, and his trees were neither. (Skinner, at p. 416.) Given Skinner's active farm and efforts to save the trees, in dicta, the Supreme Court expressed skepticism regarding the trial court's conclusion that the trees were neglected. (Id. at p. 417.) Nevertheless, the Supreme Court held that the commissioner could not be enjoined from summarily abating the nuisance even assuming the trees were not neglected because former Agriculture Code section 141 broadly recognized that all remedies available to prevent nuisances applied to the nuisances described thereunder and other statutes authorized summary abatement. (Skinner, at pp. 417-418, 424.) Skinner's active farming and the " 'high degree of care' " he gave to his trees are factually distinguishable from appellants' treatment of their vineyard, and Skinner's dicta does not control here. (Id. at p. 417.)
Finally, embedded in the section of their opening brief challenging the court's factual findings in support of its abatement order, appellants argue that the order is also invalid because: 1) the Food and Agriculture Code does not authorize injunctive relief; and 2) the requirement to remove "dead or dying" plants was vague. Appellants waived these arguments.
In appellate briefing, each party must "[s]tate each point under a separate heading or subheading summarizing the point." (Cal. Rules of Court, rule 8.204(a)(1)(B).) "This is not a mere technical requirement; it is 'designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' " (In re S.C. (2006) 138 Cal.App.4th 396, 408.) "Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.) Appellants' opening brief includes a section listing the issues to be decided in this appeal and contains corresponding argument headings. Neither appellants' list, nor their headings indicate that they seek to challenge the scope or language of the court's abatement order.
Even absent forfeiture, we would reject appellants' arguments for at least two reasons. First, section 5554 provides "all remedies for the prevention or abatement of nuisances apply to any such nuisance" (§ 5554), and injunctive relief is the main remedy for abatement of a public nuisance. (People ex rel. Dept. Pub. Wks. v. Adco Advertisers (1973) 35 Cal.App.3d 507, 511 [an injunction is the traditional method to abate a public nuisance].) Second, the language of an injunctive order need only be reasonably specific. (Reisig, supra, 182 Cal.App.4th at p. 884.) The court ordered removal of dead or dying plants from appellants' vineyard after each expert testified to the existence of dead and dying vines thereon. As the experts' testimony shows that they were able to understand the meaning of "dead or dying," the court's language was sufficiently specific. II. The Excluded Impeachment Evidence
In their final challenge to the court's abatement order, appellants contend that the court abused its discretion by refusing to allow them to impeach Clark with a transcript of a cell phone recording of a May 2015 meeting between Noah Silver, Brian Silver, Clark, and Clark's staff. Only Noah Silver knew the meeting was being recorded. Appellants sought to introduce the transcript to impeach a statement that Clark made in a declaration recounting that Brian Silver told him at this meeting that he was unwilling to commit to more than dropping vineyard fruit and mowing. The court excluded the full transcript under Evidence Code section 352 and Penal Code section 632. We review this ruling for abuse of discretion. (People v. Turner (2017) 13 Cal.App.5th 397, 408 (Turner) [the "court has broad discretion in determining whether to admit impeachment evidence, including whether it is subject to exclusion under section 352"].)
Penal Code section 632 declares inadmissible in any judicial proceeding, any "electronic . . . recording" of a "confidential communication" unless "all parties" to that communication consented to the recording. (Pen. Code, § 632, subds. (a) & (d).) This statute bars the introduction of taped confidential communications into evidence where all parties did not consent to the taping; however, it does not bar their use for impeachment because it does not "confer upon a testifying witness the right to commit perjury." (Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1497.) Because appellants sought to use the transcript for impeachment, Penal Code section 632 does not support the court's exclusionary ruling.
