Judge: Armen Tamzarian, Case: 21STCV34792, Date: 2023-03-30 Tentative Ruling
Case Number: 21STCV34792 Hearing Date: March 30, 2023 Dept: 52
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).)
Plaintiff alleges three causes of action: (1) public
nuisance, (2) violation of narcotics abatement law (NAL), and (3) unfair
competition. Plaintiff meets its initial
burden on each cause of action. Defendants
show no triable issues of material fact.
First Cause of Action for Public Nuisance and Second Cause of Action for
Narcotics Abatement Law
The court will discuss
the first and second causes of action jointly because violations of the NAL “constitute
nuisances per se under Civil Code section 3479,” the public nuisance law. (People ex rel. Trutanich v. Joseph (2012)
204 Cal.App.4th 1512, 1524 (Trutanich).)
The NAL provides, “Every building or place used for the
purpose of unlawfully selling, serving, storing, keeping, manufacturing, or
giving away any controlled substance, precursor, or analog specified in this
division, and every building or place wherein or upon which those acts take
place, is a nuisance which shall be enjoined, abated, and prevented, and for
which damages may be recovered, whether it is a public or private nuisance.” (Health & Saf. Code, § 11570.)
The People may “maintain an action to abate and prevent the
nuisance and to perpetually enjoin the person conducting or maintaining it, and
the owner, lessee, or agent of the building or place in or upon which the
nuisance exists from directly or indirectly maintaining or permitting the
nuisance.” (Health & Saf. Code, §
11571.)
The NAL “does not require that the unlawful activity which
makes the building a nuisance be conducted by the owner of the building, a
tenant of the building, or a person entering with permission.” (Lew v. Superior Court (1993) 20
Cal.App.4th 866, 871.) An owner, lessee,
or agent is liable for maintain a nuisance caused by third parties. (Ibid.) For a nuisance per se, such as those under
the NAL, “no proof is required, beyond the actual fact of their existence, to
establish the nuisance.” (Trutanich,
supra, 204 Cal.App.4th at p. 1524, internal quotes omitted.)
Plaintiff presents evidence showing defendants are owners,
lessees, or agents of the building under Health & Safety Code section
11571. The subject property is the Edge
O Town Motel at 503 W. Athens Blvd., Los Angeles, California 90044. (UMF No. 1, Ex. 18, ¶ 7; Ex. 19, ¶ 7.) Defendant Mao & Qun Co., Inc. has owned
the subject property since 1989. (UMF
No. 19, Ex. 2, ¶ 2; Ex. 3.) Defendant G.
Victoria Co. Ltd. operated the motel from 2019 to 2021. (UMF No. 21, Ex. 2, ¶ 2, Ex. 5, Ex. 7, Ex.
8.)
Plaintiff presents adequate evidence that the property was
used for the purpose of unlawfully selling, serving, storing, and keeping
controlled substances. Officer Manuel
Armenta of the Los Angeles Police Department states when he was assigned to
monitor the Athens Park Bloods gang, he “patrolled the Property multiple times”
and found the gang’s members frequently used the motel “to conduct their
narcotics sales” and “hide contraband such as narcotics.” (Armenta Decl., ¶ 12.) The gang “would completely take over the
parking lot and several Motel rooms to conduct their narcotics sales.” (Id., ¶ 14.) He has “personally conducted surveillance of
the Property and observed how the gang members and associates use the parking
lot and various Motel rooms to conduct their narcotics sales.” (Id., ¶ 16.)
Officer Henry Merin of the Los Angeles Police Department
states he has “arrested many self-admitted gang members … for selling narcotics at the Property.” (Merin Decl., ¶ 7.) He “was personally involved in seven of the
eight controlled buy operations at the Property” since 2016. (Id., ¶ 13.) Police “informants successfully purchased
narcotics” and the police “recovered narcotics from a Motel room” on: November
1, 2016, November 2, 2016, February 23, 2017, June 23, 2017, December 11, 2019,
January 14, 2020, January 15, 2020, October 20, 2020, January 27, 2021, and
August 31, 2021. (Id., ¶ 14.)
Officer Min Chung states he arrested two suspects at the
property on August 27, 2021, and seized cocaine and firearms. (Ex. 98, Chung Decl., ¶¶ 3-4, Ex. 99.) On August 31, 2021, Officer Eric Miller seized
cocaine base purchased at the property by an informant. (Ex. 100, Miller Decl., ¶¶ 3-4; Ex.
101.) Plaintiff also submitted similar
declarations from several other LAPD officers who made arrests and seized
narcotics at the subject property.
Plaintiff’s evidence suffices to meet its burden of showing
defendants violated the NAL and maintained a public nuisance.
Third Cause of Action for Unfair Competition
Plaintiff meets its burden of showing it is entitled to
summary adjudication of this cause of action.
“Unfair competition shall mean and include any unlawful, unfair or
fraudulent business act or practice.”
(Bus. & Prof. Code, § 17200.)
The law “covers
a wide range of conduct” and “embraces anything that can properly be called a
business practice and that at the same time is forbidden by law.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143, internal quotes and citations omitted.) The statute “ ‘borrows’ violations from other
laws by making them independently actionable as unfair competitive
practices.” (Ibid.)
Plaintiff
shows defendants violated the NAL and the public nuisance law as discussed
above. The same violations constitute
unlawful business acts under Business and Professions Code section 17200.
Defendants Did Not Show Any Triable Issues of Material Fact
Defendants do not meet their burden of demonstrating any
triable issues of material fact that would preclude summary judgment. They 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
plaintiff’s fact Nos. 4 to 105. It
relies on the same argument and evidence for all 102 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 any 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 a permanent 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.)
