Opinion
B310344
03-27-2023
CITY OF LONG BEACH, Plaintiff and Respondent, v. DAKSHA PATEL, Defendant and Appellant.
Law Offices of Frank A. Weiser and Frank A. Weiser for Defendant and Appellant. Office of the Long Beach City Attorney, Charles Parkin, City Attorney, Theodore B. Zinger, Arturo D. Sanchez, Deputy City Attorneys; Best Best &Kreiger, Christopher M. Pisano and Alexander M. Brand for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 18LBCV00013, Mark C. Kim, Judge. Affirmed.
Law Offices of Frank A. Weiser and Frank A. Weiser for Defendant and Appellant.
Office of the Long Beach City Attorney, Charles Parkin, City Attorney, Theodore B. Zinger, Arturo D. Sanchez, Deputy City Attorneys; Best Best &Kreiger, Christopher M. Pisano and Alexander M. Brand for Plaintiff and Respondent.
WEINGART, J.
INTRODUCTION
Appellant Daksha Patel (Patel) owns and operates the Princess Inn Motel located in Long Beach. Respondent City of Long Beach (City) revoked the motel's business license, but Patel nevertheless continued normal operations. City sued Patel alleging that her operation of the motel without a business license constituted a nuisance. After a bench trial, the court entered a judgment permanently enjoining Patel from operating the motel without a business license.
Patel appeals the judgment on various grounds. We find no merit in Patel's arguments and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. City Revokes the Business License for the Motel
Patel's brothers-in-law purchased the Princess Inn in 2002, and at some point Patel and her husband started operating the motel. On April 23, 2008, City revoked the motel's business license, which at that time was held by Patel's husband. City revoked the license in part because the motel's operators allowed prostitution and illegal drug activity to take place at the motel.
B. The Patels' Federal Lawsuit Challenging City's Revocation of the Business License
On April 29, 2008, Patel, her husband and her brothers-in-law filed a federal lawsuit asserting various federal constitutional and statutory claims against City related to the license revocation. The federal case included, as a supplemental state law claim, a petition for a writ of mandate challenging the license revocation. The district court dismissed the federal claims and declined to exercise jurisdiction over the writ petition; after the Ninth Circuit reversed the dismissal of the federal claims, the district court held that there was no basis to reinstate the writ petition and proceeded as to the federal claims only.
The federal case resulted in a stipulated judgment entered on June 7, 2018, that awarded Patel and the other plaintiffs $7,500 in damages for the violation of their Fourth Amendment rights related to City employees seizing certain motel registry slips. As permitted in the judgment, Patel and her husband appealed the district court's ruling denying reinstatement of the writ petition. The Ninth Circuit affirmed in an unpublished decision filed on November 27, 2019. (Patel v. City of Long Beach (9th Cir. 2019) 786 Fed.Appx. 126.)
C. City's Nuisance Action
On October 15, 2018, City filed a state court civil nuisance action against Patel, her husband and her brothers-in-law. City alleged that it had revoked the business license for the Princess Inn in 2008 based on activity that posed a public nuisance. It further alleged that, after the license was revoked, the Princess Inn continued to operate without a license in violation of City's municipal code. As alleged in the complaint, the Long Beach Municipal Code (LBMC) requires that each business operating in City has a business license (LBMC, § 3.80.210) and also provides that any violation of the LBMC is a public nuisance (id., § 1.32.010).
Patel's brothers-in-law transferred ownership of the motel to Patel and her husband in 2018. Patel's husband and brothers-in-law were later dismissed from the case, leaving Patel as the only defendant.
On June 26, 2019, City moved for a preliminary injunction prohibiting the Patels from operating any unlicensed business at the Princess Inn property. On September 24, 2019, after holding two hearings, the trial court granted City's motion. The court issued the preliminary injunction on October 28, 2019.
On November 7, 2019, Patel appealed the order granting the preliminary injunction.
In August 2021, we dismissed the appeal because the trial court's later issuance of a permanent injunction rendered the appeal moot. (City of Long Beach v. Patel (Aug. 20, 2021, B302478) [nonpub. opn.].)
