City of Santa Barbara vs Maria Pia Giordani

Case Number

23CV01937

Case Type

Hearing Date / Time

Fri, 11/22/2024 - 10:00

Nature of Proceedings

Motion: Preliminary Injunction

Tentative Ruling

For all reasons discussed herein, the motion of plaintiff the City of Santa Barbara for a preliminary injunction is denied, without prejudice.

Background:

This action is related to Santa Barbara County Superior Court case no. 24CV01663 entitled Maria Pia Giordani v. City of Santa Barbara. (See May 24, 2024, Order on Related Cases.)

On May 2, 2023, plaintiff the City of Santa Barbara (the City) filed in this action an unverified complaint against Maria Pia Giordani (Maria), alleging four causes of action: (1) nuisance; (2) breach of the implied covenant of good faith and fair dealing; (3) interference with secondary easement; and (4) declaratory relief. (Note: Due to common familial surnames and to avoid confusion, the Court will refer to plaintiff by her first name. No disrespect is intended.) As alleged in the complaint of the City:

Maria owns real property identified as Santa Barbara County Tax Assessor’s Parcel Number 153-260-051 (the property). (Compl., ¶ 2.) On June 2, 1983, Maria and her late husband Ettore (collectively, the Giordanis) co-signed a Waterline Easement Deed and Agreement relating to a strip of land on the property which is located within the City (the City Easement). (Id. at 9 & Exh. 1.) On the same date, Ettore signed a Waterline Easement Deed and Agreement relating to a strip of land on the property which is located within the County of Santa Barbara (the County Easement). (Id. at ¶ 8 & Exh. 1.)

The City Easement and the County Easement (collectively, the Easements) were granted to the City as part of the Gibraltar Penstock Pipeline Realignment, and provide to the City non-exclusive easements for the “ ‘installation, use, maintenance, repair, and replacement of underground waterlines and appurtenances together with the right of ingress and egress to and from same for such purposes in, on, over, under, along, through and across’ ” the Easements, and “ ‘full access to said waterlines and appurtenances and every part thereof, at all times ….’ ” (Compl., ¶¶ 7 & 10; Exhs. 1 & 2.)

The Easements were recorded in the Official Records of the County of Santa Barbara on June 24, 2023. (Compl., ¶ 11 & Exhs. 1-2.) The amount of compensation for the Easements was determined at a trial, and the City fully satisfied the judgment entered by the court. (Id. at ¶ 12.) Maria inherited an ownership interest in the County Easement after the death of Ettore. (Id. at ¶ 13.)

The City seeks to perform maintenance on the water pipeline located within the County Easement which includes the installation of an air relief/vacuum valve (the valve), which is an appurtenance designed to allow air to be exhausted from or admitted to a water pipeline as it is being filled or drained to prevent harmful vacuum conditions which can materialize within the pipeline and cause the pipe to fail or be damaged. (Compl., ¶ 14.) The installation of the valve is necessary for the protection of the pipeline, which is an integral part of the City’s water system and necessary for the provision of essential services to residents and businesses within the City. (Id. at ¶ 15.) At least one above-ground appurtenance in the form of a shut-off valve already exists within the County Easement. (Id. at ¶ 19.)

The only means of access to the County Easement is through a locked gate spanning a driveway which is exclusively controlled by Maria. (Compl., ¶ 16.) On August 12, 2020, members of the City’s Public Works Department conducted a site visit with Maria’s son, Giovanni Giordani (Giovanni), to discuss the placement of the valve. (Id. at ¶ 17.) The City proposed two potential locations for installation of the valve, both of which were rejected by Giovanni who expressed concerns that the location of the valve could affect ocean views from an undeveloped section of the property. (Ibid.) To accommodate Giovanni’s concerns, the City proposed to install the valve at the location of a fire hydrant that was installed in 1983, but Maria and Giovanni also rejected this option. (Ibid.)

The City has engaged in negotiations with Maria since August 12, 2020, to select a viable location for the valve but Maria has not been amenable to any of the locations proposed by the City, and contends that the terms of the County Easement do not permit the City to install an above-ground appurtenance. (Compl., ¶¶ 18-21.)

