Gesualdi v. S. Di Fazio & Sons Constr., Inc.

United States District Court for the Eastern District of New York

December 12, 2017, Decided; December 12, 2017, Filed

16-CV-5209 (SJF) (ARL)

 

Reporter

2017 U.S. Dist. LEXIS 205202 *

THOMAS GESUALDI, et al., Plaintiffs, -against- S. DI FAZIO AND SONS CONSTRUCTION, INC., et al., Defendants.

Counsel:  [*1] For Thomas Gesualdi, Louis Bisignano, Anthony D’Aquila, Michael O’Toole, Michael Bourgal, Frank H. Finkel, Joseph A. Ferrara, Sr., Marc Herbst, Denise Richardson, Thomas Corbett, as Trustees and fiduciaries of the Local 282 Welfare Trust Fund, the Local 282 Pension Trust Fund, the Local 282 Annuity Trust Fund, the Local 282 Job Training Trust Fund, and the Local 282 Vacation and Sick Leave Trust Fund., Plaintiffs: Arthur Joseph Muller, Jonathan Michael Bardavid, LEAD ATTORNEYS, Trivella & Forte LLP, White Plains, NY; Christopher A. Smith, LEAD ATTORNEY, Trivella, Forte & Smith, LLP, White Plains, NY.

For S. Di Fazio and Sons Construction, Inc., doing business as DiFazio Environmental Services, Defendant: Richard B. Ziskin, LEAD ATTORNEY, The Ziskin Law Firm, LLP, Commack, NY.

For DiFazio Ind., LLC, doing business as DiFazio Industries, DiFazio Industries, Inc., Defendants: Charles N. Internicola, LEAD ATTORNEY, The Internicola Law Firm, P.C., Staten Island, NY.

For Faztec Industries, Inc., Defendant: Peter R. Sullivan, Sullivan Gardner, New York, NY.

For West Shore Trucking, Inc., jointly and severally, Defendant: Gerald V. Dandeneau, Dandeneau & Lott, Melville, NY.

Judges: ARLENE R. LINDSAY, United [*2]  States Magistrate Judge.

Opinion by: ARLENE R. LINDSAY

Opinion

 

 

 

REPORT AND RECOMMENDATION

LINDSAY, Magistrate Judge:

Plaintiffs Thomas Gesualdi; Louis Bisignano; Anthony D’Aquila; Michael O’Toole; Michael Bourgal; Frank H. Finkel; Joseph A. Ferrara, Sr.; Marc Herbst; Denise Richardson; and Thomas Corbett (collectively, “Plaintiffs”) are Trustees and fiduciaries of the Local 282 Welfare Trust Fund; the Local 282 Pension Trust Fund; the Local 282 Annuity Trust Fund; the Local 282 Job Training Trust Fund; and the Local 282 Vacation and Sick Leave Trust Fund. Plaintiffs bring this action against defendants (1) S. Di Fazio and Sons Construction, Inc. d/b/a DiFazio Environmental Services (“DiFazio Environmental”); (2) DiFazio Ind., LLC d/b/a DiFazio Industries (“DiFazio LLC”) and DiFazio Industries, Inc. (“DiFazio Inc.”) (DiFazio LLC and DiFazio Inc. collectively referred to as “DiFazio Industries”); (3) Faztec Industries, Inc. (“Faztec”); and (4) West Shore Trucking, Inc. (“West Shore”) (collectively, “Defendants”) to collect delinquent employer contributions pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1132(a)(3) and 1145 and the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 185. Before the Court, on referral [*3]  from District Judge Feuerstein, are: (1) the joint motion by defendants DiFazio Environmental; DiFazio Industries; and Faztec for judgment on the pleadings pursuant to Federal Rule of Civil Procedure (“Rule”) 12(c); and (2) the motion by defendant West Shore for judgment on the pleadings pursuant to Rule 12(c).1 For the reasons stated below, the Court respectfully reports and recommends that the motions be denied in part and granted in part.

 

BACKGROUND

 

1. The Complaint

The following facts are drawn from the complaint. DiFazio Environmental — an “Employer” within the meaning of ERISA — is engaged in the business of trucking and was at all relevant times a signatory to a series of collective bargaining agreements (“CBAs”) with Local 282. Compl. ¶¶ 11, 13, 34, 84. The CBAs establish the terms and conditions of employment for “all drivers who are employed by the Employer.” Id. ¶ 35. The CBAs expressly provide that the Employer is bound to the Trust Agreement and incorporate the Trust Agreement by reference into the CBAs. Id. ¶ 36. The CBAs, together with the Trust Agreement, require employers to contribute to the Funds, on behalf of workers who performed work covered by the CBAs, at specified rates for each hour of covered work. Id. ¶ 38. The most [*4]  recent contract between DiFazio Environmental and Local 282 covers the period 2012-2016. Id. ¶ 34. Copies of the most recent CBAs between DiFazio Environmental and Local 282 are attached as Exhibits 2 and 3 to the March 20, 2017 Declaration of Peter Sullivan (“Sullivan Decl.”), ECF Nos. 55-4 and 55-5.2

Plaintiffs, the trustees of several employee benefit plans, allege that Defendants constitute a single employer, are alter egos of one another and/or are double breasted entities, such that all Defendants are bound by CBAs to which only DiFazio Environmental is a signatory. More specifically, the complaint alleges that Defendants engaged in a scheme to evade paying contributions to the Funds whereby DiFazio Environmental, DiFazio Industries, Faztec and West Shore all performed covered trucking services at the direction of DeFazio Industries, but the only hours of covered work which were reported to the Plaintiffs and for which contributions were remitted were the hours performed by signatory DiFazio Environmental. Id. ¶¶ 49-56, 72-74, 80. As such, Plaintiffs claim that all Defendants are jointly and severally liable to Plaintiffs for delinquent employer contributions.

 

1. Procedural History [*5]

Plaintiffs commenced this action on September 16, 2016. The complaint asserts four causes of action: (1) breach of contract for unpaid contributions allegedly due from all Defendants under § 502(g) of ERISA, 29 U.S.C. § 1132(g)(2); (2) breach of contract for unpaid contributions under § 301 LMRA, 29 U.S.C. § 185; (3) fraud by all Defendants based on Defendants’ alleged misrepresentations regarding hours worked in covered employment; and (4) an Order against all Defendants compelling a payroll audit. The complaint seeks damages as well as declaratory and injunctive relief.

On March 6, 2017, defendants DiFazio Environmental, DiFazio Industries and Faztec served a motion for partial summary judgment and judgment on the pleadings on Plaintiffs. ECF No. 48. By Order dated March 20, 2017, Judge Feuerstein ruled that “any motions for summary judgment that defendants have served upon plaintiffs are denied as premature without prejudice to refiling upon the close of discovery.” ECF No. 47. Thereafter, defendants DiFazio Environmental, DiFazio Industries and Faztec amended their motion to convert their arguments for summary judgment into arguments for dismissal under Rule 12(c). ECF No. 48. Defendants DiFazio Environmental, DiFazio Industries and Faztec filed their [*6]  fully briefed motion for judgment on the pleadings on April 13, 2017. ECF No. 55. The motion was referred to the undersigned on April 14, 2017. West Shore filed its fully briefed motion for judgment on the pleadings on April 25, 2017. ECF No. 61. The motion was referred to the undersigned on May 2, 2017.

 

DISCUSSION

 

1. Standard of Review

A motion for judgment on the pleadings under Rule 12(c) is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). See Hogan v. Fischer, 738 F.3d 509, 514-15 (2d Cir. 2013). The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), in which the court set forth a two-pronged approach to be utilized in analyzing a motion to dismiss. District courts are to first “identify [ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. Though “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable [*7]  inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a [d]efendant has acted unlawfully.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citations omitted)).).

 

1. Analysis

 

1. Materials the Court may Consider on this Rule 12(c) Motion

“The purpose of Rule 12(b)(6) [or Rule 12(c)] is to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for relief without resolving a contest regarding its substantive merits. The Rule thus assesses the legal feasibility of the complaint, but does not weigh the evidence that might be offered to support it.” Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). Thus, in adjudicating a motion under Rule 12(c), “a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated by reference, and to matters of which judicial notice may be taken.” Serdarevic v. Centex Homes, LLC, 760 F. Supp. 2d 322, 328 (S.D.N.Y. 2010) (citation and internal quotation marks omitted); see Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). In addition, “in some cases, a document not expressly incorporated by reference in the complaint is nevertheless ‘integral’ to the complaint and, accordingly, a fair object of consideration on a motion to dismiss.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). “A document is integral [*8]  to the complaint ‘where the complaint relies heavily upon its terms and effect.'” Id. (citation and internal quotation marks omitted). “Merely mentioning a document in the complaint will not satisfy this standard; indeed, even offering ‘limited quotation[s]’ from the document is not enough.” Id. (quoting Global Network, 458 F.3d at 156). “‘In most instances where this exception is recognized, the incorporated material is a contract or other legal document containing obligations upon which the plaintiff’s complaint stands or falls, but which for some reason — usually because the document, read in its entirety, would undermine the legitimacy of the plaintiff’s claim — was not attached to the complaint.” Id. (quoting Global Network, 458 F.3d at 157)). In addition, “‘[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.'” Global Network, 458 F.3d at 157 (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)).

In support of their motions, Defendants rely on several documents outside of the complaint.3 For example, West Shore relies on the declaration of its principal, Joseph Eugenio, and the declaration of Gerald S. Dandeneau, attorney of record for West Shore. To the extent these [*9]  declarations raise matters outside of the complaint which are not integral thereto, the Court will not consider them. See Goel, 820 F.3d at 559-60 (finding that affidavit which was not integral to the complaint could not be considered on motion to dismiss).

The Defendants also submit several CBAs. The CBAs between Local 282 and DiFazio Environmental are obviously integral to the complaint since this action seeks to recover contributions due thereunder; accordingly, the Court will consider them. The CBA between Faztec and Local 447 as well as the CBA between West Shore and Local 447, however, are not referenced in the complaint and are not integral thereto. Although Defendants argue that these CBAs preclude the instant claims against West Shore and Faztec because they conflict with Defendants’ purported obligations under Local 282’s CBAs, the Local 447 CBAs were neither mentioned nor relied upon by Plaintiffs in drafting the complaint. Moreover, they open the door to further factual inquiry which is inappropriate at this procedural posture.

Lastly, Defendants rely on several documents emanating out of a 2009 litigation in this District (the “2009 Action”) in which Plaintiffs sued DiFazio Environmental for unpaid [*10]  contributions allegedly owed under a CBA between DiFazio Environmental and Local 282 for work performed by Faztec, alleging that Faztec was an “affiliated company” of DiFazio Environmental. These documents include (1) the complaint filed in the 2009 Action; (2) a Stipulation and Order of Settlement filed in the 2009 Action which was so ordered by District Judge Gleeson on June 6, 2011 and contains a release; and (3) a July 2, 2012 agreement between DiFazio Environmental and Local 282 wherein Local 282 acknowledges the 2011 Stipulation and agrees that as of the date of the agreement, there is no evidence of double breasting, alter ego, affiliate, or single employer status between DiFazio Environmental, DiFazio Industries and Faztec. Although the complaint in this action does not attach, mention, rely or incorporate by reference any of these documents, because the complaint and Stipulation are publically filed court documents, the Court can take judicial notice of them. See Berlin v. Meijias, No. 15-CV-5308, 2017 U.S. Dist. LEXIS 162417, 2017 WL 4402457, at *3 (E.D.N.Y. Sept. 30, 2017) (“On a motion to dismiss, the Court may take judicial notice of public records, such as state court proceedings.”) (quoting Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004)); see also Ranta v. City of New York, No. 14-CV-3794, 2015 U.S. Dist. LEXIS 137178, 2015 WL 5821658, at *9 (E.D.N.Y. Sept. 30, 2015) (“[A] court may take judicial notice of a general release and consider it on [*11]  a motion to dismiss where the general release has been filed with a court and is a matter of public record.”) (citation and internal quotation marks omitted); Waters v. Douglas, No. 12 Civ. 1910, 2012 U.S. Dist. LEXIS 165151, 2012 WL 5834919, at *2 (S.D.N.Y. Nov. 14, 2012) (“Publicly filed stipulations of settlement are subject to judicial notice.”). The 2012 agreement, however, was not publically filed and is not integral to the complaint and will not be considered.

