City of Long Beach v. Patel CA2/1 ( 2023 )

Filed 1/27/23 City of Long Beach v. Patel CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CITY OF LONG BEACH, B316807
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 18LBCV00013)
v.
DAKSHA PATEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Affirmed.
Law Offices of Frank A. Weiser and Frank A. Weiser for
Defendant and Appellant.
Office of the Long Beach City Attorney, Charles Parkin,
City Attorney, Theodore B. Zinger, Arturo D. Sanchez, Deputy
City Attorneys; Best Best & Kreiger, Christopher M. Pisano and
Alexander M. Brand for Plaintiff and Respondent.
_________________________
INTRODUCTION
Appellant Daksha Patel (Patel) owns and operates the
Princess Inn Motel. Respondent City of Long Beach (City) sued
Patel alleging that her operation of the motel without a business
license constituted a nuisance. The trial court granted City’s
motion for a preliminary injunction to prohibit Patel from
operating the motel without a business license. Patel filed an
appeal of the preliminary injunction order and kept operating the
motel despite the preliminary injunction and despite not having a
business license. While the appeal was pending, the court found
Patel in contempt of the preliminary injunction order and issued
a judgment against her imposing a fine of $37,000.
Patel now seeks to appeal the contempt judgment.
However, a contempt judgment is not appealable. We exercise
our discretion to treat the appeal as a writ proceeding, deny the
requested writ, and affirm the judgment of contempt.
FACTUAL AND PROCEDURAL BACKGROUND
City filed a civil nuisance action against Patel, her husband
and her two brothers-in-law on October 15, 2018.1 The complaint
alleged that the business licenses for the Princess Inn were
revoked in 2008 based on repeated illegal activity, such as illegal
drug use and prostitution at the property, that posed a public
nuisance. The complaint further alleged that, after this license
revocation, the Princess Inn continued to operate without a
license in violation of various City ordinances.
1Patel’s husband and brothers-in-law were later dismissed
from the case, leaving Patel as the only defendant.
2
On June 26, 2019, City filed a motion requesting the court
issue a preliminary injunction prohibiting the defendants from
operating any unlicensed business at the real property where the
Princess Inn is located. On September 24, 2019, after holding
two hearings, the trial court granted City’s motion. On
October 23, 2019, the court denied Patel’s request to stay the
preliminary injunction pending an appeal. The court issued the
preliminary injunction on October 28, 2019.
On November 7, 2019, Patel appealed the order granting
the preliminary injunction.
While the appeal was pending, City initiated contempt
proceedings for Patel’s alleged repeated violations of the
preliminary injunction pursuant to Code of Civil Procedure
sections 1209-1222.2 On October 9, 2020, after several days of
hearings, the trial court found Patel guilty of contempt of court
for violating the preliminary injunction. The court issued a
minute order in which it found that the City had proved 37
violations of the preliminary injunction beyond a reasonable
doubt, declared Patel to be in contempt of court, and ordered
Patel to pay $37,000 to the court within 30 days. On June 17,
2021, the court issued a judgment incorporating these same
orders.
On August 20, 2021, we dismissed Patel’s appeal from the
order granting the preliminary injunction because the trial
court’s subsequent issuance of a permanent injunction rendered
2 All unspecified statutory references are to the Code of
Civil Procedure.
3
the appeal moot.3 (City of Long Beach v. Patel (Aug. 20, 2021,
B302478) [nonpub. opn.].)
On November 15, 2021, Patel filed a notice of appeal of the
contempt judgment.4
DISCUSSION
A. Lack of Appellate Jurisdiction
“ ‘Appellate courts have jurisdiction over a direct appeal,
like the present one, only where there is an appealable order or
judgment.’ (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334,
1342 . . . .) Whether an order or judgment is appealable ‘is wholly
statutory.’ (Dana Point Safe Harbor Collective v. Superior Court
(2010) 51 Cal.4th 1, 5 . . . .) Unless an order is expressly made
appealable by a statute, this court has no jurisdiction to consider
it. (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221,
1226 . . . .)” (Levinson Arshonsky & Kurtz LLP v. Kim (2019) 35
Cal.App.5th 896, 903.)
3 Patel has filed two notices of appeal regarding the trial
court’s judgment granting the permanent injunction. (City of
Long Beach v. Patel, case No. B313788 [notice of appeal filed
June 2, 2021]; City of Long Beach v. Patel, case No. B310344
[notice of appeal filed Jan. 14, 2021].) Appeal No. B310344
remains pending; appeal No. B313788 was dismissed on
November 15, 2021, pursuant to California Rules of Court, rule
8.140(b) for failure to procure the record.
