Opinion
B224442
08-09-2011
REBECCA A. RICKLEY, et al., Plaintiffs and Respondents, v. MARVIN GOODFRIEND, Defendant and Appellant.
Procter, Slaughter & Reagan, James N. Procter, II and Gabriele M. Lashly; Jeffer, Mangels, Butler & Mitchell and Kenneth A. Ehrlich for Defendant and Appellant. Natasha Roit, in pro. per., and for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. SC 081696)
APPEAL from an order of the Superior Court of Los Angeles County. Cesar C. Sarmiento, Judge. Affirmed.
Procter, Slaughter & Reagan, James N. Procter, II and Gabriele M. Lashly; Jeffer, Mangels, Butler & Mitchell and Kenneth A. Ehrlich for Defendant and Appellant.
Natasha Roit, in pro. per., and for Plaintiffs and Respondents.
In 2006, the court entered a judgment ordering defendant Marvin Goodfriend to remediate a private nuisance caused by construction debris on his property and the property of plaintiffs Rebecca A. Rickley and Natasha Roit. Goodfriend appeals from the post-judgment order appointing Natasha Roit as the remediation supervisor. Defendant contends the order must be reversed as it modified a crucial element of the judgment, was an abuse of discretion and deprived him of due process. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background
Plaintiffs own a home in Malibu adjacent to defendant's property. Because the properties lie in an area of a known landslide, when defendant applied for permits for a remodel in 1998, he was advised by both the California Coastal Commission (CCC) and the Los Angeles County (County) Department of Public Works that he would need to perform geotechnical studies and submit safety reports before his request could be considered.
Defendant dumped construction debris from the remodel of his home in his back yard, creating a private nuisance. Defendant also placed construction debris and part of a railroad tie on plaintiffs' property.
Plaintiffs claim that after they discovered the dump site, they repeatedly asked defendant to remove the debris, but he refused. Plaintiffs filed this action in 2004 seeking removal of the debris. At his deposition, defendant admitted that he had refused to remove the debris without a court order.
II. The Judgment
In its November 2005 tentative statement of decision, the court awarded plaintiffs the costs of remediation as it pertained to their property. In its final statement of decision, the court made both properties part of the same remediation.
Plaintiffs claim the court made the change at defendant's request, but provide no record support for that claim.
On February 23, 2006, the court entered judgment in favor of plaintiffs. After a court trial, the court declared the condition on defendant's property constituted a private nuisance and ordered it abated by removing the debris from defendant's and plaintiffs' properties with all appropriate permits. The amount of debris to be removed was 274 cubic yards.
The judgment included the following injunctive relief:
• "Mr. Viani is appointed to supervise completion of the remediation plan."
• "The cost of [the] remediation plan is not to exceed the budget as outlined in exhibit 26."
• "Defendant is ordered to obtain and pay for all of the necessary permits and fees required by the appropriate governmental agencies in connection with the remediation work."
• "All of the work will be performed in compliance with any and all local, state and federal regulations."
Steven Viani was plaintiffs' expert at trial; he testified to the plan of remediation and its estimated budget. The plan was moved into evidence as Exhibit 26.
The court found the portion of the plan on additional site characterization (budgeted at $39,179.38) was not to be done and there was no necessity for the $3,000 charge for hazardous waste disposal or the $900 charge for respirators and cartridges in the plan. Thus, the net budget was approximately $202,550.
The relevant government entities made it clear that plaintiffs' permission and authorization for all of the work was required for permits to be issued and the work to proceed.
III. Post-Judgment
A. Parties' Efforts
1. Defendant's Complaints
In March 2006, Viani attempted to unilaterally increase the budget by $54,397. Viani indicated in a letter to defendant's counsel that he was "unaware of the actual amount of the contents of Exhibit 26," even though he had prepared that document. The letter also stated: "The project at this time contains many unknowns and an accurate final budget cannot be determined." (Italics deleted.)
At the April 3, 2006, hearing, the court told the parties that the remediation work had to be completed for the sum of $202,000, with the exception of permit fees which were not part of the budget. The court indicated that when it made its final statement of decision, it intended for Viani's budget to be the upward limit of what would be spent on remediation. The court specifically stated it would not allow anything extra to be added to the budget of $202,000.
