Judge: Stephen P. Pfahler, Case: 23CHCV02256, Date: 2023-10-31 Tentative Ruling
Case Number: 23CHCV02256 Hearing Date: October 31, 2023 Dept: F49
Dept. F-49
Date: 10-31-23 (specially set via 9-29-23 ex parte order)
Case # 23CHCV02256
Trial Date: Not Set
INJUNCTION
MOVING PARTY: Plaintiff, City of Santa Clarita
RESPONDING PARTY: Defendants, Tacos Jacky, et al.
RELIEF REQUESTED
Motion for Preliminary Injunction
SUMMARY OF ACTION
Plaintiff City of Santa Clarita defendants Gabriel Florez, Jose Rodriguez, Ever Saavedra, Manuel Manzano, Maria Almendarez, Maria Hernandez, and Elia Garcia collectively own and/or operate defendant Tacos Jacky, an unlicensed food preparation and vending “pop-up” operation on various public streets and sidewalks within the City of Santa Clarita,
On July 28, 2023, Plaintiff filed a complaint for Violation of Santa Clarita Municipal Code, Maintenance of a Public Nuisance, and Declaratory Relief. On September 29, 2023, The court specially set a hearing for preliminary injunction.
RULING: Granted.
Request for Judicial Notice: Granted.
The court takes judicial notice of the existence of the Government Code, Health and Safety Code, and Santa Clarita Municipal Code sections, as parts of the memoranda of points and authorities.
Plaintiff City of Santa Clarita moves for a preliminary injunction enjoining defendants Tacos Jacky, Gabriel Florez, Jose Rodriguez, Ever Saavedra, Manuel Manzano, Maria Almendarez, Maria Hernandez, and Elia Garcia, from further parking their vehicle and operating an unpermitted sidewalk vending food preparation and service operation in any City of Santa Clarita public right of way. Plaintiff also seeks to impound equipment if operations continue in violation of the law. Plaintiff moves for injunctive relief on grounds that the operation lacks a peddler’s license, a public health permit, and sidewalk vending permit in violation of City of Santa Clarita Municipal Code sections 51039 and 11.37.060, subdivision (P). Prior to the subject motion, City issued 40 citations for a total of $17,250 in unpaid citations, yet defendants continue to operate.
Defendants in opposition contend the motion fails to establish a probability of success on the merits, a lack of irreparable harm, and an insufficient showing of favorable balance of equities. On the merits, Defendants specifically challenge the relied upon municipal code sections as out of compliance with State of California established standards, in that City of Santa Clarita can only impose fines and otherwise remains precluded from seeking injunctive relief. Plaintiff also
otherwise lacks the right to declare the situation a public nuisance, and insufficiently establishes the existence of a public nuisance under both a factual and legal basis.
Plaintiff in reply challenges the argument regarding the prohibition of a municipality to exercise its police powers in the regulation of public nuisances constituting a public health and safety concern. Plaintiff contends that nothing in the opposition establishes a right to evade enforcement under Senate Bills 946 and 973 (California Government Code sections 51036, et seq. and Health and Safety Code section 113818, et seq.) A city may declare its own public nuisances and seek enforcement.
In ruling on a motion for preliminary injunction, the court first considers both the likelihood of prevailing on the merits and irreparable harm. (Millennium Rock Mortg., Inc. v. T.D. Service Co. (2009) 179 Cal.App.4th 804, 812.) “An evaluation of the relative harm to the parties upon the granting or denial of a preliminary injunction requires consideration of: ‘(1) the inadequacy of any other remedy; (2) the degree of irreparable injury the denial of the injunction will cause; (3) the necessity to preserve the status quo; [and] (4) the degree of adverse effect on the public interest or interests of third parties the granting of the injunction will cause.’” (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 435.) “‘[T]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue .... [I]t is the mix of these factors that guides the trial court in its exercise of discretion.’” (Right Site Coalition v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 336, 342.) “The ultimate questions on a motion for a preliminary injunction are (1) whether the plaintiff is 'likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer from its grant,’ and (2) whether there is ‘a reasonable probability that the plaintiffs will prevail on the merits’” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408. Procedurally, an application for a preliminary injunction, must be based upon sufficient evidence. (Code Civ. Proc., §527 subd. (a); Bank of America v. Williams (1948) 89 Cal.App.2d 21, 29.)
