The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER
On May 23, 2008, plaintiff Blackwater Lodge and Training Center ("Plaintiff") filed a complaint against the City of San Diego ("City"), the Development Services Department of the City of San Diego and Kelly Broughton, that agency's director, and the City's Chief Building Official (collectively, "Defendants"). (Doc. No. 1.) On May 27, 2008, Plaintiff filed an ex parte application for a temporary restraining order ("TRO") and an order to show cause regarding a preliminary injunction. (Doc. No. 4.) The Court set a hearing on Plaintiff's application on May 30, 2008. (Doc. No. 6.) On May 29, 2008, Defendants filed a response in opposition to Plaintiff's request for a TRO. (Doc. No. 7.) Plaintiff has filed a reply. (Doc. No. 10.)
On May 30, 2008, the Court held a hearing on Plaintiff's application for a TRO. Michael I. Neil, John Nadolenco and Jeffrey Chine appeared on behalf of Plaintiff. Donald McGrath and Walter C. Chung appeared for Defendants. (See Doc. No. 12.) For the reasons discussed below, the Court grants Plaintiff's application for a TRO.
Plaintiff has a contract to provide training to members of the United States Navy. (Compl. ¶¶ 1, 16-20; Decl. of Brian Bonfiglio ISO Plf's. Ex Parte App. for TRO ("Bonfiglio Decl.") ¶ 7.) Plaintiff intends to conduct indoor training at a warehouse at 7685 Siempre Viva Road, in the Otay Mesa area of San Diego ("the Otay Mesa facility"). (Bonfiglio Decl. ¶ 8.) The Otay Mesa neighborhood where Plaintiff's facility is located consists of large industrial buildings and lacks residential properties. (Id. ¶ 8, Exs. A, X.) Several vocational facilities, including a certified police academy, are housed near Plaintiff's facility. (Bonfiglio Decl. ¶ 9.)
In developing the Otay Mesa facility, Plaintiff entered into a joint venture with Southwest Law Enforcement Training Enterprises ("Southwest").*fn1 (Id. ¶ 10.) On September 5, 2007, Southwest filed a general application with the City's Development Services Department for a building permit to construct 44 feet of new partitions at the Otay Mesa facility. (Bonfiglio Decl. ¶ 10; see Decl. of Afsaneh Ahmadi ISO Defs.' Oppo. to Plf's. Ex Parte Request For TRO ("Ahmadi Decl."), Ex. A.) The application, which identified Southwest as the "lessee or tenant" of the property, stated that the existing use was "w[are]house with offices," and that the proposed use was "same (no change)." (Ahmadi Decl., Ex. A.) The City's documents indicate that the project type was "ministerial." (Id.) Southwest's permit application was granted. (Bonfiglio Decl. ¶ 10.)
On February 7, 2008, another general application was filed with the City's Development Services Department related for a building permit to conduct electrical work at the Otay Mesa facility. (Ahmadi Decl., Ex. B.) The application identified Safchild Investments LLC as the owner of the property and referred to the project title as "South West Police." (Id.) The application sought a permit for work including the installation of two new air conditioning units and six exhaust fans. (Id.) Similar to the previous application for the Otay Mesa facility, the City classified the project type as "ministerial." (Id.) The permit was granted. (See Bonfiglio Decl. ¶ 11.)
On February 8, 2008, another general application for a building permit was filed, this time by Raven Development Group, an entity that the application identified as a lessee or tenant of the Otay Mesa facility. (Ahmadi Decl., Ex. C; see Bonfiglio Decl. ¶ 11.) Raven Development Group is a corporate affiliate of Plaintiff and specializes in the development of training facilities. (Bonfiglio Decl. ¶ 11.) This application stated the project description as: "Add indoor firing range." (Ahmadi Decl., Ex. C.) It listed the existing use of the property as "warehouse," and the proposed use as "training facility." (Id.) The City's documents, which again listed the project type as "ministerial," stated the project's scope as "[b]uilding permit to add modular training unit inside of ex[isting] warehouse for ex[isting] Southwest Law Enforcement facility." (Id.) The City granted the permit. (Id., see Bonfiglio Decl. ¶ 11.) Once the permit was granted, Plaintiff states that it, assisted by Raven Development Group, began installing the additional air conditioning units and exhaust fans and constructing the firing range. (Bonfiglio Decl. ¶ 11.)
On March 21, 2008, the City's electrical inspector approved the Otay Mesa facility's electrical infrastructure. (Bonfiglio Decl. ¶ 12.) On March 25, 2008, a City fire inspector approved the fire and safety permits. (Id.) Mr. Bonfiglio, who is Plaintiff's Vice President, states that on each occasion he met with the inspector, identified himself as working for Plaintiff, and provided his Blackwater business card. (Id. ¶ 13.)
On April 29, 2008, the City's Chief Building Official (defendant Ahmadi) reviewed Plaintiff's plans for the Otay Mesa facility and found no unresolved issues. (Bonfiglio Decl. ¶¶ 17, 18.) On April 30, 2008, the City's structural engineer conducted a final inspection of the Otay Mesa facility. (Id. ¶ 19.) The structural engineer signed Plaintiff's permits and plans, and the evidence shows that the City on April 30, 2008 approved the certificate of occupancy, since the City's inspection record bears a signature from that date by "Aguirre." (See Bonfiglio Decl., Ex. U.) At the conclusion of the April 30, 2008 final inspection, the City's structural engineer informed Plaintiff that the City's Development Services Department would mail the paper certificate of occupancy within the next few weeks. (Id. ¶ 19, Ex. U.)
On May 19, 2008, the Director of the City's Development Services Department informed Plaintiff that the City will not issue a certificate of occupancy to Plaintiff for the Otay Mesa facility. (Id. ¶ 51.) The letter stated that Plaintiff may continue to use the facility as a warehouse, but not as a shooting range or vocational/trade school until a certificate of occupancy has been issued. (Id. ¶¶ 51-52.) Plaintiff asserts that the issuance of a certificate of occupancy is a non-discretionary duty that Defendants must perform. Plaintiff seeks a temporary restraining order enjoining Defendants from (1) enforcing defendant Broughton's May 19, 2008 letter purportedly refusing to issue a certificate of occupancy, and (2) refusing to issue the certificate of occupancy for the Otay Mesa property.
Rule 65 of the Federal Rules of Civil Procedure provides that a "court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in ...