Anselmo et al v. Mull et al

Filing 96

ORDER signed by Judge William B. Shubb on 10/24/12 ORDERING that Shasta County's MOTION for Preliminary Injunction 50 is DENIED. IT IS FURTHER ORDERED THAT A Status (Pretrial Scheduling) Conference is SET for 11/26/2012 at 02:00 PM in Courtroo m 5 (WBS) before Judge William B. Shubb. The parties shall submit a joint status report no later than 11/13/12, that proposes deadlines for the close of discovery and filing of dispositive motions and dates for the pretrial conference and trial.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo---11
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REVERGE ANSELMO and SEVEN
HILLS LAND AND CATTLE COMPANY,
LLC,

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Plaintiffs,

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NO. CIV. 2:12-1422 WBS EFB

ORDER RE: MOTION FOR
PRELIMINARY INJUNCTION

v.
RUSS MULL, LESLIE MORGAN, a
Shasta County AssessorRecorder, COUNTY OF SHASTA,
BOARD OF SUPERVISORS OF THE
COUNTY OF SHASTA, LES BAUGH
and GLEN HAWES,

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Defendants.
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COUNTY OF SHASTA, AND COUNTY
OF SHASTA, for the People of
the State of California,

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Cross-Complainant,

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v.
REVERGE ANSELMO; SEVEN HILLS
LAND AND CATTLE COMPANY LLC;
NANCY HALEY; MATTHEW RABE;
MATTHEW KELLEY; ANDREW JENSEN;
and ROES 1 THRU 50,

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Cross-Defendants.
/

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----oo0oo----

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Defendant and cross-plaintiff Shasta County seeks a

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preliminary injunction relating to its cross-claims for nuisance

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per se against plaintiffs and cross-defendants Reverge Anselmo

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and Seven Hills Land and Cattle Company based on plaintiffs’

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activities on their property located in Shasta County.

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I.

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Factual and Procedural Background
Plaintiffs initiated this action in state court against

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defendants Shasta County, the Board of Supervisors of the County

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of Shasta, and Shasta County officials Russ Mull, Leslie Morgan,

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Les Baugh, and Glen Hawes.

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plaintiffs allege claims against Shasta County and its employees

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under 42 U.S.C. § 1983.

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defendants’ alleged wrongful interference with plaintiffs’ use of

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two pieces of real property.

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property identified by assessor’s parcel numbers (“APN”)

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093-260-025, 093-260-024, and 093-260-023 (“ranch property”), and

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the second is a 1,500-acre property where plaintiffs operate

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Anselmo Vineyards, located at 28740 Inwood Road in Shingletown,

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APN 094-050-021 (“winery property”).

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In their Third Amended Complaint,

Plaintiffs’ claims arise from

The first is a 670-acre ranching

Plaintiffs’ winery property is located in a Shasta

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County land use zone designated “Exclusive Agricultural” and is

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also approved for an “Agricultural Preserve,” which allows the

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landowners to apply for a Williamson Act contract with the state.

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(Simon Decl. ¶ 5 (Docket No. 50-17).)

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cities and counties may enter into contracts with land owners of
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Under the Williamson Act,

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qualified property to retain the agricultural, recreational, or

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open-space use of the land in exchange for lower property tax

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assessments.

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received a Williamson Act contract for the winery property in

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2006, but filed a notice of Non-Renewal for a 7.5-acre portion of

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the winery property on April 24, 2008.

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Ex. 14; Mull Decl. Ex. 6 (Docket No. 50-13).)

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issued a use permit for plaintiffs to operate a “small winery” on

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the property and subsequently approved a conditional use permit

See Cal. Gov’t Code § 51200 et seq.

Plaintiffs

(Simon Decl. ¶¶ 5, 15, &
Shasta County also

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allowing plaintiffs to operate a “medium winery” on the property.

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(Simon Decl. ¶¶ 4, 6, 8.)

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In their Third Amended Complaint, plaintiffs allege

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that county officials engaged in a variety of wrongful conduct

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that interfered with plaintiffs’ use of their property, such as

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issuing wrongful notices of grading violations, filing false

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reports with various officials and agencies, requiring an

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unnecessary environmental impact study, and interfering with

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plaintiffs’ development of their winery.

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23, 27, 30, 40, 44-58) (Docket No. 1, Ex. B).)

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(Third Am. Compl. ¶¶

While the case was still pending in state court, Shasta

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County initiated cross-claims for nuisance per se against

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plaintiffs.

