Opinion
A167587
03-21-2024
HUNDRED ACRE WINE GROUP, INC., Plaintiff, Cross-defendant and Appellant, v. COUNTY OF NAPA, Defendant, Cross-complainant and Respondent.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 22CV1166
CASTRO, J. [*]
Plaintiff Hundred Acre Wine Group, Inc. (Hundred Acre) filed suit against defendant County of Napa (County) seeking declaratory judgment that its development of a hillside is not subject to certain conservation provisions of the Napa County Code. After inspecting the hillside, the County filed a cross-complaint and sought a temporary restraining order (TRO) and preliminary injunction, which the trial court granted. Hundred Acre appealed.
The County's core allegation is that Hundred Acre performed "grading, earthmoving, or vegetation removal" on the hillside without the requisite entitlements under the Napa County Code. Hundred Acre argues there is no substantial evidence of such activities and the trial court erred as a matter of law in interpreting "earthmoving" under the Napa County Code. Hundred Acre also asserts the preliminary injunction prohibits lawful activity, and therefore the court erred in determining that it would not suffer irreparable harm from its issuance, and the injunctive order is overbroad and impermissibly vague.
We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Hillside Development
Hundred Acre owns property in an unincorporated area of Napa County. The portion of Hundred Acre's property relevant to this dispute consists of approximately eight acres of sloped hillside that burned in the Glass Fire in late 2020. After the fire, Hundred Acre cut down all the trees on the hillside, removed the remaining stumps and tree root balls, then hydroseeded the hillside.
The "Glass Fire" started on September 27, 2020, and was not contained until October 20, 2020. In those 23 days it burned over 67,000 acres of land and destroyed over 1,500 structures.
In April 2021, Hundred Acre approached the County to discuss the requirements for developing the hillside into a terraced vineyard. Hundred Acre prepared and submitted diagrams of the proposed development to the County. The County informed Hundred Acre that Napa County Code (NCC) chapter 18.108 et seq. required an erosion control plan on areas with slopes that exceed 5 percent, and a use permit exception on slopes that exceed 30 percent or are within ephemeral stream setback areas. Hundred Acre, however, did not apply for an erosion control plan or any use permit exception under the NCC.
Undesignated code references are to the Napa County Code.
Approximately one year later, Hundred Acre began to install a vineyard on the hillside. In April 2022, after the County received a report of potential unpermitted activity on the hillside, County staff observed from a public vantage point that approximately three acres of the hillside had been cleared and staked as a vineyard. The next month, the County made a request to enter Hundred Acre's property for an inspection. Hundred Acre did not respond.
A month later, County staff revisited the public vantage point and saw that an additional two to four acres of the hillside had been cleared and staked as a vineyard. It also appeared to County staff that the clearing of the hillside had occurred within 35 feet of ephemeral streams. That same day, County staff posted a stop work order at the entrance of Hundred Acre's property, and the following week, the County issued a notice of code violation informing Hundred Acre of the extent of the publicly observable violations. Despite attempts to negotiate an inspection of the hillside, Hundred Acre refused to allow County staff to enter its property.
B. Initiation of Legal Proceedings
On October 6, 2022, Hundred Acre filed a complaint seeking declaratory judgment that its development of the hillside into a vineyard was not subject to the NCC. Hundred Acre averred it did not, as used in the NCC, (1) remove "vegetation" because that term refers to living plants, and the burnt plants it removed were dead and constituted safety hazards; and (2) perform" 'earthmoving activity'" because the vineyard was installed by placing bottomless vessels on the ground through which the vines naturally rooted. Accordingly, Hundred Acre asserted its activities on the hillside fell outside the County's regulatory authority.
On October 19, 2022, the County executed an inspection warrant to inspect the hillside. During the inspection, County staff confirmed that a portion of the hillside had been planted with grapevine rootstock in bottomless pots secured to wooden stakes, and that an irrigation system was installed. County staff also saw signs of drainage problems and erosion on the hillside, including an eroded channel-a "rill"-at the base of the hillside.
An inspection warrant is a court order directed to a state or local official commanding that person to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning. (Code Civil Proc., § 1822.50.)
