Opinion
H041729
04-04-2017
COUNTY OF SANTA CLARA, Plaintiff and Respondent, v. DOMINGUEZ AND SONS TRUCKING, INC., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 109CV141882)
The County of Santa Clara (County) filed an action in May 2009 to abate a public nuisance involving a 40-acre parcel of land in an unincorporated area of Saratoga. The County alleged that the defendants—the landowners and various construction firms—had caused or authorized the unpermitted dumping of more than 31,000 cubic yards of material on the property over a period of approximately one year.
The County moved for summary judgment. The court granted the motion, finding multiple defendants jointly and severally liable for nuisance per se. One of the defendants, Dominguez and Sons Trucking, Inc. (Dominguez), has appealed from the judgment. It contends the trial court erred in concluding that the County had met its burden of establishing that Dominguez had violated a County ordinance upon which liability for creating a public nuisance could be based. Dominguez argues further that the court erroneously found Dominguez jointly and severally liable with the remaining defendants for creating the public nuisance. And it asserts that the court erred by denying its motion to continue the summary judgment hearing to obtain necessary discovery.
We conclude that the court properly granted summary judgment and did not err in denying Dominguez's continuance request. We will therefore affirm the judgment entered on the summary judgment order.
PROCEDURAL BACKGROUND
On May 6, 2009, the County filed suit for nuisance abatement and injunctive relief. It named as defendants George Gullicksen (Gullicksen) and Carmen Gullicksen (collectively, the Gullicksens); Glen Gilbert (Gilbert); two companies owned or controlled by Gilbert, Able Septic (Able), and Valley Concrete (Valley); Granite Rock Company, dba Pavers Construction Division (Granite Rock); Jesus Villa (Villa); and JVT Transport (JVT). At some later date, Dominguez was served as a Doe defendant. Dominguez appeared in the case by filing an answer in February 2011. (Hereafter, the parties sued by the County, including Dominguez, are sometimes collectively referred to as the defendants.)
Although Granite Rock was named in the complaint, the County's motion for summary judgment did not reflect that the motion was being brought against Granite Rock as a defendant, and neither the summary judgment order nor the judgment includes Granite Rock. The record contains no additional information concerning this defendant.
The County alleged that since 1971, the Gullicksens have been the owners of land in an unincorporated area of Saratoga that is commonly known as Highway Marker 271 (the Property). In 2006, Gilbert entered into an oral contract with Gullicksen for Gilbert and Valley to have the exclusive right to dump fill on the Property. Gullicksen relied on Gilbert's representations that "he would 'do things right,' and 'take care of everything' " in believing that Gilbert was a licensed contractor who would conduct himself in accordance with the law.
The County alleged that there are three distinct site areas relevant to the dumping on the Property. Site 1 on the Property is in close proximity to Highway 9. Site 2 "is in proximity to Highway 9, on a steep slope off of a flat, semicircular, graded soil cul-de-sac with an unpaved road leading up the hillside, abutting and encroaching on" land owned by Midpeninsula Regional Open Space District (District). Below Site 2 is a creek located on the District's property that is a tributary of Stevens Creek, a year-round watercourse that feeds Stevens Creek Reservoir. And Site 3 is adjacent to Redwood Gulch Road. The County described Site 2 as "the most problematic" site, in that concrete, asphalt, and soil from the dumping on that site were pushed over the hillside and were therefore present below Site 2 "along the banks and within the creek at the bottom of the drainage channel."
The allegations in the complaint concerning Site 2 and Site 3—including the identification of the site most "problematic"—are inconsistent with the facts presented in the County's motion for summary judgment. It is clear that, in its complaint, the County confused the two sites, describing Site 2 as Site 3, and vice versa. For clarity, we take the liberty of correcting this error in describing the allegations of the complaint.
The County alleged that dumping on the Property commenced in October 2006 and continued to September 2007, with Gilbert paying Gullicksen $45,100 for the exclusive dumping rights. The dumping was performed by Gilbert, Able, and Valley. The County alleged further that in February 2007, Villa and JVT dumped approximately 50 truckloads of materials on the Property. (Although not part of the complaint's allegations, the County later presented evidence in its summary judgment motion that Dominguez was responsible for the dumping of approximately 25 truckloads and Villa and JVT were responsible for the other 25 truckloads.) The majority of the overall dumping on the Property was performed by Gilbert, Able, and Valley, and the materials consisted of soils, asphalt chunks, concrete chunks, and other materials, including possible hazardous substances.
The County alleged in the complaint that the dumping by Villa and JVT occurred in November 2006. It presented evidence in its motion that the dumping occurred in February 2007. Since it is clear that February 2007 was the correct date, we again, for clarity, take the liberty of correcting this error.
