Opinion
D070819
08-25-2017
CITY OF SAN DIEGO, Plaintiff and Respondent, v. JOEL B. SWICK, Defendant and Appellant.
Law Offices of Nathan Shaman and Nathan A. Shaman for Defendant and Appellant. Mara W. Elliott, City Attorney, John C. Hemmerling, Assistant City Attorney, and Marsha B. Kerr, Deputy City Attorney for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00008213-CU-MC-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Law Offices of Nathan Shaman and Nathan A. Shaman for Defendant and Appellant. Mara W. Elliott, City Attorney, John C. Hemmerling, Assistant City Attorney, and Marsha B. Kerr, Deputy City Attorney for Plaintiff and Respondent.
Plaintiff City of San Diego (the City) filed this action seeking to enjoin an unpermitted marijuana dispensary, allegedly operated by defendant Joel B. Swick in violation of the City's zoning laws, and for related civil penalties. The City moved for and obtained summary judgment against Swick. The trial court permanently enjoined Swick from operating a marijuana dispensary anywhere in the City without first obtaining the proper permits, and imposed $45,000 in civil penalties.
On appeal Swick claims the City's showing was inadequate to support the entry of summary judgment. He also challenges the relief granted by the court. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2015 San Diego Police Detective Brandon Woodland went to 4645 Ruffner Street, Suite C, San Diego, California (the Property). He entered the Property and found a lobby with a reception area. After filling out an application to become a member of a cooperative, Detective Woodland was led into a back room where he observed three display cases of marijuana products, a cash register, and other people buying marijuana. Detective Woodland purchased a marijuana product while there. By April 6, 2015, the dispensary had vacated the Property.
The Property is located in an Industrial-Light IL-2-1 zone. Under San Diego Municipal Code (SDMC) sections 131.0620, subdivision (b), 131.0622 and Table 131-06B, a medical marijuana consumer cooperative is not a permitted use in an IL-2-1 zone.
In March 2015 the City filed a complaint for injunction and civil penalties against Castle Investment Co., Inc. (Castle), as record owner of the Property, and Sergio Vinas, as the Chief Executive Officer and President of Castle, as well as numerous Doe defendants. In June 2015 the City amended the complaint to identify Swick as a Doe defendant.
The City subsequently moved for summary judgment on its claim against Swick. In support of that motion, the Statement of Undisputed Material Facts (SUMF) claimed the Property was owned by Castle, and that Vinas was Castle's Chief Executive Officer and President. These facts were not disputed by Swick.
The City's claims against Castle and Vinas were resolved by a stipulated judgment.
The City's SUMF also maintained that Castle leased Suite C at the Property to Swick, that Swick paid rent at the Property from November 2013 through March 2015 , and that Swick was a "Responsible Person" as the tenant of the Property under SDMC section 11.0210. The factual support supplied by the City for these averments included Castle's responses to a series of Requests for Admissions (RFA's) propounded by the City, in which Castle admitted it leased the property to Swick in October 2013 and that Swick made all the rental payments in connection with the lease, including money orders paid by Swick to Castle in January and March 2015.
The City's SUMF also represented that, during Swick's alleged tenancy at the Property, Detective Woodland and other customers purchased marijuana at the Property. Although Swick purported to "dispute" those facts, he did so based solely on objections that Woodland lacked personal knowledge or adequate expertise to support his declaration regarding what he saw or purchased. The court overruled Swick's evidentiary objections to Woodland's declaration, and Swick does not contest those rulings.
Although the City's SUMF claimed that Swick paid rent for the Property from November 2013 to March 2015, the City's RFA's and Castle's responses admitted that all rental payments from November 2013 to March 2014 were made by Swick. In additon, however, Castle also admitted that copies of money orders from Swick to Castle for rent payments for January and March 2015 were genuine.
Swick opposed the City's SUMF to the extent it sought to show he was lessee of the Property at the time of Detective Woodward's undercover purchase. Swick contended the City did not support those allegations with admissible evidence. Specifically, he "disputed" the allegations by objecting that Castle's responses to the City's RFA's were hearsay and no recognized exception to the hearsay rule applied because Castle rather than Swick was the party making those statements.
