Filed 9/30/15 Oxnard Hospitality Enterprises v. City of Los Angeles CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
OXNARD HOSPITALITY B256727
ENTERPRISES, INC. et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC454667)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Debre Katz Weintraub, Judge. Affirmed.
Lane & Gulino, and John J. Gulino, for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Thomas H. Peters, Chief Deputy City Attorney,
Ronald S. Whitaker, Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney,
for Defendant and Respondent.
__________________________________
Plaintiff and Appellant Oxnard Hospitality Enterprise, Inc.,1 doing business as
“Babes and Beers,” filed an action for damages and injunctive relief against Defendant
and Respondent City of Los Angeles based on causes of action alleging violations of its
constitutional rights of free speech, due process, and equal protection under the federal
and state constitutions. Following a ruling on a motion for summary adjudication as to
Oxnard’s speech causes of action, and an ensuing bench trial on its remaining causes of
action, the trial court entered judgment in favor of the City. Oxnard appeals. We affirm.
FACTS
Background
In 1977, A.H. Bronson (not a party in the trial court or on appeal) applied to the
City for a building permit and certificate of occupancy to add a dance area in a building
located on Oxnard Street in the City’s Tarzana neighborhood, in an area zoned for “M1”
and “CM” uses, meaning “limited industrial” use and “commercial manufacturing” use.
At that time, the building was already being used as a “beer café.” In May 1978, the City
issued a certificate of occupancy to Bronson; the certificate stated that the “occupancy
designation” for the property was a beer café with a dance area.2
1
Hereafter Oxnard. Our references to Oxnard include plaintiff and appellant Elias
Laty, Oxnard’s sole shareholder. We hereafter refer to Laty only as needed to establish
context for the opinion.
2
At trial, Oxnard called Frank Lara, a principal inspector in the City’s Department
of Building and Safety. During his testimony, Lara explained that there is a difference
between an “occupancy designation” for a property and the “zoning designation” for a
property. For example, Bronson’s building on Oxnard Street had an “occupancy
designation” of B-2, meaning it had been approved for occupancy as “a small cafe, less
than 50 people.” As Lara explained: “The certificate of occupancy . . . although it
designates the use – it’s more related to the occupancy. And occupancy is concerned
with how many people are in a building. Because the reason for different occupancies
are different occupancies require different type of construction. So the reality is that the
certificate of occupancy is intended to approve the construction or the structure for that
use rather than to try to control the use itself.”
2
At the time of Oxnard’s current case, the City had not located “any” record of a
conditional use permit ever having been issued for the Oxnard Street building.
“[S]ometime in 1977,” the City enacted a conditional use permit ordinance governing the
service of alcohol at all properties in the City. Under the City’s zoning laws, a particular
use at a property that preceded the adoption of a conditional use ordinance applicable to
the property would be deemed to have “approved status,” which means that the property
owner would not be required to go through the conditional use process to continue the
use “because [it] pre-existed the ordinance.” This is commonly characterized as being a
“grandfather right.”
Sometime around 1996, Charles Parnes purchased the Oxnard Street building.3
At the time Parnes acquired the building, it was being operated as what he described as a
“bikini bar.” Sometime around 1998 or 1999, Parnes leased the Oxnard Street building to
Dino’s Victory Roadhouse, Inc. doing business as “The Frisky Kitty.” As best as can be
ascertained from the record, The Frisky Kitty apparently operated for some time as a
“bikini bar,” but then changed its style of business. By the early 2000s, The Frisky
Kitty’s bikini-clad alcohol servers became nude dancers who did not serve alcohol. In
short, The Frisky Kitty became a strip club, without any alcohol. There is evidence in the
record showing that Dino’s “surrendered” its alcohol license back to the California
Department of Alcoholic Beverage Control (ABC) in early 2001 “in order to operate as a
full nude club.”
The Frisky Kitty Case
In 2006, the City initiated a civil action for injunctive relief against Dino’s, as the
operator of The Frisky Kitty, and against Parnes, as the owner/landlord of the Property.