The County alleged one cause of action for nuisance abatement. It claimed that the unpermitted dumping activity on the Property was a violation of Santa Clara County Ordinance Code Section C12-420, and was therefore a nuisance per se. The County alleged that the defendants' actions had "created a massive nuisance with resultant damage to the land, to the environment, to the creek, to the trees, and to riparian life." It sought preliminary and permanent injunctive relief, penalties and punitive damages, and attorney fees.
In February 2012, the County moved for summary judgment, or, in the alternative, for summary adjudication, pursuant to Code of Civil Procedure section 437c. Dominguez opposed the motion. The County filed a reply. After a hearing on June 22, 2012, the court entered a written order on July 6, 2012, granting the County's motion for summary judgment (Order). The court concluded that the defendants' actions relative to the Property were in violation of the County's Grading Ordinance and therefore constituted a nuisance per se.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
The County indicated in its notice of motion that it was seeking summary judgment against the Gullicksens, Gilbert, Able, Valley, Villa, JVT, and Dominguez. The court recited in its order that the motion was separately opposed by Gilbert, Able, Valley, and Dominguez, although only the opposition papers of Dominquez are part of the record.
Judgment was entered on the Order on September 30, 2014, and Dominguez filed a timely appeal.
DISCUSSION
I. Summary Judgment Motions Generally
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment statute, section 437c, "provides a particularly suitable means to test the sufficiency of the plaintiff's prima facie case and/or of the defendant's [defense]." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.)
Summary judgment is appropriate where "the action has no merit or that there is no defense to the action or proceeding." (§ 437c, subd. (a)(1).) The moving party must through its separate statement identify each of the material facts it contends are undisputed and specifically refer to the supporting evidence. (§ 437c, subd. (b)(1).) "The materiality of a disputed fact is measured by the pleadings." (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250; see also Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.)
The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A plaintiff moving for summary judgment bears the burden of persuasion that "each element of the cause of action" has been "proved," and therefore "there is no defense" thereto. (§ 437c, subd. (p)(1); see Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 241.) But a plaintiff's initial burden in a motion for summary judgment does not require it to disprove any affirmative defenses that may be asserted by the defendant. (Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 564.)
Once a plaintiff meets its initial burden of proving each element of its cause of action, the burden shifts to the defendant "to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (§ 437c, subd. (p)(1); see Aguilar, supra, 25 Cal.4th at p. 849.) And the opposing party's evidence, as is the case with the moving party's evidence, must be admissible. "[A] party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]' [Citation.]" (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
II. Standard of Review
Because summary judgment motions involve pure questions of law, we review independently the granting of summary judgment to ascertain whether there is a triable issue of material fact justifying reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In doing so, we "consider[] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
In our independent review of the granting of summary judgment, we conduct the same three-step procedure employed by the trial court. First, "we identify the issues framed by the pleadings because the court's sole function on a motion for summary judgment is to determine from the submitted evidence whether there is a 'triable issue as to any material fact' (§ 437c, subd. (c)), and to be 'material' a fact must relate to some claim or defense in issue under the pleadings. [Citation.]" (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) Second, we examine the motion to determine whether it establishes facts justifying judgment in the moving party's favor. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) Third, we scrutinize the opposition—assuming movant has met its initial burden—to "decide whether the opposing party has demonstrated the existence of a triable, material fact issue [to defeat summary judgment]. [Citation.]" (Ibid.; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) We need not defer to the trial court, and we are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In an appeal from an order of summary judgment, the appellant bears the burden of demonstrating error, irrespective of whether he or she bore the burden in the trial court. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) Although our review of the summary judgment is de novo, it " 'is limited to issues which have been adequately raised and briefed.' [Citation.]" (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
III. The County's Summary Judgment Motion
A. Background
1. County's Moving Papers
The County presented evidence in its motion that included the following:
In 2006, Gilbert's employee, Scott Hall, introduced Gilbert to Gullicksen. Gilbert requested that Gullicksen grant him exclusive rights to dump materials on the Property. According to Gullicksen, Gilbert told him that "he would make sure everything was above board, legal and no problems, he'd take care of everything." There was no duration to the agreement, and Gilbert agreed to pay Gullicksen approximately $4,700 per month for the exclusive dumping privileges. The agreement was never reduced to writing. After entering into the agreement, Gilbert took control by installing a new gate and locks on the Property.
Gullicksen testified in his deposition variously that the monthly sum agreed upon with Gilbert was $4,500 and $4,700.
Gilbert and his companies began dumping materials on the Property in approximately October 2006. The dumped material included concrete, dirt, pavement asphalt, and tree roots.
Later, Villa was referred to Gullicksen by Able employees. In February 2007, Villa was working on a basement job in Saratoga. Villa entered into an agreement with Gullicksen under which he would be paid $100 per truckload for allowing Villa to dump materials on the Property. Villa/JVT and Dominguez collectively dumped approximately 50 truckloads of material from the Saratoga basement job on the Property, each dumping approximately 25 truckloads. Villa paid Gullicksen a total of $5,000 in exchange for dumping 50 truckloads of material.
