Johnson v. Barstow Youth Activity Center CA2/8 ( 2022 )

Filed 11/29/22 Johnson v. Barstow Youth Activity Center CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KIM JOHNSON, as Director, etc., B322630
Plaintiff and Appellant, (San Bernardino County
Super. Ct. No. CIVDS2012458)
v.
BARSTOW YOUTH ACTIVITY
CENTER, INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San
Bernardino County. Brian S. McCarville, Judge. Affirmed.
Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant
Attorney General, Richard T. Waldow, Gregory D. Brown and
Darin L. Wessel, Deputy Attorneys General, for Plaintiff and
Appellant.
No appearance for Defendants and Respondents.
**********
Plaintiff and appellant Kim Johnson, in her official
capacity as the Director of the California Department of Social
Services (Department), brought this action for injunctive relief
and civil penalties against defendants and respondents Barstow
Youth Activity Center, Inc. (Center) and Julie Ford, asserting
defendants were operating an unlicensed child day care facility.
Plaintiff sought a preliminary injunction pursuant to Health and
Safety Code section 1596.891 which the trial court denied.
Plaintiff appeals, arguing the trial court abused its discretion by
applying an incorrect standard.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed this action in June 2020. The complaint
alleges defendant Ford is the chief executive officer of defendant
Center and the person in charge of overseeing the Center’s day-
to-day operations. Plaintiff alleges the Center, a private
nonprofit corporation, is operating an unlicensed child day care
facility in the city of Barstow in violation of section 1596.80. In
addition to civil penalties (accruing at $200/day), plaintiff seeks
to enjoin defendants from operating until the Center is in
compliance with the licensing statutes set forth in the California
Child Day Care Facilities Act. (§ 1596.70 et seq.; the Act.)
In July 2020, plaintiff filed a motion for a preliminary
injunction pending trial on the merits. The motion was
supported by the declaration of Donna Maddox, a Department
employee, and several exhibits. Defendants’ opposition papers
were supported by a declaration from Ms. Ford.
1 All undesignated section references are to the Health and
Safety Code.
2
The factual record is sparse. We summarize the limited
facts from the parties’ papers that were before the trial court.
In December 2018, the Center had been operating in
Barstow for almost two decades without a license. The Center
was affiliated with the Boys and Girls Clubs of America and
therefore had been exempt from the Act’s licensing requirements
pursuant to section 1596.793. However, in December 2018, the
Center terminated its relationship with the Boys and Girls Clubs,
choosing not to continue with a planned merger with the Kern
County Boys and Girls Club chapter. The record does not contain
any additional details about why the merger was not completed,
nor any information about whether any Boys and Girls Clubs
organization ever had any involvement in the day-to-day
operations of the Center.
That same month, the Department received a complaint
that defendants were operating a child day care facility without a
license. Ms. Maddox, on behalf of the Department, performed an
unannounced inspection of the Center on January 29, 2019,
spoke with Ms. Ford, and gave her a notice of violation for
operating without a license. At the conclusion of the inspection,
it was agreed that Ms. Ford would submit a license application to
the Department, and the Department would allow the Center to
continue to operate pending approval of the application.
Later, Ms. Maddox told Ms. Ford the building the Center
occupied did not meet the requisite standards for a child day care
facility under the Act. Nothing in the record or briefing explains
why the building was inadequate or otherwise prevented the
Center from obtaining a license to operate as a child day care
facility.
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Ms. Ford responded that she was withdrawing the license
application because the Center was not operating as a child day
care facility. Rather, Ms. Ford said the Center was a public
recreation program being operated in conjunction with the
Barstow Fire Protection District, and therefore exempt from the
license requirement pursuant to section 1596.792, subdivision (g).
Defendants provided plaintiff with a copy of the
memorandum of understanding (MOU) between the Center and
the Barstow Fire Protection District, a division of the city of
Barstow. The MOU describes the relationship between the
Center and the Barstow Fire Protection District as a partnership.
