Memorandum of Points and Authorities

Cal. Super. - 5th Dist.August 23, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fresno Counly Counsel 2220 'l'ulurc Street Fiflh Float l'rcsno, CA 9372l DANIEL C. CEDERBORG EHLED County Counsel 7 State Bar NO. 124260 12/9/2021 3:21 PM KYLE R- ROBERSON Superior Court of California Deputy County Counsel i State Bar No. 285735 County of Fresno FRESNO COUNTY COUNSEL By: Louana Peterson, Deputy 2220 Tulare Street, Suite 500 Fresno, California 93721 Telephone: (559) 600-3479 Facsimile: (559) 600-3480 kroberson@fresnocountyca.gov Exemptfrom Filing Fees Pursuant .. TG VthS‘t' 6103 Attorneys for Plalntlffs o ovemmen o e eL um COUNTY OF FRESNO and THE PEOPLE OF THE STATE OF CALIFORNIA SUPERIOR COURT OF CALIFORNIA COUNTY 0F FRESNO, CIVIL DIVISION COUNTY OF FRESNO; and Case N0. 21CECG02474 THE PEOPLE OF THE STATE 0F CALIFORNIA, by and through the COUNTY OF FRESNO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION Plaintiffs, FOR PRELIMINARY INJUNCTION V. DATE: March 3, 2022 TIME: 3:30 p.m. FARAZ GILL, an Individual; and DOES 1 DEPT: 502 through 50 inclusive, Defendants Action filed: August 23, 2021 ' Trial Date: Not Yet Assigned [Proposed Order and Preliminary Injunction filed concurrently] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - 2 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table of Contents Table Of Authorities ....................................................................................................................... 3 I. Introduction ................................................................................................................................. 5 II. Factual Background.................................................................................................................... 6 A. Defendant Has Held and Continues to Hold Large, Disruptive, and Dangerous Parties at the Property .................................................................................................................................. 6 B. Calls For Service at the Property ......................................................................................... 7 C. History of Dangerous, Disruptive and Outrageous Parties at the Property ......................... 8 1. Parties In July 2021 and August 2021 .............................................................................. 9 2. Parties From September 11, 2021 to October 30, 2021 ................................................. 10 D. Nuisance Of The Neighborhood ........................................................................................ 12 III. Standard Of Review ................................................................................................................ 13 IV. Argument ................................................................................................................................ 14 A. Plaintiffs Are Likely to Prevail on the Merits .................................................................... 14 1. Defendant’s Use of the Property Constitutes a Per Se Public Nuisance ........................ 15 a. Defendant’s Use of the Property Violates the Fresno County Zoning Ordinance ..... 15 b. Defendant’s Parties Violates the County’s Social Host Ordianance.......................... 15 c. Defendant’s Conduct Constitutes Unfair Business Practices ..................................... 17 2. Defendant’s Use of the Property Constitutes a General Public Nuisance...................... 15 B. Plaintiffs Are Entitled to Preliminary Injunctive Relief .................................................... 18 1. The Rebuttable Presumption Applies ............................................................................. 18 2. Defendant Cannot Show Grave or Irreparable Harm from an Injunction ...................... 18 C. Plaintiffs’ Exempt From Filing an Undertaking or Posting a Bond .................................. 19 V. Conclusion ............................................................................................................................... 19 - 3 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table Of Authorities State Cases Angelucci v. Century Supper Club (2007) 41 Cal.4th 160 ........................................................... 16 Cel-Tech Communication, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163 .. 16 Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350 ............. 17 City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378 ............................................................. 15 City of South San Francisco v. Cypress Law Cemetery Assn. (1992) 11 Cal.App.4th 916 .......... 17 County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292 ............................. 17 Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377 ........................................................ 16 Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499 ................................................... 16 IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 .............................................................. 13, 18 People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 ................................................................. 13 People ex Rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866 ....................................................... 18 People v. Conagra Grocery Prods. Co. (2017) 17 Cal.App.5th 51 .............................................. 17 Federal Cases Dallas v. Stanglin (1989) 490 U.S. 19 .......................................................................................... 19 Frisby v. Schultz (1988) 487 U.S. 474 .......................................................................................... 