(L.A. Sup. Ct., No. BC353242.) The City’s 2006 action alleged various causes of action
which basically claimed that The Frisky Kitty was a nuisance in that it was operating as
an “adult cabaret” as defined by the Los Angeles Municipal Code (LAMC), and that the
operation of such a business at the Property’s location violated the LAMC’s zoning laws,
3
Our references to Parnes include any relevant living trust as to which he acted as
trustee, or any other related entity.
3
as well as an “Order to Comply” issued by the City’s Department of Building and Safety.
The alleged zoning violation with The Frisky Kitty was that the LAMC does not permit
adult cabarets within 500 feet of a residential or “R” zone under the City’s zoning laws,
and The Frisky Kitty was allegedly located less than 500 feet from its nearest residential
neighbor. Dino’s defense against the City’s 2006 action consisted largely of a legal
argument that the City had used an incorrect measuring methodology to fix the 500 feet
boundary line around The Frisky Kitty. Based on the record, there does not appear to
have been any issues related to the serving of alcohol involved in the City’s 2006 action
because, as already noted, Dino’s had surrendered its alcohol license years before.
At the conclusion of a bench trial in June 2007, the Los Angeles Superior Court
(LASC) allegedly entered a judgment with a permanent injunction directing Dino’s not to
operate as an “adult cabaret” with nude dancers, but allowing it to operate as a “bikini
bar.” We deliberately use the word “allegedly” here; the record before us on Oxnard’s
current appeal does not include a copy of the LASC’s 2007 judgment in The Frisky Kitty
case, and, thus, we do not know the exact language of the judgment. A reporter’s
transcript from part of the LASC’s trial in 2007, which is included in the record, shows
that it was understood at the time by the City’s and by Dino’s lawyers that dancers at The
Frisky Kitty would have to “keep their tops and bottoms on.” During the course of an
exchange, the City’s lawyer told the trial court that it was not the City’s position that The
Frisky Kitty had to close, only that it had to operate as a bikini bar, not as a nude adult
cabaret.4 The statements of the City’s lawyer, of course, were made in the context of a
4
On our own motion, we take judicial notice that our court eventually affirmed the
LASC’s 2007 judgment insofar as its permanent injunction provisions were concerned.
(See People ex re. City of Los Angeles v. Dino’s Victory Roadhouse, Inc. (Dec. 19, 2008,
B202083) [nonpub. opn.].) In our opinion, we ruled that the City had properly measured
the 500 boundary line around adult cabarets by overlaying a 500 foot radius with the
cabaret at the center. Rather than, as Dino’s argued, a 500 foot line along the walking
path from the front door of the cabaret to the front door of the nearest residential
property.
4
court case that had not actually placed at issue any question concerning the operation of a
bikini bar serving alcohol at the Property, only the operation of an adult cabaret.
Regardless of the express provisions included in the LASC’s 2007 judgment for a
permanent injunction, it is undisputed fact that, at some point in time around the LASC’s
injunctive orders, Dino’s decided it no longer wanted to operate The Frisky Kitty. There
is evidence in the record which shows that Dino’s never resumed serving alcohol, with or
without bikini-clad employees, at any time after the LASC’s 2007 judgment. As noted,
Dino’s surrendered its ABC license in 2001.
Oxnard
Toward the end of 2007, a “consultant in the adult entertainment industry,” Majid
Ahmadi, began working with Elias Laty, Oxnard’s founding shareholder (ante), and with
Charles Parnes, the landlord of the Property where The Fisky Kitty previously operated
(ante), with an eye toward re-opening a bikini bar at the Property.5 During his trial
testimony in the current case, Laty testified that he met with Parnes during the
preliminary efforts to get Oxnard’s new business started, and that Parnes told Laty the
Property could be operated as a bikini bar under the terms of court rulings in the earlier
litigation involving The Frisky Kitty. According to Laty’s testimony: Parnes showed
Laty “[t]he transcript of the judgment against [The] Frisky Kitty.” Ahmadi thereafter
assisted Oxnard in applying for and obtaining a Police Commission Permit, and a liquor
license from the ABC. In the course of these efforts, Ahmadi and Laty met with a City
employee, Richard Kussman, at the “Metro Zoning” counter in downtown, and received a
document entitled “Zoning and Use Clearance for Police Permit.” The record suggests
that Kussman worked for the City’s Department of Building and Safety, not the City’s
Department of Planning. The “zoning clearance” document indicated that the “business
shown on the face of the document,” namely, a “beer café,” was a “permitted use” for the
Property. Oxnard obtained a Certificate of Occupancy from the City’s Department of
5
Laty’s educational and work experience was as an accountant. He knew about
The Frisky Kitty business because he had been its accountant when it was operating.
