Filed 3/7/13 Harris v. County of Los Angeles CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO


PRESTON THOMAS HARRIS et al.,                                        B239113

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC438196)
         v.

COUNTY OF LOS ANGELES,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
William F. Highberger, Judge. Affirmed.


         Law Offices of A. George Glasco and A. George Glasco for Plaintiffs and
Appellants.


         Lawrence Beach Allen & Choi, Michael D. Allen and Matthew P. Allen for
Defendant and Respondent.




                                             ____________________
       Plaintiffs and appellants Rarebreed Motorcycle Club, Inc. (Rarebreed) and its
officers Preston Thomas Harris (Harris), Kenneth Williams and Lanny Thomas
(sometimes collectively appellants) appeal from the summary judgment granted in favor
of defendant and respondent County of Los Angeles (County). We affirm, finding no
triable issue of material fact on appellants’ cause of action for nuisance.
                 FACTUAL AND PROCEDURAL BACKGROUND1
       Rarebreed has a motorcycle club located in a commercial and industrial district on
South Broadway Street in an unincorporated area of Gardena. Rarebreed’s clubhouse has
a capacity of 250 to 300 people. It has two entrances, a front door on Broadway and a
roll-up back door on a public alley. Rarebreed planned a 20-year anniversary celebration
over three days on June 24, 25 and 26, 2009. Due to a history of violence at Rarebreed’s
clubhouse, including shootings, the Compton and Carson stations of the Los Angeles
County Sheriff’s Department (LASD) prepared operations plans to ensure that the
anniversary celebration was conducted in a safe, secure and law-abiding manner, to
prevent property damage, and to keep traffic in the area safely flowing.
                                       June 24, 2009
       On the night of June 24, 2009, a sheriff’s sergeant set up a command post in a
parking lot near Rarebreed’s clubhouse, and LASD personnel were in constant
communication with the command post. Rarebreed’s party started at 8:00 p.m. and its
members placed cones in the alley behind the clubhouse to block cars from parking in the
alley. They did not have a permit to do so. Over the next few hours, LASD personnel
observed the following: Motorcycles parked on the street outside of designated parking
areas and illegally parked on the sidewalks; motorcycles and attendees blocking streets
and sidewalks; attendees drinking alcohol on public sidewalks; motorcyclists speeding




1
       The facts are taken from the separate statement of undisputed facts, which
contains 231 facts. Although appellants disputed many of these facts, most of the
County’s objections to appellants’ evidence were sustained, which appellants’ opening
brief amazingly fails to disclose.

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and “revving” their engines loudly; loud music from both inside the clubhouse and
outside on motorcycle radios, and attendees yelling and shouting.
       LASD personnel received a complaint call from the public to respond to
Rarebreed’s clubhouse. LASD personnel notified the event organizer that laws were
being violated. At approximately 11:30 p.m., LASD personnel asked the crowd to
disperse, explaining that the crowd was an unlawful assembly. LASD personnel took a
video of the dispersal, which was conducted in an orderly fashion.
                                      June 25, 2009
       There were no large parties at Rarebreed’s clubhouse on June 25, 2009. That
evening, Rarebreed held a “Meet-and-Greet” at the nearby Magic Wheels clubhouse at
6:00 p.m., which also had a front door and pull-up back door. None of the individual
appellants attended this event. At approximately 7:30 p.m., LASD personnel arrived at
Magic Wheels’s clubhouse and observed motorcycles and attendees blocking streets and
sidewalks; attendees drinking alcohol in public; attendees yelling and shouting; and
speeding motorcycles. At 10:30 p.m., LASD personnel asked the crowd to disperse,
explaining the reason for the dispersal.
                                      June 26, 2009
       On June 26, 2009, Rarebreed held an event at a Harley Davidson dealership from
6:00 p.m. to 9:00 p.m. The event “turned out great” and was not shut down by the
LASD. After the Harley Davidson event, attendees headed over to Rarebreed’s
clubhouse and a crowd developed. LASD personnel observed the same problems as they
had at the June 24, 2009 event, including blocked streets and sidewalks, public
consumption of alcohol, speeding motorcycles, and loud noise and music. At
approximately 11:30 p.m., LASD personnel dispersed the crowd.
                                      The Pleadings
       Appellants sued the County and others as a purported class action, alleging various
causes of action including racial discrimination, nuisance and emotional distress. The
County moved for summary judgment on the causes of action against it for emotional
distress and nuisance. As to nuisance, the County argued that (1) appellants could not