4 Patel had earlier filed a notice of appeal on February 11,
2021, related to the contempt finding; this court dismissed that
appeal based on Patel’s default under California Rules of Court,
rule 8.140(b). (City of Long Beach v. Patel et al. (Nov. 15, 2021,
B311496).)
4
“The general list of appealable civil judgments and orders is
codified in section 904.1.” (Gastelum v. Remax Internat., Inc.
(2016) 244 Cal.App.4th 1016, 1021, fn. omitted.) That section
provides that a “judgment” can be appealed to the Court of
Appeal, but provides exceptions, including an exception for any
attempted appeal of “a judgment of contempt that is made final
and conclusive by Section 1222.” (§ 904.1, subd. (a)(1).)
As our Supreme Court has noted, “Section 1222, which has
existed since 1872, makes ‘judgment[s] and orders of the court or
judge, . . . in cases of contempt, . . . final and conclusive.’
Accordingly, . . . a judgment or order of contempt is not, in and of
itself, appealable. (Moffat v. Moffat (1980) 27 Cal.3d 645,
656 . . . ; Larrabee v. Selby (1877) 52 Cal. 506, 508.) Consistent[ ]
with this statute and authority, section 904.1[, subd. ](a)(2) has
long provided there can be no appeal from a [superior] court
‘judgment of contempt which is made final and conclusive by
Section 1222.’ ” (Bermudez v. Municipal Court (1992) 1 Cal.4th
855, 861, fn. 5; see also Davidson v. Superior Court (1999) 70
Cal.App.4th 514, 522 [“[a] contempt judgment is not appealable”];
In re Holmes (1983) 145 Cal.App.3d 934, 941 [“contempt
judgments are final, conclusive, and not appealable”].)
The judgment of contempt in this proceeding is a judgment
made “final and conclusive” by section 1222, and thus Patel
cannot appeal the judgment.
Neither party raised the appealability of the contempt
judgment in their briefing. However, the appealability of the
judgment at issue is jurisdictional and “ ‘[i]t is the duty of an
[a]ppellate [c]ourt on its own motion to dismiss an appeal from an
order which is not appealable. [Citation.]’ [Citation.]” (Baker v.
Castaldi (2015) 235 Cal.App.4th 218, 222.) Accordingly, we
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requested supplemental briefing on the appealability of the
contempt judgment.
City agrees that the contempt judgment is not appealable.
In her supplemental brief, Patel cites Koshak v. Malek (2011) 200
Cal.App.4th 1540, 1545 for the proposition that a contempt order
which requires immediate payment of money is appealable as a
collateral order. Koshak, however, does not say what Patel
claims. In Koshak, the court held that a restitution order that
required the immediate payment of money was appealable as a
“collateral” order. (Id. at p. 1546.) While the trial court had also
issued a contempt judgment, that judgment was not appealed
and the Court of Appeal accordingly did not address the
appealability of the contempt judgment; in fact, the Court of
Appeal noted that the appellant had separately filed a writ
petition challenging the contempt judgment. (Id. at p. 1542,
fn. 1.)
Patel also argues that the contempt judgment here is
appealable under section 904.1, subdivision (a)(12). That
subdivision allows appeals “[f]rom an order directing payment of
monetary sanctions by a party or an attorney for a party if the
amount exceeds five thousand dollars ($5,000).” (§ 904.1, subd.
(a)(12).) That provision does not apply here because Patel is
seeking to appeal from a contempt judgment imposing a fine,
while section 904.1, subdivision (a)(12) addresses appeals from
nonfinal orders imposing not fines but monetary sanctions.
Interpreting subdivision (a)(12) to permit an appeal of a contempt
judgment would directly contradict subdivision (a)(2), which
provides that contempt judgments are not appealable, and
impermissibly read that portion of subdivision (a)(2) out of the
statute. (See, e.g., Hassan v. Mercy American River Hospital
6
(2003) 31 Cal.4th 709, 715-716 [judicial construction that renders
part of a statute meaningless or inoperative is generally
precluded].)
B. Patel’s Alternative Request for Writ Relief
In the event we find the contempt judgment is not
appealable, Patel requests that we treat her filing as a writ
petition. “The interests of clients, counsel, and the courts are
best served by maintaining, to the extent possible, bright-line
rules which distinguish between appealable and nonappealable
orders.” (Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th
1450, 1455-1456.) Although we “have power to treat [a]
purported appeal as a petition for writ of mandate, we should not
exercise that power except under unusual circumstances.” (Olson
v. Cory (1983) 35 Cal.3d 390, 401.)
Patel’s request for writ treatment fails to explain why she
proceeded by way of direct appeal instead of seeking expedited
review in an extraordinary writ proceeding as required. Nor does
she provide any justification for the unreasonable delay in the
disposition of this matter (and the related delay in prompt and
appropriate compliance with court orders) caused by her failure
to seek expedited review pursuant to a writ petition. That being
said, City also fails to explain why it did not move to dismiss the
appeal or articulate any prejudice that it has suffered from delay
in considering the appealability issue.
