Judge: Curtis A. Kin, Case: 23STCP04438, Date: 2025-02-11 Tentative Ruling

Case Number: 23STCP04438    Hearing Date: February 11, 2025    Dept: 86

Petitioners Chaar, Inc. and 7-Eleven, Inc. petition for a writ of mandate directing respondents City of Los Angeles and Los Angeles City Council to set aside the administrative decision deeming petitioner’s 7-Eleven market to be a public nuisance, or alternatively, to void specific conditions set forth in the decision.

I.       Factual Background

            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.)[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; 17-AR 3553.)[2]

            The Market is a tenant in a one-story commercial building. (17-AR 3553.) The other tenants of the building are a donut shop and a laundromat. (17-AR 3553.) Prior to the administrative decision at issue here, the Market operated 24 hours daily. (Pet. ¶ 12; 17-AR 3553.) The donut shop operates from 5:00 a.m. to 5:00 p.m. on Monday through Friday and from 6:00 a.m. to 2:00 p.m. on Saturday and Sunday. (17-AR 3553.) The laundromat operates from 6:00 a.m. to 10:00 p.m. daily. (17-AR 3553.) The adjacent property to the west is a three-story LGBT youth housing building. (17-AR 3554.) The adjacent property to the east and across Las Palmas Avenue is a seven-story residential apartment building known as AVA Hollywood. (17-AR 3554, 3575.)

            On May 29, 2020, respondent City of Los Angeles (“City”) initiated a nuisance abatement action against the Market. (Pet. ¶ 13.)

            On June 10, 2020, petitioners submitted requests under the California Public Records Act (“CPRA”) to obtain information contained in certain police reports. (Pet. ¶ 15.) On January 27, 2021, petitioners filed a petition for writ of mandate to obtain the information sought. (Pet. ¶ 16.) On October 29, 2021, after having obtained the information sought, petitioners dismissed their petition. (Pet. ¶ 17.)

            On February 15, 2022, the Zoning Administrator (“ZA”) conducted a public hearing in the nuisance abatement action. (17-AR 3552.) The ZA took the case under advisement and left the record open for further comment until December 15, 2022. (17-AR 3600.) While the record was left open, on May 5, 2022, a staff investigator conducted a field investigation, during which the investigator conducted site visits for twelve businesses, including nearby 7-Elevens and liquor stores, between 11:00 a.m. and 1:00 p.m. (Pet. ¶ 19; 17-AR 3557-59.) During the site visits, the investigator asked questions concerning hours of operation, on-site security personnel and their working hours, and the type of active liquor license maintained by the business. (7-AR 3557-59.)

            Twice after the hearing—on July 25, 2022, and December 7, 2022—petitioner’s counsel reviewed the entire case file concerning the subject 7-Eleven. (12-AR 2613 [Koslin Decl. ¶ 4]; Pet. ¶¶ 22, 24.) The May 5, 2022 field investigation was not contained in the case file. (12-AR 2613 [Koslin Decl. ¶ 6(a)]; Pet. ¶¶ 22, 24.)

            On May 27, 2022 and July 20, 2022, petitioners submitted additional CPRA requests seeking various information contained in police reports. (Pet. ¶¶ 20, 21.) On September 22, 2022, petitioners filed a second petition for writ of mandate to obtain the information sought in the May 27, 2022 and July 20, 2022 CPRA requests. (Pet. ¶ 23.) On March 22, 2023, after having obtained the information sought, petitioners dismissed their petition. (Pet. ¶ 28.)