On December 31, 2019, Patel and her husband filed a writ petition in state court challenging the license revocation.
In June 2020, City initiated contempt proceedings under Code of Civil Procedure sections 1209-1222 for Patel's numerous alleged violations of the preliminary injunction. On October 9, 2020, after several days of hearings, the trial court found that Patel had committed 37 violations of the preliminary injunction, declared Patel to be in contempt of court, and ordered Patel to pay $37,000 to the court within 30 days.
All unspecified statutory references are to the Code of Civil Procedure.
The court did not enter its judgment on its contempt finding until June 17, 2021. Patel then filed a purported appeal of the contempt judgment. Although there is no right to appeal a contempt judgment, we treated Patel's filing as a writ petition and affirmed the contempt judgment. (City of Long Beach v. Patel (Jan. 27, 2023, B316807) [nonpub. opn.].)
On November 16, 2020, the court held a bench trial on City's request for a permanent injunction. City staff testified that Patel did not have a business license to operate the motel and authenticated records showing the 2008 revocation of the business license held by Patel's husband. Staff indicated that section 3.80.210 of the LBMC requires businesses to have a license to operate. Staff described their efforts to have the motel's operators comply with the LBMC, which included criminal misdemeanor citations issued to Patel's husband in May and June 2017. Staff testified that in 2008, when the motel had a business license, operation of the motel was a legal nonconforming use. However, operation of the motel cannot be a legal nonconforming use without an active business license. Finally, a City staff-person testified that she had conducted drive-by inspections of the motel the previous week and it appeared the motel was operating, based on several factors including the gate to the drive was open, cars were in the parking lot, and there was no "closed" sign.
Patel admitted that she owned the Princess Inn property as of March 2019. Patel denied that she operated the motel as of August 21, 2019, and City's counsel impeached her with prior deposition testimony from August 2019 where she testified she was operating the motel at that time. Patel admitted that, on March 25, 2019, she did not have a business license to operate the Princess Inn.
Patel's counsel objected to questions about Patel's ownership of the Princess Inn property and operation of the motel on the basis of Patel's Fifth Amendment right not to incriminate herself. The court ruled that Patel could not invoke her Fifth Amendment right in response to questions she had already answered at prior depositions, which included her admission of ownership as of March 2019.
City's counsel argued that the operation of the motel without a business license constituted a nuisance per se because the LBMC declared that any violation of the code constituted a nuisance. (LBMC, § 1.32.010(C) ["any condition caused or permitted to exist in violation of any of the provisions of this [c]ode shall be deemed a public nuisance"].)
Patel's counsel argued that City had not established a nuisance per se because Patel was still in the process of challenging the 2008 revocation of the business license through a writ petition. He also argued that there were several people "living at" the motel whose procedural due process rights were violated because they were not given notice of the permanent injunction trial and an opportunity to be heard. Counsel further argued that City's acceptance of transient occupancy taxes violated the equal protection clause because City was treating the motel differently in the nuisance lawsuit than it was for purposes of collecting the transient occupancy tax. In addition, counsel argued that City's conduct in halting its code enforcement efforts for several years violated substantive due process because City acted irrationally and arbitrarily. Finally, counsel argued there was insufficient evidence the motel was even in operation.
The court found the motel's business license was revoked in 2008, the motel had continued to operate for 12 years after that revocation without a proper business license, and that this continued operation constituted a nuisance per se under the LBMC. The court issued a permanent injunction but stayed enforcement for 60 days to allow for any individuals living at the motel to make alternate housing arrangements.
