Judge: Ashfaq G. Chowdhury, Case: 24NNCV00087, Date: 2025-02-14 Tentative Ruling
Case Number: 24NNCV00087 Hearing Date: February 14, 2025 Dept: E
Case No: 24NNCV00087
Hearing Date: 02/14/2025-8:30am
Trial Date: UNSET
[TENTATIVE RULING ON
MOTION FOR PRELIMINARY INJUNCTION]
RELIEF REQUESTED
“Plaintiff City of Monterey
Park (“City”) will and hereby files this Motion for Preliminary Injunction
(“Motion”).
The City hereby brings forth this Motion
pursuant to Code of Civil Procedure sections 731 and 527, subdivision (a),
which, in tandem, empower the City to seek preliminary relief in a pending
nuisance action. By and through this Motion, the City seeks seek two
interrelated orders – (1) an order that prohibitively enjoins Defendants from
using unlicensed contractors, including themselves, from acting in the capacity
of a general contractor regarding construction at their property located at 795
N. Garvey Ave., Monterey Park, CA 91754, APN 5256-003-034 (the “Property”), and
(2) an affirmative order that Defendants proceed with timely completion of
construction of the Property through a competent construction management
consultant and licensed general contractor. The City further brings this Motion
pursuant to the Court’s plenary powers in providing preliminary relief. (See IT
Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)
This Motion is based upon: this Notice of
Motion; the attached Memorandum of Points and Authorities; the Request for
Judicial Notice; Declarations of Dennis Tarango, Rey Lozano, and Ziad Mazboudi;
the pleadings, records, papers and other documents on file in the above-referenced
matter; pleadings, records and papers upon which judicial notice may be
properly taken; and upon such further oral and documentary evidence as may be
presented at or prior to the hearing on this matter.”
(Pl. Mot. p. 2-3.)
PROCEDURAL
Moving Party: Plaintiff, City of Monterey Park (Plaintiff or
Movant)
Responding Party: Defendants,
Edward M. Chan, Howard Chan, Man-Fei Chan Gold, and Patricia Yu Chan
Moving Papers: Notice/Motion;
City’s Request for Judicial Notice; Proposed Order
Opposition: Opposition;
Raymond Chan Decl.; Andrew O. Krastins Decl.; Chris Lindsey Decl.; William Lau
Decl.; Edward M. Chan Decl.; Request for Judicial Notice; Kristion Grbavac
Decl.; Evidentiary Objections; Proposed Order Evidentiary Objections;
Declaration Gang Expert; Proof of Service; Notice of Errata; Amended Kristion
Grbavac Decl.;
Reply: Reply
Proof of Service
Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): No -See in tentative ruling
BACKGROUND
The
initial Complaint in this action was filed on 3/5/2024.
On 8/23/2024, Plaintiffs, The People of the State of
California, by and through the City Attorney for the City of Monterey Park, and
City of Monterey Park, a Municipal Corporation, filed the First Amended
Complaint on 8/23/2024.
The FAC alleges two causes of action for (1) Public
Nuisance and (2) Petition for Order Authorizing Appointment of a Receiver and
Requiring Reimbursement.
TENTATIVE RULING
Overall, neither party’s papers regarding this
motion are the model of clarity. Plaintiff goes into a long-winded history
about the subject property (795 W. Garvey Ave., City of Monterey Park) at issue
in this action. Despite going into a six-page history of the subject property, Plaintiff
leaves it unclear as to why this alleged history is legally relevant for
purposes of this motion. Further, on several occasions, Plaintiff miscites
legal authority.
Defendants’ opposition papers are even more bewildering
than Plaintiff’s moving papers.
The vast majority of Defendants’ Opposition is
entirely legally irrelevant for purposes of this motion, and at times
irrelevant for purposes of this case as a whole. Many times, Defendants make
arguments without providing legal authority to support their arguments.
Further, a vast majority of Defendants’ Opposition is entirely unresponsive to the
arguments that Movant brought up in its moving papers.
Service
At the hearing, Movant
should address why it did not serve the moving papers on all the Defendants
named in this action.
It appears that Defendants Edward M. Chan, Patricia
Yu Chan, Man Fei Chan, and Howard M. Chan were properly served the moving
papers.
Although Movant’s proof of service indicates
service via email on Raymond Man-Shu Chan, as Trustee of the Chan Family Trust,
to tstephen@cjbllp.com and acohen@cjbllp.com, eCourt lists counsel for this
Defendant as sjohnson@cjbllp.com. Since this Defendant did not submit an
Opposition, Movant should address why the email address listed on eCourt for
this Defendant was not served.