Defendant claims that between the spring of 2006 and the fall of 2007, Viani worked on obtaining the necessary permits from the County and the CCC for the remediation to go forward. As of September 2007, Viani had already exhausted $66,970 of the budget without having obtained the necessary permits, leaving approximately $130,000 to complete the project.
In November 2007, Viani requested a $51,400.90 increase in the remediation budget. On February 5, 2008, the court granted defendant's motion to compel compliance with the remediation budget. The court reiterated that Viani was required to adhere to the remediation budget regardless of whether he believed the work required by the CCC would exceed the budget. On plaintiffs' request for reconsideration, the court amended its order, repeated the remediation must be accomplished within the budget set in the judgment, and clarified that if the CCC imposed an obligation, such as paying the cost of additional work not included in the budget, "that is a circumstance dealt with at the Coastal Commission, not here."
The CCC permit was issued in August 2008; it required the work be completed by October 31, 2008. The County Department of Building and Safety was willing to issue the grading permit and allow the work to go forward before October 15, 2008. On October 8, defendant requested an order compelling plaintiffs to sign the permits and allow remediation to go forward. Plaintiffs refused to authorize the work to begin.
2. Plaintiffs' Complaints
March 2006: Defense counsel James Procter indicated to Viani that defendant "will not approve the geotechnical engineer's proposal and will not proceed on the project."
July 2006: Viani solicited defendant's input and never heard from him; Procter refused to accept voice mail messages from Viani.
October/November 2006: Defendant's ongoing refusals to cooperate with Viani and follow court orders necessitated ex-parte motions for an order to show cause (OSC) for contempt. After the court issued a remediation order providing, among other things, that Viani's recommendations and decisions were to be followed, plaintiffs withdrew their OSC.
December 2007 to January 2009: Defendant refused to record a revised deed restriction on his property as required by the CCC.
Defendant insisted the location of the dumped debris be misrepresented to government agencies so that it would have less of an impact on the requirements of the CCC and the County.
Defendant submitted plans to the CCC reflecting items on the two properties which did not exist, proposed the location of the sump pump, electrical and drainage lines, and other items, be placed on plaintiffs' property without plaintiffs' permission and despite plaintiffs' written objection while representing to the CCC that plaintiffs had approved the plans. Following multiple hearings, the court ordered changes be made to the plans, but defendant refused.
Even though defendant claims the project was ready to proceed in October 2008, the County did not have the most basic prerequisites to begin considering the permits. The County never got the CCC drawings and would not do anything until it had an approved drawing from the CCC. Viani was aware of "errors and deficiencies" in the drawings and that they had to be redone
B. The Remediation Supervisor
In December 2005, in a request for the court to clarify its tentative decision, defendant questioned Viani's competence and accused him of increasing the costs of the remediation and asked the court to appoint an independent supervisor.
In June 2006, in its ruling denying plaintiffs' request for expert fees pursuant to Code of Civil Procedure section 998, the court stated it had "purposefully crafted its judgment so as to preclude any party from having the ability to approve or supervise any of the remediation work."
In February 2008, defendant requested Viani be discharged because he was "plaintiffs' advocate and does not have any allegiance to the court's order," and had engaged in overbilling. At the time, about $108,000 of the budget remained without any work removing the debris actually having begun.
In January 2009, plaintiffs sought court orders requiring Viani to meet and confer with all of the parties before submitting anything to any public agency and to document all decisions and bills in writing. In addition, plaintiffs asked the court to require Viani to document all of his past bills which were challenged by either side.
At the January hearing, Viani voiced his concern that plaintiffs wanted complete control and veto power over the remediation on defendant's property. Plaintiffs rejected the court's suggestion to appoint a mediator and withdrew their application for additional remediation orders after the court indicated it was not inclined to grant the request. On February 4, plaintiffs' motion to recuse Judge Sarmiento was denied.