            On March 7, 2023, the ZA issued the Decision in the nuisance abatement action. (17-AR 3542-3615.) The Decision described the nuisance activities that occurred at the Market. Between March 17, 2017, and November 1, 2018, the Los Angeles Police Department (“LAPD”) Arrest Summary Report detailed twelve (12) arrest charges for the Market. (17-AR 3600, 3607.) The arrests were for stolen property, narcotics, driving under the influence, assault, weapons charges, vehicle theft, robbery, vandalism, larceny, and drunkenness. (17-AR 3607.) According to the LAPD Crime Summary Report, from January 2017 to July 2019, 36 crimes occurred at the Market, including verbal disputes, assault, brandishing, stabbing, theft, threats to kill, vandalism, and robbery. (17-AR 3600, 3607; 1-AR 58-68.) The Decision indicated that many of the crimes occurred between 11:30 p.m. and 5:00 a.m. (17-AR 3605; see also 1-AR 58-68 [23 out of 36 crimes occurred between 11:30 p.m. and 5:00 a.m., highlighted in green].) Further, between January 1, 2017, and July 30, 2019, 402 Calls for Service were submitted for the Market. (17-AR 3607.) During the hearing, Detective Benjamin Thompson of the LAPD testified that, as compared to other 7-Elevens and other liquor stores in Hollywood, the subject Market had an inordinate number of crime reports and Calls for Service. (17-AR 3601, 3609.) The Hollywood Media Business Improvement District (“BID”), in which the Market is located, and adjacent property owners have also complained about the crime, loitering, and trash coming from the Market. (17-AR 3611.) The Market was determined to be a public nuisance. (17-AR 3601.)

The Decision also described the May 5, 2022 field investigation that had not been disclosed to petitioners. (17-AR 3557-59.) The Decision listed seven 7-Elevens that the staff investigator visited, five of which operated 24 hours. (17-AR 3558.) The Decision also stated that out of the twelve businesses visited by the field investigator, “the subject 7-Eleven is the only business that operates 24 hours.” (17-AR 3559.)

The Decision ultimately stated that it would require “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 as follows.” (17-AR 3543.)  The Decision imposed several terms and conditions, including Condition 14, which limits operations to 5:00 a.m. through 11:00 p.m. daily. (17-AR 3545.) The Decision also imposes conditions regarding the use of the property, the premises, or the site, including 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.

(17-AR 3543, 3545, 3546.)

            On March 17, 2023, petitioners filed an appeal to respondent Los Angeles City Council. (12-AR 2535-37, 2613-14.) Petitioners asserted that the field investigation was not in the public record, that they did not have notice and opportunity to respond to the field investigation, and that the ZA and/or City personnel relied on the field investigation in the Decision. (12-AR 2535-36, 12-AR 2613 [Koslin Decl. ¶¶ 4, 6(a)].)

On September 19, 2023, the City Council upheld the Decision. (20-AR 4354, 4482-83.) On September 27, 2023, the Mayor approved the Decision. (20-AR 4354.)

II.      Procedural History

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 February 15, 2024, the Court granted in part petitioners’ motion to stay execution of the Decision. The Decision was stayed to the extent that it imposes conditions pertaining to real property located at 6703, 6705, or 6707 West Santa Monica Boulevard.

            On December 17, 2024, petitioners filed an opening brief.[3] On November 8, 2024, respondent City of Los Angeles, which includes respondent Los Angeles City Council, filed an opposition. On December 4, 2024, petitioners filed a reply. 

III.     Legal Standard

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without, or in excess of, jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

            Petitioners contend that they were denied a fair trial and that the City proceeded without and in excess of jurisdiction. With respect to whether petitioners were provided with a fair trial, the procedural fairness of an administrative hearing is a question of law and accordingly reviewed de novo. (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482 [fair trial].) The same applies with respect to whether an agency acted in excess of its jurisdiction. (PG&E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1194.)

IV.     Analysis

A.           Evidentiary Matters

7-Eleven’s request to take judicial notice of Exhibit 1, the Verified Petition for Writ of Mandate, is GRANTED, pursuant to Evidence Code § 452(d). (See also section I, fn. 1, supra [unanswered allegations deemed admitted].)  7-Eleven’s request to take judicial notice of Exhibits 2 and 3, sections of the Los Angeles Municipal Code, is GRANTED, pursuant to Evidence Code § 452(b).  7-Eleven’s request to take judicial notice of Exhibit 4, the Court’s minute order and ruling on the motion to stay in the instant matter, is GRANTED, pursuant to Evidence Code § 452(d).

