Myrtle Street Flats LLC, v. City of Vallejo et al

Filing 33

ORDER signed by District Judge John A. Mendez on 11/27/2017 GRANTING-IN-PART 9 Motion for Preliminary Injunction. During the pendency of this litigation, Defendant City of Vallejo is ORDERED AND ENJOINED to remove the Emergency Summary Abatement is sued concerning 624 Marin on May 31, 2017, to restoreutility service to 624 Marin. The remainder of Plaintiffs Motion is DENIED. Defendants 12 Motion to Dismiss is GRANTED-IN-PART and DENIED-IN-PART. Individual Defendants Vincent Sproete, Jack McArthur, Daniel E. Keen, Lonell Butler, Robert Chambers, and Michelle Hightower are hereby DISMISSED from this action. (Hunt, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MYRTLE STREET FLATS LLC,
d/b/a Sunrise Properties,

No.

2:17-cv-1662-JAM-KJN

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Plaintiff,
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ORDER RE MOTION FOR PRELIMINARY
INJUNCTION AND MOTION TO DISMISS

v.
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CITY OF VALLEJO, a public
entity, et al.,
Defendants.

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Myrtle Street Flats LLC (“Plaintiff”), doing business as

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Sunrise Properties, owns multiple properties in downtown Vallejo.

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Plaintiff embarked on a project to transform those properties

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into live/work spaces following passage of a city ordinance

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permitting such use.

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Vincent Sproete, Jack McArthur, Daniel E. Keen, Lonell Butler,

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Robert Chambers, and Michelle Hightower (collectively “City

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Defendants”), as well as Emergency Construction Services (“ECS”),

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for constitutional violations and declaratory relief due to the

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Fire Department officials’ decision to evacuate and red tag two

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of the properties and notice the other properties for evacuation.

Plaintiff now sues the City of Vallejo,

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Plaintiff seeks a preliminary injunction enjoining Vallejo

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from evacuating the noticed properties and permitting Plaintiff

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to operate all of the properties.

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below, Plaintiff’s motion for preliminary injunction is DENIED in

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part and GRANTED in part.

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the individuals Plaintiff sued in their official capacity.

For the reasons set forth

Additionally, the Court DISMISSES all

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff alleges the following facts:

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Vallejo passed a city ordinance allowing live/work

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occupancies in 2001 and Plaintiff worked with the city to

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determine what guidelines would apply to these unique

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occupancies.

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units located at 616, 620, 624, 628, and 630 Marin St., and 405

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and 409 Virginia St., (collectively “Subject Properties”) into

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spaces for live/work use.

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and Vallejo got into a dispute over the business licensing

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requirements for the units, which culminated in a letter, dated

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September 8, 2004, from then-Chief Building Official Leon McNeil,

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identifying three requirements for Plaintiff to meet for the

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units to “be occupied in compliance with the Vallejo Building

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Code.”

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approvals for the permits governing the work performed pursuant

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to the McNeil letter, plus the re-roofing Vallejo had also

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indicated would be necessary.

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completed additional work that Vallejo “demanded” in 2012 and

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received final approval from the City that year.

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30.

Compl. ¶¶ 16–17.

Id. at ¶¶ 21–22.

Plaintiff began transforming

Id. at ¶¶ 15, 19.

In 2003, Plaintiff

On April 27, 2007, Vallejo issued final

Id. at ¶¶ 26–27.

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Plaintiff

Id. at ¶¶ 28–

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During that period, Plaintiff also restored the Subject

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Property’s historic façade and original design.

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The Subject Property had previously been identified as a

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structure of individual importance, if restored, in the 2005

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Downtown Specific Plan.

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work qualifies the building for protection under the California

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Historic Building Code.

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Id. at ¶ 24.

Id. at ¶ 23.

Plaintiff contends this

Id. at ¶ 31.

Plaintiff’s recent troubles began with an unwelcome guest
(Ms. Cote) who would not vacate the premises of 616 Marin despite

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efforts of the master lessee to evict her.

