Judge: Salvatore Sirna, Case: 24PSCV00990, Date: 2024-07-29 Tentative Ruling

Case Number: 24PSCV00990    Hearing Date: July 29, 2024    Dept: G

Plaintiff City of Pomona’s Motion for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Appointment of Receiver

Respondent: Defendants Kanu Patel and Hemlata Patel

TENTATIVE RULING

Plaintiff City of Pomona’s Motion for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Appointment of Receiver is GRANTED IN PART as to the Request for a Preliminary Injunction and DENIED IN PART as to the Request for Appointment of Receiver.

BACKGROUND

This is a nuisance abatement action involving the Passport Inn in Pomona. The Passport Inn is a motel that is operated by Defendant HJ Hospitality, Inc. (HJ Hospitality) on property owned by Defendant Pomona Lodge LLC (Pomona Lodge). Defendants Kanu Patel and Hemlata Patel are managing members of Pomona Lodge while Defendant Hima N. Naik serves as HJ Hospitality’s managing member. Since before 2020, the Passport Inn has allegedly served as a place for illicit activity including prostitution, human trafficking, and drug use.

In August 2020, Pomona Lodge and the Los Angeles County District Attorney’s Office (LA County DA) entered into a stipulated judgment that enjoined Pomona Lodge from engaging in a public nuisance and required them to take proactive steps that included installing security cameras, ending the practice of hourly room rentals, and posting human trafficking awareness notices. Subsequently, it appears the LA County DA has chosen not to enforce the judgment, and Passport Inn allegedly continues to be an ongoing public nuisance.

On March 29, 2024, Plaintiff City of Pomona (the City) filed a complaint on the behalf of the state against Pomona Lodge, the Patels, HJ Hospitality, Naik, and Does 1-50, alleging the following causes of action: (1) abatement pursuant to the Red Light Abatement Act, (2) abatement pursuant to the Drug Abatement Act, and (3) public nuisance.

On May 22, 2024, the City filed the present motion. On July 19, 2024, the Court granted the City’s ex parte application to advance the hearing date for the present motion.

A hearing on the present motion is now set for July 29, 2024, with a case management conference and OSC Re: Failure to File Proof of Service set for August 21, 2024.

REQUEST FOR JUDICIAL NOTICE

The City’s request for judicial notice of a grant deed related to the subject location is GRANTED pursuant to Evidence Code section 452, subdivision (c).

ANALYSIS

The City moves for injunctive relief and the appointment of a receiver. For the following reasons, the Court GRANTS the City’s request for a preliminary injunction and DENIES the City’s request for the appointment of a receiver.

Preliminary Injunction

Legal Standard

“[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Ibid.)

In evaluating a party’s request for a preliminary injunction, courts consider “(1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the . . . showing on one, the less must be shown on the other to support an injunction.” (Ibid, quoting Butt v. State of California (1992) 4 Cal.4th 668, 678.) The balancing of harm between the parties also “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 867, quoting Abrams v. St. John’s Hospital & health Center (1994) 25 Cal.App.4th 628, 636.)¿The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

But “[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. v. County of Imperial (1983) 35 Cal.3d 63, 72 (internal footnote omitted).)

Discussion

In this case, the City seeks an injunction pursuant to Penal Code section 11227, subdivision (a) which authorizes injunctive relief to abate a nuisance that exists pursuant to the Red Light Abatement Law. Pursuant to the Red Light Abatement Law, “every building or place in or upon which acts of . . . lewdness, assignation, or prostitution, are held or occur, 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.” (Pen. Code, § 11225, subd. (a)(1).) Furthermore, “every building or place used for the purpose of human trafficking, and every building or place in or upon which acts of human trafficking are held or occur, 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.” (Pen. Code, § 11225, subd. (b)(1).)

The City also seeks an injunction pursuant to Health and Safety Code section 11571 which authorizes injunctive relief to abate a nuisance as defined in Health and Safety Code section 11570, which reads as follows:

“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 & Safety Code, § 11570.)

Here, the City provides the following evidence in support of its requests for injunctive relief. According to Corporal Paul Lucifora of the Pomona Police Department, the Passport Inn has generated a total of 558 calls for service from January 2020 to April 2024 which include thirty (30) calls related to narcotics, thirteen (13) calls related to prostitution, and sixteen (16) calls related to overdoses. (Lucifora Decl., ¶ 5.) Lucifora provides a sampling of sixteen (16) calls of service from February 2023 to February 2024 which include two (2) calls for shootings (Lucifora Decl., ¶ 5(a), (b)), four (4) calls involving prostitution or human trafficking (Lucifora Decl., ¶ 5(c), (f), (i), (m)), seven (7) calls for battery or domestic violence (Lucifora Decl., ¶ 5(d), (g), (h), (j)-(l), (n)), and three (3) calls involving illicit drug use (Lucifora Decl., ¶ 5(e), (o), (p)).

Based on the evidence provided above, the court finds the City has established the Passport Inn constitutes a nuisance pursuant to Penal Code sections 11225, subdivision (a)(1) and 11225, subdivision (b)(1). However, the court does not find that the City adequately established the Passport Inn constitutes a nuisance pursuant to Health and Safety Code section 11570. While Lucifora’s declaration establishes ongoing drug use at the Passport Inn, neither it nor the supplemental declaration provide any examples of commercial drug activity. Although it does describe one reported instance of violence over unpaid debts from a drug deal, it does not specify if the drug deal also occurred at the Passport Inn. (Lucifora Decl., ¶ 5(k).)