 

1. Whether the Instant Claims are Barred by the Release from the 2009 Action

On August 21, 2009, Plaintiffs brought an action against DiFazio Environmental for unpaid contributions allegedly owed under the CBA for work performed by Faztec, alleging that Faztec was an “affiliated company” of DiFazio Environmental. Ferrara v. S. Di Fazio and Sons Constr. Corp., No. 09-CV-3649 (JG) (E.D.N.Y. 2009). A copy of the 2009 complaint is attached to the Sullivan Decl. as Exhibit 4, ECF No. 55-6.4 Two years later, on June 1, 2011, the parties reached a settlement. A copy of the Stipulation and Order of Settlement, which was so ordered by District Judge Gleeson on June 6, 2011, is attached to the Sullivan Decl. as Exhibit 5, ECF No. 55-7 (the “2011 Stipulation”). According to the 2011 Stipulation, Plaintiffs determined to withdraw their claim with [*12]  prejudice that:

DiFazio [Environmental] and Faztec are affiliates, as defined in the Trust Agreement; that DiFazio [Environmental] and Faztec are otherwise affiliates such that Faztec may be obligated under DiFazio[ Environmental’s] Teamster collective bargaining agreement; that DiFazio [Environmental] may otherwise be responsible to Plaintiffs for Faztec’s operations; or that Faztec may otherwise be responsible for DiFazio[ Environmental’s] obligations to Plaintiffs.

2011 Stipulation at 2-3. The Stipulation contained a release (the “Release”), which provides in pertinent part as follows:

[t]he Trustees and their successors and assigns, and, collectively, their past, present and future trustees, fiduciaries, administrators, employees, agents, and representatives (“Releasors”) discharge and release all claims, obligations, demands and judgments, causes of action and charges, of whatever kind or nature, whether known or unknown, which they now may have against: DiFazio [Environmental] and Faztec and each of their owners, officers, directors, employees, shareholders, affiliates, agents or any of their successors or assigns (“Releasees”) for all periods prior to August 31, 2008. For periods up [*13]  to the date of this Stipulation, Releasors specifically release Releasees from any claim, obligation, demand, judgment, cause of action or charge of whatever kind, whether known or unknown, which they now have that Faztec is an alter ego, single employer, controlled group member or is otherwise affiliated with DiFazio [Environmental] such that Faztec is responsible for any benefit fund contribution, delinquency liability or obligated under any labor agreement between DiFazio [Environmental] and Teamsters Local 282 or any trust document attendant thereto. Releasees expressly acknowledge that Faztec is a separate corporation which shall not be deemed liable, in any of the aforementioned regards or otherwise, for the obligations of DiFazio [Environmental]. . . .

Id. ¶ 3.

It is undisputed that the first part of the Release — which explicitly releases both DiFazio Environmental and Faztec from all claims for all periods prior to August 31, 2008 — does exactly what it purports to do, viz. release both of these Defendants for all claims for this pre-August 31, 2008 time period. Plaintiffs, however, concede that they are not asserting any claim for unpaid contributions which may have accrued [*14]  prior to August 31, 2008. See ECF No. 55-10 at 9.

The next part of the Release is in dispute and provides, in pertinent part, as follows: “For periods up to the date of this Stipulation,” viz. June 1, 2011, Plaintiffs release DiFazio Environmental, Faztec and all of their affiliates from any claim “that Faztec is an alter ego, single employer, controlled group member or is otherwise affiliated with DiFazio [Environmental] such that Faztec is responsible for any . . . contribution . . . under any labor agreement between” DiFazio Environmental and Local 282. Release ¶ 3. It further provides that Plaintiffs “expressly acknowledge that Faztec is a separate corporation which shall not be deemed liable, in any of the aforementioned regards or otherwise, for the obligations of DiFazio [Environmental].” Id. While Plaintiffs agree that this language releases Faztec for any September 1, 2008 — June 1, 2011 delinquency, they contend that this language does not release any claims for contribution as against any Defendant other than Faztec for this time period. ECF No. 55-10 at 10. The Court agrees. By its plain language, the Release for this time period is limited to all claims against DiFazio [*15]  Environmental and Faztec that Faztec is liable for DiFazio Environmental’s obligations.5 The Release does not release DiFazio Environmental for contributions post-August 31, 2008. This interpretation is consistent with the rest of the 2011 Stipulation which provides: (1) a general release for all claims against DiFazio Environmental and Faztec only for periods prior to August 31, 2008, Stipulation ¶ 3; (2) that an audit of DiFazio Environmental’s books and records from September 1, 2007 — August 31, 2008 reflect contributions due and owing limited to that time period, id. at 2; and (3) a mutual release whereby DiFazio Environmental releases Plaintiffs from claims for covered work performed by DiFazio Environmental only for the period August 1, 2007 — August 31, 2008 but releases Plaintiffs from “any claims concerning DiFazio [Environmental’s] relationship with Faztec,” through the date of the Stipulation,”id. ¶ 5.

As for the remaining Defendants, the Court cannot state as a matter of law that the Release applies to West Shore and DiFazio Industries for post-August 31, 2008 delinquencies because they are affiliates of Faztec and/or DiFazio Environmental. Although the Release defines “Releasees” [*16]  to include “affiliates” of either DiFazio Environmental and Faztec, as noted above, the post-August 31, 2008 Release is limited to claims that Faztec is liable for DiFazio Environmental’s obligations. Moreover, there is no mention of either DiFazio Industries or West Shore in the Release. Thus, even if the Release was not so limited, whether these Defendants are “affiliates” is not sufficiently clear from the face of the Release so as to warrant a Rule 12(c) dismissal. See Peterson v. Regina, 935 F. Supp. 2d 628, 635 (S.D.N.Y. 2013) (“[C]ourts must look to the language of a release — the words used by the parties — to determine their intent, resorting to extrinsic evidence only when the court concludes as a matter of law that the contract is ambiguous.”).6

In sum, the Court finds that Plaintiffs’ claims against Faztec for unpaid contributions accruing from September 1, 2008 – June 1, 2011 are barred by the Release. Accordingly, the Court respectfully reports and recommends dismissal of Plaintiffs’ claims against Faztec to the extent they seek to recover for delinquent contributions accruing pre-June 1, 2011.7

 

1. Whether Plaintiffs’ pre-2011 Claims are Barred by Res Judicata

Defendants also argue that in addition to the claims expressly released by the 2011 Release, [*17]  Plaintiffs’ pre-2011 claims against DiFazio Environmental and Faztec are also barred by res judicata because they were litigated or could have been litigated in the 2009 Action. Because the Court has already found that all claims for contributions for the period of September 1, 2008 – June 1, 2011 are barred as against Faztec under the Release, the Court need not address this argument as to Faztec.8

As for DiFazio Environmental, Plaintiffs argue that the doctrine of res judicata “does not operate to bar Plaintiffs’ claims through the date the settlement agreement was executed.” See ECF No. 55-10 at 13. Rather, Plaintiffs contend, the “operative date to determine preclusion is the date the [2009] action [wa]s commenced — not when it [wa]s settled or otherwise disposed of.” Id. Plaintiffs are correct.

Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014) (internal citation and quotation marks omitted). “Claims arising subsequent to a prior action, based on conduct occurring after the commencement of the earlier suit, and sufficient [*18]  to state a cause of action without the need to incorporate facts preceding the first suit need not, and often perhaps could not, have been brought in that prior action, and so are not barred by res judicata regardless of whether they are premised on facts representing a continuance of the same course of conduct.” Id. at 500 (citation and internal quotation marks omitted) (emphasis added). “If a defendant engages in actionable conduct after a lawsuit is commenced, the plaintiff may seek leave to file a supplemental pleading [under Rule 15(c)] to assert a claim based on the subsequent conduct. But the plaintiff is not required to do so, and his election not to do so is not penalized by application of res judicata to bar a later suit on that subsequent conduct.” Id. at 501 (citation and internal quotation marks omitted). In TechnoMarine, the Second Circuit clarified that “the res judicata bar is normally inoperative with regard to the defendant’s actionable conduct occurring after an earlier suit commences, provided that the plaintiff does not act to bring post-commencement claims within the scope of his earlier suit.” Id. at 502 n.7 (emphasis in original). Although the court held that in that case that “the operative date for [*19]  res judicata purposes [wa]s the date of the settlement,” the court explained that was only the case because there, unlike here, “the parties’ Settlement Agreement br[ought] within its ambit (and thus the ambit of the first litigation) claims existing as of the date of settlement.” Id. (citing Greenberg v. Bd. of Governors of Fed. Reserve Sys, 968 F.2d 164, 169 (2d Cir. 1992) (noting that a settlement agreement “can only have the preclusive [e]ffect that the parties to the settlement intended to give it”)).

Here, the 2009 Action was filed on August 21, 2009. Thus, the Court finds that res judicata bars Plaintiffs’ claims against DiFazio Environmental for the period up to August 21, 2009, and not June 1, 2011 as urged by Defendants. However, as noted above, the complaint, seeks contributions for the six-year period prior to the commencement of this action, viz. September 16, 2010 – September 16, 2016. Thus, the doctrine of res judicata does not operate here to bar any of Plaintiffs’ claims against DiFazio Environmental.

As for the remaining Defendants which were not parties to the 2009 Action, i.e., West Shore and DiFazio Industries, although “the principle of privity bars relitigation of the same cause of action against a new defendant known by a plaintiff at the time of the first suit where [*20]  the new defendant has a sufficiently close relationship to the original defendant to justify preclusion,” Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995), the Court cannot resolve that issue on this Rule 12(c) motion. See TechnoMarine, 758 F.3d at 498 (“A court may consider a res judicata defense on a Rule 12(b)(6) motion to dismiss when the court’s inquiry is limited to the plaintiff’s complaint, documents attached or incorporated therein, and materials appropriate for judicial notice.”). Moreover, even assuming privity was present, as noted above, res judicata would only operate to bar pre-August 21, 2008 claims and no such claims are asserted in the present action. Accordingly, to the extent Defendants move to dismiss the complaint on the grounds that West Shore and DiFazio Industries are in privity with Faztec or DiFazio Environmental, the Court respectfully reports and recommends that Defendants’ motion be denied.

 

1. West Shore and Faztec’s CBAs with Local 447

Both Faztec and West Shore move for dismissal on the grounds that they are signatories to CBAs with a different union, Local 447, requiring them to pay benefit contributions to the Local 447 benefit funds. According to Defendants, Plaintiffs’ argument would have them exposed to conflicting CBAs that purport to impose a [*21]  duty to “double pay” for the same job. In response, Plaintiffs argue, inter alia, that Defendants rely on facts outside of the complaint — that West Shore and Faztec used only Local 447 members as truckers and that they actually paid into the Local 447 funds. Because the Court has already found that the Local 447 CBAs are outside the purview of the Court’s review on this Rule 12(c) motion, and because this argument raises factual issues, the Court reports and recommends that this branch of Defendants’ motion be denied.

 

1. Plaintiffs’ Claims of Affiliate Liability

Plaintiffs allege that Defendants constitute a single employer, are alter egos of one another and/or are double breasted entities such that all Defendants are jointly and severally liable for unpaid fringe benefit contributions owed to Plaintiffs. Defendants argue that these claims should be dismissed because the complaint fails to allege nonconclusory facts to support these theories of affiliate liability.