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this time, on March 23, 2017, fire inspector William Tweedy

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prepared a “Fire & Life Safety Inspection Report” identifying

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eight issues that required attention for 616 Marin, along with

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several issues with the other units.

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completed and Tweedy provided fire clearance to all seven units

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on April 7, 2017.

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undergone a change in use, Vallejo then issued a separate list of

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requirements based on the 2016 building and fire codes “in a

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letter [dated March 27, 2017] signed by Sproete and reflecting

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involvement of McArthur and Butler.”

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a June 1st compliance deadline.

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these codes are inapplicable to the Subject Property.

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¶ 37.

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Id.

Id. at ¶ 33.

Id. at ¶ 36.

During

The work was

Contending that the Subject Property had

Id. at 37.

Id. at ¶ 38.

The letter set

Plaintiff believes
Id. at

Vallejo evicted the 616 Marin tenant and guests on May 23,

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2017, and red-tagged the unit, preventing Plaintiff from entering

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the premises and hiring Defendant ECS to board it up.

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¶¶ 38–39.

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in the kitchen of this unit.

Id. at

Apparently, on May 22, 2017, Ms. Cote set a small fire
Id. at ¶ 33.
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Her complaints led to

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the May 23rd inspection that, in turn, led to the declaration

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that the unit was unsafe.

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Vallejo officials, including Sproete, encouraged Ms. Cote to

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manufacture safety concerns.

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up of 616 Marin caused damage to the doors and frames and the

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termination of services caused rotting food in refrigerators.

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Id. at ¶ 39.

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property after being informed that the tenant had terminated his

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tenancy and the unit was vacant.

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Id. at ¶¶ 33–35.

Id.

Plaintiff believes

The red-tagging and boarding

Vallejo continued to deny Plaintiff access to the

Id.

On May 31, 2017, Vallejo also red-tagged and boarded up 624

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Marin, without any notice to Plaintiff.

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Although Plaintiff assured Vallejo the unit was vacant commercial

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space, Vallejo premised its actions on the fact that an

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individual was observed residing in the unit.

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Plaintiff had not authorized anyone to reside in the unit, had

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shut off water service to the unit during its vacancy, had not

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charged or collected rent from any person during the vacancy, and

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had been close to entering a lease with a commercial tenant.

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at ¶¶ 41–43.

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Id. at ¶¶ 40–41.

Id. at ¶¶ 40–42.

Id.

The following month, Vallejo issued evacuation notices,

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signed by Sproete and McArthur, to the tenants at the five

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occupied live/work storefronts at 620, 628, and 630 Marin and 405

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and 409 Virginia (collectively “Occupied Units”).

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The notices rely upon 2016 code requirements that, Plaintiff

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believes, do not apply to the units and contain additional

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unsupported demands.

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authorize Vallejo to evict all tenants at the Subject Property

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and to seize it in its entirety with no notice or opportunity to

Id.

Id. at ¶ 46.

“The evacuation notices purport to

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be heard[,] . . . and remain in effect to this day[.]”

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¶¶ 47, 52.

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Plaintiff’s questions, observations, and requests relating to

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these notices.

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Id. at

Vallejo allegedly has refused to respond to

Id. at ¶ 46.

On June 30, 2017, Vallejo issued administrative notices for

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all Subject Property units, other than 624 Marin, on behalf of

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Hightower, Sproete, and Butler.

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cite to the 2016 code requirements as well as non-safety

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concerns.

Id. at 48.

The notices also

Id.

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Plaintiff sent a letter to Vallejo on July 10, 2017,

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asserting violations of its rights and, on July 14, 2017,

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requested a hearing to challenge the building code violations

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cited in the notices.

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request and summarily denied Plaintiff’s other assertions in (a)

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letter(s) dated July 18, 2017.