In February 2009, the court announced it was going to take a "hands-on" approach to the remediation, "I want to get Mr. Viani in here. I want to look at all the permits, look at all the plans, I want to look at everything, find out what's going on, who has done what, who hasn't done what. [¶] . . . Basically, I want it look at it as if I was building my own house."
In March 2009, in denying plaintiffs' post-remittitur motion for expert fees, the court again noted the plaintiffs had not obtained the right to supervise and approve the remediation work as part of the judgment. The court found that because of that failure, the judgment the defendant had obtained was better than plaintiffs' Code of Civil Procedure section 998 offer.
Without objection by either side, the court made his e-mail address available to parties and counsel and began supervising the remediation process via e-mail and conference calls.
On April 24, the court conducted a conference regarding the status of the remediation. Plaintiffs had provided a list of their complaints about the remediation in written form. Defendant's counsel sent a letter to plaintiffs memorializing the discussion. Plaintiffs did not respond and rejected defendant's proposal to have a referee appointed to assist in the resolution of the remaining disputes even though defendant offered to pay the fees of the referee.
In April, plaintiffs began to lobby the court to replace Viani. Plaintiffs never brought a noticed motion to modify the judgment to replace Viani. The court discharged Viani. On July 31, 2009, the court selected Ella Kheirkhahi to replace Viani, but she declined the appointment.
In July, defendant filed a motion for appointment of a referee to make recommendations regarding the remediation. Plaintiffs again objected. The court ordered the parties to meet and confer.
At the August 18 hearing, Roit stated defendant had rejected the person proposed by plaintiffs to replace Viani and suggested the court appoint plaintiffs' contractor and defendant's engineer. When defense counsel indicated the project needed an engineer, the court stated it also needed a contractor. The court suggested the parties check if either the proposed engineer or the proposed contractor would have any problems working with the other person. Defendant rejected the suggestion. The court, which stated it had problems communicating with Viani, indicated that if necessary, it would appoint a referee to assist it; the court took the matter of a referee under submission and stated it would schedule a hearing if necessary.
Defendant's counsel contacted numerous geotechnical engineers; all but one, Steven Norris, declined the appointment. On November 3, defendant moved ex parte to request Norris be appointed project supervisor. Plaintiffs asked for additional information, including how many times Norris had worked with defendant's counsel and what his experience was with this type of work. Counsel provided plaintiffs with this information showing he had never retained Norris and Norris was well qualified to handle the project. Plaintiffs refused to stipulate to the appointment of Norris. The court ordered the parties to meet and confer regarding appointment of a remediation contractor.
At the November hearing, defense counsel Proctor stated the project needed "an engineer of record." The court disagreed and stated what was needed was a general contractor. Roit stated she could get the job done. The court noted it knew of two or three contractors who had built in the Malibu area and had experience building on the hillside there. The court indicated it would contact those contractors. Procter was more open to that idea and again stated that an engineer of record was what was needed. The court stated it did not want to manage an engineer; instead, it thought that what was needed was a general contractor in charge of the project who would bring in an engineer. Defense counsel indicated Viani was a poor choice from the beginning, and the court agreed Viani was a "disaster." The court stated it wanted to move forward and asked defendant to contact the contractors it had suggested.
In a January 4, 2010, e-mail to the court, Procter noted there was no court appointed supervisor and suggested a conference call to clarify the matter would be helpful. After continuing the matter when Procter advised the court he was not available on the day the court set for the conference call, the court sent an e-mail advising the parties it would hold a conference call the next day on the "issue of the appointment of a representative/contractor" for plaintiffs. Defendant did not object to having the hearing by way of a conference call.
In February, the court again ordered defendant to proceed with submitting documents correcting the erroneous submissions on which CCC had issued its permit and to proceed with making the proper submissions for approval by the County. Defendant failed to comply.
In April, via e-mails, Roit requested she be compensated for her time "to supervise the remediation of our property," or, in the alternative, plaintiffs should have "our own designee supervise the project . . . as it pertains to and/or affects our property," at defendant's expense. The court stated it would approve a designee as it affected plaintiffs' property, asked Roit to submit the name of the person and indicated that person's fees would come out of the budget for the project.
