Judge: Armen Tamzarian, Case: 21STCV34792, Date: 2023-01-25 Tentative Ruling

Case Number: 21STCV34792    Hearing Date: January 25, 2023    Dept: 52

Plaintiff The People of the State of California’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication

Plaintiff The People of the State of California moves for summary judgment on its complaint against defendants Mao & Qun Co., Inc. and G. Victoria Co., Ltd.  A plaintiff moving for summary judgment must prove each element of each cause of action; once the plaintiff does so, the burden shifts to the defendant to show a triable issue of at least one material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)  The opposing defendants “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  (CCP § 437c(p)(1).)

Triable Issues of Material Fact

Plaintiff alleges three causes of action: (1) public nuisance, (2) narcotics abatement, and (3) unfair competition.  Plaintiff meets its initial burden on each cause of action, and defendants show no triable issues of material fact. 

Defendants did not make a good faith effort to demonstrate any triable issues of fact via their opposition to plaintiff’s separate statement of undisputed facts.  “An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted.  Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”  (Cal. Rule of Court, rule 3.1350(f)(2).) 

Defendants’ opposing separate statement purports to dispute Nos. 4 to 105.  It relies on the same argument and evidence for all the disputed facts: “Deny.  Declaration of Maoson Young, Paragraphs 1-36, Exhibits A-D; Declaration of Gordon Hsueh. Paragraphs 1-15, Exhibits A-D; And Redacted Police Report Violation of Procedural Component of Due Process Clause of Fourteenth Amendment Of United States Constitution; Violation of Fourth Amendment.”  Defendants simply cite all their evidence as supporting every factual dispute.  They do not explain the nature of any dispute, describe that evidence, or specify which parts of that evidence establish a dispute. 

Defendants’ evidence does not show a genuine dispute of material fact.  Plaintiff relies primarily on evidence of numerous crimes occurring at defendants’ motel from 2016 to 2021.  (UMF Nos. 4-17.)  Rather than disputing that those crimes occurred, defendants state they have not received reports of criminal activity since 2022 (Young Decl., ¶¶ 12, 16) and object that they cannot determine what happened earlier “[b]ecause the names of the alleged individuals cited or arrested at the motel or alleged victims are redacted” (id., ¶ 21).  As another example, No. 25 provides, “A gate was installed in the Property’s driveway only after the instant abatement lawsuit was filed.”  The declaration of Maoson Young admits installing a gate “on or about February 1, 2022”—months after plaintiff filed this action.  (Young Decl., ¶ 11.) 

Rather than disputing plaintiff’s evidence, defendants’ evidence focuses on showing that no nuisance currently exists.  At most, that would impact whether the court should issue an injunction.  That is not an element of plaintiff’s causes of action.  It is a remedy.  Equitable remedies such as “issuance of a permanent injunction” need not “be determined at the hearing on a motion for summary judgment; such remedies are not either limited or foreclosed by a determination that all of the elements of a cause of action have been established and that the moving party is entitled to summary judgment.”  (People ex rel. Feuer v. Superior Court (Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360, 1374.)  “While voluntary cessation of conduct may be a factor in a court’s exercise of its equitable jurisdiction to issue an injunction, it is not determinative; the trial court must also decide if an injunction affecting future conduct should be a part of the relief it grants.”  (Id. at p. 1385.)

Continuance

            Defendants argue the court should continue this hearing to permit further discovery.  “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.”  (CCP § 437c(h).)  “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated.  The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’ ”  (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

            Defendants make a minimal showing that facts essential to justify opposition may exist.  Counsel’s affidavit states, “I intend to depose the PMK regarding the allegations of the past and present nuisance at the subject property including Fourth Amendment issues which the Defendants claim are relevant to the issue of the admissibility of the alleged evidence and police reports.”  (Weiser Decl., ¶ 38.)  Defendants do not specifically describe what essential facts they may discover via that deposition.  Even if the deposition reveals evidence of Fourth Amendment violations, that may not suffice to make plaintiff’s evidence inadmissible in this civil action.  (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1014 [“ ‘In the complex and turbulent history of the [exclusionary] rule, the [United States Supreme] Court never has applied it to exclude evidence from a civil proceeding, federal or state’ ”].)

Defendants further argue that plaintiff’s use of redacted evidence violates their due process rights.  Plaintiff’s evidence includes police reports with minimal redactions.  For example, in Exhibit 25, plaintiff redacted the victim’s name and identifying information about the arrestee, such as his driver’s license number and birthdate.  Plaintiff also redacted police informants’ names.  Defendants make little showing they are entitled to that information or that disclosing it could lead to discovery of essential facts.  Defendants already know the police officers’ and arrestee’s identities. 

Defendants also show little diligence in attempting to obtain the necessary facts.  The opposing party must show “the reasons why additional time is needed to obtain these facts.”  (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643.)  “The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.”  (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715–716.)

Defendants do not explain what discovery they have done or what efforts they have taken to discover additional facts that may justify opposition.  Defense counsel instead details various disruptions to his practice.  Despite these disruptions, defense counsel has had ample time to do discovery since defendants answered on November 23, 2021.       

In an abundance of caution and to promote the policy of adjudicating cases on the merits, the court will permit defendants a brief continuance to do further discovery.  “The party need not show that essential evidence does exist, but only that it may exist.”  (Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 517.)  Defendants show some potential to discover evidence essential to justify the opposition.

Disposition