BACKGROUND

On February 23, 2023 – to streamline the legal issues and avoid delay during the upcoming scheduled jury trial - the parties stipulated to waive the extended notice requirements for hearing motions for summary judgment, as well as motion cut-off dates, so each side could bring their own such motion.

On February 28, 2023, Plaintiffs filed a motion for summary adjudication as against defendant Victor Orozco (“Orozco”) seeking to establish his liability for wrongful taking of property of plaintiff JCJ Corporation (“JCJ”) based upon the assertion of a “judicial admission” that he did not provide notice to JCJ in advance of the incident on June 5, 2017.1

On February 28, 2023, Defendants filed a motion for summary judgment that plaintiffs Michael Fletcher (“Fletcher”) and Zach Miller (“Miller”) had no standing to pursue the pending second amended complaint related to the action by City on June 5, 2017 to abate an alleged nuisance arising from the operation by JCJ of a marijuana dispensary at 609 N. Long Beach Blvd in Compton (“the Property”). They also sought summary adjudication as to various causes of action on grounds of immunity.

On March 7, 2023, Orozco filed Opposition to the motion against him.

On March 7, 2023, Plaintiffs filed Opposition to the motion against them.

On March 13, 2023, City of Compton (“City”) and Orozco filed a Reply in further support of their motion.

On March 13, 2023, Plaintiffs filed a Reply in further support of their motion.

On March 14, 2023, the Court continued the hearing date from March 20 to March 27.

On March 15, 2023, Plaintiffs filed Supplemental Briefing re: qualified immunity.2

DISCUSSION

1. Plaintiffs’ Motion against Orozco

The basis for this motion is certain deposition testimony of the former City Manager of City, Cecil Rhambo, as well as of Orozco, that Plaintiffs contend would be a judicial admission that Plaintiffs did not receive notice or a hearing prior to the action in question.3 This testimony cannot serve as the basis for a judicial admission of this proposition against Orozco for several reasons:

First, deposition testimony cannot be the basis for a judicial admission that would preclude any other evidence on that issue: Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452 (concerning pleadings).4

Plaintiffs’ reliance on Brigante v. Huang (1993) 20 Cal.App.4th 1569 is misplaced where that case concerned responses to requests for admission, not deposition testimony. Similarly, their reliance on Valerio v. Younquist Construction (2002) 103 Cal.App.4th 1264 is likewise unavailing where that case concerned an answer to a cross-complaint; again, not deposition testimony.

D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22, on which Plaintiffs also rely, pertaining to use of deposition testimony on a summary judgment motion, as here, however, addresses a much more limited situation - but does not establish that deposition testimony can serve as a “judicial admission” to bar any other evidence on the issue in question: Specifically, D’Amico holds that a court may permissibly disregard a self-serving, conclusory declaration filed in opposition to a summary judgment motion that is clearly contradicted by that person’s prior deposition testimony. Id. In other words, a party cannot create a triable issue of fact to defeat a summary judgment motion.

Moreover, “D’Amico…does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.” See CAL. PRAC. GUIDE: Civil Procedure Before Trial (TRG), sec. 10:156.15 (citing various cases) Hence, Plaintiffs’ argument that Orozco’s deposition testimony precludes all other evidence (including other parts of Orozco’s deposition testimony or of other witnesses – which would be true if there was a judicial admission) on the issue is without merit.

At his deposition, Orozco testified that JCJ had not received prior notice of the City’s intended action, that Orozco himself did not provide any such notice and that due process required such notice. What this omits, however, is that neither the City nor Orozco were required to give notice of its intended action where Judge Kelvin Filer had issued a warrant excusing City from having to provide notice before the City took the actions permitted of forcibly entering, inspecting and abating the nuisance at the premises.5 See p. 6, ln 14-16 of warrant attached as Ex. 4 to Glass Decl. in opposition to motion.6 CCP sec. 1822.51 permits the Court to issue a warrant without first securing consent or “facts and circumstances reasonably justifying the failure to seek such consent.” Hence, the entire premise of this motion is misplaced. Orozco’s Declaration – that he took the actions he did on June 5, 2017 pursuant to the warrant - is not inconsistent with his deposition testimony.

Furthermore, it is also worthy of note that JCJ had received notice of City’s position that it was unlawfully operating a dispensary before the action in question on June 5, 2017: As set forth in Orozco’s affidavit in support of issuance of a warrant (that he testifies to signing in his declaration in support of this motion (and was also received into evidence at the 402 hearing)), City notified JCJ of its position that it could not lawfully operate a dispensary by “yellow tagging” the Property on March 16, 2017 and again by a further inspection on May 31, 2017.7 City’s action here cannot reasonably be perceived to have been an unanticipated governmental action.

