Sierra Screw Products v. Azusa Greens, Inc.

• Court: California Court of Appeals
• Writing for the Court: JEFFERSON; FILES, P. J., and KINGSLEY
• Citation: Sierra Screw Products v. Azusa Greens, Inc., 151 Cal.Rptr. 799, 88 Cal.App.3d 358 (Cal. App. 1979)
• Decision Date: 16 January 1979
• Parties: SIERRA SCREW PRODUCTS, a California Corporation, et al., Plaintiffs and Respondents, v. AZUSA GREENS, INC., a corporation, et al., Defendants and Appellants. Civ. 52450.

Page 799

151 Cal.Rptr. 799

88 Cal.App.3d 358

SIERRA SCREW PRODUCTS, a California Corporation, et al., Plaintiffs and Respondents, v. AZUSA GREENS, INC., a corporation, et al., Defendants and Appellants.

Civ. 52450.

Court of Appeal, Second District, Division 4, California.

Jan. 16, 1979.

Richards, Watson, Dreyfuss & Gershon, and Glenn R. Watson, Los Angeles, for defendants and appellants.

Monteleone & McCrory, and Patrick J. Duffy, III, and Michael F. Minchella, Los Angeles, for plaintiffs and respondents.

JEFFERSON, Associate Justice.

Defendants appeal from a mandatory injunction rendered against them following a court trial. In a first amended complaint plaintiffs set forth three causes of action. The first alleged a nuisance, the second a trespass and the third an action based upon negligence. Defendants are the owners and operators of a public golf course in the City of Azusa. In 1969, plaintiff Sierra Screw Products purchased from defendants a portion of undeveloped land adjoining the golf course and thereafter constructed thereon buildings for industrial use, including offices and parking facilities. Plaintiffs Anthony Manufacturing Corporation, Foothill Sales and Thermal Hydraulics Corporation became lessees of portions of the Sierra property.

Plaintiffs alleged that golf balls were hit from defendants' golf course onto plaintiffs' property, striking several of plaintiffs' employees, damaging their parked automobiles and breaking windows. This use of defendants' property was alleged to constitute a nuisance within the meaning of Civil Code section 3479. Plaintiffs sought damages and injunctive relief. Defendants' answer denied the allegations of the complaint and set forth affirmative defenses of an accord and satisfaction by reason of the written contract of purchase, and assumption of risk. The trial court found in favor of plaintiffs on the nuisance cause of action only, denied damages but ordered defendants to redesign and reconstruct the golf course holes adjacent to plaintiffs' property to the extent necessary to abate the private nuisance.

I The Factual Background and the Trial Court's Conclusions

In 1969, Sierra purchased from defendants approximately 23 acres of undeveloped land adjacent to the fairways of the third and fourth holes of the golf course which had been operating for about five years. At the time of purchase there was no fencing or other obstruction between these two fairways and the purchased property.

One term of the contract of sale provided: "Upon written request of Buyer within fifty (50) months after close of escrow, Sellers, without cost to Buyer, (1) will plant 15 gallon size Canary Island pines at 20 feet intervals in the golf course along the southerly line of said land, and (2) will provide up to 200 lineal feet of 30 foot high chain link type screening on the golf course line at points designated by Buyer on the southerly or westerly sides of said land."

By 1971, plaintiff Sierra's building was completed and occupied by employees. Shortly thereafter, Sierra received reports of golf balls striking automobiles of employees parked on the premises. At Sierra's request, defendants planted the pine trees. Sierra constructed approximately 880 feet of fencing bordering on the fairways of the third and fourth golf course holes. This fencing included 250 lineal feet of 30-foot high fence, 200 lineal feet of 20-foot high fence and 430 feet of 6-foot high fence. At Sierra's request, defendants paid to Sierra the proportionate cost of 200 feet of the 30-foot fence. The court found that Sierra "made all determinations as to the location, length, height and design of all the chain link fence so constructed, including the 200 lineal feet of 30 foot high fence paid for by defendant."

One of the trial court's findings was finding IX as follows: "Between August 1971, and the date of trial, innumerable golf balls have entered plaintiffs' property from the adjacent third and fourth fairways causing damage to the automobiles of plaintiffs' employees, and on occasion personal injuries to plaintiffs' employees struck by golf balls. As a result of such golf ball intrusions plaintiffs instructed their employees to wear hard hats when working outdoors in the area and moved a designated lunch or refreshment place from the west to the east side of the building."