 

1. The Single Employer Doctrine

Under the single employer doctrine, a collective bargaining agreement binding on one employer may be enforced against a non-signatory employer if (1) the two employers constitute a “single employer” and [*22]  (2) the employees of the companies constitute a single appropriate bargaining unit. See Brown v. Sandimo Materials, 250 F.3d 120, 128 n.2 (2d Cir. 2001). “Separate companies are considered a single employer if they are part of a single integrated enterprise.” Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996) (citation and internal quotation marks omitted). In determining whether two entities constitute a “single employer,” courts examine four factors enumerated by the Supreme Court: “[1] interrelation of operations, [2] common management, [3] centralized control of labor relations, and [4] common ownership.” See Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 13 L. Ed. 2d 789 (1965) (per curiam); see also Brown, 250 F.3d at 128 n.2. In the Second Circuit, two additional factors are relevant: “the use of common office facilities and equipment and family connections between or among the various enterprises.” Lihli Fashions, 80 F.3d at 747. No single factor is dispositive and not every factor need be present. Id. “Ultimately, single employer status depends on all the circumstances of the case and is characterized by absence of an arm’s length relationship found among unintegrated companies.” Id. (citation and internal quotation marks omitted). Whether two companies constitute a single employer is a question of fact. Id.

A finding that separate companies are a “single employer is not enough to bind all the separate companies [*23]  to the collective bargaining agreements of any one of the companies.” Lihli, 80 F.3d at 747. To hold one company to a collective bargaining agreement made by another company, it must also be shown that they “represent an appropriate employee bargaining unit.” Id. “When assessing the appropriate bargaining unit, attention ‘shifts from the control, structure and ownership of the employer to the community of interests of the employees.'” Ferrara v. Oakfield Leasing Inc., 904 F. Supp. 2d 249, 264 (E.D.NY. 2012) (quoting Cuyahoga Wrecking Corp. v. Laborers Int’l Union of North Am., 644 F. Supp. 878, 882 (W.D.N.Y. 1986)). “‘The reason for the appropriate bargaining unit requirement is to protect the rights of non-union employees to representatives of their choice, or to not have union representation at all.'” Id. (quoting LaBarbera v. C. Volante Corp., 164 F. Supp. 2d 321, 326 (E.D.N.Y. 2001). In determining whether companies constitute an appropriate bargaining unit, courts look for a “‘community of interests’ among the relevant employees, and ‘factors such as bargaining history, operational integration, geographic proximity, common supervision, similarity in job function and degree of employee interchange.'” Ferrera v. Professional Players Corp., No. 11-CV-1433, 2013 U.S. Dist. LEXIS 45944, 2013 WL 1210522, at *4 (E.D.N.Y. Feb. 15, 2013) (quoting La Barbera v. Les Sub—Surface Plumbing, Inc., No. 06—CV—3343, 2008 U.S. Dist. LEXIS 27047, 2008 WL 906695, at *4 (E.D.N.Y. Apr. 3, 2008)), report and recommendation adopted by, 2013 U.S. Dist. LEXIS 40907, 2013 WL 1212816 (E.D.N.Y. Mar. 23, 2013).

 

2. The Alter Ego Doctrine

“The alter ego doctrine, while having the same binding effect on a non-signatory as the single employer/single [*24]  unit doctrine, is conceptually distinct.” Truck Drivers Local Union No. 807 v. Reg’l Import & Export Trucking Co., 944 F.2d 1037, 1046 (2d Cir. 1991). “The purpose of the alter ego doctrine in the ERISA context is to prevent an employer from evading its obligations under the labor laws ‘through a sham transaction or technical change in operations.'” Ret. Plan of UNITE HERE Nat’l Ret. Fund v. Kombassan Holding A.S., 629 F.3d 282, 288 (2d Cir. 2010) (quoting Newspaper Guild of N.Y. v. NLRB, 261 F.3d 291, 298 (2d Cir. 2001)). Specifically, “‘ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans and to protect contractually defined benefits.'” Id. (quoting Leddy v. Standard Drywall, Inc., 875 F.2d 383, 388 (2d Cir. 1989)). Thus, “[t]o protect employee benefits, courts observe ‘a general federal policy of piercing the corporate veil when necessary.'” Id. (quoting N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 647 (2d Cir. 2005)).

According to the Second Circuit, “‘the test of alter ego status is flexible,’ allowing courts to ‘weigh the circumstances of the individual case,’ while recognizing that the following factors are important: ‘whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision, and ownership.'” Id. (quoting Goodman Piping Prods., Inc. v. NLRB, 741 F.2d 10, 11 (2d Cir. 1984)). “Although perhaps a ‘germane’ or ‘sufficient basis for imposing alter ego status,’ an ‘anti-union animus or an intent to evade union obligations’ is not a necessary factor.” Id. (quoting Goodman, 741 F.2d at 12). In addition, “‘[a]lthough the alter ego doctrine is primarily applied [*25]  in situations involving successor companies, where the successor is merely a disguised continuance of the old employer, it also applies to situations where the companies are parallel companies.'” Id. (quoting Mass. Carpenters Cent. Collection Agency v. Belmont Concrete Corp., 139 F.3d 304, 307 (1st Cir. 1998)).

 

3. Double Breasting

“In the construction industry, and elsewhere, there is a practice generally referred to as ‘double breasting’ pursuant to which a single commercial complex functions through two corporate entities; one, a corporation which is a party to a collective bargaining agreement and subject to its provisions; a second non-union entity which is not subject to such an agreement.” Grodotzke, 17 F. Supp. 3d at 191 (citations and internal quotation marks omitted); see also Local One, Amalgamated Lithographers of America v. Stearns & Beale, Inc., 812 F.2d 763, 770 (2d Cir. 1987)) (“A double-breasted operation is one in which a single entity “operates a union company that bids on union contracts and a nonunion company that bids on nonunion contracts.”). Pursuant to section 31 of DiFazio Environmental’s CBA with Local 282, DiFazio agreed not to “establish or participate in a double breasted operation within the geographical jurisdiction of Local 282.” ECF 55-4 at 22 § 31; see also Compl. ¶ 46.

 

4. Application

The complaint alleges that the Defendants engaged in a common business enterprise under the direction of John DiFazio — who managed and controlled all four Defendants [*26]  — whereby all Defendants performed covered trucking services under DiFazio Environmental’s CBA with Local 282 but the only hours of covered work which were reported to the Plaintiffs were the hours performed by signatory DiFazio Environmental. Compl. ¶¶ 49-55, 73. Plaintiffs allege that the Defendants were designed to defeat DiFazio Environmental’s obligations under the CBA. Id. ¶ 77.

Under this alleged scheme, Faztec operated a recycling facility used by all Defendants and began using its own trucks and employees to perform covered work under the CBA. Id. ¶ 51. DiFazio Environmental acted as the union trucking spoke and West Shore as the non-union trucking spoke. Id. ¶¶ 52-53. DiFazio Industries acted as the broker bidding on various construction projects for the enterprise, id. ¶ 50, and moved work from DiFazio Environmental to West Shore with the purpose to evade paying contributions to Plaintiffs, id. ¶ 56.

It is further alleged that all Defendants were part of the heavy construction industry and were engaged in the business of trucking; had centralized and common control of labor relations; shared a common business purpose and common equipment, including fuel trucks, water trucks, [*27]  a Zinn mixer truck, and office equipment and supplies; hired drivers who worked out of the same location; shared similar working conditions, job classifications and job functions; and shared employees and used the same bookkeeper. Id. ¶¶ 12, 20, 24, 30, 60-71, 95-97. In addition, Defendants allegedly shared common management and supervision as John DiFazio made management decisions and oversaw operations for all Defendants. Plaintiffs also identify seven specific street addresses where Defendants allegedly performed work in Local 282’s jurisdiction but failed to omit reports for or pay contributions. Id. ¶ 115.

Lastly, it is alleged that DiFazio Environmental is owned by Phyllis and Salvatore DiFazio, the parents of John, Marc and Jeffery DiFazio; DiFazio Industries is owned by John DiFazio; and Faztec is owned by Mark DiFazio. Id. ¶¶ 14, 21, 26. All three of these Defendants have offices at 38 Kinsey Place, Staten Island, New York. Id. ¶¶ 11, 16, 23. While it is alleged that West Shore is managed and controlled by John DiFazio and Joseph Eugenio, id. ¶ 32, the Complaint is silent on who owns West Shore. In addition, West Shore allegedly has offices at 2 Kinsey Place, Staten Island, [*28]  New York. Id. ¶ 29.

Taken as true, the Court finds that the relevant allegations state a plausible claim that the Defendants are alter egos, constitute a single employer and/or engaged in double breasting. Although the allegations may be sparse, courts in this District have found similar allegations sufficient. See Trs. of the Local 7 Tile Industry Welfare Fund v. Sesso Tile & Stone Contractors, Inc., No. 15 CV 6124, 2016 U.S. Dist. LEXIS 111004, 2016 WL 4597481, at *2-3 (E.D.N.Y. Aug. 17, 2016), Report and Recommendation Adopted by, 2016 U.S. Dist. LEXIS 119066, 2016 WL 4595692 (E.D.N.Y. Sept. 2, 2016); Grodotzke v. Seaford Avenue Corp., 17 F. Supp. 3d 185, 191 (E.D.N.Y. 2014); Trs. of Empire State Carpenters Annuity v. Dykeman Carpentry, Inc., No. 13-CV-1508, 2014 U.S. Dist. LEXIS 32251, 2015 WL 976822, at *4 (E.D.N.Y. Mar. 12, 2014). Indeed, much of Defendants’ arguments rely on documents outside the pleading, which the Court has already found may not be considered on this Rule 12(c) motion. Accordingly, the Court respectfully reports and recommends that Defendants’ motions to dismiss Plaintiffs’ claims of affiliate liability be denied.9

 

1. Ripeness

Defendants argue that Plaintiffs’ claims, other than the claim seeking an audit, are not ripe because the underlying debt has not yet been established. According to Defendants, because no audit has yet occurred, “Plaintiffs do not know and cannot allege any facts that could underlie a claim to be paid money.” ECF No. 55-1 at 18. Defendants’ argument is without merit. The complaint alleges that Defendants have failed to omit required contributions under the governing CBAs. There is no requirement that Plaintiffs also must identify [*29]  their specific damages and make a demand for payment before collecting same. Accordingly, the Court respectfully reports and recommends that the branch of Defendants’ motions which seeks dismissal based upon a purported lack of ripeness be denied.

 

1. The Second Cause of Action

Defendants argue that the second cause of action, which asserts a claim for breach of contract under § 301 of the LMRA, 29 U.S.C. § 185, should be dismissed because the Plaintiffs lack standing to assert such a claim. “Section 301 authorizes suits for the violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce.” Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Legal Services Fund and Annuity Fund v. Lollo, 35 F.3d 29, 34 (2d Cir. 1994) (citing 29 U.S.C. § 185(a)). While unions are clearly authorized to sue under § 301, the Second Circuit has held that the administrators of ERISA funds may sue on behalf of the funds as third-party beneficiaries of a CBA. Id. at 34-35. In their reply, Defendants concede as much. See ECF No. 55-11 at 20. Defendants nonetheless argue that Plaintiffs lack standing because the complaint does not allege that Defendants breached a CBA or that Plaintiffs are third-party beneficiaries thereof. Defendants’ argument is unavailing. The entire thrust of the complaint is that Defendants breached CBAs between DiFazio Environmental [*30]  and Local 282 by failing to remit contributions — contributions which Plaintiffs were established by the CBAs to collect. Accordingly, to the extent Defendants move to dismiss the majority of Plaintiffs’ claims based upon a lack of standing, the Court respectfully reports and recommends that Defendants’ motion be denied.