The relief prayed for by the City in its complaint includes preliminary and permanent injunctions “enjoining, mandating and compelling” Maria to comply with the previsions of the Easements, specifically to allow the City access to install the valve within the Easements. (Compl. at p. 9, ll. 13-17.)

On July 25, 2023, Maria filed an answer to the complaint generally denying or otherwise responding to its allegations and asserting twenty-eight affirmative defenses.

On August 30, 2023, the City filed an amendment to the complaint substituting Maria as the Trustee of the Giordani Family Trust of July 2, 1991, the community property share of Ettore Giordani (the Trust), as fictitiously named defendant Doe 1. On November 7, 2023, Maria, in her capacity as the Trustee of the Trust, filed an answer to the complaint generally denying its allegations and asserting affirmative defenses.

On May 14, 2024, the City filed a request for dismissal of the complaint, with prejudice, as to Maria in her individual capacity.

On August 22, 2024, the City filed a motion for a preliminary injunction mandating that Maria allow the City to access the County Easement to install the valve on a water pipeline which is located within the County Easement. The City contends that it has repeatedly requested that Maria allow the City to access the County Easement to install the valve, and that the City cannot access the area of the easement without Maria’s help because it is located behind a locked gate maintained by Maria. The City further contends that the valve is necessary to protect the pipeline from collapse due to negative pressure in the event of rapid dewatering, which would cause irreparable harm to the City’s water supply as well as the public’s access to drinking water.

In support of the motion, the City submits a request for judicial notice of the County Easement, which is attached as exhibit A to the declaration of its counsel, Daniel S. Hentschke (Hentschke).

In his declaration submitted in support of the motion, Hentschke declares that the County Easement was sought by the City as part of its Gibraltar Penstock Pipeline Realignment project. (Hentschke Decl., ¶ 6.) The City’s Penstock Pipeline (the Pipeline) runs across the area of the County Easement and carries water from the Gibraltar Reservoir to the Lauro Reservoir. (Ibid.) The Lauro Reservoir provides the main supply of water to the City’s William B. Cater Water Treatment Plant (the Treatment Plant), which has the ability to filter 37 million gallons of water per day for the residents of the City and surrounding communities. (Ibid.)

Hentschke further declares that the City has, since 2020, reached out to Maria in the hope of obtaining access to the area of the County Easement to install the valve. (Hentschke Decl., ¶ 7.) The efforts undertaken by the City include explaining the terms of the County Easement to Maria and the necessity of installing the valve, answering Maria’s questions and providing to Maria information about the valve, offering to meet with Maria to discuss and explain the terms of the County Easement and the installation of the valve, and informing Maria that the City believes it the right to work in the area of the County Easement. (Id. at ¶¶ 8-16.)

Hentschke states that for the past four years, Maria has denied the City access to the property to install the valve or to dig, build, or construct anything on the property without Maria’s permission. (Hentschke Decl., ¶¶ 7, 9, 12 & 14.) Maria has also refused site meetings with the City because she needed more information and due to the number of people who would be present at these meetings. (Id. at ¶¶ 15 & 16.)

The City also submits a declaration of its supervising engineer, Carson Wollert (Wollert), who repeats information offered in the Hentschke declaration and further described above regarding the Pipeline and the manner in which it carries water to the Lauro Reservoir for the purpose of providing residents of the City with water. (Wollert Decl., ¶¶ 3-4.) Wollert further declares that the Treatment Plant was renovated by the City between 2014 and 2015, at a time when the City was in the early stages of a significant drought such that water diversions from the Gibraltar Reservoir were limited and at very low rates due to low reservoir levels. (Id. at ¶ 5.)

Wollert states that the Gibraltar Reservoir filled during the Winter of 2017, resulting in more significant diversions being made through the Pipeline. (Wollert Decl., ¶ 6.) It was during this time that the City discovered issues impacting its operations which included the formation of pockets or “air binding” at or near the top of the Pipeline either while the Pipeline was filling or when increases in diversions were made. (Id. at ¶ 7.) The formation of these pockets restrict the capacity of the Pipeline to carry water. (Ibid.) The City used the services of an engineering firm specializing in pipeline and hydroelectric plant operations to evaluate the air binding problem and outline recommendations to resolve the problem. (Id. at ¶ 8.)

