Northwestern Engineering v. Shemaria CA2/4 ( 2022 )

Filed 8/30/22 Northwestern Engineering v. Shemaria CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
NORTHWESTERN B310718
ENGINEERING COMPANY,
(Los Angeles County
Plaintiff, Cross-defendant, Super. Ct. No. SC128312)
and Appellant,
v.
JOSEPH SHEMARIA
Defendant, Cross-
complainant, and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Jay Ford III, Judge. Affirmed.
Freund Legal, Jonathan D. Freund, Craig A. Huber,
and Stephen P. Crump for Plaintiff, Cross-defendant, and
Appellant.
Joseph Shemaria, in pro. per. for Defendant,
Cross-complainant, and Respondent.
INTRODUCTION
Appellant Northwestern Engineering Company and
respondent Joseph Shemaria own adjoining real properties
abutting the Venice Boardwalk. Northwestern’s property is
leased to several restaurants and Shemaria’s property is
leased to residents. At issue is a three-foot-wide “breezeway”
situated between the two properties. A survey conducted in
2017 concluded the breezeway was part of Shemaria’s
property. However, Northwestern’s tenants had been using
it for storage since at least 1999. In June 2010,
Northwestern constructed a “fixture” on the breezeway,
consisting of shelving and poured concrete. In 2017, as a
way of increasing the value of his rental property, Shemaria
decided to offer his tenants use of the breezeway as a direct
path to the Boardwalk; he requested Northwestern remove
its personal property from the breezeway. Northwestern did
not fully comply with the request and, when the parties
could not agree upon terms permitting Northwestern to
continue using the breezeway, Northwestern sued for a
prescriptive easement. Shemaria cross-complained, alleging
trespass.
In August 2019, while the complaints were pending,
the City of Los Angeles ordered Shemaria to remove both the
items Northwestern’s tenants had stored in the breezeway,
and the shelving fixture built there. In October 2019,
Shemaria filed an ex parte application for a temporary
restraining order and order to show cause why a preliminary
injunction should not issue, enjoining Northwestern from
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interfering with Shemaria’s attempts to comply with the
city’s order; the court denied the application. In September
2020, Shemaria filed a motion for a preliminary injunction,
asking the court to enjoin Northwestern from using the
breezeway, and to order the removal of the personal property
stored and shelving fixture built in the breezeway. The
court granted the motion. This appeal followed.
Northwestern argues that: (a) the court erred in
granting the injunction without determining whether
Shemaria’s motion complied with the requirements of Code
of Civil Procedure section 1008 (Section 1008); (b) the court’s
factual findings were incorrect, and it wrongly balanced the
equities; and (c) the injunction is overly broad. We conclude
that: (a) Section 1008 is inapplicable; (b) substantial
evidence supports the court’s factual findings and its
balancing of the equities was reasonable; and (c)
Northwestern forfeited its overbreadth objection by failing to
raise it below. We therefore affirm.
STATEMENT OF RELEVANT FACTS
A. The Complaint and Cross-Complaint
In November 2017, Northwestern filed a complaint
against Shemaria, which it amended twice. The operative
complaint alleged that in July 1999, Northwestern
purchased commercial property in Venice (the
“Northwestern Property”). The Northwestern Property is a
“multi-tenant[] retail property” leased to several
3
restaurants. Shemaria owned an adjacent property (the
“Shemaria Property”). Both properties were on Ocean Front
Walk and a three-foot-wide breezeway ran between them.
Northwestern claimed that from 1999 through 2010, it
believed the breezeway was part of the Northwestern
Property, and its tenants used it for ingress and egress and
“for storage bins.” In June 2010, Northwestern built a
“fixture” in the rear portion of the breezeway, consisting of a
shelf and poured concrete. Northwestern also alleged the
breezeway was the only way to access certain electrical and
gas lines on the Northwestern Property, and to perform
other necessary maintenance and repairs.
Starting in July 2017, Shemaria repeatedly asked
Northwestern to remove its personal property from the
breezeway, claiming the breezeway was part of the Shemaria
Property. A survey of property lines appeared to prove
Shemaria correct. In September 2017, Shemaria removed
the gate and locks that Northwestern had installed on Ocean
Front Walk in front of the breezeway and replaced them
with his own, thereby depriving Northwestern’s tenants of
access to the breezeway from Ocean Front Walk.
