Judge: Peter A. Hernandez, Case: 21PSCV00609, Date: 2023-09-19 Tentative Ruling

Case Number: 21PSCV00609    Hearing Date: September 19, 2023    Dept: K

Plaintiff City of La Puente’s Motion for Preliminary Injunction is GRANTED.

Background   

Plaintiff City of La Puente (“Plaintiff”) alleges as follows:

Since at least 2013, the properties located at 17305, 17039, 17369 and 17371 E. Valley Boulevard, La Puente, CA 91744 (“the properties”) have been the subject of recurring hazardous and substandard property conditions and other unlawful conditions due to inadequate maintenance and/or neglect, including dilapidated and fire damaged structures. Defendants have failed to comply with multiple notices and correspondence issued by Plaintiff.

On July 27, 2021, Plaintiff filed a complaint, asserting causes of action against Defendants EML, LLC (“EML”), Mohamed Iqbal Bholat (“Bholat”) (collectively, “Defendants”) and Does 1-50 for:

1.                  Public Nuisance

2.                  Municipal Code Violations

3.                  Declaratory and Injunctive Relief

A Post-Mediation Status Conference is set for February 5, 2024.

The Final Status Conference is set for March 11, 2024. Trial is set for March 25, 2024.

Legal Standard

“An injunction is a writ or order requiring a person to refrain from a particular act.” (Code Civ. Proc., § 525.) “While the statute seems to limit that definition to prohibitory injunctions, an injunction may also be mandatory, i.e., may compel the performance of an affirmative act. In short, an injunction may be more completely defined as a writ or order commanding a person either to perform or refrain from performing a particular act.” (McDowell v. Watson (1997) 59 Cal.App.4^th 1155, 1160.)

“[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. 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.) “The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4^th 668, 678.)

However, “[w]here a governmental entity seeking to enjoin the alleged violation of an ordinance which specifically provides for injunctive relief establishes that it is reasonably probable it will prevail on the merits, a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant. If the defendant shows that it would suffer grave or irreparable harm from the issuance of the preliminary injunction, the court must then examine the relative actual harms to the parties.” (IT Corp., supra, 35 Cal.3d at 72.)

Discussion

Plaintiff moves the court, pursuant to La Puente Municipal Code (“LPMC”) Section 3.20.180 and Code of Civil Procedure Sections 526 and 527, for an order enjoining EML from maintaining a public nuisance at the real properties identified as Assessor’s Parcels Nos. 8263-001-049 (17305 East Valley Boulevard, La Puente), 8263-001-046 (17309 East Valley Boulevard, La Puente), 8263-001-043 (17369 East Valley Boulevard, La Puente) and 8263-001-050 (17371 East Valley Boulevard, La Puente) (together, the “Subject Properties”) and requiring EML to abate the public nuisances.

More specifically, Plaintiff seeks an injunction enjoining EML and its agents, employees, servants, successors, or assigns, or anyone acting on its behalf or in concert with it, from: (1) maintaining the Subject Properties in violation of the LPMC; (2) maintaining substandard, deteriorated asphalt on the Subject Properties; (3) maintaining any building or structure on the Subject Properties in a deteriorated or defective condition; (4) maintaining any building or structure on the Subject Properties with graffiti; (5) maintaining any building or structure on the Subject Properties with broken windows; (6) maintaining any building or structure on the Subject Properties such that it is unsecured and open to trespass; (7) maintaining the Subject Properties with junk, trash, debris, and other improperly stored personal property and (8) maintaining the Subject Properties with overgrown vegetation or dead, decayed, diseased or hazardous weeds, trees, ground cover, and other vegetation.

Plaintiff also requests an order, incidental to and in furtherance of the foregoing injunction, that EML do the following within 30 days of service of the preliminary injunction order: (1) repair, re-slurry, repave, or otherwise restore all areas with substandard, deteriorated asphalt on the Subject Properties; (2) repair or replace the exhaust/intake vent on the south wall of the Bodega Market at the Subject Properties; (3) remove all junk, trash, debris, and outdoor storage of crates, merchandise, vending machines, and other personal property from the exterior of the Subject Properties; (4) Repair or repaint deteriorated exterior wall coverings on the Subject Properties; (5) Replace the light pole and light in location of empty pole base in the parking lot on the Subject Properties; (6) abate all graffiti on the Subject Properties; (7) remove all barbed wire from the Subject Properties; (8) repair and restore to a safe and functional condition the damaged and deteriorated walkway ceiling behind the salon and along the path leading to the rear laundromat on the Subject Properties; (9) replace all broken windows on the Subject Properties; (10) board up and secure any vacant building on the Subject Properties, including painting of the plywood to match the building color and (11) remove or attend to all overgrown vegetation or dead, decayed, diseased or hazardous weeds, trees, and vegetation.