5
Building and Safety Around July 1, 2008, Oxnard opened its doors for business as a
bikini bar.
The Events Surrounding the City’s Order for a New CUP
On February 5, 2009, an assailant critically injured one of Oxnard’s workers by
luring her outside the premises, dousing her with gasoline and setting her on fire. On a
date not explicitly shown by the record on appeal, Los Angeles City Councilperson
Dennis Zine publicly disseminated statements calling the Property a “hotbed” of criminal
activity, noting that he previously caused “the business” at the Property to be shut down
(implicitly referring to the previous business, The Frisky Kitty), and that he was
“shocked” to find that “it” had re-opened. Zine vowed that, if “it” had re-opened legally,
then there was going to be “hell to pay.”6
On February 6, 2009, the City’s Department of Building and Safety issued an
“Order to Comply” to Oxnard with an “effective date” of February 11, 2009 and with a
“compliance date” of February 26, 2009. The Order to Comply stated that Oxnard had
failed to obtain “the required conditional use permit [(CUP)] . . . to allow the sale of
alcohol after the premises had discontinued the sale of alcohol . . . for a period of more
than a year.”7 The Order to Comply was addressed Oxnard, but included a site location
reference which identified the violation as occurring at “Babes & Beer (Frisky Kitty).”
The Order to Comply ordered Oxnard to discontinue the sale of alcoholic beverages, or to
obtain a CUP allowing such sales. It advised Oxnard that a failure to comply within 15
days from the compliance date would result in the imposition of a non-compliance fee.
Further, the Order to Comply advised Oxnard that that City had established “an appeal
6
Oxnard asserts in its opening brief that Councilperson Zine held a press
conference in front of Oxnard’s business, but there are no citations to the record directing
us to any evidence supporting Oxnard’s assertion. There is a collection of press stories in
the form of internet retrievals included in the record on appeal, and we have summarized
the gist of Councilperson Zines’s comments as taken from those materials.
7
A “Comment[]” on the face of the Order to Comply stated: “Business abandoned
alcohol service for more than six years while operating as fully nude adult caberet.”
6
procedure . . . to hear and determine err[ors] or abuse of discretion or requests for slight
modification of the requirements contained in [the Order to Comply],” and that, if
Oxnard did not file such an appeal within 15 days of the compliance date, “the
determination of the [Department of Building and Safety] to impose and collect a non-
compliance fee [would become] final.”8
Oxnard filed an appeal from the City’s decision to require Oxnard to obtain a
CUP. During an ensuing administrative hearing in September 2009 before a City “zoning
administrator” in the City’s Department of Planning, a number of witnesses testified,
including Elias Laty, Oxnard’s owner, “Max” Ahmadi, and Charles Parnes, the owner of
the Property, along with members of the public.
The zoning administrator issued a written determination that upheld the City’s
decision to issue the Order to Comply and to require Oxnard to obtain a CUP. The
determination was made pursuant to LAMC section 12.24-Q, which reads:
“Discontinuance of Use. If a conditional use is abandoned, or
is discontinued for a continuous period of one year, it may not be re-
established unless authorized in accordance with the procedure
prescribed in the [LAMC] for the establishment of a conditional
use.”
