Opinion
B159709.
7-3-2003
THE PEOPLE ex rel. ROCKARD J. DELGADILLO, as City Attorney, etc., Plaintiff and Respondent, v. NFM CORPORATION et al., Defendants and Appellants.
Roger Jon Diamond for Defendants and Appellants. Rockard J. Delgadillo, City Attorney, Debbie Lew, Assistant City Attorney, and Katharine H. MacKenzie, Deputy City Attorney, for Plaintiff and Respondent.
This is an appeal from the issuance of a preliminary injunction aimed at preventing acts of lewdness violative of the Penal Code from taking place in and around an adult bookstore located in Mission Hills. The primary issue on appeal is whether the underlying action should have been stayed or abated pursuant to Code of Civil Procedure section 430.10 due to the contemporaneous institution
Unless otherwise indicated, statutory references herein are to the Code of Civil Procedure.
of an administrative proceeding to abate a public nuisance brought under the Los Angeles Municipal Code. We conclude that no stay was required and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Complaint
On April 16, 2002, the People of the City of Los Angeles, represented by the city attorney, Rockard J. Delgadillo (the City), filed a complaint for injunction and abatement against a business entity, appellant NFM Corporation, and against its owners, appellants Fred Alfano, Sr., and Frederick Alfano, Jr., both individually and in various legal capacities. The complaint was brought "for the purpose of enjoining and abating a nuisance, as defined in Penal Code section 11225." The complaint alleged that appellants owned a property located on Devonshire Street in Mission Hills on which they operated an adult bookstore called Talk of the Valley. The property had purportedly been used since April 1999 for the purpose of the solicitation and commission of lewd acts, and between April 27, 1999, and April 4, 2002, approximately 62 arrests were made for the commission or solicitation of lewd conduct on the premises, not including an additional eight arrests for illegal activity that took place in the parking lot. Also according to the complaint, in April, May, June, and July 2001, Los Angeles Police Department officers met with Alfano, Jr., to discuss the activity and the need to abate it. Nevertheless, approximately 16 additional lewd conduct arrests occurred in or after May 2001.
Section 11225 of the Penal Code provides: "(a) Every building or place used for the purpose of . . . lewdness, assignation, or prostitution, and 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." Section 11226 provides that when "there is reason to believe that a nuisance as defined in this article is kept, maintained or is in existence in any county, the district attorney, in the name of the people of the State of California, or the city attorney of an incorporated city or any city and county may, or any citizen of the state resident within the county, in his or her own name may, maintain an action in equity to abate and prevent the nuisance and to perpetually enjoin the person conducting or maintaining it, and the owner, lessee or agent of the building, or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting it." Section 11227, subdivision (a) permits issuance of a "temporary restraining order or injunction to abate and prevent the continuance or recurrence of the nuisance."
In connection with filing the complaint, the City requested a temporary restraining order and preliminary injunction. In support of its request, the City presented evidence that the bookstore contains a number of video arcade booths in which pornographic movie scenes can be viewed after tokens are inserted. A number of the primarily male clientele of the bookstore, after becoming aroused as a result of viewing these movie scenes, would either masturbate or solicit other customers (including undercover police officers posing as customers) to participate in sexual activity. This conduct occurred inside the premises, outside in the parking lot, and in cars parked on nearby streets. There was also evidence that patrons inside the video booths could observe each other through make shift "peep-holes." In addition, nearby residents often found trash in the form of used condoms and empty video box covers depicting explicit sexual acts on or near their properties.
In its moving papers, the City stated that the lawsuit did not "seek enforcement of Los Angeles Municipal Code sections 12.70 et seq. or 103.101."
The Demurrer and Motion for Stay or Abatement
Appellants both demurred and moved for an order abating or staying the action based on the fact that, prior to filing the lawsuit, the City had initiated a proceeding to abate a nuisance at the same location pursuant to Los Angeles Municipal Code section 12.27.1. A public hearing was set before a zoning administrator for May 17, 2002, in that proceeding. The notice of public hearing stated: "The purpose of the hearing is to obtain testimony of the owner of the subject property and business plus affected and/or interested persons . . . . Following the hearing the Zoning Administrator may require the discontinuance of the use or impose additional conditions regarding the use of the existing business as a book store in order to mitigate any land use impacts caused by the use."
A hearing took place as scheduled on May 17, 2002, at which the presiding zoning administrator listened to complaints from concerned residents and law enforcement officers, and also heard from Alfano, Jr., and other persons who supported the business and its efforts to prevent customers from behaving improperly.