Northwestern alleged a cause of action for quiet title of
a prescriptive easement for the breezeway, as well as claims
for trespass and nuisance. Northwestern also requested
injunctive relief to enjoin Shemaria from barring
Northwestern’s access to the breezeway, and from
interfering with Northwestern’s use of it.
4
In May 2019, Shemaria filed a cross-complaint against
Northwestern, alleging that he owned the Shemaria
Property (which consisted of two apartments and a guest
house), and that from 1999 to June 2017 Northwestern’s
tenants used the breezeway between the properties with
Shemaria’s knowledge and consent. In June 2017, Shemaria
demanded that Northwestern remove the personal property
stored in the breezeway and Northwestern complied only
partially. The cross-complaint alleged causes of action for
trespass, unjust enrichment, and nuisance.
B. Shemaria Seeks Injunctive Relief
1. Shemaria’s Ex Parte Application
In August 2019, the Los Angeles Housing and
Community Investment Department (HCIDLA) sent
Shemaria a “Notice and Order to Comply,” stating that using
the breezeway to store miscellaneous articles violated the
municipal code, as did the shelving fixture. The “‘Violations
Severity Level,’” was rated “‘HIGH.’”
In October 2019, Shemaria filed an ex parte application
for a temporary restraining order and an order for
Northwestern to show cause why a preliminary injunction
should not issue enjoining Northwestern from refusing to
remove “storage racks and storage items” from the
breezeway, and from preventing Shemaria from complying
with the August 2019 Notice to Comply. The minute order
denying the application gave no reason for the denial, but
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stated that it was “without prejudice.” Addressing its denial
of the ex parte application at a later hearing, the court
explained, “my feeling was that there was no urgency to
have that TRO decided and issued that day. It was not
intended to forever adjudicate Shemaria’s right to a
preliminary injunction. I think I said . . . that
[Northwestern] should get proper notice so that the
[cross-]defendant could have an adequate time to reply.”
2. Shemaria’s Motion for Preliminary
Injunction
In September 2020, Shemaria moved for a preliminary
injunction, asking the court to enjoin Northwestern from
continuing to use any portion of the breezeway, and to order
Northwestern to remove the “illegal construction and storage
of all personal property” from the breezeway. He attached a
proposed preliminary injunction to this effect. Shemaria
alleged that Northwestern and its predecessor had been
using the breezeway with his permission from 1983 to June
2017, but that after he revoked his permission in June 2017,
Northwestern had refused to comply with his demand to
remove the shelving fixture. As a result, Shemaria claimed
to be subject to an “enforcement action” by the City of Los
Angeles.
Shemaria recounted some of the history of the use of
the breezeway by Northwestern’s tenants, alleging they had
requested, and he had granted, permission to use it.
Shemaria related an incident in 2000 when he was
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instructed by the city’s Department of Building and Safety to
remove a refrigerator a tenant of Northwestern had rested
against the Shemaria Property. Shemaria requested the
Northwestern tenant remove the refrigerator and intended
to revoke access to the breezeway altogether. In a letter to
Northwestern dated January 2000, Shemaria wrote, “it has
come to my attention that the whole south wall is constantly
vibrating from the freezers that have motor(s) constantly
running,” and “I need back the three feet that runs from the
Boardwalk to my parking lot.” He opined that his property
would be “far more desirable, easier to rent, much more
valuable and safer” if his tenants could use the breezeway to
reach the Boardwalk and asked Northwestern to “[p]lease
advise as to how long you will need to vacate that portion of
our lot.” Northwestern’s president, James Adelstein,
acknowledged that he was made aware of the
“refrigerator/freezer” situation, and that he instructed
Northwestern’s tenant to remove it. However, after David
Abelar, the operator of one of the restaurants at the
Northwestern Property, “pleaded” with Shemaria to permit
continued use of the breezeway, Shemaria relented.1
Shemaria claimed that in June 2017, as part of his
plan to increase the rental income from the Shemaria
Property, he again wanted to offer his tenants use of the
breezeway as direct access to the Boardwalk. He sent
1 According to Shemaria, Abelar was one of the individuals to
whom he “had given permission to use the [breezeway] since
1983.”