17 Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753..................................................... 19 Statutes Cal. Bus. & Prof. Code Section 17200 ..................................................................................... 5, 16 Cal. Bus. & Prof. Code Section 17203 ................................................................................... 15, 17 Cal. Bus. & Prof. Code Section 17210 ........................................................................................... 5 Cal. Civ. Code Code Section 3494 ............................................................................................... 14 Cal. Civ. Code Code Section 3479 ........................................................................................... 5, 14 Cal. Civ. Code Code Section 3480 ..................................................................................... 5, 14. 17 Cal Code of Civ. Proc. Section 527 ........................................................................................ 13, 18 Cal Code of Civ. Proc. Section 529 .............................................................................................. 19 - 4 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal Code of Civ. Proc. Section 731 ........................................................................................ 14, 18 Cal Code of Civ. Proc. Section 995.220 ....................................................................................... 19 Cal. Gov. Code Section 25858 ...................................................................................................... 14 Other Authorities Fresno County Zoning Ordinance Code Section 822.4 .......................................................... 15, 16 Fresno County Zoning Ordinance Code Section 822.4, subd. B .................................................... 5 Fresno County Zoning Ordinance Code Section 823 ..................................................................... 6 Fresno County Zoning Ordinance Code Section 823.4 .................................................. 5, 6, 15, 16 Fresno County Zoning Ordinance Code Section 1.16.030 ....................................................... 5, 15 Fresno County Zoning Ordinance Code Section 10.16.050 ......................................................... 16 Fresno County Zoning Ordinance Code Section 10.16.50 ........................................................... 15 Constitutional Provisions Cal. Constitution Art. XI, Section 7 .............................................................................................. 14 - 5 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION The COUNTY OF FRESNO (the “County”) and THE PEOPLE OF THE STATE OF CALIFORNIA (hereinafter collectively referred to as “Plaintiffs”) bring this Motion for a Preliminary Injunction against FARAZ GILL (“Defendant”) to enjoin Defendant’s unlawful activity and use of his property. This action arises out of the unlawful use of the residential property located at 5450 North Van Ness Boulevard, Fresno, California 93711, further identified by Assessor’s Parcel Number 415-360-15 (hereinafter the “Property”). Since May 2021, Defendant has held prohibited events and large parties at the Property. As result of Defendant’s larges, disruptive and dangerous parties, criminal and nuisance activity has dramatically increased in the surrounding area, generating numerous public complaints and calls for service, necessitating constant law enforcement intervention and application of resources, and substantially and unreasonably interfering with the health and well-being of the community. Defendant’s prohibited use of the Property as a commercial event venue, violates the Zoning Division of County of Fresno (“Zoning Ordinance”) §§ 822.4-B and 823.4. Despite demands by local law enforcement officials and County staff to cease the parties and events, Defendant has failed to do so. By operating the property as a prohibited commercial event venue in repeated violations of state and local law and as a public nuisance, Defendant has engaged in unfair and unlawful business practices in violation of the Unfair Competition Law (“UCL”), Business and Professions Code §§ 17200-17210. By continuing to engage in the prohibited use of a commercial event venue and holding large, disruptive parties, Defendant has maintained the property as a public nuisance, as defined in Ordinance Code of Fresno County (“Ordinance Code”) § 1.16.030, and Civil Code §§ 3479-3480. Defendants have created and maintained a public nuisance in violation of local and state law and have continued to do so despite notice from the County and repeated contacts with the Fresno County Sheriff’s Office (“FSO”) that his activity and behavior is both unlawful and unsafe. Given Defendant’s flagrant disregard for the law, and the serious health, safety, and quality of life issues he has created for the neighborhood, Plaintiffs seek a preliminary injunction - 6 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enjoining Defendant from holding parties and events and using the Property in a manner that constitutes a public nuisance. II. FACTUAL BACKGROUND A. Defendant Has Held and Continues to Hold Large, Disruptive, and Dangerous Parties at the Property The Property is owned by Defendant and his spouse Firdose Gill, as husband and wife as joint tenants. (Declaration of Daniel Gutierrez in Support of Motion for a Preliminary Injunction (“Gutierrez Decl.”), ¶ 6, Exh. A.) Firdose Gill filed a petition for marital dissolution on October 30, 2020, in the Family Law Division of the Superior Court of California, County of Fresno in case number 20CEFL04497. (Declaration of Ronald Hayes