SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF RIVERSIDE CITY OF PALM SPRINGS, a Municipal Corporation, ) ) ) Plaintiff, ) ) Case No. PSC1606276 vs. ) ) KENNETH IRWIN JR., an individual; ) and DOES 1 through 50, inclusive, ) ) Defendants. ) ____________________________________) REPORTER'S TRANSCRIPT OF EX PARTE HEARING RE TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE BEFORE THE HONORABLE DAVID M. CHAPMAN December 14, 2016 APPEARANCES: For the Plaintiff: WOODRUFF, SPRADLIN & SMART By: NICHOLAS A. HUTCHINS 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 For the Defendant: PARCELLS LAW FIRM By: DAYTON B. PARCELLS III BEN MEHDIAN 1901 Avenue of the Stars, 11th Floor Los Angeles, California 90067 Reported by: LESLIE BROCK, CSR No. 12984 COPY LESLIE BROCK, CSR, RPR, CRR 1 PALM SPRINGS, CALIFORNIA; DECEMBER 14, 2016 2 BEFORE THE HONORABLE DAVID M. CHAPMAN 3 4 THE COURT: Calling the matter of City of Palm Springs versus Kenneth Irwin. 5 MR. HUTCHINS: 6 Nicholas Hutchins for the City of Palm Springs. 7 THE COURT: 8 MR. PARCELLS: 9 Dayton Parcells for defendant Kenneth Irwin, Jr. Good morning, Your Honor. Good morning. Good morning, Your Honor. 10 THE COURT: 11 The matter is here by a request by the City of Good morning. 12 Palm Springs for the issuance of a temporary restraining order 13 and have this matter set for a hearing on a preliminary 14 injunction. 15 have not had an opportunity to finish reading the opposition, 16 and I intend to put this matter on second call, take a recess, 17 and finish reading the opposition. 18 I just received this morning an opposition. Before doing so, although I've had a chance to look 19 at part of the opposition, I have a question regarding the 20 moving party. 21 read the opposition? 22 23 I And, specifically, have you had a chance to MR. HUTCHINS: I have not had a chance to receive that. 24 THE COURT: 25 I want to give you a chance to do so, because I want Thank you. 26 you to focus, in part, your comments to the Court as to what 27 the existing deficiencies are, that is, the specific code 28 violations. In the opposition, there's an assertion that some LESLIE BROCK, CSR, RPR, CRR 1 1 of the violations deem asserted on behalf of the City no 2 longer exist. 3 I want you to be able to address that. And then I want you to be able to address, please, 4 the specific declaration as to what constitutes the evidence 5 of an imminent threat to the health and safety of individuals 6 on that property, which will be the primary motivating focus 7 for the Court in determining whether to either grant or deny 8 the ex parte application. 9 The matter is on second call. Thank you. 10 MR. HUTCHINS: Thank you, Your Honor. 11 MR. PARCELLS: Thank you, Your Honor. 12 THE COURT: 13 14 15 You're welcome. (Other matters heard.) THE COURT: Recalling the matter of the City of Palm Springs versus Irwin. 16 MR. PARCELLS: 17 Dayton Parcells for defendant Kenneth Irwin Jr. 18 And to my left, Ben Mehdian. 19 MR. MEHDIAN: 20 THE COURT: 21 MR. HUTCHINS: 22 Nicholas Hutchins for the City of Palm Springs. 23 THE COURT: 24 MR. ZICARO: 25 26 27 28 Good morning, Your Honor. Good morning. Welcome. Good morning, Your Honor. And the gentleman to your left? Jim Zicaro, director of Building and Safety, Palm Springs. MR. PARCELLS: And, Your Honor, my client is in the courtroom as well. THE COURT: Would you care to introduce him to the LESLIE BROCK, CSR, RPR, CRR 2 1 Court? 2 MR. PARCELLS: 3 THE COURT: 4 Yes. Kenneth Irwin Jr. in the back. Welcome, sir. Thank you. Make yourself comfortable. 5 MR. IRWIN: Thank you. 6 THE COURT: Thank you. 7 The matter is here on an ex parte application for a 8 temporary restraining order in order to show cause why this 9 Court should not issue a preliminary injunction in connection 10 with the subject property located in the City of Palm Springs. 11 The Court, having had an opportunity to read the application 12 together with the opposition having been submitted this 13 morning, the Court intends to entertain oral comment from both 14 sides. 15 Before doing so, the Court makes the following 16 observation: 17 application on the grounds that the plaintiff is likely to 18 prevail on the merits and will otherwise be irreparably harmed 19 if defendant continues to maintain the property as a public 20 nuisance as described within the complaint and the supporting 21 affidavits and declarations. 22 The moving party, the City, makes this The City asserts that immediate relief is necessary 23 due to the nuisance activity at the property and the 24 likelihood that the continuance of such activity will result 25 in harm to visitors to the property, neighboring property 26 owners and businesses, and to the public in general. 27 28 Additionally, the Court notes that the City asserts the following: The City in no way is attempting to shut down LESLIE BROCK, CSR, RPR, CRR 3 1 defendant's annual holiday display. 