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Northwestern a letter, demanding it remove the shelving
fixture and other property from the breezeway. He sent a
second such letter in July 2017. Shemaria claimed that
Northwestern agreed to the removal but requested more
time so its tenants could reconfigure their internal space to
store the items then stored in the breezeway. Northwestern
eventually complied only partially with Shemaria’s request.
In February 2020, Shemaria received from HCIDLA a
“Failure to Comply Notice,” informing him that his failure to
comply with the initial notice had resulted in his property
being referred to legal enforcement. The notice specifically
informed Shemaria that if he violated the municipal code, or
permitted anyone else to do so, he would be “guilty of a
misdemeanor, which is punishable by a fine of not more than
$1,000.00 and/or six months imprisonment.” HCIDLA
inspector Munz, who had inspected the Shemaria Property
several times, opined in a deposition that the personal
property stored in the breezeway obstructed the evacuation
route for a unit of the Shemaria Property, and that the
shelving fixture was a fire hazard. He also explained that if
Shemaria failed to comply with the city’s orders, his property
would be placed in a rent escrow account program, which
would provide the tenants with a rent reduction and place
the rental income into a city escrow account. He opined that
exiting this program would be difficult, and that continued
failure to comply with the city’s request could result in
prosecution by the City Attorney.
8
Based on this evidence, Shemaria alleged entitlement
to an injunction. He argued the evidence established
Northwestern had not been using the breezeway hostilely or
under claim of right, and that Northwestern was requesting
exclusive use over the breezeway, which would invalidate
any prescriptive easement. Without an easement,
Northwestern’s use of the breezeway constituted trespass.
As for the harm he would suffer without an injunction,
Shemaria cited the potential referral of his property to the
rent escrow account program, his potential criminal
prosecution for failing to comply with the city’s notices, and
the danger to health and safety posed by the storage and
shelving fixture.
3. Northwestern’s Opposition to
Shemaria’s Motion
In its opposition, Northwestern claimed that its
tenants had been using the breezeway openly and under a
claim of right for decades, and that it was unaware of
Shemaria’s claim to the breezeway until the land survey
conducted in June 2017. Northwestern also objected that
Shemaria had brought his motion without satisfying the
requirements of Section 1008, as allegedly required by the
court’s previous denial of his ex parte application.
Northwestern additionally criticized Shemaria’s lack of
evidence “apart from his word,” that the breezeway was used
only with his permission. Northwestern further argued that
Shemaria’s failure to bring his motion until almost a year
9
after the court denied his ex parte application demonstrated
a lack of imminent harm. Finally, citing an e-mail from the
city stating that in light of the pandemic, “‘hearings for cases
with pending violations have been suspended at this time’”
and a press release stating “Systematic Code Enforcement
Program (SCEP) inspections are suspended until further
notice,” Northwestern contended that Shemaria failed to
show harm because the city would not be prosecuting
municipal code violations “for the foreseeable future” due to
the pandemic. Northwestern did not complain that
Shemaria’s requested injunction was overbroad.
4. The Court Grants Shemaria’s Motion
In December 2020, the court issued a tentative ruling
granting Shemaria’s motion. The ruling found Section 1008
inapplicable because the court had denied Shemaria’s ex
parte application without prejudice. It also found that
Shemaria was likely to prevail on the merits because the
prescriptive easement sought by Northwestern was
impermissible in that it would give Northwestern exclusive
rights over the breezeway and prevent Shemaria from using
it, and because Northwestern had been using the breezeway
with Shemaria’s now-revoked permission. Finally, the court
found that notwithstanding the pandemic-induced
moratorium on enforcement actions, Northwestern’s failure
to comply with the HCIDLA notice “potentially expose[d]
Shemaria to placement of the property in the Rent Escrow
Account Program and/or criminal prosecution, and
10
continuing penalties and fines,” and that the violations
themselves were “a fire hazard and a public danger.” The
court determined that “the equities weigh in favor of the
injunction.” After hearing argument from both counsel, the
court stated its intent to adopt the tentative ruling but
continued the matter to permit the parties to confer about
the amount of the bond. In January 2021, the court issued a
preliminary injunction ordering that, upon Shemaria’s
posting of a $50,000 bond, Northwestern was required to,
among other things: “Remove all of the property belonging
to [Northwestern] from” the breezeway, “Remove all of the
fencing, metal dividers, gates that [Northwestern] or its
tenants caused to be erected on Shemaria’s property,” and
“Stop using any portion of Shemaria’s property for any
storage, passageway, bypass or for any other reason without
first obtaining Shemaria’s written permission.”