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Vallejo purportedly authorized Plaintiff to possess and control

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616 and 624 Marin, it has not authorized Plaintiff to use either

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space the way Plaintiff intends without costly alterations and

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payment of civil fines and charges, including ECS’s fees.

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¶ 53.

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administrative citations against Plaintiff alleging the Occupied

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Units must have fire sprinklers, unspecified changes to egress,

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and unspecified changes to smoke alarms.

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Id. at ¶ 49.

Vallejo denied the hearing

Id. at ¶¶ 50–51.

Although

Id. at

On August 2, 2017, Vallejo and Sproete issued

Id. at ¶ 54.

Plaintiff filed its Complaint in this Court asserting five

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claims: (1) Unreasonable seizure under the Fourth and Fourteenth

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Amendments; (2) Violation of Due Process under the Fifth and

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Fourteenth Amendments; (3) Declaratory Relief; (4) Inverse

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Condemnation under the Fifth Amendment; and (5) Inverse
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Condemnation under the California Constitution.

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for a preliminary injunction, ECF Nos. 4 & 9, and City Defendants

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moved to dismiss, ECF No. 12.

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for a hearing on the pending motions on November 7, 2017.

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No. 25.

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Plaintiff to further brief the question of whether the

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individually named City Defendants sued in their official

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capacities should be dismissed from the lawsuit.

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gave the parties an opportunity to resubmit proposed orders for

Plaintiff moved

The parties came before the Court
ECF

The Court ruled on the motion to dismiss, but permitted

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the preliminary injunction.

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The Court also

injunction motion under submission.

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II.

The Court took the preliminary

OPINION

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A.

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“To obtain a preliminary injunction, a party must show that

Legal Standard

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‘he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an

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injunction is in the public interest.’”

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v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (quoting Winter v.

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Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). “If a

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plaintiff can only show that there are ‘serious questions going

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to the merits’—a lesser showing than likelihood of success on the

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merits—then a preliminary injunction may still issue if the

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‘balance of hardships tips sharply in the plaintiff's favor,’ and

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the other two Winter factors are satisfied.”

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omitted).

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party has ‘a fair chance of success on the merits.’”

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Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th

Friends of the Wild Swan

Id. (citations

“Serious questions” are ones “as to which the moving

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Sierra On-

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Cir. 1984) (citing Benda v. Grand Lodge of the Int’l Ass’n of

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Machinists, 584 F.2d 308, 315 (9th Cir. 1978)).

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B.

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Both parties submitted exhibits and declarations for the

Judicial Notice and Evidentiary Objections

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Court’s review.

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the declarations of Alan Wofsy and George Leake.

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They contend Mr. Wofsy’s declaration is argumentative and that

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many of his statements lack foundation.

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at the hearing, portions of Mr. Wofsy’s declaration are

ECF Nos. 5–8, 19.

City Defendants objected to
ECF No. 19-3.

As the Court indicated

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argumentative. But, rather than ruling on each individual

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objection, the Court has self-policed in reviewing and

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considering its contents.

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objection for lack of foundation because Mr. Wofsy has personal

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knowledge of the facts to which he attested.

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approached Mr. Leake’s declaration similarly.

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on the motion does not rely upon any of the declarants’

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statements that are argumentative or lack foundation.

The Court did not find merit to the

The Court
The Court’s ruling

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C.

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This case presents unique legal and factual circumstances.

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Neither party directed the Court to a case with analogous facts

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and theories of relief.

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clearly favor either party.

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on whether Plaintiff has shown irreparable harm is likely in the

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absence of a preliminary injunction with respect to the units.

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Analysis

1.

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The merits analysis, thus, does not
The Court’s analysis, instead, turns

616 Marin and the Occupied Units

Plaintiff argues that a loss of interest in real property,

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even rental rights, constitutes an irreparable injury.

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22.

Mot. at

City Defendants concede that deprivation of property
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interests constitutes irreparable harm, but argue that the

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doctrine of unclean hands bars relief.