In similar circumstances, courts have treated an improper
appeal as a writ petition when review by writ is the appropriate
mode of review, and the issues are purely ones of law that have
been thoroughly briefed. (E.g., Zabetian v. Medical Board (2000)
80 Cal.App.4th 462, 466; compare Sela v. Medical Bd. of
California (2015) 237 Cal.App.4th 221, 231-232 [reaching
7
contrary conclusion].)5 Because of the stigma that attaches to a
finding of willful disobedience of a court order, and the criminal
overtones of a contempt proceeding, we will exercise our
discretion to treat Patel’s appeal in this case as a writ. (Van v.
LanguageLine Solutions (2017) 8 Cal.App.5th 73, 79.)
“Appellate review of contempt proceedings is not subject to
ordinary presumptions of regularity and correctness. Instead, we
must strictly construe the evidence in the record, the court’s
findings, and the contempt judgment itself to ensure [its]
propriety . . . .” (Moore v. Superior Court (2020) 57 Cal.App.5th
441, 454-455.)
Patel’s appellate brief challenges the contempt judgment on
two grounds. First, she contends that the trial court lost
jurisdiction to enforce its preliminary injunction order after Patel
filed an appeal of that order. Second, she contends the trial court
should have afforded her an opportunity to purge her contempt
before imposing a fine. As discussed below, these challenges are
meritless.
1. The Trial Court Had Jurisdiction to Issue the
Contempt Judgment
Patel first argues the trial court lacked jurisdiction to hold
her in contempt because enforcement of the preliminary
5 Citing California Rules of Court, rule 8.486(a)(4), City
asserts that writ relief would be improper because Patel’s
appellate pleadings are not verified. We disagree because the
“functional equivalents of any necessary verifications [citation]
are supplied . . . by the certifications of the clerk’s transcript by
the clerk of the trial court and of the reporter’s transcript by the
clerk and the reporter.” (Morehart v. County of Santa Barbara
(1994) 7 Cal.4th 725, 745-746.)
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injunction was automatically stayed pending her appeal of that
injunction. We reject this argument because the preliminary
injunction here was prohibitory, not mandatory, and accordingly
there was no automatic stay of trial court proceedings during the
pendency of Patel’s appeal.
Section 916, subdivision (a) provides, with exceptions not
relevant here, that “the perfecting of an appeal stays proceedings
in the trial court upon the judgment or order appealed from or
upon the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may
proceed upon any other matter embraced in the action and not
affected by the judgment or order.” This statutory framework
does not address whether injunctive orders are stayed upon
appeal, but “courts have understood the default statutory rule
governing stays pending appeal to apply to some injunctive
orders but not others, embracing a common law distinction
between prohibitory, or preventive, injunctions and those
mandating performance of an affirmative act.” (Daly v. San
Bernardino County Bd. Of Supervisors (2021) 11 Cal.5th 1030,
1040 (Daly).) “An injunction that requires no action and merely
preserves the status quo (a so-called prohibitory injunction)
ordinarily takes effect immediately, while an injunction requiring
the defendant to take affirmative action (a so-called mandatory
injunction) is automatically stayed during the pendency of the
appeal.” (Id. at p. 1035.)
The preliminary injunction here was prohibitory and not
mandatory, and therefore was not stayed pending appeal. The
preliminary injunction prohibited Patel from operating the motel
without a business license. Patel did not have a business license,
and therefore the effect of the injunction was to suspend her
9
business operations. Even though the injunction’s prohibition on
operating the motel without a license required Patel to suspend
business operations pending appropriate licensure, this did not
alter the relevant status quo, which is measured from the time
before the allegedly illegal conduct began. (United Railroads v.
Superior Court (1916) 172 Cal. 80, 87 (United Railroads).)
As our Supreme Court explained in Daly, the “decision in
[United Railroads] recognizes that in some instances, an
injunction that is essentially prohibitory in nature may involve
some adjustment of the parties’ respective rights to ensure the
defendant desists from a pattern of unlawful conduct. . . . The
United Railroads decision makes clear that an injunction
preventing the defendant from committing additional violations
of the law may not be recharacterized as mandatory merely
because it requires the defendant to abandon a course of repeated
conduct as to which the defendant asserts a right of some sort. In
such cases, the essentially prohibitory character of the order can
be seen more clearly by measuring the status quo from the time
before the contested conduct began.” (Daly, supra, 11 Cal.5th at
p. 1046.) Because the preliminary injunction here was similarly
prohibitory, it remained in force and was not stayed pending
appeal.6
6 Patel also notes that a party sought to be held in
contempt can collaterally challenge the validity of the underlying
order allegedly violated. (E.g., People v. Gonzalez (1996) 12
Cal.4th 804, 820-822.) She argues this means enforcement of the
order at issue must be stayed because such a challenge would
“intrude[ ] on the subject matter jurisdiction of an appellate
court” considering an appeal of the underlying order. Patel
provides no authority for this position, which contradicts the
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2. The Trial Court Was Not Required to Afford Patel the
Option to Cure Rather Than Pay
Patel also argues that her due process rights were violated
because she was not given the opportunity to comply with the
preliminary injunction to avoid having to pay a fine. We reject
this argument, which conflates the concepts of civil/remedial
contempt orders with quasi-criminal/punitive contempt
judgments.