On December 7, 2020, the court issued a judgment that permanently prohibited Patel, and others acting with her or on her behalf, from using the Princess Inn property "for operating, transacting, or carrying on any kind of business, trade, profession, calling, or occupation without first having procured the requisite City-issued business license, including without limitation operating the motel business known as Princess Inn on the [p]roperty, in violation of the [LBMC]; [¶] [and from u]sing, conducting, allowing, permitting, or granting authority for the use of the [p]roperty for any motel operations, including the operation of the Princess Inn, in violation of the LBMC's zoning regulations." As part of the judgment, the court found that Patel owns the property where the Princess Inn is located and either directly operated the motel or allowed it to be operated. The court found the motel has not had a City business license since April 2008, the LBMC required the motel to have such a business license, and the LBMC declares that any violation of the code is a public nuisance per se such that the operation of the motel is a nuisance per se. Finally, the court found City did not have an adequate remedy at law.
On January 14, 2021, Patel timely filed a notice of appeal of the judgment.
DISCUSSION
A. Standard of Review
"The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.]" (Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 912.) "[T]o the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, an appellate court will review such factual findings under a substantial evidence standard. Our power in this regard 'begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.'" (Ibid., quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785). In the review of the issuance of a permanent injunction, "Issues of pure law are subject to de novo review." (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1164, citing People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136-1137.)
B. Patel Does Not Challenge the Sufficiency of the Evidence that She Maintained a Nuisance Per Se
The trial court found that Patel's operation of the Princess Inn constituted a nuisance per se." 'Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.' [Citations.]" (City of Costa Mesa v. Soffer (1992) 11 Cal.App.4th 378, 382, fn. omitted.)
" '[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.' [Citation.]" (City of Claremont v. Kruse, supra, 177 Cal.App.4th at pp. 1163-1164.) "By ordinance the city legislative body may declare what constitutes a nuisance." (Gov. Code, § 38771.) Where a city legislative body declares a violation of its municipal code to be a public nuisance, operation of a property in violation of the municipal code is a nuisance per se. (See City of Dana Point v. New Method Wellness, Inc. (2019) 39 Cal.App.5th 985, 989 [operation of a drug treatment facility constituted a nuisance per se where municipal code did not permit said use and provided that any condition that violated the code is a public nuisance]; City of Claremont v. Kruse, supra, at pp. 1164-1165 [operation of marijuana dispensary constituted a nuisance per se where the operator did not have a tax certificate as required by the municipal code, the code did not permit the operation of a dispensary, and the code provided that any condition violating the code is a public nuisance].)
Patel does not challenge the sufficiency of the evidence establishing that her operation of the motel constituted a nuisance per se. Instead, she raises several legal, jurisdictional, and procedural challenges to the trial proceeding and City's enforcement of the LBMC. As we discuss below, none of Patel's challenges has any merit.
C. The Trial Court Had Jurisdiction to Issue the Permanent Injunction
Patel first argues the trial court lacked jurisdiction to issue the permanent injunction because proceedings in the trial court were automatically stayed pending her appeal of the preliminary injunction.
Section 916, subdivision (a) provides, with exceptions not relevant here, that "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order."" '[W]hether a matter is "embraced" in or "affected" by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the "effectiveness" of the appeal.' [Citation.] 'If so, the proceedings are stayed; if not, the proceedings are permitted.' [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).) "The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to 'enforce, vacate or modify [the] appealed judgment or order.' [Citation.] Or the proceeding must substantially interfere with the appellate court's ability to conduct the appeal. [Citation.]" (Id. at pp. 189-190, fn. omitted.)