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concedes that it has access to its properties and thus the only

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present deprivation to Plaintiff is rental income.

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10–11.

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the same deprivation will result.

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Opp’n at 19.

Plaintiff

See Mot. at

If City Defendants evict tenants from the Occupied Units,

The Court finds Plaintiff’s lost rental income does not

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constitute irreparable harm.

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support a finding of irreparable harm[] because such injury can

“[E]conomic injury alone does not

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be remedied by a damage award.”

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Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir.

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1991).

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therefore, is not irreparable harm.

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Aurora Loan Services, LLC, No. C11-5393BHS, 2011 WL 2357644, at

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*2 (W.D. Wash. June 13, 2011) (finding the loss of rental income

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is not irreparable harm); Park v. Wachovia Mortg., FSB, No.

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10CV1547-WQH-RBB, 2010 WL 5088826 (S.D. Cal. Dec. 7, 2010)

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(same); Rhodes v. Wells Fargo Home Mortg., Inc., No. 09-CV-1042 W

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(CAB), 2009 WL 10672064 (S.D. Cal. June 3, 2009) (same).

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Court cannot award preliminary relief on this basis.

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Rent-A-Center, Inc. v. Canyon

Lost rental income may be remedied through damages and,
See Gerber-Williams v.

The

Plaintiff also argues that City Defendants’ conduct harms

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Plaintiff’s business reputation as landlord of the Subject

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Properties.

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Units, Plaintiff only offers Mr. Wofsy’s conclusory statements in

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support.

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control over business reputation and damage to goodwill could

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constitute irreparable harm, the moving party may not rely on

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unsupported and conclusory statements regarding harm the party

With respect to 616 Marin Street and the Occupied

See Wofsy Decl. ¶ 56.

“Although evidence of loss of

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might suffer.”

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470-JLS (KESx), 2016 WL 9049647, at *5 (C.D. Cal. June 15, 2016)

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(quoting Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc, 736

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F.3d 1239, 1250 (9th Cir. 2013)) (internal quotation marks

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omitted).

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establish that irreparable harm to its business reputation and

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goodwill is likely rather than speculative as to these units.

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iFreedom Direct Corp. v. McCormick, No. SACV 16-

The Court finds Plaintiff’s evidence fails to

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624 Marin Street

In contrast, the Court finds the evidence sufficient to
support an injunction with respect to 624 Marin.
First, Plaintiff has at least a fair chance of success on

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the merits on his claims regarding this unit.

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residential use Mr. Sproete observed during his inspection may

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have justified an emergency evacuation, City Defendants have

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failed to justify the continued deprivation and limitations on

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use of this property.

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units, including 624 Marin, fire clearance after the April 7,

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2017, re-inspection).

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additional requirements City Defendants have sought to impose on

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the unit pertain to residential units or units that have

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undergone a change in use.

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(letter regarding all units, indicating that because the units

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are being used for residential purposes, they must meet 2016 code

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requirements); Sproete Decl. ¶¶ 9–10 (attesting that he noticed

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emergency summary abatement for 624 Marin and secured the

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property after observing individuals residing there), Exh. A

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(Fire & Life Safety Inspection Report listing 624 Marin as “Type

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of Business: B – vacant store”), Exh. C (Emergency Summary

While the

See Wofsy Decl. ¶ 38, Exh. X (giving all

The property is a commercial unit and the

See Wofsy Decl. ¶¶ 44–50, Exh. Y

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Abatement notice for 624 Marin, noting a change in use due to

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residential occupancy and additional requirements).

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shows Plaintiff has a fair chance of success in prevailing on its

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claims with respect to 624 Marin Street.

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Inc., 739 F.2d at 1421.

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The evidence

See Sierra On-Line,

Second, Plaintiff has shown that irreparable harm is likely.

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Plaintiff has already missed out on business opportunities,

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including signing a lease with a commercial tenant and securing a

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business license, due to City Defendants actions. See Wofsy Decl.

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¶¶ 44–50.

