Organic Panificio v. County of Los Angeles
Filed 1/30/14 Organic
Panificio v. County of Los Angeles CA2/1
OFFICIAL REPORTS
California Rules
of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE ORGANIC
PANIFICIO, LLC, et al.,
Plaintiffs and Appellants,
v.
COUNTY OF LOS ANGELES,
et al.,
Defendants and Respondents.
B243421
(Los
Angeles County
Super. Ct. No.
BC452335)
APPEAL
from a judgment of the Superior Court of
Los Angeles County. Gregory Alarcon,
Judge. Affirmed.
Lang,
Hanigan & Carvalho and Timothy R. Hanigan, for Plaintiff and Appellant.
Office
of the County Counsel, Tracy Swann, Senior Deputy County Counsel, for
Defendants and Respondents County of Los Angeles, Richard Bruckner, Paul Wong, Carmen Sainz and Steven Napolitano.
Soltman,
Levitt, Flaherty & Wattles and Philip E. Black for Defendants and Respondents Marina City Club
Condominium Owners Association, Tony Lief and Nate Holden.
_________________________________________
>
The
Organic Panificio, LLC and its owner and manager Charles Colby brought this
action against the County of Los Angeles, several of its employees and several private parties after the
County obtained a preliminary injunction
ordering plaintiffs to cease operating a nightclub without the required
conditional use permit. The basis of the
complaint was that the County was enforcing its zoning ordinance against plaintiffs’
business while allowing similarly situated businesses to operate nightclubs
without the required permits. The
the County and its employees to four of the five
and granted the defendants’ motion for summary judgment as to the fifth cause
of action. The court entered judgment
for all defendants and plaintiffs filed a timely appeal. We affirm the judgment.
FACTS AND PROCEEDINGS BELOW
The
material facts are not in dispute.
In January 2008,
The Organic Panificio, LLC (OP) subleased property in Marina del Rey to be
“used solely for the operation of a fine dining restaurant, bar area and a
casual dining/coffee shop/deli take-out restaurant, catering, banquets and
special events[.]†OP also agreed “to
use the [p]remises in accordance with . . . all Government Restrictions (as
hereinafter defined)[.]†The sublease
defined the term Government Restrictions to include “any and all . . . ordinances,
codes, decrees, rulings, regulations, writs,
rules . . . of any governmental entity, agency or political subdivision, now in
force or hereafter adopted, which are applicable to the [p]remises . . . or the
use thereof . . . including without limitation . . . all rules and regulations
of the County of Los Angeles related to . . . the [p]remises[.]â€
The property OP
leased sits within a commercial zone that permits its use as a restaurant and
bar but not as a nightclub. Operating a
nightclub on the premises requires a conditional use permit. The County’s zoning ordinance defines a
nightclub as “any bar, cocktail lounge or restaurant, other than a cabaret,
wherein live entertainment is provided and an occupant load of at least 200
people is established.â€
In 2008, OP
began operating a nightclub on the premises without a conditional use
permit. The County learned that OP was
operating a non-permitted nightclub from complaints about the noise from nearby
residents. In May and June 2009, the
County Planning Department staff met with plaintiff Colby and explained to him
that he needed to obtain a conditional use permit in order to operate a
nightclub on the premises. In May 2010,
OP applied to the planning department for a “clean hands waiver†of the nightclub
prohibition while it pursued an application for a conditional use permit. The request for a waiver was denied in June
2010. OP never filed the application for
the permit.
In September
2010 the County obtained a preliminary injunction enjoining OP’s use of the
premises for a nightclub without a conditional use permit. Later that month OP closed its entire
business operation on the premises.
In January 2011,
OP and Colby brought this action against the County, some of its employees and
several private parties who they blame for interfering with their nightclub
operation. The operative complaint
alleges that the County, the master landlord of the property, breached the
covenants of quiet enjoyment and good faith and fair dealing by, among other
things, requiring that plaintiffs obtain a conditional use permit to operate a
nightclub on the property and failing and refusing to issue a clean hands
waiver to plaintiffs pending plaintiffs’ application for a conditional use
permit. It further alleges that the
County defendants intentionally and negligently failed to disclose to
plaintiffs before they entered into the sublease that previous tenants of the
premises had been forced to cease or curtail their restaurant and nightclub
activities due to complaints by nearby residents including the private
defendants named in this action.
Finally, the complaint alleges a cause of action under 42 U.S.C. section
1983 for violation of plaintiffs’ civil rights on the theory that the County
allows other similarly situated businesses to operate nightclubs without
conditional use permits and there is no rational basis for the selective
enforcement of the zoning law against plaintiffs. According to the complaint, the private party
defendants conspired with the County defendants to violate plaintiffs’ civil
rights.
The court
sustained without leave to amend the County defendants’ demurrers to the causes
of action for breach of the covenants of quiet enjoyment and good faith and the
causes of action for failure to disclose facts about the property. The County and the private defendants then moved
for summary judgment on the civil rights cause of action. The court granted the County defendants’
motion on the ground that the court’s preliminary injunction against operation
of the nightclub was a superseding or intervening cause of any harm suffered by
plaintiffs and therefore plaintiffs could not establish an entitlement to
damages. The court denied the private
defendants’ motion because they failed to submit a separate statement of
undisputed facts. (Code Civ. Proc., §
437c, subd. (b)(1).) Nevertheless, the
court accepted the parties’ stipulation to a judgment for the private
defendants on the civil rights claim on the same ground as the summary judgment
for the County defendants.
DISCUSSION
The plaintiffs
admit that they suffered no damages from the County defendants’ various
warnings and administrative proceedings regarding the nightclub and that they
began to suffer damages, if at all, only after the court issued a preliminary
injunction in the County’s underlying action to enjoin further operation of the
nightclub without a conditional use permit.
