ALVIN COX v. ARMEN LOUISIAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiff and appellant Alvin E. Cox appeals an order denying his motion for preliminary injunction.   We affirm.

This is a dispute concerning commercial real property located at 1050 W. Alondra Boulevard in Compton (the Property).   The Property was apparently previously used as a gas station and is now abandoned.   Cox contends that the Property contains underground storage tanks that are leaking hazardous materials.

Defendant and respondent Douglas Oil Company of California (Douglas) owned the Property about 30 years ago.   Douglas is a subsidiary of defendant and respondent ConocoPhillips Company (ConocoPhillips).   Defendants Armen Louisian, Petros Sarafian, and Karapet Sarafian (the Current Owners) are the current owners of the Property.   These defendants have defaulted in the trial court and are not parties to this appeal.   Cox contends that he is the holder of a promissory note executed by the Current Owners, as well as an associated deed of trust secured by the Property.

In his motion for preliminary injunction Cox sought a mandatory injunction requiring Douglas and ConocoPhillips to comply with certain provisions of the Health and Safety Code relating to the underground storage tanks at the Property.   Cox also requested an order compelling Douglas and ConocoPhillips to abate the alleged nuisance created by the tanks and to repair any damage caused by them.   We shall conclude that the trial court did not abuse its discretion in denying Cox's motion for preliminary injunction because Cox did not meet his burden of showing both (1) a likelihood that he would prevail on the merits of his underlying causes of action and (2) that the balance of harms and equities weighed in favor of granting him provisional injunctive relief.

FACTS

Douglas purchased the Property in 1964.   In 1981 Douglas sold the Property to Gregory and Pamela Harper.   Shortly thereafter the Harpers conveyed the Property to the Bodamer Family Trust, dated May 1, 1980 (the Trust).

In or about 1991 Thomas R. Bodamer, as trustee of the Trust, sold the Property to the Current Owners.   As part of this transaction, the Current Owners executed a promissory note to the Trust (the Note), secured by a deed of trust (Deed of Trust) on the Property.

At some point after the Current Owners purchased the Property they abandoned it.   In February, April and May 2002, and January 2003, the County of Los Angeles Department of Public Works (DPW) sent written notices to the Current Owners advising them that they abandoned and closed the facility located on the Property without obtaining approval from the DPW, without paying the necessary fee, and without removing the underground storage tanks.

In July 2004 Gerald K. Bodamer, as trustee of the Trust, executed an Assignment of Deed of Trust, wherein the Trust assigned all beneficial interest in the Deed of Trust and Note to Cox. The record does not indicate the amount of money, if any, Cox paid the Trust for the assignment.   Further, the record does not indicate the terms and conditions of the Note. Cox contends the Note is “missing” or “lost.”   According to Cox, the Current Owners did not make any payments under the Note to Cox after it was assigned to him.

On August 10, 2009, Cox commenced this action by filing a complaint.   Cox filed the first amended complaint (FAC), his operative pleading, on January 28, 2010.   Of relevance here, the FAC purported to set forth causes of action for private nuisance, public nuisance, negligence, strict liability, and violation of Business and Professions Code section 17200 et seq. against Douglas and ConocoPhillips.¹

Douglas and ConocoPhillips opposed the motion and filed objections to Cox's declaration.   In their opposition brief Douglas and ConocoPhillips argued, inter alia, that Cox failed to show a likelihood of success on the merits of his underlying claims, that Cox failed to establish irreparable harm absent the issuance of a preliminary injunction, and that injunctive relief is improper because Cox has an adequate remedy at law.   The Current Owners, who were in default, did not file an opposition.

A hearing on the motion was held on March 22, 2010.   At the hearing the trial court stated it was “inclined to sustain every single” objection to Cox's declaration because Cox lacked personal knowledge “for a lot of things that he says.” ³  The court also characterized the proposed injunction as a “mandatory” injunction and expressed concern about its power to order Douglas and ConocoPhillips to take action with respect to the Property.   The court stated to Cox:  “Without the owners being here you're asking me to order someone [Douglas and ConocoPhillips] to commit trespass arguably, and I just don't think I can do that․”  The court further stated:  “I don't know that I have the authority to order them [Douglas and ConocoPhillips] to do something to a property that they don't own.”

