Judge Curtis A. Kin, Case Number: 23STCP04438, Date: 2024-02-15 Tentative Ruling

Petitioners Chaar, Inc. and 7-Eleven, Inc. move for an order staying the Decision issued with respect to the nuisance abatement action concerning a 7-Eleven market.

Petitioner Chaar, Inc. (“Chaar”) operates the 7-Eleven market located at 6701 W. Santa Monica Boulevard in Los Angeles (“Market”) as a franchisee. (Pet. ¶ 1.) Petitioner 7-Eleven, Inc. is the franchisor. (Pet. ¶ 2.) Petitioners Chaar, Inc. and 7-Eleven, Inc. (collectively, “7-Eleven”) are co-licensees on the Type 20 (beer and wine) license issued by the California Department of Alcoholic Beverage Control (“ABC”) issued to the Market. (Pet. ¶¶ 1, 2.)

The Market is a tenant in a one-story commercial building. (City Ex. 13 at 272.) The other tenants of the building are a donut shop and a laundromat. Prior to the administrative decision at issue, the Market operated 24 hours daily. (Pet. ¶ 12; City Ex. 13 at 272.) The donut shop operates 5:00 a.m. to 5:00 p.m. on Monday through Friday and 6:00 a.m. to 2:00 p.m. on Saturday and Sunday. (City Ex. 13 at 272.) The laundromat operates 6:00 a.m. to 10:00 p.m. daily. (City Ex. 13 at 272.) The adjacent property to the west is a three-story LGBT youth and senior housing building. (City Ex. 13 at 273; City Ex. 7 at 135.) The adjacent property to the east and across Las Palmas Avenue is a seven-story residential apartment building known as AVA Hollywood. (City Ex. 13 at 273, 294.)

On May 29, 2020, respondent City of Los Angeles (“City”) initiated a nuisance abatement action against the Market. (Pet. ¶ 13.) On February 15, 2022, an Associate Zoning Administrator (“AZA”) conducted a public hearing in the nuisance abatement action. (Pet. ¶ 18.) The AZA took the case under advisement and left the record open for further comment until December 15, 2022. (Pet. ¶18.)

While the record was left open, a staff investigator conducted a field investigation, whereby the investigator conducted site visits to twelve businesses, including nearby 7-Elevens and liquor stores, between 11:00 a.m. and 1:00 p.m. (Pet. ¶ 19; Evans Decl. ¶ 4 & Ex. 2 at 16-18.) During the site visits, the investigator asked questions relating to hours of operation, on-site security personnel and their working hours, and the type of active liquor license maintained by the business. (Evans Decl. ¶ 4 & Ex. 2 at 16-18.) Petitioners contend, and the City does not dispute, that the field investigation was not disclosed to petitioners before the AZA issued its determination in the nuisance abatement action. (Pet. ¶ 20; Opp. at 14:4-5.)

On March 7, 2023, the AZA issued the Decision in the nuisance abatement action. (Evans Decl. ¶ 4 & Ex. 2.) The Market was determined to be a public nuisance. (Evans Decl. Ex. 2 at 60.) Under the Decision, the following was required:

the modification of the operation a convenience store, known as 7-Eleven, located at 6701, 6703, 6705 and 6707 West Santa Monica Boulevard, in order to mitigate adverse impacts caused by the said operation and any potential impacts caused by any future operation of the use ….

Conditions on the Market were imposed, including limiting the operations to 5:00 a.m. through 11:00 p.m. daily. (Evans Decl. Ex 2 at 4.) The Decision also imposes conditions regarding the use of the property, the premises, or the site, as referenced by the following examples:

Condition 5: All graffiti on the site shall be removed and painted over to match the color of the surface to which it is applied with anti-graffiti paint within 24 hours of its occurrence.

Condition 18: The business operator shall not allow access onto the property by persons known to them to be prostitutes, pimps, prostitution customers, parolees with prior narcotic or prostitution offenses, narcotics users, narcotics possessors, narcotics sellers or manufacturers of illegal controlled substances….