Nonetheless, appellants are not entitled to reversal. Impeachment evidence may be introduced to show a witness's testimony is untrue (Evidence Code § 780, subd. (i)), but the court exercises great discretion in deciding whether to admit this evidence and it may be excluded under Evidence Code section 352. (Turner, supra, 13 Cal.App.5th at p. 408.) The court repeatedly asked appellants to identify what statements in the transcript they wanted to use for impeachment and which parts of Clark's testimony they sought to impeach. The court allowed into evidence Brian Silver's statements from the May 2015 meeting informing Clark that Silver would spray for pests if he found them. Apart from this, appellants failed to identify the specific impeaching statements they sought to use and instead attempted to read large portions of the transcript into evidence. The court did not abuse its discretion in refusing to allow appellants to introduce the full transcript for impeachment under these circumstances. III. The Denial of Appellants' Motion to Dissolve the Abatement Order
On September 29, 2015, characterizing the abatement order as an injunctive order, appellants sought dissolution thereof under Code of Civil Procedure section 533 and Civil Code section 3424. Appellants reiterated many of their arguments in opposition to the initial abatement order, but they also argued that new facts—the clearance of the overgrowth of native vegetation and weeds on their vineyard—supported dissolution. Respondent opposed the motion, and the court denied it, finding: 1) the statutes pursuant to which appellants sought modification were inapposite because the court had issued an order under section 5602 rather than under the Code of Civil Procedure or the Civil Code; 2) appellants did not seek relief on the basis of full compliance with the court's order; and 3) to the extent appellants sought reconsideration of the court's order, their request was untimely under Code of Civil Procedure section 1008.
On appeal, appellants contend that they demonstrated changed circumstances sufficient to warrant dissolution of the injunction. Respondent concedes that portions of the court's abatement order were injunctive in nature such that the court erred in finding Code of Civil Procedure section 533 and Civil Code section 3424 inapplicable, but respondent nonetheless maintains that appellants did not satisfy their burden of establishing that new circumstances justified dissolution. Respondent is correct.
The abatement order prohibited the operation of a public nuisance on appellants' vineyard and required appellants to take steps to prevent and abate the nuisance, including adopting a minimal farming schedule. The court's order was injunctive in nature. (Comfort v. Comfort (1941) 17 Cal.2d 736, 741 [an "injunction operates on the person of the defendant by commanding him to do or desist from certain action."]; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1160 [an "injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act"]; 6 Witkin Cal. Procedure (5th ed. 2008) Provisional Remedies, § 274, p. 217 ["An injunction is an order or decree of a court either preventing (prohibitory injunction) or compelling (mandatory injunction) an act"].) Thus, in seeking to have the court's abatement order terminated, appellants sought to dissolve an injunction. (See People v. Brewer (2015) 235 Cal.App.4th 122, 135 [court order directing the sheriff to deliver criminal defendants who were found incompetent to stand trial to a state hospital within a certain time was an injunctive order and the motion to set the order aside was a motion to dissolve an injunction].)
Code of Civil Procedure section 533 and Civil Code section 3424 govern requests to dissolve or modify an injunction. The party seeking dissolution bears the burden of establishing a material change in the facts upon which the injunction was granted, a change in law, or that the ends of justice would be served by modification or dissolution of the injunction. (Code Civ. Proc., § 533 [governing temporary restraining orders and injunctions generally]; Civ. Code, § 3424 [governing permanent injunctions].) We review an order denying a motion to dissolve an injunction for abuse of discretion (Salazar v. Eastin (1995) 9 Cal.4th 836, 850), and to the extent that we are called upon to review the court's factual findings, we apply a substantial evidence standard of review (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 822).