A month after the inspection, the County filed a cross-complaint seeking abatement of alleged public nuisances based on several alleged violations of the NCC. Relevant here, the County alleged Hundred Acre had violated sections 18.108.060, subdivision (A), 18.108.070, subdivision (B), 18.108.025, subdivision (B), and 18.108.120 by (1) performing earthmoving activity, removing vegetation, staking and new planting on slopes exceeding 5 percent without an erosion control plan, and on slopes exceeding 30 percent without an approved exception; (2) performing earthmoving activity, removing vegetation, and conducting agricultural use of land within the 35-foot setback area for an ephemeral stream without an exception; and (3) allowing and causing the continued existence of a condition that causes substantial erosion or runoff due to human-induced alteration of the vegetation, land surface, topography, or runoff pattern.
C. Temporary Restraining Order
In December 2022, the County applied ex parte for a TRO and an order to show cause as to why a preliminary injunction should not be issued on the same grounds. The County's request initially sought prohibitory and mandatory relief. The County set forth facts through the declarations of several staff members. The declarations recited evidence of the relevant conditions of the hillside from County staff observations during the execution of the October 2022 inspection warrant, including attached exhibits comprised of photographs taken during the inspection, satellite imagery of the hillside and adjacent property, and maps from the County's Geographic Information System (GIS).
The GIS information can be displayed in layers. For example, on a map format, the GIS can overlay layers such as parcel boundary lines, fire damage, and waterways.
The County claimed the declarations supported a prima facie showing of the alleged infractions. The evidence included (1) GIS mapping showing the hillside's slopes range from 30 percent to 55 percent and contain seven ephemeral stream channels; (2) GIS mapping's "fire damage layer" designated the soil burn severity of the hillside as ranging from "Unburned" to "Low" and "Moderate" severity; (3) satellite imagery of the hillside taken after the Glass Fire in October 2020 showing both green and blackened trees on the hillside; and (4) photographs taken on January 26, 2021, showing that the burn area uphill from the hillside had green trees, while the hillside itself was dotted with stumps. Photographs taken on October 19, 2022, showed holes where stumps had been removed. By that time, a portion of the hillside was terraced, and photographs showed bottomless pots partially burrowed into the ground and secured to stakes, and an irrigation system running to each rootstock had been installed. Other photographs revealed erosion on the west side of the hillside as well as a rill that was carved into the east side of the hillside.
Hundred Acre opposed the County's ex parte application and the trial court heard extensive oral argument. The next week, the court issued an order granting a modified TRO, removing the requested mandatory provisions, and adding a provision allowing the County to inspect the hillside.
D. Preliminary Injunction Briefing
In early January 2023, the County again inspected the property under another inspection warrant. County staff were accompanied by Hundred Acre's geotechnical engineer, Mark Gilbert, and geologist, Michael Troutner. Gilbert and Troutner independently examined the hillside to "evaluate representations made by County officials regarding risks of erosion" and to "collect samples of stormwater runoff on the property and surrounding areas during rain events." A week later, Gilbert produced a report stating his findings that the risk of erosion on the hillside was "very low" and that he "did not observe evidence of mechanical earthmoving and compaction equipment on the hillside" nor "any terraces constructed with such equipment." He further claimed there was no suggestion of previous earthmoving activities based on his evaluation of the hillside's "Lidar contours."
"Lidar" or "LiDAR," which stands for "Light Detection and Ranging," is a form of imaging geometrical characteristics. (See, e.g., Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1164.)
Hundred Acre's opposition to the motion for preliminary injunction and response to the order to show cause argued the County did not carry its burden of demonstrating it was likely to succeed on the merits. Specifically, it stated the County had not proffered "admissible" evidence to refute Gilbert's report asserting" 'earthmoving or earth disturbing activity'" likely did not take place. And-while admitting that it had "removed the fire-killed trees" because they "posed an imminent safety hazard"-Hundred Acre asserted "no sensible reading of the regulations would support the notion that 'vegetation' includes dead plant material." It also claimed the County failed to submit evidence of ephemeral streams because there are "no defined beds or banks on the Hillside."
Hundred Acre next contended it would suffer irreparable harm from loss of expected revenue if the injunction were issued. Specifically, Hundred Acre argued prohibitory relief would deprive it of "at least $4.5 to $5 million" in annual retail sales of wine and thus prevent recoupment of the $60,000 cost for the purchase of rootstock and staking the hillside. In weighing the respective harms to the parties, Hundred Acre contended there is "no risk of harm to the County or the public" due to the lack of evidence of protected trout species in the area and "unfounded claims of increased erosion" from the hillside. Hundred Acre further claimed the injunction would undermine the goal of preventing erosion on the hillside because the planted vines' "root structures assist in soil retention."