After overruling Swick's evidentiary objections, the court found the City had made a prima facie showing that Swick used the Property for an unlawful purpose under applicable zoning laws, and that Swick produced no evidence to rebut that showing. Accordingly, the court granted the City's motion and entered judgment that (1) enjoined Swick from operating a medical marijuana collective within the City without a permit, and (2) imposed civil penalties on Swick of $45,000 under SDMC section 12.0202, subdivision (b).
DISCUSSION
1. Applicable Legal Principles
A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc. § 437c, subd. (c).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) Importantly, the "burden of production entails only the presentation of 'evidence.' (Evid. Code § 110.) Further, [Code of Civ. Proc. section 437c(c)] . . . impliedly provide[s] for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for." (Aguilar, at pp. 850-851.)
Once the moving party has produced admissible evidence supporting its prima facie showing, the burden shifts to the opposing party to produce evidence giving rise to one or more triable issue of facts. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1092 (Howell); Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 444.) The court may enter summary judgment if, after viewing the evidence in the light most favorable to the party opposing the motion, and resolving all doubts in favor of the opposing party, there is no triable issue of material fact. (Cf. Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 174.) On appeal from an order granting summary judgment, the appellate court independently determines whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 710-711 (Mamou).)
The court's judgment here included injunctive relief and civil penalties, both of which are authorized remedies in a civil proceeding seeking to prosecute violations of zoning restrictions. (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 70 ["Where a legislative body has enacted a statutory provision proscribing a certain activity, it has already determined that such activity is contrary to the public interest. Further, where the legislative body has specifically authorized injunctive relief against the violation of such a law, it has already determined (1) that significant public harm will result from the proscribed activity, and (2) that injunctive relief may be the most appropriate way to protect against that harm"].) "The grant or denial of a permanent injunction rests within the trial court's sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion." (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.) "The burden is on the complaining party to establish an abuse of discretion." (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 146.) Similarly, our review of the amount of the civil penalty imposed appears to be circumscribed by the deferential abuse of discretion standard. (Cf. Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 537 (Hewlett).) 2. Summary Judgment Was Properly Granted
The relevant municipal law provides that the City may seek injunctive relief and civil penalties under SDMC section 12.0202 for violation of zoning laws. (See SDMC § 121.0311.) SDMC section 12.0202, subdivision (a) provides that "any provision of this Code may be enforced by injunction issued by the Superior Court upon a suit brought by The City of San Diego." Subdivision (b) adds that "[a]s part of a civil action filed to enforce provisions of this Code, a court may assess a maximum civil penalty of two thousand five hundred dollars ($2,500) per violation of the Municipal Code for each day during which any person commits, continues, allows or maintains a violation of any provision of this Code."
The City's motion for summary judgment was supported by the City's SUMF showing that: (1) the Property was located in an Industrial Light IL-2-1 zone; (2) operating a medical marijuana consumer cooperative in an IL-2-1 zone violates the City's zoning laws because it is not a permissible use in an IL-2-1 zone; (3) the Property was being used for that impermissible purpose in February 2015; (4) Swick was the tenant of the Property from November 2013 through March 2015; and (5) a tenant is a "Responsible Person" liable for violations of zoning laws. Swick does not claim that this showing, if supported by admissible evidence, would be inadequate to meet the City's burden of production. (See Aguilar, supra, 25 Cal.4th at p. 851 ["A prima facie showing is one that is sufficient to support the position of the party in question."].) Instead, he argues the City's key facts were supported only by inadmissible evidence, to which he objected below. He asserts that because the City's "position depends on patently inadmissible evidence admitted over a proper objection, a reviewing court [] [is] empowered, and indeed obliged, to acknowledge the error and disregard the evidence." (Mamou, supra, 165 Cal.App.4th at 711.)
Swick also does not and cannot claim he submitted any evidence in opposition to the City's SUMF that would have raised triable issues of material fact. For example, he submitted no evidence disputing that he was the "Joel B. Swick" listed on the lease, that his signature on the credit application and lease for the Property was genuine, or that he was the source of the money orders received by Castle in payment of the January and March 2015 rent for the Property.