The court did not abuse its discretion in finding that appellants failed to show new facts warranting dissolution of its order. In support of their motion, appellants submitted a quarterly report from Bedolla and a declaration from Humberto Izquierdo, Assistant Napa County Agriculture Commissioner. Both documents reflect that, as of September 15, 2015, appellants had cleared the brush and overgrowth from their vineyard and had removed the grapes, but Izquierdo stated that appellants had not complied with the minimal irrigation requirements of the court's order or removed dead or dying vines. The court thus did not abuse its discretion in finding that appellants failed to show new circumstances that demonstrated full compliance with its order, which may have merited dissolution. IV. Appellants' First Notice of Appeal Did Not Automatically Stay Proceedings
The perfecting of an appeal normally stays the enforcement of the challenged judgment or order as well as all "matters embraced therein or affected thereby." (Code Civ. Proc., § 916, subd. (a).) An order granting a prohibitory injunction is not stayed when appealed, but an order granting a mandatory injunction is automatically stayed. (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884.) Appellants contend that the court's abatement order constituted a mandatory injunction and their October 22, 2015 notice of appeal thereof triggered an automatic stay that rendered all actions taken by the court thereafter void. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 [subsequent trial court proceedings on matters " 'embraced' " in or " 'affected' " by an appeal taken in violation of the automatic stay are void].)
In certain circumstances, the perfecting of an appeal does not stay trial court proceedings without a trial court order providing otherwise or a writ of supersedeas. (Code Civ. Proc., § 916, subd. (a) ["Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby"].) Under Code of Civil Procedure section 917.8, subdivision (c), one such circumstance occurs where the judgment or order appealed "adjudges a building or place to be a nuisance and, as part of that judgment or order, directs the closing or discontinuance of any specific use of the building or place for any period of time." This subdivision derives from former Code of Civil Procedure section 949, pursuant to which the Supreme Court found that the Legislature validly exempted from an automatic appellate stay injunctive orders or judgments that " 'adjudge[ ] a building or place to be a nuisance, and as part of the judgment in the case orders and directs the closing of the building or place against its use for any purpose for any period of time.' " (People v. Jackson (1923) 190 Cal. 257, 260.)
In its abatement order, the court found that parts of appellants' vineyard constituted a public nuisance, ordered abatement, and prohibited appellants from operating their vineyard with the maintenance schedule they had been using. In effect, the order adjudged a place to be a nuisance and directed appellants to discontinue the specific nuisance use they had been putting their vineyard to. The court's abatement order thus fits within Code of Civil Procedure section 917.8, subdivision (c), and proceedings in the trial court were not automatically stayed when appellants filed their first notice of appeal. Moreover, even if section 917.8 were not applicable, any procedural error in enforcing the abatement order prior to resolution of this appeal is harmless in light of our conclusion that the order was substantively correct. V. Judgment on the Pleadings
Months after the court issued its abatement order and abatement warrant, respondent moved for judgment on the pleadings on the basis that appellants' answer did not state facts sufficient to constitute a defense. The court granted respondent's motion, taking judicial notice of its prior orders and court records, and finding that respondent had obtained all the relief it sought. Appellants argue that the court erred in granting judgment on the pleadings because their verified answer controverted the material factual allegations of respondent's pleading, placing these allegations at issue, the motion was untimely, and the ruling deprived them of their right to a jury trial.
We review a ruling on a motion for judgment on the pleadings de novo. (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738.) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts of which the court may judicially notice. (Engine Manufacturers Assn. v. State Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034-1035.) A motion for judgment on the pleadings brought by the plaintiff is the equivalent of a demurrer to an answer. (Id. at p. 1034.) On review, the appellate court will assume the truth of all facts properly pleaded in the answer and will disregard the controverted allegations of the complaint. (Ibid.) Such a motion "must be denied if the defendant's pleadings raise a material issue or set up affirmative matter constituting a defense." (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 812-813; see also Barasch v. Epstein (1957) 147 Cal.App.2d 439, 443 (Barasch).)
