Benetatos v. City of L.A. , 235 Cal. App. 4th 1270 ( 2015 )

Filed 4/14/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JACK BENETATOS et al., B253491
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BS141016)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert
H. O‟Brien, Judge. Affirmed.
Jeffer Mangels Butler & Mitchell, Benjamin M. Reznik, Matthew D. Hinks for
Plaintiffs and Appellants Jack Benetatos and Nick Benetatos.
Michael N. Feuer, City Attorney, Terry P. Kaufmann-Macias, Assistant City
Attorney, Amy Brothers, Deputy City Attorney for Defendant and Respondent.
INTRODUCTION
Plaintiffs and appellants Jack Benetatos and his son Nick Benetatos (plaintiffs)
own and operate Tam‟s Burgers No. 6 (Tam‟s), a fast food restaurant in Los Angeles.
They appeal from the trial court‟s denial of their petition for writ of mandate that sought
to overturn defendant and respondent City of Los Angeles‟s (City) determination that
plaintiffs operated Tam‟s in a manner that constituted a nuisance and the City‟s
imposition of conditions on the continued operation of Tam‟s. Plaintiffs argue that the de
novo standard of review applies and that the trial court erred because the conditions at
issue were caused by Tam‟s being in a high crime area. In affirming the judgment, we
hold that the substantial evidence standard of review applies and that there is substantial
evidence in support of the administrative determination that plaintiffs‟ operation of the
restaurant rendered it a nuisance.
BACKGROUND
I. The City’s Nuisance Investigation and Abatement Proceeding
Tam‟s is located at 10023 and 10027 South Figueroa Street at the intersection of
Figueroa and 101st Streets in Los Angeles. The site has a 12-space surface parking lot
and is adjacent to residential homes. The restaurant has drive-through and walk-up
windows.
By a letter dated November 23, 2011, the Los Angeles Police Department (LAPD)
informed plaintiff Jack Benetatos that due to recent complaints about Tam‟s, it had
initiated a preliminary nuisance investigation. The LAPD stated that the crime/nuisance”
issues included, but were not limited to, “pimping-prostitution, narcotics use-sales,
loitering, transients and intoxicated groups, drinking in public, graffiti and associated
trash and debris that encourage loitering.” It suggested conditions on the use of the
property to mitigate the nuisance activities.
On April 17, 2012, the Los Angeles Department of City Planning (Planning
Department) received a letter from LAPD Officer Mike Dickes concerning the abatement
of a nuisance at Tam‟s. Officer Dickes stated, “The Southeast Area has been plagued by
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this location for numerous years with the owner being uncooperative with mitigating the
nuisance at his business.” The officer provided a “brief description” of the issues with
Tam‟s as follows: “1. Extensive calls for service and crime reports at the location,
including two homicides in the last two years and a narcotics arrest involving an
employee. [¶] 2. Loitering to [sic] including transients, gang, prostitution and narcotic
offenders. [¶] 3. Building is dilapidated and lot is full of trash, debris and graffiti. [¶]
4. Owner was advised of the nuisance associated with the property and was provided
with voluntary conditions as of Dec 2011. None of which have been complied with. [¶]
5. Owner has been uncooperative and will not meet physically with officers, stating that
all criminal issues associated with the property are a police matter. . . . [¶] 6. Several
citizen declarations involving people living in the area directly affected by the nuisance
activity at the location with the file. [¶] 7. Location currently being monitored by 24
hour pole camera operated by the police department depicting the nuisance activity.”
On June 5, 2012, a Planning Department investigator visited Tam‟s and prepared a
report. The investigator reported that the site was not maintained—there was a “greaser”
in the parking lot; rubbish throughout the property; and graffiti on the cement walls,
menu signs, and building. The investigator asked the restaurant‟s manager why the
property had not been maintained. The manager explained that criminal activity had been
a problem in the area. He said that each time he painted over graffiti, new graffiti
appeared within a couple of days. At some point, the manager decided to leave the
graffiti because of the time and cost of addressing it.