Northwestern timely appealed.
DISCUSSION
A. Section 1008 Is Inapplicable
Section 1008 provides that a “party who originally
made an application for an order which was refused . . . may
make a subsequent application for the same order upon new
or different facts, circumstances, or law, in which case it
shall be shown by affidavit what application was made
before, when and to what judge, what order or decisions
were made, and what new or different facts, circumstances,
11
or law are claimed to be shown.” (Code Civ. Proc., § 1008,
subd. (b).) Shemaria’s October 2019 ex parte application
requested a temporary restraining order and an order to
show cause why a preliminary injunction should not issue.
His September 2020 motion requested a preliminary
injunction. Northwestern contends Shemaria’s motion was
subject to Section 1008 because it sought “identical relief” as
the ex parte application. We disagree.
Shemaria’s ex parte application requested
Northwestern be enjoined from refusing to remove the
“storage racks and storage items” from the breezeway, and
from preventing Shemaria from complying with the August
2019 Notice to Comply. His motion for a preliminary
injunction requested Northwestern be compelled to remove
the “illegal construction and storage of all personal property”
from the breezeway, but also asked the court to prevent
Northwestern from using the breezeway without his
permission. Additionally, a “‘temporary restraining order is
issued . . . pending a hearing on whether the plaintiff is
entitled to a preliminary injunction’” and “‘is of short
duration, normally expiring at the time of the hearing on the
preliminary injunction.’” (Chico Feminist Women’s Health
Center v. Scully (1989) 208 Cal.App.3d 230, 237, fn. 1.) In
contrast, “a preliminary injunction is an order that is sought
by a plaintiff prior to a full adjudication of the merits of its
claim” and lasts “‘until a final determination following a
trial.’” (Costa Mesa City Employees Assn. v. City of Costa
Mesa (2012) 209 Cal.App.4th 298, 305, italics omitted.) We
12
hold Section 1008 was inapplicable because both the
substance and duration of the requested relief differed.2
Citing Farber v. Bay View Terrace Homeowners Assn.
(2006) 141 Cal.App.4th 1007 and National Grange of Order
of Patrons of Husbandry v. Cal. Guild (2019) 38 Cal.App.5th
706 (National Grange), the trial court found Section 1008
inapplicable because it had denied the ex parte application
without prejudice. On appeal, Northwestern argues Section
1008 contains no exceptions for denials without prejudice.
Because we find Section 1008 inapplicable, we need not
address this contention.3 (See Young v. Fish & Game Com.
2 Citing California Correctional Peace Officers Assn. v. Virga
(2010) 181 Cal.App.4th 30 (Virga), Northwestern contends the
difference between the relief requested amounted to a
“procedural difference.” Virga is inapposite. There, the appellate
court affirmed that although a second motion for attorney’s fees
was brought under a different statute than the first motion
(which was denied), the second motion was subject to Section
1008 because it was “beyond dispute that [appellants] sought
identical relief in both motions; namely, an award of their
attorney fees.” (Virga, supra, at 43.) In contrast, Shemaria’s ex
parte application and motion for preliminary injunction sought
different relief.
3 Were we to consider Northwestern’s argument, we would
find no error. In Farber, the appellate court held that “[d]enial of
a motion without prejudice impliedly invites the moving party to
renew the motion at a later date, when he can correct the
deficiency that led to the denial.” (Farber, supra, 141
Cal.App.4th at 1015.) National Grange quoted Farber with
approval in rejecting an argument that a respondent’s second
motion to disqualify opposing counsel violated Section 1008, also
(Fn. is continued on the next page.)