According to defendant, one of the contractors suggested by the court declined the job. According to plaintiffs, the court appointed Manny Solano to supervise the project.
The order appointing Solano is not part of the record on appeal, but the court referred to Solano supervising at the April hearing.
At the April 20 hearing, Roit initially requested that the court appoint a representative for the portion of plaintiffs' property requiring remediation. The court indicated that it would authorize a subcontractor for plaintiffs' property to assist Solano. The court clarified it was not going to supervise Solano. Roit referred to the fact the project had been in the works for four and half years and then asked the court to appoint her as the supervisor for the entire project for three months. After hearing Roit's proposal, the court stated it would let defendant be heard. Defendant objected to giving Roit complete control over his property. The court stated it was going to give Roit three months and it was "not concerned about anything improper being done to [defendant's] property. Nothing is going to be done without my approval."
The court entered an order providing: "1. Ms. Roit may supervise the remediation for a period of 3 months, at which point the Court will assess if progress has been made and if this Order should be extended. [¶] 2. Ms. Roit will keep the Court and Mr. Procter apprized [sic] of events and progress as they proceed." Roit retained an engineer (Dimitry Vergun) and other professionals to perform the remediation.
Roit claims that following her appointment, she coordinated the court-approved professionals, had the site inspected in one day by all the professionals and tradesmen, had the CCC plans redrawn per prior court orders, and had the engineers put together the submissions and calculations necessary for the County permit.
After the court appointed Roit as supervisor, via e-mail, defendant requested reconsideration on the grounds the appointment would delay the project and guarantee the work could not be completed within the budget. Defendant argued Roit should not be placed in a position to spend his money without any meaningful restraints, be placed in charge of a project taking place almost entirely on his property all without any practical limitations or parameters. Defendant did not raise any claim about lack of notice or Roit's qualifications.
After repeated warnings to stop interfering with the remediation, on April 30, 2010, the court found Procter in contempt of court for interfering with the remediation by contacting contractors without prior approval.
The court did not rule on the request for reconsideration. Defendant filed a timely notice of appeal from the order appointing Roit as supervisor. Subsequently, defendant obtained a writ of supersedeas staying enforcement of the order.
DISCUSSION
I. Introduction.
California Rules of Court, rule 8.204(a)(1)(C), requires that all facts be supported by a citation to the record. Both parties were remiss in not providing citations to the record for all the facts contained in their fact statements. It is not the job of this court to search the record for facts to support a party's version of the facts, especially as the parties seek to blame each other for the extensive delay in this case. (See Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1371-1372.)
II. The court had inherent jurisdiction to appoint a remediation supervisor.
Appellant contends the court lacked jurisdiction because the order appointing Roit as the remediation supervisor modified a material part of the final judgment. However, the remedy appellant seeks is that "this Court vacate the order appointing [Roit] as remediation supervisor and to mandate the matter back to the trial court for further proceedings for appointment of a qualified engineer as remediation supervisor." Thus, appellant effectively concedes the court had jurisdiction to appoint a remediation supervisor.
The judgment named a person to act as remediation supervisor; no specific qualifications were listed. It is apparent from the court's comments at the hearings that it wanted to appoint a general contractor to supervise the project, not an engineer.
"'The general rule is that once a judgment has been entered, the trial court loses its unrestricted power to change that judgment. The court does retain power to correct clerical errors in a judgment which has been entered. However, it may not amend such a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error.'" (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237.)
But, "An equity court has inherent power to make its decree effective by additional orders affecting the details of performance, irrespective of reservation of power in the decree." (Italics added.) (Barnes v. Chamberlain (1983) 147 Cal.App.3d 762, 767, 769.) Citing Barnes, appellant acknowledges an equity court has inherent power to make its judgment effective by supervising the details of a specific performance decree.