The trial court also found that Cox did not prove a probability of success on the merits because, inter alia, there was no evidence that the underground storage tanks were leaking or that there was even anything in the tanks.   In conclusion, the trial court stated that it was denying the motion as to Douglas and ConocoPhillips “based on the points and authorities and evidentiary objections” of Douglas and ConocoPhillips “without prejudice to perhaps [Cox] submitting a request for an order directing [him] to explore the soil contamination issues on the site.” ⁴

Cox filed a timely appeal of the order denying his motion for preliminary injunction.

ISSUE

The principal issue on appeal is whether the trial court abused its discretion in denying Cox's motion for a preliminary injunction.

DISCUSSION

The trial court is required to review two interrelated factors when deciding whether to issue a preliminary injunction.  (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)  “ ‘ “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 the defendant is likely to suffer if the preliminary injunction were issued.”  ‘ “ (Ibid.) “The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.”  (Abrams v. St. John's Hospital & Health Center (1994) 25 Cal.App.4th 628, 636.)

We review a trial court's order denying a motion for preliminary injunction for abuse of discretion.  (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145.)   Such an order should be affirmed if the trial court correctly found the moving party failed to satisfy either of the factors.  (Ibid.) We review the decision of the trial court rather than its reasoning.  (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)   We thus must affirm the order if it is correct even if the trial court provided the wrong reason for its ruling.  (Ibid.)

It is Cox's burden to show that the trial court committed reversible error.   “ ‘A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.   This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’  “ (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham ).)

1. The Trial Court Did Not Abuse Its Discretion by Finding That Cox Did Not

Meet His Burden of Showing It Was Likely That He Would Prevail on the Merits of His Underlying Claims

The trial court acted within its discretion when it determined that Cox did not show he was likely to prevail on the merits of his underlying claims against Douglas and ConocoPhillips.

A. Cox's Claims against ConocoPhillips

Cox failed to prove he was likely to prevail on any of his causes of action against ConocoPhillips because he presented no evidence that ConocoPhillips ever owned, leased, occupied or controlled the Property, or had any legal or equitable interest in it.   In the FAC Cox alleged, on “information and belief,” that ConocoPhillips “is the parent and/or alter ego” of Douglas and “is joint and severally liable for the damages” Cox incurred.   Cox, however, presented no admissible evidence that Douglas was ConocoPhillips's alter ego.⁵  Although ConocoPhillips concedes that Douglas is a subsidiary company, this by itself does not make ConocoPhillips liable for Douglas's acts or omissions.   (Luis v. Orcutt Town Water Co. (1962) 204 Cal.App.2d 433, 443 [“It is not true that any wholly owned subsidiary is necessarily the alter ego of the parent corporation”].)   Furthermore, as we shall explain post, Cox failed to show that he was likely to prevail on his causes of action against Douglas.   Accordingly, there was absolutely no basis for the trial court to find that Cox would prevail on any of his causes of action against ConocoPhillips.

B. Private Nuisance and Public Nuisance

Cox's primary causes of action against Douglas and ConocoPhillips are for private nuisance and public nuisance.⁶  These claims are based on defendants' acts and omissions with respect to the underground storage tanks at the Property.   Cox contends that the tanks were installed on or before January 1, 1984, and that they contain hazardous materials.   He further alleges that Douglas and ConocoPhillips have failed to comply with Health and Safety Code section 25280 et seq.  (Underground Storage Law), which governs the underground storage of hazardous materials.

The main focus of Cox's argument is that these defendants have violated Health and Safety Code section 25292.   This statute provides that for every underground storage tank installed on or before January 1, 1984, and used for the storage of hazardous substances, the owner or operator of the tank shall take certain actions, including outfitting the tank with a monitoring system capable of detecting unauthorized releases of hazardous substances, providing a means for visual inspection of the tank system, and on or before December 22, 1998, replacing or upgrading the tank to prevent releases due to corrosion or spills.  (Health & Saf.Code, § 25292.)

