“Waldow 2 18 22 Tentative Ruling.pdf” FULL TEXT
Department Nine (8:30 a.m.) February 18, 2022
12. COUNTY OF EL DORADO v. WALDOW 21C00122 OSC
Re: Preliminary Injunction. Plaintiff County filed a complaint against defendants Apple Bistro, Jennette Waldow, International Farmers Kitchen, LLC and others asserting causes of action for violation of Health and Safety Code §§ 114381 and 114405, violation of El Dorado County Environmental Health Permit Ordinance of the El Dorado County Ordinance Code, Chapter 8.05, and public nuisance. Plaintiff prays for a judgment imposing fines and penalties, as well as injunctive relief and an award of attorney fees and costs. Defendants Inman and Danette’s Brick Oven Pub were voluntarily dismissed from the action with prejudice upon plaintiffs request on December 23, 2021. Proofs of service filed on November 23, 2021 declare that the registered process server served defendants Jennette Waldow and Jennette Waldow d.b.a. Apple Bistro the summons and complaint and other litigation documents on November 9, 2021 by personal delivery to the party or person authorized to receive service for the party; and on November 9, 2021 defendant International Farmers Kitchen, LLC was served the summons and complaint and other litigation documents by personal delivery to Jennette Waldow as the party or person authorized to receive service for the party at the same time and location as defendants Jennette Wet doe and Jennette Waldow d.b.a. Apple Bistro were served. At the hearing of defendants’ motion to quash service of the summons and complaint on January 7, 2021 Jennette Waldow presented argument and the motion to quash was denied.
Plaintiffs ex parte application for a TRO and issuance of an OSC re: preliminary injunction was granted in part and denied in part.
The court denied the request for a TRO without prejudice and granted the request for issuance of an OSC Re: Preliminary Injunction which set the hearing for 8:30 a.m. on Friday, January 7, 2022 in Department Nine. The OSC directed defendants Jennette Waldow d.b.a. Apple Bistro, Jennette Waldow, and International Farmers Kitchen, LLC to appear and show cause why a preliminary injunction should not be issued and ordered them to file their opposition and serve the opposition on plaintiffs by email no later than December 30, 2022. The reply was to be filed and served by January 3, 2022. The OSC directed plaintiff to serve the OSC on the Apple Bistro defendants by email no later than December 6, 2021 and later by personal service no later than December 10, 2021. The proof of service of notice of entry of order fil. on December 1, 2021 declares that notice of entry of the order issuing the OSC, which included the OSC, was served on defendants Jennette Waldow d.b.a. Apple Bistro, Jennette Waldow, and International Farmers Kitchen, LLC by email on December 6, 2021. The proof of service filed on December 13, 2021 declares that John Doe manager was personally served the notice of entry of order on the OSC on December 6, 2021. There was no opposition to the OSC in the court’s file prior to the January 7, 2022 hearing. Where the order to show cause is issued without a temporary restraining order, the court may hear the matter, provided if the moving and opposing papers are served within the time period required by Code of Civil Procedure § 1005. (Code of Civil Procedure § 527(f)(1).) The court notes that there is evidence that the Apple Bistro defendants were adequately served the summons and complaint. The proofs of service attached to the application for TRO and OSC and documents filed in support of the application on November 30, 2021 declare that on November 30, 2021 defendants were served those documents by email to Jennette. Waldow. There is also evidence the OSC was served on defendants Jennette Waldow d.b.a.
Apple Bistro, Jennette Waldow, and International Farmers Kitchen, LLC by email on December 6, 2021 as directed by the court. Although the court directed personal service on the Apple Bistro defendants, the proof of service declares that the manager present at the Apple Bistro location was served for the defendants. Jennette Waldow appeared telephonically on January 7, 2022 at the hearing on the OSC re: preliminary injunction without any statement that she was specially appearing. Jennette Waldow refused to be called by her name, stated she was a beneficiary, and argued she can not be called a U.S. Citizen. In addressing the issue of personal service, plaintiff argued that Jennette Waldow was served the OSC by substituted service on Ms. Waldow’s manager and since Ms. Waldow appeared at the hearing on the OSC, she has acknowledged that she has notice of the preliminary injunction proceedings. In an abundance of caution, the court continued the hearing on the preliminary injunction to January 28, 2022. Plaintiff requested that personal service of the OSC not be required, as Ms. Waldow appeared. Ms. Waldow objected. The court stated it did not make any implied findings as to Ms. Waldow’s status and having asked her several times if she received a copy of the OSC, she refused to answer. Ms. Waldow also stated she would not accept service of the OSC with the new date by email. Plaintiff s counsel stated that they have been communicating by email. The court noted that Ms. Waldow requested a 15 day continuance of the hearing and that continuance has been provided. The court advised Jennette Waldow in open court that the hearing was continued to January 28, 2022 at 8:30 a.m. in Department Nine and told her that any response to the OSC must be filed and served by January 26, 2022. Plaintiffs counsel stated he would accept service by email. The court al. ordered that the County Counsel was to prepare a new OSC with the continued hearing date and that it can be served on Ms.