 

1. Plaintiffs’ Fraud Claim

Defendants argue that the third cause of action for fraud is facially deficient under both Rules 12(c) and 9(b). “To state a claim for fraud under New York law, a plaintiff must allege (1) a material misrepresentation or omission of fact; (2) which the defendant knew to be false; (3) which the defendant made with the intent to defraud; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F3d 395, 402 (2d Cir. 2015). On a motion to dismiss, allegations of fraud must satisfy the heightened pleading standards of Rule 9(b) by stating the circumstances constituting the fraud “with particularity.” Fed. R. Civ. P. 9(b). The Second Circuit reads Rule 9(b) to require that a complaint “‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.'” Rombach v. Chang, 355 F.3d 164, 170 (2d Cir. 2004) [*31]  (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)). Moreover, “though mental states may be pleaded ‘generally,’ Plaintiffs must nonetheless allege facts ‘that give rise to a strong inference of fraudulent intent.'” Loreley Fin. No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 171 (2d Cir. 2015) (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290-91 (2d Cir. 2006)). Generally, “[w]here multiple defendants are asked to respond to allegations of fraud, the complaint should inform each defendant of the nature of his alleged participation in the fraud.” DiVittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d Cir. 1987). However, “[w]here a complaint alleges a legal relationship between fraud defendants that makes the acts of one attributable to each, ‘Rule 9(b) does not require Plaintiffs to allege a ‘specific connection between fraudulent representations . . . and particular defendants . . .’.” United States v. TEVA Pharms. USA, Inc., No. 13 Civ.3702, 2016 U.S. Dist. LEXIS 22554, 2016 WL 750720, at *12 (S.D.N.Y. Feb. 22, 2016) (quoting Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir. 1986)). The purposes of Rule 9(b)’s particularity requirements are “to provide a defendant with fair notice of a plaintiff’s claim, to safeguard a defendant’s reputation from improvident charges of wrongdoing, and to protect a defendant against the institution of a strike suit.” O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991) (citations and internal quotation marks omitted).

Here, the complaint alleges that the Defendants knowingly misrepresented to Plaintiffs the hours worked in covered employment by Defendants’ employees and the contributions owed to the Plaintiffs. Compl. ¶¶ 104, 128. More specifically, it is alleged that “DiFazio Environmental failed to report the work performed by drivers hired by DiFazio Industries, Faztec and West Shore to the [Plaintiffs] and failed to remit contributions to the [Plaintiffs] for the hours worked in covered employment by drivers.” Id. ¶ 74. The complaint further alleges that this underreporting was done intentionally to avoid Defendants’ obligations under the CBAs, id. ¶¶ 56, 72, 77, 79, 131, and that Plaintiffs reasonably relied on these misrepresentations to their detriment, id. ¶ 128. Lastly, the complaint alleges injury to Plaintiffs in the form of missing contributions. Based on these allegations, the Court respectfully reports and recommends that Defendants’ motion to dismiss the third cause of action for fraud be denied. See Finkel v. Lite Tron ltd., No. 09CV-1253, 2010 U.S. Dist. LEXIS 115385, 2010 WL 4392723, at *8 (E.D.N.Y. Oct. 29, 2010) (finding that employer was “obliged by the terms of the CBA to account for the hours of electrical [*32]  work performed by its alter ego’s employees” and thus employer’s “failure to account for those hours . . . constituted omissions of fact and rendered statements on those reports false representations”).

 

1. Plaintiffs’ Claims for Declarative and Injunctive Relief

Defendants move to dismiss Plaintiffs’ demands for declarative and injunctive relief to the extent they are duplicative of other relief sought in the complaint. Plaintiffs seek a declaratory judgment that “Defendants engaged in a scheme to avoid paying contributions to [Plaintiffs]” as well as an injunction “ordering Defendants to pay all unpaid delinquencies owed to Plaintiffs[] . . . in an amount to be determined at trial.” Compl. ¶ 139(c)-(d). Insofar as these claims essentially seek money damages, they are legal claims and should be dismissed. See Cent. States, Se. and Sw. Areas Health and Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150, 154 (2d Cir. 2014) (finding that claims seeking a declaration that defendant has “primary responsibility for paying the claimants’ future and past expenses and injunctive ‘relief’ compelling the payments” were properly dismissed; “‘[A]lmost invariably . . . suits seeking (whether by judgment, injunction, or declaration ) to compel the defendant to pay a sum of money to the plaintiff are suits for “money [*33]  damages,” as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant’s breach of legal duty.'”) (quoting Great West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S. Ct. 708, 151 L. Ed. 2d 635 (2002) (quoting Bowen v. Massachusetts, 487 U.S. 879, 918-919, 108 S. Ct. 2722, 101 L. Ed. 2d 749 (1988)). Accordingly, to the extent Plaintiffs’ “equitable” claims seek money damages, the Court respectfully reports and recommends that they be dismissed.10

 

CONCLUSION

For the foregoing reasons, the Court respectfully reports and recommends that Defendants’ motions for judgment on the pleadings be denied in part and granted in part. The Court recommends that the motions be granted only to the following extent: (1) Plaintiffs’ claims against Faztec for delinquent contributions accruing prior to June 1, 2011 should be dismissed as barred by the 2011 Release; and (2) Plaintiffs’ claims for declarative and injunctive relief should be dismissed to the extent these claims essentially seek money damages.

 

OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. Such objections shall be filed with the Clerk of the Court via ECF. Any requests for an extension of time for filing objections must be directed to Judge Feuerstein prior to [*34]  the expiration of the fourteen (14) day period for filing objections. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Beverly v. Walker, 118 F.3d 900, 901 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).

Dated: Central Islip, New York

December 12, 2017

SO ORDERED:

/s/ ARLENE R. LINDSAY

United States Magistrate Judge

ROBERT M. JAFFE, Plaintiff, Cross-defendant and Appellant, v. ROBERT BRADSHAW, Defendant, Cross-complainant and Respondent.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Counsel: Niddrie Addams Fuller, David A. Niddrie and Victoria E. Fuller for Plaintiff, Cross-defendant and Appellant.

Morris Polich & Purdy; Clark Hill, Jeffrey H. Belote and Andrew Klimenko for Defendant, Cross-complainant and Respondent.

Judges: IRION, J.; BENKE, Acting P. J., HALLER, J. concurred.

Opinion by: IRION, J.

Opinion

 

 

Robert M. Jaffe, as Trustee of the Robert M. Jaffe Trust dated October 8, 1990 (Jaffe), appeals from a judgment against him in the litigation with his neighbor Robert Bradshaw (Bradshaw). Jaffe contends that the trial court erred in issuing an injunction preventing Jaffe from parking on an easement road that leads to Jaffe’s property and passes through Bradshaw’s property. Further, Jaffe contends that the trial court erred in denying his request for an injunction, which would have required Bradshaw to return to a natural state a portion of Bradshaw’s property that he graded in anticipation of constructing a tennis court. We conclude that Jaffe’s arguments lack merit, and we accordingly affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

1. Background of the Dispute [*2]  Between Jaffe and Bradshaw

Bradshaw and Jaffe own neighboring homes in an unincorporated semi-rural area of Escondido on steep hillsides overlooking Lake Hodges. Bradshaw’s lot is immediately above Jaffe’s lot on the hillside. Bradshaw’s property contains his home as well as a grove of avocado trees that Bradshaw maintains and harvests as a part-time commercial enterprise. Bradshaw bought his property in 1982. Jaffe bought his property in June 2009, and has never lived in the home as his full-time residence, but he visits the property in the summer.

The only vehicle access to Jaffe’s property is through a road that traverses the edge of Bradshaw’s property and the edge of the property that belongs to Bradshaw’s neighbor to the south, Dennis Wymbs (Wymbs). The road runs along the south side of Bradshaw’s property and the north side of Wymbs’s property. Jaffe’s easement to use this roadway is set forth in the legal description of Jaffe’s property, which describes an easement in the width of 40 feet to use “for road and utility purposes” (the easement road). The 40 foot easement consists of a 20 foot strip on each of Bradshaw’s and Wymbs’s property.

As soon as Jaffe purchased the property, [*3]  he hired licensed contractor Michael Demich to begin several projects. Demich and Jaffe knew each other because they had been neighbors and because Demich had performed previous work for Jaffe as a contractor.

One project that Demich undertook at Jaffe’s direction was to improve the easement road to (1) repair the aging asphalt, (2) widen the road so that two vehicles could pass each other, and (3) to provide a turnaround area. Conflicts soon developed between Jaffe and Bradshaw over that work.

1. Widening the Easement Road

Years earlier, Bradshaw had installed over 400 feet of fencing along the easement road on his property, within the 40 foot easement. After Jaffe notified Bradshaw that widening the easement road would “potentially mean[] moving your . . . fence,” Demich acted at Jaffe’s direction to tear out Bradshaw’s fence, which he did not reinstall. One of Demich’s workers took Bradshaw’s fencing home with him.

2. Obstructing Bradshaw’s Access to the Avocado Grove

Bradshaw used a dirt road that led off of the easement road to access his avocado grove (the avocado grove road). The entrance to the avocado grove road was in the location where Jaffe built the roadway turnaround. Jaffe [*4]  did several things to obstruct Bradshaw’s access to the avocado grove road.

First, in the area of the turnaround, Jaffe had a wrought iron fence installed across the entrance to the avocado grove road in 2010, completely blocking Bradshaw’s access. Bradshaw eventually arranged to replace a section of the wrought iron fence with a gate so he could use the avocado grove road.

Second, Jaffe and Demich parked vehicles in front of the access to the avocado grove road for days at a time, blocking Bradshaw’s access. Specifically, Jaffe’s personal truck was parked in a manner that blocked the avocado grove road, and Bradshaw had it towed. Jaffe testified that he knew his truck was parked in that location. In addition, Demich parked a backhoe in a location that blocked access to the avocado grove road. Bradshaw sent an e mail to Demich asking that the backhoe be moved, copying the e mail to Jaffe. Jaffe responded with an e mail to Bradshaw in which he questioned whether Bradshaw had the right to access the avocado grove road and stating “I’m sure the backhoe will be gone in not too long.” According to Bradshaw, the backhoe was not moved for at least another three days.

Third, when constructing [*5]  the turnaround, Jaffe had an asphalt curb installed along the edge in 2010. The curb prevented Bradshaw from accessing the avocado grove road, so he drove over it, causing damage to it. Jaffe and Bradshaw exchanged contentious e mails about the damage to the curb, and Jaffe had his lawyer send an e mail to Bradshaw.

Finally, in 2012 Jaffe expanded the turnout area that he had created in 2010, creating a slope that made it impossible for Bradshaw to drive off the edge of the easement road to access the avocado grove road. In response, Bradshaw had to construct a different road to access his avocado grove.

3. The Drainage Pipe and Tennis Court Pad

Another project that Demich undertook was to clear out the vegetation and debris from a gully on Jaffe’s property. After the gully was cleared, Jaffe noticed an 18-inch diameter drainage pipe that began on Bradshaw’s property and continued for approximately 20 feet across Jaffe’s property. Jaffe considered the pipe to be unsightly and did not like that it was draining onto his property. Jaffe and Demich engaged in contentious e-mail correspondence with Bradshaw about the pipe. Eventually, at Jaffe’s direction, Demich cut the pipe at the point [*6]  that it entered Jaffe’s property, and he plugged the pipe with rocks and cement both at the opening on Jaffe’s property and further up where the pipe began on Bradshaw’s property. Cutting and plugging the pipe led to erosion on Bradshaw’s property.

According to Bradshaw’s testimony, the pipe was installed in 2006 when Bradshaw graded an area of his property adjacent to Jaffe’s property (then owned by the previous property owner). Bradshaw intended to eventually use the area for a tennis court, as it formed a level pad after being graded (the tennis court pad). Bradshaw performed the grading work himself without a County of San Diego (County) permit, attempting to stay within the guidelines for grading projects that do not require a permit.1 The area that Bradshaw graded to create the tennis court pad was historically a gully that carried rainwater during the wet season. The gully channeled the water through Bradshaw’s property and continued through Jaffe’s property. As Bradshaw described the area, during heavy rains the area where the gully entered Jaffe’s property looked like a waterfall because of the grade of the slope. To preserve the historical drainage pattern, when Bradshaw performed [*7]  the grading to create the tennis court pad, he installed a 70 foot long, 18 inch diameter pipe underneath the pad that terminated at Jaffe’s property. According to Bradshaw, the previous owner of Jaffe’s property thought it was a good idea to carry the pipe further onto his property to traverse the waterfall area. Bradshaw worked with the previous owner’s contractor to install a continuation of the pipe onto Jaffe’s property.