The materials were dumped by the defendants on each of the three sites on the Property, i.e., Site 1 (close to Highway 9), Site 2 (near highway 9 on a steep slope off a flat, semicircular, graded cul-de-sac with an unpaved road leading up a hillside, abutting the District's land), and Site 3 (adjacent to Redwood Gulch Road area). There is a creek on the District's land below Site 2 that is a tributary to a year-round watercourse, Stevens Creek, which, in turn, feeds into Stevens Creek Reservoir. Chunks of concrete, rebar, bricks, and asphalt were present along the banks of that tributary and in the creek bed.
There was a large accumulation of debris evident on all three sites. According to James Baker, the County Geologist in the County's planning department, "[t]he dumping had led to massive damage to the Property, including the trees on the Property, as well as damage to the property of [the District]." Baker opined that, due to the fact that the sources of the dumped materials were unknown, there was a potential for the existence of hazardous materials not readily visible, such as metals, polychlorinated biphenyls (PCBs), polynuclear aromatic hydrocarbons, and pesticides.
There were no grading permits issued by the County authorizing any of the defendants to dump materials on the Property. In order to address the issue, the County posted a stop-work notice on the Property in August 2007 and, the next month, recorded notices of grading violations against the Property. At the time the notices were recorded, there was an estimated 31,837 cubic yards of soil, asphalt, concrete, construction debris, and miscellaneous materials that had been dumped on the Property.
2. Dominguez's Opposition
Dominguez presented the following evidence in opposition to summary judgment:
Gullicksen testified in deposition that, from time to time, passing motorists on the highway had dumped materials on the Property. The materials included couches, washing machines, and "regular garbage." It was difficult for him to prevent this dumping.
The materials that Dominguez dumped on the Property consisted of "clean dirt" from the basement excavation work done by Villa. Villa and Dominguez each dumped approximately 25 truckloads of dirt on the Property. Based upon Villa's estimate that the capacity of each truckload (both for Villa's and Dominguez's trucks) was 13.5 to 15 cubic yards, Dominguez dumped an estimated amount of between 337.5 and 375 cubic yards of dirt on the Property. Villa testified in deposition that he and Dominguez "only dumped a few loads" (approximately 10) of dirt on Site 1 because it was a "very narrow" area and "too risky." Villa and Dominguez dumped approximately 10 truckloads of dirt on a flat area in front of the house on the Property. The remaining loads (approximately 30) were dumped in back of the house on Site 2 on a flat area near a cliff; after doing so, a helper pushed the dirt over the cliff. They did not dump soil on Site 3.
Although it is unclear from the record whether the area in front of the house was on Site 1 or Site 2, it appears the area in front of the house was on Site 2.
B. Motion Was Properly Granted
1. Nuisance, Generally
Civil Code section 3479 defines a nuisance as follows: "Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway . . . ." "A nuisance may be a public nuisance, a private nuisance, or both. [Citation.]" (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 341.) "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." (Civ. Code, § 3480.)
Numerous cases have held that depositing material or pollutants on land may constitute a nuisance. (See, e.g., Spaulding v. Cameron (1952) 38 C.2d 265, 266 [loose earth fill on defendant's property washed down in rains and inundated lower land of plaintiff]; Tres Amigos Viejos, LLC (2002) 100 Cal.App.4th 550, 559 [failure to contain irrigation]; Gdowski v. Louie (2000) 84 Cal.App.4th 1395, 1408 [damage caused by discharge of surface water]; Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 317 [defendant's creation of fill on its property resulted in diversion of surplus water and deposit of mud and rock to flow on plaintiffs' adjoining property].) A party's liability for nuisance is not dependent on its role as an owner or possessor of the land in question. "[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance. [Citation.]" (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38 (City of Modesto RDA).)
The County here alleged that the defendants' actions of dumping materials on the Property—and, more specifically, the actions of Dominguez—constituted the creation of a per se nuisance. As this court has explained: "An act or condition legislatively declared to be a public nuisance is ' "a nuisance per se against which an injunction may issue without allegation or proof of irreparable injury." [Citation.]' [Citation.] '[T]o rephrase the rule, to be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law.' [Citation.] Thus, the only issues for the court's resolution in a nuisance per se proceeding are whether the statutory violation occurred and whether the statute is constitutional. [Citations.]" (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1086-1087 (Carrnshimba).)
Municipal ordinances may declare a specific activity or conduct to constitute a nuisance. (See, e.g., San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 401 [enjoining as public nuisance a building maintained in violation of city planning code]; People v. Los Angeles (1958) 160 Cal.App.2d 494, 501 [city ordinance preventing discharge of sewage in bay]; People v. Johnson (1954) 129 Cal.App.2d 1, 8 [county zoning ordinance prohibiting keeping of more than five hogs in limited manufacturing zone].) Under Government Code section 38771, a "city legislative body may declare what constitutes a nuisance."