“[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) “An injunction designed to preserve the status quo as between the parties and to restrain illegal conduct is prohibitory, not mandatory, and does not require heightened appellate scrutiny.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1048.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)
In 2018, California Senate Bill 946 was enacted, which led to the addition of Government Code section 51038. The section constitutes one of a series of rules:
(a) A local authority shall not regulate sidewalk vendors except in accordance with Sections 51038 and 51039.
(b) Nothing in this chapter shall be construed to affect the applicability of Part 7 (commencing with Section 113700) of Division 104 of the Health and Safety Code to a sidewalk vendor who sells food.
(c) Nothing in this chapter shall be construed to require a local authority to adopt a new program to regulate sidewalk vendors if the local authority has established an existing program that substantially complies with the requirements in this chapter.
Gov. Code, § 51037
(a) A local authority may adopt a program to regulate sidewalk vendors in compliance with this section.
(b) A local authority's sidewalk vending program shall comply with all of the following standards:
(1) A local authority shall not require a sidewalk vendor to operate within specific parts of the public right-of-way, except when that restriction is directly related to objective health, safety, or welfare concerns.
...
(c) A local authority may, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending if the requirements are directly related to objective health, safety, or welfare concerns, including, but not limited to, any of the following:
(1) Limitations on hours of operation that are not unduly restrictive. In nonresidential areas, any limitations on the hours of operation for sidewalk vending shall not be more restrictive than any limitations on hours of operation imposed on other businesses or uses on the same street.
(2) Requirements to maintain sanitary conditions.
(3) Requirements necessary to ensure compliance with the federal Americans with Disabilities Act of 1990 (Public Law 101-336)1 and other disability access standards.
(4) Requiring the sidewalk vendor to obtain from the local authority a permit for sidewalk vending or a valid business license, provided that the local authority issuing the permit or business license accepts a California driver's license or identification number, an individual taxpayer identification number, or a municipal identification number in lieu of a social security number if the local authority otherwise requires a social security number for the issuance of a permit or business license, and that the number collected shall not be available to the public for inspection, is confidential, and shall not be disclosed except as required to administer the permit or licensure program or comply with a state law or state or federal court order.
(5) Requiring the sidewalk vendor to possess a valid California Department of Tax and Fee Administration seller's permit.
(6) Requiring additional licenses from other state or local agencies to the extent required by law.
(7) Requiring compliance with other generally applicable laws.
(8) Requiring a sidewalk vendor to submit information on his or her operations, including, but not limited to, any of the following:
(A) The name and current mailing address of the sidewalk vendor.
(B) A description of the merchandise offered for sale or exchange.
(C) A certification by the vendor that to his or her knowledge and belief, the information contained on the form is true.
(D) The California seller's permit number (California Department of Tax and Fee Administration sales tax number), if any, of the sidewalk vendor.
(E) If the sidewalk vendor is an agent of an individual, company, partnership, or corporation, the name and business address of the principal.
...
(e) For purposes of this section, perceived community animus or economic competition does not constitute an objective health, safety, or welfare concern.
Gov. Code, § 51038
(a)(1) A violation of a local authority's sidewalk vending program that complies with Section 51038 is punishable only by the following:
(A) An administrative fine not exceeding one hundred dollars ($100) for a first violation.
(B) An administrative fine not exceeding two hundred dollars ($200) for a second violation within one year of the first violation.
(C) An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one year of the first violation.
(2) A local authority may rescind a permit issued to a sidewalk vendor for the term of that permit upon the fourth violation or subsequent violations.
(3)(A) If a local authority requires a sidewalk vendor to obtain a sidewalk vending permit from the local authority, vending without a sidewalk vending permit may be punishable by the following in lieu of the administrative fines set forth in paragraph (1):
(i) An administrative fine not exceeding two hundred fifty dollars ($250) for a first violation.
