Rynsburger v. Dairymen's Fertilizer Co-op., Inc.

• Decision Date: 30 September 1968
• Citation: 266 Cal.App.2d 269,72 Cal.Rptr. 102
• Court: California Court of Appeals
• Parties: Joan Adele RYNSBURGER, Thomas P. Rynsburger, et al., Plaintiffs, Respondents and Appellants, v. DAIRYMEN'S FERTILIZER COOPERATIVE, INC., a corporation, Defendant, Petitioner and Respondent. Civ. 9084.

Page 102

72 Cal.Rptr. 102

266 Cal.App.2d 269

Joan Adele RYNSBURGER, Thomas P. Rynsburger, et al., Plaintiffs, Respondents and Appellants, v.DAIRYMEN'S FERTILIZER COOPERATIVE, INC., a corporation, Defendant, Petitioner and Respondent.

Civ. 9084.

Court of Appeal, Fourth District, Division 2, California.

Sept. 30, 1968.

Hearing Denied Nov. 27, 1968.

[266 Cal.App.2d 271] Dannemeyer & Tuohey and Conrad G. Tuohey, Fullerton, for plaintiffs, respondents and appellants.

Richards, Watson & Hemmerling and Glenn R. Watson, Los Angeles, for defendant, petitioner and respondent.

OPINION

KERRIGAN, Associate Justice.

In July 1965appellants filed suit in the Orange County Superior Court for the purpose of obtaining an injunction to abate a nuisance against the Dairymen's Fertilizer Cooperative, Inc., and three officials thereof.Inasmuch as the officers and directors are only nominal parties, the corporate entity will be regarded herein as the sole adverse party and will be referred to as 'Dairymen's' or 'Respondent.'

Respondent is a nonprofit cooperative corporation formed by a combination of dairymen for the purpose of removing manure from the numerous dairies in the area in and around the city of Dairy Valley¹ to the respondent's plant where it is stockpiled, composted, packaged and sold as commercial fertilizer.Appellants are eleven homeowners who reside in close proximity to the fertilizer plant.Their residences are situated in different geographical areas: three live in the city of La Palma, in the county of Orange; two in the city of Lakewood, Los Angeles County; two in the city of Dairy Valley(Cerritos), in Los Angeles County; two in the city of Cypress in Orange County; and finally, two reside in an unincorporated area of Orange County.

Dairymen's had maintained a manure stockpile and fertilizer facility at 13155 183rd Street in the city of Dairy Valley for approximately eight years.In 1964 the State Division of Highways acquired the site for the development of the Artesia Freeway.It therefore became necessary for the respondent to acquire another location for the conduct of its business.Consequently, it purchased a 12-acre parcel of property located at 12801 Del Amo Boulevard in Dairy Valley for $360,000.Respondent was granted a 'zone special use permit' in May 1965 for the construction of a fertilizer plant, subject to compliance with certain operating conditions imposed by the Dairy Valley City Council.

Dairymen's parcel is situated approximately 600 feet from the nearest residential property in La Palma, 500 feet from the nearest residential property in Cypress, and approximately 200 feet from the nearest residential property in Lakewood.

In July 1965appellants filed the Orange County Superior Court action for an injunction to abate a nuisance, and secured an ex parte temporary restraining order prohibiting respondent from conducting fertilizer operations on the new site.However, the temporary restraining order was dissolved in October 1965, and Dairymen's was permitted to undertake operations on the subject property.In dissolving the temporary restraining order and denying a preliminary injunction, the court found that Dairymen's operations were necessary for health purposes, and that any harm to appellants was outweighed by the sanitary utility of Dairymen's function in removing the daily manure deposits of the thousands of cows maintained in the numerous dairies located in the city of Dairy Valley and the surrounding communities.

In February 1966appellants' counsel appeared before the city councils of La Palma, Cypress and Lakewood and requested that an action be initiated by the municipalities to abate respondent's operations.In March 1966 the cities of La Palma and Cypress jointly filed a nuisance action in the Orange County Superior Court.The city of Lakewood filed a similar suit the following month in the Los Angeles Superior Court.After the issues were joined, it was stipulated that the municipalities' actions against Dairymen's be consolidated and that the venue be changed to the San Bernardino County Superior Court.

Trial of the consolidated suits commenced in the San Bernardino forum in May 1966 and ended a month later.Over sixty witnesses were called.Several of the appellants from the cities of La Palma, Cypress and Lakewood testified, but the court refused testimony of those appellants residing in Dairy Valley and those living in the unincorporated area of Orange County.