Here, appellants' verified answer specifically denied respondent's allegations that appellants' vineyard constituted a public nuisance under the Food and Agriculture Code and the Napa County Code. Appellants alleged that they had not abandoned or neglected their vineyard, and further alleged that the vineyard was neither a nuisance nor likely to harbor pests because it had been and would be properly maintained. In light of this verified answer and the denials therein, "[p]roof of the allegations of the complaint, which are denied, is necessary before plaintiff may recover judgment." (Barasch, supra, 147 Cal.App.2d at p. 443 [reversing judgment on the pleadings in favor of the plaintiff where the defendant's answer set up a good defense and denied the complaint's material allegations].) Nor could the court take judicial notice of the truth of its factual findings from prior orders to grant respondent judgment on the pleadings on all of its claims. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145 [a court may take judicial notice that a prior order was entered but not of the truth of the factual findings made therein].) The court thus erred in granting judgment on the pleadings.
Because we have concluded that the court erred in granting respondent judgment on the pleadings, we do not address appellants' argument that respondent's motion for judgment on the pleadings was untimely.
Nonetheless, the court's error does not compel reversal. It is well established that an appellate court may "affirm [a judgment] on any ground in the record because our job is to review the trial court's ruling, not its reasoning." (People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 386.)
Respondent brought claims for abatement of a public nuisance under section 5551 et seq. and under Napa County Code sections 8.42.020 and 1.20.022(A)(1). There is no right to a jury trial for these equitable abatement claims. (Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353.) With respect to the Food and Agriculture Code claim, a court may order abatement where it finds a public nuisance exists under section 5551, and it shall order the destruction or removal of the abandoned or neglected plants or crops constituting the nuisance if destruction or removal is necessary and essential to the county's agricultural welfare. (§§ 5553, 5554, 5602.) To obtain this judicial determination, the statutes " 'provide machinery in the nature of a special proceeding in the superior court . . . .' " (Skinner, supra, 13 Cal.2d at p. 417 [discussing former Agriculture Code sections 141-148].) This special proceeding occurred, and the court issued an abatement order and later issued an abatement warrant. As discussed above, substantial evidence supports the trial court's findings. Nothing remained to be done on respondent's first claim, and respondent was entitled to judgment thereon. The same is true for respondent's claim under Napa County Code section 8.42.020, which required respondent to seek abatement of a public nuisance created by abandoned or neglected plants or crops under section 5551 et seq. (Napa County Code, §§ 8.42.020, 8.42.030.)
It appears that a contrary conclusion may be required with respect to respondent's claim under Napa County Code section 1.20.022(A)(1), which targets a public nuisance created by "[o]vergrown, dead, decayed or diseased trees, weeds and other vegetation that . . . . [¶] [i]s likely to harbor rats, vermin, and other similar nuisances," and does not expressly authorize resort to the statutory procedure used for claims brought under section 5551 et seq. Nonetheless, respondent premised this claim on the "[o]vergrown, dead, decayed or diseased trees, weeds and other vegetation" on appellants' property, appellants cleared the weeds and vegetal overgrowth on their vineyard in September 2015, and respondent removed the dead or dying vines in January 2016. Given that the conditions constituting the public nuisance under Napa County Code section 1.20.022(A)(1) no longer exist, this claim is moot. (Cf. City of Monterey v. California Coastal Com. (1981) 120 Cal.App.3d 799, 805.) VI. Attorney's Fees and Costs
After the court's order granting judgment on the pleadings, respondent moved for attorney's fees under Napa County Code section 1.20.025 and costs under Government Code section 25845, subdivision (b) and Code of Civil Procedure sections 1032 and 1033.5. The court declared respondent to be the prevailing party and awarded attorney's fees and costs. On appeal, appellants argue that the court's award was impermissible because respondent is not the prevailing party. They also contend that $1,575 for Mochizuki's expert fees could not be awarded as costs under Code of Civil Procedure section 1033.5, subdivision (b)(1), and the court erred in finding that respondent's costs memorandum was timely. We review the court's prevailing party determination for abuse of discretion (Intelligent Investments Corp. v. Gonzales (2016) 1 Cal.App.5th Supp. 1, 7 (Intelligent Investments Corp) [attorney's fees]; Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 852 [costs]), and the question of whether a statute authorizes the recovery of certain costs de novo (see City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 396 ["We review the interpretation of the statutes de novo"]).