The evaluation of the Pipeline resulted in recommendations to mitigate the air binding issue and to protect the Pipeline from potential failure due to operationally possible vacuum conditions. (Wollert Decl., ¶ 8.) The results of this evaluation were provided to Maria. (Ibid.) In addition, the City reviewed these recommendations, and its engineers determined that the recommended modifications at the top of the Pipeline and installation of multiple air relief/vacuum valves was necessary to remedy the air binding problems and to properly protect the Pipeline. (Id. at ¶ 9.)

Wollert explains that air relief/vacuum valves allow large volumes of air to be exhausted from or admitted into a pipeline as it is being filled or drained, preventing the loss of pressure, possible pipeline collapse, and damaging water column separation. (Wollert Decl., ¶ 10.) The valve which the City proposes to install within the area of the County Easement is six inches, will sit on a 48 square inch concrete foundation or pad, and will have a 36 inch by 24 inch diameter valve cover. (Id. at ¶ 16 & Exh. B.)

Wollert further states that air relief/vacuum valves have already been installed at different points throughout the Pipeline. (Wollert Decl., ¶ 9.) The air binding problem persists on the Pipeline necessitating the installation of a valve on the property, without which the Pipeline risks collapse and damage to water operation resulting in loss and compromise of water to the City. (Id. at ¶ 11.) Should the Pipeline fail, the City will lose access to about 50 percent of its annual water supply and will have to spill about 700 gallons per minute of infiltration water into the Pipeline during the time it is not in service because the City will not be able to stop or hold the infiltration water. (Ibid.) Wollert contends that it is “only a matter of time” before the Pipeline is damaged, and that the risk to the City and its neighboring communities who rely on the Pipeline is significant. (Ibid.)

Wollert declares that, due to the topography of the surrounding area, the property is an optimal site for installation of the valve within the area of the County Easement, but that the City cannot access the area of the County Easement because it is behind a locked gate. (Wollert Decl., ¶¶ 12-13 & 15.)

The opposition of Maria:

The motion is opposed by Maria, who states in her declaration that from 1982 through August 1984, she and Ettore owned a ten-acre property located in the City (the City parcel), and that Ettore separately owned an adjoining 40 acre parcel located in the County of Santa Barbara (the County parcel). (Maria Decl., ¶ 3.) The City parcel was later sold, and the County parcel was transferred to the Trust, of which Maria is the sole Trustee, and then later to Maria after Ettore’s passing. (Ibid.)

Maria further states that she and Ettore were approached by the City in late 1982 to discuss the installation of the Pipeline across a portion of the County parcel and the City parcel. (Maria Decl., ¶ 4.) After the City would not agree to pay what the Giordanis thought was the fair value of the easement, the City filed a complaint in eminent domain against the Giordanis on January 11, 1983 (the Eminent Domain Action). (Id. at ¶ 5 & Exh. 1.)

Maria declares that she and Ettore spent approximately six months litigating and negotiating an acceptable partial settlement agreement (the Settlement) with the City, which changed the easement to one that was “non-exclusive” with a requirement that the Pipeline and appurtenances would be “underground” and not interfere with or impede the Giordanis’ ability to build driveways, install planters, or build parking structures and curbs. (Maria Decl., ¶ 6(a).) The Settlement also required that the City install a high pressure fire hydrant for the benefit of the Giordanis at a location of their choosing and acceptable to the City, and provided that the fire hydrant was to be used only by the fire department for fire protection and not by the Giordanis. (Id. at ¶ 6(c)-(d).)

In accordance with the terms of the Settlement, Ettore signed the County Easement which impacts the County parcel and the Giordanis signed the City Easement which impacts the City parcel. (Maria Decl., ¶ 8 & Exh. 2.) After the court approved the Settlement on June 17, 1983, the City began work to install the Pipeline and the fire hydrant. (Id. at ¶ 10.) The fire hydrant was located eighty-five feet away from the Pipeline, outside the area of the Easements. (Id. at ¶ 11.)

The remaining issue of valuation for the City’s taking of underground easements on the City parcel and the County parcel ultimately went to trial resulting in a judgment in favor of the Giordanis in the amount of $100,000, which was upheld on appeal. (Maria Decl., ¶¶ 7-16.)