The City’s request to take judicial notice of Exhibits 1 through 3, sections of the Los Angeles Municipal Code, is GRANTED, pursuant to Evidence Code § 452(b). The City’s evidentiary objections are OVERRULED.

B.           Field Investigation

Petitioners maintain that they were denied a fair trial and due process because the City relied on the May 5, 2022 field investigation in their Decision, the results of which petitioners were not provided before the Decision was issued.[4]

The City does not dispute that the field investigation was not provided to petitioners. Rather, the City argues that the field investigation only constitutes a due process or fair hearing violation if the decisionmaker relied on the investigation in issuing the Decision. “[A] right to a hearing is violated if an administrative tribunal relies on evidence outside the record in reaching its decision.” (Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1467, citing English v. City of Long Beach (1950) 35 Cal.2d 155, 158-59 and La Prade v. Department of Water & Power (1945) 27 Cal.2d 47, 51-52.) This is true even if there is evidence in the record that supports the decision. (English, 35 Cal.2d at 158.)[5]

In the Decision, the section entitled “Findings of Fact” contained several subsections, including “Nuisance Abatement Authority – Section 12.27.1 of the Los Angeles Municipal Code,” “Background,” “Nuisance Investigation,” “Field Investigation,” “Written Communications Received Prior to Public Hearing,” “Public Hearing,” and “Written Communications Received Subsequent to Public Hearing.”[6] (17-AR 3552-3600.) The subsection at issue here is “Field Investigation,” which explains that, on May 5, 2022, a staff investigator visited twelve businesses near the Market, including liquor stores and other 7-Elevens. (17-AR 3557.) The three-page subsection sets forth two tables of information concerning the other businesses, including the hours of operation; hours that security guards, if any, are present; and the type of active liquor license maintained by the businesses. (17-AR 3558-59.) After the two information tables, the subsection ends with the following paragraph: “Out of the twelve businesses visited, six businesses did not have on-site security personnel. The Pavilions located at 727 Vine Street was the only business which had a part time designated security guard for the interior of the store only. For the remaining businesses, rover and rotating security services are provided for the commercial plaza and associate parking lots. However, the subject 7-Eleven is the only business that operates 24 hours.” (17-AR 3559.)

Although the Decision describes the “Field Investigation” in its “Findings of Fact” section, it does not mention or reference the field investigation in the “Findings and Discussion” section that follows the “Findings of Fact” section. (17-AR 3600-12.) In the “Findings and Discussion” section, the ZA found that the “impacts caused by the operator [Market] constitute a public nuisance and have led to the subject hearing for nuisance abatement.” (17-AR 3601.) As support for the finding that the Market was a public nuisance, the ZA relied on the “consistent police enforcement” required by the Market, as evidenced by LAPD arrest reports, investigative reports, and crime analysis documentation. (17-AR 3600 [26 incidents between 1/10/17 and 7/14/19, 12 arrest charges between 3/17/17 and 11/1/18, 36 incidents between 7/17/18 and 9/8/18, and 402 calls for service between 1/1/17 and 7/30/19]; see also 17-AR 3605-07 [detail concerning arrests, incidents, and crimes].) The ZA also explained that, according to LAPD, “the criminal and nuisance activities at the subject location far exceed the nuisance activities and incidents of crime that are reportedly occurring at or in relation to other 7-Eleven operations doing business in the Hollywood area.” (17-AR 3600; see also 17-AR 3608-10 [LAPD testimony].) The Hollywood Media District BID and adjacent AVA Hollywood residential community also provided support for imposing conditions on the Market’s operation. (17-AR 3572-73, 3575, 3600-01.) The ZA thus concluded: “Based on the evidence in the record, it is determined that the impacts caused by the operator constitute a public nuisance and have led to the subject hearing for nuisance abatement.” (17-AR 3601.)