Condition 20(i): The security guard shall discourage and dissuade patrons who remain on the premises for more than 20 minutes to leave.

(Evans Decl. Ex. 2 at 2, 4, 5.) The Decision also cited the field investigation which was not disclosed to petitioners. (Evans Decl. Ex. 2 at 16-18.)

On March 17, 2023, petitioners filed an appeal to respondent Los Angeles City Council. (Pet. ¶ 27.) On September 19, 2023, the City Council upheld the Decision. (Pet. ¶ 29.) On September 27, 2023, the Mayor approved the Decision. (Pet. ¶ 29.)

On December 8, 2023, petitioners filed a Verified Petition for Writ of Mandate Pursuant to C.C.P. 1094.5. No Answer has been filed.

On January 5, 2024, petitioners filed the instant motion. On January 30, 2024, respondent City of Los Angeles, which includes respondent Los Angeles City Council, filed an opposition. On February 7, 2024, petitioners filed a reply.

CCP § 1094.5 provides two different standards for a stay. Section 1094.5(h) applies to administrative orders of any licensed hospital or certain state agencies and requires the petitioner to show that (1) “the public interest will not suffer” and (2) the “licensed hospital or agency is unlikely to prevail ultimately on the merits.” (See also Medical Bd. of California v. Sup. Ct. (1991) 227 Cal.App.3d 1458, 1461.) Because this action is against the City of Los Angeles, section 1094.5(g) applies here. CCP § 1094.5(g) provides, in pertinent part:

(g) Except as provided in subdivision (h), the court in which proceedings under this section are instituted may stay the operation of the administrative order or decision pending the judgment of the court, or until the filing of a notice of appeal from the judgment or until the expiration of the time for filing the notice, whichever occurs first. However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest.

The administrative stay provision of Section 1094.5(g) “requires the superior court to weigh the public interest in each individual case.” (Sterling v. Santa Monica Rent Control Bd. (1985) 168 Cal.App.3d 176, 187.)

7-Eleven’s request to take judicial notice of Exhibits 1 and 2, sections of the Los Angeles Municipal Code, is GRANTED, pursuant to Evidence Code § 452(b).

The City’s request to take judicial notice of Exhibits 1 through 16, portions of the administrative record, is GRANTED. (Evid. Code § 452(h); Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1190 [taking judicial notice of administrative record submitted before trial on petition for writ of mandate].)

The City’s request to take judicial notice of Exhibits 17 through 19, sections of the Los Angeles Municipal Code, is GRANTED, pursuant to Evidence Code § 452(b).

The Court first addresses whether the public interest would suffer with a stay of the Decision, as no stay “shall be imposed or continued if the court is satisfied that it is against the public interest.” (CCP § 1094.5(g).)

7-Eleven contends that it has voluntarily imposed security measures and property improvements starting in August 2020, including hiring a nighttime security guard, fencing off a portion of the parking lot in front of the commercial building to restrict vehicle access, checking the exterior of the building every hour to pick up litter and prevent loitering and panhandling, installing two security cameras and additional exterior lighting for better nighttime visibility, installing a security camera at the front of the premises to help the clerks monitor the exterior at night, putting up signs to discourage loitering, installing electronic “mag locks” to prevent persons posing a problem from entering the Market, and discontinuing the sales of malt liquor. (Evans Decl. ¶¶ 13, 14, 21 & Ex. 4; Ali Decl. ¶ 4.)

7-Eleven also relies on the testimony of Senior Lead Officer Brian White, who was the responsible person at the Los Angeles Police Department (“LAPD”) in the nuisance matter, during the public hearing on February 15, 2022. (Evans Decl. ¶¶ 9, 12 & Ex. 2 at 24.) Officer White testified that having a security guard in the parking lot in the evening helps, closing off the parking lot and putting up the fence did help, lighting in the lot is key, the mag lock can make things better, there were “[s]ome positive effects due to the changes made,” and “conditions have been effective.” (Evans Decl. ¶ 22 & Ex. 2 at 29.) Further, on January 11, 2022, when counsel for 7-Eleven consulted with Officer White regarding conditions to which it would agree to address the nuisance, conditions which were consistent with the measures it was already taking, Officer White stated that he was “good with the conditions as submitted.” (Evans Decl. ¶ 19 & Ex. 3.)