13
(2018) 24 Cal.App.5th 1178, 1192-1193 [“it is a settled
appellate principle that if a judgment is correct on any
theory, the appellate court will affirm it regardless of the
trial court’s reasoning”].)
B. The Court Did Not Abuse Its Discretion in
Granting the Preliminary Injunction
When deciding whether to issue a preliminary
injunction, a court considers “‘two interrelated factors: (1)
the likelihood that the plaintiff will prevail on the merits,
and (2) the relative balance of harms that is likely to result
from the granting or denial of interim injunctive relief.’”
(Jay Bharat Developers, Inc. v. Minidis (2008) 167
Cal.App.4th 437, 443.) “‘The party challenging an order
finding the previous denial without prejudice impliedly invited
the respondent to refile the denied motion. (National Grange,
supra, 38 Cal.App.5th at 716, fn. 10.) Northwestern attempts to
distinguish these cases by arguing the trial court here “did not
indicate on the record it wanted to reconsider the propriety of
granting the injunction at a later date.” But as Farber and
National Grange held, a denial without prejudice impliedly
invites a refiled motion. Further, the record below confirms the
court’s implied intention: as it explained, it denied the ex parte
application because “there was no urgency to have that TRO
decided and issued that day. It was not intended to forever
adjudicate Shemaria’s right to a preliminary injunction” but
rather to give Northwestern “proper notice so that the
[cross-]defendant could have an adequate time to reply.” The
court’s comments thus confirm what its denial without prejudice
already implied, viz., its willingness to entertain Shemaria’s
request if brought on a noticed motion.
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granting or denying a preliminary injunction has the burden
of making a clear showing of an abuse of discretion.
[Citation.] An abuse of discretion will be found only where
the trial court’s decision exceeds the bounds of reason or
contravenes the uncontradicted evidence. [Citation.]’
[Citation.] ‘Where the evidence with respect to the right to a
preliminary injunction is conflicting, the reviewing court
must “interpret the facts in the light most favorable to the
prevailing party and indulge in all reasonable inferences in
support of the trial court’s order.”’” (Ibid.) “Where the
evidence before the trial court was in conflict, we do not
reweigh it or determine the credibility of witnesses on
appeal.” (Shoemaker v. County of Los Angeles (1995) 37
Cal.App.4th 618, 625.) “Our task is to ensure that the trial
court’s factual determinations, whether express or implied,
are supported by substantial evidence.” (Ibid.) When “‘the
preliminary injunction mandates an affirmative act that
changes the status quo, we scrutinize it even more closely for
abuse of discretion.’” (Ibid.)
1. Likelihood of Prevailing on the Merits
“The elements necessary to establish a prescriptive
easement are . . . open and notorious use or possession that
is continuous and uninterrupted, hostile to the true owner,
and under a claim of right” for five years. (Taormino v.
Denny (1970) 1 Cal.3d 679, 686; accord, Hinrichs v. Melton
(2017) 11 Cal.App.5th 516, 525.) However, a prescriptive
easement will not be granted if it gives the claimant
15
exclusive use of the property over which the easement is
claimed. (See, e.g., Harrison v. Welch (2004) 116
Cal.App.4th 1084, 1090-1094 [though appellant had proven
elements of prescriptive easement for trees planted and
woodshed built on neighbor’s land, trial court correctly
refused to grant prescriptive easement when doing so would
have given claimant exclusive use over land on which trees
and shed sat]; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th
1296, 1308 [error to grant prescriptive easement that
deprives owner of access to portion of property upon which
easement granted].)
The court found Shemaria likely to prevail on both the
prescriptive easement and trespass claims because: (a) the
easement sought by Northwestern would prevent Shemaria
from using the breezeway; and (b) Northwestern had been
using the breezeway with Shemaria’s now-revoked
permission. Northwestern argues the court erred because:
(a) there was no evidence it claimed an “‘exclusive right’” to
the breezeway; and (b) there was no evidence it ever
requested permission to use the breezeway. We discern no
error.