Maria asserts that the first time she refused to allow the City to access the property was when the City informed Maria that they were going to remove the fire hydrant. (Maria Decl., ¶ 31.) It is also Maria’s understanding that the City has no right to install an above ground structure or fixture in the Easements. (Ibid.)

Maria submits a compendium of exhibits (the COE) together with the declaration of her counsel, Briana E. McCarthy (McCarthy), who states that the City has admitted, in its responses to a set one request for admissions served by Maria, that the Pipeline also runs through other real properties located at 2895 Spyglass Ridge Road, 2885 Spyglass Ridge Road, 2875 Spyglass Ridge Road, and 2845 Spyglass Ridge Road. (McCarthy Decl., ¶¶ 2-6 & COE Exh. 16 [request nos. 10-11, 13-14, 16- 17 & 19-20.) In its responses to the admission requests, the City also admitted that the “Waterline Easement Deed” for these other properties does not contain the word “underground”. (COE Exh. 16 [request nos. 12, 15, 18, 21; see also McCarthy Decl., ¶ 6 [arguing that these “Waterline Easement” deeds therefore do not restrict the area of these easements to “underground”].)

McCarthy also asserts that, in its responses to the admission requests, the City admitted that a shut-off valve within the subject easement does not extend above ground level. (McCarthy Decl., ¶ 16 & Exh. 16 [request nos. 33-38].)

McCarthy states that documents produced by the City in discovery include emails exchanged on May 5, 2021, between various employees of the City. (McCarthy Decl., ¶¶ 7-9 & Exhs. 17 & 31.) McCarthy argues that it is “apparent” from the content of these emails that the Gibraltar Reservoir is not a primary water source for the City. (Id. at ¶ 9.)

McCarthy also refers to an email dated June 10, 2021, from Andrew Rhodes (Rhodes), who is identified in that email as the City’s Water Treatment Superintendent, to “Cater Operators” in which Rhodes states that the primary function of the lower of three air valves to be installed on the Pipeline “will be to better protect the piping from a vacuum condition during rapid dewatering events (hydro tripping offline).” (McCarthy Decl., ¶ 10 & COE Exh. 32.) McCarthy contends that the justification asserted by Rhodes for the installation of the third or lower valve does not appear to be included in the five design conditions that must be met for the Pipeline to function properly as stated in a memorandum dated August 19, 2019, and setting forth recommendations presented by Kennedy/Jenks Consultants to reduce or eliminate air binding within the Pipeline (the Kennedy/Jenks Report), a copy of which appears in the COE as exhibit 25. (Id. at ¶ 10 & Exh. 25.)

McCarthy also submits various reports and webpages printed by McCarthy from the City’s website which McCarthy contends show that the Treatment Plant can only be operated when the Gibraltar Reservoir is full, and that water from the Gibraltar Reservoir is diverted through Mission Tunnel or other conduits and not through the Pipeline. (McCarthy Decl., ¶¶ 12-15 & Exhs. 34-37.)

In his declaration submitted in support of Maria’s opposition to the motion, Giovanni states that he was present during the excavation and installation of the Pipeline and the fire hydrant at the property. (Giovanni Decl., ¶ 5.) Giovanni also describes his meetings and conversations with employees of the City regarding the installation of the valve, which Giovanni asserts is within the driveway access, and the presence of the fire hydrant. (Id. at ¶¶ 10, 12, 14, 16, 18.)

Giovanni, who is a licensed general building contractor, further declares that on March 11, 2023, he walked the length of the Pipeline, that he has researched its design, construction, and problems reported by Treatment Plant personnel regarding air entrainment and binding issues which, according to Giovanni, have existence since the Treatment Plant was constructed in 1985, and that he has reviewed the responses of the City to Maria’s requests for production of documents. (Giovanni Decl., ¶¶ 3 & 19-21.) Giovanni contends that, based on his review of various documents, the Treatment Plant was idle in 1998 due to regulatory issues, was recommissioned in 2015 but sat idle due to a drought, and that in September of 2015, the Treatment Plant was not operational due to issues requiring repairs to the Pipeline. (Id. at ¶¶ 22-23.)