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plaintiffs’ grading on their ranch property and construction or

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conversion of structures on their winery property.

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specifically requests the court to enter injunctions against

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plaintiffs on the following six alleged nuisances per se:

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Shasta County’s nuisance per se claims are based on

Shasta County

(1) plaintiffs’ grading on the ranch property without a
grading permit and plaintiffs’ farming operations on the ranch
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property;

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(2) plaintiffs’ construction, use, and occupancy of an

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entertainment event tent on the winery property without a

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building permit or certificate of occupancy;

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(3) plaintiffs’ conversion, use, and occupancy of a horse

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barn for winery offices on the winery property without a building

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permit or certificate of occupancy;

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(4) plaintiffs’ construction, use, and occupancy of a part

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of their winery structure that was converted into a restaurant

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and dining room without a required building permit, use permit,

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zone amendment, or certificate of occupancy, and without required

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access and parking for disabled persons pursuant to the Americans

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with Disabilities Act, 42 U.S.C. §§ 12101-12183, (“ADA”);

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(5) plaintiffs’ construction, use, and occupancy of a wood

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structure on the winery property without a required building

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permit or certificate of occupancy; and

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(6) plaintiffs’ construction, use, and occupancy of a chapel

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on the winery property without a required building permit, use

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permit, zone amendment, or certificate of occupancy, and without

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required access for disabled persons pursuant to the ADA.

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In opposing Shasta County’s motion for a preliminary

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injunction, plaintiffs expend a great amount of time rehashing

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arguments the court rejected in its October 11, 2012 Order and

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thus the court will not address those arguments a second time.

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The court will also not address plaintiffs’ procedurally improper

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and unnecessary request for sanctions under Federal Rule of Civil

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Procedure 11 against Shasta County.

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///
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II.

Discussion

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To succeed on a motion for a preliminary injunction, a

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plaintiff must establish that (1) it is likely to succeed on the

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merits; (2) it is likely to suffer irreparable harm in the

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absence of preliminary relief; (3) the balance of equities tips

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in its favor; and (4) an injunction is in the public interest.

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);

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Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir.

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2011).

The Supreme Court has repeatedly emphasized that

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“injunctive relief [i]s an extraordinary remedy that may only be

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awarded upon a clear showing that the plaintiff is entitled to

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such relief.”

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Winter, 555 U.S. at 22.

“The concept of a nuisance per se arises when a

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legislative body with appropriate jurisdiction, in the exercise

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of the police power, expressly declares a particular object or

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substance, activity, or circumstance, to be a nuisance.”

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Dev. Co. v. S. Pac. Transp. Co., 44 Cal. App. 4th 1160, 1206 (3d

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Dist. 1996).

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substance, activity or circumstance at issue must be expressly

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declared to be a nuisance by its very existence by some

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applicable law.”

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“no proof is required, beyond the actual fact of their

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existence.”

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382 (4th Dist. 1992); accord City of Claremont v. Kruse, 177 Cal.

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App. 4th 1153, 1166 (2d Dist. 2009) (rejecting defendants’

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argument that the city needed to show that defendants’ conduct

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caused “actual harm” because such a showing is not required to

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prove a nuisance per se).

Beck

“[T]o be considered a nuisance per se the object,

Id. at 1207.

To establish nuisances per se,

City of Costa Mesa v. Soffer, 11 Cal. App. 4th 378,

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California Government Code section 38771 provides, “By

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ordinance the city legislative body may declare what constitutes

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a nuisance.”

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“Every violation of any regulatory or prohibitory provision

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contained in Division 4 or 18 of the Food and Agricultural Code

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of the State of California, or of this Code, is expressly

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declared to be a public nuisance.”

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enacted similar ordinances, California courts have found

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nuisances per se when defendants failed to comply with various

Here, Shasta County Code section 8.28.010 provides,

When municipalities have

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provisions of the municipal codes.

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App. 4th at 1165-66 (failure to obtain a business license and tax

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certificate); City of Corona v. Naulls, 166 Cal. App. 4th 418,

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427 (4th Dist. 2008) (failure to obtain Department of Planning

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approval and zoning variance).

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A.

See, e.g., Kruse, 177 Cal.

Grading on the Ranch Property
In relevant part, Shasta County Code section 12.12.020

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defines “grading” as “movement of any earth materials . . .