2 various municipal code violations created by what they assert 3 to be a multitude of structures on the defendant's property, 4 the City has advised the defendant on multiple occasions that 5 it would not take action to stop tours of his property during 6 the holidays as long as he first addressed the imminent life 7 safety concerns identified by the City. 8 9 In fact, despite the One of the issues that the Court asks the moving party to address has to do with their probable validity of 10 their claim and anticipated success, in light of the evidence 11 having been presented to the Court this morning by way of 12 declarations on behalf of the moving party, as they are 13 compared and contrasted to the declaration having been 14 submitted in opposition by Mr. Green as it would relate to 15 whether this property and the alleged violations that are 16 sought to be terminated by this temporary restraining order in 17 fact constitute an imminent threat to life and safety of 18 persons upon the property. 19 The Court interprets the application on behalf of the 20 City of Palm Springs to be motivated consistent with their 21 assertions that they are primarily concerned with the health 22 and safety of persons that would visit that property during 23 the holiday season. 24 has carefully looked, because the Court is obligated to weigh 25 the relative evidence having been submitted in support of and 26 in opposition to this application, and in order for the City 27 to prevail, this Court must find that it is likely that they 28 would do so based upon the evidence having been submitted. In that regard, the Court also notes and LESLIE BROCK, CSR, RPR, CRR 4 1 Otherwise, this Court is prohibited from issuing a temporary 2 restraining order. 3 I have read carefully the declaration supported on 4 behalf of the City as it relates to the structures. 5 the structures are not specifically identified by the City in 6 their declaration other than rather vague and generic terms of 7 "inflatables," the Court notes in the opposition that these 8 inflatables are more particularly described as "Santa Claus," 9 "Godzilla," a "Candy Cane," and "two Snow Globes." Although The 10 opposition asserts that these, in fact, do not constitute an 11 imminent threat to the health and safety of persons visiting 12 that property. 13 The City had previously gained access to the property 14 as a result of an inspection warrant having been authorized by 15 the Honorable John Evans. 16 warrant, City representatives went onto the property. 17 asserted on behalf of the moving party and the supporting 18 declarations that during the inspection, the City 19 representative, quote, "Observed countless structures on the 20 property which had been constructed without the required 21 permits, approvals, or inspection, in violation of section 22 105.1 of the Palm Springs Building Administrative Code as 23 adopted by Palm Springs Municipal Code section 8.04.310. 24 Pursuant to that inspection It is "Additionally, I noticed that several of these 25 structures were found to have been erected within the setback 26 areas required under PSZC" -- that's the zoning code -- 27 "section 92.01.03, and would not be able to be permitted as 28 constructed. These structures include a multitude of LESLIE BROCK, CSR, RPR, CRR 5 1 freestanding structures in the yard areas of the property with 2 some in excess of 30 feet in height." 3 Although the Court has read and considered this 4 declaration, the Court interprets that the multitude of 5 structures having been referred to in this paragraph are not 6 the structures which the City asserts constitutes an imminent 7 and immediate threat to the health and safety of the persons 8 who might enter those premises. 9 The declaration goes on at paragraph 7 of 10 Mr. Zicaro's declaration in part as follows: 11 noticed variety of structures had been added to the roof of 12 the existing residential structure on the property, including, 13 but not limited to, a platform designed to support two 14 inflatable decorations which stand approximately 30 to 45 feet 15 in height above the normal height of the residential 16 structure. 17 observations of the violations of the Palm Springs Municipal 18 Code, I identified two structures which create immediate life 19 safety hazards for occupants and visitors of the property. 20 The first structure is approximately 15 to 25 feet tall 21 unsupported wall display which was installed in the backyard 22 adjacent to the main house. 23 the roof of the residential structure which is currently 24 supporting the 30- to 45-foot-tall inflatable decorations. 25 "Finally, I During this inspection, in addition to the The second is a large platform on "In the opinion of the building inspector, the 26 platform, both with and without the inflatables, and the 27 unsupported wall in the backyard constitute immediate life 28 safety hazards. I formed this conclusion as due to the size LESLIE BROCK, CSR, RPR, CRR 6 1 and weight of the structures. 