The permanent injunction proceedings in this case were not stayed under section 916, subdivision (a) as a result of the appeal of the preliminary injunction order for the simple reason that those proceedings could not have had" 'any effect on the "effectiveness" of the appeal.' [Citation.]" (Varian, supra, 35 Cal.4th at p. 189; see Collateral Loan &Secondhand Dealers Assn. v. County of Sacramento (2014) 223 Cal.App.4th 1032, 1044 [holding that "[trial] court is still vested with jurisdiction over the merits of the matter" despite appeal of order granting preliminary injunction]; Gosney v. State of California (1970) 10 Cal.App.3d 921, 929 [holding that appeal of order denying a preliminary injunction "did not deprive the trial court of jurisdiction to proceed with those portions of the action still pending before it"]; Gray v. Bybee (1943) 60 Cal.App.2d 564, 571572 ["If an appeal from an interlocutory or preliminary order granting or denying a temporary injunction has the effect of depriving the trial court of jurisdiction to proceed to try the case on its merits until the appeal is disposed of, it would tend to disrupt calendars, unduly extend trials, encourage 'piece-meal' determination of issues and defeat justice, contrary to the uniform policy of the law"].) The court issued the permanent injunction after a separate trial which addressed only City's request for a permanent injunction. While the issuance of the permanent injunction rendered the appeal of the preliminary injunction moot, "something more is needed" to affect the "effectiveness" of an appeal. (Varian, supra, at p. 189.) Patel fails to identify any way in which the permanent injunction undermined the "effectiveness" of the preliminary injunction appeal.
Furthermore, the preliminary injunction was prohibitory and thus was not stayed on appeal, so the continuation of its terms as a permanent injunction did not undermine the effectiveness of the appeal. "[C]ourts have understood the default statutory rule governing stays pending appeal to apply to some injunctive orders but not others, embracing a common law distinction between prohibitory, or preventive, injunctions and those mandating performance of an affirmative act." (Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1040 (Daly).) "An 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." (Id. at p. 1035.)
The preliminary injunction here was prohibitory and not mandatory; Patel's appeal of that order therefore did not result in a stay of the preliminary injunction. The preliminary injunction prohibited Patel from operating the motel without a business license. Patel did not have a business license, and therefore the effect of the injunction was to suspend her business operations. Even though the injunction's prohibition on operating the motel without a license required Patel to suspend business operations pending appropriate licensure, this did not alter the relevant status quo, which is measured from the time before the allegedly illegal conduct began. (United Railroads v. Superior Court (1916) 172 Cal. 80, 87 (United Railroads).)
As our Supreme Court recently explained in Daly, the "decision in [United Railroads] 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, supra, 11 Cal.5th at p. 1046.) Because the preliminary injunction here was similarly prohibitory, no stay of proceedings resulted from its appeal.
D. Patel's Challenge Based on the Purported Procedural Due Process Rights of Motel Guests Fails
Patel next argues that we should reverse the permanent injunction because there were long-term motel residents who were not given notice of the proceedings and an opportunity to be heard. She claims the alleged violation of these residents' procedural due process rights voids the injunction.
Patel argues the trial court should have followed the procedures set forth in Health and Safety Code section 11573.5. That section is part of a statutory scheme governing actions to abate nuisances involving illegal drug sales and use. It permits a court to order the premises closed pending trial but requires the court, in making its determination, to consider the effect of closure on "any resident or occupant" of the premises and to provide "all tenants who may be affected by the order" with "reasonable notice and an opportunity to be heard at all hearings regarding the closure request prior to the issuance of any order." (Health & Saf. Code, § 11573.5, subds. (b)(5) & (c).) Patel acknowledges that City did not bring its nuisance action under this statutory scheme, and that Health and Safety Code section 11573.5 therefore does not govern. She instead argues City's action here is sufficiently analogous to a Health and Safety Code section 11573.5 proceeding that this section nevertheless should apply. However, Patel provides no authority for the proposition that the provisions of Health and Safety Code section 11573.5 can create due process rights in the context of actions not brought under that code provision, and we are not aware of any such authority. Furthermore, the provision is not analogous. The provisions of Health and Safety Code section 11573.5 relied upon by Patel apply to an order closing the premises prior to the trial, in a temporary restraining order or preliminary injunction, as opposed to the permanent injunction here entered after trial.
We note at the outset that Patel does not identify any competent evidence that there were in fact long-term residents at the motel. Patel points to testimony from a City staff-person who noticed transient occupancy tax forms submitted by Patel for an unspecified period listed residents who were exempt from the tax. However, the staff-person questioned on this topic expressly stated that she was not sure if any people listed as exempt on the transient occupancy tax forms were permanent residents at the motel. Neither Patel nor any other witness testified about any long-term motel guests. The trial court remarked, and we agree, that "there has been absolutely no evidence at all who these people are. There's no competent evidence, period, [of long term residents] other than the fact that there has been payment of occupancy taxes that defendant collected."