In addition to Gilbert's report, Hundred Acre submitted declarations in support of its claims it did not perform vegetation removal or earthmoving, it would suffer irreparable harm, and the conditions on the hillside were not causing erosion issues. Hundred Acre also submitted objections to the County's evidence, including the maps and photographs attached as exhibits to the declarations by County staff.
The County countered that Hundred Acre ignored the photographic and testimonial evidence regarding earthmoving activity, including "from voids where tree root balls were removed to buttresses [sic] surrounding various clay pots containing vines," as well as the existence of ephemeral streams. The County also responded that the circumstantial evidence it had proffered demonstrated the vegetation on the hillside was not "dead," and, in any event, the NCC does not exclude dead plant materials from the term "vegetation." Turning to the parties' relative harms, the County argued Hundred Acre failed to show grave or irreparable harm because it had (1) improperly calculated its gross revenue instead of net profits; (2) merely demonstrated, at most, an "interim" financial burden from delay in using the hillside; and (3) no cognizable harm for alleged lost profits from an unlawful activity. The County also withdrew its request for a mandatory injunction, to pursue possible alternative methods of obtaining compliance.
In a tentative ruling, the trial court granted the County's requested relief, including mandatory relief. But in light of the County's reply withdrawing its request for mandatory relief, the court requested concurrent briefing on whether such relief could be imposed, and, after a hearing on March 1, 2023, issued a new tentative ruling without mandatory relief but still granting prohibitory relief.
At the March 2023 hearing, however, Hundred Acre raised a new issue, arguing the tentative preliminary injunction language was both vague and overbroad. The court again requested concurrent briefing. In its supplemental brief, Hundred Acre asserted the proposed language improperly proscribed lawful activity, such as irrigating and weeding the vineyard. The County countered that the scope of the proposed language was proper because Hundred Acre cleared the hillside without adhering to the NCC's requirements and, as a result, Hundred Acre's "use of the hillside [was] unlawful." The County further claimed the scope of the proposed injunction was proper because, should it succeed on the merits, it would be entitled to relief requiring Hundred Acre to restore the hillside to its previolation conditions. Nonetheless, the County offered modified language to clarify the scope of the preliminary injunction.
E. Preliminary Injunction Order
On March 15, 2023, the trial court issued its written ruling granting the County's requested prohibitory injunction and denying the requested mandatory relief.
The trial court resolved disputed factual issues and evidentiary objections to find that the County presented evidence sufficient to show a reasonable probability of prevailing on the merits. Specifically citing the County's declarations, the court rejected Hundred Acre's claim there was "no evidence" of earthmoving or ephemeral streams on the hillside. It held that Hundred Acre failed to make a prima facie showing that the removed trees constituted a safety hazard, and, in any event, such a safety hazard did not alter the requirements set forth in the NCC. The court was also unpersuaded that the fire-damaged plants did not constitute "vegetation" under the NCC, and credited the County's evidence that such plant life likely would have regenerated.
Thus, the court concluded there was a reasonable probability Hundred Acre "created and is maintaining public nuisances" by (1) "[p]erforming grading, earthmoving activity, and vegetation removal associated with the development or use of land, including new planting" on slopes exceeding 5 percent without an erosion control plan, and on slopes exceeding 30 percent without an approved exception, "each instance of which is in violation of NCC section 18.108.060[, subdivision (A)]"; (2) "[p]erforming earthmoving, grading, removal of vegetation, and the agricultural use of land within the 35-foot setback area for an ephemeral stream" without the requisite exception in "violation of NCC section 18.[1]08.025[, subdivision (B)(1)]"; and (3) "[c]ausing or allowing the continued existence of a condition" that causes "substantial erosion or runoff due to human-induced alteration of the vegetation, land surface, topography, or runoff pattern" in "violation of NCC section 18.108.120."