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[w]hich damages or has the potential to significantly damage

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directly, or indirectly through erosion, any natural or manmade

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watercourse.”

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permit,” unless the activity is exempt from the permit

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requirement.

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the exemptions to the grading permit requirement is

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“[c]ultivation and production of agricultural products, including

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but not limited to . . . the rearing and management of

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livestock.”

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requirement does not apply if the “grading will adversely affect

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any off-site drainage or aquatic habitat.”

The Code prohibits grading “without a grading

Shasta County Code §§ 12.12.040, 12.12.050.

Id. § 12.12.050(A)(1).

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One of

This exception to the permit

Id. § 12.12.050(B).

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In his October 15, 2007, Inspection Report, Andrew

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Jensen of the Central Valley Regional Water Quality Control Board

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concluded that “the majority of the site had been graded” and

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that “there was a small tributary of South Fork Bear Creek that

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had been completely graded with heavy equipment.”

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Ex. 35; see also Pisano Decl. Ex. 2 (Docket No. 50-1).)

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Westlake, a Senior Environmental Health Specialist for Shasta

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County also toured the ranch property on November 29, 2007, and

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“observed that there had been recent grading.”

(Jensen Dep.
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(Westlake Decl. ¶

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5 & Ex. 4 (Docket No. 50-11).)

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evidence making it likely that plaintiffs conducted grading near

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the South Fork Bear Creek on their ranch property and it is

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undisputed that plaintiffs did not obtain a grading permit.

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Shasta County has thus submitted

The parties appear to agree that plaintiffs’ grading

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would come within the permit exception for agricultural and

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raising livestock so long as the grading did not “adversely

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affect any off-site drainage or aquatic habitat.”

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Code § 12.12.050(B).

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“Notice of Grading Violation” to plaintiffs, which stated that

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the grading activities were “impacting areas of the South Fork of

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Bear Creek.”

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the Director of Shasta County Department of Resource Management,

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indicated that the County had determined that the agricultural

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exemption to the permit requirement did not apply.

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11.)

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amount of sediment [] had been discharged into the creek due to

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the grading,” (Jensen Dep. Ex. 35), and testified at his

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deposition that he believed South Fork Bear Creek flows into

Shasta County

On October 30, 2007, Shasta County issued a

(Mull Decl. Ex. 7.)

In his declaration, Russ Mull,

(Id. ¶¶ 10-

Jensen also concluded in his report that “a significant

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“Bear Creek proper and then ultimately into the Sacramento

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River,” thus plaintiffs’ grading activities “potentially could

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impact below because everything flows downstream.”

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68:1-23 (Pisano Decl. Ex. 1).)

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(Jensen Dep.

Plaintiffs, however, contend that the agricultural

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exemption applies because there is no evidence of any adverse

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effect from their conduct, which they describe as the removal of

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“berry vines and debris from a pasture.”

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Ex. A (Docket No. 85); see Minasian Decl. Ex. C (letter from

(Minasian Decl. ¶ 4 &

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plaintiffs’ counsel to Shasta County indicating that water

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samples taken by the Regional Water Quality Control Board and

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Department of Fish and Game “do not show any adverse impact”).)

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Even assuming Shasta County is likely to establish that

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plaintiffs were required to obtain a grading permit because their

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grading “adversely affect[ed] any off-site drainage or aquatic

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habitat,” granting the injunction Shasta County requests is not

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appropriate.

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resulting from plaintiffs’ grading without a permit, Shasta

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County requests the court to enjoin all “farming operations” on

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the ranch property.

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advance plaintiffs’ farming and ranching operations, Shasta

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County has not provided any authority that the nuisance per se

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resulting from the grading extends to all related activities on

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the property.

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the ranch property is simply too broad and falls short of the

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mandate in Federal Rule of Civil Procedure 65 that any injunction

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“state its terms specifically” and “describe in reasonable detail

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. . . the act or acts restrained.”

First, based solely on the nuisance per se

While the grading may have been performed to

The request to enjoin all “farming operations” on

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Fed. R. Civ. P. 65(d)(1)(B)-

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(C).

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There is also no evidence suggesting that a more narrow

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injunction prohibiting all grading operations is necessary.

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original grading at issue occurred in 2007 and Mull indicates

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that he observed evidence of grading when he toured the Ranch

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property on February 1, 2008.

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has suggested, however, that the grading is continuing today or

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will resume in the future and even Mull describes plaintiffs’

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need to obtain a permit in order to “cure the grading violation

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(Mull Decl. ¶ 14.)

for [plaintiffs] having graded.”