7-Eleven also contends that Calls for Service (“CFS”) to LAPD to provide police services to 7-Eleven’s premises have decreased after 7-Eleven began working with the LAPD to address the nuisance activity. (Evans Decl. ¶¶ 10, 11, 23.) After the City pointed out significant inaccuracies in 7-Eleven’s calculations presented in the motion (Opp. at 10, fn. 3; compare City Ex. 12 at 221 [letter submitted by counsel for 7-Eleven on 12/15/22] with Evans Decl. ¶ 23), 7-Eleven admitted to the inaccuracies and withdrew its reliance upon them. (Kroll Decl. ¶ 8 [“W]hen arguing the percentage declines in its Opening Brief, Petitioners withdraw those arguments”].) However, 7-Eleven maintains in reply that the monthly CFS have decreased by 69% per month from 2019 to 2022 (Kroll Decl. ¶ 9 [decrease from 13.33 CFS per month in 2019 to 4.13 CFS per month in 2022]).

To determine the effect that 7-Eleven’s measures to mitigate the nuisance on the subject premises have had on CFS, crimes reported, and arrests, the following discussion focuses on the time period after August 2020, when 7-Eleven began implementing mitigation measures.

Notably, 7-Eleven does not address comparative data presented by the City. From July 15, 2019 to February 16, 2022, when comparing the subject Market, nine other 7-Eleven markets and 20 other businesses selling alcohol, the subject Market had the second highest number of CFS (293) and third highest number of arrests (11). (City Ex. 8, Ex. 13 at 315.) As Detective Benjamin Thompson testified during the hearing:

I would request that you deny the appeal. The same activity that I observed occurring from 2017 to 2019, in terms of calls for service, crimes, arrests from the police department, is continuing to occur in alarming numbers at and around this business. I have done surveys with crime statistics from 2019 all the way up through 2022 and I’ve found that business is still connected to unusual amounts of calls for service and reported criminal activity. It’s about 100 less than it was from 2017 to 2019 but, still, it exceeds anything in the immediate area by hundreds of numbers.

(City Ex. 15 at 417-18) While the Court recognizes Officer White may have taken over for Detective Thompson as Senior Lead Officer (Evans Decl. ¶ 9), this does not invalidate Detective Thompson’s review of crime statistics and opinion concerning the nuisance activity that the Market attracts. Thus, even if the CFS have decreased from year to year, there were still a relatively high number of CFS and arrests compared to nearby businesses.

Further, according to LAPD data of the subject Market, there were 295 CFS between July 2019 to August 2022 (37 months with an average of 8.0 per month) for theft, disturbance, robbery, narcotics, injuries, assault with deadly weapons, forgery, battery, trespassing, arson, intoxication, indecent exposure, disturbance, fights, noise disturbance, burglary, intoxicated group in vehicle, and others. (City Ex. 12 at 234-49.) Of the 295 CFS, 182, i.e., 62% of the calls, were between 11:00 pm and 5:00 a.m. In addition, 145 of the 295 CFS were between September 1, 2020 and August 15, 2022, which is after the August 2020 mitigation measures. For that period of 23.5 months, there was an average of 6.2 CFS per month. Further, 83 of the 145 CFS after August 2020 were between 11:00 p.m. and 5 a.m., which constitutes 57% of the CFS. (Blau Dec. ¶¶ 8-12.)

Based on the foregoing, even if 7-Eleven’s voluntary measures have reduced the number of CFS year-by-year, there were still a significant number of CFS after August 2020 and between the hours of 11:00 p.m. to 5:00 a.m.—the hours when the Market is to closed under the Decision.