Further, the determination included findings and conclusions as follows:
“The record shows that the [prior] owner/operator of business
at the subject location elected to maintain operation of an adult
cabaret (nude entertainment venue) and voluntarily surrendered their
ABC license on February 19, 2001. In so doing, the [prior]
owner/operator discontinued the sale of alcohol for more than a one-
8
In its opening brief on appeal, Oxnard asserts that the City was “continuing its
effort to put The Frisky Kitty out of business and was now focusing its attention on
[Oxnard] for no reason other than ‘guilt by association.’” Oxnard asserts that it
negotiated its own and separate lease with the landlord, Parnes, and had established a
wholly new business unrelated to The Frisky Kitty.
7
year time period, thus losing any non-conforming rights that may
have been available to them under the 1998 Certificate of
Occupancy.
“At the time the [current] owner/operators reactivated the
ABC license on August 16, 2007, the operation required a
conditional use permit pursuant to [LAMC] Section 12.24-W, and
[LAMC] Section 12.24-Q . . . in order to legally sell alcohol within
the City of Los Angeles.
As noted by the Department of Building and Safety in their
March, 2009 determination, a certificate of occupancy, issued by
[the Department of Building and Safety] establishes the use of the
building, however the right to dispense alcohol is a separate process
determined by the Department of City Planning, in the form of a
Conditional Use Permit.”
Finally, the determination advised Oxnard of its further appeal rights as follows:
“The Zoning Administrator’s determination in this matter will
become effective after NOVEMBER 12, 2009, unless an appeal
therefrom is filed with the City Planning Department. It is strongly
advised that appeals be filed early during the appeal period and in
person so that imperfections/incompleteness may be corrected before
the appeal period expires. Any appeal must be filed on the
prescribed forms, accompanied by the required fee, a copy of the
Zoning Administrator’s action, and received and receipted at a
public office of the Department of City Planning on or before the
above day or the appeal will not be accepted. Forms are available on
line at [website address]. Public offices are located at: [street
addresses listed].
8
“If you seek judicial review of any decision of the City
pursuant to . . . Code of Civil Procedure Section 1094.5, the petition
for writ of mandate pursuant to that section must be filed no later
than the 90th day following the date on which the City’s decision
became final pursuant to . . . Code of Civil Procedure Section
1094.6. There may be other time limits which also affect your
ability to seek judicial review.”
Meanwhile, even before the zoning administrator issued her final decision, Oxnard
closed its doors in September 2009.9 At trial, Laty testified that the negative publicity
about the incident with the attack on Oxnard’s employee caused consumers to stay away
from its business. As stated by Laty: “Without the incident –– the incident has ruined
my business.”
The Litigation
In February 2011, more than one year after its closed its business, Oxnard filed a
complaint for damages and injunctive relief against the City. Oxnard’s complaint alleged
six causes of action, listed respectively, as follows: a violation of freedom of speech
under the federal constitution pursuant to 42 U.S.C. Section 1983; a violation of due
process under the federal constitution pursuant to 42 U.S.C. Section 1983; a violation of
equal protection under the federal constitution pursuant to 42 U.S.C. Section 1983; a
violation of freedom of speech under the state constitution; a violation of due process
under the state constitution; and a violation of equal protection under the state
constitution.
The record before us on appeal shows a notation in a minute order that the trial
court “granted summary adjudication in favor of [the City] as to the first cause of action
for violation of freedom of speech [under the federal constitution] and the fourth cause of
9
In its opening brief on appeal, Oxnard asserts the City “effectively put [Oxnard]
out of business, effectively taking [its] business enterprise and all of [its] investment for
no lawful reason . . . .”
9
action for violation of freedom of speech under the California constitution . . . .” Oxnard
elected to proceed by an appellant’s appendix on appeal. There are no materials in
Oxnard’s appendix connected with a motion for summary adjudication of issues, or the
court’s ruling on such a motion. The reference here to a notation in a minute order is
taken from a minute order issued at the time of trial, in which the trial court explained
why it only addressed Oxnard’s second, third, fifth, and sixth causes of action at trial.
In January 2014, Oxnard tried the remainder of its case to the trial court. The trial
court entered judgment in favor of the City, including an award of costs ($2141.85)
against Oxnard and its sole shareholder, Elias Laty, payable jointly and severally.
Oxnard and Laty filed a timely notice of appeal.
