CITY OF CARMEL-BY-THE-SEA, CALIFORNIA, a municipal corporation, Plaintiff, vs. PACIFIC HARVEST SEAFOODS, INC., And DOES I through 20, Defendants. Case No. 15CV000014

ABSTRACT: Thomas W. Wills, Judge of the Superior Court, County of Monterey, ordered on April 8, 2016 that “UPON THE STIPULATION of the parties, IT IS HEREBY ORDERED that, regarding the matter of City of Carmel-by-the-Sea versus Pacific Harvest Seafoods, Inc., venue shall be transferred to the Superior Court of California in the County of Santa Clara Superior Court as prescribed by the California Code of Civil Procedure section 394.” Previously, on March 4, 2015, attorney Charles D. Jenkins, representing Pacific Harvest Seafoods, Inc., wrote to City Attorney Don Freeman “PHS takes orders from customers for its products on-line, via facsimile and via telephone; then consummates sales in its distribution facility located just outside San Juan Bautista in San Benito County, north of Monterey County. The orders are filled, then picked up by customers at the facility or placed on one of PHS' commercial motor vehicles1 and transported to a customer's place of business.” “As such, it is our position that PHS is a "for-hire motor carrier of property" that "transports property for compensation". California Revenue & Tax Code Section 7232 (b). Accordingly, Pacific Harvest is exempt from Carmel-by-the-Sea's business license requirement. Revenue and Tax Code Section 7233 provides: "No, city, county, or city and county, shall assess, levy, or collect an excise or license tax of any kind, character, or description whatever upon the transportation business conducted .... by any for-hire motor carrier of property."
1 Pacific Harvest holds a valid motor carrier permit issued by the State of California. 

Seven months later, on October 6, 2015, City Attorney Donald Freeman (SBN 47833) submitted a COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTION, ABATEMENT OF NUISANCE; COLLECTION OF DELINQUENT BUSINESS LICENSE TAX.
FIRST CAUSE OF ACTION
COLLECTION OF DELINQUENT BUSINESS LICENSE TAXES
SECOND CAUSE OF ACTION
INJUNCTIVE RELIEF TO REQUIRE COMPLIANCE WITH MUNICIPAL CODE PROVISIONS REGARDING SECURAL OF A BUSINESS LICENSE PERMIT, PAYMENT OF REQUIRED FEES, FURNISHING OF AN ACCOUNTING OF GROSS RECEIPTS AND PAYMENT OF ALL DELINQUENCIES AND COSTS OF SUIT AND ATTORNEY'S FEES.
THIRD CAUSE OF ACTION
ABATEMENT OF NUISANCE PER SE

PRAYER
WHEREFORE, Plaintiff prays judgment for:
That this Court order, adjudge and decree as follows:
ON THE FIRST CAUSE OF ACTION;
1. That Defendant be found to be indebted to Plaintiff in the sums of:
a. Administrative fees for four years at $50 per year for a total of $200.
b. Business License taxes in the sum of $20,000.00 or as demonstrated by evidence for the four year period of time at the hearing of this matter.
c. For delinquent penalties at the rate of 50% per year on the unpaid tax, for a sum of $10,000 or as demonstrated by evidence for this four year period of time at the hearing.
d. For a civil penalty of $1000 or as awarded by the Court.
ON THE SECOND CAUSE OF ACTION:
1. That a preliminary and permanent injunction issue enjoining and restraining the Defendants and anyone acting on their behalf, from conducting, allowing, permitting, or engaging in any business activity, including the sale of seafood products, within the City of Carmel by-the-Sea without first obtaining an appropriate Business License Permit after payment of a correct Business License tax;

2. That Defendants appear before this Court at a time and place to be set by this Court, and then and there to show cause why a preliminary injunction should not be issued enjoining and restraining Defendants the anyone acting on their behalf, from conducting, allowing, permitting, or engaging in any business activity, including the sale of seafood products, within the City of Carmel by-the-Sea;
3. That Defendants be ordered to comply with the provisions of the Carmel Municipal Code Chapters 5.04 and 5.08 relating to secural of Business License permit after payment of an appropriate Business License Tax including any and all delinquent taxes, fees, penalties, and attorney's fees;
4  That Defendants pay civil penalties in the sum of $1000.00 or as awarded by the Court in accordance with Municipal Code §5.04.160A2.