The Trial Courts Order
At the hearing on June 4, 2002, the trial court granted the request for preliminary injunction. In response to appellants contention that the Citys lawsuit should be abated, the court stated: "The two proceedings that are being concurrently prosecuted by the City are designed to protect the interests of different segments of the public. The administrative proceeding is designed to protect the interests of the owners of the property that surrounds the place of business conducted by the defendants. The ordinance requires that at least 20 different owners of lots other than the subject property must be given notice of the proceeding. The zoning administrator hears the complaints of those surrounding property owners and formulates relief that will protect their property interests if it is found that the subject property is being used in a way that constitutes a public nuisance. [P] This proceeding protects the interests of members of the public who enter the premises of defendants or the parking lot adjacent thereto from customers who expose themselves or solicit such members of the public to perform or participate in sexual activity. [Citation.] [P] There does not appear to be any good reason why the City Attorney cannot simultaneously conduct proceedings to protect the interests of each segment of the public. If one of such proceedings succeeds and the other fails, the results are not inconsistent with one another because the evidence will not be identical in both proceedings."
The preliminary injunction issued by the court prohibits appellants from operating their business unless they: (1) refrain from doing anything that "permits, maintains, abets and/or condones the use of the Property for the solicitation or commission of lewd acts, including, but not limited to, masturbation in the arcade portion of the Property"; (2) post signs that say in English and Spanish "No lewd conduct permitted. One person per booth. Booths are under video surveillance at all times. You have no reasonable expectation of privacy here and the Los Angeles Police Department is authorized to and does make frequent patrols of these premises" and "No one under 18 allowed. No loitering. Persons committing acts of lewd conduct, prostitution, or trespass are subject to immediate arrest"; (3) post a copy of the preliminary injunction; (4) ensure that employees of the business stop all lewd conduct occurring on the premises as soon as it occurs and manage the business in a manner that discourages illegal activity; (5) ensure that employees of the business cooperate fully with all law enforcement personnel; (6) employ a full-time bilingual manager who is to be working on the premises during all hours of operation who is to have no other job functions such as cashier, security guard, janitor, or clerk; (7) employ two full-time bilingual, uniformed, state-licensed security guards who are to be visibly patrolling the premises during all hours of operation; (8) maintain a full-time janitor on the premises during all hours of operation; (9) place no trash cans or tissues in the video booths or otherwise provide such items for the use of arcade patrons; (10) ensure that any persons engaging in lewd conduct on the premises, including the parking lot, are ordered to leave and refused future entry; (11) ensure that all persons who have been arrested for engaging in lewd conduct or the solicitation of lewd conduct are refused entry; (12) install and maintain video cameras which allow store personnel to view activity inside the video booth areas; (13) install and maintain adequate lighting after consultation with a vice officer; (14) install and maintain high intensity lighting in the front and rear of the property, including the parking lot; (15) cooperate with periodic, routine inspections by the Los Angeles Police Department and refrain from warning customers or others of the presence of officers; (16) post signs inside each video booth that say "Lewd activity or masturbation is not permitted in the booths or in any place on this property. This booth is under video surveillance at all times"; (17) post signs in the parking lot indicating that parking for more than 30 minutes is prohibited; (18) ensure that store personnel inspect the inside and outside of the property on an hourly basis and remove any trash or debris; (19) post signs visible to those exiting the store saying "dispose of all trash in trash bins"; (20) keep the front door closed; (21) obtain and comply with all necessary business and licensing requirements and post such permits and licenses; (22) comply with all laws and regulatory orders; (23) ensure that personnel inspect the video arcade booths hourly to ensure they are maintained in a sanitary condition and that any openings or apertures in the walls are immediately repaired; (24) join the Neighborhood Watch group for the area; and (25) refrain from transferring the property unless a copy of the injunction is given to the prospective transferee(s).
Appellants appealed from the order granting the preliminary injunction.
DISCUSSION
I
Preliminarily, the City disputes the appealability of the matter before us. Acknowledging that an order granting a request for preliminary injunction is appealable under section 904.1, subdivision (a)(1)(6), the City insists that the issues raised here have no direct bearing on the propriety of the preliminary injunction, but instead represent an attempt to obtain immediate review of a nonappealable order — the order denying the motion for stay or abatement.
The City cites no authority for the proposition that a defense to a preliminary injunction based on the doctrine of prior action pending cannot be reviewed on appeal from the order granting the injunction. The case it relies on, Fuss v. City of Los Angeles (1958) 162 Cal. App. 2d 643, 328 P.2d 831, held that an order denying a motion to amend a complaint could not be reviewed on appeal from an unrelated order quashing service of summons. Where the issues in the nonappealable order have a direct bearing on the appealable order, however, they can be immediately reviewed on appeal. This is illustrated by City of Oakland v. Darbee (1951) 102 Cal. App. 2d 493, 227 P.2d 909. There, the trial court had granted defendants motion to separate or sever their case from the case against other defendants and also granted a motion to transfer their newly severed case to another venue. The Court of Appeal acknowledged the general rule that orders granting motions to transfer are appealable but that orders granting motions to separate are not. (Id. at p. 496.) Nevertheless, the court reviewed whether the trial court erred in granting the motion to separate in the appeal from the order granting transfer of venue because the former order necessarily affected the latter, appealable order. (Id. at p. 505.)