2 appropriate course of inspections, it's impossible to 3 determine if these structures meet the gravity and wind 4 loading provisions of Chapter 16 of the California Building 5 Code, and the structure could pose an imminent danger to 6 anyone under or around the structures." 7 Without a permit and This is the paragraph that the Court believes 8 provides the cornerstone to the request for a temporary 9 restraining order in anticipation of a hearing on a 10 preliminary injunction. 11 comment as to the factual basis for the statement, quote, "The 12 structure could impose an imminent danger to anyone under or 13 around the structures." 14 The Court invites the moving party to The Court notes that there is an absence in this 15 declaration of any specifics as to what and how the platforms 16 are secured to the roof, how the inflatables are secured to 17 the roof. 18 whatsoever as to the weight of the inflatables. 19 information set forth whatsoever in the opinion of Mr. Zicaro 20 as to what the wind velocity resistance would be to these 21 inflatables and whether or not they are either appropriately 22 secured or not appropriately secured by either lag bolts, 23 strappings, tie downs, or other engineering options that are 24 available. The Court notes that there is no evidence There is no 25 This becomes important because the Court is obligated 26 to weigh and contrast in arriving at the determination whether 27 or not the moving party is likely to prevail. 28 I also invite the City to comment and contrast the evidence LESLIE BROCK, CSR, RPR, CRR In that regard, 7 1 contained within Mr. Zicaro's declaration with that of 2 Mr. Green, which has been submitted in opposition to 3 Mr. Zicaro's declaration. 4 And the Court notes for the record that there is a CV 5 having been attached in support of the declaration of 6 Mr. Green establishing that he is a registered civil and 7 structural engineer in the state of California, Arizona, 8 Nevada, New Mexico, and Oregon, with over 50 years. 9 past president of the Structural Engineers Association of He is the 10 California and a committee chair for the American Society of 11 Civil Engineers, whose projects have included over 750 park 12 buildings within the Presidio Trust National Park Service, 13 repair of the Death Valley National Park, Keane Wonder Mine 14 aerial tramway, repairs to the Wawona, W-a-w-o-n-a, Hotel, and 15 special projects within Yosemite National Park, the review and 16 design of the repair of retrofit of nonstructural elements of 17 UCLA's Royce Hall, and the historic preservation engineer to 18 the seismic rehabilitation of the Golden Gate Bridge, that he 19 has testified the inflatables do not constitute an unsafe or 20 dangerous condition as defined in International Property 21 Maintenance Code section 105.1.5. 22 And specifically within his declaration, contrary to 23 the assertions of Mr. Jim Zicaro on behalf of the City, he 24 specifically renders the following opinion that none of the 25 items that are currently in dispute and alleged to constitute 26 an immediate and imminent threat to the health and safety of 27 persons entering the property, he specifically holds the 28 opinion that they are not dangerous to life, health, property, LESLIE BROCK, CSR, RPR, CRR 8 1 or safety of the public or the occupants. 2 And the Court also notes in comparing the relative 3 evidence of the counterbalancing declarations that, in fact, 4 Mr. Green and/or those who have submitted declarations in 5 opposition to the temporary restraining order not only 6 inspected the premises, they inspected the means and manner of 7 which they were secured to the residence. 8 submitted evidence to the weight of the inflatables. 9 was particularly significant to the Court in evaluating the They, in fact, And it 10 respective declarations that, at least according to the 11 declarations of Mr. Green and others, that these inflatables 12 have the capability of resisting a wind speed of 125 miles per 13 hour. 14 On behalf of the moving party, you may be heard, sir. 15 MR. HUTCHINS: 16 In regards to this, we would point out that the Very briefly. 17 structures -- or the inflatables attached to the roof only 18 consist of -- that the City's interested in in today's 19 temporary restraining order only consist of the Santa Claus 20 and the Godzilla with the candy cane, not the two snow globes. 21 We would like to distinguish the inflatables we're 22 talking about today are different in kind as to the 23 inflatables that would be found at a typical residential 24 instillation. 25 They're very large in size. 26 They're designed for commercial instillation. THE COURT: And -- Please invite my attention to where 27 within the evidence that you have submitted that supports that 28 position, please, in which there is a comparison of these LESLIE BROCK, CSR, RPR, CRR 9 1 inflatables being commercial inflatables as opposed to other 2 inflatables that may be located within the city. 3 reason I make that inquiry, sir, is I don't know what those 4 other inflatables are, the size or anything relative to that. 5 MR. HUTCHINS: I apologize to the Court. And the I don't 6 believe it's in the declaration that they were commercial in 7 nature. I would withdraw that statement. 