Further, Raymond Man-Shu Chan, as Trustee of the
Chan Family Living Trust, [not to be confused with Raymond Man-Shu Chan, as
Trustee of the Chan Family Trust], who was named as Doe 2 on 12/20/2024, is not
listed on Movant’s proof of service. Since this Defendant did not submit an
opposition, Movant should address why it did not serve this Defendant.
Additionally, the following Defendants were not
listed on Movant’s proof of service for the moving papers: (1) Cindy Chung Chan,
as Trustee of the Chan Family Trust; (2) Southern California Edison Company, a
California Corporation; (3) Equilon Enterprises, LLC, a Delaware limited
liability company; and (4) Edward M. Chan, as Trustee of the Chan Family Living
Trust. Since none of these Defendants submitted an opposition, Movant should
address why it did not serve these Defendants.
Defendants Edward M. Chan, Patricia Yu Chan, Man
Fei Chan, and Howard M. Chan, were the only Defendants that submitted an
opposition to this motion. Unsurprisingly, those are the only Defendants that
appeared to be properly served the moving papers. Every other defendant that
was either served at a different email address than the one listed on eCourt,
or not served at all, did not submit an opposition.
Reasonable Probability
Plaintiff explains that
traditionally, courts evaluate whether or not to grant a preliminary injunction
based on two interrelated factors. “The first is the likelihood that the
plaintiff will prevail on the merits at trial. The second is the interim harm
that the plaintiff is likely to sustain if the injunction were denied as
compared to the harm that the defendant is likely to suffer if the preliminary
injunction were issued.” (IT Corp. v. County of Imperial (1983) 35
Cal.3d 63, 69-70.)
Plaintiff then goes on to say that with
governmental entities, the standard is different, and that the governmental
entity need only establish it is “reasonably probable” it will prevail on the
merits.
On page 14, line 26, of Defendants’ Opposition,
Defendants agree that reasonable probability is the standard.
Whether or not “reasonably probable” is actually
the correct standard, since both parties seem to agree on this standard, the
Court will use this standard to evaluate the instant motion.
Plaintiff then goes into a detailed description
about how the legislature has empowered the city to declare a public nuisance.
Plaintiff then explains how if a public entity declares something to be a
nuisance, its mere existence becomes a nuisance per se and no inquiry beyond
its existence is necessary to establish the nuisance. Defendants do not dispute
this legal standard.
Under Monterey Park Municipal Code § 4.30.050:
It is unlawful and it is declared to be a public nuisance for any
person owning, leasing, occupying, or having charge or possession of any
residential, agricultural, commercial, industrial, business park, office,
educational, religious, vacant, or other premises within the city, to maintain
such premises in such a manner that any of the following conditions are found
to exist thereon:
Any building or structure which is partially destroyed, damaged,
abandoned, boarded up, dilapidated, or permitted to remain in a state of
partial construction;
(Monterey Park Municipal Code (MPMC) §
4.30.050(c).)
Plaintiff argues that it has established it is
reasonably probable it will prevail on the merits of its nuisance cause of
action because it established that Defendant violated 4.30.050(c) because
Defendants permitted the subject property to remain in a state of partial
construction.
Both parties should be prepared to address the
issue of whether or not Defendants permitted the subject property to remain in
a state of partial construction.
Plaintiff argues that Defendants’ subject
property remained in a state of partial construction because three constructive
building permits expired over the last four years due to the lack of
construction activity.
While Plaintiff argues that “all other nuisances
on the Property flow from it remaining in a state of partial construction,”
Plaintiff is unclear as to what those nuisances are.
Defendants argue that the property is not in a
state of partial construction because the property is an active construction
site and the Chan’s general contractor and licensed professionals have been
working diligently and ceaselessly to bring the project to completion.
Defendants also argues that § 4.30.050(c) is
intended to apply to projects where construction is abandoned entirely and the
project is defunct, not active construction projects. Defendants also argue
that under the City’s interpretation of “partial construction,” all ongoing
development projects would be a de facto code violation while buildings are
under construction.
In Reply, Plaintiff notes that Defendants fail
to explain their seven-year delay between their originally approved LID plans
and their current plans involving a different cistern. Plaintiff also argues
that Defendants do not address still being without a building permit.
Overall, neither party cites to any legal
authority as to what is considered “permitted to remain in a state of partial
construction.”
Mandatory Injunction
Despite the fact that
Defendants conceded that the standard for the instant preliminary injunction is
“reasonably probable,” Defendants also argue that the proposed order that
Plaintiff seeks is a mandatory injunction.