Appellants maintain that respondent was not the prevailing party because there was no public nuisance on their vineyard and because respondent did not obtain abatement for the entire vineyard. Because we have affirmed the court's factual findings in support of its abatement order, we reject appellants' first argument.
Next, respondent need not have obtained all of the relief it requested to be the prevailing party. Napa County Code section 1.20.025 allows for prevailing party attorney's fees in civil nuisance abatement actions, but it does not define "prevailing party." As such, the court must analyze which party prevailed on a practical level. (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1153; Intelligent Investments Corp., supra, 1 Cal.App.5th Supp. at pp. 6-7.) For costs awarded under the Code of Civil Procedure, the court may exercise its discretion to deem the plaintiff the prevailing party where he or she recovers nonmonetary relief. (Code Civ. Proc., § 1032, subd. (a)(4).) While the court made a procedural error in granting judgment on the pleadings rather than entering judgment on respondent's nuisance claims under section 5551 et seq. and Napa County Code section 8.42.020, the court held an evidentiary hearing, decreed parts of appellants' vineyard to be a nuisance, ordered abatement, and declared respondent to be the prevailing party after this hearing. The court also issued an abatement warrant. Because respondent obtained the majority of the relief it sought, it prevailed on a practical level and the record supports an award of prevailing party attorney's fees and costs.
Appellants' conclusory assertion that section 1.20.025 of the Napa County Code is "unenforceable and probably unconstitutional" does not present an issue for review. (Brown, supra, 127 Cal.App.4th at p. 537.)
Turning to the award of Mochizuki's fees, appellants correctly observe that these fees were not allowed under the Code of Civil Procedure unless the court ordered them to be incurred. (Code Civ. Proc., § 1033.5, subd. (b)(1).) However, respondent also sought these costs under Government Code section 25845, subdivision (b), which provides: "In any action to abate a nuisance, whether by administrative proceedings, judicial proceedings, or summary abatement, the owner of the parcel upon which the nuisance is found to exist shall be liable for all costs of abatement incurred by the county, including, but not limited to, administrative costs, and any and all costs incurred in the physical abatement of the nuisance. Recovery of costs pursuant to this section shall be in addition to and shall not limit any prevailing party's right to recover costs pursuant to Sections 1032 and 1033.5 of the Code of Civil Procedure or any other provision of law." Mochizuki's costs for physical abatement ($315) were clearly allowed, but the statute is not limited to such costs. Respondent incurred Mochizuki's expert fees in a judicial proceeding to abate the public nuisance on appellants' property; these fees were thus part of "all costs of abatement incurred by the county" and were recoverable under Government Code section 25845, subdivision (b).
Finally, respondent's costs memorandum was timely. Respondent served notice of entry of judgment on June 20, 2016 and filed a timely costs memorandum seven days later. (Cal. Rules of Court, rule 3.1700(a)(1).) Although appellants argue that the costs memorandum should have been filed after the entry of the court's abatement order or its order granting respondent judgment on the pleadings, those orders were not the judgment, and the time within which to file a costs memorandum is measured from the entry of the judgment. (Cal. Rules of Court, rule 3.1700(a)(1); Code Civ. Proc., § 577 ["A judgment is the final determination of the rights of the parties in an action or proceeding"].)
DISPOSITION
The court's abatement order and the order denying appellants' motion to dissolve the abatement order are affirmed. Appellants' claim under Napa County Code section 1.20.022(A)(1) is dismissed as moot. The judgment is affirmed, and the court's order awarding respondent costs is also affirmed.
/s/_________
Brown, J. We concur: /s/_________
Pollak, P.J. /s/_________
Tucher, J.