On appeal, Patel also relies on evidence she submitted in opposition to City's motion for a preliminary injunction. This same evidence, however, was not submitted to the court in the trial regarding City's motion for a permanent injunction. Even if this evidence was for some unknown reason properly before the court at the permanent injunction hearing, our power "begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which . . . support[s] the [trial court] determination." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) If this evidence had any probative value, it was limited to the time period before the preliminary injunction hearing in 2019 and the trial court was therefore entitled to reject it.
More fundamentally, Patel makes no argument and cites no authority that she has standing to assert the purported due process rights of any such residents." 'As a general rule, a third party does not have standing to bring a claim asserting a violation of someone else's rights. [Citation.]' [Citation.]" (People ex rel. Becerra v. Superior Court (2018) 29 Cal.App.5th 486, 499.) "Although constitutional rights are 'generally personal' (People v. Hazelton (1996) 14 Cal.4th 101, 109 . . .), the United States Supreme Court has departed from this rule when the third-party right asserted by the litigant is 'inextricably bound up with the activity the litigant wishes to pursue' and when some 'genuine obstacle' prevents the absent party from asserting his or her own interest. (Singleton v. Wulff (1976) 428 U.S. 106, 114, 116 [96 S.Ct. 2868, 49 L.Ed.2d 826] ....)" (Lewis v. Superior Court (2017) 3 Cal.5th 561, 570.)
Regardless of whether the rights of any long-term motel guests are inextricably bound up with Patel's continued operation of the motel (which we significantly doubt, but do not decide), there was no "genuine obstacle" to the motel guests themselves asserting their interests. For example, in Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, the court concluded that a third-party deponent did not have standing to assert the privacy rights of individuals who had made anonymous posts on internet message boards where there was no apparent" 'hindrance' to the ability of [the individuals] to protect their own interests." (Id. at p. 881.) The court rejected the argument that the anonymous individuals had not received "due process notice" of the deposition subpoena, stating, "Even if it is assumed that [the plaintiff] had the ability to provide adequate notice to those who were still anonymously posting on the affected message boards, there is no factual basis for inferring that [the anonymous individuals] were unaware of the lawsuit and unable to assert this ground in opposing the discovery motion on their own behalf." (Ibid.)
Here, there is likewise no basis to infer that any long-term motel guests were unaware that City was attempting to close down the motel after the court issued the preliminary injunction, which had terms similar to those of the permanent injunction. Despite that, no motel guests sought to participate in the action. In addition, the court in this case stayed enforcement of the permanent injunction by 60 days, which was sufficient time for any long-term motel guests to raise an objection to the permanent injunction.
Patel was aware of this issue well before the permanent injunction trial as she raised the issue in opposition to City's motion for a preliminary injunction. Thus, Patel could have notified those individuals regarding the trial, either formally or informally, but there is no evidence she did so. Nor is there any indication in the record that she informed City of the names of any motel guests who had an interest in the action generally or in the motion for permanent injunction specifically.
E. The Trial Court Did Not Abuse Its Discretion in Issuing the Permanent Injunction Despite Patel's Writ Petition Challenging the License Revocation
Patel argues that the permanent injunction is invalid because the revocation of her business license is not yet final. In claiming a lack of finality, Patel relies on the petition for writ of mandate she filed in state court in 2019 after unsuccessfully seeking such a writ in federal court.
On September 20, 2021, after the issuance of the permanent injunction in this case, the trial court presiding over the writ petition issued an order denying the petition and upholding the revocation of the business license. On November 12, 2021, Patel and her husband filed a notice of appeal from that order and the appeal remains pending. (Patel v. City of Long Beach, case no. B317168.)