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The

Neither party

(Id. ¶ 21 (emphasis added).)

The Ninth Circuit has explained that, “[a]s a general

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rule, ‘[p]ast wrongs are not enough for the grant of an

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injunction’; an injunction will issue only if the wrongs are

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ongoing or likely to recur.”

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F.2d 1084, 1087 (9th Cir. 1985) (quoting Enrico’s, Inc. v. Rice,

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730 F.2d 1250, 1253 (9th Cir. 1984)) (second alteration in

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original); cf. Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc.,

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23 F.3d 1508, 1511 (9th Cir. 1994) (“Federal courts are not

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obligated to grant an injunction for every violation of the law.

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. . . The plaintiff must make a showing that a violation of the

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[Endangered Species Act] is at least likely in the future.”).

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Accordingly, because there is no evidence suggesting that

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plaintiffs are currently grading or intend to grade the ranch

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property in the future, the court will deny Shasta County’s

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motion for a preliminary injunction relating to plaintiffs’

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grading on their ranch property.

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B.

F.T.C. v. Evans Prods. Co., 775

Construction and Conversion of Structures on the Winery
Property
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Shasta County Code subsection 16.04.150(A) provides,

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“No person shall do, cause or permit to be done any work for

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which a permit is required by this chapter unless a permit for

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that work is first obtained.”

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states, “No person shall erect, construct, enlarge, alter,

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repair, move, install, improve or convert a structure or mobile

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home, or any portion thereof . . . without first obtaining a

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valid permit for such work when a permit is required by this

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chapter . . . .”

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Similarly, the following section

Shasta County Code § 16.04.160(A).1

Shasta County has submitted sufficient evidence to show

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it can likely prove that plaintiffs performed the following work

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on the winery property without obtaining a building permit: 1)

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construction of an event tent, (Simon Decl. ¶ 30; Bellinger Decl.

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¶¶ 4, 7 & Exs. 23 & 25 (Docket No. 50-22)); 2) conversion of a

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horse barn into offices for the winery, (Simon Decl. ¶¶ 20, 30;

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Bellinger Decl. ¶¶ 4, 7 & Exs. 23, 25); 3) conversion of part of

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the winery structure into a restaurant and dining room, (Simon

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Decl. ¶ 19; Bellinger Decl. ¶ 7 & Ex. 25); 4) construction of a

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wood structure next to the winery building, (Simon Decl. ¶ 30;

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Bellinger Decl. ¶¶ 4, 7, 9 & Exs. 23, 25);2 and 5) construction of

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Shasta County also cites to sections of the California
Building Code as giving rise to plaintiffs’ violations. However,
Shasta County Code section 8.28.010 declares a nuisance per se
for violations of “any regulatory or prohibitory provision
contained in Division 4 or 18 of the Food and Agricultural Code
of the State of California, or of this Code.” It does not appear
to extend to violations of the California Building Code.
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Shasta County indicates that the wood structure appears
to house recreational vehicles. At oral argument, plaintiffs’
counsel indicated that it houses portable restrooms.
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a chapel,3 (Simon Decl. ¶ 27; Bellinger Decl. ¶ 4 & Ex. 23).

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After determining that each structure was completed without a

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building permit, Shasta County Building Inspector/Code

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Enforcement Officer Jerry Bellinger posted “Red Tag” orders

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prohibiting entry into each structure and saw Anselmo remove all

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of the “Red Tag” orders.

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26.)4

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(Bellinger Decl. ¶¶ 5-6, 8 & Exs. 24,

Plaintiffs do not dispute that they completed the work
without obtaining building permits.5