On January 25, 2023, the court continued this hearing to
permit defendants to conduct further discovery under Code of Civil Procedure
section 437c(h). Defendants filed no new
papers. Plaintiff filed a notice of
non-opposition. Plaintiff’s supporting
declaration states, “Defendants
have not propounded any discovery as of the date of this declaration.” (Hagan Decl., ¶ 3.) Defendants still have not presented evidence showing
a triable issue of material fact. The
undisputed facts show plaintiff is entitled to judgment as a matter of law on
all three causes of action.
Remedies
A. Civil Penalties for Unfair Competition
The court must impose
civil penalties on defendants for all violations of the unfair competition law
plaintiff has proven. “Any person who
engages, has engaged, or proposes to engage in unfair competition shall be
liable for a civil penalty not to exceed two thousand five hundred dollars
($2,500) for each violation.” (Bus.
& Prof. Code, § 17206(a).) “The
court shall impose a civil penalty for each violation of this chapter. In assessing the amount of the civil penalty,
the court shall consider any one or more of the relevant circumstances
presented by any of the parties to the case, including, but not limited to, the
following: the nature and seriousness of the misconduct, the number of
violations, the persistence of the misconduct, the length of time over which
the misconduct occurred, the willfulness of the defendant’s misconduct, and the
defendant’s assets, liabilities, and net worth.” (Bus. & Prof. Code, § 17206(b).)
Plaintiff has proven
defendant Mao & Qun Co., Inc. is liable for 26 violations and defendant G.
Victoria Co., Ltd. is liable for 21 violations.
The nature of the nuisance was serious and dangerous. There were numerous violations, and they
persisted and occurred over several years.
The record includes minimal evidence of defendants’ assets, liabilities,
and net worth. The evidence of willfulness,
however, is minimal. After considering
all relevant factors, the court concludes the penalty shall be $500 per
violation, for a total of $13,000 in penalties against defendant Mao & Qun
Co., Inc. and $10,500 in penalties against defendant G. Victoria Co., Ltd.
B. Civil Penalties for Nuisance
Plaintiff seeks a
$25,000 civil penalty against each defendant.
For violations of the NAL, “the court may assess a civil penalty not to
exceed twenty-five thousand dollars ($25,000) against any or all of the defendants,
based upon the severity of the nuisance and its duration.” (Health & Saf. Code, § 11581(b)(2).) Based on the severity of the nuisance and its
duration, the court exercises its discretion to impose a penalty of $12,500
against each defendant.
C. Costs, and Attorney Fees
Civil Code section 3496(c) provides that “the court may award
costs, including the costs of investigation and discovery, and reasonable
attorney’s fees, which are not compensated for pursuant to some other provision
of law, to the prevailing party” in an action under Health and Safety Code
section 11570. Recoverable costs include
“salaries and overhead for police officers and technicians” and “the costs of
police services as investigative costs” when they have a “sufficient causal
connection between such activities and the abatement action.” (City of Oakland v. McCullough (1996)
46 Cal.App.4th 1, 8.)
Plaintiff seeks $24,375 in attorney fees for 65 hours of work
at $375 hourly. Plaintiff also seeks
$3,700 for paralegal costs. The court
finds plaintiff reasonably incurred all attorney fees and paralegal costs.
Plaintiff also seeks $58,488.21 in costs of investigation. The court finds plaintiff reasonably incurred
all costs of investigation. Plaintiff
shows a sufficient causal connection between the investigative activities and
this abatement action. Plaintiff
presents adequate evidence that $31,493.07 of the investigative fees were
incurred while defendant G. Victoria Co., Ltd. operated the motel. The court therefore will allocate $31,493.07
of these costs to defendant G. Victoria Co., Ltd. and the remaining $26,995.14
to defendant Mao & Qun Co., Inc.
D. Abatement and Closure
Plaintiff also seeks an
order closing the property for one year under the NAL. “If the existence of the nuisance is
established in the action, an order of abatement shall be entered as a part of
the judgment.” (Health & Saf. Code,
§ 11581(a).) “The order shall provide
for the effectual closing of the building or place against its use for any
purpose, and for keeping it closed for a period of one year.” (Health & Saf. Code, § 11581(b)(1).) The NAL “give[s] priority to closure.” (Ibid.) But “[i]f the court finds that any vacancy
resulting from closure of the building or place may create a nuisance or that
closure is otherwise harmful to the community, in lieu of ordering” closure,
the court may award plaintiff “damages in an amount equal to the fair market
rental value of the building or place for one year.” (Health & Saf. Code, § 11581(c)(1).)
The court does not find
that closing the property would result in a nuisance or otherwise harm the
community. The court will therefore
issue an order that the building shall be closed for one year.
E. Permanent Injunction
The court will discuss the
proposed permanent injunction at the hearing on this motion.
Disposition
The court hereby grants plaintiff The People of the
State of California’s motion for summary judgment against defendants Mao &
Qun Co., Inc. and G. Victoria Co., Ltd.
Defendant Mao & Qun Co., Inc. shall pay $13,000 in civil
penalties under the unfair competition law and $12,500 in civil penalties under
the NAL. Plaintiff shall recover
$26,995.14 in investigative costs from defendant Mao & Qun Co., Inc. Defendant G. Victoria Co., Ltd. shall pay
$10,500 in civil penalties under the unfair competition law and $12,500 in
civil penalties under the NAL. Plaintiff
shall recover $31,493.07 in investigative costs from defendant G. Victoria Co.,
Ltd.
Defendants Mao & Qun Co., Inc. and G. Victoria Co., Ltd.
shall be jointly and severally liable to plaintiff for $28,075 in reasonable attorney
fees and paralegal costs.
The court further orders that the property at 503 W. Athens
Blvd., Los Angeles, California 90044 (the site of the Edge O Town Motel) shall
be closed for one year.