(ii) An administrative fine not exceeding five hundred dollars ($500) for a second violation within one year of the first violation.
(iii) An administrative fine not exceeding one thousand dollars ($1,000) for each additional violation within one year of the first violation.
(B) Upon proof of a valid permit issued by the local authority, the administrative fines set forth in this paragraph shall be reduced to the administrative fines set forth in paragraph (1), respectively.
(b) The proceeds of an administrative fine assessed pursuant to subdivision (a) shall be deposited in the treasury of the local authority.
(c) Failure to pay an administrative fine pursuant to subdivision (a) shall not be punishable as an infraction or misdemeanor. Additional fines, fees, assessments, or any other financial conditions beyond those authorized in subdivision (a) shall not be assessed.
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Gov. Code, § 51039
Beginning on August 3, 2019, the City of Santa Clarita conducted 218 site inspections of varying locations for Tacos Jacky, whereby the lack of any peddler’s license, public health, or sidewalk vending permit were determined. Of the 218 health inspections, 74 separate health inspections found unsafe food handling practices. The City of Santa Clarita ordered operations to cease each time, unless and until licensing was obtained, issued 40 citations, and impounded cooking equipment. All citations, a total of $17,250 in fees, remains outstanding. [Declarations of Justin Hillemann, Eileen Ollivier.]
Defendants offer no factual dispute to the representation of the lack of license, unpermitted activities, inspections, citations, and conclusion of unsafe food handling operations. Defendants instead cite to the penalty schedule limits allowed by a municipality and the California Health
and Safety Code regarding “mobile food operation” and maintain Defendants’ right to operate under this statute.
The subject section was amended and adopted on September 23, 2022, pursuant to Senate Bill 972, and enacted under Health and Safety Code section 13818, et seq. As cited above, the mobile food section is in fact directly referenced in Government Code section 51037: “Nothing in this chapter shall be construed to affect the applicability of Part 7 (commencing with Section 113700) of Division 104 of the Health and Safety Code to a sidewalk vendor who sells food.” (Gov. Code, § 51037, subd. (b).)
(a) “Mobile food facility” means any vehicle used in conjunction with a commissary or other permanent food facility upon which food is sold or distributed at retail. “Mobile food facility” does not include a “transporter” used to transport packaged food from a food facility, or other approved source to the consumer.
(b) “Single operating site mobile food facilities” means at least one, but not more than four, unenclosed mobile food facilities, and their auxiliary units, that operate adjacent to each other at a single location.
(c) “Compact mobile food operation” means a mobile food facility that operates from an individual or from a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other nonmotorized conveyance.
Health & Saf. Code, § 113831
(a) Any compact mobile food operation with 25 square feet or less of display area from which only prepackaged nonpotentially hazardous food and whole uncooked produce is sold is exempt from the requirements of this part ...
(b) ... (2) For the purposes of determining compliance with this chapter, a compact mobile food operation that is not exempt as specified in subdivision (a) is subject to permitting and routine inspections or inspections on the basis of a consumer complaint or just cause.
(c) The local enforcement agency may recover the costs of investigation and enforcement of this section, subject to any limitations in this part on fines issuable to compact mobile food operations.
Health & Saf. Code, § 114368.1
(a) Compact mobile food operations shall conduct only limited food preparation, as defined in Section 113818.
Notwithstanding any other provision of this part, a compact mobile food operation, as defined in subdivision (c) of Section 113831, may display or sell food outdoors, if all of the following conditions are satisfied:
(1) Overhead protections are provided above all food display areas.
(2) Food items from the outdoor display are stored consistent with this chapter at all times other than during business hours.
(3) Outdoor displays comply with Section 113980 and have been approved by the enforcement agency if the compact mobile food operation is required to obtain a permit.
(b) A compact mobile food operation shall not sell food other than nonpotentially hazardous prepackaged food or whole produce, or conduct any food preparation, unless it meets the applicable operational requirements of this chapter, including applicable requirements for integral equipment, handwashing, and restroom access.