Shasta County is thus likely

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There is an ongoing dispute between the parties about
whether the chapel is for only private use or is available for
public uses, such as weddings and communions. In his
declaration, Anselmo states that the chapel “is not utilized for
weddings or public use associated with the winery or restaurant”
and is only used by himself “and occasional guests and visiting
priests and nuns.” (Anselmo Decl. ¶ 8 (Docket No. 86).)
Plaintiffs also submitted a letter from the Catholic Bishop of
Sacramento indicating permission is not granted for mass on
Sundays or for “weddings, baptisms and other sacraments.” (Id.
Ex. G.)
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Shasta County also bases its nuisance per se claims on
plaintiffs’ failure to obtain certificates of occupancy for the
five structures. As authority for the requirement for a
certificate of occupancy, however, Shasta County cites only to
Shasta County Code subsections 16.04.150(B) and 16.04.160(A).
Subsection 16.04.150(B) addresses a change in occupancy after a
certificate of occupancy has already been issued and subsection
16.04.160(A) is limited to requiring building permits. See
Shasta County Code § 16.04.150(B) (“No person shall change or
permit or cause a change of the occupancy of any structure for
which a certificate of occupancy has been issued, unless a new
certificate of occupancy has first been secured from the building
official.”), § 16.04.160 (“No person shall erect, construct . . .
without first obtaining a valid permit for such work when a
permit is required by this chapter . . . .”).
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Plaintiffs applied for permits for the restaurant
conversion and chapel, but did not submit additionally requested
information and thus the permits were never issued. (See Simon
Decl. ¶¶ 16, 24-25, 27-28 & Exs. 15, 18, 20, 21.)
The court assumes that building permits were required
for each of the five structures for purposes of this motion.
Plaintiffs contend that building permits were not required for
the office or wooden structure that houses the portable
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to prevail on its nuisance per se claims based on plaintiffs’

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violations of Shasta County Code subsections 16.04.150(A) and

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16.04.150(A).6

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According to Shasta County, a finding that it is likely

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to prevail on its nuisance per se claims is sufficient, in

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itself, to grant its motion for a preliminary injunction.

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County relies on the California Supreme Court’s holding that,

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“[w]here a governmental entity seeking to enjoin the alleged

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violation of an ordinance which specifically provides for

Shasta

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injunctive relief establishes that it is reasonably probable it

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will prevail on the merits, a rebuttable presumption arises that

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the potential harm to the public outweighs the potential harm to

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the defendant.”

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(1983).

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grave or irreparable harm from the issuance of the preliminary

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injunction, the court must then examine the relative actual harms

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to the parties.”

IT Corp. v. Cnty. of Imperial, 35 Cal. 3d 63, 72

If, however, “the defendant shows that it would suffer

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Id.

Courts have held, however, that federal, not state,

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restrooms.
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Shasta County also contends that the operation of the
restaurant and chapel are not allowable uses under its zoning
laws, plaintiffs’ conditional use permit for a “medium winery,”
and plaintiffs’ Williamson Act contract. Because the court finds
that Shasta County is likely to prevail on its nuisance per se
claims based on plaintiffs’ failure to obtain building permits,
it need not address the other theories underlying its nuisance
per se claims. Likewise, the court need not address Shasta
County’s additional theories for its nuisance per se claims,
namely California’s Unfair Competition Law, Cal. Bus. & Prof.
Code §§ 17200-17210, and California’s general nuisance statute,
Cal. Civ. Code § 3479. Shasta County also argues that
plaintiffs’ failure to provide the required ADA access and
parking constitutes a nuisance per se, but did not allege claims
for or violations of the ADA in its First Amended CrossComplaint.
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standards govern issuance of a preliminary injunction when a

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federal court is sitting in diversity or exercising supplemental

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jurisdiction over state law claims.

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Associated Materials Inc., 923 F.2d 1441 (11th Cir. 1991), the

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Eleventh Circuit noted the conflict between state law, which

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presumed that an injunction was an appropriate remedy, and the

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federal preliminary injunction standard.

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Although the differences between state and federal law could have

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led to “an outcome determinative result,” the Eleventh Circuit

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concluded that the federal standard controlled because Federal

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Rule of Civil Procedure 65 is constitutional and within the

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rules’ enabling act.

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U.S. 460, 467-71 (1965)); see also Charles Alan Wright, Arthur R.

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Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice &

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Procedure § 2943 (Sept. 2012) (“Although the federal rule on

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injunctions does not expressly provide any standards of

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availability, it does purport to uphold the historic federal

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judicial discretion to preserve the situation pending the outcome

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of a case lodged in the court.

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codification of the traditional federal equity practice and

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although the standards are not articulated, there is enough

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detail in Rule 65 to make it clear that it embodies an important

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federal policy.”).

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For example, in Ferrero v.

Ferrero, 923 at 1448.

See id. (discussing Hanna v. Plumer, 380

Thus the rule may be read as a

In applying the federal injunction standard, courts

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recognize that state law would control on the issue of whether a

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plaintiff is entitled to seek injunctive relief on the claim.

