Tri-Dam v. Yick

          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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