United States District Court, E.D. California
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGEMENT
I.
Introduction
Plaintiff
Tri-Dam (“Tri-Dam”) brought suit against
Defendant Randal Yick (“Yick”) seeking a
permanent injunction requiring Yick to remove his
unauthorized dock on Tulloch Reservoir and prohibiting him
from maintaining any development on the reservoir without a
permit from Tri-Dam. Tri-Dam’s Second Amended
Complaint, Doc. 80 (“SAC”), contains five causes
of action: (1) a stand-alone claim for Violation of the
Federal Powers Act (“FPA”), Federal Energy
Commission (“FERC”) Regulations, and the Tri-Dam
Shoreline Management Plan (“SMP”), (2) Private
Nuisance, (3) Public Nuisance, (4) Trespass, and (5)
Interference with Express Easement. SAC at 8-11. Plaintiff
moved for partial summary judgment on claims two and three,
specifically seeking that the Court determine that
Defendant’s dock constitutes nuisance per se, as well
as common law public and private nuisance. For the following
reasons the Court will grant Plaintiff’s motion for
partial summary judgment. ///
II.
Background
The
facts in this matter are largely undisputed. Tri-Dam is, and
at all times material to this action was, a joint venture
between the South San Joaquin Irrigation District and the
Oakdale Irrigation District, which owns and operates the
Tulloch Hydroelectric Project No. 2067 (the “Tri-Dam
Project”), on the Tulloch Reservoir. See
Declaration of Ron Berry, Doc. 100-3 (“Berry
Decl.”) at ¶ 3-4. The Tulloch Reservoir is
man-made reservoir with multiple hydroelectric power general
units adjacent to the dam located on the Stanislaus River, in
Tuolumne and Calaveras Counties. Berry Decl. at ¶ 2. The
Tri-Dam Project boundary (the “Project
Boundary”), as defined by FERC, includes an area of
about 1, 638 acres, and generally includes all the land
within the 515-foot elevation contour surrounding the Tulloch
Reservoir. 2006 FERC License, Berry Decl. Exh C. at
38;[1]
See Berry Decl. at ¶ 5. The majority
of the land within the Project Boundary-about sixty-three
percent-is privately owned. Id. Tri-Dam owns
approximately twenty-five percent of the land and the state
and federal governments own the remaining approximately
twelve percent of the land. Id.
In 1956
and 1957, Tri-Dam obtained easements over the properties
owned by the Mitchell and Sanguinetti families within the
Project Boundary. Request for Judicial Notice
(“RJN”) at ¶¶ 1-2, Exs. A & B. In
relevant part, those easements granted to Tri-Dam the
““right to enter upon said land from time to time
and clear, destroy, or dispose of any timber or other natural
growth, and any obstructions, accumulations, trash, filth and
any other thing which would in any way interfere with the use
of said reservoir, or the waters therein, or tend to render
unsafe or unsanitary either the reservoir created by said Dam
or the margin thereof.” Id.
In
1991, Connor Estates Investors I, a development company,
developed property abutting the Tulloch Reservoir.
Declaration of Matthew Weber (“Weber Decl.”) at
¶ 2, Ex. C. A Covenants, Conditions and Restrictions
document (“CC&Rs”) was recorded on May 8,
1992, providing notice to homeowners in the development that
they could not install or maintain docks without Tri-Dam
approval. RJN at ¶ 3, Ex. C at 46. In 1993, Yick
purchased the property located within Calaveras County, Lot
49 of the Connor Estates subdivision, known as 6204 Bluff
View Road, Copperopolis, California 95228 (“Subject
Property”). See Declaration of Randal Yick
(“Yick Decl.”) at ¶ 4.
On
September 16, 2008, the Calaveras County Board of Supervisors
passed Ordinance Number 2957, adding Sections 20.10.100 to
20.10.200 to the Calaveras County Municipal Code
(“Calaveras Code”). RJN at ¶ 5, Ex. E, Doc.
100-7 at 99-103. Section 20.10.120 provides that “[a]ll
facilities installed, constructed or maintained within the
reservoir and FERC project boundary shall be in full
compliance with appropriate permitting regulations of the
county and Tri-Dam…. Any dock, building or structure
set up, erected, built, moved or maintained or any use of
property contrary to the provisions of this chapter is
unlawful and constitutes a public nuisance.” RJN, Ex. E
at 101. That section made clear that any “dock or other
facility installed prior to 1979” would be
“considered ‘grandfathered’ into legal
existence.” Id.
III.
Legal Standard
“A
party may move for summary judgment, identifying each claim
or defense - or the part of each claim or defense - on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party bears the initial burden of “informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, ’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see Fed. R. Civ. P. 56(c)(1)(A).
“Where
the non-moving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party’s case.”
In re Oracle Corp. Securities Litigation, 627 F.3d
376, 387 (9th Cir. 2010) (citing Celotex, 477 U.S.
at p. 325). If the moving party meets its initial burden, the
burden shifts to the non-moving party to present evidence
establishing the existence of a genuine dispute as to any
material fact. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To
overcome summary judgment, the opposing party must
demonstrate a factual dispute that is both material, i.e., it
affects the outcome of the claim under the governing law,
see Anderson, 477 U.S. at 248; T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626,
630 (9th Cir.1987), and genuine, i.e., the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party. See Wool v. Tandem Computers, Inc.,
818 F.2d 1433, 1436 (9th Cir.1987). In order to demonstrate a
genuine issue, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.... Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for
trial.’” Matsushita, 475 U.S. at p. 587
(citation omitted).
A court
ruling on a motion for summary judgment must construe all
facts and inferences in the light most favorable to the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Nevertheless, inferences
are not drawn out of the air, and it is the opposing
party's obligation to produce a factual predicate from
which the inference may be drawn. See Richards v. Nielsen
Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985),
aff'd, 810 F.2d 898, 902 (9th Cir.1987).
IV.
Discussion
Plaintiff
presents three arguments that it asserts entitle it to the
requested injunctive relief: (1) Defendant’s dock is a
nuisance per se because it violates the Calaveras Code, and
even if it were not a nuisance per se, Defendant’s dock
is a common law (2) public nuisance and (3) private nuisance.
Plaintiff seeks the same relief in each claim-abatement of
the nuisance. Because the Court agrees that Defendant’s
dock is a nuisance per se based upon the Calaveras Code, the
Court addresses only that issue.
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