Turning to the next prong of its analysis, the court held that Hundred Acre failed to rebut the presumption that the potential harm to the public from the alleged activities outweighs its own potential harm. Having found a reasonable probability Hundred Acre's alleged activities created public nuisances, the court was unpersuaded that Hundred Acre suffers cognizable harm where the "asserted potential losses . . . all stem from" restrictions in the activities that constitute the public nuisance-i.e., "development of the [hillside], without the requisite entitlements." The court further faulted Hundred Acre for failing to show a likelihood of lost profits, rather than lost revenue.
Finally, the court rejected Hundred Acre's argument that the injunction should be limited only to "earthmoving activity" and disagreed that the order was vague or overbroad. Finding the County's proposed modified language clarifying, the court issued the following injunctive order: "Hundred Acre and its agents . . . are enjoined, during the pendency of this action, from engaging in any activities in furtherance of agricultural use other than as necessary to maintain current conditions on the hillside." Hundred Acre appealed.
II. DISCUSSION
A. Legal Standards
Whether a motion for a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the party seeking an injunction will prevail on the merits, and (2) the relative harm to the parties if the injunction is granted or denied. (White v. Davis (2003) 30 Cal.4th 528, 554.) Where a governmental agency establishes it is reasonably probable that it will prevail on the merits, then a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 72 (IT Corp.).)
The trial court's ruling on a request for a preliminary injunction "reflects nothing more than the superior court's evaluation of the controversy on the record before it at the time of its ruling; it is not an adjudication of the ultimate merits of the dispute." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109 (Gallo).) A preliminary injunction is intended to "preserv[e] . . . the status quo until a final determination of the merits of the action." (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 (Katz).)
The ruling on an application for a preliminary injunction rests in the sound discretion of the trial court, which we do not disturb absent an abuse of discretion. (IT Corp., supra, 35 Cal.3d at p. 69.) A trial court abuses its discretion if it has"' "exceeded the bounds of reason or contravened the uncontradicted evidence." '" (Ibid.) The burden is on the party challenging the injunction to make a clear showing the trial court abused its discretion. (Ibid.)
A challenge to the trial court's determination may trigger other standards of appellate review, however, depending on the nature of the claimed error. (See People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 282-283.) For example, where the court has interpreted and applied law to undisputed facts, we review independently. (Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964.) Where the court has resolved disputed issues of fact, we apply the substantial evidence standard, i.e., its findings will be sustained unless shown to lack substantial evidentiary support. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) "It is the appellant's burden, not the court's, to identify and establish deficiencies in the evidence." (Ibid.) We resolve all factual conflicts and questions of credibility in favor of the prevailing party. (Thompson, at p. 964.).
B. Reasonable Probability of Prevailing on the Merits
The trial court ruled there is a reasonable probability the County will succeed in showing that Hundred Acre violated several provisions of the NCC, specifically (1) section 18.108.060, subdivision (A) and section 18.108.070, subdivision (B) by "grading, earthmoving activity, and vegetation removal associated with the development or use of land, including new planting" on slopes exceeding 30 percent without an approved exception, and on slopes exceeding 5 percent without an erosion control plan, respectively; (2) section 18.108.025, subdivision (B)(1) by "earthmoving, grading, removal of vegetation, and the agricultural use of land" that took place "within the 35-foot setback area for an ephemeral stream" without an approved exception; and (3) section 18.108.120 by "[c]ausing or allowing the continued existence of a condition on the [hillside] that causes substantial erosion or runoff due to human-induced alteration of the vegetation, land surface, topography, or runoff pattern."
If the trial court's probability-of-prevailing ruling as to any one of these alleged violations is supported, that is sufficient to support the injunction. We are persuaded sufficient evidence supports the court's ruling that the County demonstrated a probability of prevailing on its claim that Hundred Acre violated section 18.108.060, subdivision (A). We therefore need not, and do not, consider the trial court's rulings as to the other provisions of the ordinance.
Section 18.108.060, subdivision (A) provides in relevant part: "To minimize the risks associated with project development in areas characterized by steep slopes . . ., no construction, improvement, grading, earthmoving activity or vegetation removal associated with the development or use of land shall take place on those parcels or portions thereof generally having a slope of thirty percent or greater . . . unless exempt . . . or unless an exception through the use permit process is granted . . . ." There is no dispute that the hillside at issue is at least a 30 percent grade." 'Earthmoving,'" in turn, is defined in the ordinance as coextensive with the term" 'earth-disturbing activity'" and these terms encompass "any activity that involves vegetation clearing, grading, excavation, compaction of the soil, or the creation of fills and embankments to prepare a site for . . . new planting . . . ." (§ 18.108.030.)" 'Grading,'" in turn, is defined as "any stripping, cutting, filling, contouring, recontouring or stockpiling of earth or land, including in its cut or filled condition." (Ibid.)