(a) Exclusive Right
Northwestern argues there is no evidence that its
storage of items on the breezeway impeded Shemaria from
using it. But Shemaria intended to use the breezeway as a
means to increase the rental value of his property by offering
it to his tenants as a path to the Boardwalk. Northwestern
16
admits it kept “storage bins” and stored “ladders, umbrellas,
linens and a linen bin, cardboard and a range of other
materials” in the breezeway. If Northwestern cluttered the
three-foot-wide breezeway with storage bins and other
detritus, Shemaria was self-evidently prevented from
offering the breezeway to his tenants as a path to the
Boardwalk.
Additionally, Northwestern fails to address that in
June 2010, it built a “fixture” in the breezeway, consisting of
a shelf and poured concrete. Northwestern is exclusively
using the land on which the shelving fixture sits.
Substantial evidence supports the court’s conclusion that
Northwestern’s requested prescriptive easement would
constitute an exclusive use over the breezeway.
(b) Permission
Contrary to Northwestern’s contention, there is ample
evidence its tenants used the breezeway with Shemaria’s
permission. First, Shemaria declared under penalty of
perjury that he granted such permission in response to
requests made by Northwestern’s tenants. Second, after the
City of Los Angeles asked him to remove a refrigerator a
Northwestern tenant had stored in the breezeway, Shemaria
wrote Northwestern, stating he needed the breezeway
“back,” thus implying it was part of the Shemaria Property
that Northwestern was using only with his permission. This
letter, admitted into evidence, was written more than 17
years before litigation commenced. Northwestern’s
17
president admitted being informed of the situation, and
there is no evidence Northwestern ever disputed Shemaria’s
claim.
Northwestern contends the letter is not evidence that it
used the breezeway with Shemaria’s permission because
after his demand to take back the breezeway, Northwestern
continued to use it. This contention ignores Shemaria’s
uncontradicted evidence that after a tenant “pleaded” with
him to permit the restaurant to keep using the breezeway,
he relented.4
Northwestern further distorts the record in contending
that Shemaria “fail[ed] to identify anyone with any degree of
specificity with whom he purports to have received a request
‘for permission to use’ his supposed property.” First, he was
not required to provide such specificity, as it was the trial
court’s task to determine the sufficiency of his testimony.
(Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th
4 We thus find inapposite Northwestern’s citation to Aaron v.
Dunham (2006) 137 Cal.App.4th 1244. There, the court found
that because the former owners of a piece of real property had
met the requirements for a prescriptive easement over a private
road that provided easier access to the property, the new owners
had acquired a prescriptive easement to use the road. (Id. at
1246-1249, 1252-1253.) But unlike the former owners in Aaron
who used the road without permission, here there is evidence
that Northwestern used the breezeway with Shemaria’s
permission. Moreover, Aaron involved an easement permitting a
party to drive on a private road, and not an easement to
permanently store property on that road, preventing the owners
of the road from using it themselves.
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at 625.) Moreover, he did. Shemaria’s declaration identified
David Abelar as the operator of one of the restaurants at the
Northwestern Property to whom he “had given permission to
use the [breezeway] since 1983.” He further identified
Abelar as the person who “pleaded” with him to continue
using the breezeway in 2000. This testimony was
uncontradicted. In short, substantial evidence supports the
court’s determination that Northwestern used the breezeway
with Shemaria’s permission.
2. Balance of Harms
The trial court found that Shemaria would suffer the
greater harm if the injunction were denied because he was
subject to an enforcement action ordering him to remove all
items Northwestern stored in the breezeway, as well as the
shelving fixture, and because failure to comply with the
city’s notice would potentially cause the Shemaria Property
to be placed in the rent escrow account program and subject
Shemaria to criminal prosecution. The court also found that
apart from the enforcement action, the items and fixture
constituted a “health hazard.”
Northwestern contends the court erred because: (a)
Shemaria failed to demonstrate any imminent harm; and (b)
the balance of equities favored Northwestern because the
harm to Northwestern was “manifest and severe.” We
disagree, as substantial evidence supports the court’s factual
determinations, and the court reasonably balanced the
equities in Shemaria’s favor.