In the report, the investigator stated that there had been community allegations
about, and LAPD calls for service and arrest for, “criminal homicides, pimping-
prostitution, narcotics use-sales, loitering, transients and intoxicated groups, drinking in
public, graffiti and associated trash and debris that encourage loitering. . . . These
activities are jeopardizing and/or endangering the public health and safety of persons
residing or working on the premises or in the surrounding area, thereby constituting a
public nuisance, and contributing to the deterioration of the adjacent community. The
activities occurring in and around the premises have generated numerous police
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responses thereby straining the resources of the Police Department.” Between May 1,
2009, and February 13, 2012, the LAPD made 58 service calls to Tam‟s in response to
complaints or reports. The crimes committed at Tam‟s between June 29, 2007, and
January 3, 2011, included a misdemeanor battery, drinking in public, three drug offenses,
pimping, two homicides, and two assaults with a deadly weapon.
On June 21, 2012, the Planning Department‟s Zoning Administrator held a hearing
pursuant to Los Angeles Municipal Code section 12.27.1 (section 12.27.1)—
“Administrative Nuisance Abatement Proceedings”—to determine whether Tam‟s, as
operated, constituted a public nuisance and whether to impose conditions on its operation.
At the hearing, plaintiffs testified1 that they were at the restaurant five days a week; they
could not control the nuisance activities outside the property; as soon as they removed
graffiti, it reappeared; they always reported graffiti to the LAPD, but the LAPD did not
immediately respond because graffiti was not an urgent public safety issue; the restaurant
had never been robbed and suffered no damage during the “civil disturbance in the
1990s”; Figueroa Street was an area that prostitutes frequented; Tam‟s did not sell
condoms, illegal drugs, or alcoholic beverages, and did not promote drug sales on its
premises; they could not afford a security guard; the majority of Tam‟s customers were
area residents; and they provided the LAPD with a trespass arrest authorization—a form
that authorized the LAPD to arrest persons unlawfully loitering on the property.
Plaintiffs agreed to comply with several operating conditions recommended by the Los
Angeles City Attorney, but plaintiffs would not agree to operating conditions that
required them to not allow patrons to “linger over a soda or other soft drink for more than
30 minutes”; not allow prostitutes, pimps, drug users or dealers, or homeless individuals
to loiter on the property for any purpose; not allow alcoholic beverages to be consumed
on the property; paint over graffiti on the property with a matching color within 24 hours;
have a California licensed, bonded, and uniformed security guard at the restaurant seven
1 The transcript for the hearing—if any—is not a part of the record on appeal. The
testimony set forth below is from testimony the Zoning Administrator summarized in its
“determination” following the hearing.
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days a week from dusk until the restaurant closed who would, among other things,
enforce the suggested operating conditions; install and maintain adequate fencing closing
off the space on the north side of the business; implement a 24-hour “hot line” telephone
number for any inquiries or complaints about the restaurant or its operation; and limit the
restaurant‟s hours of operation to 6:00 a.m. to midnight Sunday through Thursday and to
6:00 a.m. to 2:00 a.m. Friday and Saturday.
Officer Dickes testified that the LAPD had attempted to work with Tam‟s since
2010 to mitigate nuisance and criminal activity, but plaintiffs had not cooperated. Not all
businesses in the area were maintained in a manner similar to Tam‟s. A different Tam‟s
restaurant located at Manchester and Figueroa—about 20 blocks from plaintiffs‟ Tam‟s—
had a “similar surrounding environment in terms of nuisance and criminal activities,” but
its physical condition was unlike plaintiffs‟ restaurant.
In rebuttal, plaintiffs testified that transients were everywhere and a business
owner or operator could not control them. A security guard would cost between $5,000
and $8,000 per month, which compensation plaintiffs could not afford.