In concluding there is sufficient evidence of "vegetation removal," "grading" and "earthmoving activity," the court relied on the declarations of Patrick Ryan and Akenya Robinson-Webb. In his declaration, Ryan described the property at issue as "an area of approximately 1700 square feet [that] had been newly planted with vines, apparently having been mounded with compost held in place by bottomless clay pots," many of which had been placed on "terraces created by digging into the hillside, moving the soil, or otherwise compacting the soil to prevent the potted rootstock from tumbling down the hillside." Robinson-Webb stated "clay pots had been pushed down below the soil surface, and some locations had been leveled to enable the pots to stand upright. This required digging, moving or compacting the soil underneath the pots."
In its briefing, Hundred Acre repeatedly asserts the County's evidence was inadmissible. However, it failed to provide any separate and developed argument, or citations to authority, in support of its claims that the trial court committed evidentiary error and therefore has forfeited the issue. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.)
Appended to Ryan's declaration are a number of photographs taken during the October 19th inspection. Several of these photos show that at least a considerable number of the individual rooting pots had been stabilized by either being settled several inches into the soil or by disturbing and leveling the surface underneath the pots. Other photos indicate tree stumps were removed so the pots of rootstock could be placed in orderly rows across the hillside. As we have recited, the pertinent ordinance defines" '[e]arthmoving'" and" 'earth-disturbing activity'" as "any activity that involves vegetation clearing, grading, excavation, compaction of the soil, or the creation of fills and embankments to prepare a site for . . . new planting . . . ." (§ 18.108.030, italics added.)" 'Grading,'" in turn, is defined as "any stripping, cutting, filling, contouring, recontouring or stockpiling of earth or land, including in its cut or filled condition." (Ibid., italics added.) The term "any" is one of "broad inclusion, meaning 'without limit and no matter what kind.'" (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635.)
The declarations and particularly the photographs plainly show some "vegetation clearing," soil "compaction," and "contouring." It may be true that the earth disturbing activity has been on a modest scale. But it is more than "de minimis," the characterization that Hundred Acre employs, and we are charged with applying the ordinance according to its plain terms. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [where possible, the plain meaning of language governs].)
At oral argument, the County argued that even if the degree of earth disturbance is on a relatively modest scale, the totality of the circumstances-i.e., both the vegetation clearing and the soil disturbances- adds up to a violation of section 18.108.060, subdivision (A). Hundred Acre argued, in turn, that the vegetation clearing occurred separately and far earlier, in late 2020 in the wake of the Glass fire, whereas it commenced planting the new hillside vineyard in 2023. Hundred Acre thus maintained there was no evidence the vegetation clearing was done "to prepare a site for . . . new planting" as required by the definition of "earthmoving" and "earthdisturbing" activity.
However, as the County pointed out, the record permits at least an inference of a deliberate continuum of activity leading to the planting of a new vineyard. In April 2021, Hundred Acre contacted the County about planting a new vineyard on the hillside and was advised it needed to comply with the ordinance. It did not do any follow-up, however, and the following year commenced planting. Moreover, the photographs submitted by the County show what appears to be the removal of tree and/or shrub root balls, which had to be removed for development of a new vineyard. Thus, while not overly abundant, there is evidence linking the vegetation removal to the planting of the new vineyard.