ON THE THIRD CAUSE OF ACTION
1. The Court find that Defendants have violated the provisions of Municipal Code Chapter 5.04 and 5.08 and as such their conduct has constituted a public nuisance per se.
2. The Court order abatement of the public nuisance by issuance of a preliminary and permanent injunction enjoining and restraining the Defendants and anyone acting on their behalf, from conducting, allowing, permitting, or engaging in any business activity, including the sale of seafood products, within the City of Carmel by-the-Sea without first obtaining an appropriate Business License Permit after payment of a correct Business License tax.
FOR ALL CAUSES OF ACTION:
1. The Court award costs of suit;
2. The Court require Defendant to pay appropriate attorney's fees as deemed fair and reasonable by the Court;
3. And such other and further relief as the Court deems proper.
Dated: October 6, 2015

Document copies of COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTION, ABATEMENT OF NUISANCE; COLLECTION OF DELINQUENT BUSINESS LICENSE TAX (FILED OCT 13, 2015), PLAINTIFF CITY OF CARMEL-BY-THE-SEA'S AMENDED DEMAND FOR JURY TRIAL (Dated: February 3, 2016), STIPULATION OF THE PARTIES TO CHANGE VENUE TO THE SUPERIOR COURT OF CALIFORNIA IN THE COUNTY OF SANTA CLARA PURSUANT TO C.C.P. § 394 (FILED FEB 25, 2016), [PROPOSED] ORDER TO CHANGE VENUE TO THE SUPERIOR COURT OF CALIFORNIA IN THE COUNTY OF SANTA CLARA PERSUANT TO C.C.P. § 394 (FILED APR 08, 2016) and NOTICE OF ENTRY OF ORDER TO CHANGE VENUE TO THE SUPERIOR COURT OF CALIFORNIA IN THE COUNTY OF SANTA CLARA PERSUANT TO C.C.P § 394 (Dated: April 13, 2016) are embedded.

COMPLAINT Case No. 15CV000014 10-13-16 by L. A. Paterson

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTION, ABATEMENT OF NUISANCE; COLLECTION OF DELINQUENT BUSINESS LICENSE TAX
FILED OCT 13, 2015
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY

Pltf Citys Amended Demand for Jury Trial 15cv000014 2-03-16 by L. A. Paterson

PLAINTIFF CITY OF CARMEL-BY-THE-SEA'S AMENDED DEMAND FOR JURY TRIAL
Dated: February 3, 2016
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY

Stipulation of the Parties to Change Venue 15CV000014 2-25-16 by L. A. Paterson

STIPULATION OF THE PARTIES TO CHANGEVENUE TO THE SUPERIOR COURT OF CALIFORNIA IN THE COUNTYOFSANTA CLARA PURSUANT TO C.C.P. § 394
FILED 02-25-16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY

[Proposed] Order to Change Venue 15CV000014 4-08-16 by L. A. Paterson

[PROPOSED] ORDER TO CHANGE VENUE TO THE SUPERIOR COURT OF CALIFORNIA IN THE COUNTY OF SANTA CLARA PERSUANT TO C.C.P. § 394
FILED April 8, 2016
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY

Notice of Entry of Order 15CV000014 4-13-16 by L. A. Paterson

NOTICE OF ENTRY OF ORDER TO CHANGE VENUE TO THE SUPERIOR COURT OF CALIFORNIA IN THE COUNTY OF SANTA CLARA PERSUANT TO C.C.P § 394
Dated: April 13, 2016
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF MONTEREY