Paragraph 4 states the Center “will be under” the Barstow Fire
Protection District and will abide by its laws, rules and
directives. It also states the Center is financially responsible for
its activities, including its payroll. The Barstow Fire Protection
District owns the building in which the Center operates its
program.
Defendants filed two administrative appeals with the
Department, appealing the notice of violation and imposition of
penalties. Defendants explained that nothing had changed about
their work, which had been ongoing in the community for almost
two decades, except that they were no longer affiliated with the
Boys and Girls Clubs. Defendants said they were willing to
cooperate with the Department and requested guidance on what
else could be done to keep their doors open as a public recreation
program. Defendants emphasized they were a nonprofit that
operated primarily on grants, with some of their families being
provided services for free or for less than $10 per week.
The Department denied both administrative appeals,
contending the Center did not qualify for the public recreation
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program exemption because the Center is a private nonprofit
corporation and the Barstow Fire Protection District is not
operating the program within the meaning of the statutory
language. The Department said that both entities remained
legally separate and were functioning only as a “partnership”
according to the MOU. The Department also said the Center
violated the statutory exemption by being open for more than
20 hours per week and by offering programs during the summer.
Ms. Maddox performed three more unannounced
inspections at the Center in August and September 2019, and
again in January 2020. During her inspections, Ms. Maddox saw
anywhere from 21 to 45 children at the Center, some of whom
were dropped off at the Center by Barstow public school buses.
The children were supervised by three to four staff members.
During each inspection, Ms. Maddox issued a notice of citation for
operating without a license and a notice of imposition of penalties
($2,600, $3,800 and $18,600, respectively).
Ms. Ford stated in her declaration that the Center had
discontinued its summer programs and was only operating as an
afterschool program between August and May to comply with the
requirements of the public recreation program exemption. She
said the mayor of Barstow and fire chief had told her they were
willing to do whatever was necessary to help the Center qualify
for the exemption, but she had been unable to get any further
guidance from the Department on what they would require.
At the hearing on October 7, 2020, the court said it did not
believe plaintiff had shown a likelihood of success on the merits
and that the harm appeared to be greater if the Center was
forced to cease operating because of the number of families in
Barstow that relied on its services. The court denied plaintiff’s
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request for a preliminary injunction and set a trial setting
conference for March 26, 2021.
Plaintiff timely appealed.
DISCUSSION
In IT Corp. v. County of Imperial (1983) 35 Cal.3d 63 (IT
Corp.), the Supreme Court reaffirmed the settled principle that a
trial court’s decision whether to grant a preliminary injunction is
one of discretion. “ ‘The authorities are numerous and uniform to
the effect that the granting or denial of a preliminary injunction
on a verified complaint, together with oral testimony or
affidavits, even though the evidence with respect to the absolute
right therefor may be conflicting, rests in the sound discretion of
the trial court, and that the order may not be interfered with on
appeal, except for an abuse of discretion.’ ” (Id. at p. 69.)
“ ‘A trial court abuses its discretion when it applies the wrong
legal standards applicable to the issue at hand.’ ” (Doe 2 v.
Superior Court (2005) 132 Cal.App.4th 1504, 1517.)
Plaintiff contends defendants violated the mandatory
licensing requirement set forth in section 1596.80 of the Act,
which provides that “[n]o person, firm, partnership, association,
or corporation shall operate, establish, manage, conduct, or
maintain a child day care facility in this state without a current
valid license therefor as provided in this act.”
The Act provides that the director of the Department may
bring an action “to enjoin the violation or threatened violation of
Section 1596.80,” and the director is not required to allege facts
demonstrating lack of an adequate remedy at law or irreparable
damage. (§ 1596.89.) Further, in any action alleging an actual
violation of section 1596.80, “the court shall, if it finds such
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allegations to be true, issue its order enjoining the child day care
facility from continuance of the violation.” (§ 1596.89.)