The deposition testimony of the former City Manager, Cecil Rhambo, that the City allegedly did not have a warrant cannot serve as a judicial admission - not only because deposition testimony cannot be the basis for a judicial admission - but also because he was not a party to the action when he provided deposition testimony. Only a party can make a party admission. Further, according to Orozco, Rhambo lacked any personal knowledge to know whether City had or had not obtained a warrant. Without Plaintiffs providing the entire transcript of Rhambo’s deposition, the Court cannot determine whether Rhambo had sufficient basis to make this statement that it should then serve as the basis for any admission if even permissible.

In addition, Plaintiffs’ assumption that JCJ was entitled to a hearing (as well as notice) in advance of City taking action to abate a nuisance is misplaced: As indicated below, a nuisance may be abated through an administrative process – which will ultimately provide opportunity for a hearing (and subsequent review in the Superior Court) – or by way of judicial warrant in the first instance.

Compton Municipal Code (“CMC”) sec. 24-2 states:

Any premises, in whole or in part, found to be maintained in violation of the subsection 24-2.2 is declared to be a public nuisance and may be abated by rehabilitation, correction, repair, demolition, removal or clearing pursuant to the procedures set forth herein. The procedures for abatement shall not be exclusive and shall not in any manner limit or restrict the City from enforcing other City ordinances or abating public nuisances in any other manner as provided by law. (Emphasis added.)

In other words, City can abate – as it did here - a nuisance by seeking permission from a court instead of following its own procedures, as permitted by CCP sec. 1822.50 et seq. See Griffith v. City of Santa Cruz (2012) 207 Cal.App.4th 982, 992

CMC section 24-3.7 provides further:

Notwithstanding any other provision of this Chapter with reference to the abatement of public nuisances, whenever the City Manager or his/her authorized designee(s) determine that a property or any building and/or structure thereon is dangerous and constitutes an immediate threat to the health, safety or welfare of persons or property, he/she shall, without observing the provisions of this Chapter with reference to abatement procedures, immediately and forthwith abate such public nuisance. Where such condition exists, and the abatement is immediately required, a record of and a hearing to confirm the expenses and costs of abatement shall be held in the same manner that other abatement costs are recovered pursuant to this Chapter. (Emphasis added.)

In other words, in the case of an emergency, the CMC contemplates the administrative hearing after abatement of the nuisance.8

Finally, consistent with the rules allowing other evidence to be offered evidence in opposition to the motion, the deposition testimony of one of the plaintiffs, Miller, in any event rebuts the contention there was no warrant. See Ex. 2 to Glass Decl., p. 64, ln. 19-23. Miller admits that he was served with a warrant prior to the inspection. This itself creates a triable issue of fact.9

In view of the foregoing significant issues with the motion as a factual matter, the Court does not need to now reach the immunity defenses Orozco asserts that would be relevant if the facts were otherwise undisputed. Those issues are instead discussed below in conjunction with defendants’ counter motion for summary judgment and or summary adjudication.

That the Court is now denying Plaintiffs summary adjudication premised upon the alleged judicial admission is a decision solely as to that issue. The Court will issue a separate tentative statement of decision as to the admissibility of the warrant at trial based upon the various contentions presented at the Evid. Code sec. 402 hearing on that issue.

2. Defendants’ Motion against Plaintiffs

This Motion is premised upon three theories; first, as to Fletcher and Miller, that they lack standing to bring this complaint. Second, that Orozco, as a City employee, is immune from any state law liability based on provisions of the Government and Building Codes, and under Federal qualified immunity for any violation of their civil rights. Third, that City also has immunity.

Standing

Plaintiffs do not dispute that the warrant was executed on the dispensary operated by JCJ. There is no claim that this business was either owned by Fletcher or Miller as individuals. Likewise, there is no dispute that the license and certificate of occupancy were issued to JCJ, as a corporation, not to Fletcher or Miller individually. Similarly, the lease of the Property was executed by JCJ. Nor do Plaintiffs present any evidence of an agreement between JCJ, on the one hand, and Fletcher and Miller, on the other hand, as to their receiving a share of JCJ’s revenues.10

Instead, Plaintiffs rely on a hard to follow argument premised on the fictitious business name Compton Chronic.11 Since there is no evidence that Compton Chronic was anything other than a name that Fletcher and Miller used to do business and was not a person or entity (neither an individual nor corporation) with an ability to sue, that JCJ, Fletcher or Miller may have used this fictitious name to do business or enter into agreements makes no difference.12 (The Court was also not provided the registration statement which might show who may have registered the use of this fictitious name.) Any rights the owners of that name might have based on any agreement with JCJ does not give those persons any standing. Any rights Fletcher and Miller may have based on ownership of that name are derivative of JCJ’s rights, including any rights to 70% of any licensing fee from JCJ.13 Miller’s statements in his Declaration in opposition to the motion to the effect that Compton Chronic was itself a separate entity is without foundation.14

Cal.App.4th 305, 312 There is no claim here Fletcher or Miller have any such unique rights as shareholders.