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opportunities.

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in damages, harm to potential business relationships and lost

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business opportunities—in the present circumstances—are not. See

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Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922 (Fed.

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Cir. 2012) (affirming district court’s finding of irreparable

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harm based on price erosion, damage to ongoing customer

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relationships, loss of customer goodwill, and loss of business

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opportunities).

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The restrictions on the unit continue to preclude such
Id.

Although lost rental income is quantifiable

Finally, the balance of the equities and public interest

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favor issuing a preliminary injunction.

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abated when the City evicted the occupants from the premises.

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See Sproete Decl. ¶ 9; Wofsy Decl. ¶ 50.

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offered no other evidence that the unit is a residential space

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that should be subject to the same requirements as the other

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units or that the unit otherwise contains fire hazards.

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Wofsy Decl. Exh. X (giving the unit fire clearance).

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this situation persists, the property will remain a vacant space

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instead of housing a business that Vallejo residents can
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The emergency situation

City Defendants have

See

As long as

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frequent.

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justification for keeping the property in this state.

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finds a preliminary injunction is warranted as to 624 Marin

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insofar as Plaintiff continues to use it only for commercial

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purposes.

Wofsy Decl. ¶ 49.

Defendants have failed to show any
The Court

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D.

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At the November 7th hearing, the Court ruled on Defendants’

Motion to Dismiss

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(other than ECS) motion to dismiss.

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granting this motion with respect to the Occupied Units on

The Court affirms its ruling

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Plaintiff’s first, second, fourth, and fifth claims.

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the motion with respect to 616 and 624 Marin on all claims (other

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than Plaintiff’s Fifth Amendment due process claim which is

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dismissed because Defendants are not federal actors). The Court

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also denies the motion to dismiss with respect to the Occupied

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Units on the third claim for declaratory relief.

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permitted Plaintiff to submit additional briefing on whether the

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individual defendants sued in their official capacity should be

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dismissed from the action.

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briefing on the issue.

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It denies

The Court

Plaintiff did not submit further

ECF No. 28.

Official-capacity suits are treated as suits against the

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entity.

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JAM-AC, 2013 WL 3992497, at *3 (E.D. Cal. Aug. 2, 2013).

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“Therefore, if individuals are being sued in their official

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capacities as municipal officials and the municipal entity itself

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is also being sued, then the official capacity claims against the

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individuals are redundant and should be dismissed.”

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Accordingly, the claims against the City officials in their

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official capacities are dismissed with prejudice.

See Herrera v. City of Sacramento, No. 2:13-cv-00456

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Id.

This ruling

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does not bar amendment, upon proper motion, to add any of these

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defendants in their individual capacities at a later date.

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III.

ORDER

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For the reasons set forth above, the Court GRANTS

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Plaintiff’s Motion for Preliminary Injunction in part:

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During the pendency of this litigation, Defendant City of

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Vallejo is ORDERED AND ENJOINED to remove the Emergency Summary

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Abatement issued concerning 624 Marin on May 31, 2017, to restore

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utility service to 624 Marin, and to take no further action to

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enforce that Emergency Summary Abatement or otherwise to

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interfere with Sunrise’s commercial use and enjoyment of that

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property based on that Emergency Summary Abatement or the grounds

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stated therein without further order of this Court.

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does not prohibit the City of Vallejo from the ordinary

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enforcement of applicable law with respect to this property based

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on facts arising subsequent to the issuance of this order and

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consistent with the City of Vallejo’s legal and constitutional

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obligations.

This order

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The remainder of Plaintiff’s Motion is DENIED.

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Defendants Motion to Dismiss is GRANTED in part and DENIED

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in part as set forth above. Individual Defendants Vincent

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Sproete, Jack McArthur, Daniel E. Keen, Lonell Butler, Robert

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Chambers, and Michelle Hightower are hereby DISMISSED from this

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action.

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IT IS SO ORDERED.
Dated:

November 27, 2017

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