In addition, a court retains inherent power, upon a proper showing, to modify a permanent injunction. (See Little v. Schwartz (1960) 182 Cal.App.2d 594, 597-598.) "'(W)hen the decree is continuing in nature, directed at future events, it must be subject to adaption as events may shape the need.' [¶] . . . 'The court's power in this respect is an inherent one. Its action is determined by the facts and circumstances of each particular case, with a view to administering justice between the litigants, and it has power to modify or vacate its decree when the ends of justice will be thereby served.'" (Italics omitted.) (Id. at pp. 598-599.)
Appellant argues that the instant judgment is not for specific performance and that Little is inapposite because it only recognized a court had power to modify a prohibitory injunction and the instant judgment was a mandatory injunction to remediate the property within specific parameters. However, a mandatory injunction is a form of specific performance. (See Package & Utility Drivers, Local 396, etc. v. Hearst Pub. Co. (S.D. Cal. 1962) 206 F.Supp. 594, 596.) Thus, the reasoning of Little and Barnes is applicable to the case at bar.
It is possible to envision many circumstances in which it would become necessary to appoint another person to replace a person named in the judgment as the supervisor of a project, especially in a case such as this one in which the project has been long delayed -- more than four and a half years had passed since appellant had been ordered to remediate the nuisance in November 2005. Thus, we conclude that while having a remediation supervisor was a material part of the final judgment, the particular person appointed and his or her qualifications were not. In other words, the court changed a detail of the judgment not a material term.
III. Appellant was not deprived of due process.
Noting that respondents never filed and served a noticed motion either to have Viani discharged or Roit appointed, appellant contends he was deprived of due process, i.e., a fair hearing and adequate notice, because the court did not indicate it would consider appointing Roit as supervisor of the entire remediation project, including his property. Appellant complains the court appointed Roit without hearing any competent evidence or making any oral or written findings.
Appellant did not appeal from the order discharging Viani. Several times in his brief, appellant notes the court did not rule on one of his motions; however, appellant raises no argument nor cites any authority with regard to those motions. This court declines to act as counsel for appellant and furnish legal arguments as to how the trial court's rulings, or lack thereof, were erroneous. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Although appellant notes the court did not make any findings with regard to the subject order, it cites no authority requiring the court to do so. Appellant also complains that the court was holding telephone conferences and ruling by e-mail, but the subject order was a formal order. Moreover, appellant had been participating in phone conferences and communicating by e-mail without objection.
Appellant also notes that ex parte relief is only permitted in limited circumstances. The appealed order emanated from a telephone hearing with both parties present; thus, it was not ex parte relief.
"'It is a cardinal principle of our jurisprudence that a party should not be bound or concluded by a judgment unless he has had his day in court. This means that a party must be duly cited to appear and afforded an opportunity to be heard and to offer evidence at such hearing in support of his contentions. [¶] His right to a hearing does not depend upon the will, caprice or discretion of the trial judge who is to make a decision upon the issues. [¶] An order or judgment without such an opportunity is lacking in all the attributes of a judicial determination. [¶] Refusal to permit counsel for petitioner to present evidence and make a reasonable argument in support of his client's position [i]s not a mere error in procedure. It amount[s] to a deprival of a substantial statutory right ____"' (Citations omitted.) (Bricker v. Superior Court (2005) 133 Cal.App.4th 634, 638.)
In an April 14, 2010, e-mail sent to the court, Roit requested that she be "compensate[d]" for her time "to supervise remediation of our property" or have a "designee" appointed to supervise the remediation of respondents' property. In its response, the court indicated that it would consider naming a designee for respondents who would supervise the remediation on their property and asked Roit to submit the name of the individual she was proposing and his/her fees for the court's approval.
"Where notice is limited to the information that a particular petition will be heard by the court at a certain place and time, the court is without jurisdiction to decide issues beyond the scope of that petition unless all interested parties are before the court or otherwise waive their right to notice." (Estate of Jenanyan (1982) 31 Cal.3d 703, 710.) All parties were before the court when Roit was appointed as remediation supervisor.
At the April 20 hearing, Roit referred to the fact the project had been in the works for four and half years and then asked the court to appoint her as the supervisor for the entire project for three months. After hearing Roit's proposal, the court stated it would let defendant be heard. Defendant objected to giving Roit complete control over his property. The court stated it was going to give Roit three months and it was "not concerned about anything improper being done to [defendant's] property. Nothing is going to be done without my approval." Defendant did not ask the court if he could adduce any evidence.