On October 1, 2012, the Zoning Administrator issued its determination that Tam‟s
was a public nuisance that required the modification of its operation to mitigate adverse
impacts on persons and properties in the surrounding area. The Zoning Administrator
found, pursuant to section 12.27.1, subdivision (b), that Tam‟s was being operated in a
manner that adversely impacted nearby residential or commercial uses; jeopardized or
endangered the public health or safety of persons residing or working on the premises or
in the surrounding area; constituted a public nuisance; resulted in repeated nuisance
activities including but not limited to disturbances of the peace, illegal drug activity,
harassment of passersby, prostitution, theft, assaults, batteries, loitering, and police
detentions and arrests; and violated provisions of the Los Angeles Municipal Code, and
other city, state, or federal regulations, ordinances, or statutes.
The Zoning Administrator imposed 22 operating conditions on Tam‟s that
included keeping the property free from trash and debris; requiring graffiti eradication;
limiting hours of operation; hiring a security guard to be present from dusk to the close of
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business; installing a camera surveillance system that covered all common and high risk
areas of the property; barring access to the property to prostitutes, pimps, prostitution
customers, parolees with prior narcotics or prostitution offenses, narcotics users,
narcotics possessors, narcotics sellers, and manufacturers of illegal controlled substances;
establishing a 24-hour inquiry and complaint “hot line”; and installing a six-foot wrought
iron fence. Plaintiffs filed an appeal from the Zoning Administrator‟s determination to
the Los Angeles City Council.
II. Plaintiffs’ Administrative Appeal
At the November 20, 2012, appeal hearing before the Los Angeles City Council‟s
Planning and Land Use Management (PLUM) Committee, Associate Zoning
Administrator Susan Chang testified that plaintiffs had not maintained Tam‟s. She noted
that the menu boards were illegible because they were covered by graffiti. Between May
1, 2009, and February 13, 2012, the LAPD made 58 service calls to Tam‟s. Less than a
week before the hearing, the LAPD arrested “individuals” at Tam‟s for narcotics
offenses. Ms. Chang compared plaintiffs‟ Tam‟s to the Tam‟s restaurant located at
Manchester and Figueroa, which she said was 10 to 15 blocks from plaintiffs‟ restaurant.
According to Ms. Chang, the Manchester and Figueroa Tam‟s was in an area of similar
“crime data,” but was “sparkling clean” and its operation did not create any “problems.”
The Manchester and Figueroa Tam‟s dining hours ended at 10:00 p.m., but its drive-
through window remained open until 11:00 p.m. Ms. Chang recommended that the
committee revise the operating hours condition she imposed on plaintiffs‟ Tam‟s to
require it to close at 10:00 p.m. or 11:00 p.m.
LAPD Detective Eric Moore testified that he oversaw all nuisance abatements in
the City and that Tam‟s was a top priority because of the crime associated with the
location and the community “outcry.” Asked whether Tam‟s was in an area where there
already was crime and it was “caught in the crossfire” or whether Tam‟s was a stimulus
or “spark plug” that created the tension that resulted in crime, Detective Moore responded
that he believed the evidence would show “a clear nexus with Tam‟s location as being an
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anchor . . . and center of some of the criminal activity . . . .” He further testified that there
were a number of restaurants “up and down the Figueroa corridor” that were not the
subject of nuisance investigations. Detective Moore stated, “I think that is a poor
argument for them to simply say that it‟s this area whereas there are other businesses in
the area that are thriving that do not have the crime nexus that this location has.”
Officer Dickes testified that the LAPD attempted to work with property owners to
remedy nuisances with suggested operating conditions before it resorted to abatement
proceedings. He testified that in November 2011, he sent plaintiff Jack Benetatos a letter
informing him that Tam‟s was the subject of a nuisance investigation. He included a list
of suggested operating conditions to address the nuisance activities at Tam‟s. Jack
Benetatos called Officer Dickes and left a message that said, “I‟m the business owner,
which is responsible for the inside, not the outside. There are a lot of problems outside
with transients and drug dealers. That‟s a police problem, not mine.” According to
Officer Dickes, the “business owner”—presumably Jack Benetatos—left in the middle of
the June 21, 2012, section 12.27.1 hearing after Ms. Chang informed the owner that she
was going to impose operating conditions on Tam‟s. Officer Dickes found such conduct
“disrespectful to the process and disrespectful to Ms. Chang, and unfortunately this is the
kind of business owner that we‟re dealing with today.”