(c) Equipment that is required to be integral to a compact mobile food operation shall either be permanently attached to the primary unit or securely fastened to the primary unit by means that would prevent unintentional removal. Equipment may be considered integral despite being portable or otherwise removable for cleaning, maintenance, or as part of its regular function.
(d) A compact mobile food operation operating from an individual shall not conduct any food preparation or sell foods other than nonpotentially hazardous prepackaged food or whole produce.
Health & Saf. Code, § 114368.2
(a) Notwithstanding subdivision (a) of Section 114395, a violation of this part by an operator or employee of a compact mobile food operation is punishable only by an administrative fine.
(b) A violation of any provision of this part or regulation adopted pursuant to this part by an operator or employee of a compact mobile food operation or a sidewalk vendor shall not be punishable as an infraction or misdemeanor, and an operator or employee of a compact mobile food operation or a sidewalk vendor alleged to have violated any of those provisions is not subject to arrest except when independent grounds for that arrest exist under law.
(c) Except as provided in paragraph (d), each offense by an operator or employee of a compact mobile food operation or a sidewalk vendor may only be punished by a fine consistent with the following:
(1) A notice of violation detailing the violation, including the applicable provision of this part or regulation adopted pursuant to this part.
(2) An administrative fine not exceeding one hundred dollars ($100) for a second violation within one year of the first violation.
(3) An administrative fine not exceeding two hundred dollars ($200) for a third violation within one year of the first violation.
(4) An administrative fine not exceeding five hundred dollars ($500) for each additional violation within one year of the first violation.
(d) If a compact mobile food operation is required to obtain a permit from the enforcement agency, operating without a permit may be punishable by a fine not to exceed three times the cost of the permit in lieu of the administrative fines referenced in subdivision (c). An enforcement agency shall not issue any fines in excess of the amounts allowable pursuant to subdivision (c) prior to January 1, 2024.
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Health & Saf. Code, § 114368.8
Plaintiff challenges the characterization of Defendants’ business as a “compact mobile food operation” in that Defendants are not associated with a food commissary, the food is prepared on sight; and Defendants do not sell prepackaged food or produce. While the court finds the existence of food preparation undisputed, and lacking any evidence of prepackaged food sales, the court declines to make a factual determination of whether the operation constitutes a mobile
food operation in that neither party submits information on the dimensions of the space, sanitation standards, etc. Furthermore, Plaintiff may enforce license and health standards as said operations as well. The Health and Safety Code sections offers no permissive leave for unsafe and unlicensed operations, and delegates the municipality with the right to inspect for health and safety concerns. (Health & Saf. Code, § 114368.1, subd. (b).)
Thus, the crux of the issue requires consideration of the ability of a municipality to enforce unlicensed activities characterized as a public health and nuisance threat. City of Santa Clarita adopted and relies upon extensive regulations regarding peddlers, sidewalk vendors, and vendors, identified as Santa Clarita Municipal Code section 11.37.010, et seq.
11.37.020 Identification, License, and Permit(s) Required.
A. Peddler's and Solicitor's License. No person may peddle, sidewalk vend, or solicit unless such person has a valid peddler's or solicitor's license, as applicable, ...
B. Sidewalk Vendor Permit. In addition to the required peddler's license, any person that sidewalk vends shall also obtain a valid sidewalk vendor permit issued by the City prior to operation. ... 9. If the applicant proposes vending food, a certification of completion of a food handler course and proof of all required approvals from the Los Angeles County Department of Public Health—including a copy of the applicant's current and valid Los Angeles County health permit ...
C. Health Permit for Peddlers and Sidewalk Vendors of Prepared Food Products. In addition to the required peddler's license or sidewalk vendor permit, any person that peddles or sidewalk vends prepared food products shall also obtain the applicable public health permit issued by the County of Los Angeles Department of Public Health on behalf of the City prior to operation. ...