Giovanni also refers to the Kennedy/Jenks Report which, according to Giovanni, recommends that nine new air valves be installed at various locations on the Pipeline in addition to two existing air valves, and that the location for one of the air valves identified as number “3” is, according to Giovanni, on the property. (Giovanni Decl., ¶¶ 30 & 35.) Based on Giovanni’s review of various emails produced by the City, Giovanni contends that the valve at issue in this litigation is not necessary to address an air binding issue but is merely a protective measure. (Id. at ¶¶ 38 & 44; COE Exh. 30.)

Giovanni also offers information and arguments purporting to establish that there exist alternative locations for installation of the valve on what Giovanni contends are superior easements which do not interfere with potential driveways and have the benefit of existing access roads, among other things. (See Giovanni Decl., ¶¶ 39-44 & Exhs. B-F.)

Analysis:

An injunction is an equitable remedy that requires the enjoined party to either perform, or refrain from performing, a specified act. (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884.) Code of Civil Procedure sections 525 through 533 “provide the primary statutory authority for injunctions pending trial.” (Stevenson v. City of Sacramento (2020) 55 Cal.App.5th 545, 551.) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise indicated.) Though not exhaustive, section 526 sets forth cases in which an injunction may be authorized. (See Code Civ. Proc., § 526, subd. (a)(1)-(7).)

Relevant here based on the arguments advanced by the City, subdivision (a) of section 526 provides that a preliminary injunction may be issued when “it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually “, when “it appears … that the commission or continuance of some act during the litigation would produce … great or irreparable injury, to a party to the action”, or when “pecuniary compensation would not afford adequate relief.” (Code Civ. Proc., § 526, subd. (a)(1), (2) & (4).)

To determine whether a preliminary injunction should issue, the court evaluates “ ‘two interrelated factors …. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued. [Citations.]’ [Citations.] ‘ “[B]y balancing the respective equities of the parties, [the trial court] concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.” ’ [Citation.] [¶] The granting or denying of a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy.” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, fn. omitted.)

A preliminary injunction pending a trial may be mandatory or prohibitory. (Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1035 (Daly).) A preliminary injunction “is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties. [Citations.] The substance of the injunction, not the form, determines whether it is mandatory or prohibitory.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446-447.)

Under the circumstances present here, though the preliminary injunction requested by the City may in some respects prohibit Maria from taking action that interferes with what the City contends are its purported rights under the County Easement, the requested preliminary injunction would effectively compel Maria to affirmatively change or surrender her relative position and status in this litigation in order to permit the City to access to the property to install the valve at issue. To the extent the Court were to grant the preliminary injunction requested in the motion, and order Maria to permit the City to access the County Easement to install the valve, such an order would not preserve the status quo pending a final judgment, and would effectively grant to the City “all of the injunctive relief requested in its complaint and to accomplish the main purpose of the action in advance of a trial on the [merits] [sic].” (Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 838 (Paramount).) For these reasons, the preliminary injunction requested in the present motion is mandatory in its character and effect. (Id. at pp. 836-838 [general discussion]; see also Daly, supra, 11 Cal.5th at pp. 1041-1042 [preliminary injunction ordering a party to surrender rights in an easement is mandatory]; Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191 [same].)

“The principles upon which mandatory and prohibitory injunctions are granted do not materially differ.” (Allen v. Stowell (1905) 145 Cal. 666, 669.) However, a mandatory injunction pending a trial and issued before the parties’ rights have been ascertained will “rarely … issue”, and is generally “not permitted except in extreme cases where the right thereto is clearly established and it appears that irreparable injury will flow from its refusal. [Citations.]’ [Citation.]” (Paramount, supra, 228 Cal.App.2d at pp. 838-839; Board of Supervisors v. McMahon (1990) 219 Cal.App.3d 286, 295.)