Cox argues that under Health and Safety Code section 25292 the underground storage tanks at the Property are a nuisance per se whether or not they are actually leaking hazardous substances.   For reasons we shall explain, even if we assume, without deciding, that a violation of the Health and Safety Code section 25292 or some other provision of the Underground Storage Law constitutes a nuisance per se, Cox still cannot maintain a private nuisance or public nuisance cause of action against Douglas or ConocoPhillips.

Health and Safety Code section 25292 and other provisions of the Underground Storage Law require an “owner” and “operator” of underground storage tanks with hazardous materials to take certain action or refrain from certain action.  (See e.g., Health & Saf.Code, §§ 25280.6, 25284, 25284.2, 25286, 25287, 25289, 25292, 25292.2, 25292.3, 25292.4, 25292.5, 25295.)  “ ‘Owner’ means the owner of an underground storage tank.”  (Health & Saf.Code, § 25281, subd. (k).)  An operator is defined as “any person in control of, or having daily responsibility for, the daily operation of an underground storage tank system.”  (Health & Saf.Code, § 25281, subd. (j).)  Douglas and ConocoPhillips do not fall under either definition because they have no current connection to the Property and the underground storage tanks there.   The Underground Storage Law, including Health and Safety Code section 25292, thus does not on its face apply to Douglas and ConocoPhillips.

Moreover, the Underground Storage Law, including Health and Safety Code section 25292, was initially enacted in 1983 about two years after Douglas sold the Property.  (See Stats.1983, ch. 1046, §§ 1–6, pp. 3676–3691;  Stats.1984, ch. 1038, §§ 1–29, pp. 3597–3613.)   It was the intent of the Legislature in enacting the law “to establish orderly procedures that will ensure that newly constructed underground storage tanks meet appropriate standards and that existing tanks be properly maintained, inspected, tested, and upgraded so that the health, property, and resources of the people of the state will be protected.”  (Health & Saf.Code, § 25280, subd. (b).)  Nothing in the Underground Storage Law indicates that it was intended to place obligations on individuals or companies who have not owned or operated underground storage tanks with hazardous materials after the enactment of the statute in 1983.   We thus presume that the law operates prospectively only, and not retroactively.   (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475;  Velez v. Smith (2006) 142 Cal.App.4th 1154, 1169–1170, fn. 9.)

Cox correctly argues that a nuisance claim can be asserted not only against parties who maintain a nuisance but also against parties who create it.   (Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 746.)   Cox alleged in the FAC that Douglas and ConocoPhillips “created and/or continued” the nuisance.   He offered no admissible evidence, however, to support this contention.   There is no admissible evidence in the record, for example, regarding the existence of hazardous materials at the Property from 1964 to 1981, when Douglas owned it, or that such materials leaked during that period or at any time.⁷

Moreover, Cox failed to show that he had standing to pursue either a private nuisance or a public nuisance cause of action.  “[T]he essence of a private nuisance is its interference with the use and enjoyment of land.”  (Oliver v. AT & T Wireless Services (1999) 76 Cal.App.4th 521, 534.)   A private nuisance is defined by Civil Code section 3479, which provides:  “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”  (Italics added).   Thus, in order to prevail on a private nuisance cause of action, the plaintiff must prove, inter alia, that (1) the plaintiff owned, leased, occupied or controlled real property and (2) the defendant created a condition that interfered with the plaintiff's use or enjoyment of his or her land.  (CACI No.2021 (2011).)

Cox did not present any evidence that satisfied these elements.   Instead, Cox presented evidence that he had a security interest in the Property.   But Cox cites no authority, and we have found none, that supports his position that the holder of a deed of trust can maintain a private nuisance cause of action.   This is because a person with a security interest in real property does not “use and enjoy” real property, and thus lacks the kind of interest in real property that is protected by a private nuisance cause of action.  (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937 [a private nuisance is “a nontrespassory interference with the private use and enjoyment of land”];  Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 [an action for private nuisance “is designed to redress a substantial and unreasonable invasion of one's interest in the free use and enjoyment of one's property”].)

Cox's reliance on U.S. Financial v. Sullivan (1974) 37 Cal.App.3d 5 (U.S.Financial ) is misplaced.  U.S. Financial held that a mortgagee has standing to assert a negligence claim for impairment of its security interest.  (Id. at p. 17.)   The case did not involve an alleged nuisance, and thus lends no support to Cox's private nuisance cause of action.