We believe the present situation is closer to that in City of Oakland than Fuss. In City of Oakland, the motion to transfer could not have been granted if the motion to separate had not succeeded. Here, had appellants prevailed on their motion to stay or abate, an interlocutory judgment would have been entered pursuant to section 597, and the preliminary injunction could not have issued. It follows that the basis for the courts order denying appellants request for stay or abatement is reviewable on appeal from the order granting the preliminary injunction.
Section 597 provides in pertinent part: "When the answer pleads that . . . another action is pending upon the same cause of action . . . and where the defense of another action pending or a demurrer based upon subdivision (c) of Section 430.10 is sustained . . . an interlocutory judgment shall be entered in favor of the defendant pleading the same to the effect that no trial of other issues shall be had until the final determination of that other action . . . ."
We find support for our conclusion in numerous federal court decisions in which the same issue of appealability was raised. Under federal law, as under section 904.1, subdivision (a)(1)(6), an order granting or denying injunctive relief is appealable. (See 28 U.S.C. § 1292(a).) In addition, the doctrine of abstention permits federal courts to stay proceedings while a related case between the parties is pending in state court. Federal appellate courts have concluded that if a district court invokes abstention to put a case involving a request for a temporary restraining order or preliminary injunction on hold, "the order operates as a denial of [injunctive relief] and is thus appealable under section 1292(a)(1)." (Goldberg v. Carey (2d Cir. 1979) 601 F.2d 653, 658; accord, Clean Air Coordinating Committee v. Roth-Adam Fuel Co. (7th Cir. 1972) 465 F.2d 323, 325; Weiss v. Duberstein (2d Cir. 1971) 445 F.2d 1297, 1299; Glen Oaks Utilities, Inc. v. City of Houston (5th Cir. 1960) 280 F.2d 330, 333.) In each of these cases, the appellate court recognized that issues pertaining to the ruling on the motion to abstain must be considered because of that rulings direct impact on the districts courts appealable order denying injunctive relief. The same considerations motivate us to conclude that the present appeal from the order granting the request for preliminary injunction must necessarily include a review of appellants motion to stay or abate.
II
Turning to the merits of the appeal, there can be no dispute that "the pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action" and that "the defendant may assert the pending action as a bar either by demurrer, or where fact issues must be resolved, by answer." (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.) Section 430.10 expressly provides that the party against whom a complaint has been filed may demur, or object by answer, on the ground that "there is another action pending between the same parties on the same cause of action." (Id., subd. (c).) Abatement of the second action is said to be "a matter of right" meaning that "[a] trial court has no discretion to allow the second action to proceed if it finds the first involves substantially the same controversy between the same parties." (Leadford v. Leadford, supra, at p. 574.) As explained in Williams v. State of California (1976) 62 Cal. App. 3d 960, 964, 133 Cal. Rptr. 539: "The underlying theory of the plea that there is another action pending is that the first action normally will be an ample remedy and that the second action is therefore unnecessary and vexatious."
It is equally clear, however, that "abatement is required only where the multiple actions are pending in courts of the same state." (Leadford v. Leadford, supra, 6 Cal.App.4th at p. 574, italics added.) Here, the prior action is pending before an administrative officer, not before a court. (See City of Oakland v. Public Employees Retirement System (2002) 95 Cal.App.4th 29, 48 [refusing to apply statute of limitations to administrative action because an administrative proceeding is not a civil action nor special proceeding of a civil nature as defined in the Code of Civil Procedure].) Appellants cite no authority, and we have been unable to find any, to suggest that section 430.10 applies where the prior action pending is an administrative proceeding.
Appellants cite cases discussing the doctrine of primary jurisdiction, failing to delineate the significant differences between that doctrine and the doctrine of prior action pending codified in section 430.10. As explained by the Supreme Court in Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 826 P.2d 730, the doctrine of primary jurisdiction is a "judicially created" doctrine originating in Texas & Pac. Ry. v. Abilene Cotton Oil Co. (1907) 204 U.S. 426, 51 L. Ed. 553, 27 S. Ct. 350: "In Abilene, supra, 204 U.S. 426, a shipper sued a railroad in state court under the common law to recover alleged unreasonable amounts charged for transporting interstate freight. Such common law suits had been regularly entertained before enactment of the Interstate Commerce Act (Commerce Act) and creation of the Interstate Commerce Commission (ICC) in 1887. [Citation.] Under the Commerce Act, Congress granted the ICC power to hear such complaints by shippers, and to order reparations to those injured. [Citation.] Despite provisions of the Commerce Act allowing a litigant to elect between administrative enforcement of statutory rights and judicial enforcement of common law rights, the high court declined to allow the common law suit in the first instance. Instead, it ruled that in order to promote uniformity and consistency of rate regulations, the shipper must . . . primarily invoke redress through the [ICC] . . . . (Id., at p. 448 . . . .) The court explained that if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, depending on the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. (Id., at p. 440 . . . .)" (Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at pp. 386-387, fn. omitted.)
