Gawzner Corp. v. Minier

Decision Date11 March 1975
Citation120 Cal.Rptr. 344,45 Cal.App.3d 903
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 45 Cal.App.3d 903 45 Cal.App.3d 903, 46 Cal.App.3d 777, 80 A.L.R.3d 726 GAWZNER CORPORATION, etc., et al., Plaintiffs and Respondents, v. David D. MINIER, as District Attorney of the County of Santa Barbara, Defendant and Appellant. Civ. 44362.

David D. Miner, Dist. Atty. of the County of Santa Barbara, and Patrick J. McKinley, Deputy Dist. Atty., for defendant-appellant.

West & Favor and Earle W. Favor, Santa Barbara, for plaintiffs-respondents.

FORD, Presiding Justice.

Defendant, District Attorney of the County of Santa Barbara, appeals from an order of the trial court denying his motion to dissolve a permanent injunction issued against him as district attorney.

The permanent injunction, which was issued on November 8, 1971, provided that defendant be permanently enjoined from enforcing the provisions of Business and Professions Code section 17564 1 against 'Miramar By the Sea, operated by Plaintiff Gawzner Corporation, and Mar Monte Beach Hotel, operated by Plaintiff Earl M. Miley and the Barbara Hotel, owned and operated by Plaintiff Earl M. Miley, and The Sea Breeze Motel, owned and operated by Plaintiff Stephen A. Zoldos, and The Tides Motel, owned and operated by Plaintiff Raymond Dutkowsky.'

In support of its grant of a permanent injunction the trial court found that 'hotels do not come within the classification of business establishments subject to the provisions of Section 17564 of the Business and Professions Code . . ..' 2 The trial court further found that Miramar By the Sea, Barbara Hotel and Mar Monte Beach Hotel are hotels. It was found that 'motels are of the type of business establishment' subject to the provisions of Business and Professions Code section 17564, and that the Sea Breeze and the Tides are motels. However, the trial court held that section 17564 'constitutes an invalid, arbitrary and discriminatory exercise of the police power of the State of California because such statute denies motels the equal protection of the law and due process of law in that such statute places restrictions on motels that are not placed on hotels in preventing motels from displaying rate signs relating to their businesses.'

Defendant did not appeal the trial court's judgment granting the permanent injunction. Thereafter, in August 1973 the Attorney General of the State of California issued an opinion analyzing section 17564 of the Business and Professions Code wherein it was concluded that the section 'is a constitutional exercise of the state police power to prevent fraud and deception in the promotion of the general welfare of the public.' 3 (56 Ops.Cal.Atty.Gen. 345.) On December 20, 1973, defendant filed his motion for dissolution of the permanent injunction.

In Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 94--95, 113 P.2d 689, 690, the Supreme Court ruled that a court which grants a permanent preventive injunction also has the inherent power to vacate or modify it 'when the circumstances and situation of the parties have so changed as to render such action just and equitable.' The court stated that the trial court's inherent power 'may be exercised either when there has been a change in the controlling facts upon which the injunction rested, or the law has been changed, modified or extended, or where the ends of justice would be served by modification.' (See Union Interchange, Inc. v. Savage, 52 Cal.2d 601, 604, 342 P.2d 249; Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 788, 59 Cal.Rptr. 141, 427 P.2d 805.) As was said in Union Interchange, Inc. v. Savage, Supra, 52 Cal.2d at page 606, 342 P.2d 249, at page 252, quoting from Kendall v. Foulks, 180 Cal. 171 at page 174, 179 P. 886, "It is a rule so universally followed and so often stated as to need only to be referred to that the granting, denial, dissolving or refusing to dissolve a permanent or preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case.' (Citation.) Such an order will not be modified or dissolved on appeal except for an abuse of discretion. (Citations.)'

The change in circumstances upon which the district attorney relied in seeking an order dissolving the permanent injunction granted herein was the fact that the state Attorney General had rendered an opinion to the effect that Business and Professions Code section 17564 was constitutional. The district attorney apprehended that since he was unable to enforce the statute against plaintiff motel owners because of the permanent injunction issued herein, he would be accused of discriminatory enforcement if he attempted to enforce the statute against other motel owners.