2. County Established A Per Se Nuisance
The County asserted that the conduct of defendants was specifically prohibited by certain provisions of the Santa Clara County Code of Ordinances (Ordinance) and thus constituted a nuisance per se. Section C12-420 of the Ordinance, at the time of the alleged conduct and hearing on the summary judgment motion, provided: "No person shall do any grading, or cause or allow the same to be done, on any real property, without first obtaining a grading permit, unless exempt hereunder." "Grading" was defined as "any excavating or filling or combination thereof, and includes related work, such as, but not limited to, drainage improvements, retaining walls, erosion prevention and sediment control measures." (Santa Clara County Ord., § C12-405.21.) "Fill" was defined as "the deposit of soil, rock or other materials placed by man." (Santa Clara County Ord., § C12-405.16.) And, significantly, Section C12-556(a) provided that "[a]ny violation of this chapter or the codes adopted hereunder is hereby declared to be unlawful and a public nuisance." The Ordinance authorized County Counsel to take legal action for violations of the chapter. (Santa Clara County Ord., § C12-556(b).)
The trial court on its own motion, pursuant to Evidence Code section 452, subdivisions (b) and (h), took judicial notice of Title C ("Construction and Land Use") of the Ordinance. We likewise take judicial notice of Title C of the Ordinance. (See Evid. Code, § 459, subd. (a).) Additionally, we are aware that approximately eight months after the hearing on the motion, in April 2013, the County adopted Ordinance NS - 1203.120, amending the Ordinance by repealing Chapter 3 of Division C12 in its entirety and replacing it with a new Chapter 3 of Division 12 pertaining to grading and drainage. (See http://sccgov.iqm2.com/Citizens/Detail_LegiFile.aspx?ID=65794.) The new version of Chapter 3 of Division 12 of the Ordinance is not pertinent to our discussion here.
The County through its motion met its burden of showing that Dominguez was liable for creating or assisting in the creation of a nuisance per se. (City of Modesto RDA, supra, 119 Cal.App.4th at p. 38.) It established with undisputed evidence that Dominguez, along with its codefendants Gilbert, Valley, Able, Villa, and JVT, dumped a large quantity of materials on the Property. In February 2007, Dominguez dumped approximately 25 truckloads of dirt on the Property. There was a large accumulation of debris evident on all three sites on the Property, estimated (as of September 2007) as being 31,837 cubic yards of soil, asphalt, concrete, construction debris, and miscellaneous materials. The dumping caused significant damage to the Property and to the adjoining the District's land. This included the existence of concrete, rebar, bricks, and asphalt along the banks of a creek on the District's land that is a tributary to Stevens Creek. The County issued no grading permits authorizing any of the defendants to dump materials on the Property.
These facts constituted a prima facie showing by the County of its entitlement to summary judgment on its nuisance claim. (See § 437c, subd. (p)(1).) The County's evidence supported the finding that Dominguez had violated section C12-420 of the Ordinance by performing grading—i.e., dumping "fill" on the Property—without having first obtained a permit for that work. Such violation was, by definition, a public nuisance under section C12-556(a) of the Ordinance. Dominguez's conduct as presented by the facts in the motion, therefore, constituted a nuisance per se. (Carrnshimba, supra, 215 Cal.App.4th at pp. 1086-1087.)
3. Dominguez Failed to Show Triable Issue of Material Fact
Dominguez's opening brief is not in compliance with California rules of appellate practice. Throughout its brief, Dominguez has failed to include proper citations to the appellate record, in violation of the California Rules of Court. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) Although we have chosen not to do so here, such noncompliance could have resulted in our ordering the brief returned for corrections and refiling or ordering that the brief be stricken subject to a new brief being filed. (Cal. Rules of Court, rule 8.204(e)(2).)
The burden having shifted to defendant "to show that a triable issue of one or more material facts exists as to [the nuisance claim]" (§ 437c, subd. (p)(1); see Aguilar, supra, 25 Cal.4th at p. 849), Dominguez failed to satisfy that burden. Dominguez did not submit evidence refuting the County's undisputed facts demonstrating liability for nuisance per se. Nor did it present a legal challenge to the sections of the Ordinance upon which this liability for nuisance was based. (See Carrnshimba, supra, 215 Cal.App.4th at pp. 1086-1087.) Instead, Dominguez asserted below, inter alia, that summary judgment was improper because (1) the County did not establish that the defendants' dumping was "injurious to health" as specified in Civil Code section 3479; (2) there was no evidence that "an entire community, or neighborhood or a considerable number of persons . . ." were affected by the defendants' conduct, as provided in Civil Code section 3480; (3) Dominguez was responsible for having dumped a small amount of material, i.e., "approximately 25 loads of clean dirt on the Property"; and (4) "[c]lean dirt would not [have] obstruct[ed] or divert[ed] the creek."
