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meyers nave A Professional Law Corporation

People of the State of California and the County of Los Angeles V.

Wayne Fishback, ABC Waste Corp., Charles Lee, Cepheid, LLC

Motion to Modify Preliminary Injunction

Deborah J. Fox, Esq.

Jenny L. Riggs, Esq.

Tony Kay, Trial Technologist

Hearing Date: June 1, 2018

This Court's Injunction

Preliminary Injunction (December 23, 2015)

• Enjoins Defendants, their agents, aidors and abettors

• Prohibited materials:

• Concrete

• Brick

• Demolition and construction debris

• Construction waste material

• Prohibited activities:

• Depositing or allowing to be deposited prohibited materials

• Grading or excavation

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This Court's Clarification Orders

First Clarification Order (April 6, 2017)

• No change to Injunction

• Clarifies that the Injunction bars construction, stockpiling or development

• Order, p. 2; par. 2

Second Clarification Order (May 1, 2017)

• No change to Injunction

• Clarifies that the term "deposit11 and its derivatives means bringing such materials onto the property

• Order, p. 2; par. 3

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This Court May Modify the Preliminary Injunction

• There has been a ''material change'' in the facts upon which the Injunction was granted

• The ends of justice would be served by the modification

• CCP § 533; City of Los Angeles v. Silver (1979) 98

Cal.App.3d 745; Slauson Partnership v. Ochoa {2003) 112 Cal.App.4th 1005

• This Court has inherent authority to obtain compliance with its orders

• CCP § 128

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No Compliance With Injunction

Doug Baldwin, Third Party Investigator

• Surveillance (February and April 2018)

• 100+ trucks daily accessed Defendants' Properties dawn to dusk (Exh. 32/Map)

• Visible material in the trucks: broken concrete, construction debris/waste

• Trucks with prohibited materials • Exhs. 070-005; 070-027; 073-022; 137-008.1; 137.008.2;

137.012.1; 073-011

• Trucks depositing prohibited materials • Exhs.137-012.2; 137-017.1; 137-027.1; 137-027.2 {April 2018

Su rve i Ila nee)

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\

FISHBACK PROPERTY

Data oontaned in this mep is produced in 'M1ole a part from the Los Angeles County Department d Public Wor1<s' dgital database.

EXH 032-001

Camera

CJ Parcel

~ Mountains Recreation and Conservation Authority

Feet

1,000 2,000

SJrvey/Mepping & Property Maregemmt Di~sion Map,:ing & GIS Services Section

COLA000091

DSC_0483.jpg

OSC_0474.Jpg OSC_0473.jpg

EXH 073-011

DSC_0484.jpg

EXH 137-027.1

DSC 0523.nef DSC 0524.nef

Drone Footage Shows Depositing, Grading

Rene Perez, Geologist and Drone Opeirator • Extensive, continuous and chronic business operation

depositing construction materials on Defendants' Properties

• Mosaic Flight 9

• Grading evident and ongoing

• Defendants invite a staggering level of truck traffic

• Video (Exh. 128 [Flight 8, Segment 2]); Photos (Exhs. 114-036, 121-002, 121-003)

• March 13, 2018 to June 1, 2018 (70 days, excluding Sundays)

• 100 trucks x 70 days = 7,000 trucks

• 7,000 trucks x $100/load = $700,000

• Daily take could be upwards of $10,000

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COLA000590

Defendants Have Drastically Altered the Land

Mitch Miller, County's Principal Civil Engineer

• Photographed the same hillside segme,nt during

both on-site inspections

• October 17, 2016 compared to January 30, 2018

• 75,000 cubic yards deposited on one hillside

segment alone

• Roadw.ays obliterated by deposited material

• Exhs. 020-001 and 021-001

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...__ -...

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. --HORIZON

+02.3° ANGLE

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AZIMUTH - BEARING

10:06:12

EXH 020-001

ELEVATION

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ANGLE

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Drone Footage Shows Depositing, Grading

Rene Perez, Geologist and Drone Opeirator • Extensive, continuous and chronic business operation

depositing construction materials on Defendants' Properties

• Mosaic Flight 9

• Grading evident and ongoing

• Defendants invite a staggering level of truck traffic

• Video (Exh. 128 [Flight 8, Segment 2]); Photos (Exhs. 114-036, 121-002, 121-003)

• March 13, 2018 to June 1, 2018 (70 days, excluding Sundays)

• 100 trucks x 70 days = 7,000 trucks

• 7,000 trucks x $100/load = $700,000

• Daily take could be upwards of $10,000

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Defendants Have Drastically Altered the Land

Mitch Miller, County's Principal Civil Engineer

• Photographed the same hillside segme,nt during

both on-site inspections

• October 17, 2016 compared to January 30, 2018

• 75,000 cubic yards deposited on one hillside

segment alone

• Roadw.ays obliterated by deposited material

• Exhs. 020-001 and 021-001

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The Hillside Shows Signs of Instability

Dawn Plantz, CalRecycle Environmental Scientist

• Numerous surface cracks adjacent to stockpiled materials and near slope

• Tension cracks confirmed by Civil Engineer Miller

• Slopes vulnerable and subject to breaking down because of weight of material, heavy truck traffic, lack of proper engineering

• Exhs. 505-001, 509-001

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Wide-Ranging Ongoing Dumping Operation

Ranger Tony Scattaglia, MRCA

• After March 20, 2018 (after the County filed this

Motion)

• New dumping site begun on Defendants'

Properties, with trucks depositing prohibited materials

• Fishback himself photographed on site, with trucks in the background actively depositing

debris

• Exhs. 516.1; 516.2; 517-006.2; 517-008.2

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New Restrictions Warranted

Most critically:

1. Appoint a monitor at Defendants' cost;

2. Preclude all Class 5 trucks;

3. Fine Defendants $500 per truck, or

$20,000 per day, whichever is greater.

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This Court's Injunction

Preliminary Injunction (December 23, 2015)

• Enjoins Defendants, their agents, aidors and abettors

• Prohibited materials:

• Concrete

• Brick

• Demolition and construction debris

• Construction waste material

• Prohibited activities:

• Depositing or allowing to be deposited prohibited materials

• Grading or excavation

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This Court's Clarification Orders

First Clarification Order (April 6, 2017)

• No change to Injunction

• Clarifies that the Injunction bars construction, stockpiling or development

• Order, p. 2; par. 2

Second Clarification Order (May 1, 2017)

• No change to Injunction

• Clarifies that the term "deposit11 and its derivatives means bringing such materials onto the property

• Order, p. 2; par. 3

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Instrumentalities of the Nuisance

City of Los Angeles v. Silver (1979) 98 Cal.App.3d 745

• Silvers operated an arcade in wrong zon,e

• 28 gaming machines (July 1977)

• 60 gaming machines (May 1978)

• 118 gaming machines, 24 hours/7 days a week (July 1978)

• September 1978 Preliminary Injunction issued:

• December 1978 Court adds additional provision

directing LAPD to remove all gaming machines

• In order to enforce valid Court order, in "the face of

persistent, obstinate and unlawful refusal" by Defendants

to comply with the Court's prior order

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New Restrictions Warranted

Most critically:

1. Appoint a monitor at Defendants' cost;

2. Preclude all Class 5 trucks;

3. Fine Defendants $500 per truck, or

$20,000 per day, whichever is greater.

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