In making her argument, Patel relies entirely on Morton v. Superior Court (1954) 124 Cal.App.2d 577 (Morton). In that case, a county and the state sought a permanent injunction against a quarry operator. Although the quarry had been open for many years, the county had recently enacted an ordinance requiring the quarry operators to obtain a permit. The quarry operators applied for the permit, but the county denied the application. The quarry operators then filed a writ petition challenging the denial, and that writ petition was pending at the time the trial court entered a permanent injunction prohibiting the quarry's operation. (Id. at p. 580.) The governmental authorities had sought a permanent injunction, claiming the quarry was a nuisance for three reasons: because the owners were operating it without the required permit; because the quarry's operations violated other specific "regulatory provisions of the [county] ordinance"; and because the conditions created by the quarry themselves constituted a nuisance. (Id. at p. 578.)
The Court of Appeal held the trial court erred in granting the permanent injunction because there was evidence the business could correct the violations of the county ordinance and the offensive and harmful conditions created by the quarry's operations, and the injunction did not afford the quarry this alternative before forcing the business to shutter its operations entirely. (Morton, supra, 124 Cal.App.2d at p. 581.) In so holding, the Court of Appeal noted there was no issue of the quarry being a nuisance per se and drew a distinction of the "vast difference between regulating the methods of operation of a lawful business by injunction or ordinance, and in completely prohibiting the carrying on of such business." (Id. at p. 582.)
The Court of Appeal also found it improper to enjoin the business from operating based on the lack of a permit, because the county had denied the permit without giving the defendants an opportunity to remedy the alleged nuisance and the defendants were challenging the validity of that denial. (Morton, supra, 124 Cal.App.2d at pp. 587-588.) On this aspect of its decision, the court assumed the facts that caused denial of the permit were the same as those that led to the issuance of the injunction, and held those "facts did not warrant the issuance of an injunction absolutely prohibiting [the] defendants from operating" because the county "is as much bound by the rule restricting the right to prohibit lawful businesses, where regulation is possible, as is a court." (Id. at p. 588.) The court found "it would be anomalous, indeed, to hold that an administrative determination which is under direct attack in the courts[ ] should have greater legal effect" than the court's determination, because "[t]o so hold would be to give greater legal efficacy to administrative rulings than is afforded to judicial determinations." (Ibid.)
Morton is distinguishable because the court there concluded the lack of a permit could not justify a permanent injunction where the facts showed the denial of a permit was improper. That is not the case here. Nothing in the record here calls into question City's revocation of the motel's business license; indeed, Patel does not contest the sufficiency of the evidence that led to the permit's revocation. Morton is also distinguishable because the quarry was in business for decades before the permitting ordinance was enacted, and the government declined to issue a permit allowing it to continue operating. Here, in contrast, there was no claimed impropriety with the original issuance of the business license. The issue instead was the revocation of that business license based on evidence (uncontested on appeal) that the operations of the motel posed a nuisance, followed by continued operation of the motel constituting a nuisance per se-a situation Morton expressly distinguished from the facts before it by noting that matter did not involve a nuisance per se. (Morton, supra, 124 Cal.App.2d at p. 581.)
Finally, unlike in Morton, substantial time has lapsed between the permit determination at issue and the filing and adjudication of the writ petition. The motel's business license was revoked in 2008, but Patel did not file the writ petition in the superior court until December 31, 2019. Moreover, once Patel filed her writ petition, nothing in the record indicates that she sought a stay of the permanent injunction proceedings based on the pendency of that writ proceeding. Under these circumstances, the trial court was not required to await the final decision on Patel's writ petition before issuing the permanent injunction.
As explained above, Patel filed a writ petition years before in federal court as part of the civil rights complaint. The district court declined to exercise jurisdiction over that claim in October 2009, and the claim was never reinstated during the remainder of the federal proceedings.
F. City Is Not Estopped from Seeking a Permanent Injunction
Patel contends that City should be estopped from obtaining a permanent injunction because, during the period she was operating the motel without a license, she collected transient occupancy taxes from motel guests pursuant to City's ordinance and filed monthly reports with City, and City accepted the tax payments.