With respect to crimes reported, 32 crimes were reported between February 23, 2019 and March 18, 2022. (City at Ex. 12 at 251-53.) The crimes were for physical injuries to customers, punching victims, verbal disputes, robbery at gunpoint, breaking a glass panel in the door, loud music, use of lighter fluid in front of entrance in an attempt to ignite the building, and multiple thefts by individuals and multiple suspects. Of the 32 reported crimes, nine (28%) were between 11:00 p.m. and 5:00 a.m. Of note, 11 of the 32 reported crimes came after August 2020. Of those 11 crimes occurring after the mitigation measures, three (27%) were between 11:00 p.m. and 5:00 a.m. (Blau Dec. ¶¶ 13-16.)

Fourteen arrests were made between August 9, 2019 and July 12, 2022. (City Ex. 13 at 255-56.) These arrests include robbery, battery, vandalism, theft, and trespassing. Of the 14 arrests, eight occurred after August 2020. (Blau Dec. ¶¶ 17, 18.)

Thus, notwithstanding any mitigation measures instituted as of August 2020, a significant number of reported crimes and arrests continued thereafter, notably for crimes occurring between 11:00 p.m. and 5:00 a.m.—the time period the Decision addresses by requiring the Market to close.

While Officer White testified positively about 7-Eleven’s voluntary nuisance abatement measures, his comments were vague and unsupported by data. With respect to his assertion that “conditions have been effective,” in particular, it is unclear how any measures implemented by 7-Eleven have been effective in light of the foregoing data.

Moreover, as meaningful anecdotal evidence, the Hollywood Media Business Improvement District (“BID”), in which the Market is located, submitted a letter to the City on July 15, 2022, stating that, despite 7-Eleven’s claim of having employed nighttime security, “its security service conducted surveillance of the business in June 2022 and observed the same persistent issues of loitering, littering, panhandling and a consistently dirty parking lot.” (City Ex. 7 at 136.) On November 2022, the LGBT Center stated the nuisance continues and clients have been intimidated, threatened, and subjected to violence from people shopping at the 7-Eleven. (City Ex. 9.) During the public hearing, a representative from AVA Hollywood testified that issues arising from the Market have continued to grow year over year, including trespassing and crimes against property from customers of the Market. (Evans Decl. ¶ 4 & Ex. 2 at 34.)

By contrast, 7-Eleven has not presented any argument regarding how closure of the Market between 11:00 p.m. and 5:00 a.m. would harm the public interest. The record is silent as to whether the ability to access goods and services from the Market between 11:00 p.m. and 5:00 a.m. would in any way harm—or even inconvenience—the community. To the extent that the franchisee is a member of the public, Chaar asserts that the limitation of Market hours pursuant to the Decision has caused the Market to lose approximately $48,000 per month in profit in October and November 2023. (Ali Decl. ¶ 6.) Further, the Decision prohibits the Market from having an ATM. (Evans Decl. ¶ 4 & Ex. 2 at 4 [Condition 10].) Chaar contends that the ATM prohibition has caused it to lose $5,000 per month in profit. (Ali Decl. ¶¶ 6-7.) Chaar avers that the Market now operates at a loss and 8 employees could lose their jobs if it has to close the Market. (Ali Decl. ¶¶ 6-7.) The losses asserted by Chaar appear to be inflated on their face and not supported with any documentary or other evidence regarding how the purported losses were calculated and the methodology used. Indeed, the Declaration of Market operator Anil Ali was made in January 2024, offers vague and conclusory assertions of lost profits in October and November 2023, and omits and reference to operations in December 2024, thereby ignoring 33% of the Market’s operations after the Mayor approved the Decision on September 27, 2023. When this evidence of purported losses is weighed against the continuing nuisance activity arising from the Market, the interests of the residents of nearby buildings and the public in general must prevail.