The first two contentions may be readily addressed. "[W]here the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se." (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1207; see also City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382.) Thus, the only issues the court need consider where a nuisance per se is alleged "are whether the statutory violation occurred and whether the statute is constitutional. [Citations.]" (Carrnshimba, supra, 215 Cal.App.4th at p. 1087.) Here, the County established the Ordinance violation and no constitutional challenge of the law has been asserted by Dominguez. Thus, the County established nuisance without the necessity of showing the conduct to have been "injurious to health" or it having affected "an entire community or neighborhood, or any considerable number of persons" as provided in Civil Code section 3479 and 3480, respectively.
The third contention suggests that it is significant that Dominguez dumped approximately 25 truckloads of "clean dirt," as opposed to some other kind of material. But Section C12-420 of the Ordinance prohibited unpermitted grading, which, combined with the provisions defining the terms "grading" and "fill" (Santa Clara County Ord., § C12-405.21 and § C12-405.16, respectively), made it unlawful to conduct the type of activity—the unpermitted dumping of soil—admittedly performed by Dominguez. The fact that the material deposited by Dominguez on the Property may have been "clean dirt" is of no consequence.
Dominguez's fourth contention—that "[c]lean dirt would not [have] obstruct[ed] or divert[ed] the creek"—was made without any reference to supporting evidence. (See Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 [declarations opposing summary judgment must contain admissible evidence].) The contention was, in any event, speculative and improper. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524 ["mere speculation and conjecture" may not serve as basis for opposing summary judgment].)
Dominguez also argues here—a contention it also made below—that it should not have been held jointly and severally liable with the remaining defendants. It contends that the County made no attempt to show that the impact from dumping at the different locations of the Property by the defendants was indivisible. Dominguez argues that the court therefore erred in finding that the defendants were jointly and severally liable for the dumping activities on the Property.
The summary judgment order itself does not include a finding that the defendants are jointly and severally liable. But in the judgment, the court "entered against all Defendants jointly and severally."
"Where tortious acts by separate persons produce the same indivisible injury, each person is liable for the whole loss even if they did not act in concert. [Citation.]" (Textron Financial Corp. v. National Union Fire Ins. Co. of Pittsburgh (2004) 118 Cal.App.4th 1061, 1078, disapproved on other grounds in Zhang v. Superior Court (2013) 57 Cal.4th 364, 382; see also Kohn v. Superior Court (1983) 142 Cal.App.3d 323, 329 [joint and several liability imposed upon contractor, pest control inspector, and seller whose collective tortious actions resulted in indivisible damage to buyer, i.e., reduced value of property].) "Joint tortfeasors may act in concert or independently of one another. [Citation.]" (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1115, citing American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 587 (American Motorcycle); see also Rest.2d Torts, § 886A, com.(1)(b) [joint tortfeasors need not necessarily "act in concert or in pursuance of a common design"].)
If several parties cause damage and causation for the damage cannot be segregated, each party may be held liable for the entire damage, and it is not up to the plaintiff to apportion the damages as between the defendants. (Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 433-434 (Finnegan).) The California Supreme Court has explained the principle and its rationale as follows: "[The law] shift[s] the burden to each of defendants to absolve [it]self if [it] can—relieving the wronged person of the duty of apportioning the injury to a particular defendant . . . where [the question is] . . . whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent [tortfeasors] and thus each liable for the damage caused by [it] alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of [its] right to redress. The wrongdoers should be left to work out between themselves an apportionment [Citation.]" (Summers v. Tice (1948) 33 Cal.2d 80, 88.)
In Sanchez v. Bay General Hospital (1981) 116 Cal.App.3d 776, 782-783 (Sanchez), relied upon by the County, the plaintiffs' decedent received minor injuries in an automobile accident, and later died after having a successful operation for minor persistent ailments resulting from the accident due to alleged negligent postoperative care. The decedent's minor children sued the owners and operators of a vehicle that collided with the decedent's vehicle resulting in minor injuries, as well as the hospital that later treated the decedent. (Id. at p. 783.) The plaintiffs settled with the owners and operators of the vehicle for $45,000 and received a jury verdict of $400,000 against the hospital. (Ibid.) In a cross-appeal, the plaintiffs challenged the trial court's order offsetting from the jury verdict the $45,000 received by the plaintiffs from the settlement. (Id. at p. 795.) The appellate court rejected the challenge, concluding that the owners and operators of the vehicle were jointly and severally liable with the hospital defendant for the plaintiffs' damages, i.e., the death of their mother. (Id. at p. 796.) The court reasoned: " 'Even though persons are not acting in concert, if the result produced by their acts are indivisible, each person is held liable for the whole. Death, burning of a building or sinking of a boat are such indivisible results.' " (Ibid., quoting Finnegan, supra, 35 Cal.2d at p. 433.) Further, citing American Motorcycle, supra, 20 Cal.3d 578, the appellate court reasoned that any potential inequity to a particular defendant in finding him or her jointly and severally liable for the entire amount of the plaintiffs' damages was mitigated by such defendant's right to equitable indemnity: "Principles of equitable indemnity would enable these defendants to sort out their respective liabilities. It does not affect the right of a plaintiff to recover the entire judgment from any one of them. [Citation.]" (Sanchez, at pp. 796-797.)