Swick's position below, and his principal argument on appeal, is that the materials submitted by the City as evidentiary support for the facts set forth in the SUMF—Castle's responses to the RFA's attesting to the records of transactions concerning the etiology of the lease and the ongoing rent payments for the Property—were inadmissible as to Swick. We disagree. While Castle's responses to the RFA's are conclusive evidence only as against Castle (Civ. Proc. Code §2033.410, subd. (a)), they are admissible evidence in support of a motion for summary judgment. (Cf. Union Bank v. Los Angeles County Superior Court (1995) 31 Cal.App.4th 573, 580 [separate statement properly referred to admissions responses "under the express terms of the summary judgment law which provides, 'The motion shall be supported by . . . admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken' "].) Those responses, which were verified under penalty of perjury, constitute the functional equivalent of a declaration attesting to the genuineness of the credit application submitted to Castle by "Joel B. Swick," the lease under which Castle leased the Property to a tenant named "Joel B. Swick," and the copies of money orders Castle received as rent payments from its tenant "Joel B. Swick."
In Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, the court examined an analogous set of circumstances and concluded a trial court may consider a document that is akin to a declaration for purposes of evaluating a summary judgment motion. (Id. at pp. 148-149 and fn. 3.) There, the plaintiff (as part of his showing in connection with a summary judgment motion) attached a transcript from a prior criminal proceeding that contained testimony given under oath. (Id. at p. 148.) The appellate court acknowledged that prior testimony from the earlier case "could not be received in this case [at trial] over a hearsay objection on the ground that it is admissible under the 'former testimony' exception" because there had been no showing that the declarant was unavailable as a witness. (Id. at p. 149, fn. 3.) Nonetheless, the recorded testimony from the earlier case "serves effectively as a declaration . . . and we treat it here as such" for purposes of a summary judgment motion.
We agree with Williams on this limited point. A declaration is nothing more than an out-of-court statement by a witness certified as true under penalty of perjury under the laws of California. (Code Civ. Proc. 2015.5, subd. (b).) Castle's responses to the City's RFA's were also out-of-court statements by a witness certified as true under penalty of perjury under the laws of California. Because Swick articulates no functional difference between Castle's responses to the RFA's and a hypothetical declaration by Castle repeating those same responses, we conclude the court was entitled to credit the evidence contained in the responses to the RFA's to the same extent such evidence would have been credited had it been contained in a declaration from Castle.
Code of Civil Procedure section 2015.5, which applies to summary judgment motions (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 756), provides that "[w] henever, under any law of this state . . . any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same . . . , such matter may with like force and effect be supported, evidenced, established or proved by [a] . . . declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California." Because Castle's responses to the RFA's satisfy all of those requirements, it was admissible under section Code of Civil Procedure section 2015.5 in a summary judgment proceeding.
Swick alternatively contends that even if Castle had submitted a declaration attesting to the fact it had leased the Property to Joel B. Swick and verifying the genuineness of the documents, such evidence was inadmissible because it lacked adequate authentication. But authentication merely requires that "there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (People v. Goldsmith (2014) 59 Cal.4th 258, 267 [quoting Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321].) "There is no strict requirement as to how a party authenticates a writing . . . . 'A trial court's finding that sufficient foundational facts have been presented to support admissibility is reviewed for abuse of discretion (People v. Smith (2009) 179 Cal.App.4th 986, 1001).' " (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 684.)
The court overruled Swick's objections insofar as he claimed there was inadequate authentication. We conclude that ruling was not an abuse of discretion because there were sufficient foundational facts presented to support admissibility of the lease and copies of the rental payments. The credit report, the lease, and the copies of the money orders for the rental payments were attested as genuine by an officer of Castle, and it appears these documents were part of the business records of Castle. Under such circumstances, the authentication by an officer of the corporation provided an adequate foundational showing for their admissibility. (Cf. LPP Mortgage, Ltd. v. Bizar (2005) 126 Cal.App.4th 773, 776-777 [custodian of records competent to authenticate records on summary judgment motion]; Geary St. etc. R.R. Co. v. Campbell (1919) 39 Cal.App. 496, 498.)
Swick's written objections contained no assertion of inadequate authentication. However, at the hearing on the motion for summary judgment he raised his authentication objection, asserting the declarant could not testify to knowing that the signatures on the documents were in fact Swick's signatures. The court overruled that objection, noting the documents "come[] into evidence" and his assertion "goes to the weight the court or the trier of fact would give it."
The City has requested we take judicial notice of Swick's DMV record because it shows a signature closely matching the signatures on the lease and the money orders. Because we conclude the record below provided adequate authentication to support the court's ruling admitting those documents, we deny the request for judicial notice as superfluous to our decision. (County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, 866, fn. 3.)