“Injunctions may be either mandatory, in that
they compel a party to take an action, or prohibitory, in that they attempt to
maintain the status quo by restraining a party from taking action.” (Itv
Gurney Holding v. Gurney (2017) 18 Cal.App.5th 22, 29.)
“The rule is well established that a mandatory
preliminary injunction is rarely granted, and it has been held that a very
urgent case is required to justify a mandatory preliminary injunction and that
a clear case of prospective injury is indispensable.” (Alvarez v. Eden Tp.
Hospital Dist. (1961) 191 Cal.App.2d 309, 312.)
Defendants argue that Plaintiff’s proposed order
seeks a mandatory preliminary injunction because the proposed order consists of
a series of construction deadlines subject to City approval and which require
the installation of a custom-made underground tank, the delivery of which the
Chans have no control over.
Defendants argue that Plaintiff did not
demonstrate a clear case of prospective injury.
Plaintiff’s reply does not address Defendants’
arguments on mandatory injunction.
The Court will hear argument. The Court is not
entirely clear as to Defendants’ arguments about a “mandatory injunction”
because a vast majority of Defendants’ arguments on a mandatory injunction on
pages 16-18 of the Opposition are indecipherable. It is confusing how
Defendants concede the existence of the “reasonably probable” standard but then
go on to argue about how there may be a different standard for mandatory
injunctions. In fact, throughout the entire motion, Defendants jump back in
forth between different legal standards, sometimes citing authority, sometimes
not, which makes it unclear to the Court what Defendants are even trying to
argue. Additionally, Defendants rarely address the issues and legal standards
that Plaintiff brings up. Further, it is confusing what Defendants are trying
to argue because overall their motion is indecipherable, many times not rooted
in legal authority, and brings up issues entirely irrelevant for purposes of
this motion.
Indispensable Parties
Opposition argues that indispensable parties
have not been served or have not answered this action. The Court is not
entirely clear as to what Defendants’ argument is here. Defendants cite no
legal authority with respect to whatever point Defendants are trying to make.
The Court will hear argument.
Proposed Order
Although Plaintiff’s
notice of motion indicates that Plaintiff is seeking “(1) an order that
prohibitively enjoins Defendants from using unlicensed contractors, including
themselves, from acting in the capacity of a general contractor regarding
construction at their property located at 795 N. Garvey Ave., Monterey Park, CA
91754, APN 5256-003-034 (the “Property”), and (2) an affirmative order that
Defendants proceed with timely completion of construction of the Property
through a competent construction management consultant and licensed general
contractor,” the Court notes that Plaintiff’s Proposed Order seeks far more
than what the notice of motion seeks.
The Court would like Plaintiff to address this
disparity.
Second Cause of Action
The Court notes that
Plaintiff did not address the second cause of action in this motion. The Court
to hear argument.
Request for Judicial Notice
Plaintiff requests
judicial notice of Exhibit A under Evidence Code 452(d). Exhibit A is an aerial
view of 795 W. Garvey Ave., Monterey Park, CA. Under Evidence Code § 452(d), judicial notice
may be taken of records of (1) any court of this state or (2) any court of
record of the United States or of any state of the United States. The Court is
unclear how an aerial view of the subject property falls under Evidence Code § 452(d).
The Court to hear argument.
As to Defendants’ requests for judicial notice, the
Court grants Defendants’ request for judicial notice of Exhibits 1 and 2 and
denies Defendants’ request for judicial notice of exhibit 3.
Evidentiary Objections
The Court will hear
argument.
Undertaking
“On granting an
injunction, the court or judge must require an undertaking on the part of the
applicant to the effect that the applicant will pay to the party enjoined any
damages, not exceeding an amount to be specified, the party may sustain by
reason of the injunction, if the court finally decides that the applicant was
not entitled to the injunction. Within five days after the service of the injunction,
the person enjoined may object to the undertaking. If the court determines that
the applicant’s undertaking is insufficient and a sufficient undertaking is not
filed within the time required by statute, the order granting the injunction
must be dissolved.” (CCP § 529(a).)
“Notwithstanding
rule 3.1312, whenever an application for a preliminary injunction is granted, a
proposed order must be presented to the judge for signature, with an
undertaking in the amount ordered, within one court day after the granting of
the application or within the time ordered. Unless otherwise ordered, any
restraining order previously granted remains in effect during the time allowed
for presentation for signature of the order of injunction and undertaking. If
the proposed order and the undertaking required are not presented within the
time allowed, the TRO may be vacated without notice. All bonds and undertakings
must comply with rule 3.1130.” (CRC, Rule 3.1150(f).)
The Court will
hear argument as to any proposed undertaking.