Patel's counsel did not present this estoppel claim to the trial court, instead arguing that City's acceptance of transient occupancy taxes violated the equal protection clause. Patel has therefore forfeited any such estoppel argument on appeal. (See Bardis v. Oates (2004) 119 Cal.App.4th 1, 13-14, fn. 6 ["New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal"].)
Even if this argument was not forfeited, we find it meritless. In City of Long Beach v. Mansell (1970) 3 Cal.3d 462, upon which Patel relies, the court held that among the elements necessary to apply estoppel is that the party claiming estoppel" 'rel[ied] upon the conduct to his injury.'" (Id. at p. 489, quoting Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305.) Further, "estoppel will not be invoked against a government agency where it would defeat the effective operation of a policy adopted to protect the public." (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 822.)
There are no grounds to apply the doctrine of estoppel in this case. There is no evidence Patel relied upon City's conduct" 'to h[er] injury.'" (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 489.) Motel guests pay the transient occupancy tax, and the motel only passes along the tax receipts to City. No evidence was presented at trial that Patel believed she was allowed to operate the motel without a business license because she complied with the transient occupancy tax requirement. Furthermore, the LBMC protects the public and Patel cannot invoke estoppel here against City to prevent the effective operation and enforcement of the LBMC. (Pettitt v. City of Fresno, supra, 34 Cal.App.3d at p. 822.)
Patel also apparently contends that City should be estopped because it issued her husband public health permits.Patel argues that City "has issued permits to [Patel's husband], which is [sic] still operative at present, acknowledging on its face that he can operate the motel." A City staff-person testified that a motel needs to obtain a health permit from City's health department in order to obtain a business license, and that the business license and the health permit are separate requirements. As with City's acceptance of transient occupancy taxes, its issuance of public health permits cannot be grounds for estoppel because there is no evidence that Patel relied to her detriment given the separate permits for separate purposes. (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 489.)
In her brief Patel erroneously refers to these permits as "building permits." The documents she cites to in the record are in fact titled "[p]ublic [h]ealth [p]ermit."
Patel claims that City also issued her husband a business license authorizing use of the property as a "commercial/industrial space rental." Patel did not raise this issue at the trial on City's motion for a permanent injunction and she has thus forfeited this argument. In addition, the argument lacks support. Patel cites to a bill from City for such a business license, which bill was attached as an exhibit to Patel's opposition to City's motion for a preliminary injunction. This evidence was not part of the permanent injunction proceeding. Nor is there evidence in the record that this bill was paid, or that a business license was issued. The only evidence at trial was that Patel did not have a business license to operate the motel.
G. City Did Not Have an Adequate Remedy at Law
Patel lastly argues it was improper for the court to issue the permanent injunction because City has an adequate legal remedy in the form of prosecuting someone else (namely, her husband) for violations of the LBMC.
"The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action [citation]; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award. [Citation.]" (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410; see § 526, subd. (a)(4) &(5) ["An injunction may be granted . . . [¶] . . . [w]hen pecuniary compensation would not afford adequate relief [or] [¶] . . . [w]here it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief"].)
Substantial evidence supports the trial court's conclusion that City did not have an adequate legal remedy here. By definition, a public nuisance is a condition that injures the entire community. City has an interest in enforcing the LBMC and halting uses of property that violate the LBMC that cannot be adequately satisfied by the payment of money. Patel fails to identify any claim for damages available to City that would adequately address its interest in obtaining compliance with the LBMC, as opposed to Patel simply paying money as a cost of doing (unlicensed) business and continuing to perpetrate the nuisance per se. While City could prosecute her husband for violating the LBMC, such an alternate remedy does not preclude injunctive relief. (Brownfield v. Daniel Freeman Marina Hospital, supra, 208 Cal.App.3d at p. 410; see § 526, subd. (a)(4) &(5).)
DISPOSITION
The judgment for a permanent injunction is affirmed. City shall recover its costs on appeal.
We concur: ROTHSCHILD, P. J., BENDIX, J.