            Based on the foregoing, it is apparent that the crux of the instant matter is whether 7-Eleven’s operation of the Market constituted a public nuisance. The information concerning other businesses contained in the Field Investigation subsection has nothing to do with the operation of the Market and whether its activities constitute a nuisance. (Cf. Pinheiro, 245 Cal.App.4th at 1469 [extra-record evidence was used to undermine credibility of petitioner, which was the “the crux of the case” for the administrative decision].) It therefore cannot be said that the ZA relied on the field investigation in deeming the Market a public nuisance.

             In the reply, petitioners suggest the ZA must have relied upon the field investigation in connection with imposing Condition 14, which restricts the operating hours of the Market from 5:00 a.m. to 11:00 p.m. daily. (Reply at 8, citing 17-AR 3613.) It is true the ZA stated that the purpose of Condition 14 is to restrict the Market from “operat[ing] into late nights causing nuisance activities without severely limiting the convenience store’s operation.” (17-AR 3613.) Thus, arguably, consideration of the operating hours of nearby businesses might bear on how to restrict late night hours of the Market without “severely limiting” its operations. But nothing about the Decision remotely suggests that is what occurred.[7]  To begin with, Condition 14 does not state that the determination of restricted hours of operation was in any way based on the operating hours of other businesses.  To the contrary, the Decision sets forth in the “Findings and Discussion” other grounds for the chosen restriction on hours: “The Zoning Administrator has imposed conditions to mitigate all issues raised to prevent crimes, loitering, and trash, and to better manage alcohol sales by imposing conditions on reduced hours…. Conditions imposed are reasonable and fair, and many condition[s] are standard Conditional Use conditions imposed to similar alcohol-sale businesses.” (17-AR 3604.) The Decision also states: “The collective LAPD reports have concluded that crimes occur at all hours of the day, but with many of the incidents occurring between 11:30 p.m. and 5:00 a.m., thus, the Zoning Administrator has limited the hours of operation from 5:00 a.m. to 11:00 p.m. This hour of operation is consistent with the LAPD report conclusion, the closing time at 11:00 p.m. is consistent with the Commercial Corner Development (CCD) regulation requiring a 11:00 p.m. closing time pursuant to LAMC Sections 12.03, 12.22A23 and 12.24W27 on CCD, without any hindering to the business.” (17-AR 3605.)

For the foregoing reasons, even though the field investigation may be extra-record evidence not provided to petitioners, reversal of the Decision is not warranted because the ZA did not rely on the May 5, 2022 field investigation to deem the Market a public nuisance or to restrict the operating hours of the Market.

C.           Discovery

Petitioners also contend that they were deprived of due process and a fair trial because the City did not provide them with the field investigation report prepared by the staff investigator in response to requests for production. (SAR 1-4.) On March 24, 2023, after the ZA issued the March 7, 2023 Decision, petitioners served the City with Requests for Production of Documents, several of which encompass the field investigation report prepared by the staff investigator. (12-AR 2615-22 [Nos. 1-4 and 14], SAR 4 [comments from Iris Wan].) The City refused to provide the requested records. (15-AR 3386.)

            “[B]ecause the due process clause ensures that an administrative proceeding will be conducted fairly, discovery must be granted if in the particular situation a refusal to do so would so prejudice a party as to deny him due process.” (Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 302.) As discussed above, the Court does not find that the ZA relied on the field investigation to determine that the Market was a public nuisance or to determine how to restrict the Market’s operating hours at night. Accordingly, there is no prejudice.  Even if petitioners had obtained the field investigation report and had an opportunity to respond to it, petitioners fail to show how the Decision, including the finding of a public nuisance and the conditions imposed in the Decision, would have been different. Reversal of the Decision on this basis is therefore unwarranted.

D.           Conditions Precedent

Petitioners contend that the City violated LAMC § 12.27.1(C)(2) by failing to make findings concerning the prior governmental efforts to eliminate the nuisance or 7-Eleven’s willingness or ability to eliminate the nuisance.