Hundred Acre also argued in the trial court and in its briefs on appeal that the removal of "vegetation" does not include the removal of "dead" trees and shrubs, which it claims were all it removed. The County maintained the photos show that vegetation on adjoining properties has resprouted and therefore Hundred Acre did not remove only "dead" trees and shrubs. Whether or not that is the case, the ordinance is not limited to "live" vegetation, and use of the terminology "dead vegetation" is not, as Hundred Acre maintains, an oxymoron. In fact, use of the terms "live vegetation" and "dead vegetation" is not uncommon. (See, e.g., Talucci et al., Fire severity and the legacy of mountain pine beetle outbreak: high-severity fire peaks with mixed live and dead vegetation (Nov. 2022) 17 Environmental Research Letters No. 12 <https://iopscience.iop.org/article/10.1088/1748-9326/aca2c1> [as of Mar. _, 2024] ["Fire severity and the legacy of mountain pine beetle outbreak: high-severity fire peaks with mixed live and dead vegetation"]; Federal Emergency Management Agency, Conditions Affecting Wildfires <https://emilms.fema.gov/IS320/WM0102030text.htm> [as of Mar., 2024] ["Because dead plants burn very easily, the presence of dead vegetation increases the likelihood of a more intense and faster spreading wildfire."]; California Department of Forestry and Fire Protection, Vegetation Management Program <https://www.fire.ca.gov/what-we-do/natural-resource-management/vegetation-management-program> [as of Mar., 2024] ["Hazardous fuels are live and dead vegetation that has accumulated and increases the likelihood of unusually large wildland fires."]; National Wildfire Coordinating Group, Fire Weather, PMS 425-1 (Aug. 2023) 11. Weather and Fuel Moisture <https://www.nwcg.gov/publications/pms425-1/weather-and-fuel-moisture> [as of Mar., 2024] ["The moisture content of live and dead vegetation is not in itself a weather element."].)
In sum, viewing the evidence in the light most favorable to the County, we conclude the court's ruling that the County demonstrated a probability of prevailing for purposes of preliminary injunctive relief is adequately supported.
C. Balance of Relative Harms
In the next step of considering a motion for a preliminary injunction, courts must balance equities to determine the" 'interim harm that the [moving party] is likely to sustain if the injunction were denied compared to the harm that the [nonmoving party] is likely to suffer if the preliminary injunction were issued.'" (White v. Davis, supra, 30 Cal.4th at p. 554.) But, because the County, a governmental agency, established that it is reasonably probable it will prevail on the merits, then a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the nonmoving party. (IT Corp., supra, 35 Cal.3d at p. 72.) To rebut the presumption, Hundred Acre must show it would suffer "grave or irreparable harm" if the injunction were issued. (Ibid.) If it succeeds, only then is the court required to examine the relative harm to the parties if the injunction is granted or denied. (Ibid.) The goal is to "minimize the harm which an erroneous interim decision may cause." (Id. at p. 73.)
Here, the court did not reach the balancing of relative harms because it concluded that Hundred Acre's asserted harms are not cognizable, so Hundred Acre failed to rebut the presumption that the County's potential harms are greater than its own. We agree. Hundred Acre failed to proffer evidence of cognizable, irreparable harm as a matter of law, and, accordingly, the court did not abuse its discretion in determining the injunction was appropriate. (IT Corp., supra, 35 Cal.3d at p. 75.)
Hundred Acre submitted declarations attesting that the preliminary injunction is curtailing its business by preventing use of the hillside. Hundred Acre's chief operating officer estimated that "each spring Hundred Acre is prevented from installing further rootstock . . . delay[s] the grafting process by two years." Hundred Acre's chief executive officer declared the hillside is "staked for 4.5 acres" of vines but has "the potential to be planted up to 8 acres" using the "experimental method of placing a rootstock in a bottomless clay pot, and placing the pot atop the soil on the hillside." Based on a "conservative average," he estimated that one acre of vine "yields approximately 120, nine-liter cases" of wine, which would return "$1,008,000 in retail wine sales." Therefore, the 4.5 acres of the hillside currently staked "can result in $4.5 million to $5 million in retail sales" of wine, and the full 8 acres has a potential of producing over $8 million in retail sales of wine.
As the trial court properly recognized, however, these asserted financial harms "all stem from [Hundred Acre's] inability to plant grapevine rootstock" on the hillside, the development and use of which, without the requisite entitlements, is a public nuisance. It is established that "as a matter of law, the cost of ceasing illegal conduct is not a cognizable injury." (BBBB Bonding Corp. v. Caldwell (2021) 73 Cal.App.5th 349, 378.) Accordingly, Hundred Acre "cannot claim harm from any restrictions in the activities that constitute the public nuisance." (People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 882; see also Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554, 562 [stating a party suffers no grave or irreparable harm, for purposes of determining whether a preliminary injunction should be granted, by being prohibited from violating the law].)