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See Sims Snowboards, Inc. v. Kelly, 863 F.2d 643, 645-46 (9th

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Cir. 1988); Sullivan By & Through Sullivan v. Vallejo City
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Unified Sch. Dist., 731 F. Supp. 947, 956 (E.D. Cal. 1990).

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After concluding that a plaintiff is entitled to seek a

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preliminary injunction, however, courts often rely on the federal

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standard in exercising their discretion to determine whether to

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grant an injunction.

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Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007)

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(“[W]e apply our own procedural jurisprudence regarding the

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factors to consider in granting a preliminary injunction . . .

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.”); Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1361 (10th Cir.

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1990) (“[T]he doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64

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(1938), does not apply to preliminary injunction standards . . .

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.”); United Nat’l Maint., Inc. v. San Diego Convention Ctr.

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Corp., Civ. No. 07-2172 AJB, 2012 WL 3861946, at *4 (S.D. Cal.

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Sept. 5, 2012) (applying state law to determine whether an

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injunction is an available remedy on plaintiff’s claim, but then

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applying “federal law principles in determining whether to

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exercise discretion to grant or deny an injunction that is

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available under state law”); Travelers Cas. & Sur. Co. of Am. v.

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W.P. Rowland Constructors Corp., Civ. No. 12–00390 PHX FJM, 2012

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WL 1718630, at *2 (D. Ariz. May 15, 2012); Toschi v. Cnty. of San

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Mateo, Civ. No. 07-3625 MMC, 2009 WL 982136, at *12 n.13 (N.D.

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Cal. Apr. 13, 2009); Sullivan By & Through Sullivan, 731 F. Supp.

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at 956 (“[F]ederal law provides the standards governing

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plaintiff’s motion for preliminary injunctive relief with respect

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to both her federal and state law claims.”); Kaiser Trading Co.

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v. Associated Metals & Minerals Corp., 321 F. Supp. 923, 931 n.14

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(N.D. Cal. 1970) (“[T]he best approach would be to look to state

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law to determine if a preliminary injunction is permissible . . .

See Certified Restoration Dry Cleaning

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[and then] look to federal law to determine whether the court

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should exercise its discretion.”).

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Inc. v. Hennkens, 301 F.3d 931, 935 (8th Cir. 2002) (applying

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state law irreparable injury standard); Outsource Int’l, Inc. v.

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Barton, 192 F.3d 662, 673-74 (7th Cir. 1999) (noting that the

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majority incorrectly “assumes that state rather than federal law

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governs the standard for the grant or denial of a preliminary

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injunction”) (Posner, J., dissenting); E.I. DuPont de Nemours &

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Co. v. Kolon Indus., Inc., --- F. Supp. 2d ----, ----, 2012 WL

But see Safety-Kleen Sys.,

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4490547, at *10-12 (E.D. Va. 2012) (concluding that applying

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federal standards to determination of injunctive relief would

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“trench upon the rule of Erie”).

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Nonetheless, concluding that the federal preliminary

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injunction standard controls does not necessarily foreclose

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Shasta County’s reliance on a presumption of irreparable harm.

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line of Ninth Circuit cases has held that, “[i]n statutory

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enforcement cases where the government has met the ‘probability

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of success’ prong of the preliminary injunction test, we presume

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it has met the ‘possibility of irreparable injury’ prong because

20

the passage of the statute is itself an implied finding by

21

Congress that violations will harm the public.”

22

Nutri-cology, Inc., 982 F.2d 394, 398 (9th Cir. 1992).

23

A

United States v.

It is uncertain, however, whether this presumption is

24

still good law.

First, it is tied to the Ninth Circuit’s sliding

25

scale standard for preliminary injunctions that allowed a showing

26

of only the possibility of irreparable harm if the plaintiff made

27

a stronger showing of success on the merits.

28

Supreme Court rejected this standard:
15

In 2008, the

1
2
3
4
5

[T]he Ninth Circuit’s “possibility” standard is too
lenient.
Our frequently reiterated standard requires
plaintiffs seeking preliminary relief to demonstrate that
irreparable injury is likely in the absence of an
injunction. Issuing a preliminary injunction based only
on a possibility of irreparable harm is inconsistent with
our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such
relief.

6
7
8

Winter, 555 U.S. at 22.
Second, in the patent context, the Supreme Court

9

rejected Federal Circuit precedent providing for the issuance of

10

a permanent injunction after proof of a patent violation in all

11

but exceptional cases.

12

U.S. 388, 394 (2006).