Any generalized or beneficial interest Fletcher or Miller may have in the outcome of this case does not in and of itself provide them standing to sue where it is JCJ that is the real party in interest.15 Indeed, precisely for this reason, Judge Beaudet previously indicated that the complaint would need to be amended to be brought by JCJ, not Fletcher and Miller – who had alone filed the original complaint.16

For these reasons, City and Orozco have met their burden of proving that Fletcher and Miller have a missing necessary element of their claim; i.e., that they are real parties in interest as required under CCP sec. 367. Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 849 In turn, neither Fletcher nor Miller have presented any evidence to create a material triable issue of fact as to that element – as is their resulting burden under CCP sec. 437c(o)(2).17 Browne v. Turner Constr. Co. (2005) 127 Cal.App.4th 1334, 1339

Accordingly, the Court will grant summary judgment against Fletcher and Miller.

Immunity of Orozco

Orozco is and was at the relevant time the Chief Building Officer of the City and hence its employee.

Gov’t Code sec. 820.2 provide that a public employee is not liable for injury resulting from an act or omission resulting from the exercise of discretion vested in that employee.

Here, the conduct in question concerned action taken by Orozco to abate an improperly built interior wall at the business that he determined was a safety issue that required abatement.

Plaintiffs offer no counter-veiling authority that would make sec. 820.2 inapplicable here.

In turn, Gov’t Code sec. 820.4 provides a public employee is not liable for acts or omissions, using due care, in executing or enforcing any law. The foregoing however does not exonerate a public employee for false arrest or false imprisonment.

Here, it is undisputed Orozco took the step of obtaining a judicial warrant prior to enforcing City’s nuisance laws related to marijuana sales. Orozco did not arrest or imprison anyone.

Plaintiffs offer no counter-veiling authority that would make sec. 820.4 inapplicable here.

Orozco also recites Gov’t Code secs. 820.6, 820.8 and 822.2, as well as Building Code sec. 104.8, as additional statutory bases for immunity. In the absence of any argument from Plaintiffs that these would not be applicable, the Court does not need to address those further.

In view of the foregoing statutory immunity under state law, Orozco can have no liability under the 1st and 12th causes of action.18

The Court does not need to reach Plaintiffs’ argument that qualified immunity does not apply to claims under state law, under Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, where there is statutory immunity and there are in any event no applicable state constitutional civil rights causes of action. 19 In turn, Venegas does not mean that defendants cannot be entitled to qualified immunity for the federal claims.20

As to the 5th, 6th and 7th causes of action related to the alleged violation of civil rights under 28 USC sec. 1983, the Court turns to the qualified immunity cases under Federal law that defendants rely upon. Plaintiffs do not dispute as a general proposition that the cited authority provides that a defendant may be entitled to immunity for these causes of action under federal law.

However, as to whether in this case Orozco may be entitled to qualified immunity for the federal law causes of action for violation of civil rights, those cannot be decided as a matter of law by way of this motion for summary adjudication:

The Court has just completed a multi-day evidentiary hearing on the admissibility of the warrant that is a key issue as to whether the City’s action was lawful. See Venegas, supra, 153 Cal.App.4th 1230 (discussing in detail whether there were undisputed facts to allow summary adjudication based on qualified immunity for various causes of civil rights actions) If the warrant were determined not to be valid, this would impact whether City’s action was lawful and in turn whether there could be immunity. There were innumerable factual disputes here related to the validity of the warrant that caused the Court to hold that 402 hearing, including but not limited as to Fact No. 6 in defendants’ motion for summary adjudication as to immunity; namely whether the business license issued to JCJ to engage in certain activities listed in the license also permitted JCJ to operate a marijuana dispensary at the Property.

Though Plaintiffs contend there was a judicial admission by City on this issue – which there was not (as discussed above) – Plaintiffs refer to David Dent (the then City Manager of Licensing) allegedly indicating “JCJ was licensed and authorized to operate a fully integrated medical marijuana collective.” At the 402 hearing, the Court received into evidence Ex. 14 – an email from David Dent to Fletcher dated December 16, 2016 which states in relevant part: “If everything you are doing is legal please e-mail your documentation for a nonprofit collective corporation, city business license, and you would be ok to operate.” (Emphasis in original.) For purposes of summary adjudication, the foregoing creates a basis to dispute Fact No. 6. The Court does not rely on the other alleged bases for a dispute in making this ruling.21

As to the 12th cause of action for violation of Art. 1, sec. 19 of the California Constitution, defendants do not argue that they have qualified immunity – which is consistent with Venegas, supra.