in Support of Plaintiffs’ Motion for Preliminary Injunction (“Hayes Decl.”), ¶ 8.) Ms. Gill has a pending motion to sell the Property pending in the family law proceeding. (Plaintiffs’ Request for Judicial Notice in Support of Motion for Preliminary Injunction (“RJN”), No.1.) Defendant is in exclusive control and possession of the Property and resides on the Property. Ms. Gill does not appear to have possession or control of the Property and does not reside on the Property. (Hayes Decl., ¶ 8.) At a hearing on August 17, 2021 in the family law proceeding, Defendant stipulated that he was to have no parties at the Property unless he obtained title under his name and agreed to have no more than ten (10) people at the marital residence at any given time. Defendant further agreed that no noise is to be heard outside the home that would be considered a nuisance to the residential area. (Hayes Decl., ¶ 17, RJN, No. 2, Exh. 2.) Defendant continues to hold parties despite this stipulation. Plaintiffs are concerned that Defendant will retain title or an interest in the Property. The Property is zoned R-1-EH (Single Family Residential Estate) under Section 823 of the Zoning Ordinance. (Gutierrez Decl., ¶¶ 5, 7.) According to Section 823, properties with the R-1-EH zoned district designation are intended to provide for the development of single-family residential estate homes and to protect the general welfare by maintaining the quiet enjoyment of a single-family residential neighborhood. (RJN, No. 4, Exh. 4.) - 7 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Calls for Service at the Property From May 23, 2021 to August 15, 2021, FSO has responded to approximately twenty- five (25) calls for service, compared to just two calls for service from January 1, 2021 to April 13, 2021. (Declaration of Edward Mayo in Support of Plaintiffs’ Motion for Preliminary Injunction (“Mayo Decl.”), ¶¶ 13, 24-25.) From September 11, 2021 to October 30, 2021, FSO received seven (7) calls for service. (Mayo Decl., ¶¶ 28-32.) These calls for service are primarily from neighboring property owners who have been and continue to be tormented by Defendant’s outrageous parties. (Declaration of Robert A. McCaffrey in Support of Motion for Preliminary Injunction (“McCaffrey Decl.”), ¶ 10; Declaration of Johnny Valov in Support of Motion for Preliminary Injunction (“Valov Decl.”), ¶¶ 10-11.) These calls for service have progressed from noise complaints to 9-1-1 calls related to assaults, assaults with deadly weapons, resisting arrest, public intoxication, brandishing of firearms, and other emergencies and disturbances. (Mayo Decl., ¶ 13.) On June 6, 2021, FSO received a complaint from the Fresno City Police Department (“Fresno PD”) by an individual leaving a party at the Property with approximately 200-300 individuals in attendance and approximately 40 people at the party engaged in physical altercations (Mayo Decl., ¶ 13a-b.) FSO also received a report from the California Highway Patrol of a 9-1-1 call regarding this same party of a male subject choking a female subject and prior calls that night of a large party and multiple subjects brandishing firearms. (Id., at ¶ 13c.) On June 16, 2021, FSO received a complaint of a party and loud music emanating from the Property and subjects running around half-naked in the street near the Property. (Id., at, ¶ 13d.) On July 11, 2021, FSO received complaints of excessive noise emanating from the Property and juveniles in the front yard and inside the residence wearing lingerie and consuming alcohol. (Id., at ¶ 13f-g.) In the early morning hours of July 12, 2021, FSO received a report from Fresno PD of a large and loud party at the Property and 50 to 100 subjects engaged in physical altercations and obnoxious behavior. The reporting party also stated that an individual at the party pulled out a gun. (Id., at ¶ 13h.) On July 20, 2021, FSO received a complaint from a party attendee that her vehicle was stolen. (Id., at ¶ 13l.) On July 31, 2021, FSO formed a public safety law enforcement - 8 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detail in response to Defendant’s numerous, large, dangerous, and out-of-control parties. This detail was established to promote an increased patrol in the area to ensure the safety of the public and surrounding properties due to the large crowds attending Defendant’s parties and the threat to the community’s health and safety. (Id., at ¶ 12.) Defendant briefly moderated the activity on the Property after the August 17, 2021 hearing in his family law proceeding and service of Plaintiffs’ Complaint on August 31, 2021. (Mayo Decl., ¶ 28,) However, Defendant quickly resumed his unlawful conduct and FSO received additional calls for service. On September 11, 2021, FSO received a complaint from a neighboring property owner that loud music was emanating from the Property. (Id., at ¶ 29.) On October 3, 2021, FSO received a call for service from a neighboring property owner that there were multiple vehicles arriving at the Property dropping off multiple females. (Declaration of Matthew Perez in Support of Motion for a Preliminary Injunction (“Perez Decl.”), ¶ 8.) On October 28, 2021 at approximately 10:23 p.m., FSO received a complaint from a neighboring property owner of a loud party at the Property. (Declaration of Wesley Ward in Support of Plaintiffs’ Motion for Preliminary Injunction (“Ward Decl.”), ¶ 10.) On October 29, 2021, at approximately 2:58 a.m., FSO received a complaint from a neighboring property owner of loud music coming from the residence on the Property. (Mayo Decl., ¶ 29.) On October 29, 2021 at approximately 6:21 a.m., FSO received a complaint from a reporting party who was walking by the Property that