13

“consistently rejected invitations to replace traditional

14

equitable considerations with a rule that an injunction

15

automatically follows a determination that a copyright has been

16

infringed” and held that “the decision whether to grant or deny

17

injunctive relief rests within the equitable discretion of the

18

district courts, and that such discretion must be exercised

19

consistent with traditional principles of equity, in patent

20

disputes no less than in other cases governed by such standards.”

21

Id. at 392-94.

22

eBay Inc. v. MercExchange, L.L.C., 547
The Court explained that it has

The Ninth Circuit extended the holding from eBay to

23

preliminary injunctions in patent cases.

In discussing eBay, the

24

Ninth Circuit explained that the Court “warned against reliance

25

on presumptions or categorical rules” and found that the Federal

26

Circuit “had erred in adopting a categorical rule instead of

27

making a fact-specific application of the traditional four-factor

28

test for injunctive relief.”

Perfect 10, Inc., 653 F.3d at 97916

1

80.

2

presumptions or categorical rules in issuing injunctive relief

3

would constitute ‘a major departure from the long tradition of

4

equity practice,’ and ‘should not be lightly implied.’”

5

979 (quoting eBay Inc., 547 U.S. at 391).

6

The Ninth Circuit further explained, “The use of

Id. at

Silver Sage Partners, Ltd. v. City of Desert Hot

7

Springs, 251 F.3d 814 (9th Cir. 2001), also does not entitle

8

Shasta County to a presumption of irreparable harm.

9

Sage, the Ninth Circuit recognized that it has “held that where a

In Silver

10

defendant has violated a civil rights statute, we will presume

11

that the plaintiff has suffered irreparable injury from the fact

12

of the defendant’s violation.”

13

F.3d at 827 (citing cases where this presumption has been applied

14

to claims under Title VII and the Fair Housing Act and for

15

discrimination) (emphasis added); see also Antoninetti v.

16

Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175-76 (9th Cir.

17

2010) (discussing Silver Sage in the context of an ADA case, but

18

declining to decide whether the ADA “authorizes a district court

19

to deny injunctive relief after finding a violation of the Act”).

20

Here, Shasta County’s nuisance per se claims are not based on

21

violations of civil rights and it would be misguided to transport

22

presumptions developed in civil rights cases to permitting and

23

zoning code violations.

24

Silver Sage Partners, Ltd. 251

Given the uncertainty of the presumption discussed in

25

Nutri-cology after Winter and the Supreme Court’s “warn[ing]

26

against reliance on presumptions or categorical rules” in eBay,

27

the court will not simply presume Shasta County is likely to

28

suffer irreparable harm.

Instead, the court will adhere to the
17

1

traditional preliminary injunction inquiry and evaluate whether

2

(2) Shasta County is likely to suffer irreparable harm in the

3

absence of preliminary relief; (3) the balance of equities tips

4

in its favor; and (4) an injunction is in the public interest.

5

Winter, 555 U.S. at 20.

6

the competing claims of injury and must consider the effect on

7

each party of the granting or withholding of the requested

8

relief.’”

9

U.S. 531, 544 (1987)).

10

In doing so, the court “‘must balance

Id. at 24 (quoting Amoco Prod. Co. v. Gambell, 480

Here, the greatest injury to Shasta County is that

11

plaintiffs appear to blatantly ignore the ordinances requiring

12

them to obtain building permits.

13

intentional refusal to apply for building permits not only

14

prevents Shasta County from fulfilling its duty to enforce its

15

codes, but also sends a disfavorable message to other citizens

16

about the importance of complying with the County’s permitting

17

requirements.

18

adequately remedied after a trial on the merits and do not rise

19

to the level of irreparable harm.

20

Plaintiffs’ seemingly

While these concerns are legitimate, they can be

Nonetheless, even if Shasta County is entitled to a

21

presumption of irreparable harm under IT Corp. or Nutri-cology,

22

the presumption is rebuttable.

23

(holding that the presumption is rebuttable); Nutri-cology, Inc.,

24

982 F.2d at 398 (discussing the district court’s application of a

25

rebuttable presumption).

26

are likely to suffer sufficient irreparable harm to rebut a

27

presumption of irreparable harm in favor of Shasta County.

28

Shasta County’s motion for a preliminary injunction is granted,

See IT Corp., 35 Cal. 3d at 72

Here, plaintiffs have shown that they

18

If

1

plaintiffs have represented that they will be forced to layoff

2

their thirty-eight employees.

