HomeMy WebLinkAbout21CV-0734 - Order Denying Plaintiffs Ex Parte Application for TRO10
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28 Petitioner’s compliance with the applicable municipal code provisions On October 6,
FILED!»
FLT-”8012022
SAN LU|§
BISPO SUPERIOR COURT '
D
BY .«Maza/’-.
Frances O'Donnell.Deputy Cler
SUPERIOR COURT OF CALIFORNIA
I
COUNTY OF SAN LUIS OBISPO
Case No.:21CV-(l734
ORDER DENYING PLAINTIFF NHC ~
SL0,LLC’S Ex PARTE
APPLICATION FOR TEMPORARY
RESTRAINING ORDERAND ORDER
To SHow CAUSE RE _
PRELIMINARY INJUNCTION
This ex parte application came on for hearing on February l,2022.After
consideration of the papers and oral argument by counsel,the Court denies the request
for the issuance of a temporary restraining order for thefollowing reasons.
A.Factual Background
In January 1999,Petitioner applied for a cannabis operatorpermit with the City
of San Luis Obispo,at a time when Helios Dayspring was Petitioner’s chief executive -
officer.
On
October 22,2019,Respondents granted thelssuance of a permit,subject
to
NHC SLO,LLC,
Petitioner and Plaintiff,
v.
CITY ’OF SAN LUIS OBISPO;CITY
COUNCIL OF AND FOR THE CITY OF
SAN LUIS OBISPO;AND'DOES 1-10,
INCLUSIVE,
Respondents and Defendants.
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2021,Respondents terminated the permit and issued a notice of automatic
disqualification to Petitioner.The reason cited for this action was Petitioner’s
submission of false or misleading information in obtaining and maintaining the permit.
Specifically,Respondents cited Mr.Dayspring’s-entry of a guilty plea to federal charges
of bribery of a public official,attempted bribery of a public official,and violations of the
federal tax code.These revelations,in Respondents’view,rendered certain
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representations made by Petitioner in the application process false and misleading.
Petitioner seeks atemporary restraining order ordering Respondents to
immediately reinstate Petitioner’s cannabis operator’s permit and verify that its local
authorization remains in effect.
In determining whether a temporary restraining order or preliminary injunction
should issue,the Court must evaluate two interrelated factors:“(1)the likelihoodthat the
plaintiff will prevail on the merits at trial and (2)the interim harm that the plaintiff
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would.be likely to sustain if the injunction were denied as compared to the harm the
defendant would be likely to suffer if the preliminary injunCtion were issued.”(Smith v.
Adventist Health System/West (2010)182 Cal.App.4th 729,749;accord Brown v.
Pabifica'Foundation,Inc.(2019)34 ‘Cal.App.5th 915,.925.)The moving'party must
Show a reasonable probability of success on the merits;(Teachers Ins.&AnnuityflSsn.
v.Furlotti (1999)70 Cal.App.4th 1487,1493.)
The Court’s determination of areq‘uest for temporary or preliminary relief “must
be guided by a ‘mix’of the potential-merit and interim-harm factors;the greater the
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plaintiff‘s showing on one,the less must be shown'on the other to support an’
injunction.”(Butt v.State of California (1992)4 Cal.4th 668,678.).
Generally,interimrelief will be granted only upon a'showing of imminent
irreparable harm to one party if the relief is not granted.(White v.Davis (2003)'30
Cal.4th 528,554.)The purpose of a temporary restraining order is to preserve the status
quo,or prevent irreparable harm pending a noticed hearing for a'preliminary injunction.
Standard of Review
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Weil &_'Brown,Cal.Practice Guide:Civ.Proc.Before Trial (TheRutter Guide 2019)‘H
9:538.)
The relief requested,by Petitioner amOunts to a mandatory injunction,Which is
an order that “compels performance of an affirmative act.”(Davenport v.Blue Cross of
California (1997)52 Cal.App.4th 435,446.)Mandatory temporary restraining orders
and preliminary injunctions are rarely granted “except in extreme cases.where the right
thereto is clearly established.”(Teachers Ins.,supra,.70 Cal.App.4th at p.1493.)
C.Discussion
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Petitioner represents.that it will suffer irreparable injury if relief is not granted,\
citing the declaration of Valnette Garcia.Ms.Garcia,in essence,5represents that in the
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event the permit is not reinstated,Petitioner’s state cannabis license will be revoked and
Petitioner will incur a number of costs that could render it insolvent.The Court sustains
Respondents’objections to,Ms.Garcia’s declaration.Even if the objections were
oVerruled,when comparing the potential harm to Petitioner’s
business interests
to the
harm to Respondents’interest in protecting the integrity ofits application process,
the
balance of harm tips in favor of Respondents.
As to the merits,Petitioner fails to show a likelihood of success on thefmen'ts'
sufficient to warrant temporary relief.Mr.Dayspring personally signed Petitioner’s
application fora cannabiSIOperator’s permit under penalty of
perjury,
and made Other
representations during the permitting process.Respondents have presented persuasive
evidence to shOw that Mr.Dayspring made material
misrepresentations
in the
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application process that adversely impacted the approval of the permit.Such acts violate .
the San Luis Obispo City Municipal Code.The fact that Mr.Dayspring is no longer a
member or owner of Petitioneris of no moment,given that his statements formed the
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basis of the approval.In short,Petitioner fails to show that this is an “extreme “case”
where the right to a mandatory temporary restraining orderIS
clearly
establiShed.
Respondents’Request for Judicial Noticeis
granted
as to Exhibits 1
and _
2 and
denied as to Exhibit 3.
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DATED:’Februa’ryil,‘2022 -.
O__rder ,
Petltloner 8 Ex Parte Application for
Temporary
Restraining Order
and
Order to
Show Cause re Preliminary Injunction1s denied.
Hon.iRIT EDERMAN
Judge of the Superior.Court
STATE OF CALIFORNIA,COUNTY OF SAN LUISOBISPOCERTIFICATEOFMAILING
John R Armstrong
Armstrong Law Group
23232 Peralta Drive
Suite 102
Laguna Hills,CA 92653
Jeffrey V Dunn
BEST,BEST &KRIEGER LLP
18101 Von Karman Avenue,
Suite 1000
I Irvine,CA 92612
Daniel L Richards
BEST BEST &KRIEGER LLP‘
18101 Von karman Avenue,
Suite 1000
Irvine,CA 92612
Christine Dietrick
OFFICE OF THE CITY
ATTORNEY
990 Palm Street,Room 10
San Luis Obispo,CA 93401
john@annstronglawgroup.co;,
cdictrick@slocity.org;
jeffrey.dunn@bbklaw.com;
daniel.richards@bbklaw.com;
I,‘
Frances O’Donnell,Deputy Clerk of the Superior Court of the State of California,County of
San Luis Obispo,do hereby certify that _I am over the age of 18 and not a party to this action
Under penalty of perjury,I hereby certify that on 02/01/2022 I e-mailed a copy of the attached
Ruling on Submitted
Matter.The foregoing document was
addressed
to each of the above
parties.
IE Document served electronically pursuant to CRC§2.251(b)(1)(B).
Dated:2/1/2022 MiChael Powell,‘Clerk of the Court
s/Frances O’Donnell Deputy Clerk
Frances O’Donnell
NHC SLO,LLC,vs.City’Of San Luis Obispo ,21 CV-0734
By