LAMC § 12.27.1(C)(2) states: “The Director may require the discontinuance or revocation of a land use or discretionary zoning approval only upon finding that: [¶] (a) prior governmental efforts to cause the owner or operator to eliminate the problems associated with the land use or discretionary zoning approval have failed (examples include formal action, such as citations, orders or hearings by the Police Department, Department of Building and Safety, the Director, a Zoning  Administrator, the City Planning Commission, or any other governmental agency); and [¶] (b) the owner or operator has failed to demonstrate, to the satisfaction of the Director, the willingness or ability to eliminate the problems associated with the land use or discretionary zoning approval.” (Pet. RJN Ex. 3.)

The Decision did not discontinue or revoke a land use. Rather, it imposed conditions on the land use, namely, the operation of the Market. The ZA restricted the Market from operating between 11:00 p.m. to 5:00 a.m. to abate a nuisance. A distinction exists between a use and nuisance abatement. “[E]ven a use expressly allowed in a valid use permit is still subject to a nuisance abatement action if the business is operated in such a way as to be injurious to persons living and working in the area.” (Suzuki v. City of Los Angeles (1996) 44 Cal.App.4th 263, 278.) Limiting hours of operation is a standard condition to abate a nuisance. (Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1278, 1284 [upholding restriction on operating hours].)

Petitioners argue that operating 24 hours is a legal, non-conforming use, as the Market operated since 1978 before Conditional Use Permits for late night hours were required. (Opening Br. at 16:6-14; 17-AR 3553-54.) Even if that is true, petitioners cite no meaningful authority for the proposition that 24-hour operation of a business constitutes a land use, as opposed to operating a business in general. Under statute, cities have the power to regulate the “intensity of land use” by ordinance. (Gov. Code § 65850(a)(4).) Regulation of operating hours governs how often land is used, i.e., the intensity of land use, but does not constitute the land use itself. Because 7-Eleven is still able to operate the Market under the Decision, albeit within specified hours, the Decision serves to modify, rather than discontinue or revoke a land use. (See LAMC § 12.27.1(C) [“Director may require the modification, discontinuance or revocation of any land use”].) Accordingly, the ZA was not required to make the findings required under LAMC § 12.27.1(C)(2)(a) and (b).

E.           Overbreadth of Decision

Lastly, petitioners argue that the ZA acted in excess of jurisdiction by imposing conditions that affect the operation of properties that petitioners do not control. The Court agrees.

The Decision requires modification of operations at 7-Eleven, purportedly located at 6701, 6703, 6705, and 6707 West Santa Monica Boulevard. (17-AR 3543; see also 17-AR 3542 [describing matter as “Imposition of Conditions” at 6701, 6703, 6705, and 6707 West Santa Monica Boulevard]; 17-AR 3602 [“The subject 7-Eleven location is located within a one-story multi-tenant commercial building, at 6701, 6703, 6705, and 6707 West Santa Monica Boulevard….”]; 17-AR 3615 [“Failure to comply with the Conditions herein will put the property at risk of revocation and the issue of an order directing the discontinuance of the use as a convenience store located at 6701, 6703, 6705, and 6707 West Santa Monica Boulevard”].) However, it is undisputed that 7-Eleven is a tenant of only 6701 W. Santa Monica Blvd. The neighboring donut shop occupies 6705 W. Santa Monica Blvd. The neighboring laundromat occupies 6707 W. Santa Monica Blvd. (17-AR 3553.)

The City contends that no reasonable reading of the Decision can require petitioners to control how the donut shop and laundromat operate. The Court disagrees. Some of the conditions might reasonably 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.” (17-AR 3545.) Because the Decision lists 6703, 6705, and 6707 West Santa Monica Boulevard as subject to its required conditions, 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.

            Accordingly, the Court will issue a writ of mandate setting aside the Decision only to the extent that it imposes conditions pertaining to real property located at 6703, 6705, and 6707 West Santa Monica Boulevard.

V.      Conclusion

          The petition is GRANTED IN PART. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.