Following the issuance of that injunction, plaintiffs ceased all
operations on the premises.
In light of
plaintiffs’ admission, the court granted the defendants’ motion for summary
judgment as to the civil rights cause of action. The court reasoned that as a matter of law
plaintiffs could not establish they were entitled to damages from the
defendants because the chain of causation had been broken by an independent superseding
cause in the form of the preliminary injunction in the County’s underlying action. (See Manta
Management Corp. v. City of
The court’s
ruling was correct as to the civil rights cause of action and its ruling
supports the judgment in favor of the defendants on the other causes of action
as well.
In
comedy club into an adult cabaret. The
City of San Bernardino sought to enjoin
the operation of the cabaret on the ground that the business was a public
nuisance that violated the City’s zoning laws.
The trial court issued a preliminary injunction which enjoined Manta
from operating the cabaret pending trial over Manta’s objection that the zoning
ordinance and its implementation violated Manta’s free speech rights under the
California Constitution. Manta appealed
the trial court’s order granting the preliminary injunction, and filed a
cross-complaint against the City under 42 USC section 1983 of the Federal Civil
Rights Act. The complaint sought damages
for lost profits caused by the City’s implementation of the ordinance. The City’s ordinance was held to be
unconstitutional by the trial court and Manta was awarded damages. Our Supreme Court reversed the damage award. The court held that “where a court is
provided with appropriate facts to adjudicate a motion for preliminary
injunction or a motion for a stay pending appeal, the courts’ intervening
exercise of independent judgment breaks the chain of causation for purposes of
section 1983 liability.†(
the court held that the lower court’s intervening exercise of independent
judgment in issuing the preliminary injunction broke the chain of causation for
purposes of liability under section 1983.
(Ibid.)
As the court noted in
supervening cause of harm is not limited to actions under 42 USC section
1983. (Manta, supra, 43 Cal.4th
at pp. 411-412, discussing Brewer v.
Teano (1995) 40 Cal.App.4th 1024.) In
Court (2010) 184 Cal.App.4th 30, for example, the plaintiff sued
Luckman after he fell through a suspended ceiling in the building where he
was installing telecommunications equipment.
Luckman designed the suspended ceiling but, after the Northridge
earthquake, the ceiling was removed, redesigned and rebuilt by a different
firm. Citing Manta, supra, the
appellate court ordered the trial court to grant Luckman’s motion for summary
judgment. The court held: “To the extent
that liability for [plaintiff’s] injury arises from the appearance of the
ceiling, the redesign of the ceiling was the proximate cause of the injury, so
that Luckman cannot be liable.†(
to tort actions. In Brookings L. & B. Co. v. Manufacturers’ Co. (1916) 173 Cal.
679, 683-684, the court declared “the law is definitely settled . . . that
damages under any contract are limited to those which may be fairly considered
as arising from the breach of the agreement itself or which both parties must
have contemplated, when making the contract, as likely to flow from a breach.â€
Plaintiffs contend that the
preliminary injunction in the underlying action did not break the chain of
causation because the court that issued the injunction was not “provided with
appropriate facts to adjudicate [the] motion†as required by the Supreme
Court’s opinion in Manta,
held that the “general rule of superseding causation does not apply when the
judicial officer reached an erroneous decision as a result of being pressured
or materially misled as to the relevant facts.â€
(Ibid.) Here, plaintiffs argue, the judge that issued
the injunction against operation of their nightclub was misled by the County’s
failure to disclose that other nightclubs in the same zone as OP’s were
operating without a conditional use permit.
Plaintiffs further argue that the court lacked the appropriate facts to
adjudicate the motion for injunctive relief because the court denied plaintiffs
a continuance in which to gather evidence to support their claim of selective
enforcement.
We reject plaintiffs’
arguments. Even if the court had been
provided with evidence showing that other businesses in the same zone as OP
were operating nightclubs without the required permits, that evidence
alone would not have required the court as a matter of law to deny the
County the injunction it requested.
“Unequal treatment which results simply from laxity of enforcement . . .
of a statute does not deny equal protection and is not constitutionally
prohibited discriminatory enforcement.â€
(Baluyut v. Superior Court
(1996) 12 Cal.4th 826, 832, citing Wayte
v. United States (1985) 470 U.S. 598, 608-610; see also
[“the conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional violation†so long as
“the selection was [not] deliberately
standard such as race, religion, or other arbitrary classificationâ€].)
At the hearing on the
preliminary injunction, the court did not abuse its discretion in denying OP a
continuance to produce evidence that other similarly situated businesses were
operating nightclubs without permits. As
we discussed above, this evidence by itself would not have been material to the
issuance of a preliminary injunction.
Furthermore, plaintiffs had ample opportunity prior to the hearing to
obtain and submit evidence that other nightclubs in the area were violating the
zoning ordinance. According to plaintiff
Colby’s declaration filed in opposition to the defendants’ motion for summary
judgment, he conducted an “investigation†five months prior to the hearing in
which he learned that nine other nightclubs in Marina del Rey were operating
without a permit. Despite this knowledge
plaintiffs waited until the time of the hearing to orally request a continuance
to conduct discovery. Finally even
though the court denied the request for a continuance, it invited plaintiffs to
move to dissolve the injunction under Code of Civil Procedure section 533, if
they could show a material change in the facts upon which the injunction was
granted. The plaintiffs did not make
such a motion nor did they appeal the order granting the injunction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD,
Acting P.J.
We concur:
CHANEY,
J.
MILLER,
J.
this reason we need not separately address the court’s order sustaining the
County defendants’ demurrers to those causes of action.
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