DISCUSSION
I. Oxnard’s Argument that There was a Government “Taking” of its Property
is Waived
We summarily reject Oxnard’s argument that the City “engaged in an unlawful
taking of [Oxnard]’s property” under the state and federal constitutions when it required
the company to obtain a CUP. From what we are able to understand from its brief,
Oxnard is contending the City engaged in a “regulatory taking” of property for which it
should receive just compensation. (See, e.g., Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 260.) This argument is irrelevant to Oxnard’s current appeal because
Oxnard did not allege a cause of action in its complaint for a taking of its property.
Indeed, the word “taking” is not to be found at any place in Oxnard’s complaint. The
issues to be decided in a case are framed by the pleadings, and Oxnard simply did not put
a taking claim at issue.
II. The Government Tort Claims Act
We also summarily reject Oxnard’s various arguments concerning the requirement
for filing a damages claim under the Government Tort Claims Act (see Gov. Code, § 900
et seq.) as to its causes of action for damages based on alleged violations of the state
constitution. As one example, Oxnard argues that its “causes of action based on state law
have not yet accrued against the City . . . .”
10
We agree with the City that it is an “idle debate” to look at any issue associated
with the Government Tort Claim Act because California simply does not recognize a
common law cause of action for damages against a government entity based on violations
of the state constitution, nor is there a state statutorily created cause of action for damages
analogous to 42 U.S.C. section 1983 for alleged violations of the state constitution.
(See generally, Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300,
307-329.) Accordingly, the judgment in favor of the City is not subject to reversal as to
Oxnard’s fourth, fifth and sixth causes of action based on alleged violations of the state
constitution insofar as Oxnard seeks damages for the alleged state constitutional wrong.
We will not address Oxnard’s claims for injunctive relief under the state
constitution because the evidence in the trial record shows without any dispute that
Oxnard closed Babes and Beers’ long before Oxnard filed its current lawsuit. As a result,
there never was any meaningful form of injunctive relief to be fashioned in Oxnard’s case
based on alleged violations of the state constitution.
III. Oxnard Waived its Argument That its Constitutional Right to Freedom of
Speech was Violated
Oxnard’s opening brief contains no argument challenging the trial court’s ruling
on the City’s motion for summary adjudication as to Oxnard’s first cause of action for
violation of its federal constitutional right to freedom of speech. As a result, the
argument is waived. (Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1074 [when appellant asserts a point but fails to support it with reasoned argument
and authority, an appellate court may considered it waived.].) 10
10
The table of contents in Oxnard’s reply brief indicates there would be a freedom of
speech argument presented in the reply brief, but the actual text of the brief contains no
such argument. In any event, it is well-settled that points raised for the first time in a
reply brief will not be considered under good cause is shown. (See, e.g., Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 65.)
11
Further, as noted above, Oxnard’s appendix does not contain any papers
associated with the City’s motion or the trial court’s order. Appellant bears the burden of
overcoming the presumption that the judgment is correct by presenting an adequate
appellate record that demonstrates error. Failure to provide an adequate record on an
issue mandates that we find against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281,
1295.) For this reason also, we consider any claim of error to have been waived.
IV. There Was No Violation of Oxnard’s Federal Constitutional Right to
Substantive Due Process
As we understand Oxnard’s argument on appeal, it contends that the trial court
erred in entering judgment in favor of the City because the record supports only one
conclusion -- that the City violated Oxnard’s right to substantive due process under the
federal constitution by requiring it to obtain a CUP. Oxnard’s theory is that certain
injunctive orders issued by the LASC in 2007 in the underlying case involving The
Frisky Kitty authorized a bikini bar to be operated at the Property, whomsoever the
operator of the bikini bar may be, and whenever those operations commenced. Oxnard
basically argues that the LASC’s 2007 injunctive orders included a judicial declaration of
a land use right to operate a bikini bar with alcohol service at the Property which stayed
with the Property, without respect to any change in circumstances in ownership or timing.
It might also be said that Oxnard contends it had some form of “grandfathered” zoning
right to operate a bikini bar with alcohol service. We find no error.