The San Bernardino County trial court found, Inter alia, that: the respondent's operations had Not created and did Not constitute a public nuisance; a stockpiling and fertilizing operation on the Del Amo property would not create or constitute a public nuisance if the operations were conducted in conformity with the requirements imposed by the Dairy Valley City Council and the restrictions imposed by the court.

In granting the special use permit, the city had ordered Dairymen's: to develop the property in accordance with the plot plan approved by the council; to provide off-street parking for motor vehicles; to pave all parking areas; to construct roadway access to Del Amo Boulevard; to pave all driveways; to provide landscaping, including quick-growing trees placed closely together to form a fixed and visible buffer around the perimeter of the property; to fence the entire property; to develop adequate water service for immediate use; to close down loading and unloading operations during periods of excessive wind; to restrict its operations to daylight hours; to limit the maximum height of the stockpile to 25 feet; and to furnish a bond to the city guaranteeing compliance with the conditions of the special use permit.

The court decreed that Dairymen's comply with the aforesaid conditions imposed by the Dairy Valley City Council, except that the maximum height of the stockpile was ordered not to exceed 20 feet.The court further ordered Dairymen's to comply with the following supplemental conditions: (1) Truck loading and packaging operations be conducted in a newly-constructed building equipped with dust control equipment sufficient to meet Air Pollution Control District standards; (2) the paved roads, pavement and parking areas on the property be kept free of dust-producing material, and any unpaved haul roads be treated with oil; (3) machinery utilized in loading and packing fertilizer be electrically driven; (4) tractors used in stockpiling of fertilizer be equipped with deflectors; (5) fertilizer hauled in and out of the plant be fully covered with a tarpaulin or canvas; and (6) obtain Air Pollution Control District permits and clearances.

The judgment establishing the foregoing conditions governing Dairymen's operation became final in November 1966, and in the judgment, the court reversed continuing jurisdiction over Dairymen's future operations.

Thereafter, in January 1967, appellants took steps in the Orange County Superior Court to reactivate their original suit.Manifestly, appellants were disappointed with the result of the cities' actions against Dairymen's.When the Orange County Superior Court set the matter for trial for September 5, 1967, Dairymen's counsel countered by filing an order to show cause proceeding in the San Bernardino Superior Court to restrain appellants from taking any further proceedings in the Orange County Superior Court action.Initially, only 9 of the 11 appellants were served with the order, which explains why two post-judgment injunctions are involved in this appeal.The San Bernardino Superior Court restrained the nine appellants from taking any further steps or proceedings in their Orange County action in September 1967.The following month, after service was effected on the two remaining appellants, an identical injunction was issued.

Appellants then sought a writ of mandate or prohibition in this tribunal to annul the injunction proceedings.Their petition was denied in November 1967.

This appeal is taken from the two injunctions restraining the appellants from proceeding with the prosecution of the Orange County Superior Court nuisance action.

Appellants' attack on the injunctions is based on the premise that the judgment of the San Bernardino Superior Court determining that the respondent's operations did not constitute a Public nuisance is not Res judicata in a suit by private property owners for abatement of a Private nuisance.In urging that the San Bernardino judgment is not a bar to the trial of the Orange County action, appellants present the following arguments: (1) The suits of the three municipalities initiated in the name of the People of the State of California were filed on the theory that Dairymen's maintenance and operation of a fertilizer plant constituted a Public nuisance, whereas the existing Orange County suit filed by appellants was predicated on the concept that the defendant's activities constituted a Private nuisance; (2) the San Bernardino Superior Court refused to permit certain appellants, who were not residents of the three cities, to testify at the trial and, therefore, the San Bernardino judgment may not be raised as a bar to the Orange County action charging a private nuisance.Miscellaneous issues are also raised relating to the affirmative defense of laches, and appellants' obligations under the surety bond which they posted when the Orange County Superior Court issued the temporary restraining order against Dairymen's operations.

While statutory and case authority exist reflecting that there is a clear distinction between private nuisances on the one hand and public nuisances on the other (Civ.Code, §§ 3479,3480,3481;Johnson v. V. D. Reduction Co., 175 Cal. 63, 65--67, 164 P. 1119, L.R.A.1917E 1007;County of Yuba v. Kate Haynes Min. Co., 141 Cal. 360, 74 P. 1049;Fisher v. Zumwalt, 128 Cal. 493, 494--497, 61 P. 82;Meek v. DeLatour, 2 Cal.App. 261, 83 P. 300), the critical issue is whether the San...