It is undisputed the Center is operating without a license to
operate a child day care facility. Plaintiff therefore argues the
trial court erred in not enjoining the statutory violation. Plaintiff
says the Department remains willing to work with defendants,
but that the trial court nonetheless was required to enjoin the
Center’s unlicensed activities until they were able to comply with
the Act. Further, plaintiff contends the trial court failed to apply
the standard set forth in IT Corp., namely that as an entity
seeking to enjoin a violation of the law, the Department was
entitled to a rebuttable presumption, once it showed a reasonable
probability of success on the merits, “that the potential harm to
the public outweighs the potential harm to the defendant.” (IT
Corp., supra, 35 Cal.3d at p. 72.)
However, defendants are not violating the law if they are
operating in accordance with one of the Act’s licensing
exemptions. And, if they are exempt, the court was justified in
concluding that plaintiff had not shown a probability of success
on the merits and the rebuttable presumption of IT Corp. never
came into play.
Under the Act, a child day care facility is broadly defined as
any facility “that provides nonmedical care to children under
18 years of age in need of personal services, supervision, or
assistance essential for sustaining the activities of daily living or
for the protection of the individual on less than a 24-hour basis.”
(§ 1596.750.) The record does not include evidence of what
services the Center provides. At best, the reasonable inference
from the record is that the Center provides afterschool activities
for school age children, some of whom are brought to the Center
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directly by bus from Barstow schools. The Center is arguably a
child day care facility given the broad language of the statute, but
the present record is not definitive.
The Act contains several exemptions to the licensing
requirement of section 1596.80, two of which are relevant here:
section 1596.793 and section 1596.792, subdivision (g).
Section 1596.793 provides that the licensing requirement
does “not apply to recreation programs conducted for children by
the YMCA, Girl Scouts of the USA, Boy Scouts of America, Boys
and Girls Clubs, Camp Fire USA, organized camps, or similar
organizations.” The Center was operating without a license in
Barstow for almost 20 years as an exempt facility pursuant to
section 1596.793 based on its former affiliation with the Boys and
Girls Club. It is undisputed the Center is no longer affiliated
with the Boys and Girls Clubs.
Section 1596.792, subdivision (g) exempts public recreation
programs. As relevant here, that section defines a public
recreation program as one “operated by the state, city, county,
special district, school district, community college district,
chartered city, or chartered city and county” and only during
nonschool hours and for less than 20 hours per week.
Defendants relied on the public recreation program
exemption in opposing the injunction. Ms. Ford declared the
Center scaled back its programs in order to comply with the
public recreation program exemption. Plaintiff offers no evidence
defendants have not scaled back their programs, arguing only
that they previously offered summer programs and were
otherwise open more than 20 hours a week during the school
year.
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Plaintiff also argues it is not possible for defendants to
establish the Center is “operated by the state, city, county,
special district, school district, community college district,
chartered city, or chartered city and county” within the meaning
of section 1596.792, subdivision (g). But the record, limited as it
is, shows the Center operates out of a building owned by the
Barstow Fire Protection District (a division of the city of
Barstow), the Center and the fire district signed an MOU to act
in partnership with respect to the Center, and the Center will
abide by any directives or rules of the fire district.
Obviously, individuals and entities providing child care
must be appropriately licensed and subject to oversight.
However, in enacting the Act, the Legislature carved out
exemptions to the licensing requirement. On the limited factual
record presented, plaintiff failed to demonstrate the trial court
abused its discretion in finding plaintiff did not show a likelihood
of success in proving the Center falls outside the scope of the
licensing exemption for public recreation programs. Nor has
plaintiff offered persuasive argument, authority or legislative
history on which we might base a finding that the statutory
exemption language cannot or should not be interpreted to cover
a public and private partnership.
The trial court may conclude at the time of trial, once it has
the benefit of a fully developed factual record, that the exemption
does not apply, in which case, presumably, it will enjoin the
Center from further operations until it can come into compliance
with the Act. But on the present limited record, we cannot
conclude the trial court abused its discretion in denying the
preliminary injunction.
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DISPOSITION
The order denying plaintiff’s motion for preliminary
injunction is affirmed. No costs are awarded.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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