Hundred Acre argues that "even if one accepts" that any previous activities were violations of the NCC, and thus public nuisances, its planned use of the hillside as a vineyard is "lawful." Not so. The finding that substantial evidence shows the new planting of vines in pots have disturbed the soil and been placed on levelled terraces dug into the hillside means there is a reasonable probability the County will prevail on the merits of its claim that Hundred Acre "created and is maintaining [a] public nuisance[]." (Italics added.) In other words, it is the development and ongoing use of the vineyard that is the public nuisance that the County would be entitled to abate. This is dispositive.
Hundred Acre also contends that the trial court committed legal error in its separate finding that lost profits, rather than lost revenue, is the proper measure for such an injury. Hundred Acre cites two cases in support of the proposition that "lost business revenue" can be considered an" 'irreparable'" injury in the context of a preliminary injunction. First, in McCammon v. City of Redwood City (1957) 149 Cal.App.2d 421, 425, an ordinance effectively closed a business's trucking route, which increased costs so significantly the hauling became "not economically feasible." McCammon affirmed the denial of an injunction on other grounds but, in dicta, stated that such a "curtailment of appellants' business operations is manifestly an irreparable injury." (Id. at pp. 427, 424.) Rather than supporting Hundred Acre's contention that lost gross revenues may constitute irreparable harm, the dicta in McCammon reaffirms net losses, such as from increased costs, are the proper measure of business injury. (See also Parlour Enterprises, Inc. v. Kirin Group, Inc. (2007) 152 Cal.App.4th 281, 287 [monetary injuries to business are" 'based on net profits,'" not gross revenues].) Hundred Acre's reliance on a second case, Nutro Products, Inc. v. Cole Grain Co. (1992) 3 Cal.App.4th 860, is also misplaced because the alleged harm at issue there was "lost profits," not lost revenues. (Id. at pp. 866-867, italics added.)
Hundred Acre does not dispute the trial court's finding that Hundred Acre failed to present "evidence tending to support the likelihood of such profits."
IT Corp. is instructive on both dispositive issues. There, our high court ruled the appellant's "substantial economic loss" of "revenues" were insufficient to show grave or irreparable injury. (IT Corp., supra, 35 Cal.3d at p. 75.) The Supreme Court explained the "substantial" lost "revenues" did not establish grave or irreparable harm because the injunction would merely require the appellant stop specific activities found to likely be illegal, but it could continue to otherwise operate. (Ibid.) So too, here. The preliminary injunction only prevents Hundred Acre from "engaging in any activities in furtherance of agricultural use" on the hillside, for which there is a reasonable probability the County will prevail in showing they constitute public nuisances; but it does not impact Hundred Acre's other business operations on its property.
Accordingly, we conclude the trial court correctly applied the law and that granting the County preliminary injunctive relief was "within the permissible range of options set by the applicable legal criteria." (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 957.) There was no abuse of discretion here.
D. The Injunction Is Not Vague or Overbroad
Turning to the language and scope of activity proscribed by the injunctive order, we evaluate whether the remedy fashioned was impermissibly vague or overbroad. Because the trial court's order provides Hundred Acre with fair notice of what it may and may not do, and does not trammel on Hundred Acre's lawful activities, we conclude there is no such basis for reversal.
1. Not Impermissibly Vague
Vagueness turns on the principle of fair notice so that the target of an injunctive order "must be able to determine from the order what he may and may not do." (Katz, supra, 68 Cal.2d at p. 534.) Whether the target of an injunction "has been given sufficient notice of the conduct proscribed" must be "interpreted in light of the record which discloses the kind of conduct that was sought to be enjoined." (Ibid.; see also City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 514 (City of Vernon) [the terms of an injunction are made clear by reference to the record as well as" 'the purpose and object of the litigation which terminated in the decree,' as made evident by the pleadings"]; Gallo, supra, 14 Cal.4th at pp. 1116-1117 [the terms of an injunction must be considered in light of their purpose and context, and are not impermissibly vague if made reasonably certain by reference to definable sources].)