8 THE COURT: 9 MR. HUTCHINS: Thank you. Specifically, we indicated they were 10 very large in size, and that's what drew the concern of the 11 building inspector -- or the building official. 12 Based upon the building official's observations as 13 indicated in his declaration, he was unable to determine how 14 the inflatables were installed on the roof. 15 his inability to determine how they were installed, he formed 16 the conclusion that they represented an imminent danger to the 17 public. 18 THE COURT: And based upon Why isn't that speculation if he doesn't 19 know how they're installed or how they are affixed, what they 20 weigh, what the wind resistance is? 21 just speculation that it poses -- and, again, the operative 22 concern for this Court is whether it poses an immediate and 23 imminent threat to the health and safety of particularly the 24 public entering that property. How -- why isn't that 25 And so although I understand the motivation and I 26 understand the concern, what is the evidence that supports 27 what might be possible? 28 MR. HUTCHINS: And I understand the court's LESLIE BROCK, CSR, RPR, CRR 10 1 hesitation with that. 2 relying on section 108.1.5, subsection (4), of the 3 International Property Maintenance Code that indicated that 4 any portion of the building or ornamentation thereof that is 5 not of sufficient strength or is not anchored to resist wind 6 loads of one and a half times the designated value would be 7 unsafe. 8 that's what the permit process is for. 9 structures were added to the roof, the permit process is The building official was simply We were unable to confirm whether they were. And being that these 10 designed to ensure that they do meet those loads and 11 prevent -- 12 THE COURT: But didn't you receive a Court order 13 signed and authorized by Judge John Evans to enter the 14 property and inspect it? 15 And MR. HUTCHINS: We -- and at that point, we entered 16 the property and inspected the property; however, the 17 calculations and the load calculations that would need to be 18 done were not something that could be done by simple 19 observation. 20 Those -- THE COURT: Well, what was there about Judge Evans' 21 inspection warrant that precluded the City from looking and 22 inspecting and determining the manner and strength of how 23 these inflatables were attached? 24 doing that, if anything, under the authorization having been 25 granted to you by Judge Evans? 26 MR. HUTCHINS: What prevented you from I suppose nothing prevented the City 27 from making those calculations; however, the City relied on 28 the fact that a building permit was required for their LESLIE BROCK, CSR, RPR, CRR 11 1 installation and was not obtained, and it wasn't the 2 responsibility of the City to then investigate -- 3 THE COURT: Please understand my inquiry. My 4 inquiry, as I've interpreted your moving papers, is not to 5 determine this morning whether or not there was or was not 6 certain structures that required permits. 7 has acknowledged that you're not interested in shutting down 8 this Christmas event. Because the City 9 Rather, you're concerned, and the reason you brought 10 this motion is because of what you assert to be the immediate 11 and imminent threat to the health and safety of visitors that 12 are entering the property. 13 not -- and I don't intend to address it unless it's necessary 14 to do so. 15 required to be permitted, I want to focus and I'm inviting 16 your comments to focus on what is the evidence that any of 17 these items, the inflatables, constitute an immediate and 18 serious threat to the health and safety of folks on the 19 property when compared and contrasted, particularly, 20 Mr. Zicaro's declaration with Mr. Green's in the opposition. 21 So without regard to whether or Without regard to whether certain structures were MR. HUTCHINS: In speaking with our building 22 official, there's a difference in what the City's able to do 23 by visual observation. 24 the technical specifics behind the products -- or the 25 structures that are installed on the roof, there's no way for 26 the City to determine if those structures meet those load 27 requirements that are required in the code. 28 the observation conducted both during the inspection warrant And without the engineering design and LESLIE BROCK, CSR, RPR, CRR And based upon 12 1 and after the inflatables were installed, the building 2 official formed the opinion that they were unsafe, that they 3 presented an imminent harm. 4 THE COURT: 5 MR. HUTCHINS: Didn't he say they might be unsafe? I believe he said that they would -- 6 they could present -- potentially present imminent danger to 7 the people underneath; however, as the code specifies, 8 specifically pointing to 109.2 of the International Property 9 Maintenance Code, this code specifically contemplates the 10 potential for danger. 