Swick's argument, distilled to its essence, is not that there was inadequate authentication to make the documents admissible. Rather, he contends that absent the testimony of a handwriting expert or other person familiar with Swick's signature, there was no evidence that he was the "Joel B. Swick" who signed the lease and made the rent payments, thereby precluding summary judgment against him as a "Responsible Person" within the meaning of SDMC section 11.0210. However, the City as moving party bore only the initial burden of production necessary to make a prima facie showing. (Aguilar, supra, 25 Cal.4th at p. 850.) That burden "entails only the presentation of 'evidence[]' . . . sufficient to support the position of the party in question. [Citation.] No more is called for." (Id. at pp. 850-851.) Here the City met that burden by producing evidence showing that "Joel B. Swick" was the tenant of the property (and hence a "Responsible Person" within the meaning of SDMC section 11.0210) starting in October 2013 and was still paying rent through March 2015.
Because the City produced admissible evidence to support its prima facie showing, the burden shifted to the Swick to offer contrary evidence giving rise to one or more triable issues of fact. (Howell, supra, 129 Cal.App.4th at p. 1092.) Although he offered no such evidence, Swick suggests summary judgment should have been denied because there was no evidence he signed the lease or remitted the rent.
An analogous argument was rejected by the court in Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149 (DiLoreto). There, the plaintiff alleged the defendant signed a written employment agreement and sued the defendant for breach of that agreement. (Id. at p. 153.) The trial court entered summary judgment in favor of the plaintiff, and the defendant on appeal argued the ruling was improper because triable issues of fact existed as to whether she signed the written employment agreement. (Id. at pp. 159-160.) The court rejected the argument, noting that plaintiff's showing included a statement the employment agreement was entered into and attached a copy of the agreement containing the defendant's signature. The court concluded that "such a statement, along with the written contract containing a signature which [defendant] has never unequivocally denied as hers, is sufficient evidence to establish a prima facie case. Although [defendant] stated in her deposition that she was not sure if the signature was or was not hers, and could not recall signing such a contract, such evidence is insufficient to create a triable issue of fact because a failure to recall does not logically contradict [plaintiff's] evidence" establishing the agreement. (Id. at p. 160, emphasis added.)
Certainly, once the City's showing shifted the burden to Swick to produce contrary evidence, Swick could have raised a triable issue of fact by unequivocally denying it was his signature on the lease or rent remittances. His failure to do so, however, left the City's prima facie showing unrebutted and entitled the City to summary judgment.
Swick's related contention is equally without merit. He claims that even if the evidence showed he was the tenant on the Property and that an unlawful use was made of the Property during his tenancy, such evidence does not support a reasonable inference that he ever personally "used" the Property to conduct any business (unlawful or otherwise) at the Property. We reject Swick's claim, for two reasons. First, SDMC section 121.0302, subdivision (a), makes it unlawful for any "Responsible Person" (defined to includes tenants, see SDMC § 11.0210) to "maintain or use" any premises in violation of zoning restrictions; it appears Swick as tenant "maintained" the premises even if he did not personally conduct the prohibited business. More importantly, this argument appears to assert that summary judgment was improper because, while it is undisputed Swick was the sole lessee of the Property, it is theoretically possible someone else actually conducted the prohibited business without Swick's knowledge or consent. But "[w]hen opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork." (Di Loreto, supra, 1 Cal.App.4th at p. 161.) Swick's claim is based on nothing other than speculation. "Speculation, however, is not evidence" (Aguilar, supra, 25 Cal.4th at p. 864) and does not preclude entry of summary judgment. (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1299.) 3. Injunctive Relief Was Appropriate
Swick asserts the court abused its discretion when it permanently enjoined Swick "from operating or maintaining a marijuana dispensary, collective or cooperative in any form in the City of San Diego without a Conditional Use Permit." Because it was undisputed the Property had been vacated by April 2015, before Swick was joined as a defendant in this action, Swick relies on dicta from Gafcon, Inc. v. Posner & Associates (2002) 98 Cal.App.4th 1388 to the effect that " 'a change in circumstances at the time of the hearing, rendering injunctive relief moot or unnecessary, justifies denial of the request.' " (Id. at p. 1403, fn. 6.)