The alleged unlawful activity at issue here is the earthmoving development and use of the hillside as a vineyard without the requisite entitlements, and under the court's order, Hundred Acre is enjoined "from engaging in any activities in furtherance of agricultural use other than as necessary to maintain current conditions on the hillside . . . ." As discussed above, the record is replete with evidence depicting leveled terraces, installed irrigation systems, and compressed dirt around pots where vines were planted. As such, the record of evidence provides sufficient context to the specific conduct proscribed by the court's order.
Moreover, section 18.108.060, subdivision (A) explains that the provision's purpose is "[t]o minimize the risks associated with project development in areas characterized by steep slopes, high erosion potential, unstable soils, combustible vegetation and other sensitive environmental resource areas." (Italics added.) This illustrates why the public nuisance is the development and ongoing use of the hillside as a vineyard, not merely the grading and earthmoving that was conducted to develop it. (See City of Vernon, supra, 38 Cal.2d at p. 514.)
This erodes Hundred Acre's claim that "[v]irtually every operative word and phrase [of the injunctive order] . . . is so vague and uncertain as to render compliance a matter of guesswork." Hundred Acre points to the terms "any," "activities," "in furtherance of," "agricultural use," "other than as necessary," "to maintain," and "current conditions" as examples of the court's allegedly indecipherable language. But when read in the context of the record and purpose of the underlying litigation, such terms are not" 'so vague that men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.'" (People ex rel. Gascon v. HomeAdvisor, Inc. (2020) 49 Cal.App.5th 1073, 1082-1083.) The language is plain: Hundred Acre is prohibited from continuing to develop the hillside and from using it as a vineyard (or for any other agricultural purpose) during the pendency of this action. That is the allegedly unlawful activity at issue and that is the target of the injunction.
Hundred Acre also argues that by encompassing de minimis activities the order "expose[s] Hundred Acre to unfair risk," particularly because there is" 'no way to freeze land in place.'" This concern is misplaced. Hundred Acre is not mandated to" 'freeze land in place' "; indeed, it is not required to maintain the current condition of the hillside at all. Instead, the injunctive order states Hundred Acre is not prohibited from taking "necessary" action to maintain the "current conditions" of the hillside. This permissive caveat- i.e., allowing Hundred Acre to take necessary action to prevent further erosion and environmental degradation if current conditions begin to deteriorate-advances the goal of minimizing further harm to the public and it empowers Hundred Acre to mitigate its potential expenses in abating the nuisance.
After extensive supplemental briefing and oral hearings, Hundred Acre persuaded the court to reject the County's requested mandatory relief, which would have included use of a turbidity meter and installation of fiber rolls and storm drain inlet protections.
The meaning of "current conditions" as used in the injunctive order is again informed by the context of the evidentiary record and the object of the litigation. The object of the County's litigation is erosion and environmental degradation from the development and use of steep slopes lacking proper regulatory review. With this in mind, specific conduct called into question by Hundred Acre-such as irrigating the rootstock and grafting scions onto the maturing rootstock-would be considered "activities in furtherance of agricultural use," and thus prohibited by the order, whereas allowing weeds to grow or vines to die on the hillside would not.
2. Not Impermissibly Overbroad
"The scope of injunctive relief available to address a public nuisance or unlawful business practice is limited." (People v. Padilla-Martel (2022) 78 Cal.App.5th 139, 151.) A court should "strive for the least disruptive remedy adequate to its legitimate task" and tailor it to the harm at issue. (Butt v. State of California (1992) 4 Cal.4th 668, 696.) Thus, an injunction addressing a public nuisance of unlawful business practice "must be narrowly drawn to eliminate the unlawful activity and should not restrict on lawful business activity unless absolutely necessary." (Padilla-Martel, at p. 151.)
As explained above, the allegedly unlawful activity-i.e., the public nuisance-is the development and use of the hillside as a vineyard. The injunctive order is facially limited to activities "in furtherance of the agricultural use" of the hillside. This is properly tailored to the harm at issue. As authority cited by Hundred Acre states: "The function of a preliminary injunction is not merely to contain ongoing damage but to prevent prospective damage." (Nutro Products, Inc. v. Cole Grain Co., supra, 3 Cal.App.4th at p. 867.) The injunctive order does so without proscribing Hundred Acre's other lawful activities on its property. There is no error for overbreadth.
III. DISPOSITION
The trial court's March 15, 2023 injunctive order is affirmed. The County is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR: HUMES, P. J., BANKE, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.