11.37.060 General Sidewalk Vending Regulations and Conditions Imposed on Permit.
All sidewalk vendors shall comply with the following sidewalk vending regulations set forth in this section, and all restrictions, limitations, prohibitions, and sidewalk vending regulations set forth in this section shall constitute conditions upon any sidewalk vending permit issued pursuant to this section: A. Except as otherwise authorized under this code, including the issuance of any applicable temporary use, special event, or conditional use or event permit, no person may engage in sidewalk vending on any public right-of-way in the City without first obtaining and having in possession a valid peddler's license, public health permit, and sidewalk vending permit. ... E. Refusal to Leave Premises. The City may request the sidewalk vendor remove any vending equipment or cart if it is creating an imminent safety hazard or is placed within a prohibited area as set forth in this chapter. If the sidewalk vendor refuses to remove the vending equipment or cart, or if left abandoned, the City may remove the vending equipment or cart and dispose of the vending equipment or cart after providing at least a sixty (60) day notice of redemption to the address associated with the public health permit or peddler's license identified on the vending equipment or cart, if any, or if left unclaimed for sixty (60) days from the date of removal. ...
11.37.080 Peddlers of Prepared Food Products from Motor Vehicles Permitted.
A. Peddling of prepared food products is permitted from motor vehicles used for the transportation or preparation of such prepared food products when conducted on public streets, but not including public sidewalks or parkways. B. The parked location of a motor vehicle used for the peddling of prepared food products must be at least one hundred (100) feet from an
intersection to minimize impacts on traffic flow and the potential obstruction of sight lines and observation. The opening of the motor vehicle from which sales are made must face the sidewalk or such other direction so that customers are not required to stand in the vehicular right-of-way. C. A person peddling prepared food products from motor vehicles may not remain in any one (1) location for the purposes of peddling, or any other location less than one-half (1/2) mile from the same location, for more than thirty (30) minutes during any six (6) hour period. D. During the period of such peddling, the peddler must maintain the location in a neat, sanitary, and hazard-free condition, and pick up and dispose of in a sanitary manner all debris, garbage, or litter that is left by any customer of the peddler. ...
11.37.090 Violation—Penalty.
A violation of sidewalk vending will be subject to the applicable penalties under Section 51039 of the Government Code and Section 11.37.060(P) of the Santa Clarita Municipal Code. All other violations of this chapter shall be prosecuted civilly or criminally, pursuant to Title 23, as either an infraction, misdemeanor, civil nuisance, or administrative citation, and will be subject to the applicable penalties under Chapter 23.10, in addition to any other applicable penalties or remedies prescribed by law.
“Under article XI, section 7 of the California Constitution, ‘[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.’” (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897; American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239, 1251.) “Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, § 7.)” [¶] “If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. (Citations.) A conflict exists if the local legislation ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.’” (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885 [internal quotations omitted].) “Local legislation is ‘duplicative’ of general law when it is coextensive therewith and ‘contradictory’ to general law when it is inimical thereto. Local legislation enters an area ‘fully occupied’ by general law when the Legislature has expressly manifested its intent to fully occupy the area or when it has impliedly done so in light of recognized indicia of intent.” (Great W Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1150 accord Great Western Shows, Inc. v. County of Los Angeles (2005) 27 Cal.4th 853, 860–861.)
Defendants maintain the State statutes completely occupy the field thereby preempting any claim of nuisance by a municipality, such as plaintiff the City of Santa Clarita, under the language of Government Code section 51038 and 51039. Plaintiff in opposition specifically cites to Government Code section 51038, subdivision (c) (“A local authority may, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending if the requirements are directly related to objective health, safety, or welfare concerns...) regarding the right to set additional regulations for sidewalk food vendors as part of its police powers: “A local authority may, by ordinance or resolution, adopt additional requirements regulating the time, place, and manner of sidewalk vending if the requirements are directly related to objective health, safety, or welfare concerns, including ...” Plaintiff denies any conflict
with state law with the municipal code sections regarding required permits and adherence to certain sanitary conditions under Santa Clarita Municipal Code section 11.37.060(A). The allowance for the imposition of fines without any criminal prosecution under section 11.37.060(P) also conforms with State guidelines.