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(a) Shemaria’s Harm
Northwestern argues that Shemaria’s claim of harm
rang hollow because he waited eleven months after the
denial of his ex parte application to file his motion, and
“[n]othing [had] changed” in those eleven months. While the
length of time between Shemaria’s ex parte application and
motion for preliminary injunction is evidence that could
weigh against a finding of harm, Northwestern raised this
issue in its opposition, and nothing suggests the court failed
to consider it. By raising the argument again on appeal,
Northwestern effectively asks us to reweigh the evidence.
That is not our function. “Our task is to ensure that the trial
court’s factual determinations, whether express or implied,
are supported by substantial evidence.” (Shoemaker v.
County of Los Angeles, supra, 37 Cal.App.4th at 625.)5
Northwestern also contends Shemaria suffered no
harm, both because the pandemic suspended enforcement
actions, and because Northwestern agreed to cover any fines
Shemaria incurred. But enforcement actions were not
5 Moreover, it is untrue that “nothing [had] changed”
between the denial of the ex parte application and the motion for
preliminary injunction. In February 2020 (three months after
the denial of the ex parte), Shemaria received a “Failure to
Comply Notice,” informing him that his failure to comply had
resulted in his property being referred to legal enforcement. The
notice specifically stated that if Shemaria violated the municipal
code, or permitted anyone else to do so, he would be “guilty of a
misdemeanor, which is punishable by a fine of not more than
$1,000.00 and/or six months imprisonment.”
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suspended permanently and nothing in the record indicates
Northwestern produced any evidence that the suspension
would continue until a final judgment concluded the
litigation. Additionally, even if Northwestern agreed to pay
any fines Shemaria incurred, it could not send its executives
to jail in Shemaria’s stead, should Shemaria be prosecuted
successfully for his failure to comply with the city’s notice.
Northwestern also fails to address the evidence that its
stored items blocked an evacuation route for the tenants of
the Shemaria Property, and that the poured concrete and
shelving fixture constituted a fire hazard. Should any of
Shemaria’s tenants be injured due to the storage or shelving,
Northwestern could not absolve Shemaria of liability or
immunize him from potential criminal prosecution.
Substantial evidence supports the court’s finding that
Shemaria demonstrated irreparable harm.
(b) Balance of Equities
Northwestern argues that the hardship it would
endure from the court’s granting the injunction would be
“manifest and severe” because many of the items stored in
the breezeway are unique and difficult to replace, because
storing them offsite would be impractical, and because use of
the breezeway was necessary to allow Northwestern to
monitor, maintain, and repair the electrical and gas lines
accessible from it. While Northwestern would undoubtedly
benefit from the continued use of the breezeway, the
evidence amply supports the trial court’s determination that
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Northwestern’s use of Shemaria’s property constituted “a
fire hazard and a public danger” and violated the Los
Angeles municipal code, subjecting Shemaria and his
property to an enforcement action. We discern nothing
unreasonable in the court’s balancing of the equities.
C. Northwestern Has Forfeited Its Argument
That the Injunction Is Overly Broad
Shemaria’s motion asked the court to enjoin
Northwestern “from continuing to use any portion of” the
breezeway and submitted a proposed preliminary injunction
to this effect. Northwestern acknowledged the breadth of
the request in its opposition.
On appeal, Northwestern argues the granted
injunction is overly broad because it goes “far beyond
removing the specter of purported harm Shemaria claims he
would face in a city enforcement action,” but instead enjoins
Northwestern from using the breezeway at all without
Shemaria’s written permission. Northwestern forfeited this
issue by failing to raise it in the proceedings below, where
the court could have addressed it. “[I]t is fundamental that
a reviewing court will ordinarily not consider claims made
for the first time on appeal which could have been but were
not presented to the trial court.” (Asbestos Claims Facility v.
Berry & Berry (1990) 219 Cal.App.3d 9, 26.) “Appellate
courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the
trial court did not have an opportunity to consider.” (JRS
22
Products, Inc. v. Matsushita Electric Corp. of America (2004)
115 Cal.App.4th 168, 178.) “We will therefore ‘ignore
arguments, authority, and facts not presented and litigated
in the trial court.’ [Citation.] Such arguments raised for the
first time on appeal are generally deemed forfeited.” (Perez
v. Grajales (2008) 169 Cal.App.4th 580, 591-592.)
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DISPOSITION
The court’s order is affirmed. Respondent is awarded
his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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