morning and observed two (2) female subjects and one (1) male subject involved in a verbal disturbance. (Ibid.) On October 30, 2021, FSO received a complaint from a neighboring property owner of a large party at the Property and vehicles parked in the reporting party’s driveway. (Ibid.) C. History of Dangerous, Disruptive and Outrageous Parties at the Property Defendant has promoted his parties and events on social media. One such social media post promoted “a lingerie party” held at the Property on July 10, 2021. (Mayo Decl., ¶ 14, Exh. A.; Hayes Decl, ¶ 13.) This social media promotion notes only that red, pink and white lingerie is to be worn, and that the event will have two DJs and an open bar. This promotion further lists that a $250.00 general admission fee will be charged to uninvited guests. (Mayo, Decl., ¶ 14, - 9 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exh. A.) ) In social media posts obtained from certain attendees of the July 10-11, 2021 lingerie party, a large number of people can be seen gathered inside the residence, and loud music can be heard, with the scene having an overall nightclub atmosphere. These social media posts also show numerous female attendees dressed in only lingerie and other exceedingly revealing clothing. (Mayo Decl., ¶ 15.) Defendant promoted another party to be held on July 16, 2021 after a hip hop concert. This social media promotion notes that a $100.00 entry fee will be charged for male attendees and no entry fee will be charged female attendees. (Mayo Decl., ¶ 16, Exh. B; Hayes Decl., 13.) 1. Parties in July 2021 and August 2021 On July 17, 2021, Fresno County Sheriff’s deputies responded to multiple calls because of a party regarding excessive noise, multiple assaults, multiple instances of public intoxication, and a report of one individual brandishing a firearm. (Mayo Decl., ¶ 17.) Multiple subjects were reported to be in the front yard of the Property involved in a physical altercation and a male attendee pulled out a black pistol and pointed it at a security guard working the event. (Ibid.) FSO deputies obtained statements from security guards working the event that the subject believed to be brandishing the firearm threw the weapon over a neighboring property’s fence. FSO deputies recovered a black .9mm Polymer80 and a black .9mm Glock in the area where the subject threw the weapon over the fence. (Ibid.) This party resulted a multiple arrests of party attendees for assaults with firearms, assaults on security guards working the event, resisting peace officers, and public intoxication. (Ibid.) FSO deputies contacted Defendant regarding the large and out-of-control party, and he admitted that he charged a fee for entry into his events held at the Property. (Id., at ¶ 18, Exh. C.) On July 24, 2021, FSO deputies responded to a 9-1-1 call regarding an unknown emergency at the Property. (Declaration of Kenneth Chapple in Support of Motion for Preliminary Injunction (“Chapple Decl.”), ¶ 9.) Defendant reported to the responding deputies that 20 to 30 uninvited individuals had entered his residence and refused to leave and that four to five of these uninvited individuals assaulted Defendant and Defendant’s brother. (Chapple Decl., ¶ 9; Declaration of Juan Galindo in Support of Motion for Preliminary Injunction - 10 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Galindo Decl.”), ¶ 8.) Defendant’s brother reported to FSO deputies that he suffered significant injuries. (Galindo Decl., ¶ 8.) Defendant reported that he suffered abrasions to his face and that he believed that the suspects that assaulted him and his brother were members of the local Dogg Pound Gang. Responding FSO deputies also interviewed Darius Zeno, who attended the party that evening. (Galindo Decl., ¶ 8.) Mr. Zeno is an individual with priors for pimping and pandering. (Mayo Decl., ¶ 20.) On July 31, 2021, FSO’s public safety detail responded to another large party held at the Property. (Mayo Decl., ¶ 21.) ) FSO received a call from a neighboring property owner who reported loud music and over 100 people in attendance. (Valov Decl, ¶10b-c, Mayo Decl, ¶ 21.) During this same party and in the early morning hours of August 1, 2021, FSO deputies responded to a 9-1-1 call that a female party attendee had fallen and hit her head during a disturbance and was lying unconscious inside the residence. (Chapple Decl, ¶ 10.) When FSO deputies arrived on scene, they could clearly see an injured female lying unconscious on a couch through the large front door constructed almost entirely of glass. (Id., at ¶ 11.) However, the deputies were met by Defendant who refused the deputies entry to render aid to the injured woman. (Ibid.) Despite the deputies’ pleas to be allowed in to render aid, Defendant laughed and demanded the deputies get a warrant. After Defendant continued to refuse entry, he was arrested for obstructing and resisting a peace officer. (Ibid.) The injured victim was 19 years old. According to party attendees, she struck her head on a granite counter-top after she was struck in the face while trying to break up a fight between two male party guests. (Id., ¶ 12.) Friends of the female victim, both 18 years old, informed the deputies that they had learned about the party at the Property from friends and social media. (Ibid.) Defendant has a pending criminal case with the Criminal Division of the Superior Court of California, County of Fresno, in case number M21909614 as a result of this incident. (RJN, No. 10.) On August 16, 2021, a neighboring property owner found an unused 9mm round in her front yard. (Hayes Decl., ¶ 16.) 