Because the City has established the existence of a nuisance per se, the Patel Defendants now bear the burden of establishing grave or irreparable harm will result if the City’s request for a preliminary injunction is granted. In opposition, the Patels first argue the Court should not intrude on the jurisdiction of the previous judgment between the Patels and the LA County DA. (Opp., p. 12:9-13:5.)  The legal authorities upon which the Patels rely on for this argument, however, are inapposite. (In re Alberto (2002) 102 Cal.App.4th 421, 426-427 [determining whether one judge could revisit bail imposed by a previous judge in the same case]; Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 493 [determining whether one judge could lift a stay imposed by a previous judge in the same case]; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232 [determining whether one judge could reconsider ruling of the previous judge in the same case].) While these authorities limit a judge’s ability to revisit rulings by a different judge in the same action, this case is separate from the action brought by the LA County DA. The Patels fail to direct the court to any authority that limits the City’s ability to pursue its own enforcement action.

The Patels also argue there is an inherent danger that the two judgments may contradict each other and are void for vagueness. (Opp., p. 13:15-15.) But while the Patels cite to City of San Bernardino Hotel/Motel Assn. v. City of San Bernardino (1997) 59 Cal.App.4th 237, 250, the court notes this case is inapposite as it dealt with whether a municipal ordinance was unconstitutionally vague. Moreover, the Patels have failed to identify how and where the language in the City’s proposed injunction is unconstitutionally vague. Nor do the Patels identify how the language of the proposed injunction conflicts with the language of the previous judgment.

Next, the Patels contend there is a factual dispute as to whether the Passport Inn currently operates as a nuisance. While they admit the Passport Inn was previously operated by others from September 2020 to April 2024, they claim they assumed operation of the Passport Inn on April 18, 2024. (Patel Decl., ¶ 10-11, 13-16.) They then describe a series of changes they have implemented including posting signs to discourage criminal activity (Patel Decl., ¶ 18-19, Ex. 6-7), maintaining 24-hour video surveillance (Patel Decl., ¶ 20), hiring security to monitor the motel (Patel Decl., ¶ 21), not allowing hourly rental of rooms (Patel Decl., ¶ 22), prohibiting minors unaccompanied by an adult (Patel Decl., ¶ 23), requiring all motel guests to sign registration cards and provide identification (Patel Decl., ¶ 24-25), and even going beyond the requirements of the previous judgment by prohibiting visitors (Patel Decl., ¶ 26).

In response, the City fails to contradict the Patels’ evidence. While Lucifora states in a supplemental declaration that the City has received an additional seventeen calls for service from April 17, 2024, to July 25, 2024, Lucifora failed to state what the calls for service involved. (Lucifora Suppl. Decl., ¶ 3(d).) Furthermore, based on the City’s own evidence, while the Passport Inn received 558 calls for service from January 2020 to April 23, 2024, which averages to one call for service every two to three days (1,574 days divided by 558 calls for service), the Passport Inn now only averages one call for service every five to six days (99 days divided by 17 calls for service). The court finds that the reduction in the number of calls for service is not insignificant.  Further, the City failed to provide any additional evidence that establishes ongoing prostitution and human trafficking since the Patels assumed operations on April 18, 2024.

The Patels contend the court cannot enjoin behavior that has been discontinued and cite the rule that “[a] court of equity will not afford an injunction to prevent in the future that which in good faith has been discontinued in the absence of any evidence that the acts are likely to be repeated in the future.” (Mallon v. City of Long Beach (1958) 164 Cal.App.2d 178, 190; see also People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal.3d 328, 333 [holding purpose of abatement action pursuant to the Red Light Abatement Law is reformation of the property and not punishment for past acts].) The present case, however, does not involve an absence of any evidence that suggests prostitution and human trafficking will continue at the Passport Inn. Instead, the City’s evidence of continued violations after the 2020 judgment suggests there is a significant risk that any abatement is a temporary response to the present action.

Additionally, courts have generally found voluntary abatement defeats abatement actions when it occurs before the action is filed. (See People ex rel. Gwinn v. Kothari (2000) 83 Cal.App.4th 759, 766 [collecting cases]; see also People ex rel. Hicks v. Sarong Gals (1974) 42 Cal.App.3d 556, 562.) The Patels have not provided any authority that allows them to block the City from obtaining injunctive relief in an abatement action where they waited to abate the nuisance until after the action to abate was commenced. Ultimately, the court finds the Patels Defendants failed to demonstrate how being enjoined from allowing prostitution and human trafficking will cause grave and irreparable harm to them when they (1) do not have the right to allow such conduct in the first place and (2) have already purportedly taken steps to stop such conduct.

Accordingly, the City’s request for a preliminary injunction is GRANTED.

Appointment of Receiver

The City also requests the court appoint a receiver pursuant to Code of Civil Procedure section 564, subdivision (b)(3) and (b)(9). (Motion, p. 15:25-16:28.) Pursuant to Code of Civil Procedure section 565, subdivision (b)(3), the Court may appoint a receiver “[a]fter judgment, to carry the judgment into effect.” Because no judgment has yet been entered in the present action, the court declines to appoint a receiver pursuant to this provision.

Next, Code of Civil Procedure section 564, subdivision (b)(9) allows the court to appoint a receiver “[i]n all other cases where necessary to preserve the property or rights of any party.” Here, the court does not find necessary the appointment of a receiver given the Patels have taken action to abate the nuisance at issue as noted above.

Accordingly, the City’s request for the appointment of a receiver is DENIED.

CONCLUSION

Based on the foregoing, the Court GRANTS the City’s motion in part as to the City’s request for a preliminary injunction and DENIES the City’s motion in part as to the City’s request for the appointment of receiver.