"[T]he central legal question[] . . . is whether a party to a lawsuit can avoid having a permanent injunction issued against it by voluntarily undertaking to do what the injunction would require. There is case authority saying an injunction may be denied on that basis. [Citations.] But simply because a request for permanent injunctive relief may be denied based on voluntary submission to its terms does not mean such a request must be denied on that basis . . . . [¶] [T]here is no hard-and-fast rule that a party's discontinuance of illegal behavior makes injunctive relief against him or her unavailable." (Robinson v. U-Haul Company of California (2016) 4 Cal.App.5th 304, 315 (Robinson).) As the Court of Appeal observed in People ex rel. v. Superior Court (Cahuenga 's the Spot) (2015) 234 Cal.App.4th 1360 (Cahuenga):
"[The] claim that the action is moot because [the property owner] is no longer leasing to a medical marijuana dispensary is without merit. While voluntary cessation of conduct may be a factor in a court's exercise of its equitable jurisdiction to issue an injunction, it is not determinative; the trial court must also decide if an injunction affecting future conduct should be a part of the relief it grants." (Id. at p. 1385.)
Here, the court recognized the discretionary nature of the power to enter a permanent injunction under the rationale of Cahuenga and determined in light of the facts that an injunction was appropriate notwithstanding the evidence that Swick had vacated the Property. On this record, we cannot conclude the court abused its discretion in granting the requested injunctive relief. (Accord, Robinson, supra, 4 Cal.App.5th at pp. 315-317 [affirming entry of permanent injunction despite evidence behavior had ceased].) 4. The Award of Civil Penalties Was Not an Abuse of Discretion
The court specifically cited Cahuenga in its minute order, and observed at the hearing that because Swick had offered no evidence suggesting the conduct was unlikely to recur, the only evidence before the court permitted the inference that Swick had engaged in prohibited conduct, had leased the property for nearly a year and a half, and had ceased only after the present action was commenced. The court noted "there certainly could have been a record, if the facts supported it, where the court could look at it and say, okay, he's done it in the past but I don't think there's any reasonable probability that he's at risk to do it in the future. But that would be a record that you would have to develop."
Swick finally asserts that the amount of civil penalties imposed was an abuse of discretion because the statutory scheme only authorizes a court to award up to $2,500 "per violation . . . for each day during which any person commits, continues, allows or maintains a violation" of the zoning laws." (SDMC § 12.0202, subd. (b).) Swick asserts that because there was only evidence of a single undercover purchase, any award beyond one day of penalties was an abuse of discretion.
Our review of an award of civil penalties is governed by the familiar abuse of discretion standard. (Cf. Hewlett, supra, 54 Cal.App.4th at p. 537.) The evidentiary basis for the court's decision, which was necessarily limited by Swick's election to present no evidence, showed that Swick (1) took possession of the Property on November 1, 2013, at a monthly rental payment of $1,100 per month, (2) was still paying $1,100 per month in rent for the Property through the end of March 2015, and (3) operated a prohibited business on the Property. On this showing, a court could have reasonable inferred Swick operated a prohibited business on the Property for the entire period of his occupancy because Swick elected to introduce no evidence demonstrating if (much less when) any other type of business use was made of the Property.
In the proceedings below, the court asked the defense whether it wanted to proceed with the penalty hearing at that time, or wanted a two week continuance to marshal evidence in support of a defense argument that a shorter time frame should be applied to calculate the penalty. The court cautioned, however, that if at such hearing Swick "tells what I think is a lie to the court, then that could augment the civil penalty." It further cautioned that any continuance would enable the City to marshal evidence that Swick was operating the prohibited business starting in November 2013, and "then you're looking at a monstrously higher penalty" because the court was tentatively "looking at this, factoring in everything, probably like a four month case." The defense agreed to "go forward today."
Swick argued below that the court should infer he operated the prohibited business only on the date of Woodward's purchase and therefore award only a single day of civil penalties. The court rejected that inference, noting that "if someone . . . has a leasehold interest . . . and is selling marijuana on a particular day, I don't think it's a reasonable conclusion that that's the only time he's ever sold it, that it started and ended that day. That's . . . not reasonable."
Because the rental period was over 500 days, the inferences drawn from the only evidence presented below would have supported a maximum civil penalty of over $1.25 million. The court imposed a total civil penalty of $45,000, which is less than 4 percent of the amount this record could have supported. We cannot conclude an order imposing a small fraction of the supportable civil penalties was an abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
DATO, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.