2. Parties from September 11, 2021 to October 30, 2021 Defendant briefly appeared to moderate his behavior after the family law proceeding on August 17, 2012 and the service of Plaintiffs’ Complaint in this action. However, Defendant - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 soon resumed his irresponsible behavior. On September 11, FSO received a call for service regarding loud music emanating from the Property. (Hayes Decl., ¶.) At about 1:02 a.m, FSO deputies responded to this call for service and observed eleven (11) vehicles parked in the driveway and heard loud music from Van Ness Boulevard whenever the front door to the residence was opened. (Declaration of Jacob Woesner in Support of Motion for Preliminary Injunction (“Woesner Decl.”), ¶ 10.) The responding deputies believed there were more than ten (10) individuals at the Property despite the late hour. (Ibid.) On October 3, 2021, FSO deputies responded to calls for service about suspicious activity at the Property and reports from neighboring property owners that multiple vehicles were dropping off numerous party guests at the Property. (Declaration of Matthew Perez in Support of Motion for Preliminary Injunction (“Perez Decl.”), ¶ 10.) At approximately 2:56 a.m., an FSO deputy arrived. The Deputy Perez observed numerous vehicles enter and part inside the gated area of the Property and individuals loiter outside looking for a way to enter. (Ibid.) The deputy observed nineteen (19) vehicles parked inside the gated portion of front of Property and another seventeen (17) vehicles parked on Robinwood Lane. (Ibid.) The deputy also heard yelling and loud talking from the party guests while the deputy stood on Robinwood Lane and outside of the curtilage of the Property. (Ibid.) On October 10, 2021, FSO deputies were conducting patrol checks in the area near the Property as part of the public safety law enforcement detail. (Mayo Decl., ¶ 31.) In the early morning hours, FSO deputies observed numerous vehicles arrive at the Property and several individuals gain entry into the Property. At approximately 3:20 a.m., FSO Dispatch received a call for service from Defendant who reported that multiple uninvited individuals jumped his gate and attempted to enter the residence. (Id. at ¶ 32.) When the deputies contacted Defendant about this incident, he yelled and made accusations against the deputies, despite repeated requests to lower his voice and return inside because of the early morning hour. (Ibid.) On October 28, 2021, FSO received a call for service from a neighboring property owner of a loud party at the Property. (Valov Decl., ¶¶ 9, 10f; Hayes Decl., ¶ 19d.) FSO also received calls for service regarding Defendant’s loud party on October 29, 2012, at approximately 2:58 - 12 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a.m., and 6:21 a.m. (Hayes Decl., ¶ 19e-f.) At approximately 10:29 p.m., on October 28, 2021, FSO deputies arrived at the Property and contacted private security guards hired by Defendant. (Declaration of Jacob Woesner in Support of Motion for Preliminary Injunction (“Woesner Decl.”), ¶ 10.) The deputies observed flashing lights from inside the residence and about two dozen vehicles parked around the perimeter of Property. (Ibid.) When the deputies reported to Defendant that a neighbor called to report a noise complaint, Defendant yelled expletives at the deputies. (Ibid.) Surveillance video of the Property from a camera mounted on a neighboring residential property across Van Ness Boulevard captured the party on the night of October 28, 2021 and the early morning hours of October 29, 2021. (Hayes Decl., ¶ 20.) On the video, constant music can be heard despite the camera’s placement away from the Property and across Van Ness Boulevard. (Hayes Decl., ¶¶ 20a-r.) The volume of the music increases dramatically when the front door to the residence is opened while people enter and exit. (Ibid.) On numerous occasions party guests are heard screaming and yelling despite the late hour. (Ibid.) Multiple vehicles are seen coming and going from the Property at all hours of the night. (Hayes Decl., ¶¶ 20a-r, 21. ) This video corroborates the noise complaints and observations by FSO deputies. D. Nuisance of the Neighborhood Neighboring property owners report that beginning in the Spring 2021, Defendant began to hold large and out of control parties. (McCaffrey Decl., 7.) Defendant generally held parties almost every weekend since Spring 2021 to August 2021. (Ibid.) Defendant would hold these parties on Friday and Saturday nights. These parties would start at approximately 10:00 p.m. and last until 5:00 a.m. or 6:00 a.m., the next morning. (Ibid.) Sometimes Defendant would even hold parties in the middle of the week. One week Defendant held parties over four (4) or five (5) consecutive nights. (Valov Decl. ¶ 7.) The neighbors report that during these parties they hear loud music, car alarms going off, drag racing when party goers leave, and people yelling profanity when leaving the Property. (McCaffery Decl., ¶ 9; Valov Decl., ¶ 8.) At times, the neighbors have seen strobing lights coming from inside and outside the residence. (McCaffery Decl., ¶ 9.) On numerous occasions party guests would park in front of neighboring properties, and in the driveways or in front of the - 13 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 driveways of neighboring property owners. (McCaffery Decl,, ¶ 8.) On multiple occasions, FSO towed away vehicles that obstructed the neighbors’ driveways. (Ibid.) On the mornings after these parties, the neighbors have observed young women half-dressed wearing nothing but lingerie and other revealing attire leaving the Property in broad daylight and people urinating on Van Ness Boulevard in front of Defendant’s residence. (McCaffery Decl., ¶ 9; Valov Decl., ¶ 