Judge Mitchell L. Beckloff, Case Number: 24STCV00205, Date: 2024-03-22 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 24STCV00205, Date: 2024-03-22 Tentative Ruling

Plaintiff, City of Huntington Park, seeks an order declaring 6401 Santa Fe Avenue (the Property) to be a public nuisance in violation of state and local laws with a finding preservation of the the Property is necessary; (2) appointing Blake C. Alsbrook to serve as the Court’s receiver over the Property; (3) granting Alsbrook authority to manage and oversee the rehabilitation of the Property; and (4) enjoining Defendants from allowing or maintaining nuisances on the Property. Defendants, Emelina Alvarez and Marie Fine, oppose Plaintiff’s motion.

Plaintiff’s request for judicial notice is GRANTED pursuant to Evidence Code sections 452, subdivisions (b), (c), (d)(2), (h), and 453.

On January 3, 2024, Plaintiff filed its Complaint for Injunctive and Other Equitable Relief against Defendants Sani-Dip Cleaners, Inc. a/k/a Sani Dip Cleaners, Inc.; Emelina Alvarez, individually and d/b/a Sani-Dip Cleaners, Inc.; Marie Fine, individually and d/b/a Sani-Dip Cleaners, Inc.; and DOES 1 through 50 (collectively, Defendants), asserting causes of action for (1) Public Nuisance (Civ. Code, §§ 3479, 3480, 3491, 3494; Code Civ. Proc., §§ 526, subd. (a)(1), 731); and (2) Public Nuisance Per Se (Huntington Park Municipal Code [HPMC] § 5-35.18).

Pursuant to Code of Civil Procedure section 564, subdivision (b)(9), a receiver may be appointed by the court “in all other cases where necessary to preserve the property or rights of any party.” (Code Civ. Proc., § 564, subd. (b)(9).)[1]

Plaintiff presents evidence Defendants Alvarez and Fine are responsible for the Property. (Sanchez Decl. ¶¶ 6-9; Bollier Decl. ¶ 4.) Ownership of the Property is unclear. (RJN Exhs. A, B.

The Property is improved with a 4,983 square foot, single story commercial building and parking lot. (Bollier Decl. ¶ 3.) The building had previously been occupied by a dry-cleaning service and has been vacant for more than two years. (Bollier Decl. ¶ 3.)

Plaintiff has issued four administrative citations to Defendant Fine for violations of the HPMC. (Haining Decl. Exhs. H, I, J, K.) The citations all note the same violations of the HPMC—graffiti on private property, trash and litter accumulation, poorly maintained and overgrown landscaping, and an improperly maintained wooden fence. (Haining Decl. Exhs. H, I, J, K.) In those administrative citations, Plaintiff advised Defendant Fine she must remove all graffiti from the property and buildings, remove all trash and litter from the parking lot and Property, remove overgrown landscaping that is obstructing the public sidewalk and secure the wooden fence/gate. (Haining Decl. Exhs. H, I, J, K.)

Plaintiff presents evidence Defendant Fine has failed to take action to remedy the HPMC violations for which Plaintiff issued citations to this day. (Supp. Bollier Decl. ¶ 4.)

Notably, none of the citations concern trespassers or squatters. In July 2023, there were reports of a trespasser at the Property. (Bollier Decl. ¶ 10.) At that time, an exterior rear door to the Property was open. (Bollier Decl. ¶ 10.) Plaintiff thereafter removed “many abandoned items and encampments from inside the building.” (Bollier Decl. ¶ 10.)[2]

Plaintiff argues it is entitled to the appointment of a receiver under Code of Civil Procedure section 564, subdivision (b)(9) because Defendants have shown disregard for the law and no intent and ability to comply with the HPMC. Specifically, Plaintiff contends it has attempted all feasible methods to address problems at the Property, including issuing numerous notices, letters, meetings, and even filing this action. Plaintiff presents evidence Defendants have stated and demonstrated on numerous occasions that they lack the financial ability to abate the hazardous and substandard conditions existing at the Property.

Plaintiff also asserts it is not in the business of rehabilitating properties and does not have the resources to do so. Further, Plaintiff argues eminent domain is also not a viable alternative because it is time consuming, costly, and would undercut the public policy that landlords and property owners be responsible for maintaining safe and habitable properties.

Plaintiff contends the appointment of a receiver is authorized under general principles of equity because Defendants have stated their inability to correct the ongoing violations, and Plaintiff has made numerous efforts to compel compliance with the HPMC. As such, Plaintiff requests the Court order the Property be vacated and underlying substandard conditions be corrected or eliminated such that the Property complies with the HPMC.

Plaintiff asserts the Court should appoint Blake C. Alsbrook as the Court’s receiver because he has the necessary expertise both in managing commercial properties and generally performing the duties of a court receiver; will bring the expertise and commitment to this project necessary to abate the violations on the Property as evidenced by his substantial work as a court receiver in other cases; and has the necessary expertise to secure funding, to develop a viable rehabilitation plan and to supervise the satisfactory rehabilitation of the Property.