1. The Litigation

Jaffe filed a lawsuit against Bradshaw in June 2011, seeking damages as well as declaratory and injunctive relief, and asserting causes of action for trespass, private nuisance, public nuisance, negligence and declaratory relief. The issues raised by Jaffe’s original complaint concerned Bradshaw’s grading of the tennis court pad, Bradshaw’s failure to remove the drainage pipe that runs under the tennis court pad, Bradshaw’s damage to the asphalt curb along the easement road, and Bradshaw’s removal of a wrought iron fence to install a gate to the avocado grove road.

In August 2011, Bradshaw filed a cross-complaint against Jaffe, which also sought damages as well as declaratory and injunctive relief. Bradshaw pled causes of action for intentional [*8]  trespass, negligent trespass, negligence, private nuisance, quiet title, and declaratory relief. The issues raised by Bradshaw’s complaint primarily concerned the activities by Jaffe we have described above, namely parking on the easement road, constructing a turnaround and curb on the easement road, which blocked Bradshaw’s access to the avocado grove road, tearing down Bradshaw’s fence, and blocking the drainage pipe that runs under the tennis court pad.

Other neighbors of Jaffe also became involved in the litigation. As relevant to the issues presented in this appeal, Jaffe sued Wymbs, with the claims focusing on a drainage dispute and a dispute over Jaffe’s right to park on the easement road. Wymbs and Jaffe eventually entered into a settlement, and the trial court granted Wymbs’s motion for a judicial determination of good faith settlement, but did not enter judgment pursuant to the settlement agreement.2 Jaffe then dismissed his claims against Wymbs.

In July 2015, the trial court held a bench trial to decide the equitable and declaratory relief claims asserted by Jaffe and Bradshaw against each other in the operative complaint and cross-complaint. When the bench trial commenced, [*9]  Jaffe had already settled his claim for damages against Bradshaw, and Jaffe’s operative pleading was his second amended complaint.

The equitable relief that Jaffe sought in the second amended complaint against Bradshaw included an injunction to (1) abate Bradshaw’s allegedly illegal grading of the tennis court pad, and (2) prevent “Bradshaw from towing or having towed any of Jaffe and his guests’ vehicles from the Turn-Around area.” The declaratory relief sought by Jaffe in the second amended complaint included a declaration (1) of the parties’ rights concerning “Use of the Turn-Around for temporary parking of invitees and delivery vehicles,” and (2) that “Bradshaw’s construction of the Tennis Court on the Dirt Pad of the Bradshaw Property would be illegal.”

At the time of the bench trial, Bradshaw’s operative first amended cross-complaint sought damages as well as declaratory and injunctive relief against Jaffe. Bradshaw sought declaratory relief concerning, among other things, Jaffe’s “right to construct a turn-around area along the easement and use it as a parking lot.” Bradshaw’s claims for injunctive relief were based on his causes of action for private nuisance and intentional [*10]  trespass. The prayer for injunctive relief, based on both the private nuisance and intentional trespass causes of action sought, among other things, a permanent injunction enjoining Jaffe from “[p]arking, or causing others to park, on the easement,” “[i]nterfering with and obstructing Bradshaw’s access to the Bradshaw property,” and “[u]sing the turn-around as anything other than a turn-around.”

During the bench trial on the parties’ claims for declaratory and injunctive relief, Bradshaw, Jaffe and Demich testified, along with several expert witnesses presented by the parties.

With respect to Bradshaw’s tennis court pad, it was established at trial through the testimony of several witnesses that although Bradshaw had received administrative citations from the County concerning the nonconformance of the pad after Jaffe contacted the County about it, Bradshaw had recently retained the services of two engineers who assisted Bradshaw in submitting a “minor grading plan” to the County regarding future work on the tennis court pad. The County had approved the minor grading plan and issued a permit. Bradshaw planned to go forward with the construction of the tennis court as approved by the County. The planned construction [*11]  included a design that would dramatically slow down the water drainage flow onto Jaffe’s property. The two engineers involved with the minor grading plan testified at trial and explained how it was engineered and that it improved on the current state of the tennis court pad.

At trial, Jaffe testified about his intention in constructing an area of the easement road to use for “temporary parking” where he placed three concrete cement wheel stops next to each other. According to Jaffe, the area was meant as a “one car temporary parking space.” When asked to define “temporary,” Jaffe stated that he intended to create a parking space for someone “visiting,” not “for weeks,” but maybe for “overnight.”

1. The Trial Court’s Statement of Decision

At Jaffe’s request, the trial court issued a lengthy and detailed proposed statement of decision. After explaining the factual background and its credibility determinations concerning the various witnesses, the trial court discussed Jaffe’s causes of action, followed by Bradshaw’s causes of action, to determine whether declaratory and injunctive relief was warranted as sought by the parties.

Addressing Jaffe’s claims for trespass, private nuisance, public [*12]  nuisance and negligence, the trial court explained that Jaffe had not sustained his burden of proof on any of those claims. Further, the trial court explained that even assuming that Jaffe met his burden of proof, it would not exercise its equitable authority to issue the injunctive relief sought by Jaffe, which it described as an injunction requiring Bradshaw “(1) to remove the rainwater conveyance pipe from Bradshaw’s property, and (2) to return the gully on Bradshaw[‘s] property to its natural state.” The trial court explained that it was denying injunctive relief because (1) there was no need for such an injunction, and (2) it would be inequitable to do so due to Jaffe’s unclean hands.3

Explaining its conclusion that an injunction was not necessary concerning the tennis court pad, the trial court stated, “Bradshaw has retained talented professional engineers to assist with finalizing the construction of his tennis court, including making sure that the tennis court pad is stable and that the rainwater runoff from the Bradshaw property to the Jaffe property is controlled by properly engineered means to minimize the potential for erosion. The Court is confident of the capabilities of [*13]  Bradshaw’s engineers. The Court is confident of Bradshaw’s commitment to complete his tennis court and related features in the manner recommended by his engineers, and in a manner which complies with all applicable ordinances and regulations. The Court sees no need to exercise its discretionary powers to issue an injunction of the type requested by Jaffe in these circumstances.”

Moving to the issue of Jaffe’s request for declaratory relief, the trial court identified the various types of declaratory relief sought by Jaffe including, as relevant here, a judicial declaration of the parties’ respective rights pertaining to “Jaffe’s use of the private easement road for ‘temporary parking.'” On that subject the trial court made the following ruling:

“‘The owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement.’ [Citation.] In context, this passage . . . means that Jaffe must use the easement in such a way as to impose as slight a burden as possible on Bradshaw.

“In theory, it is conceivable that Jaffe could occasionally use the private easement road for ‘temporary parking’ without imposing an [*14]  unreasonable burden on Bradshaw. Hence, in theory, the law would permit Jaffe to use the private easement road for occasional ‘temporary parking’ so long as Jaffe does not unreasonably interfere with Bradshaw’s use of his own land.

“In reality, however, Jaffe has used so-called ‘temporary parking’ on the private easement road to intentionally interfere with Bradshaw’s use of his own property. For example, in the past, Jaffe intentionally parked his truck on the easement road in the one location where it blocked the access road to Bradshaw’s avocado grove. . . . Similarly, Jaffe also parked a backhoe so it was blocking the access road to Bradshaw’s avocado grove. When Bradshaw asked Jaffe to move the backhoe, Jaffe asserted that the backhoe was ‘integral’ to Jaffe’s use of the area ‘for road purposes.’ . . .

“There were many other places on Jaffe’s own property, and on the easement road, where Jaffe could have parked these vehicles, yet Jaffe chose to park these vehicles in the precise location that would block Bradshaw’s access to Bradshaw’s avocado grove. The Court believes Jaffe engaged in this ‘temporary parking’ in order to bully or intimidate Bradshaw.

“Eventually, Jaffe unilaterally [*15]  modified the private easement road so it prevented Bradshaw’s use of the pre-existing avocado grove access road altogether.

“Therefore, while the Court finds that Jaffe has the theoretical legal right to use the private easement road for ‘temporary parking,’ the Court finds that Jaffe has abused this right in the past, even to the extent of using ‘temporary parking’ to interfere with Bradshaw’s use and enjoyment of his own property. The Court believes that, in the absence of a court order prohibiting such conduct in the future, Jaffe will continue to use his purported right of ‘temporary parking’ to harass and annoy Bradshaw, and to interfere with Bradshaw’s legitimate uses of his own property.”

Immediately after setting forth its ruling on the declaratory relief issue raised by Jaffe concerning temporary parking on the easement road, the trial court turned to Bradshaw’s request for injunctive relief to prevent Jaffe from parking on the easement road. The trial court explained, “. . . Bradshaw has requested an injunction preventing [Jaffe] from using the easement road for ‘temporary parking.’ The Court will grant Bradshaw’s request, not because the law of real property prevents ‘temporary [*16]  parking’ per se on easement roads, but because an injunction is necessary to prevent Jaffe from continuing to use so-called ‘temporary parking’ on the easement road as a means of harassing Bradshaw and interfering with Bradshaw’s reasonable use of his own property. An injunction prohibiting Jaffe from using the easement road for ‘temporary parking’ will cause no harm to Jaffe because Jaffe has a large property of his own, on which there is ample room for the amount of parking normally associated with a residence.” (Italics added.)4 The trial court did not expressly state which of Bradshaw’s causes of action it was relying upon to order the injunction against temporary parking on the easement road.

In addressing Jaffe’s claims for declaratory relief, the trial court also discussed Jaffe’s request for a declaration that “Bradshaw’s prior work on the construction of the tennis court pad was itself ‘illegal.'” The trial court observed that it was “not persuaded on this record that Bradshaw’s work on the tennis court pad is or was illegal.” However, the trial court noted that its declaration on that issue was of no significance to Jaffe’s case because, even if it concluded that the prior [*17]  work was illegal, for the reasons it had set forth when discussing Jaffe’s requests for injunctive relief, it would not grant the equitable relief requested by Jaffe concerning the tennis court pad (i.e., to return it to its natural state and remove the drainage pipe) because it was unnecessary in light of Bradshaw’s plans to construct the tennis court according to the approved minor grading plan with the assistance of qualified engineers.

After having addressed all of Jaffe’s claims for relief, as well as Bradshaw’s request for an injunction preventing Jaffe from parking on the easement road, the trial court devoted the next section of its statement of decision to ruling on Bradshaw’s causes of action.

Addressing Bradshaw’s causes of action for intentional trespass, private nuisance and quiet title, the trial court found that Bradshaw sustained his burden of proving the elements of each of those causes of action. In discussing each cause of action the trial court also set forth the injunctive relief it was issuing with respect to each cause of action.

Specifically, the injunctive relief ordered as to the causes of action for intentional trespass, private nuisance and quiet title were [*18]  as follows: First, based on the intentional trespass cause of action the trial court enjoined Jaffe from “committing further trespasses onto Bradshaw’s property.”5 Next, based on the private nuisance cause of action, the trial court enjoined Jaffe from “(1) interfering with the flow of surface water on Bradshaw’s property; and (2) constructing any additional modifications to the portion of the private easement road that is on Bradshaw’s property without obtaining either (a) written consent from Bradshaw, or any successor owner of the Bradshaw property, or (b) a court order.” Finally, based on the quiet title cause of action, the trial court enjoined Jaffe from making further modifications to anything on Bradshaw’s property unless Jaffe obtains “either (a) written consent from Bradshaw, or any successor owner of the Bradshaw property, or (b) a court order.”