Likelihood that the City will prevail on the merits at trial:

Each of the causes of action alleged in the complaint and described above arise from what the City contends constitutes an intentional, unreasonable, or unlawful interference by Maria with the City’s purported right to access the area of the County Easement for the purpose of performing maintenance of or repair to the Pipeline by installing the valve, which the City contends has been interfered with or obstructed by Maria based on the existence of a locked gate preventing the City from accessing the County Easement to install the valve. (See, e.g., Compl., ¶¶ 23-39 [first cause of action]; 37-42 [second cause of action]; 45-50 [third cause of action]; 55-57 [fourth cause of action].) The City bears the burden to demonstrate some possibility that it will ultimately prevail on the merits of its claims. (Butt v. State of California (1992) 4 Cal.4th 668, 678; Drakes Bay Oyster Co. v. California Coastal Com. (2016) 4 Cal.App.5th 1165, 1172.).)

“ ‘An easement is an incorporeal interest in the land of another that gives its owner the right to use the land of another or to prevent the property owner from using his land.’ [Citation.] The land upon which the easement is imposed is called the servient tenement. [Citation.] There are two types of easements: appurtenant easements and easements in gross. An appurtenant easement is one which is impressed upon the servient tenement for the use and benefit of other property called the dominant tenement. [Citation.] An easement in gross is the personal right to use the land of another. As such, there is no dominant tenement. [Citations.]” (County Sanitation Dist. v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1278-1279.) The extent of an easement “is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired” and presents “a question of interpretation.” (Civ. Code, § 806; City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 542.)

Under the terms of the County Easement, which the parties do not dispute is an easement in gross, Ettore expressly granted to the City “a non-exclusive easement for the installation, use, maintenance, repair and replacement of underground waterlines and appurtenances together with the right of ingress and egress to and from same for such purposes in, on, over, under, along, through and across” the County parcel. (Hentschke Decl., Exh. A.) The City contends that the valve constitutes an appurtenance to the Pipeline, and that its installation constitutes maintenance and repair of the Pipeline. Because the terms of the County Easement permit the City to “have full access to said waterlines and appurtenances and every part thereof, at all times, for the purpose of exercising the rights” granted to the City under the County Easement (ibid.), the City argues, Maria has violated and substantially interfered with the City’s rights under the County Easement by refusing to permit the City access to install the valve. For these reasons, the City argues, it is reasonably likely to prevail on each cause of action alleged in the complaint.

Maria contends that, because the terms of the County Easement are “non-exclusive” and reserved to Ettore “the right to construct or install concrete and asphalt paving for driveways” on the easement area, the City has no right under its terms to use or occupy any above ground land or space on the property or in the area of the County Easement. (See Hentschke Decl., Exh. A.) Maria further contends that the installation of the valve, which is an above-ground appurtenance, would result in the City exclusively using and possessing a portion of the County Easement which Maria contends, by its terms, permits the City to access the property only to perform underground work or to install underground appurtenances to the Pipeline. For these reasons, Maria argues, the City cannot prevail on its claims that Maria breached the County Easement, any secondary easement, or any implied covenant of good faith and fair dealing.

For present purposes, there exist equally conflicting inferences that may be drawn with respect to the inclusion of the term “appurtenances” in the grant of the County Easement, regarding whether the installation of the valve constitutes maintenance or repair of the Pipeline, and with respect to whether a reasonable use of the County Easement includes the installation of the valve. In addition, while Maria contends that the reservation of a right to install paving demonstrates that the County Easement does not include a right to install above ground appurtenances or structures, the terms of the County Easement expressly prohibit the installation of paving which interferes with the operation of the Pipeline. (Hentschke Decl., Exh. A.) For these reasons, the City’s interpretation of the scope of the County Easement, including its maintenance and repair provisions, is not unreasonable. (See, e.g., Owsley v. Hamner (1948) 83 Cal.App.2d 454, 457-458 [general discussion]; Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702, 704.)

For all reasons discussed above, the Court does not find that there exists no possibility or likelihood that the City will prevail on the merits of its claim that maintenance or repair of the Pipeline encompasses installation of the valve, and that the scope of the County Easement includes a right to access the area of the easement to install the valve on the Pipeline notwithstanding whether the valve is an above ground appurtenance. (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 838.) Moreover, to the extent there exists some reasonable possibility of success on the City’s claims as to the scope of the County Easement, there also exists some possibility of success with respect to each cause of action arising from the purported denial by Maria of access to the County Easement preventing the City from performing maintenance or repair by installing the valve. For these reasons, the Court finds that, for present purposes, the City has sufficiently demonstrated that there exists some possibility that it will ultimately prevail on the merits of its claims. Therefore, the City has met its burden to show that it is entitled to the preliminary injunction requested in the motion. (Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1351.)