Immunity of City

City relies on Gov’t Code sec. 818.8 that a public entity cannot be liable for a misrepresentation by one of its employees. Plaintiffs contend that Orozco misrepresented to Judge Filer that it had previously notified Plaintiffs of the issues City sought to inspect and abate. Plaintiffs do not provide any basis why this Government Code section should not apply here. However, even assuming immunity attaches to those statements, the causes of action against City are not premised solely upon alleged misrepresentations by City. These causes of action also turn on whether City was entitled to take action prior to giving notice and a hearing. Hence, statutory immunity does not present a complete defense. As far as any qualified immunity of City, the discussion above as to Orozco applies equally to City.

Hence, the motion of City for summary adjudication based on immunity must be denied.

CONCLUSION

For these reasons, the Court denies Plaintiffs’ motion against Orozco. The Court grants the defense motion in part as follows: Judgment against Fletcher and Miller in favor of both defendants. Summary adjudication against JCJ in favor of Orozco on the 1st and 12th causes of action. The defense motion is denied inasmuch (a) it is brought by City against JCJ and (b) it is brought by Orozco on the 5th, 6th, and 7th causes of action.22 The defense motion is continued to April 12, 2023 as pertains to the 11th cause of action for retaliation. As indicated in footnote 16 above, briefing solely on this issue shall be filed by April 3, 2023.

Footnotes:

1) The Court overlooks the immaterial failure to identify in the notice of motion the precise issue to be adjudicated, as required by Calif. Rules of Court, Rule 3.1350(b) where the issue is set forth in their Separate Statement.


4) Significantly, in response to Request for Admission nos. 60 and 61, City did not admit that it had not obtained a warrant; stating it had obtained an inspection warrant to conduct the action taken on June 5, 2017 (as opposed to a search warrant). See Ex. 4 to Fletcher Decl. in support of the motion. In other words, if City admitted anything it was that no notice or hearing was required because it had secured a warrant.


7) In turn, the owners of the Property had also been separately advised a dispensary could not be operated at the Property by way of an earlier warrant issued in May 2015.




17) Plaintiffs dispute Fact Nos. 6, 7, 9, 10 and 11 in defendants’ Separate Statement: However, the issues raised do not refute there is no disputed fact as to Plaintiffs’ standing: What activities the license did or did not authorize does not change who or what was conducting the business. As discussed below, the Court is overruling the objection to admission of the warrant. That Fletcher and JCJ were both subsequently evicted from the Property, and that the landlord believed he was improperly occupying the Property also does not mean he was himself conducting business there individually. It is not disputed that Fletcher was involved in operating the dispensary. The question was in what capacity. Finally, what rights Fletcher and Miller may have under their agreement with JCJ does not change that it was JCJ’s business or that their use of the fictitious business name Compton Chronic means that name was thereby a person which could sue. The Court has sustained the objections to the contentions of Fletcher and Miller in their declarations that Compton Chronic was itself an entity as lacking foundation.

18) On July 10, 2019, the Court (by Judge Beaudet) sustained demurrers of both defendants with leave to amend as to the 2nd, 3rd, 4th, 8th, 9th and 10th causes of action in the second amended complaint. Where Plaintiffs did not timely amend their complaint, those causes of action are subject to dismissal. Wells v. Marina City Properties (1981) 29 Cal.3d 781 What remains against Orozco are the 5th, 6th, 7th and 11th causes of action.


21) Whether JCJ was in fact licensed to operate a dispensary at the Property will be addressed separately when the Court issues its tentative statement of decision on the 402 hearing.

22) What remains pending are the following causes of action of JCJ: the 1st cause of action for “eminent domain” and related 12th cause of action for violation of Art. 1, sec. 19 of the California Constitution against City, as well as the 5th, 6th and 7th causes of action for violation of its federal civil rights, and the 11th cause of action for retaliation, against City and Orozco.

As to these causes of action, there remain decisions to be provided by the Court after the Evid. Code sec. 402 hearings pertaining to the timeliness and validity of the notices of claim to City as well as concerning the admissibility of the warrant. In addition, there remains a further initial issue for the Court as opposed to a jury: Whether the Constitutional right allegedly violated was a “clearly established” right. See Reese v. Sacramento, 888 F.3d 1030 (9th Cir. 2018), Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017) The Court has also now taken this issue under submission.