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prove the elements of nuisance, and (2) the County was statutorily immune from liability
for nuisance. The County supported its motion with declarations from 11 LASD
personnel, deposition testimony of the three individual appellants, documentary evidence,
and colored photographs taken during the three evenings. Appellants opposed the
motion, addressing only the first ground raised, and relied primarily on the declaration of
Harris, a retired sergeant with the LASD. As noted, the trial court granted most of the
County’s objections to Harris’s declaration. The trial court tentatively granted the motion
for summary judgment, but allowed the parties to file further briefing on the issue of
whether the County had immunity for nuisance liability. After a further hearing on the
matter, the trial court adopted its tentative ruling and granted summary judgment in favor
of the County. This appeal followed.
                                       DISCUSSION
I.     Standard of Review.
       We review a grant of summary judgment de novo, considering “‘all of the
evidence set forth in the [supporting and opposition] papers, except that to which
objections have been made and sustained by the court, and all [uncontradicted] inferences
reasonably deducible from the evidence.’” (Artiglio v. Corning Inc. (1998) 18 Cal.4th
604, 612.) A defendant “moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The
moving defendant may meet this burden either by showing that one or more elements of a
cause of action cannot be established or by showing that there is a complete defense
thereto. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co., supra,
at p. 850.) “‘[A]ll that the defendant need do is to show that the plaintiff cannot establish
at least one element of the cause of action . . . [;] the defendant need not himself
conclusively negate any such element . . . .’ [Citation.]” (Mills v. U.S. Bank (2008) 166
Cal.App.4th 871, 894.) Once the moving party’s burden is met, the burden shifts to the
plaintiff to demonstrate the existence of a triable issue of material fact. (Silva v. Lucky
Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) The plaintiff must produce “‘substantial’”

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responsive evidence sufficient to establish a triable issue of fact. (Leek v. Cooper (2011)
194 Cal.App.4th 399, 417.) “A party cannot avoid summary judgment based on mere
speculation and conjecture [citation], but instead must produce admissible evidence
raising a triable issue of material fact.” (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73
Cal.App.4th 668, 672; Code Civ. Proc., § 437c, subd. (d).)
II.    Appellants Did Not Create a Triable Issue of Fact on Their Nuisance Claim.
       Appellants challenge the summary judgment only with respect to their nuisance
cause of action.
       A. Applicable Law
       Civil Code section 3479 defines nuisance as follows: “Anything which is
injurious to health, including, but not limited to, the illegal sale of controlled substances,
or is indecent or offensive to the senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs
the free passage or use, in the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
       To recover damages for nuisance on an obstruction theory, the plaintiff must prove
not only that the obstruction interfered with the use and enjoyment of property, but the
two “additional elements” that the interference was substantial and unreasonable. (San
Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937; Fashion 21 v.
Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138,
1154.) To demonstrate the interference was substantial, the plaintiff must provide
evidence that he or she suffered “‘substantial actual damage.’” (San Diego Gas &
Electric Co., supra, 13 Cal.4th at p. 938.) To demonstrate the interference was
unreasonable, the test “is whether the gravity of the harm outweighs the social utility of
the defendant’s conduct.” (Ibid.)
       B. No Obstruction
       The first amended complaint alleged that the County (acting through the LASD)
created a nuisance by closing Rarebreed’s and Magic Wheels’s clubhouses and “by
interfering with the use and/or enjoyment by the members of RAREBREED of the streets

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of the county of Los Angeles.” But appellants did not produce admissible evidence of
any physical obstruction.
       In the separate statement of undisputed facts, appellants conceded that on the first
day of the anniversary celebration, June 24, 2009, no sheriff’s deputies were blocking the
back door of Rarebreed’s clubhouse, and when LASD personnel left the clubhouse, a few
Rarebreed members stayed inside to break down equipment and help close up.
Appellants also conceded that on the second day of the anniversary celebration, June 25,
2009, neither of the two entrances to Magic Wheels’s clubhouse were blocked in any
way, and LASD personnel observed people entering and exiting the clubhouse after the
crowd dispersed. Finally, appellants conceded that on the final day of the anniversary
celebration, June 26, 2009, LASD personnel did not physically block entry to
Rarebreed’s clubhouse nor were they ordered to block entry to the clubhouse, and
appellant Kenneth Williams entered the clubhouse 10 minutes after the crowd dispersed
and there were still people inside cleaning up.
       With respect to blocking the streets, the County produced evidence that on
June 24, 2009, LASD personnel observed motorcycles and other vehicles parked on
public streets outside of designated parking areas blocking the streets, motorcycles
illegally parked on the sidewalk which prevented pedestrians from walking on the
sidewalk, and attendees congregated on the street “creating a crowd which prevented the
free flow of traffic.” Although appellants attempted to dispute this evidence, the
County’s objections to appellants’ evidence were sustained. Thus, these facts remained
undisputed. The County also produced evidence that on June 25, 2009, the streets around
Magic Wheels’s clubhouse were blocked and created a fire safety hazard and that on
June 26, 2009, numerous vehicles were parked outside of designated parking areas
blocking the streets around Rarebreed’s clubhouse. Appellants attempted to dispute this
evidence by relying on Harris’s declaration that the streets were blocked only by LAPD
patrol cars. But again, objections to appellants’ evidence were sustained, thus leaving
these facts undisputed.