Cox failed to prove he can maintain a public nuisance cause of action for similar reasons.  “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.”   (Civ.Code, § 3493.)   Cox presented no evidence that he was specially injured or injured at all by the alleged nuisance.   His only interest in the Property is the Deed of Trust.   This interest is inextricably intertwined with his interest in the Note. Only if the Current Owners fail to meet their obligations under the Note can Cox pursue a judicial or non-judicial foreclosure of the Property pursuant to the Deed of Trust.   Unfortunately for Cox, he cannot locate the Note and has no evidence of its terms and conditions.   As a result, he cannot prove when payments are due under the Note, whether any payments have been due since the Note was assigned to him, whether the Current Owners have defaulted, or the balance due, if any, under the Note.⁸ Further, Cox presented no evidence of the fair market value of the Property, with or without the alleged nuisance.   Thus, there is no way to determine whether the proceeds from a foreclosure sale of the Property will cover the balance due, if any, under the Note. Without this information, Cox cannot prove that the alleged nuisance has caused him any injury.

For all of these reasons, Cox did not meet his burden of showing it is likely that he will prevail on the merits of his private nuisance and public nuisance causes of action.

C. Negligence and Strict Liability

As stated, Cox asserted negligence and strict liability causes of action in the FAC against Douglas and ConocoPhillips.   The FAC alleged that Douglas and ConocoPhillips “manufactured, sold, installed, owned, controlled, and made operational use” of the underground storage tanks at the Property.   The FAC further alleged that Douglas and ConocoPhillips negligently failed to ensure that the tanks did not leak hazardous substances, that said defendants are strictly liable for the leakage of such substances, and that Cox sustained damages as a proximate result of the contamination of the Property.

In support of his motion for preliminary injunction, however, Cox provided no admissible evidence to support his negligence and strict liability claims against Douglas and ConocoPhillips.   Cox did not prove that hazardous substances leaked from the underground storage tanks or that there were hazardous substances in the tanks.   He also did not prove that he sustained any damages as a result of any acts or omissions by Douglas or ConocoPhillips.

Douglas and ConocoPhillips contend that Cox's negligence and strict liability causes of action are barred by the three-year statute of limitations.  (See Code Civ. Proc., § 338, subd. (b);  Mangini v. AeroJet–General Corp. (1991) 230 Cal.App.3d 1125, 1149 (Mangini ).)   We do not reach this issue because we hold, for the reasons stated, that Cox did not meet his burden of showing that he was likely to succeed on the merits of these causes of action.

D. Violation of Business and Professions Code section 17200

Cox also failed to meet his burden of showing he was likely to succeed on the merits of his unfair competition cause of action.  Business and Professions Code section 17200 (section 17200) provides in relevant part that “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice ․”  (Italics added).  “Our Supreme Court has held that ‘practice’ requires, at a minimum, ongoing conduct.”  (Mangini, supra, 230 Cal.App.3d at pp. 1155–1156.)  “Relief under section 17200 is unavailable to remedy past misconduct.”  (Mangini, at p. 1156.)

Here, the alleged misconduct of Douglas and ConocoPhillips occurred 30 or more years ago.   Therefore, section 17200 affords no remedy for the misconduct.   (Mangini, supra, 230 Cal.App.3d at p. 1156.)

2. The Trial Court Did Not Abuse Its Discretion by Impliedly Finding That the Balance of Harms Weighed Against Issuing a Preliminary Injunction

As stated ante, the second factor the trial court was required to consider was the interim harm that Cox was likely to sustain in the absence of a preliminary injunction as compared to the interim harm Douglas and ConocoPhillips were likely to suffer as a result of a preliminary injunction.   This factor encompasses such things as whether Cox would suffer irreparable injury, the adequacy of Cox's remedy at law, and the preservation of the status quo.   Although the trial court did not expressly rule on the second factor, it stated that it denied the motion for the reasons stated in the opposition brief submitted by Douglas and ConocoPhillips.   Because the opposition brief discussed the second factor, we presume that the trial court found that Cox failed to meet its burden with respect to this factor.  (Denham, supra, 2 Cal.3d at p. 564 [the trial court's order is presumed correct and all presumptions are indulged to support it on matters as to which the record is silent].)

