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GOLDEN GATE HOTEL ASSN. v. CITY & CTY. OF SAN FRAN

September 9, 1993

GOLDEN GATE HOTEL ASSOCIATION, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, TENDERLOIN HOUSING CLINIC, INC., NORTH OF MARKET PLANNING COALITION, and BRAD PAUL, Defendants.


VUKASIN, JR.


The opinion of the court was delivered by: J. P. VUKASIN, JR.

INTRODUCTION

 Plaintiff, Golden Gate Hotel Association, brought a motion for temporary restraining order. Defendants City and County of San Francisco and Brad Paul (collectively "City"), North of Market Planning Coalition ("North of Market"), and Tenderloin Housing Clinic, Inc. ("Tenderloin") brought motions to reconsider and to certify for interlocutory appeal the court's June 21, 1993 order granting plaintiff's motion for summary judgment on its first cause of action. The court scheduled the motions for hearing on August 12, 1993. After a review of the briefs, the court submitted the motions without oral argument pursuant to Local Rule 220-1 and now herein rules on those motions.

 BACKGROUND

 Plaintiff brought suit seeking, inter alia, a declaration that the City's Hotel Conversion Ordinance ("Ordinance") *fn1" violates the fifth amendment's proscription of taking private property without just compensation. By order dated June 21, 1993, the court granted plaintiff's motion for summary judgment on its first of eleven causes of action, declaring the Ordinance unconstitutional on its face.

 Defendants filed motions for reconsideration and certification for interlocutory appeal of the court's June 21 order. Before defendants' motions were to be heard, plaintiff filed a motion for a temporary restraining order, seeking to enjoin the City from continuing to enforce the Ordinance. The court coordinated the briefing and consolidated the hearing of defendants' and plaintiff's motions. Those motions are the subject of this Order.

 DISCUSSION

 I. Defendants' Motions

 Defendants move for the court to reconsider its order of June 21 or to certify it for interlocutory appeal and stay effect of the order pending appeal. Defendants allege that the court's order erred concerning the following issues:

 (1) the ripeness of plaintiff's facial challenge of the Ordinance;

 (2) the timeliness of defendants' second motion for summary judgment, which was based on the alleged untimeliness with respect to the statute of limitations of plaintiff's facial challenge of the Ordinance;

 (3) the constitutionality of the Ordinance.

 II. Plaintiff's Motion for TRO

 Plaintiff moves for a temporary restraining order enjoining defendants from enforcing the Ordinance and requiring defendants to withdraw without prejudice any motions pending in state court in cases regarding enforcement of the Ordinance. Plaintiff argues that such injunctive relief is necessary to effectuate defendants' compliance with the court's June 21 order granting plaintiff summary judgment on its first cause of action, wherein the court declared the Ordinance facially unconstitutional.

 Defendants correctly point out that issuing a TRO or preliminary injunction on plaintiff's first cause of action would be procedurally inappropriate since the court has already decided that claim on the merits. Any injunction issued on the first cause of action thus must be a permanent injunction, and a permanent injunction cannot issue unless based upon a valid, appealable judgment. Alpine State Bank v. Ohio Casualty Ins. Co., 941 F.2d 554, 558-59 (7th Cir. 1991).

 In reply to defendants' argument, plaintiff urges that it the court accepts defendants' premise that only permanent injunctive relief is appropriate, it should issue partial judgment on plaintiff's first cause ...


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