                                             6
       While appellants disputed the County’s evidence that the crowds grew beyond 500
people, relying on Harris’s declaration that only half this number attended, the number is
immaterial. Regardless of the actual number of attendees, the above facts are
uncontroverted. Additionally, the County produced photographs posted online by
Rarebreed member Will Free (Free), which showed crowds of attendees congregating in
the streets and alleys, and motorcycles parked on the sidewalk. LASD personnel
corroborated that these photographs accurately depicted what they observed. Although
appellants relied on Free’s declaration that “none of those photographs had anything to
do with any events held by Rarebreed during the years 2009 to and including 2010,” the
County provided evidence that Free had produced these photographs himself in response
to a subpoena, and the trial court sustained the County’s objections to appellants’
evidence.
       Accordingly, appellants have not produced specific, admissible evidence to create
a genuine issue of material fact as to whether a physical obstruction was created.
       C. No Substantial Interference
       To meet the second element of their nuisance claim based on an obstruction
theory, appellants must provide evidence that they suffered “‘substantial actual damage.’”
(San Diego Gas & Electric Co., supra, 13 Cal.4th at p. 938.) The degree of harm is
determined objectively. (Ibid.) Appellants failed to produce evidence of damage.
       Appellants did not produce any evidence of expenses incurred as a result of the
crowd dispersal, any evidence of lost ticket revenue, or any evidence of wasted food or
alcohol. Indeed, the celebrations lasted many hours each night before the LASD
dispersed the large crowds. Thus, there is no evidence of any damages, much less of
“substantial actual damage.”
       D. No Unreasonable Interference
       The final element of their nuisance claim requires appellants to show that the
interference with the use and enjoyment of their property was unreasonable. To prove
this element, appellants must show that the gravity of the harm they suffered outweighs



                                             7
the social utility of the LASD’s conduct. (San Diego Gas & Electric Co., supra, 13
Cal.4th at p. 938.) Again, the test is objective. (Ibid.)
       Even assuming appellants suffered harm, the social utility of the LASD’s conduct
outweighed such harm. (See Cox v. Louisiana (1965) 379 U.S. 536, 554–555
[“Governmental authorities have the duty and responsibility to keep their streets open and
available for movement”].) It is undisputed that the anniversary celebrations created
large crowds that spilled onto and blocked public streets, sidewalks and alleys, that there
was public consumption of alcohol, speeding motorcycles, and loud noise, music and
yelling. It cannot be said that the LASD’s decision to take control of the situations by
dispersing the large crowds was objectively unreasonable under these circumstances.
The County produced evidence that given the large size of the crowds and the numerous
legal violations occurring, it was not feasible to make individual arrests.
       Moreover, appellants conceded that the LASD’s operations plans were necessary
“to ensure that the 2009 Anniversary Celebration was conducted in a safe, secure and
law-abiding manner, to prevent property damage and to keep traffic in the area of the
Rarebreed clubhouse safely flowing”; that prior planning by the LASD “was a necessary
and essential safeguard to ensure that the 2009 anniversary celebration was not marred by
violence and would be conducted in a safe and legal manner”; and that the LASD
“engaged in traffic control to ensure attendees left in an orderly manner.” Indeed, unlike
the violence that occurred at past Rarebreed events, there were no shootings at the 2009
anniversary celebrations.
       Because appellants failed to create a genuine issue of material fact on their
nuisance cause of action, the trial court properly granted summary judgment on this
claim.2




2
      Accordingly, we need not reach the alternative basis for summary judgment that
the County had statutory immunity for a nuisance claim under Civil Code section 3482,
“Nothing which is done or maintained under the express authority of a statute can be
deemed a nuisance.”

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                                   DISPOSITION
      The summary judgment is affirmed. The County is entitled to recover its costs on
appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                       ______________________________, J.
                                             ASHMANN-GERST


We concur:



_______________________________, P. J.
           BOREN



_______________________________, J.
           CHAVEZ




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