Waldow by email and regular mail. The OSC issued on January 10, 2022 stated that service was to be made by email and U.S. Mail no later than January 20, 2022. The January 7, 2022 minute order was served on plaintiffs counsel and defendant Waldo by mail on January 14, 2022. The proof of service attached to the notice of entry of judgment or order filed on January 12, 2022 declares that of the new OSC attached to the notice was served by mail and email to defendants on January 11, 2022. At the hearing on January 28, 2022 Ms. Jennette Waldow appeared in pro per and stated she was making a “special divine appearance” for Jennette. When the court asked her to state who she is, she repeated her previous statement. Ms. Waldow also stated the County is her fiduciary. The attorney appearing on behalf of the County denied that the County was a fiduciary of Ms. Waldow. The tentative ruling was to continue the hearing 10 8:30 a.m. on Friday, February 18, 2022 in Department Nine. The court ordered that the text of the tentative ruling becomes the Order of the court. Due to a clerical error, the minute ode f stated the hearing was continued to January 28, 2022. That error was corrected by the February 1, 2022 minute order setting the continued hearing as 8:30 a.m. on Friday, February 18, 2022 in Department Nine. That minute order was mailed to the parties on February 1, 2022. At the time this rang was prepared, there was no response to the OSC in the court’s file and the time limitation to file a response had expired. “William made a general appearance in the proceedings in the trial court. Where a person makes a general appearance, such appearance operates as a consent to jurisdiction of his person. (Harrington v. Superior Court (1924) 194 Cal. 185, 189, 228 P. 15, Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52, 12 Cal.Rptr.3d 711.) A general appearance occurs when a defendant takes part in the action or in some manner recognizes the authority of the
court to proceed (Dial 800 s. Fesbinder se p. 52, 12 Cal Rptr 3d 711. see Ices Vanes. Q (2010) 187 CaLAppAth 128, 135. 114 Cal.Rptr.3d 294.) A request for a continuance constitutes a general appearance because the relief could only be requested on a theory that a defendant was submitting to general iurisdiction of the court. (Knoff v. City etc. of San Francisco (1969) 1 Cal.App.3d 184, 201, 81 Cal.Rptr. 683, citing Zobel v. Zobel (1907) 151 Cal. 98, 100-102, 90 P. 191.) William appeared (in propria persona) at the initial hearing on the City’s motion for appointment of a receiver, where he requested a continuance to answer the complaint. He made a general appearance and cannot now complain.” (City of Riverside v. torsp_o_4(2014) 223 Cal.App.4th 670, 679-680.) “The general rule is that one who has been notified to attend a certain proceeding and does do so. cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose. This rule applies to one who appears in a lawsuit after defective service of process upon him, 21 Cal.Jur. § 4, p. 477, to one who responds to a notice of motion without adequate notice, 18 Cal.Jur. § 7, p. 652. Also to one who appears in an administrative proceeding without the notice to which he is entitled by law. 2 Cal.Jur.2d § 108, p. 202; Howe , State Bar, 212 Cal. 222, 231, 298 P. 25; Light v. State Bar, 14 Ca1.2d 328, 331-332, 94 P.2d 35; Farmers’ etc., Backs. Board of Equalization, 97 Cal. 318, 325, 32 P. 312. The rule also applies to a hearing upon a zoning application. See Hopkins v. MacCulloch, 35 Cal.App.2d 442, 451, 95 P.2d 950; Livingstone Rock, etc., Co. v. County of Los Angeles, 43 Ca1.2d 121, 129, 272 P.2d 4; Keeling v. Board of Zoning Appeals, 117 Ind.App. 314, 69 N.E.2d 613, 616; Wilson v. Township Committee of Union Tp., 123 N.J.L. 474, 9 A.2d 771, 772; Hancock v. City of Boston, 1 Metc. 122, 123, 42 Mass. 122, 123: (Emphasis added.) (De Lucav. Board of Sup’rs of Los Angeles County (1955) 134 Cal.App.2d 606, 609.)