The issuance of an Attorney General's opinion on the constitutionality of a statute, even though well reasoned and informative cannot be taken as a change in the law. Accordingly, it might be held that the trial court did not abuse its discretion in refusing to dissolve the permanent injunction in this case as no showing had been made of a change in circumstances sufficient to justify the dissolution of the injunction. However, we are impressed by the district attorney's dilemma. Business and Professions Code section 17564 is part of article 3, part 3, division 7, of that code, which is entitled 'Motel and Motor Court Rate Signs.' Article 3 was enacted in 1953 (Stats.1953, ch. 975, p. 2462, § 1) and apparently no cases have been decided interpreting this legislation. If we were to decline to review the legislation on this appeal, the district attorney would have to attempt to enforce the statute in question against a motel owner other than plaintiffs herein and await the result of trial and appellate proceedings before obtaining a definitive decision as to the constitutionality of Business and Professions Code section 17564. To avoid uncertainty with respect to the propriety of enforcement of the questioned legislation and to avoid doubt with respect to its proper interpretation, we review herein the questions raised on this appeal.

Section 17564 4 prohibits an outdoor or outside rate sign unless such a sign shows the rates charged for all rooms, the number of rooms offered for rent at each rate and the number of persons accommodated at the posted rate. 5 The section further provides that '(a)ll posted rates and descriptive data required by this article shall be in type and material of the same size and prominence as the aforesaid data.' Signs stating the rate per person or bearing the legend 'and up' do not constitute compliance with the section. Section 17565 prohibits maintenance of an outdoor or outside rate sign entirely 'unless there shall be posted prominently and conspicuously in the area where guests are normally registered, a list of all rooms or other rental units offered for rental . . ., and the rates charged for each room when occupied by one person or two persons, and the rate charged for each additional occupant.' Section 17566 provides that it is unlawful to post or maintain a rate sign 'which shall have thereon any untrue, misleading, false, or fraudulent representations.' Section 17563 provides that article 3 'shall apply to operators and owners of Motels, motor courts, and like establishments.' (Emphasis added.) Section 17568 makes it a misdemeanor to violate the provisions of article 3.

Section 17567 provides: 'Nothing contained in this article shall be construed so as to require establishments within the scope of this article to have outdoor or outside signs. This article, however, shall be liberally construed so as to prevent untrue, misleading, false, or fraudulent representations relating to rates being placed upon outdoor or outside signs pertaining to such establishments.'

As noted hereinabove, when the permanent injunction was granted, the trial court found '(t)hat Section 17564 . . . constitutes an invalid, arbitrary and discriminatory exercise of the police power of the State of California because such statute denies motels the equal protection of the law and due process of law in that such statute places restrictions on motels that are not placed on hotels in preventing motels from displaying rate signs relating to their businesses.'

It must first be determined whether it was the legislative intent that hotels be included within the provisions of Business and Professions Code sections 17560--17568. Those sections were added to the code in 1953. (Stats.1953, ch. 975, pp. 2462--2463.) 6 In County of Los Angeles v. Frisbie, 19 Cal.2d 634, at page 642, 122 P.2d 526, at page 530, the Supreme Court stated: 'Excepting when clearly otherwise intended or indicated, words in a statute should be given their ordinary meaning and receive a sensible construction in accord with the commonly understood meaning thereof.' (See Wilson v. San Francisco Mun. Ry., 29 Cal.App.3d 870, 878, 105 Cal.Rptr. 855; City of El Monte v. City of Industry, 188 Cal.App.2d 774, 780, 10 Cal.Rptr. 802; People v. One 1952 Mercury 2-Door Sedan, 176 Cal.App.2d 220, 222, 1 Cal.Rptr. 245; Pac. Gas & E. Co. v. Shasta Dam etc. Dist., 135 Cal.App.2d 463, 468, 287 P.2d 841.)

While motels and auto courts appear to fall within the general category of hotels (see 27 Cal.Jur.2d, Innkeepers, § 6, pp. 255--256; 40 Am.jur.2d, Hotels, Motels, and Restaurants, § 5, p. 903), it cannot be said that the category of motels is broad enough to include all hotels. Because of the extent and importance of hotel operations in this state over many years it is not reasonable to conclude that in enacting in 1953 the legislation now under consideration the Legislature intended to include hotels within its scope by the use of the language 'and like establishments.' Rather, the omission of express reference to hotels compels the conclusion...

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