Oxnard alleged a cause of action for damages and injunctive relief against the City
under 42 U.S.C. Section 1983, based on a claim that the City violated the company’s
constitutionally protected right to “due process.” We have assumed for purposes of
discussion that the pleading embodied only a claim that the manner in which the City
addressed the CUP issue violated Oxnard’s right to substantive due process. We take
this path, in part, based on Oxnard’s arguments in its briefs on appeal. With this
framework in place, we address the overriding issue whether the trial court erred in
deciding Oxnard’s substantive due process claim against Oxnard.
12
To establish an alleged violation of substantive due process, a plaintiff must prove
an injury caused by “government power . . . being used for purposes of oppression, or
abuse of government power that shocks the conscience, or action that is legally irrational
in that it is not sufficiently keyed to any legitimate state interests.” (See Stubblefield
Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 709-710, internal
citations and quotations omitted.) Thus, “[t]ypical land use disputes involving alleged
procedural irregularities, violations of state law, and unfairness ordinarily do not
implicate substantive due process. . . . Even where [government] officials have allegedly
violated state law or administrative procedures, such violations do not ordinarily rise to
the level of a . . . deprivation [of the constitutional right to substantive due process].
. . . The doctrine of substantive due process ‘does not protect individuals from all
[governmental] actions that infringe liberty or injury property in violation of some law.”
(Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 856,
internal citations and quotations omitted.)
The trial record discloses no substantial evidence supporting a judgment on
Oxnard’s claim that its right to substantive due process was violated by the City’s
issuance the Order to Comply – i.e., by requiring the business to obtain a CUP to sell
alcoholic beverages. Oxnard contends that requiring it to obtain a CUP, the City
contravened the judgment in the earlier case involving The Frisky Kitty, and reneged on a
representation by a City employee, and otherwise wrongfully revoked a grandfathered
right to sell alcohol at the Property without the need for a CUP, all of which rendered the
City’s CUP order erroneous. Even assuming that the City’s order to require a CUP was
issued in error, it did not amount to an exercise of government power being used for
purposes of oppression, an abuse of government power that shocks the conscience, or an
action that was legally irrational in that it was not sufficiently keyed to any legitimate
state interests. LAMC, Article 2, section 12.24-Q states that a CUP is required when a
conditional use has been discontinued for a period of one year. Here, it is undisputed that
the service of alcohol is, since 1977, a conditional use, and that such a use was
13
discontinued for far longer than one year when Oxnard started its efforts to open its bikini
bar.
This brings us to the fatal flaw in Oxnard’s case –– that they did not and could not
prove a deprivation of any cognizable protected interest. The adjudication of factual and
legal issues by the zoning administrator became final when Oxnard failed to seek further
review, including a petition for writ of administrative mandate seeking reversal of the
zoning administrator’s decision. The zoning administrator determined that the LAMC
required Oxnard to obtain a CUP to serve alcoholic beverages because service of alcohol
had been discontinued more than one year earlier. Unreviewed final administrative
decisions are entitled to res judicata and collateral estoppel effect in actions under 42
U.S.C. §1983. (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 645-
650; Jamieson v. City Council of the City of Carpinteria (2012) 204 Cal.App.4th 755,
760-761.) The City’s decision to require Oxnard to obtain a CUP did not have the result
of depriving Oxnard of any cognizable right or interest because it had been determined ––
well before Oxnard filed its court action –– that Oxnard had no right or interest to serve
alcohol without a CUP. Moreover, it is factually undisputed that alcohol service at the
Property had ceased for more than one year prior to Oxnard’s attempts to open a bikini
bar at the Property, so it can be said without dispute that a CUP was required even if the
zoning administrator’s decision is ignored.
To avoid this result, Oxnard argues that it had a right to operate a bikini bar and
serve alcohol, without a new CUP, because the 2007 injunctive orders issued by the
LASC declared that it that it had such a right. Specifically, Oxnard argues the LASC’s
2007 injunctive orders adjudicated “the right of occupants of the Property to operate as a
‘bikini bar,’” that the LASC’s 2007 decision should have been given res judicata effect
by the City before it required Oxnard to obtain a CUP in 2009. Further, that the City
effectively “overruled” the LASC’s 2007 decision by requiring Oxnard to obtain a CUP
in 2009. We are not persuaded for several reasons.