Based on the foregoing, the Court finds that it would not be in the public interest to impose a wholesale stay on the Decision.[1]

7-Eleven contends that Condition 18 violates the Unruh Act because it would require 7-Eleven to discriminate against individuals who have prior criminal pasts, even if they are not being disruptive. (See Civil Code § 51; Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 840, 842 [Unruh Act’s enumerated categories are illustrative rather than restrictive and includes “categories added to the Act by judicial construction”].)

Condition 18 states: “The business operator shall not allow access onto the property by persons known to them to be prostitutes, pimps, prostitution customers, parolees with prior narcotic or prostitution offenses, narcotics users, narcotics possessors, narcotics sellers or manufacturers of illegal controlled substances.” (Evans Decl. ¶ 4 & Ex. 2 at 4.)

“[U]nder the Unruh Act entrepreneurs must generally exercise [the] legitimate interest [of protecting their enterprises from improper and disruptive behavior] directly by excluding those persons who are in fact disruptive.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 740.) The activities implicated by Condition 18 are disruptive activities. Condition 18 requires 7-Eleven to limit access to individuals known by it or its employees to conduct nuisance activity. The City does not seek to “exclude an entire class of individuals on the basis of a generalized prediction that the class ‘as a whole’ is more likely to commit misconduct than some other class of the public,” as prohibited by the Unruh Act. (Id. at 739.) If an employee of 7-Eleven has seen a particular individual using or selling narcotics or participating in prostitution at the premises, prohibition of that individual would not be based on that individual’s personal, protected characteristics, like race, sex, nationality, but because that person has committed nuisance activity before. Like a felon who is not protected by the Unruh Act (see Semler v. General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1402), past nuisance activity by a particular individual known by 7-Eleven is indicative that the individual will commit nuisance activity again.

Although the Court finds that a wholesale stay is not in the public interest, the Court finds that the conditions must be modified because they are overbroad with respect to the property, premises, and site to which they pertain. The AZA required the modification of the operation of 7-Eleven, purportedly “located at 6701, 6703, 6705, and 6707 West Santa Monica Boulevard.” (Evans Decl. ¶ 4 & Ex. 2 at 2.) However, 7-Eleven is a tenant of only 6701 W. Santa Monica Blvd. (Thomulka Decl. ¶ 3; Ali Decl. ¶ 3.) The neighboring donut shop occupies 6705 W. Santa Monica Blvd. (Thomulka Decl. ¶ 4.; Ali Decl. ¶ 3.) The neighboring laundromat occupies 6707 W. Santa Monica Blvd. (Thomulka Decl. ¶ 4; Ali Decl. ¶ 3.)

On their face, some of the conditions can be read to require 7-Eleven to manage premises over which it has no control. For example, Condition 19 states: “The business operator shall inform the Police Department immediately if any person on the property is engaging in narcotics activity, or if narcotics paraphernalia is observed on the property.” (Evans Decl. ¶ 4 & Ex. 2 at 2.) Because the AZA included 6703, 6705, and 6707 West Santa Monica Boulevard in the Decision, Condition 19 could be read to require 7-Eleven to monitor the patrons of the donut shop and laundromat, over which it has no control, for narcotics activity. The Court finds good cause to impose a stay to the extent that the Decision pertains to real property located at 6703, 6705, or 6707 West Santa Monica Boulevard. (See Webster v. Superior Court (1988) 46 Cal.3d 338, 350 [courts have discretion to determine terms and conditions of stay].)

The motion is GRANTED IN PART. The March 7, 2023 Decision at issue in the petition for writ of administrative mandate is stayed to the extent that it imposes conditions pertaining to real property located at 6703, 6705, or 6707 West Santa Monica Boulevard.

[1] Because a stay would not serve the public interest, the Court does not address 7-Eleven’s due process and fair hearing arguments, including that, before the Decision was issued, (1) the City did not disclose that it had conducted a field investigation on May 5, 2022 and (2) the City did not make any findings regarding prior governmental efforts to address the nuisance or 7-Eleven’s willingness to address the nuisance, as purportedly required under the Los Angeles Municipal Code. These issues are reserved for the trial on 7-Eleven’s petition for writ of administrative mandate.