Dominguez relies on Carr v. Cove (1973) 33 Cal.App.3d 851 (Carr) in arguing that joint and several liability is inappropriate here. In Carr, the plaintiff was involved in an October 1966 automobile accident, sustaining injuries to her left chest, left shoulder, and left arm, and had resulting pain in her head and upper neck. (Id. at p. 856.) In December 1966—when she had recovered or was recovering from those injuries and had planned to return to work—the plaintiff was involved in a second automobile accident, sustaining injuries to her right shoulder, arm and neck, and complained of migraine headaches; conservative treatment of those injuries was unsuccessful, and she ultimately had surgery and a cervical laminectomy. (Ibid.) She filed a single action against both drivers and settled her claim arising out of the first accident for $50,000. (Id. at pp. 852-853.) The plaintiff obtained a $35,000 jury verdict against the driver involved in the second accident. (Id. at p. 853.) On appeal, the defendant challenged the trial court's refusal to grant her a setoff of the $50,000 settlement against the verdict based upon a theory of joint and several liability. (Ibid.) The appellate court rejected the challenge, drawing a distinction between separate torts and overlapping liability for the same injury, concluding that the two automobile accidents were separate torts in which "the separate injuries suffered by [the] plaintiff were not inherently indivisible." (Id. at p. 856.)
Carr is distinguishable and does not support Dominguez's position here. The defendants' dumping on the Property occurring over approximately one year did not involve separate torts with separate, divisible injuries. The materials dumped by the defendants could not be separately attributed to the conduct of specific defendants. In fact, there was evidence that, as to the dumping activities of Dominguez and Villa/JVT, some of the materials dumped by them on Site 2 were mixed together and pushed over a cliff. And the fact that there was no evidence that Dominguez dumped any fill on Site 3 does not negate a finding of joint and several liability. The County did not allege separate claims for nuisance as to Sites 1, 2, and 3; it alleged that the defendants' activity created a nuisance per se on the Property generally.
Although not cited in its opening brief, Dominguez relies on Connor v. Grosso (1953) 41 Cal.2d 229 (Connor) in support of its position that joint and several liability was improperly imposed upon it here. In Connor, the defendants, husband and wife, were alleged to have committed the tort of trespass by dumping dirt on two occasions on the adjoining property of the plaintiff. (Id. at pp. 230-231.) Prior to the defendants' acquisition of their property, others (apparently not named as defendants) had deposited "a considerable amount of dirt" on the plaintiff's property. (Id. at p. 231.) After finding error in the imposition of liability upon the defendant wife on the sole basis that she held the property with her husband in joint tenancy (id. at p. 230), the Supreme Court addressed a substantial evidence challenge by the defendant husband, Grosso, as to the trial court's finding of the quantity of material he had dumped on the plaintiff's property and the cost of its removal. (Id. at pp. 231-232.) The high court concluded that "[t]he evidence, viewed most favorably to [the] plaintiff," did not support the trial court's findings as to the quantity of material dumped by Grosso, and the evidence did not show that it would be necessary to remove material previously dumped by others, present under material dumped by Grosso, in order to remove the material Grosso had dumped. (Id. at p. 232.) The Supreme Court observed: "Since Grosso did not act in concert with the other persons dumping dirt on the Connor land, he cannot be required to pay for removal of the dirt dumped by them. [Citations.] The judgment holds Grosso responsible for all the dirt fill on the Connor property and is thus without adequate support in the evidence." (Ibid.)
We do not read Connor, supra, 41 Cal.2d 229 as compelling the conclusion that it was error in this instance to impose joint and several liability for public nuisance upon the defendants, including Dominguez. First, there are significant procedural differences between the two cases. In Connor, the plaintiff landowner sued one party for damages for trespass, where there were apparently several others who had committed separate trespasses. Here, a governmental entity, the County, sued multiple parties, including the landowners, to abate a public nuisance, claiming that each was responsible for illegal dumping on the Property; in this lawsuit, the County did not seek damages. Second, unlike the present case, there is nothing in Connor—at least from the brief discussion presented in the case—suggesting that the question of joint and several liability as between Grosso and other trespassers was argued, let alone discussed, by the high court. Cases are not authority for propositions not considered. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.) Third, Connor is factually distinguishable as well. In Connor, there was nothing to suggest that defendant Grosso had any relationship with, or connection to, other parties who had dumped materials on the subject property. Here, Dominguez had an indirect connection with Villa and Gullicksen, since the evidence was that Dominguez's dumping of materials on the Property was a direct result of the agreement between Villa and Gullicksen in which the latter allowed the dumping in exchange for $100 per truckload.