11 it contemplates the potential for danger in the inability of 12 the City to determine the safety of the structures on the 13 roof. While there's not an imminent danger, 14 THE COURT: 15 MR. HUTCHINS: 16 THE COURT: 17 On behalf of the defendant? 18 MR. PARCELLS: 19 As the Court has indicated, the declaration and You may proceed. Anything further? Nothing further at this time. Thank you very much. Thank you, Your Honor. 20 evidence provided by Mr. Zicaro is simply speculative. 21 There's no foundation, there's no factual evidence to support 22 his blanket naked statement that these inflatables constitute 23 immediate life safety hazards. 24 I've read the declaration, and other than Mr. Zicaro's 25 statement to that effect, there is no evidence to support 26 this. 27 28 I've listened to the argument, By contrast, the declaration of Mr. Green is very specific in support of his opinion, which he expressed that LESLIE BROCK, CSR, RPR, CRR 13 1 this limited entry order and citations were simply wrong; that 2 the inflatables do not constitute unsafe or dangerous 3 conditions as defined in International Property Maintenance 4 Code section 105.1.5; that they are not dangerous to the life, 5 health, and property or the safety of the public or the 6 occupants. 7 And Mr. Green goes on, unlike Mr. Zicaro, to explain 8 the foundation or basis for his opinion with specific factual 9 support. Included with these papers are, as exhibit 5, 10 calculations that Mr. Green performed to determine the wind 11 speeds that these two inflatables, the Santa Claus and the 12 Godzilla with a candy cane, could sustain or withstand. 13 And he opined, based upon these calculations, that 14 these inflatables would stay on the roof up to 125 mile per 15 hour wind speeds. 16 judicial notice, but I've done research on this. 17 wind speeds around here, even though you think they're strong, 18 average 9 miles per hour. And I've done -- the Court can take 19 THE COURT: 20 MR. PARCELLS: 21 How long have you lived in the desert? THE COURT: 23 MR. PARCELLS: 25 I don't live in the desert, Your Honor. 22 24 The average I thought not. But they're not 125. They're not even close to 125. THE COURT: The Court declines your invitation to 26 take judicial notice that the average wind speed in the desert 27 is 9 miles an hour. 28 You may proceed. LESLIE BROCK, CSR, RPR, CRR 14 1 MR. PARCELLS: 2 THE COURT: Okay. Do you have anything new and different, 3 sir, other than what's been set forth in your opposition? 4 so, I would welcome those comments, but I've read your 5 opposition. 6 MR. PARCELLS: If My opposition lays it out pretty 7 clear. 8 that the City has not met its burden of proof that it is 9 likely to prevail and that there is an imminent safety issue I think that, based upon the weight of the evidence, 10 which would justify granting any of the relief they seek here 11 today. 12 THE COURT: 13 Anything further on behalf of the City? 14 MR. HUTCHINS: 15 THE COURT: 16 The Court has weighed and considered the declarations Thank you, sir. Nothing further at this time. Thank you very much. 17 on behalf of the moving party as well as the declarations on 18 behalf of the opposition. 19 party has failed to carry their burden of proof that they are 20 likely to prevail based upon the evidence having been 21 submitted to this Court this morning. 22 Palm Springs' request for a temporary restraining order is 23 denied without prejudice. 24 The Court finds that the moving Therefore, the City of (Applause.) 25 THE COURT: 26 on a preliminary injunction. 27 there is good cause to shorten time on that. 28 proceed as they believe to be appropriate. Also, there was a request for a hearing The Court does not find that LESLIE BROCK, CSR, RPR, CRR The City may And if they want 15 1 to file a noticed motion, then that is up to them. 2 Anything further? 3 MR. HUTCHINS: 4 THE COURT: 5 Is notice waived, or would you like written notice? 6 MR. HUTCHINS: 7 THE COURT: 8 MR. PARCELLS: 9 THE COURT: Notice is waived. Notice waived, sir? I'll provide the notice, Your Honor. Very good. 10 MR. PARCELLS: 11 THE COURT: 12 Nothing further. Thank you very much. Thank you. Court's in recess. (Proceedings concluded.) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LESLIE BROCK, CSR, RPR, CRR 16 REPORTER'S CERTIFICATE CITY OF PALM SPRINGS, a Municipal Corporation, ) ) ) Plaintiff, ) ) Case No. PSC1606276 vs. ) ) KENNETH IRWIN JR., an individual; ) and DOES 1 through 50, inclusive, ) ) Defendants. ) ____________________________________) I, Leslie Brock, Certified Shorthand Reporter, No. 12984, do hereby certify: That on December 14, 2016, in the county of Riverside, state of California, I took in stenotype a true and accurate report of the testimony given and proceedings had in the above-entitled case, pages 1 through 16, and that the foregoing is a true and accurate transcription of my stenotype notes, taken as aforesaid, and is the whole thereof. Dated: Palm Springs, California, January 3, 2017. ___________________________ LESLIE BROCK, CSR NO. 12984