Alternatively, Plaintiff argues it is entitled to a preliminary injunction under HPMC section 9-2.2407, subdivision (1)(A) and Civil Code sections 3491 and 3494. To this end, Plaintiff contends it need only prove a reasonable probability of prevailing at trial; it is reasonably probable Plaintiff will prevail on the merits of its claim for nuisance per se; is likely to prevail on the merits of its claim for public nuisance under the Civil Code; and Defendants cannot show grave or irreparable injury to overcome the presumption in Plaintiff’s favor. Specifically, Plaintiff asserts the Property is nuisance and nuisance per se under HPMC and the Civil Code; despite having been repeatedly informed and cited to make corrections, Defendants have failed to bring the Property in compliance with the HPMC; and the requested preliminary injunction will not interfere with Defendants’ lawful possession or use of the Property. Finally, Plaintiff argues it is not required to post an undertaking because it is a government entity.

Defendants Alvarez and Fine argue the Property does not need “preserving” because pending the outcome of the Los Angeles Regional Water Quality Control Board (LARWQCB) findings, the building on the Property will be demolished and appropriate soil decontamination procedures will be undertaken. They also contend Plaintiff has shown no “irreparable” injury in the absence of a receiver or that other remedies would be inadequate—requirements for the appointment of a receiver.

Defendants Alvarez and Fine explain they have no intention of rehabilitating or using the building on the Property for any purpose because the chemical contamination at the site has effectively condemned the Property. (Fine Decl. ¶ 7.) They believe the building will need to be demolished as part of any soil cleanup at the site, and the building has no commercial value nor ability to be economically rehabilitated into a useful form. (Fine Decl. ¶ 7.)

Defendants Alvarez and Fine also contend any HPMC violations cannot be a public nuisance since the building is not being utilized by anyone, including any members of the public. They report they retained workers to clean up the Property including painting over Graffiti, cleaning up any trash and litter and overgrown weeds on the site after receiving the citations. (Fine Decl. ¶ 8.) Defendants Alvarez and Fine argue a receiver is not necessary to perform any of the tasks for which a citation was issued, nor would one be appropriate because the court could make appropriate clean-up orders in the form of injunctive relief.

In reply, Plaintiff argues the Property is dangerous and in need of preservation and abatement because it is a vacant commercial property at-risk for break-ins thereby demonstrating a receiver is warranted.[3] Plaintiff further argues Defendants Alvarez and Fine fail to show LARWQCB’s approval is required for them to take any action; fail to show that Barnett Tool & Engineering Company will be responsible for abating the nuisance condition of the building itself not just the soil; and fail to demonstrate that any of Barnett Tool & Engineering Company’s theoretical abatement actions will occur within a reasonable timeline, if at all. By contrast, Plaintiff contends LARWQCB has confirmed that the Property can be rehabilitated, demolished, or sold as long as the soil is not excavated. (Mikalian Decl., ¶ 5.)

Plaintiff also asserts once a receiver is appointed, the Court can approve a plan that seeks to rehabilitate or demolish, and potentially sell the Property without any limitations by LARWQCB. Plaintiff also argues the Court has authority to appoint a receiver even if demolition is the most likely outcome.

Plaintiff reports despite having had nearly two months from the time of the ex parte hearing, Defendants continue to do nothing to bring the Property into compliance with the HPMC and downplay the dangerous conditions that exist at the Property and its impact on neighboring businesses and the community as a whole.[4] (Fine Decl. ¶ 8; Mikalian Decl. ¶ 4, Ex. 1; Bollier Decl. ¶ 4, Ex. A.) Plaintiff also contends the owner of the Property has not objected to the appointment of a receiver.

The court finds Plaintiff has not established the appointment of a receiver is necessary under these facts. Plaintiff has not demonstrated how the appointment of a receiver is “necessary to preserve the property or rights of any party.” (Code Civ. Proc., § 564, subd. (b)(9).) There appears to be no issue related to preservation of the Property. While Plaintiff asserts there is a risk to the Property from vagrants, Plaintiff has presented no evidence law enforcement or public safety officials have been engaged for such problems with the Property since July 2023.[5] The citations issued—and the most recent photographs of the Property—do not suggest a receiver is necessary to preserve the Property. Preserving the Property does not equate to picking up minimal trash in the parking lot or minimally overgrown landscape trimming. A receiver is also not necessary to preserve the Property to paint over a seemingly single spot of graffiti tagging on the building.

To the extent Plaintiff believes the Property and the building on it presents a health and safety threat, Plaintiff has other avenues available to it to address the problem. (See, e.g., Health & Saf. Code, § 17980.) Code of Civil Procedure section 564, subdivision (b)(9) does not support the appointment of a receiver under these facts.

Based on the foregoing, the motion for the appointment of a receiver pursuant to Code of Civl Procedure section 564, subdivision (b)(9) is denied.

[1] The court finds City & County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, relied upon by Plaintiff, inapposite. There, the court relied on Code of Civil Procedure section 564, subdivision (b)(3) as the authority to appoint a receiver. As there is no judgment of nuisance here, this cannot be a post-judgment appointment of a receiver to aid the enforcement of a judgment.

[2] Bollier’s declaration references an Exhibit Q which is not attached to his declaration.

[3] Plaintiff has provided no evidence of trespassers or squatters at the Property after July 2023.

[4] Certainly, the Property is unsightly. It is not clear to the court the Property represents a dangerous condition in its current state. There is also no evidence of any impact on neighboring businesses or the community.

[5] In reply, Plaintiff presents hearsay evidence from “two different nearby residential neighbors” that “transients occupy the outside and inside of the building leaving behind trash and human waste.” (Bollier Reply Dec. ¶ 4.)