3

of employment is not insignificant in the current economy and in

4

an area where “[j]obs are scarce.”

5

the restaurant would also deplete the good will and patronage

6

that plaintiffs have established over the last three-and-a-half

7

years.

8

approximately twenty-five miles from Redding in a rural area,

9

thus “it has taken a great deal of advertising and word-of-mouth

(Anselmo Decl. ¶ 10.)

(Id.)

This loss

The sudden closure of

Plaintiffs explain that the winery property is located

10

to develop the patronage since 2008.”

11

inability to practice his faith and worship in the chapel on his

12

property imposes a significant harm on Anselmo.

13

(Id. ¶ 9.)

Lastly, the

In balancing the harm to Shasta County against the

14

harms to plaintiffs in having to shut down their operations

15

before the entirety of this action is resolved on the merits

16

(Anselmo Decl. ¶ 10), the timing of Shasta County’s motion cannot

17

be ignored.

18

October 2, 2008.

19

pending in state court, Shasta County never sought a temporary

20

restraining order or preliminary injunction.

21

not identified any change in circumstances that renders its need

22

for a preliminary injunction today any different than it was

23

during the pendency of this action.

Plaintiffs initiated this action in state court on
During the three-and-a-half years this case was

Shasta County has

24

“The purpose of a preliminary injunction is merely to

25

preserve the relative positions of the parties until a trial on

26

the merits can be held.”

27

390, 395 (1981).

28

preliminary adjudication on the merits but rather a device for

Univ. of Tex. v. Camenisch, 451 U.S.

“‘A preliminary injunction

19

. . . is not a

1

preserving the status quo and preventing the irreparable loss of

2

rights before judgment.’”

3

590 F.3d 1091, 1094 (9th Cir. 2010) (quoting Sierra On–Line, Inc.

4

v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984))

5

(omission in original).

6

Shasta County is not attempting to preserve any property or

7

right, but is seeking the ultimate relief it will likely seek at

8

the close of trial.

9

over three-and-a-half years and trial was set to commence in

U.S. Philips Corp. v. KBC Bank N.V.,

In seeking a preliminary injunction,

Given that this case has been pending for

10

state court on January 6, 2013, there is no reason why a trial in

11

this court cannot commence forthwith.

12

Lastly, with respect to the public interest, the court

13

does not find that this factor weighs heavily for either side.

14

The public undoubtedly has an interest in having Shasta County’s

15

code equally enforced.

16

determination, however, does not appear to pose harm to the

17

public because, aside from alleged ADA violations that are not at

18

issue in this action, Shasta County has not suggested or

19

submitted any evidence demonstrating that any of the structures

20

on the winery property pose a risk to public health or safety.

21

Anselmo, on the other hand, has submitted a declaration

22

indicating that the winery, restaurant, and tasting room have met

23

all California Health Department “food and cleanliness inspection

24

conditions and have routinely been inspected for all purposes in

25

regard to food safety, water and sewage, and waste disposal” and

26

that there are no outstanding violations.

27

Plaintiffs also submitted a report from a retained architectural

28

and construction expert, which concludes that the chapel “has

Waiting until the trial to make this

20

(Anselmo Decl. ¶ 17.)

1

been constructed in substantial conformance with building codes

2

and conforms to or exceeds the standards of good building

3

practices in the state of California.”

4

(Docket No. 88).)

5

(Schraibman Decl. Ex. A

Accordingly, while Shasta County is likely to prevail

6

on its nuisance per se claims based on plaintiffs’ failure to

7

obtain building permits for the structures on the winery

8

property, it has failed to show that it is likely to suffer

9

irreparable harm, that the balance of equities tips in its favor,

10

or that an injunction is in the public interest.

11

therefore deny Shasta County’s motion for a preliminary

12

injunction.

13
14

The court must

IT IS THEREFORE ORDERED THAT Shasta County’s motion for
a preliminary injunction be, and the same hereby is, DENIED.

15

IT IS FURTHER ORDERED THAT a Status (Pretrial

16

Scheduling) Conference is set in this matter on November 26,

17

2012, at 2:00 p.m. in Courtroom No. 5.

18

a joint status report no later than November 13, 2012, that

19

proposes deadlines for the close of discovery and filing of

20

dispositive motions and dates for the pretrial conference and

21

trial.

22

DATED:

October 24, 2012

23
24
25
26
27
28
21

The parties shall submit