The trial court also discussed Bradshaw’s request for declaratory relief, issuing a judicial declaration on several subjects identified by Bradshaw including, as relevant here: “Jaffe acted unreasonably and improperly when he or his agents parked vehicles on the private easement road, blocking Bradshaw’s access to Bradshaw’s avocado [*19]  grove,” and “Jaffe acted unreasonably and improperly (through his agents) when he unilaterally modified the private easement road for the purpose of creating permanent parking spaces for his own personal use.”

Jaffe filed objections to the trial court’s proposed statement of decision. The trial court overruled the objections and issued a final statement of decision based on the content of its proposed statement of decision.

Jaffe and Bradshaw settled Bradshaw’s remaining damages claim that would have been tried to a jury. The trial court entered judgment on December 4, 2015. Among other things, as relevant here, the judgment states that “[Jaffe’s] request for permanent injunctive relief against [Bradshaw] is denied in its entirety” and “[Jaffe] is enjoined from parking on the private easement road.”

II.

DISCUSSION

1. Jaffe’s Challenge to the Injunction Preventing Temporary Parking on the Easement Road

The first focus of Jaffe’s appeal is a challenge to the trial court’s injunction to prevent Jaffe’s temporary parking on the easement road. Jaffe asserts several arguments in challenge to that injunction, which we discuss in turn.

1. Jaffe’s Due Process Rights Were Not Infringed by the Issuance [*20]  of the Injunction Against Temporary Parking on the Easement Road Based on Jaffe’s Past Abuse of That Privilege

As we have explained, the trial court’s order enjoining Jaffe’s temporary parking on the easement road was based on the conclusion that although “the law of real property” does not “prevent[] ‘temporary parking’ per se on easement roads,” an injunction was “necessary to prevent Jaffe from continuing to use so-called ‘temporary parking’ on the easement road as a means of harassing Bradshaw and interfering with Bradshaw’s reasonable use of his own property.” Jaffe contends that he received no notice prior to Bradshaw’s closing argument at trial that Bradshaw was seeking an injunction against temporary parking on the easement road on the basis that if allowed to park on the easement road, Jaffe would abuse that right by harassing Bradshaw and interfering with Bradshaw’s reasonable use of his property. According to Jaffe, “Bradshaw’s pretrial pleadings indicate he was seeking to enjoin parking solely because he mistakenly believed a roadway easement did not include the right to transitory parking.” Jaffe further contends that all of Bradshaw’s statements prior to closing argument [*21]  indicated that he sought an injunction against temporarily parking on the easement road solely because “an easement for ingress and egress does not, as a matter of law, include the right to transitory parking.”

Jaffe argues that by enjoining temporary parking on the easement road on the basis that Jaffe had “‘abused this right in the past’ . . . , the trial court introduced a new theory into the case never argued by Bradshaw without affording Jaffe proper notice or an adequate opportunity to present arguments and evidence on the issue.” Jaffe contends that the trial court violated his right to due process by issuing an injunction against him without sufficient notice from Bradshaw regarding the grounds upon which the injunction would be based.

We reject Jaffe’s argument because its factual premise fails. As we will explain, the record shows that Jaffe received ample notice that Bradshaw was seeking an injunction preventing Jaffe from parking on the easement road on the basis that Jaffe had abused the right of parking on the easement road by interfering with Bradshaw’s right to use his own property.

Turning first to Bradshaw’s operative first amended cross-complaint (the cross-complaint), [*22]  that pleading was broadly worded with respect to the basis for the injunctive relief it sought and did not limit the grounds for an injunction against parking on the easement road to the principle that an easement for road purposes does not include the right to park on the road. The cross-complaint contains the allegations, common to all causes of action, that Jaffe has “interfered with Bradshaw’s use and enjoyment of the Bradshaw property,” and that Jaffe’s “wrongful conduct includes, but is not limited to, the following activities: [¶] . . . Parking vehicles on the Bradshaw property; . . . Causing others to park vehicles on the Bradshaw property. . . . [¶] . . . [¶] Proceeding under consent to conduct certain defined activities on the Bradshaw property and then, proceeding beyond the bounds of the consent given.” In the private nuisance cause of action, Bradshaw alleged that Jaffe “substantially and unreasonably invaded Bradshaw’s . . . comfortable and free enjoyment of the Bradshaw property” and caused “obstruction of access to [Bradshaw’s] property.” In the intentional trespass cause of action, Bradshaw alleged that by “the abuse of consented-to entry” Jaffe had substantially interfered [*23]  with Bradshaw’s “exclusive use, possession and enjoyment of the Bradshaw property,” and that “once this litigation has concluded [Jaffe] intend[s] to resume [his] trespassory conduct and to interfere with the Bradshaw property with the intent to cause great and irreparable injury to Bradshaw.”

In the cross-complaint, the prayer for injunctive relief based on both the private nuisance and intentional trespass causes of action sought, among other things, a permanent injunction enjoining Jaffe from “[p]arking or causing others to park, on the easement,” “[i]nterfering with and obstructing Bradshaw’s access to the Bradshaw property,” and “[u]sing the turn-around as anything other than a turn-around.” Nowhere does the cross-complaint specify that the requested injunction against parking on the easement road is based solely on the principle that an easement for road purposes does not encompass parking on the road. Instead, in light of the allegations that Jaffe interfered with Bradshaw’s use and enjoyment of his property and that Jaffe “proceed[ed] beyond the bounds of the consent given,” the cross-complaint reasonably can be read as seeking an injunction against Jaffe’s parking on the easement road based on Jaffe’s misuse of parking to [*24]  annoy and harass Bradshaw.

Further, in advance of trial, Bradshaw filed a “Bench Brief Regarding Issue of Parking on Roadway Easement,” which clearly put Jaffe on notice that Bradshaw was seeking to enjoin Jaffe from parking on the easement road based, in part, on Jaffe’s previous use of his parking rights to prevent Bradshaw from accessing his own property. That bench brief included an entire section titled “Given Jaffe’s History of Abusive Conduct, He Should Not Be Granted Even Temporary Parking Rights on the Easement Road.” In that section, Bradshaw explained that “Jaffe’s parking of vehicles in various locations has interfere[d] with Bradshaw’s use of the Easement Road. Specifically, Jaffe placed his own truck in front of Bradshaw’s rear access road and blocked it for weeks.” Bradshaw stated that “as an equitable matter, it should be kept in mind that Jaffe has consistently waged a campaign to over-expand his ‘rights’ to use his neighbor’s properties. . . . If Jaffe is granted any right to park on the Easement Road — even if that right is described as ‘temporary’ or ‘transitory’ parking — based upon his past actions over the last six years, Jaffe undoubtedly will misinterpret that right by [*25]  overburdening such use, thereby leading to future disputes.” Bradshaw argued that “[e]ven ‘temporary’ parking should be disallowed . . . in light of Jaffe’s track record of failing to understand and abide by any limitations on his rights. If any parking by Jaffe were permitted, it would surely lead to future abuses and disputes between the parties.”

Based on the contents of Bradshaw’s cross-complaint, along with the discussion in the bench brief filed prior to the beginning of trial, we reject Jaffe’s contention that he received no notice that Bradshaw was seeking an injunction against temporary parking on the easement based, in part, on Jaffe’s misuse of parking in the past.

2. The Doctrine of Invited Error Bars Jaffe from Arguing on Appeal That Equitable Issues Should Not Have Been Tried First

Jaffe next contends that the trial court improperly denied his right to a jury trial when, as part of its decision to issue an injunction against temporary parking on the easement road, it decided the underlying factual disputes that also were presented in Bradshaw’s claim for damages. Jaffe argues, “[T]he trial court’s order in this case permitting the equitable claims to go ahead of the resolution of legal [*26]  claims was reversible error. . . . Since common factual disputes underlie both the equitable claims and the legal claims, resolving the issues in the equitable claims necessarily resolved the issues in the legal claims — preempting the role of the jury and leaving nothing for it to try. . . . Thus, the trial court erred in deciding the legal and factual issues relating to trespass in the bench trial meant to address only equitable claims.”6 Jaffe contends that “[a]lthough trial courts generally have discretion to determine the order of trial . . ., an order requiring trial to proceed in a manner that deprives a party of its constitutional right to a jury trial is reversible per se.”7

Bradshaw argues that under the doctrine of invited error, Jaffe is estopped from arguing that the trial court erred by deciding the equitable issues first. As we will explain, we agree.

As background to this issue, Jaffe filed a motion in limine in which he asked that before conducting a jury trial, the trial court first conduct a bench trial on the equitable issues presented by his complaint.8 Jaffe identified those issues as follows: “(1) [Jaffe’s] request for injunctive relief relating to the construction of an illegal [*27]  building pad on property adjacent to [Jaffe’s] parcel; and (2) [Jaffe’s] right to temporary parking upon, and to widen, re-surface and improve his roadway easement.”9

In ruling on the motion in limine, the trial court initially indicated, “What I’m leaning towards believing is the . . . most fair and efficient overall, is to have a trial first on all the equitable issues raised by all the pleadings, to be followed as appropriate or necessary by a jury trial on . . . whatever claims remain for damages.” Counsel for Bradshaw opposed the trial court’s suggested approach, stating that he was concerned about the amount of time it would take to try the equitable issues separately from the legal issues.

In contrast, counsel for Jaffe expressly endorsed the trial court’s suggested approach. Counsel for Jaffe explained that in past trials, he found it “extremely helpful” to have a bifurcated trial. He stated, “The court has looked at this, . . . is suggesting it’s going to exercise its discretion. I think it’s the appropriate way to handle this . . . .” Counsel added, “I liked the court’s idea about all of the equitable issues need to be done at the same time.” Counsel summarized his comments [*28]  stating, “We would ask that the court follow its inclination.”

After hearing from counsel for both of the parties, the trial court concluded that it would follow its original inclination as urged by counsel for Jaffe. The trial court stated, “I will at this time exercise my discretion to sequence the proof, such that we’ll try all the equitable issues raised in all the pleadings that remain. We’ll try all those first. To be followed promptly . . . by a jury trial on the remaining claims for damages.”

“Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal. This application of the estoppel principle is generally known as the doctrine of invited error. . . . [¶] An appellant cannot submit a matter for determination by the lower court and then contend on appeal that the matter was beyond the scope of the issues.” (Horsemen’s Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1555, citations omitted.) “The ‘doctrine of invited error’ is an ‘application of the estoppel principle’ . . . . At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403, citations omitted.) “‘The [*29]  doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If . . . counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.'” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 (Coffman and Marlow).)

Here, counsel for Jaffe expressly “ask[ed] that the court follow its inclination” to try all of the equitable issues prior to the damages issues, and raised no objection whatsoever about proceeding in such a manner. Accordingly, to the extent that Jaffe now contends that the trial court erred in proceeding with the equitable issues raised by Bradshaw’s complaint because they overlap with the legal issues that would have been determined by a jury, Jaffe invited the error and is estopped from seeking reversal on that basis.