A. Irreparable Injury

A preliminary injunction may be granted when a party will suffer irreparable injury if the injunction is not granted.  (Code Civ. Proc., § 526, subd. (a)(2).)  “An ‘irreparable injury’ is sometimes considered a requirement for preliminary injunctive relief.”  (People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 118 Cal.App.3d 863, 870–871.)   In this case, Cox failed to show that he would suffer irreparable injury if the proposed mandatory injunction were not issued.   Indeed, as discussed ante, Cox failed to show that he would suffer any injury at all without an injunction.

Cox contends that he does not need to show irreparable injury to obtain a preliminary injunction.   He basis this contention on Health and Safety Code section 25299.04, which provides:  “In any civil action brought pursuant to this chapter [i.e. the Underground Storage Law] in which a temporary restraining order, or preliminary injunction, or permanent injunction is sought, it is not necessary to allege or prove at any state of the proceeding that irreparable damage will occur should the temporary restraining order, preliminary injunction, or permanent injunction not be issued or that the remedy at law is inadequate.   The temporary restraining order, preliminary injunction, or permanent injunction shall be issued without these allegations and without this proof.”  (Italics added).

Cox, however, does not have standing to seek an injunction pursuant to the Underground Storage Law. Health and Safety Code section 25299.01 provides that “the city attorney of the city in which the acts or practices occur, occurred, or will occur, the district attorney of the county in which the acts or practices occur, occurred, or will occur, or the Attorney General” may seek an order enjoining acts or practices that violate the Underground Storage Law. But nothing in the Underground Storage Law permits a private person with a security interest in real property to pursue such an injunction.   Cox therefore is not relieved from showing irreparable injury pursuant Health and Safety Code section 25299.04.

B. Adequate Remedy at Law

The trial court was also required to consider whether pecuniary compensation would afford Cox adequate relief, that is, whether he had an adequate remedy at law.  (Code Civ. Proc., § 526, subd. (a)(4).)   Here, Cox's interest in the Property was solely financial.   He did not show that he could not be made whole by obtaining monetary damages, if indeed he suffered any, from defendants.

C. Preservation of the Status Quo

The “general purpose” of a preliminary injunction “is the preservation of the status quo until a final determination of the merits of the action.”   (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.)   Cox, however, did not show that a preliminary injunction would have preserved the status quo.   To the contrary, the proposed preliminary injunction would have given him much of the ultimate relief he sought.   This, too, weighed against issuing a preliminary injunction.

D. Interim Harm to Douglas and ConocoPhillips

If the trial court issued a preliminary injunction, it would have caused Douglas and ConocoPhillips to spend a significant amount of money and time dealing with a potentially serious environmental problem at a site Douglas has not owned in 30 years and ConocoPhillips has never had an interest in.   To comply with relatively complex state and federal environmental laws and regulations, Douglas and ConocoPhillips in all likelihood would have been compelled to incur the costs associated with environmental engineers and experts, additional legal work, and remediation measures.   Their task would have been further complicated by the apparent lack of cooperation of the Current Owners, who abandoned the Property long ago.

In sum, the balance of harms and equities weighed heavily in favor of denying Cox's motion for preliminary injunction.   Thus, apart from Cox's failure to show a likelihood of prevailing on the merits, the trial court had good reason to decline granting Cox provisional injunctive relief.   We therefore hold that the trial court did not abuse its discretion in denying Cox's motion.

DISPOSITION

The order denying appellant Cox's motion for preliminary injunction is affirmed.   Respondents Douglas and ConocoPhillips are awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The FAC also set forth a judicial foreclosure cause of action against the Current Owners and four defendants with liens on the Property, namely Lynk Systems, Inc., Portfolio Recovery Associates, LLC, Capital One Bank, Professional Collection Consultants (the Lien Holders), as well as other causes of action against the Current Owners.   The Lien Holders are not parties to this appeal..  FN1. The FAC also set forth a judicial foreclosure cause of action against the Current Owners and four defendants with liens on the Property, namely Lynk Systems, Inc., Portfolio Recovery Associates, LLC, Capital One Bank, Professional Collection Consultants (the Lien Holders), as well as other causes of action against the Current Owners.   The Lien Holders are not parties to this appeal.