The court went on to explain that the policy reasons behind the doctrine of primary jurisdiction "are similar and overlapping" to those behind the doctrine of administrative exhaustion. (Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at p. 391.) "The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary). [Citations.] The primary jurisdiction doctrine advances two related policies: it enhances court decisionmaking and efficiency by allowing courts to take advantage of administrative expertise, and it helps assure uniform application of regulatory laws." (Ibid .)
Unlike the doctrine codified in section 430.10, the doctrine of primary jurisdiction is discretionary "hinging on a courts determination of the extent to which the policies noted above are implicated in a given case." (Farmers Ins. Exchange v. Superior Court, supra, 2 Cal.4th at p. 391.) "This discretionary approach leaves courts with considerable flexibility to avoid application of the doctrine in appropriate situations, as required by the interests of justice." (Id. at pp. 391-392, fn. omitted.) It is only where "the Legislature establishes a scheme under which a court is prohibited from exercising discretion under the doctrine of primary jurisdiction" that a court is required to "decline to adjudicate a suit on the basis that available administrative processes should first be invoked and completed." (Id. at p. 394.) If, however, the Legislature has not established such a scheme, the court "may decline to adjudicate a suit until the administrative process has been invoked and completed" but is not obliged to do so. (Ibid.)
The zoning administrator was not invested by the Legislature with any power with respect to Penal Code section 11225. The statutory provisions place the power of enforcement in the hands of district attorneys and city attorneys, acting in the name of the People of the State of California, or in the hands of "any citizen of the state . . ., in his or her own name . . . ." (Pen. Code, § 11226.) At issue before the court was whether there was sufficient evidence of unlawful lewd conduct in and around the premises of the bookstore to support the issuance of an injunction aimed at preventing the conduct from occurring in the future. The court did not need the expertise or experience of the zoning administrator to decide that question or any underlying or background factual question. (See Southern Cal. Ch. of Associated Builders Etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 454, 841 P.2d 1011 [refusing to apply doctrine of primary jurisdiction where the case "involves neither disputed facts of a technical nature nor a voluminous record of conflicting evidence" and the question presented "is essentially one of law and is of the type daily determined by the courts without resort to administrative expertise"]; Tenderloin Housing Clinic, Inc. v. Astoria Hotel, Inc. (2000) 83 Cal.App.4th 139, 142 [noting that "the primary jurisdiction doctrine applies to claims . . . involving regulatory issues within the special competence of an administrative body"]; State Farm Fire & Casualty Co. v. Superior Court (1996) 45 Cal.App.4th 1093, 1112 [upholding trial courts refusal to stay unfair business practice claim against insurer where "there is no indication that the commissioner [of insurance] has at his disposal a "pervasive and self-contained system of administrative procedure" . . . to deal with the precise questions involved"; "there are no complex regulations requiring the agencys special expertise"; and "there is no reason to believe that the court would benefit from initial administrative involvement"].)
The zoning administrator, for his part, was focused on whether the use to which the property was put was appropriate for the neighborhood. The propensity of the bookstores customers to commit acts of lewd conduct was a factor in his decision, but only one out of many to be taken into account. There undoubtedly would be some overlap between the two proceedings, but the trial court had no need to await the announcement of the zoning administrators findings to enforce Penal Code section 11225.
In their reply brief, appellants ask us to take judicial notice of the order issued by the zoning administrator in November 2002 which, like the preliminary injunction issued by the court, seeks to regulate the operation of the bookstore in order to prevent certain illicit activities from occurring. Appellants claim that there are conflicts between the two orders, particularly with respect to signage requirements, placement of video cameras, and job functions of on-site personnel. We presume appellants would have a legitimate cause for complaint if two different governmental entities were attempting to force them to comply with contradictory sets of requirements in order to keep their business open. However, we do not believe that an appellate proceeding is the appropriate place to initiate a review of allegedly competing orders. Appellants should present evidence of conflict to the trial court or the zoning administrator for a determination of whether a modification of either order is necessary. (See § 533 [permitting modification of preliminary injunction when "there has been a material change in the facts" or "the ends of justice would be served"].)
DISPOSITION
The order granting the preliminary injunction is affirmed. The request for judicial notice is denied.
We concur: VOGEL (C.S.), P.J., and HASTINGS, J.