The contempt action here was brought pursuant to sections
1209-1222, but that is not determinative of whether the contempt
is characterized as civil or quasi-criminal/punitive. In a
civil/remedial contempt proceeding, any resulting penalties are
“designed to compel future compliance with a court order, are
considered to be coercive and avoidable through obedience, and
thus may be imposed in an ordinary civil proceeding upon notice
and an opportunity to be heard,” meaning for example that proof
beyond a reasonable doubt is not required. (United Mine Workers
v. Bagwell (1994) 512 U.S. 821, 827 [114 S.Ct. 2552, 129 L.Ed.2d
642].) A quasi-criminal/punitive contempt proceeding is not
coercive but instead designed to vindicate the authority of the
court by punishing disobedience of court orders and provides the
citee the constitutional protections afforded to criminal
defendants (including proof beyond a reasonable doubt and the
right against self-incrimination). (Ibid.) The United States
Supreme Court has elsewhere held when discussing contempt
that “[i]f the relief provided is a fine, it is remedial when it is paid
to the complainant, and punitive when it is paid to the court,
authorities cited above addressing the enforcement of prohibitory
injunctions pending appeal.
11
though a fine that would be payable to the court is also remedial
when the defendant can avoid paying the fine simply by
performing the affirmative act required by the court’s order.”
(Hicks on Behalf of Feiock v. Feiock (1988) 485 U.S. 624, 632 [108
S.Ct. 1423, 99 L.Ed.2d 721].)
Here the fines imposed by the trial court were “punitive” in
nature because they punished repeated disobedience of the
court’s order (rather than seeking future compliance) and were
payable to the court. Because the proceeding was punitive for
past misdeeds (and not coercive as to potential future conduct),
there was no requirement that the court give Patel the option of
avoiding payment through future compliance. Patel was afforded
the protections the Constitution requires in criminal proceedings
and does not contend otherwise. There was a lengthy trial after
which the court made its findings using the beyond a reasonable
doubt standard. Patel was represented throughout that
proceeding. Patel did not demand a jury trial, nor was she
entitled to one given the size of the contemplated fine and the
lack of any threatened term of imprisonment. (§ 1218, subd. (a)
[issue of contempt to be determined by “the court or judge”];
Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1240 [“It has
long been established that the Code of Civil Procedure contempt
statute triggers neither a state constitutional nor statutory right
to a jury trial”].)7
7 At oral argument, Patel claimed for the first time that she
was misled into believing the contempt matter was civil, and
therefore did not understand she could demand a jury trial.
First, “[w]e do not consider arguments that are raised for the first
time at oral argument.” (Haight Ashbury Free Clinics, Inc. v.
12
Accordingly, we perceive no constitutional defect in the
contempt judgment.
Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554,
fn. 9.) Second, the reporter’s transcript from the evidentiary
hearing and any preliminary matters before it commenced is not
part of the record, so we have no record support for this assertion.
Patel only designated the last day of the contempt trial
(October 9, 2020) to be a part of the reporter’s transcript. In
response, the trial court issued a notice that the proceedings on
that day were not reported. If Patel believed that was mistaken,
she took no action in response. Patel designated only one other
hearing (on October 23, 2020) to be a part of the reporter’s
transcript; the trial court issued a notice that there were no
proceedings on that day. Nothing in the record indicates that
there was a hearing on that day, and Patel again took no action
in response to the trial court’s notice. Third, Patel filed a trial
brief before the contempt proceeding where her counsel (the same
one who appeared at oral argument) stated that “there is no right
to a jury trial [in this proceeding] unless the punishment is
imprisonment,” which both contradicts counsel’s representation
at oral argument and indicates Patel was under no
misapprehension about any purported right to a jury trial.
Fourth, even if we assume Patel was somehow misinformed into
not requesting a jury trial, we perceive no reversible error
because she was not entitled to one.
13
DISPOSITION
Having construed this matter as a request for writ relief,
the requested writ relief is denied, and the contempt judgment is
affirmed. City shall recover its costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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