it is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Citations.) This rule applies even when no notice was given at all. (Citations.) Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930, 119 Cal.Rptr. 835; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7- 8, 207 Cal.Rptr. 233.)” (Carlton v. Quint (2000) 77 Cal.AppAth 690, 697.) The court takes judicial notice that defendant International Farmers Kitchen, LLC’s Statement of Information filed with the California Secretary of State by defendant Jennette Waldow as manager and member of the LLC admits that the LLC is located at 2740 Highway 50, Placerville, CA which is in El Dorado County and is in the business of operating a restaurant. The statement also admits that defendant Jennette Waldow is the sole manager/member and is agent for service of process with her address listed as 2740 Highway 50, Placerville, CA The court record does not reflect that defendant Waldow ever stated she was specially appearing at the January 7, 2022 hearing on the OSC re: Preliminary Injunction. The court noted that Ms. Waldow requested a 15 day continuance of the hearing on the OSC, which was granted. It appears that defendant Waldow made a general appearance at the hearing on the OSC on behalf of all defendants regarding the OSC proceedings. Furthermore, Ms. Waldan was served the new OSC attached to the notice of entry of judgment or order by mail and email on January 11, 2022 as directed by the court. On January 27, 2022 plaintiff filed a reply and notice of non-opposition to the OSC and a supplemental declaration of the County’s Director of Environmental Management Department.
The proofs of service declare that on January 27, 2022 these documents were served by electronic mail on defendants. Preliminary injunction Principles A preliminary injunction shall not be granted without notice to the opposing parties. (Code of Civil Procedure, § 527(a).) “An injunction may be granted in the following cases: ¶ (1) When it appears by the complaint that the plaintiff is entitled to the retch demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. $ (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. ¶ (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. $ (4) When pecuniary compensation would not afford adequate relief. ¶ (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. ¶ (6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings. $ (7) Where the obligation arises from a trust.” (Code of Civil Procedure, § 526(a).) A preliminary injunction may be granted upon a verified complaint or upon affidavits which show that sufficient grounds exist for the issuance of such an injunction. (Code of Civil Procedure, § 527(a).) In deciding whether to issue a preliminary injunction, two factors must be weighed: the likelihood of the moving party ultimately prevailing on the merits and the relative interim harm to the parties from the issuance of a preliminary injunction. (Butt v. State of California (1992) 4 Ca1.40 668, 677-678.) “The latter factor involves consideration of such
things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. The determination whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. (Citation omitted.)” (Abrams v. St. John’s Hospital & Health Center (1994) 25 Cal.App.4th 628, 636.) “It is said: ‘To issue an injunction is the exercise of a delicate power, requiring great caution and sound discretion, and rarely, if ever, should (it) be exercised in a doubtful case….” (Willis v. Lauridson, 161 Cal. 106, 117, 118 P. 530, 535; We, v. Lind, 186 Cal.App.2d 563, 569, 9 Cal.Rptr. 288; Mallon v. City of Long Beach, 164 Cal.App.2d 178, 190, 330 P.2d 423.)” (Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 148.) “The plaintiff bears the burden of presenting facts establishing the requisite reasonable probability: Rifle drastic remedy of an injunction pendente lite may not be permitted except upon a sufficient factual showing, by someone having knowledge thereof, made under oath or by declaration under penalty of perury.” (Ancora—Citronelle Corp. v. Green, supra, 41 Cal.App.3d at p. 150, 115 Cal.Rptr. 879.y (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356.) “The Mal court considers two interrelated factors when deciding whether to issue preliminary injunctions: the interim herrn the applicant is likely to sustain if the injunction is denied as compared to the harm to the defendant if it issues, and the likelihood the applicant will prevail on the merits at trial. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, 219 Cal.Rptr. 467, 707 P.2d 840; IT Corp. v. County of imperia( supra, 35 Ca1.3d at pp. 69-70, 196 Cal.Rptr. 715, 672 P.2d 121.) However, before the trial court can exercise its discretion the applicant must make a prima fade showing of entitlement to injunctive relief. The applicant must demonstrate a real threat of immediate and irreparable inquiry (6 Witkin, Cal.Procedure (3d ed. 1985) Provisional Remedies, § 254; E.H. Renzel Co. v. Warehousemen’s Union (1940)