Likelihood of interim harm:

The City must also carry the burden to show that there exists an inadequate legal remedy and that it will suffer imminent as opposed to the mere possibility of irreparable harm if the preliminary injunction is not issued. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481 (O’Connell); East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1126 [injury must be “impending and so immediately likely as only to be avoided by issuance of the injunction”].)

To determine whether irreparable injury will flow from the refusal of a mandatory injunction, the Court “compares the injury to the plaintiff in the absence of an injunction to the injury the defendant is likely to suffer if an injunction is issued.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.) The Court uses a “sliding scale” approach to determine whether the “balance of equities” tips in favor of the City. (People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 272-273.)

Maria does not appear to dispute that the City has made a sufficient showing that there exists no adequate remedy at law that would afford the City the relief sought in the complaint with respect to the installation of the valve within the County Easement, or that it would be difficult to ascertain what, if any, amount of monetary damages would afford adequate relief. (Code Civ. Proc., § 526, subd. (a)(4)-(5); Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306.) For example, though Giovanni contends that the valve could be installed in another location, there is insufficient admissible evidence to show that installation of the valve at another location would satisfy the recommendations made in the Kennedy/Jenks Report, or resolve the issues noted in that report or alleged by the City in this action.

The irreparable harm that the City contends it will suffer if the injunction is not issued includes damage to the Pipeline, a catastrophic failure of the Pipeline, and a resulting significant loss of freshwater supply to the residents of the City. Though the City is not required to wait until the Pipeline is damaged or fails before requesting an injunction (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292), there is no evidence or information to show when the City expects that the Pipeline will or is likely to be damaged or to fail, or whether any damage or failure is expected to occur before a determination of the merits of the action or why. (SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.)

By way of example, though the Kennedy/Jenks Report includes recommendations that new air valves be installed along various locations on the Pipeline, nothing in that report suggests that there exists any urgency in installing the recommended air valves or that installation of the valve must occur before a trial on the merits. (See, e.g., COE Exh. 25 at pp. 3-7.) There is also no information offered in the Wollert declaration which suggests that any damage to or failure of the Pipeline has already occurred or is imminent. At most, the information and evidence presented by the City shows a possibility of damage to or failure of the Pipeline at an unknown time in the future. Even if the Court were to assume that the City has sufficiently shown that the Pipeline will at some future time sustain significant damage or failure if the valve is not installed within the proposed location of the County Easement, the speculative and general factual arguments presented by the City are insufficient to show that irreparable damage or failure is imminent or likely to occur before a trial on the merits of the City’s claims. (See White v. Davis (2003) 30 Cal.4th 528, 561 (White).)

The available evidence and information further indicates or suggests that the City was aware of the potential for damage to or failure of the Pipeline necessitating the installation of the valve when the Kennedy/Jenks Report was issued in August 2019, when it met with Giovanni in 2020, and as of the date the complaint in this action was filed. The City offers no information to explain why it waited four years from the date it conducted a site visit with Giovanni, and more than a year from the date it filed the complaint, to seek a preliminary injunction, or why it could not raise its claim of irreparable injury at an earlier time. (O’Connell, supra, 141 Cal.App.4th at pp. 1481-1482 [a court may consider delay in seeking a mandatory injunction to determine if relief is warranted].) The length of time that has passed since the City ostensibly discovered that installation of the valve was necessary to protect the Pipeline from damage or failure also suggests that catastrophic or irreparable damage to or failure of the Pipeline is not imminent and unlikely to occur before a final determination of the merits of the City’s claims following a trial.

Available evidence and information also suggests that granting the injunction will or may result in harm to Maria. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70 [trial court should compare harm claimed by plaintiff compared to the harm defendant is likely to suffer from the granting of injunctive relief].) For example, though the City contends that the valve can be demolished if the City does not prevail at trial, the City offers no information to show whether and to what extent demolishing the valve or its surrounding structures will damage the property.