Request for Judicial Notice

At the outset, the court rules on Plaintiff’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., grant deed for the Subject Properties recorded April 28, 2008); Granted as to Exhibit B (i.e., LPMC Sections 1.08.020, 1.08.030, 1.08.050, 1.08.060, 3.20.030, 3.20.040, 3.20.070, 3.20.170 and 3.20.180).

Merits

The right of a municipality to seek enforcement of its laws and regulations through the issuance of an injunction has long been established in California. (See City of San Mateo v. Hardy (1944) 64 Cal.App.2d 794, 797.) “By ordinance the city legislative body may declare what constitutes a nuisance.” (Gov. Code § 38771.) “[T]he legislative body may by ordinance establish a procedure for the abatement of a nuisance. . .” (Gov. Code § 38773.5). “[A] nuisance per se arises when a legislative body with appropriate jurisdiction, in the exercise of the police power, expressly declares a particular object or substance, activity, or circumstance, to be a nuisance. . .where the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1207.) “Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.” (McClatchy v. Laguna Lands, Limited (1917) 32 Cal.App. 718, 725.)

LPMC Section 1.08.060 provides that “[i]n addition to other penalties provided by law, any condition caused or permitted to exist in violation of any provision of this code is deemed to be a public nuisance and may be summarily abated as such by the city, and each day that condition continues will constitute a new and separate offense.”

Plaintiff has proffered the following evidence:

The Subject Properties, although identified by separate parcel numbers, are adjacent to each other, are commonly known as 17305-17371 Valley Boulevard, La Puente and comprise a commercial shopping center/plaza and large parking lot for customers who may visit the businesses within the shopping center/plaza (Tellez Decl., ¶ 3) The Subject Properties are owned by EML (Id., ¶ 5; see also, RJN, Exh. A). Since at least 2013, the Subject Properties have been the subject of recurring hazardous and substandard property conditions and other unlawful conditions due to inadequate property maintenance and/or neglect, including dilapidated and fire damaged structures. (Tellez Decl., ¶ 6). Plaintiff issued a Notice of Violation to EML on September 14, 2017, as well as notices on February 12, 2021 and on or about April 29, 2021. (Id., ¶¶ 7, 12 and 14, Exh. G). Additionally, Plaintiff’s attorneys issued letters addressed to Ebrahim Limbada, Managing Member of EML on September 11, 2020, April 29, 2021 and June 24, 2021, warning EML that Plaintiff would commence legal enforcement proceedings (which could include injunctive relief) if EML failed to make enumerated corrective actions. (Sanchez Decl., ¶ 3). In mid-January 2021, Plaintiff’s maintenance crew went out to the Subject Properties, in response to the Los Angeles County Sheriff’s Department’s request and performed a clean-up of excessive accumulation of shopping carts with trash and spoiled food, combustible cardboards, and other junk, trash and debris in connection with a homeless encampment on the Subject Properties. (Tellez Decl., ¶ 11). Plaintiff also conducted inspections of the Subject Properties on March 23, 2021 and in May and June 2021. (Id., ¶¶ 13 and 15).

Planning Manager Abraham Tellez (“Tellez”) represents that he reinspected the Subject Properties on February 15, 2023 and again on June 27, 2023. (Tellez Decl., ¶¶ 19 and 20). Tellez itemizes substandard conditions he observed on June 27, 2023 and attests that the conditions on the Subject Properties violate LPMC Sections 3.20.070(d), (e)(1),(3),(4)&(6), (f), (g)(G)&(L) and (j), 5.54.090(g), 10.12.050 and 10.28.050(B). (Id., ¶ 22).

EML, in turn, fails to show any grave or irreparable harm, such that the court would be required to examine the relative actual harms to the parties. Instead, EML contends that the motion “improperly masquerades as a Preliminary Injunction but is in reality a Motion for Summary Judgment.” (Opp., 12:25-26). The court disagrees. “The granting or denying of a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy.” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) Nothing prevents EML from asserting affirmative defenses.[1] The granting of an injunction here does not deprive EML of its right to trial. Further, an injunction subject to modification or dissolution under Code of Civil Procedure § 533.

Next, EML contends that the motion is moot, because it “has remedied almost every defect mentioned in the Complaint, and is in process with the remaining issues. (Opp. 6:14-15). The court disagrees. First, EML’s position is unsupported, inasmuch as it is based solely on Limbada’s unsigned declaration. Second, EML concedes that not all defects have been corrected. Third, it has not been established that “subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” (Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000) 528 U.S. 167, 170.)

EML claims that the injunction requested is mandatory in nature, rather than prohibitive. Again, the court disagrees. The character of a prohibitive injunction is not changed because it incidentally involves the doing of an affirmative act. (United Railroads of San Francisco v. Superior Court in and for City and County of San Francisco (1916) 172 Cal. 80).

The court determines that it is reasonably probable that Plaintiff will prevail on the merits at trial on the matters such that Plaintiff is entitled to injunctive relief. The motion is granted. Plaintiff, a public entity, is not required to post an undertaking, pursuant to Code of Civil Procedure § 529, subdivision (b)(3).