The gravamen of appellant's due process claim is that he was deprived of a fair hearing because he had no notice the court was going to appoint Roit as the remediation supervisor. "It is the well-settled law of this state that where both parties appear and contest a motion, without objection in the trial court, such appearance is a waiver of a written notice, if none were given, or of the defect in the notice to specify all of the relief asked and given, if the motion and order went beyond the terms of the notice." (Hammond Lumber Co. v. Bloodgood (1929) 101 Cal.App. 561, 563-564.)
Citing Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244, appellant asserts due process requires an order with a significant impact on a case cannot be made without a full opportunity to brief the issues and present evidence. The order appointing a replacement for the named remediation supervisor was not equivalent to the order certifying a class at issue in Carabini. The court gave appellant an opportunity to be heard before it appointed Roit.
In addition, appellant did not raise a claim about lack of notice or Roit's qualifications at the hearing or in his motion to reconsider the appointment. Thus, he forfeited any such claims on appeal. (See Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4th 1370, 1375.)
Counsel was capable of doing so. At the May 11, 2010, hearing about whether there was a post notice of appeal stay in effect, for the first time, Proctor objected to communications by e-mail arguing his client was denied due process by virtue of the ruling by e-mail and by the lack of notice and opportunity to be heard. The court clarified it had not ruled by e-mail, but signed an order prepared by one party.
IV. The court did not abuse its discretion when it issued the subject order.
Appellant contends the order was arbitrary and capricious because Roit was not qualified to supervise the remediation in that she was not an engineer or contractor; in prior orders, the court specifically stated it had crafted the judgment to preclude any party from having the ability to approve or supervise the remediation; the order did not state whether and how Roit would be compensated; and if she was compensated at her attorney rates, her appointment would exhaust the money left in the remediation budget. Appellant also complains the order gave Roit complete control over the remediation on his property.
"An abuse of discretion occurs when, in light of applicable law and considering all relevant circumstances, the court's ruling exceeds the bounds of reason." (North American Capacity Ins. Co. v. Claremont Liability Ins. Co. (2009) 177 Cal.App.4th 272, 285.)
In particular, appellant states that the court acknowledged the project needed an engineer of record to supervise the project. Not so. The court stated it wanted to appoint a general contractor to supervise the project and the contractor would bring in an engineer. In April 2010, the court appointed Manny Solano to supervise the project.There was no requirement in the judgment that the supervisor had to be a contractor or engineer. The court was familiar with Roit and in the best position to determine if she could deliver on her promise to get things done that needed doing as it was familiar with her efforts to move the remediation along.
Although respondents claim Solano was not an engineer or contractor, they provide no citation to the record supporting that claim.
Even though the court had previously stated in rulings on requests for expert fees that it had crafted the judgment not to give either party the right to supervise the project, things had changed. The project had been delayed so long that the court was frustrated by the lack of progress of the remediation and decided to take a "hands-on" role. This court is not in a position to determine which party was more responsible for the long delay in not completing the remediation. It does appear the inability of the parties to cooperate with each other was a major factor in the delay. We infer the court rethought its earlier position.
The claim Roit's appointment would exhaust the remaining money in the remediation budget is a possibility notwithstanding whoever is appointed. The court is not obligated to reimburse Roit at her attorney rates.
Regarding appellant's claim the court gave Roit complete control over his property, the parameters of the remediation were set by the judgment and the CCC and County permits. Moreover, the court expressly stated nothing would be done without its approval. For example, in his reply brief, appellant claims that Roit had a "Procedure 5" work plan prepared which treats the debris as hazardous waste and results in additional costs even though the judgment expressly found there was no need for hazardous waste disposal. We have every confidence that should Roit attempt to go beyond the terms of the judgment, appellant would bring the matter to the court's attention. Several times, the court had established that the judgment would limit the remediation.
DISPOSITION
The order is affirmed. Each side to bear its own costs on appeal.
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.