Even were we to reach the issue of whether the trial court erred in deciding the equitable issues first, recent authority from this court establishes that the trial court was well within its discretion to proceed in that manner. As we explained in Orange County Water District v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, “‘[i]t is well established that, in a case involving both legal and equitable issues, the trial court may proceed to try the equitable issues [*30]  first, without a jury . . . , and that if the court’s determination of those issues is also dispositive of the legal issues, nothing further remains to be tried by a jury.’ . . . [¶] Indeed, reviewing courts have emphasized that the better practice for trial courts is to decide equitable issues first for the explicit reason that a jury trial on any legal issues may be avoided. ‘Generally, in mixed actions, the equitable issues should be tried first by the court, either with or without an advisory jury. . . . Trial courts are encouraged to apply this “equity first” rule because it promotes judicial economy by potentially obviating the need for a jury trial.'” (Id. at p. 355, citations omitted.) Moreover, as we explained in Alcoa, in California, unlike in federal courts, there is no prohibition on trying equitable claims first because the federal approach is based on the Seventh Amendment to the United States Constitution, which “applies only in federal courts; it does not apply to the states.” (Alcoa, at p. 356.) Based on this authority, there is no merit to Jaffe’s contention that the trial court erred by proceeding first with the equitable issues.10

3. The Injunction Against Temporary Parking Is Based on a Finding on the Underlying Tort of Private Nuisance and Is [*31]  Supported by Substantial Evidence

Based on the fundamental principle that a permanent injunction requires proof of the underlying cause of action (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 [to “qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law”]), Jaffe challenges the injunction preventing him from temporarily parking on the easement road by arguing that the evidence does not support a finding that he committed an underlying tort.

To address Jaffe’s argument we must first determine which underlying cause of action formed the basis for the trial court’s injunction against temporary parking on the easement road. As we have explained, Bradshaw based his claims for injunctive relief on two of his causes of action: (1) intentional trespass; and (2) private nuisance. Although the trial court discussed both of those causes of action in the section of its statement of decision ruling on Bradshaw’s claims and issued specific injunctive relief based on those causes of action, the injunction against temporary parking on the easement road was not discussed in [*32]  that section of the statement of decision. Instead, the trial court discussed Bradshaw’s request for an injunction against temporary parking on the easement road immediately following its discussion of Jaffe’s claims for declaratory relief on that same subject. Accordingly, the trial court did not expressly specify which of Bradshaw’s causes of action — intentional trespass or private nuisance — formed the basis for the injunction against temporary parking on the easement road. To assess which cause of action formed the basis for the trial court’s injunction against temporary parking, we first examine the elements of the two relevant torts.

“Nuisances are defined by statute: ‘Anything which is injurious to health . . . 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 . . . is a nuisance.’ (Civ. Code, § 3479.) Nuisances can be either public or private. ‘A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.’ (Id., § 3480.) Any other [*33]  nuisance is a private nuisance. (Id., § 3481.)” (Orange County Water District v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402.) The elements of an action for private nuisance are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of his property. . . . Second, ‘the invasion of the plaintiff’s interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer “substantial actual damage.”‘ . . . Third, ‘”[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable” [citation], i.e., it must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.”‘” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263 (Mendez).)

“The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “‘A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.'” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345.) Further, “[w]here one has permission to use land for a particular purpose and proceeds to abuse the privilege, or commits any act hostile to the interests of the lessor, he becomes a trespasser.” (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780 (Cassinos).)

In [*34]  issuing the injunction against temporary parking, the trial court found that by parking in a manner that blocked the avocado grove road, Jaffe had abused the right of temporary parking to intentionally “interfere with Bradshaw’s use and enjoyment of his own property” and that if not enjoined “Jaffe will continue to . . . harass and annoy Bradshaw and to interfere with Bradshaw’s legitimate use of his own property.” (Italics added.) The trial court explained that it was issuing an injunction “to prevent Jaffe from continuing to use so-called ‘temporary parking’ on the easement road as a means of harassing Bradshaw and interfering with Bradshaw’s reasonable uses of his own property.” (Italics added.) The language that the trial court used to explain why it was enjoining temporary parking on the easement road tracks closely with the elements of a private nuisance cause of action, which requires an “‘”unreasonable interference with the use and enjoyment of the land.”‘” (Mendez, supra, 3 Cal.App.5th at p. 263.) Although, the facts presented at trial might also support a finding of trespass,11 the trial court did not use language tracking the elements of that cause of action when describing the basis for the injunction against [*35]  temporary parking.12

We therefore conclude that the injunction against temporary parking on the easement road was based on the trial court’s finding that Bradshaw had established a private nuisance.

Having determined that the trial court’s injunction against temporary parking on the easement road was based on a finding of nuisance, we proceed to consider whether substantial evidence supports that finding. As the trial court explained, by causing his truck and the backhoe to be parked in front of the avocado grove road, Jaffe interfered with Bradshaw’s ability to access his avocado grove. Bradshaw testified that he used the road to maintain the grove and to harvest avocados. When asked by Bradshaw to move the backhoe because it was blocking his access to the avocado grove road, Jaffe did not agree but instead argued with Bradshaw about Bradshaw’s right to use that route to access his avocado grove. Moreover, as the trial court found, there were many other places on Jaffe’s property or the easement road that Jaffe could have parked, so that he did not need to park in the precise spot that blocked Bradshaw’s avocado grove road. Further, because Jaffe had [*36]  repeatedly obstructed Bradshaw’s access to the avocado grove road, Bradshaw was eventually forced to hire a contractor to build a different access road to the grove. All of this evidence, taken together, supports a finding that Jaffe (1) interfered with Bradshaw’s use and enjoyment of his property; (2) Jaffe’s invasion of Bradshaw’s interest in the use and enjoyment of his land was substantial, causing substantial actual damage; and (3) Jaffe’s interference with Bradshaw’s interest was unreasonable. (Mendez, supra, 3 Cal.App.5th at pp. 262-263.) Therefore, substantial evidence supports a finding of nuisance.

Jaffe contends that the evidence is not sufficient to support a finding against him because the misconduct that formed the basis for the injunction was not committed by him personally, but rather by Demich and the workers Demich hired for the construction projects. Jaffe argues that he should not be held legally responsible for the actions of an independent contractor such as Demich for actions that he did not know about, approve or carry out himself. Jaffe further argues that it was improper for the trial court to rely on the theory that Jaffe was responsible for the acts of Demich as Jaffe’s agent because Bradshaw’s cross-complaint [*37]  did not specifically allege that Jaffe and Demich had an agency relationship.13

These arguments fail because they ignore a fundamental fact: Jaffe was personally involved in and ratified the misconduct upon which the trial court relied to find that Jaffe had created a private nuisance by parking on the easement road in a way to prevent Bradshaw’s use and enjoyment of his property. Specifically, the nuisance finding was based on two incidents that the trial court described, both of which personally involved Jaffe: (1) parking Jaffe’s truck on the easement road blocking Bradshaw’s access to the avocado grove road; and (2) parking the backhoe in a manner that it blocked the access road.

With respect to the parking of Jaffe’s truck, there is no dispute that the truck belonged to Jaffe. Further, Jaffe testified that although he was not sure that he was the person who parked the truck in the location blocking Bradshaw’s access to the avocado grove road (as Demich sometimes moved the truck), he knew that his truck was parked in front of the gate that Bradshaw used to access the avocado grove road, and he believed the truck was parked there for approximately [*38]  a week.

Regarding the backhoe, e-mails between Jaffe and Bradshaw document that Jaffe was personally involved in that issue. Specifically, after Demich parked the backhoe in a location that blocked Bradshaw’s access, Bradshaw sent an e-mail to Demich asking that the backhoe be moved, copying the e-mail to Jaffe. Jaffe became involved in the dispute and escalated it when he responded with an e-mail to Bradshaw. In the e-mail, Jaffe questioned whether Bradshaw had the right to use the easement road to access his avocado grove road, and stated, “at a minimum, . . . I have the right to use the area for road purposes, of which the backhoe is integral. I saw nothing in the documents that allowed you to have access and entry off the roadway.” Instead of agreeing to move the backhoe, Jaffe took the position that it would be moved when convenient for him, stating, “I am sure the backhoe will be gone in not too long but please respect our rights on the roadway.”

Further, apart from these two specific instances, Jaffe testified that, in general, he instructed Demich and his workers to park on the easement road. Demich confirmed during his testimony that Jaffe instructed him to park on the easement [*39]  road, and that Jaffe parked his truck in the turnaround area on the easement road, which is where Bradshaw’s access to the avocado grove was, or that Jaffe instructed his handyman to park there.

Based on this evidence, there is no merit to Jaffe’s contention that he should not have been enjoined from temporary parking on the easement road because the past misconduct on which that injunction was based was not committed by Jaffe himself or by someone properly alleged and proved to be Jaffe’s agent. Jaffe was directly involved and knowingly and intentionally created the nuisance.

4. The Trial Court Did Not Improperly Order an Extinguishment and Forfeiture of Jaffe’s Easement Rights

Jaffe contends that by enjoining Jaffe from temporary parking on the easement road, the trial court improperly “extinguish[ed] Jaffe’s easement rights” and ordered a “forfeiture” of his property rights. According to Jaffe, the trial court did not have “the authority to extinguish Jaffe’s easement rights based on a handful of remote and isolated parking incidents that occurred during construction” because “[g]enerally the misuse or excessive use of easement rights ‘is not sufficient for . . . forfeiture’ of those rights.”

For his argument, [*40]  Jaffe relies on case law explaining that “[e]xtinguishment of an easement is an extreme and powerful remedy which is utilized only when use of the easement has been rendered essentially impossible.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 767 (Reichardt).) Based on this principle, courts have authorized “extinguishment of an easement only where the easement owner performs or authorizes an act which permanently prevents use of the easement” or “‘an act of a nature such that thereafter exercise of the easement cannot be made without severe burden upon the servient tenement.'” (Id. at pp. 767-768.)

However, the case law that Jaffe cites is not applicable here because the trial court’s injunction preventing Jaffe from temporary parking on the easement road did not serve to extinguish Jaffe’s easement. Jaffe still retains the right to use the easement road “for road and utility purposes” as set forth in the legal description of his property. Instead of extinguishing the easement, or requiring its forfeiture, the trial court issued an injunction to prevent Jaffe from misusing that easement by creating a future nuisance on the easement road.

Although extinguishment of an easement is only authorized in exceptional circumstances, case law holds that “that injunctive [*41]  relief is a proper remedy of the servient owner for unauthorized or excessive uses of an easement.” (Crimmins v. Gould (1957) 149 Cal.App.2d 383, 391-392, italics added.) “In cases involving extraordinary or excessive use, . . . the servient owner is entitled to an injunction.” (Id. at p. 391.) Here, the trial court properly applied that principle in issuing the injunction to prevent Jaffe from misusing his rights as an easement holder. “‘[T]he owner of a dominant tenement must use his easement and rights in such a way as to impose as slight a burden as possible on the servient tenement.'” (Reichardt, supra, 52 Cal.App.4th at p. 767.) As the trial court explained, given the history of Jaffe’s creation of a nuisance in preventing Bradshaw from accessing the avocado grove road, its injunction against Jaffe’s temporary parking on the easement road was necessary to insure that Jaffe upheld his responsibility as a holder of the easement, to impose as slight a burden as possible. Therefore, in issuing its injunction, the trial court was not extinguishing the easement, but rather affirming the existence of the easement, but at the same time holding Jaffe to his legal obligation to impose as slight a burden as possible on Bradshaw’s property.

In a related argument, Jaffe contends that because the scope [*42]  of the injunction was overbroad, we should conclude that the injunction constituted an extinguishment of the easement rather than merely an injunction to prevent misuse. Specifically, Jaffe points out that the injunction prevents him from parking anywhere on the easement road (even in an unobjectionable location), rather than merely preventing him from parking in a manner that poses a nuisance to Bradshaw. However, as the trial court reasonably concluded, even though a holder of an easement for road purposes would theoretically have a right to make reasonable use of the road for temporary parking, based on the evidence of Jaffe’s past misconduct, an injunction against all temporary parking was necessary to prevent Jaffe from continuing to use his easement rights to harass and annoy Bradshaw.14 Therefore, the scope of the injunction does not establish an extinguishment of the easement, but instead is reasonable in scope to prevent misuse.

5. Substantial Evidence Supports a Finding That the Misuse of the Easement Is Reasonably Probable to Recur

“Because injunction is an extraordinary remedy, the remedy should not be exercised unless it is reasonably probable the acts complained of will recur.” [*43]  (Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1658.) “[I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed.” (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.) Relying on this principle, Jaffe contends that the injunction should not have been issued because it was not reasonably probable that he would, in the future, misuse the right of temporary parking on the easement road to interfere with Bradshaw’s enjoyment of his property. According to Jaffe, the injunction therefore constitutes improper punishment for past acts, rather than an injunction to prevent future conduct.