In finding X the trial court stated: "Intrusion of golf balls onto plaintiffs' property from the third and fourth fairways is permitted by the inadequency (sic) of the fencing along the third and fourth fairways. The present design of the third and fourth fairways tends to create a danger of personal injury and property damage to the users of plaintiffs' property including employees, visitors, and business invitees by reason of their relatively narrow widths and the established target angles between the existing tees and greens."

As a conclusion of law, the court stated: "The present operation of the third and fourth fairways of defendants' golf course constitutes the commission of a private nuisance against plaintiffs and their property interests in their property. The present operation of the sixth fairway does not constitute a private nuisance against plaintiffs."

Another key conclusion of law was the following: "Plaintiffs are entitled to the issuance of a mandatory injunction on the first cause of action in plaintiffs' amended complaint, directing the defendants on or before November 1, 1976 to redesign and reconstruct the third and fourth holes of the existing golf course in such a manner as to minimize the intrusion of golf balls onto the plaintiffs' adjoining property and upon completion thereof to file with the Court a copy of the revised design together with evidence of completion thereof."

The trial court's judgment followed the terms of paragraph V of the conclusions of law. In the judgment the trial court reserved jurisdiction to review the effectiveness of the revised design and construction in eliminating the nuisance of the golf-ball invasion onto plaintiffs' property.

II Contentions on Appeal

Defendants make the following contentions in seeking a reversal of the judgment: (1) In view of the zoning of the golf course property, the golf course may not be considered a private nuisance as a matter of law. (2) The rights and obligations of the parties with respect to screening to protect against intrusion by golf balls were determined by the written contract of the parties. (3) Defendants possess an implied easement to operate the golf course and cause golf balls to land on plaintiffs' property. (4) The findings are inadequate to support the judgment.

III The Effect of Zoning on the Question of Whether Defendants' Golf Course May Be Held To Be a Private Nuisance

Defendants assert that, since their property on which the golf course was located was zoned for the operation of a golf course, it cannot be held to constitute a private nuisance. Defendants claim, as a matter of law, that Code of Civil Procedure section 731a precludes plaintiffs from obtaining injunctive relief against a commercial enterprise operating in an area zoned for that particular activity. Section 731a provides in pertinent part: "Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial or airport uses are expressly permitted, . . . no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone or airport of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation."

There is no dispute about defendants' property being zoned for the operation of a golf course. The trial court found that a conditional use permit was issued in 1963 expressly permitting the operation of defendants' golf course and that such permit remained in full force and effect.

The general rule relating to the effect of Code of Civil Procedure section 731a is stated in Christopher v. Jones (1964) 231 Cal.App.2d 408, 411, 41 Cal.Rptr. 828, 830, as follows: "Section 731a denies injunctive relief to private persons whenever a commercial enterprise operates within a legally defined area under an express permit As long as the enterprise does not employ unnecessary and injurious methods of operation." (Emphasis added.)

Defendants rely upon North Side, etc., Assn. v. Hillside, etc., Park (1945) 70 Cal.App.2d 609, 161 P.2d 618, for their assertion that Code of Civil Procedure section 731a constitutes an automatic bar to plaintiffs' obtaining any relief against defendants' operation of the golf course. In North Side, the court held that plaintiff made no showing of being entitled to relief under section 731a because the plaintiff simply alleged that the defendants had been illegally granted a permit to operate a cemetery. A judgment on the pleadings against the plaintiff was upheld because plaintiff's complaint contained "no allegation that respondents threaten to or will use the property in any but a 'reasonable and necessary' manner, as cemeteries are ordinarily conducted, . . ." (North Side, supra, 70 Cal.App.2d 609, 619, 161 P.2d 618, 623.)

Because of the nature of the plaintiff's pleading in North Side, it provides no assistance to the view of defendants before us that, by invoking Code of Civil Procedure section 731a, they can "avoid the application of the general rule that the mere fact that a commercial enterprise is conducting its business in a district zoned for its type of activity does Not justify the maintenance by it of a nuisance." (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 130, 99 Cal.Rptr. 350, 359.) (Emphasis added.)

In the case at bench, it is clear that plaintiffs would not be entitled to injunctive relief...