The court agrees that the plain language of the statutes limit criminal prosecution of illegal vendors, though nothing in the Santa Clarita Municipal Code allows for criminal enforcement, and the subject motion also lacks any request for the right to seek criminal prosecution. The court however otherwise finds a lack of support for complete occupation of the field given the right to establish additional regulations under health, safety and welfare considerations specifically articulated in section 51038 subdivision (c). The existence of license and sanitary standards in no way demonstrates a conflict with the language of the extensively cited state statutory authority, and the court finds no basis of preemption for such additional requirements again given the plain language allowing for additional regulation. While the legislative amendments clearly contemplate the economic welfare of persons operating vending carts, nothing in the amendments demonstrates a complete abrogation of municipal police powers for health, safety and welfare. (See Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.)
As for preemption of any designation of nuisance, Defendants also lack authority in support. Defendants correctly cite that the authority to declare a public nuisance arises from the legislature. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1107.) The argument however depends on a finding of invalidity of the municipal ordinance foundation on grounds of total occupation. Consistent with the finding of a lack of preemption with regarding to plenary policy powers, the court rejects this portion of the argument as well. Again, nothing in the municipal code or subject application allows or seeks to criminalize any such nuisance activities, which is barred by the statutes either way. Defendants otherwise fail to raise any specific factually based Constitutional challenges, such as addressed in Acuna case undermining a declaration of a nuisance. (Id.).
“By ordinance the city legislative body may declare what constitutes a nuisance.” (Gov. Code, § 38771.) “City legislative bodies are empowered by Government Code section 38771 to declare what constitutes a nuisance. Since even without this section cities would have the power to abate public nuisances (Code Civ. Proc., § 731).” (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 100.)
The complaint itself relies on Civil Code sections 3479 and 3480 for the establishment of a nuisance, while the motion seeks to declare the violation as one for nuisance per se. “‘[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.... [T]o rephrase the rule, to be considered a nuisance per se the object, substance, activity or circumstance at issue must be expressly declared to be a nuisance by its very existence by some applicable law.” (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1163.) “Courts have established that it is within the police power to declare an act or condition to be a nuisance for regulatory purposes. (Citation.) ‘A legislatively declared public nuisance constitutes a nuisance per se against which an injunction may issue without allegation or proof of irreparable
injury.’” (People ex rel. Dept. of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1076.)
The court finds no support in the plain language of the municipal code explicitly designating said activities as a nuisance per se, thereby entitling Plaintiff to a presumptive finding of a nuisance. The court however finds Plaintiff establishes the existence of a nuisance based on the violation of the municipal code sections and concern for public health and safety: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) Thus, for purposes of the instant motion, the court finds Plaintiff justifies its argument for enforcement on grounds of nuisance as a potential public health and safety threat.
Probability of Success on the Merits
Plaintiff both seeks injunctive relief under the violation of Santa Clarita Municipal Code and public nuisance. As addressed above, the court finds support for one of both means to proceed with the sought after injunctive relief for purposes of the subject motion.
Plaintiff presents the unchallenged declaration of Justin Hillemann regarding the finding of the operation of the business without a valid license of any kind. Additionally, Hillemann attests to an inspection with the Los Angeles County Department of Public Health, whereby the officials noted unsafe food handling conditions, thereby leading to the issuance of the Notice of Violations.
Even if Defendants somehow excused their conceded lack of license based on a dependence of no licensing requirement under state law occupation, the argument still lacks support allowing documented unsafe food handling practices thereby further preempting regulations under health, safety and welfare standards. Again, the court finds no support for the mobile food operation qualification and an exemption from inspection requirements. The argument regarding the lack of “a single complaint ... [regarding] any food issues or symptoms [attributable] to Defendants’ food sales” [Opposition, 13:19-20] as the only means of preemptively seeking to deny the food preparation concerns cited in the Hilleman declaration improperly disregards the purpose of the public health laws—the prevention an outbreak of foodborne illness rather than a reactive response after the fact. The court declines to find public policy guidelines in the statutes extend to a requirement of a consumer complaint of food borne pathogens in order to prompt an investigation.