8; Mayo Decl., ¶ 23, Exh. D.) After every party, trash, and debris, including but not limited to, plastic red cups, broken glass, and bottles of alcohol, is scattered across the front yard of the Property, the yards of neighboring property owners, and Van Ness Boulevard. (McCaffery Decl., ¶ 9; Valov Decl., ¶ 8.) The loud music, loud party guests, excessive vehicle noise, and strobing lights have interfered with the neighbors’ ability to sleep and quiet enjoyment of their own homes. (McCaffery Decl., ¶ 9; Valov Decl., ¶¶ 8, 13.) These neighbors do not feel safe in their own homes and neighborhood and they should not be expected to have to expose their children and grandchildren to Defendant’s party guests and the aftermath of his parties. (McCaffery Decl., ¶13; Valov Decl., ¶¶ 11-12.) III. STANDARD OF REVIEW Section 527 of the California Code of Civil Procedure authorizes the court to grant a preliminary injunction upon a satisfactory showing “that sufficient grounds exist.” While the decision to grant the preliminary injunction rests in the discretion of the trial court, California courts have repeatedly confirmed that public nuisances are the proper subject of such relief. (See e.g., IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 68-69, fn. 3; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 (“Acuna I”), 1108-1109, 1120 [“public nuisances are enjoinable . . . from their inherent tendency to injure or interfere with the community’s exercise and enjoyment of rights common to the public”].) The California Supreme Court has adopted a specific test where, as here, a governmental entity seeks a preliminary injunction to enjoin the alleged violation of an ordinance or statute that specifically provides for injunctive relief. (IT Corp., supra, 35 Cal.3d at p. 72.) If the governmental entity “establishes that it is reasonably probable it will prevail on the merits, a - 14 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant.” (Ibid.) This presumption arises because a legislative body has already determined: (1) the proscribed activity is contrary to the public interest; (2) significant harm will result from the proscribed activity; and (3) injunctive relief is an appropriate way to protect against that harm. (Id., at pp. 70-71.) Once the rebuttable presumption is established, a court should only evaluate the relative actual harm to the parties only “[i]f the defendant shows it would suffer grave or irreparable harm from the issuance of the preliminary injunction.” (Id., at p. 72.) “[T]he clearer the violation, the less the trial court need be concerned with balancing of harm.” (Id., at p. 72, fn. 5.) IV. ARGUMENT A. Plaintiffs Are Likely to Prevail on the Merits Plaintiffs are likely to succeed on the merits of their public nuisance claim because Defendant’s use of the Property and hosting of dangerous and outrageous parties violates the Fresno County Ordinance Code and Zoning Ordinance Code and unquestionably constitutes a substantial and unreasonable interference with the health and well-being of the community. Local governments in California have broad discretion to declare and abate local nuisances. The California Constitution authorizes counties to make and enforce within their limits all local, police and sanitary ordinances, and other such regulations not in conflict with general law. (Cal. Const., art. XI, § 7.) By ordinance a county board of supervisors may declare what constitutes a nuisance, establish procedures for its abatement, and recover costs. (Gov. Code § 25858) Independent of local law, counties also have the power to abate general public nuisances. (Civ. Code, § 3494.) A public nuisance is “anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction of the free use of property, so as to interfere with the comfortable enjoyment of life or property,” which affects a community or considerable number of persons. (Civ. Code, §§ 3479-3480.) Section 731 of the Code of Civil Procedure expressly authorizes county attorneys to bring an action on behalf of the people of the State of - 15 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California to abate a nuisance. 1. Defendant’s Use of the Property Constitutes a Per Se Public Nuisance Defendant’s use of the Property, his dangerous and outrageous parties, and the foreseeable consequences of these parties are per se public nuisances under state and local law. The Fresno County Board of Supervisors has declared a public nuisance exists as follows: “Any condition, act, or omission declared by any statute of the State of California or any provision of the Ordinance Code of Fresno County and/or Zoning Division of the County of Fresno to be declared a public nuisance.” (Ordinance Code § 1.16.030.) Defendant has and continues to violate Zoning Ordinances §§ 822.4, 823.4; and Ordinance Code § 10.16.50 (‘Social Host Ordinance”).1 Business and Professions Code § 17203 specifically provides for injunctive relief to abate violations of the UCL. Plaintiffs only have to prove Defendants are violating or are likely to again violate these provisions to establish the existence of a nuisance subject to abatement at trial. (See City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382 [“Nuisance per se is so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance”] (internal quotation omitted.).) a. Defendant’s Use of the Property Violates the Fresno County Zoning Ordinance Commercial uses are prohibited for parcels zoned R-1-E and R-1-EH.2 (Zoning Ordinance §§ 822.4, 823.4.) Here, Defendant charges an entry fee to attend his parties, frequently hires private security and commercial event promoters, and creates an overall nightclub atmosphere, and each of these actions supports a finding that Defendant’s use of the Property and his frequent parties is a prohibited commercial use in violation of Zoning 1 These provisions provide for injunctive relief: Zoning Ordinance § 822 states “The provisions of the [Zoning Ordinance] may be enforced by . . . a civil action or proceedings for the abatement and removal and the enjoining thereof in the manner proscribed by law.” Ordinance Code § 1.13.020 states “In addition to all other legal remedies, criminal or civil, which may be pursued by the county to address any violation of the [Ordinance Code] . . . an administrative citation my be issued . . . . Ordinance Code § 1.16.090 states “The County of Fresno does not waive its rights to seek other remedies or procedures.” 