14
First, the only fact firmly established by the record about the LASC’s 2007
decision in The Frisky Kitty case is that the LASC issued an injunction against Dino’s
from operating a nude adult cabaret. We see nothing in the record to support a
conclusion that in 2007, the LASC did, or even could have, issued an order giving any
and every “occupant” of the Property, at any and for all time, a right to operate a bikini
bar with alcohol service at the Property.
Second, we reject Oxnard’s theory that it had a right to operate a bikini bar that
serves alcohol without the need for obtaining a CUP because a City employee in the
City’s Department of Building and Safety, Richard Kussman, represented to Oxnard that
it had such a right when he signed off on the “Zoning and Use Clearance for Police
Permit”. Assuming the evidence established that Kussman made such a representation to
Oxnard, its arguments do not show that Kussman could bind the City to a position that
contravened the LAMC’s requirement that a new CUP must be obtained when a prior
approved use expired by non-use.
Third, we do not accept Oxnard’s argument that it possessed an immutable,
grandfathered right at all relevant times to operate a business that served alcohol at the
Property. The evidence in the record, even when construed in Oxnard’s favor in
contravention of the usual standard on appeal, shows that Bronson had a right to continue
serving alcohol at the property after 1977 when the City adopted its conditional use
ordinance for alcohol because he was serving alcohol before the ordinance was adopted.
Assuming that Bronson could have and did in fact convey his right to serve alcohol to
Parnes, and that Parnes could have and did in fact convey his right to serve alcohol to
Dino’s, the City did not act oppressively when it deemed the right to serve alcohol had
been terminated or was extinguished when Dino’s stopped serving alcohol for a number
of years. (See LAMC § 12.24-Q.) The City then issued an Order to Comply, and
provided Oxnard an administrative hearing on the issue. Oxnard did not prevail at that
administrative hearing, and did not challenge the administrative decision. Accordingly,
its attempt to re-assert a right to serve alcohol without obtaining a CUP was foreclosed in
its current court action.
15
Finally, we find misplaced Oxnard’s argument that it was not required to pursue a
petition for writ of administrative mandate as a pre-requisite to filing, and winning, a
cause of action under 42 U.S.C. Section 1983. Oxnard appears to miss the legal
significance of its failure to pursue administrative remedies. Neither the City, in
defending Oxnard’s court case, nor the trial court, in deciding the case in favor of the
City, took the position that there was a “failure to exhaust administrative remedies” bar
that operated to preclude Oxnard from bringing its court case. Rather, what occurred in
Oxnard’s case is that the City argued, and the trial court found, there was a collateral
estoppel effect as a result of the zoning administrator’s findings and decision in October
2009, which Oxnard left undisturbed when it walked away from any further
administrative proceedings. In short, there was a plain and unchallenged administrative
determination that Oxnard needed to obtain a CUP to serve alcohol well before Oxnard
filed a court case alleging that it did not need a CUP to serve alcohol. We need not and
do not speculate about what may have occurred had Oxnard promptly filed a court action
to enjoin the City from enforcing its Order to Comply, prior to the administrative
proceedings. What we can say is that by pursuing an administrative appeal and seeking
an administrative decision from the zoning administrator, and then letting that decision
stand, the administrative decision thereafter had collateral estoppel consequences in
Oxnard’s subsequent court action.
V. Oxnard Waived its Argument That There Was a Violation of its Federal
Constitutional Right to Equal Protection Under the Law
Oxnard’s opening brief on appeal offers no meaningful argument as to why
judgment in favor of the City on the business’s claim for violation of its constitutional
right to equal protection is incorrect. Accordingly, we deem the claim to be abandoned.
(Salas v. Department of Transportation, supra, 198 Cal.App.4th at p. 1074 [when
appellant asserts a point but fails to support it with reasoned argument and authority, an
appellate court may considered it waived.].)
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DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
BIGELOW, P.J.
We concur:
RUBIN, J.
GRIMES, J.
17