We review the trial court’s decision to issue a permanent injunction under an abuse of discretion standard, but we review the trial court’s underlying factual findings for substantial evidence. (Mendez, supra, 3 Cal.App.5th at pp. 260-261.) Here, in deciding to issue an injunction against Jaffe’s temporary parking on the easement road, the trial court made an express finding that Jaffe would continue to pose a nuisance if not enjoined.

As the trial court specifically found, “in the absence of a court order prohibiting such conduct in the future, Jaffe will continue to use his purported right of ‘temporary parking’ to harass and annoy Bradshaw, and to interfere with Bradshaw’s legitimate uses of his own [*44]  property.” Further, in its general explanation for why it was issuing injunctive relief to prevent Jaffe from continuing to create a nuisance, the trial court explained: “The court believes that Jaffe will continue in the future to interfere with Bradshaw’s use and enjoyment of Bradshaw’s property in the absence of an injunction prohibiting Jaffe from doing so. This conclusion is based on, among other things, Jaffe’s course of conduct to date and Jaffe’s demeanor while testifying at the trial.” (Italics added.)15

This finding is supported by substantial evidence at trial, which the trial court specifically identified and detailed. As the trial court explained, Jaffe insisted on his right to park vehicles in the precise location where those vehicles would block Bradshaw’s access to his property, and then Jaffe argued with Bradshaw about Bradshaw’s right to access his own property. As the trial court reasonably concluded, “Jaffe engaged in this ‘temporary parking’ in order to bully or intimidate Bradshaw.” As the trial court further explained, Jaffe’s past behavior could also reasonably be interpreted as “intentionally using ‘temporary parking’ to interfere with Bradshaw’s use and enjoyment [*45]  of his own property.” (Italics added.) Based on Jaffe’s past acts of intentionally using temporary parking to interfere with Bradshaw’s use of his own property, along with the trial court’s assessment of Jaffe’s demeanor while testifying, there is substantial evidence to support the trial court’s conclusion that an injunction against temporary parking was necessary to prevent Jaffe from continuing to present a nuisance to Bradshaw in his enjoyment of his property.

In a related argument, Jaffe contends that the injunction should not have been issued because Bradshaw did not establish a threat of irreparable future injury. Jaffe contends that monetary damages would have been adequate to address Bradshaw’s claim that Jaffe was improperly using temporary parking on the easement road to interfere with Bradshaw’s use and enjoyment of his property. For the same reasons we discussed in connection with Jaffe’s contention that the misconduct was not reasonably probable to recur, we reject the argument. Specifically, the trial court found, as supported by substantial evidence, that if not enjoined Jaffe would continue to pose a nuisance by using temporary parking to interfere with Bradshaw’s use [*46]  and enjoyment of his property. As set forth in statute, an injunction is a proper remedy to abate a private nuisance. (Code Civ. Proc., § 731 [an “action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, . . . and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor” (italics added)]; Civ. Code, § 3501 [“The remedies against a private nuisance are: [¶] 1. A civil action; or, 2. Abatement.”].) Here, because the trial court found that the nuisance would continue unless enjoined, the trial court also necessarily found a basis for issuing an injunction to abate the nuisance. Bradshaw was therefore entitled to an injunction to abate the nuisance rather than being required to accept only monetary damages.

Jaffe also contends that rather than issue an injunction, the trial court should have retained jurisdiction to address any future problems with parking on the easement road. However, because the trial court made a finding, supported by substantial evidence, that Jaffe would continue to pose a nuisance if not enjoined from parking on the easement road, it was well within its discretion to abate a future [*47]  nuisance by issuing an injunction rather than retaining jurisdiction so that it could address any future problems after they occurred. Indeed, Jaffe cites no case law requiring a court to retain jurisdiction to prevent a future nuisance, rather than issuing an injunction to abate the nuisance, once a trial court has determined that there is a reasonable probability that the nuisance is likely to continue.

6. The Purported Inconsistency with the Wymbs Settlement Does Not Present a Reason to Strike the Injunction

Jaffe contends that the trial court erred in enjoining him from temporary parking on the easement road because half of the easement road is owned by Wymbs, and it would be inconsistent with the settlement between him and Wymbs to prevent Jaffe from parking on the easement road. As explained above, Jaffe entered into a settlement with Wymbs, and the trial court granted Wymbs’s motion for judicial determination of good faith settlement, followed by Jaffe’s dismissal of his claims against Wymbs. However, the trial court expressly stated that it was not entering a judgment on the settlement and was not entering any of the judicial decrees described in the parties’ settlement agreement. [*48]  Among the judicial decrees not entered by the trial court was one that related to Jaffe’s “right to use the Road for ‘transitory parking’ subject to compliance with applicable rules by the County and Fire Protection Districts, and unobstructed use rights of other owners of the roadway easement.”16

In support of Jaffe’s contention that the injunction against temporary parking on the easement road improperly conflicted with his settlement with Wymbs, Jaffe relies on case law holding that a trial court should not issue two inconsistent judgments. Specifically, Jaffe relies on Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 879, which explained that one of the public policies underlying the doctrine of collateral estoppel was “preventing inconsistent judgments which undermine the integrity of the judicial system.” Jaffe also relies on Hoyt v. Hart (1906) 149 Cal. 722, 730 (Hoyt), which he describes as a case involving easement rights, in which the court “undertook an in-depth analysis as to whether two separate judgments were inconsistent.”17 Jaffe contends that because the instant case involves two inconsistent judgments regarding his right to park on the easement road, we should exercise our discretion to harmonize the two judgments by striking the trial court’s injunction preventing [*49]  him from temporary parking on the easement road.

Jaffe’s argument fails because there was no judgment entered on the settlement between Wymbs and Jaffe. Indeed, as we have explained, when presented with the settlement between Jaffe and Wymbs, the trial court expressly declined to issue a judgment and expressly declined to issue a judicial decree concerning Jaffe’s right to park on the easement road. Accordingly, Jaffe has not identified two inconsistent judgments concerning his right to park on the easement road.

1. Jaffe’s Challenge to the Denial of His Claim for Injunctive Relief to Require Bradshaw to Restore the Tennis Court Pad to Its Natural State

Jaffe’s second challenge is to the trial court’s denial of relief on the portion of Jaffe’s complaint against Bradshaw seeking injunctive relief regarding the tennis court pad.

As we have explained, Jaffe sought injunctive relief requiring Bradshaw to restore the tennis court pad to its natural state before it was graded in 2006. Jaffe’s legal theory was that because the grading of the tennis court pad did not comply with applicable County rules for obtaining a grading permit, it was therefore “illegal,” it constituted a private [*50]  or public nuisance, and it should be abated through an injunction requiring that the area be restored to its state before it was graded. Jaffe contended that the tennis court pad was illegal because, among other things, it involved more than 200 cubic yards of fill and was more than eight feet deep, and therefore required a grading permit, and because the fill was not compacted to the required density. The trial court denied injunctive relief regarding the tennis court pad on two independent grounds.

First, the trial court concluded, “[t]he court is not persuaded that Bradshaw has done anything that constitutes a nuisance[,]” and “[t]he tennis court pad is not a nuisance.” The trial court’s reasoning on this subject was further discussed in connection with its analysis of the declaratory relief sought by Jaffe concerning the illegality of the grading work on the tennis court pad. In that context, the trial court stated that it was “not persuaded on this record that Bradshaw’s prior work on the tennis court pad is or was illegal.”

Second, the trial court explained that even if Jaffe had established that the tennis court pad was a nuisance, or that “Bradshaw’s prior work on the tennis court pad [*51]  is or was ‘illegal’ in some fashion, the Court would not exercise its discretion to grant the equitable relief requested by Jaffe in this case.” The trial court explained that “[t]he equitable relief requested by Jaffe is unnecessary because Bradshaw has retained very capable engineers to assist with the completion of the tennis court, and Bradshaw intends to obtain all appropriate County approvals to complete the tennis court[,]” and “there is no credible evidence that the finished product will be illegal in any respect.” In another portion of the decision, the trial court expressed the same concept, stating: “Bradshaw has retained talented professional engineers to assist with finalizing the construction of his tennis court, including making sure that the tennis court pad is stable and that the rainwater runoff from the Bradshaw property to the Jaffe property is controlled by properly engineered means to minimize the potential for erosion. The Court is confident of the capabilities of Bradshaw’s engineers. The Court is confident of Bradshaw’s commitment to complete his tennis court and related features in the manner recommended by his engineers, and in a manner which complies with all [*52]  applicable ordinances and regulations. The Court sees no need to exercise its discretionary powers to issue an injunction of the type requested by Jaffe in these circumstances.”

Jaffe argues that “the trial court erred in declining to issue an injunction against Bradshaw” concerning the tennis court pad. As the focus of his argument, Jaffe contends that the evidence does not support the trial court’s statement that it was not persuaded that the grading work on the tennis court pad is or was illegal. Jaffe argues that uncontradicted evidence presented at trial established that the tennis court pad is illegal, and the trial court failed to address that evidence in its statement of decision. Apart from challenging the sufficiency of the evidence, Jaffe includes only brief argument addressing the second independent ground for the trial court’s decision to deny injunctive relief, namely, that the trial court concluded it was unnecessary to grant injunctive relief concerning the tennis court pad because Bradshaw was planning to reengineer the pad in accordance with the permit he recently received from the County. Jaffe argues, “the court’s optimism that ‘[t]he equitable relief requested by Jaffe [*53]  is unnecessary because Bradshaw . . . intends to obtain all appropriate County approvals to complete the tennis court’ . . . is legally insufficient to deny relief to Jaffe now. . . . The court cannot ‘find’ events in the future will be sufficient to satisfy the requirements imposed by law on Bradshaw.”

We need not, and do not, consider whether Jaffe’s challenge to the sufficiency of the evidence to support the trial court’s conclusion concerning the illegality of the tennis court pad because, as we will explain, we affirm the trial court’s decision to deny injunctive relief on the second independent ground identified in the trial court’s ruling.

“‘The grant or denial of a permanent injunction rests within the trial court’s sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion.'” (Mendez, supra, 3 Cal.App.5th at p. 260.) Contrary to Jaffe’s suggestion to the contrary, an injunction is not legally required upon establishing an underlying cause of action. Instead, “‘[a] permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate.'” (Thompson v. 10,000 RV Sales, Inc. (2005) 130 Cal.App.4th 950, 964, italics added.)

Among the factors [*54]  the trial court may consider in determining whether injunctive relief is appropriate is whether there has been “a change in circumstances which renders injunctive relief unnecessary.” (East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1126.) “A change in circumstances, rendering injunctive relief moot or unnecessary, justifies the denial of an injunction.” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 184.) “[W]here events occur after the filing of the complaint which render an injunction unnecessary, it will ordinarily be refused.” (Mallon v. City of Long Beach (1958) 164 Cal.App.2d 178, 190.)

Here, exercising its discretion, the trial court determined that injunctive relief was not warranted concerning the tennis court pad because Bradshaw was in the process of reengineering it according to plans that had already been approved by the County. As the trial court explained, those plans were prepared by qualified engineers who testified at trial as to how the new design would address any stability and drainage problems presented by the prior grading of the tennis court pad. Based on the circumstances present when the trial court considered whether to issue injunctive relief, the trial court was well within its discretion to conclude that injunctive relief concerning the tennis court pad was not necessary.

We accordingly conclude that there is no merit [*55]  to Jaffe’s challenge to the trial court’s ruling denying his request for an injunction to require Bradshaw to restore the tennis court pad to its natural state.

DISPOSITION

The judgment is affirmed. Bradshaw is to recover his costs on appeal.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.