Irreparable Harm/Inadequate Legal Remedy
On the irreparable harm/inadequate legal remedy showing Plaintiff reiterates the intentional operation of an unlicensed, unsafe food operation in a public right of way without regard to municipal rules and regulations. Defendants offer no specific argument specifically challenging the showing of irreparable harm/inadequate legal remedy separate and apart from their challenge to the existence and enforcement of the municipal code itself. The court finds the existence of the statutory authority and municipal regulations supports a finding of irreparable harm/balance of equities in favor of Plaintiff given Defendants continue operation even with the citation and prior impound of equipment.
Balance of Equities
On balance of equities, Plaintiff again cites to the “blatant” violations of the municipal code. “Where 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.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 72.) The court acknowledges the sympathetic story of Defendants fleeing violence in Honduras, and the public policy behind the California statutes seeking to provide recently arrived immigrants the opportunity to make a living in order to support themselves and family members. [Declaration of Alexander Hernandez.] Nevertheless, the statute still requires compliance with regulations in order to maintain public safety and health concerns.
Defendant Hernandez acknowledges efforts to seek a permit, but apparently abandoned the process upon receiving notice of outstanding fines for prior citations. [Id.] Again the court remains sympathetic to the existing fines and difficulties in obtaining a permit.
Nevertheless, the subject motion involves past conduct and continuing violations. The court declines to consider any potential argument regarding the existence of the fines or alleged conduct by the City of Santa Clarita related to the permit process, service of the citations, and notice of the fines. None of these issues constitute a part of the motion. Defendants offers no specific argument on it either way other than a brief portion of a declaration, and instead focus on simply trying to disregard the licensing requirements all together.
The court finds the City of Santa Clarita establishes a basis for injunctive relief based on the violation of the Santa Clarita Municipal Code, the right to enforce licensing and health and safety standards, and the probability of success in establishing the existence of a public nuisance. Neither party however addresses the scope of the requested relief. As addressed above, “[a]n injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal.” (Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1035.)
The court finds any injunction enjoining operations and allowing for the impounding of equipment following 60-days notice (assuming Defendants continue to disregard the notices) presents a potential issue on whether the injunction should be stayed pending appeal. “As little pertinency is there in the argument that after the issuance of the injunction the defendant continued in the enjoyment of its alleged rights. It continued this enjoyment only by the open defiance on the part of the mayor and other municipal officers to which we have adverted, and a complete answer to this is found in the language of the Court of Appeals of New York, in Sixth Avenue R. R. Co. v. Gilbert E. R. R. Co., 71 N. Y. 430: ‘It would seem to be preposterous that a party could * * * be deprived of the whole fruit of the judgment by the lawless act of the defeated party pending an appeal, without remedy, that he must stand by and without possibility of redress, see the subject-matter of the litigation destroyed, so that, if he succeeds in affirming
the judgment, it will be a barren victory.’” (United Railroads of San Francisco v. Superior Court in and for City and County of San Francisco (1916) 172 Cal. 80, 90.)
“To answer the question requires us to consider the particular circumstance addressed in United Railroads. Our decision in that case recognizes that in some instances, an injunction that is essentially prohibitory in nature may involve some adjustment of the parties' respective rights to ensure the defendant desists from a pattern of unlawful conduct. ... The United Railroads decision makes clear that an injunction preventing the defendant from committing additional violations of the law may not be recharacterized as mandatory merely because it requires the defendant to abandon a course of repeated conduct as to which the defendant asserts a right of some sort. In such cases, the essentially prohibitory character of the order can be seen more clearly by measuring the status quo from the time before the contested conduct began.” (Daly v. San Bernardino County Bd. of Supervisors, supra, 11 Cal.5th at p. 1046.)
The court therefore grants the injunction in its entirety, and denies any request for a stay. (Id. at pp. 1053-1054.) Defendants may appeal and seek a writ of supersedeas. (Id. at p. 1055; Sun-Maid Raisin Growers of Cal. v. Paul (1964) 229 Cal.App.2d 368, 373.)
Case Management Conference set for March 7, 2024.
Plaintiff to provide notice.