assessment of likelihood of success on the merits depends on legal rather than factual questions, [such as when the meaning of a contract or a statute are at issued our review is de novo: ” (City of Lake Forest v. Evergreen Holistic Collective (2012) 203 Cal.App.4th 1413, 1428, 138 Cal.Rptr.3d 332: Garamendi v. Executive Life Ins. Co. (1993) 17 Cal.App.4th 504, 512, 21 Cal.Rptr.2d 578.)” (Costa Mesa City Employees’ Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298, 305-306.) An irreparable injury is established where the evidence submitted shows actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award. (See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) Atrial court’s decision on a motion for preliminary injunction is not a adjudication of the ultimate rights in controversy (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1634.), the order is not a determination of the merits of the case; and the order may not be given issue-preclusive effect with respect to the merits of the action (Upland Police Officers Ass’n v. City of Upland (2003) 111 Cal.App.4th 1294, 1300.). The unverified complaint alleges that despite the suspension and later revocation of the Apple Bistro health permit after a noticed hearing requested by the Apple Bistro defendants, the Apple Bistro defendants continued to operate the Apple Bistro restaurant without a valid health permit in violation of state statutes and the County Ordinance Code. (Complaint, paragraphs 35-39, 51, and 58.) The director of the County Environmental Management Department declares: defendants Apple Bistro have operated and continued to operate the Apple Bistro food establishment/restaurant without the health permit mandated by statute and County Ordinance Code, despite the suspension of their permit on July 30, 2020 and revocation of their permit in
September 1, 2020, they continue to operate the business serving food as of the date of the declaration it is the declarant’s belief that it is essential for restaurants to obtain and maintain valid health permits in order to safeguard the public health, including efforts to preclude the spread of serious and sometimes deadly diseases and foodborne illnesses; the County has assessed fines against defendants amounting to $220,600 through October 31, 2021 for continuing to operate without a permit; the declarant believes that the continued operation of Apple Bistro without a valid health permit constitutes a serious and unnecessary public health risk to the local community and members of the public from other communities who travel and dine at the Apple Bistro; failure to enforce permitting requirements may sow distrust in the community relating to the food service industry and County Environmental Management Department’s ability to regulate that industry; and the public relies on the County Environmental Management Department to ensure that restaurants in this community are safe. (See Declaration of Jeffrey Warren in Support of OSC re: Preliminary Injunction, paragraphs 10-17, 21, 22, 29, 30-35, 37, and 40-43.) The County Environmental Management Department director’s January 26, 2022 supplemental declaration declares: since the filing of his initial declaration in support of the OSC, no one has applied to the County EMD for a permit to operate the Apple Bistro; as of the date of the supplemental declaration there is no permit issued by the County EMD allowing for the operation of the Apple Bistro; notwithstanding the lack of a permit to operate, the Apple Bistro remains open for business as of the date of the supplemental declaration; on January 26, 2022 he went to the Apple Bistro and from the parking lot he could see that both of the *open” signs at Apple Bistro were on and lit up, there were cars in the parking lot, and he observed people sitting inside the Apple Bistro; and it was readily apparent to him that Apple
Bistro was open and serving customers. (Supplemental Declaration of Jeffrey Warren in Support of OSC re: Preliminary Injunction, paragraphs 2-4.) Appearances are required for the purposes of oral argument. TENTATIVE RULING # 12: APPEARANCES ARE REQUIRED AT 8:30 A.M. ON FRIDAY, FEBRUARY 18. 2022 IN DEPARTMENT NINE. IF A PARTY OR PARTIES WISH TO APPEAR TELEPHONICALLY THEY MUST APPEAR BY “VCOURT”, WHICH MUST BE SCHEDULED AND PAID THROUGH THE COURT WEBSITE AT www.eldorado.courts.ca.qovionline-servicesitelephonic-appearances.
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