2 The Zoning Division defines “commerce” as “the purchase, sale, or other transaction involving the handling or disposition of any article, substance or commodity for profit or livelihood, including and [in] addition [to]. . . recreational and amusement enterprises conducted for profit. . . .” (Fresno County Zoning Division § 803.5.) - 16 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance §§ 822.4 and 823.24. Thus, Defendant’s violation of the Zoning Ordinance is subject to abatement as a nuisance per se. (Id., at § 822.) b. Defendant’s Parties Violates the County’s Social Host Ordinance An owner of property who knowingly, permits, allows and host parties where persons under the age of twenty-one (21) years old are being served or consume alcoholic beverages violates the County’s Social Host Ordinance. (Ordinance Code § 10.16.050.) Here, Defendant has hosted parties where persons under the age of twenty-one (21) years old have been in attendance. (Chapple Decl, ¶¶ 10-12.) Defendant frequently promotes that his parties will have an open bar. (Mayo Decl., Exhs. A, B.) Thus, Defendant is knowingly hosting parties where individuals are served and/or consume alcohol and permits or allows underage individuals to consume alcohol in violation of Ordinance Code § 10.16.050, and is a nuisance per se. c. Defendant’s Conduct Constitutes Unfair Business Practices California’s Unfair Competition Law prohibits unfair competition, and includes any unlawful, unfair, or fraudulent business act or practice. (Bus. & Prof. Code § 17200.) The UCL’s “coverage is sweeping, embracing anything that can be called a business practice and that at the same time is forbidden by law.” (Cel-Tech Communication, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) The “unlawful” prong of the statute includes any business act or practice that violates any statute, regulation, or local zoning ordinance or ordinance code. (Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 383; Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 164 [nightclub charging male patrons more than female patrons in violation of Unruh Act found to be unfair business practice]; Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 532 [zoning ordinance violations found to be unfair business practice].) Here, Defendant has engaged in business activity by charging attendees of his parties a fee for entry. His business activities are unlawful because the commercial activity he has engaged in violates the Zoning Ordinance, he has engaged in prohibited gender discrimination by charging male attendees entry fees but not female attendees in violation of the Unruh Act and Gender Tax Act, and he as permitted underage drinking at his parties, among other violations of - 17 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 local and state law. These unfair business acts are subject to abatement as a nuisance per se (Bus. & Prof. Code, § 17203.) 2. Defendant’s Use of the Property Constitutes a General Public Nuisance In addition to the direct violations of state and local law that establish a nuisance per se, Defendant’s use of the Property also constitutes a public nuisance under state law. (Civ. Code, § 3480.) Public nuisances are “offenses against, or interferences with, the exercise of rights common to the public, such as public health, safety, peace, comfort, or convenience.” (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358; [internal quotations omitted].) A plaintiff will prevail in enjoining a public nuisance by showing that the defendant’s actions caused a substantial and unreasonable interference with a public right. (See People v. Conagra Grocery Prods. Co. (2017) 17 Cal.App.5th 51, 79, 91.) The causation element is satisfied by showing that the alleged conduct is a “substantial factor” in creating the nuisance. (Id. at pp. 101-102.) An interference is substantial “if it causes significant harm” and unreasonable “if its social utility is outweighed by the gravity of the harm inflicted.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305 citing Acuna I, supra, 14 Cal.4th a p. 1105].) “The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society with the home being the last citadel of the tired, the weary, and the sick.” (Frisby v. Schultz (1988) 487 U.S. 474, 485.) Defendant’s numerous, loud, disruptive, and dangerous parties have consumed considerable public resources in FSO’s frequent need to respond to incidents and calls for service at the Property. Criminal activity is frequent at these parties. On multiple occasions, party attendees of brandished firearms. Those in attendance have suffered significant injuries, including Defendant and his own brother. The neighboring property owners have been forced to endure the substantial noise and disruptive light during Defendant’s parties. The neighbors have shared their concerns for their safety, the safety of the community and loss of tranquility in their neighborhood because of Defendant’s dangerous and disruptive use of