For example, it appears from the evidence submitted by the City that the valve will be affixed to the Pipeline and that its component or appurtenant parts include a concrete foundation pad and a retaining wall which will be affixed to the property. (See, e.g., Wollert Decl., Exh. B.) It is unclear whether or to what extent the valve or its concrete pad can be removed from the Pipeline without causing damage to the property, or whether any damage will be minimal or substantial. For these reasons, it appears to the Court that, to the extent an interim decision granting the preliminary injunction is later shown to be erroneous, Maria will sustain harm to the property resulting from the demolishment of, at a minimum, the valve and its concrete pad or foundation, which may be substantial. (White, supra, 30 Cal.4th at p. 554.)

The Court has considered the strength of the City’s showing of the likelihood it will prevail on the merits of its claims, the general and speculative information offered by the City with respect to the imminence of any damage to or failure of the Pipeline if the valve is not installed, and the apparent harm that would be imposed on Maria if the preliminary injunction is granted. The Court finds that the relative balance of these harms supports a denial of the preliminary injunction requested by the City. Therefore, and for all reasons discussed above, the Court will deny the motion, without prejudice to the filing of any future procedurally appropriate motion for similar relief that may be filed by the City to the extent the City discovers new or different facts which may change the Court’s analysis.

The City’s request for judicial notice:

The City requests judicial notice of the County Easement ostensibly signed by Ettore and recorded on June 24, 1983, a copy of which is attached as exhibit A to the Hentschke declaration. (RFJN at p. 2, ll. 9-15; Hentschke Decl., Exh. A.)

The Court will grant the City’s request for judicial notice of the County Easement, which is a proper subject of judicial notice. (Evid. Code § 452, subd. (c); Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [court may take judicial notice of official act of recording].) Though the Court will take judicial notice of the County Easement, this “does not mean it may take judicial notice of factual matters stated therein.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [facts stated within recorded document constitute hearsay]; see also Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [the truthfulness and proper interpretation of judicially noticed public records are disputable].) For this reason, judicial notice of the County Easement does not extend to “the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Maria’s request for judicial notice:

Maria requests that the Court take judicial notice of: (1) a certified copy of the complaint filed by the City in the in the Eminent Domain Action; (2) a certified copy of a trial brief filed by the City in the Eminent Domain Action; (3) a copy of the City’s proposed statement of decision filed in the Eminent Domain Action; (4) a copy of a memorandum submitted in support of an application for a preliminary injunction filed by the City in Santa Barbara County Superior Court case no. 22CV04233 entitled City of Santa Barbara v. Maria Pia Giordani, et al. (the 2022 City Action); (5) Maria’s opposition to the memorandum described in item (4); (6) a notice of withdrawal of the application for a preliminary injunction filed in the 2022 City Action; and (7) a request for dismissal without prejudice of the complaint filed in the 2022 City Action.

Items (1) is a court record for which judicial notice may and will be taken. (Evid. Code §452, subd. (d).) Judicial notice does not extend to the truth of any factual assertions appearing in this record. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.)

Though items (2) through (7) above are also court records for which judicial notice may be taken, Maria has failed to establish the relevance of these records to the issues presented in the motion. (See Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) Therefore, the Court will deny Maria’s request for judicial notice of the court records described in items (2) through (7) above.

Maria also requests judicial notice of certified copies of four Waterline Easement Deeds recorded in the Official Records of the County of Santa Barbara and affecting real properties located at 2895 Spyglass Ridge Road, 2885 Spyglass Ridge Road, 2875 Spyglass Ridge Road, and 2845 Spyglass Ridge Road, in Santa Barbara, California. Though the Waterline Easement Deeds Item are recorded documents for which judicial notice may and will be taken under Evidence Code section 452, subdivisions (c) and (h), judicial notice of these records does not extend to their truthfulness or proper interpretation for reasons further discussed above.

The Court will deny Maria’s request for judicial notice of the City’s Coastal Land Use Plan, and various book and page excerpts from the Santa Barbara County Tax Assessor’s Parcel Map. Notwithstanding whether or not these documents are proper subjects of judicial notice, Maria has failed to demonstrate their relevance to the issues presented in the motion.

Maria’s evidentiary objections:

Maria asserts objections to matters stated in the Wollert and Hentschke declarations submitted in support of the motion. To determine the motion, the Court has considered only that evidence which is admissible and relevant to the issues presented.