In this respect, we deem it significant that the Connor court did not cite the landmark case concerning joint and several liability, Summers v. Tice, supra, 33 Cal.2d 80, that the Supreme Court had decided only five years before Connor.
In its reply brief, Dominguez also cites California Orange Co. v. Riverside Portland Cement Co. (1920) 50 Cal.App.522 (California Orange) in urging that the imposition of joint and several liability was error. There, the owner of an orange grove sued the owners of two cement mills for damages resulting from the depositing of dust from the mills upon the plaintiff's orange trees. (Id. at p. 523.) It is apparent that after trial, an appeal was filed by only one of the two defendants (hereafter, appellant mill). In the course of rejecting the appellant mill's sufficiency-of-the evidence challenge, the appellate court—in a passage relied on by Dominguez—noted: "The [defendant that did not appeal] and [appellant mill] were not joint tort-feasors. Their respective torts—wrongfully operating their respective cement plants in such a manner that deposits of cement dust, blown from the plants toward [the] plaintiff's orange grove, were incrusted upon the leaves of [the] plaintiff's trees—were several when committed, and did not become joint merely because of a commingling of the dust from the respective plants and a union of consequences proceeding from the several and independent tortious acts. [Citations.]" California Orange does not support Dominguez's claim of error. The case, like Connor, supra, 41 Cal.2d 229, is procedurally distinguishable. Further, like Connor, there is no indication that the plaintiff in California Orange urged that the two defendants should be held jointly and severally liable. To the contrary, the trial court apparently made no such finding, and instead apportioned the total damages awarded by the jury as between the two defendants. (California Orange, at pp. 525-526.) And the argument the appellate court addressed did not concern joint and several liability. Rather, the appellant mill—in not challenging the trial court's apportionment of the damage award itself—urged that there was insufficient evidence to support the trial court's conclusion that its facility had been the source of dust deposits " 'in any appreciable amount.' " (Id. at p. 526, original italics.) Therefore, the quoted passage of California Orange was simply obiter dictum that need not be followed in this case. (Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 474.)
Lastly, Dominguez argues on appeal, citing section C12-421(a) of the Ordinance, that it is possible that its dumping activities may have been exempted from the requirement of a grading permit, depending upon the quantity of fill for which it was responsible. Dominguez did not make this argument below—in either its opposing papers or at the hearing on the motion. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore [forfeited] the right to do so on appeal. [Citations.]" (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.) We therefore "ignore arguments, authority, and facts not presented and litigated in the trial court." (Bialo v. Western Mut. Ins. Co. (2002) 95 Cal.App.4th 68, 73.) This principle of forfeiture has been applied to a variety of challenges not raised until the time of appeal, including matters not raised in summary judgment proceedings. (See, e.g., In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 [failure to object to ambiguities in proposed statement of decision]; Fifth Day, LLC v. Bolotin (2009) 172 Cal.App.4th 939, 962 [failure to raise legal arguments in opposition to summary judgment]; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [failure to assert allegedly defective notice in connection with motion for summary judgment and failure to request continuance precluded procedural objection on appeal].) Dominguez's contention is therefore forfeited.
Counsel for Dominguez conceded at oral argument that this argument was not raised in the trial court.
C. Denial of Continuance Request Was Proper
1. Background
In addition to opposing the motion for summary judgment on the merits, Dominguez argued below that the hearing should be continued or dismissed because discovery was ongoing. It asserted that depositions of at least 10 individuals had not been completed. One of the individuals, R.J. Haas, was the general contractor for the job in which Dominguez procured the dirt it ultimately dumped on the Property; Dominguez contended that discovery from him was therefore "essential." In its continuance request made in its opposition papers filed in June 2012, Dominguez also alluded to the County's allegedly dilatory production of relevant documents and allegedly deficient responses to written discovery.
The County opposed the continuance request, arguing that Dominguez had not shown in good faith "how additional discovery would create a triable issue . . . [or] that any of [its] arguments would be different if [it] were allowed to conduct additional discovery, or how additional discovery would defeat the County's summary judgment motion." The County also asserted that Dominguez had "misrepresented the discovery in the case to date," and it had made "inaccurate and incomplete statements" concerning the status of outstanding depositions.