the Property. The evidence clearly demonstrates that Defendant’s activities have been a substantial factor and - 18 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unreasonably interfere with the public’s health, safety, and peace. Thus, Defendant’s conduct and use of his Property constitutes a nuisance under state law meriting injunctive relief and abatement by this Court. (Code Civ. Proc., §§ 527, 731.) B. Plaintiffs Are Entitled to Preliminary Injunctive Relief 1. The Rebuttable Presumption Applies Plaintiffs are likely to prevail on the merits of their public nuisance claim. As discussed above, the evidence of nuisance created by Defendant’s use of his Property and the dangerous and outrageous social gatherings is overwhelming. Because state and local law each expressly provides that such violations may be remedied by injunctive relief, a rebuttable presumption arises that the potential harm to the public from Defendant’s illegal conduct outweighs the potential harm to Defendant. (IT Corp., supra, 35 Cal.3d at pp. 69-72.) Injunctive relief should therefore issue unless Defendant can rebut the presumption by showing he would suffer “grave or irreparable harm.” (Id. at p. 72.) He cannot. 2. Defendant Cannot Show Grave or Irreparable Harm from an Injunction A preliminary injunction to enjoin the number of guests, the hours these guests may be permitted, limits on noise, and the manner in which Defendant uses the Property is warranted given the substantial concerns for public safety and undue consumption of local law enforcement resources, and the severe harm Defendant’s use of his Property inflicts on surrounding neighbors. An order by this Court that safeguards the health and safety of the public and merely requires Defendant to follow the law within the County of Fresno would not interfere with any legitimate interest Defendant may claim, and simply cannot constitute “grave or irreparable harm.” (IT Corp., supra, 35 Cal.3d at p. 72.) Defendant may claim any restraint on his ability to host parties and other gatherings infringes on his First Amendment right to association, but the “harm” he will suffer by being denied the ability to continue to use his Property illegally and at the detriment to his community is not a harm that the law will recognize or protect. (See People ex Rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 882 (Acuna II) [“Defendants, of course, - 19 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cannot claim harm from any restrictions in the activities that constitute a public nuisance.”].) The First Amendment recognizes and shields from government intrusion a limited right of association, it does not recognize a generalized right of social association. (Acuna I, supra, 14 Cal.4th at p. 1010 citing Dallas v. Stanglin (1989) 490 U.S. 19, 25.) The High Court has also made clear that “[t]he First Amendment does not protect joining with others to deprive third parties of their lawful rights.” (Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 756.) Thus, Defendant cannot show grave or irreparable harm by the enjoinment of his parties, events and other social gatherings. The community surrounding the Property has suffered and continues to suffer due to Defendant’s unlawful activities. A preliminary injunction is warranted here because Defendant’s wrongful conduct is likely to continue or expand unless legally abated. (Acuna II, supra, at pp. 882-883.) Only an order from this Court can provide Plaintiffs adequate relief. C. Plaintiffs’ Exempt From Filing an Undertaking or Posting a Bond Plaintiffs, public entities, are exempt from the requirement to file an undertaking or post a bond ordinarily required for a preliminary injunction. (Code Civil Proc., §§ 529, 995.220; City of South San Francisco v. Cypress Law Cemetery Assn. (1992) 11 Cal.App.4th 916.) V. CONCLUSION Plaintiffs requested preliminary injunction is necessary to stop Defendant from continuing to violate state and local law in a manner that threatens the health and safety of the residents of Fresno County. Dated: December 2, 2021 Respectfully Submitted, DANIEL C. CEDERBORG County Counsel By: /s/ Kyle R. Roberson Kyle R. Roberson, Deputy Attorneys for Plaintiffs COUNTY OF FRESNO and THE PEOPLE OF THE STATE OF CALIFORNIA - 20 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE County of Fresno; and The People of The State of California, by and through the County of Fresno, Plaintiffs, v. Faraz Gill, an individual; and DOES 1 through 50 inclusive, Defendants. Fresno Superior Court Case No. 21CECG02474 I, Vincent Soliz, declare as follows: I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. I am employed at the Fresno County Counsel’s Office, 2220 Tulare Street, Fifth Floor, Fresno, California, 93721. On December 9, 2021, I served a copy of the within: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION on the interested parties in said action addressed as follows: Zepure "Zeppy" Attashian, Esq. Law Office of Zeppy Attashian, APC 191 W. Shaw Avenue, Suite 201 Fresno, CA 93704 Attorney for Defendant, Faraz Gill X by placing the document(s) listed above for mailing in the United States mail at Fresno, California, in accordance with my employer's ordinary practice for collection and processing of mail and addressed as set forth above.  by transmitting via electronic mail, the above listed document(s) to the electronic mail address(es) set forth above on this date before 5:00 p.m. pacific daylight time.  by personally delivering the document(s) listed above to the person(s) at the address(es) set forth above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 9, 2021, at Fresno, California. __________________________ Vincent Soliz Litigation Paralegal