FN2. As we shall explain post, Health and Safety Code section 25292 requires owners and operators of underground storage tanks containing hazardous substances installed on or before January 1, 1984, to take certain actions to ensure against the discharge of such substances.   Health and Safety Code section 25298 governs the abandonment and closure of underground storage tanks systems with hazardous materials..  FN2. As we shall explain post, Health and Safety Code section 25292 requires owners and operators of underground storage tanks containing hazardous substances installed on or before January 1, 1984, to take certain actions to ensure against the discharge of such substances.   Health and Safety Code section 25298 governs the abandonment and closure of underground storage tanks systems with hazardous materials.

FN3. Cox contends that the trial court did not rule on the evidentiary objections.   Even if that is true, Douglas and ConocoPhillips did not waive their objections on appeal.  (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517.).  FN3. Cox contends that the trial court did not rule on the evidentiary objections.   Even if that is true, Douglas and ConocoPhillips did not waive their objections on appeal.  (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517.)

FN4. The trial court's minute order states that the motion is denied “as to” Douglas and ConocoPhillips but does not mention the Current Owners.   The transcript of the hearing, however, indicates that the trial court declined to grant the motion with respect to the Current Owners..  FN4. The trial court's minute order states that the motion is denied “as to” Douglas and ConocoPhillips but does not mention the Current Owners.   The transcript of the hearing, however, indicates that the trial court declined to grant the motion with respect to the Current Owners.

FN5. In his declaration Cox stated:  “I believe Defendants Douglas Oil and ConocoPhillips ․ are one and the same, as Douglas Oil is a wholly owned subsidiary of ConocoPhillips.”   Douglas and ConocoPhillips objected to this statement on the ground that Cox failed to establish a foundation for his personal knowledge of these facts.   This objection is well taken.   (Evid.Code, § 702)..  FN5. In his declaration Cox stated:  “I believe Defendants Douglas Oil and ConocoPhillips ․ are one and the same, as Douglas Oil is a wholly owned subsidiary of ConocoPhillips.”   Douglas and ConocoPhillips objected to this statement on the ground that Cox failed to establish a foundation for his personal knowledge of these facts.   This objection is well taken.   (Evid.Code, § 702).

FN6. “Nuisances that affect the entire community or a considerable number of persons are public nuisances [citations];  all other[ ] nuisances are private nuisances [citation].”  (13 Witkin, Summary of Cal. Law (2005 10th ed.)  Equity, § 133, p. 454.).  FN6. “Nuisances that affect the entire community or a considerable number of persons are public nuisances [citations];  all other[ ] nuisances are private nuisances [citation].”  (13 Witkin, Summary of Cal. Law (2005 10th ed.)  Equity, § 133, p. 454.)

FN7. Cox stated in his declaration that he believed Douglas and ConocoPhillips installed the underground storage tanks at the Property and, based on unspecified documents, operated a service station there.   Respondents objected to Cox's assertions on the grounds that Cox lacked personal knowledge of the matter and that statements made in unspecified out-of-court documents were inadmissible under the hearsay rule.   We find these objections meritorious.  (Evid.Code, §§ 702, 1200.).  FN7. Cox stated in his declaration that he believed Douglas and ConocoPhillips installed the underground storage tanks at the Property and, based on unspecified documents, operated a service station there.   Respondents objected to Cox's assertions on the grounds that Cox lacked personal knowledge of the matter and that statements made in unspecified out-of-court documents were inadmissible under the hearsay rule.   We find these objections meritorious.  (Evid.Code, §§ 702, 1200.)

FN8. There is an issue as to whether Cox is even the holder of the Note because he may not be in “possession” of it.  (Cal.U.Com.Code, § 1201, subd. (21), italics added.).  FN8. There is an issue as to whether Cox is even the holder of the Note because he may not be in “possession” of it.  (Cal.U.Com.Code, § 1201, subd. (21), italics added.)

CROSKEY, Acting P. J. ALDRICH, J.