In its order, the court concluded that Dominguez had failed to make a showing of (1) diligence in conducting discovery; (2) facts establishing a likelihood that evidence to controvert the motion might exist and why it was necessary to oppose the motion; (3) why such evidence could not have been presented in time for the motion; and (4) the specific steps intended to elicit such evidence. With respect the first showing, the court stated that Dominguez had been a part of the case since February 2011 (i.e., approximately one year and five months before the summary judgment hearing) and "it ha[d] not shown diligence in discovery." It therefore denied the request for continuance.
At the hearing, Dominguez did not argue the matter of its request for a continuance of the motion.
2. Discussion of Continuance Request
Dominguez contends that the court erred in denying the continuance request. It contends, in rather conclusory fashion, that through the declaration of its counsel, it made the requisite showing that there were facts essential to opposing the motion that could be obtained through discovery and the reasons why additional time was needed to elicit those facts.
In violation of rule 8.204(a)(1)(C) of the California Rules of Court, Dominguez has failed to include a single record cite in support of this highly fact-intensive inquiry.
At the time of the court's ruling on the request, former section 437c, subdivision (h), provided in pertinent part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." (Stats. 2011, ch. 419, § 3, pp. 4223-4224; see § 437c, subd. (h).) Such a declaration by the party opposing summary judgment "should show the following: (1) 'Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion'; (2) 'The specific reasons why such evidence cannot be presented at the present time'; (3) 'An estimate of the time necessary to obtain such evidence'; and (4) 'The specific steps or procedures the opposing party intends to utilize to obtain such evidence.' [Citation.]" (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532, original italics (Johnson).)
The language of subdivision (h) of section 437c is not materially different from the language in former subdivision (h) in effect at the time of the motion. We will therefore hereafter refer to subdivision (h) without using the prefatory "former."
Subdivision (h) of section 437c "requires more than a simple recital that 'facts essential to justify opposition may exist.' . . . [¶] . . . The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented." (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715-716 (Lerma); see also Johnson, supra, 205 Cal.App.4th at p. 532.)
"When a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance request. [Citation.] 'Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under [Code of Civil Procedure] section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion.' [Citation.]" (Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 1428; see also Johnson, supra, 205 Cal.App.4th at p. 532.)
The trial court correctly found that Dominguez did not make the necessary showing for a mandatory continuance under section 437c, subdivision (h). While listing a number of depositions that had not yet been completed, Dominguez did not identify the "facts essential to justify opposition" that potentially existed that would have been derived from that discovery. (Ibid.) Nor did it identify " '[t]he specific reasons why such evidence [could not] be presented at the present time,' " present . . . '[a]n estimate of the time necessary to obtain such evidence,' . . . [or state] '[t]he specific steps or procedures [it] intend[ed]to utilize to obtain such evidence.' [Citation.]" (Johnson, supra, 205 Cal.App.4th at p. 532, original italics.) And although Dominguez specifically mentioned Haas as a potential deponent who could provide relevant information as the contractor involved in the project from which it had obtained dirt that was dumped on the Property, Dominguez did not identify any facts that might be obtained from his deposition that were "essential to justify opposition" (§ 437c, subd. (h)), such as, for example, facts refuting the otherwise undisputed evidence that Dominguez dumped approximately 25 truckloads of fill on the Property. Moreover, while Dominguez pointed to outstanding discovery disputes with the County, it did not show the potential existence of essential facts that could become available through a resolution of those disputes. Dominguez therefore did not make the necessary showing that "facts essential to justify opposition may exist but cannot, for reasons stated, be presented" (ibid.) that would have required the court's granting of the continuance request.
Our conclusion that there was no showing for a mandatory continuance under section 437, subdivision (h) does not end our inquiry. "The trial court was, nevertheless, free to grant a continuance under its broad discretionary power. [Citation.]" (Johnson, supra, 205 Cal.App.4th at p. 533.) The failure of the declaration of Dominguez's counsel to provide sufficient detail concerning how the outstanding discovery (e.g., the various depositions yet to be completed) would likely provide substantive assistance in opposing summary judgment justified the denial of the continuance request. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255.) Furthermore, the trial court, in exercising its discretion to deny the continuance request, could appropriately—as it, in fact, did—consider Dominguez's lack of diligence in seeking discovery. (Id. at p. 257; Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.) Accordingly, from a review of the circumstances presented below in support of, and in opposition to, the continuance request, the court's denial of that request did not constitute an abuse of discretion. (See Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [no abuse of discretion in denying continuance of summary judgment where declaration failed to "explain why the information in the requested documents was essential to opposing" the motion]; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 102 [from review of entire circumstances presented, including sufficiency of declaration showing essential facts to be discovered and showing of diligence, no abuse of discretion found in denial of request to continue summary judgment hearing].)
DISPOSITION
The judgment entered on the underlying order granting summary judgment is affirmed.
/s/_________
WALSH, J. WE CONCUR: /s/_________
RUSHING, P.J. /s/_________
GROVER, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.