Referring to Ms. Chang‟s testimony about 58 LAPD service calls to Tam‟s,
Officer Dickes testified that there had been 150 to 200 service calls in and around the
area of Tam‟s. Officer Dickes acknowledged that Tam‟s was not responsible for all of
those calls, but noted that Tam‟s and a nearby gas station were the only businesses in the
primarily residential area. Detective Moore testified that of the 58 LAPD service calls to
Tam‟s, 31 took placed between 8:00 p.m. and 5:00 a.m. Detective Patrick Shields
testified that the service calls to Tam‟s included loitering, narcotics, prostitution, gang
activity, assaults, and shootings.
Detective Moore read excerpts from a citizen‟s declaration concerning criminal
activity the citizen had seen at Tam‟s. Eight residents of, or business owners from, the
area around Tam‟s testified about criminal activity they had observed at Tam‟s. One
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citizen testified, “I‟ve actually been over there over 25 years and never patronized that
establishment . . . there‟s always people hanging out there. It‟s kinda dangerous and
scary looking even to go by. . . . [E]ven when you at the gas station, you‟re trying to
hurry up and get your gas cuz you never know when something‟s gonna break out over
there. I mean, there‟s always shooting over there. There‟s always fighting over there.
Every now and then—I‟m a—I‟m a married man, but every now and then I can get a
glance of prostitutes over there with little or nothing on . . . . I mean, we have our babies
over there in that community, and we need to look out for our babies that‟s our future,
and something need to be done. I mean, it‟s no way that should be going on.”
Plaintiffs‟ attorney stated that plaintiffs had implemented some of the LAPD‟s
suggested operating conditions by removing seating, a pay telephone, and a breezeway
and by turning over video to the police and signing a trespass arrest authorization form
upon which authorization, the attorney claimed, the LAPD had not acted. He said that
plaintiffs did not object to reasonable measures, but that the City had not done what it
could do to alleviate the problems. He disputed that the crime statistics were the same for
the areas around the Manchester and Figueroa Tam‟s and plaintiffs‟ Tam‟s and stated that
there was a hotel across the street from plaintiffs‟ Tam‟s that attracted prostitution
activity. According to plaintiffs‟ attorney, plaintiffs objected only to three operating
conditions: the reduction in hours of operation, the requirement that they hire a security
guard, and the requirement that they install a new video surveillance system.
Plaintiff Nick Benetatos testified that the community loved Tam‟s—it had never
been robbed and was the only business in the area that survived the “riots.” Tam‟s did
not sell drugs, paraphernalia, cigarettes, condoms, alcohol, or anything else that would
attract criminal behavior. At the LAPD‟s request, he removed a pay telephone from
which he had received $2,400 a year. The pay telephone‟s removal did not reduce
loitering. He also removed tables at the LAPD‟s request and his business dropped by 15
percent. As for the difference in the appearances of the Manchester and Figueroa Tam‟s
and plaintiffs‟ Tam‟s, Nick Benetatos said that the Tam‟s at Manchester and Figueroa
was a newer building. He also said he could not spend money on plaintiffs‟ Tam‟s
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because it had been in several foreclosures during the prior six years during which time
he was constantly told that “this is your last week.”
After the evidence was presented, Los Angeles City Councilmember Mitchell
Englander said, “[T]he fact that this burger restaurant has had two people killed there, all
of the issues of drinking in public and assault with a deadly weapon, and the property
reports, and the cocaine for sale . . . . It just—I‟m shocked, quite frankly, that the owner
and/or operator has been so unresponsive . . . .” Councilmember Englander suggested
changes to the Zoning Administrator‟s recommended operating conditions. He suggested
that Tam‟s operating hours be limited to 8:00 a.m. to 10:00 p.m. Sunday through
Thursday, and 8:00 a.m. to 11:00 p.m. Friday and Saturday. He also suggested that a
security guard work from 5:00 p.m. until the restaurant closed rather than from dusk to
closing time. He concluded, “To have those folks come here and question the fact the
[LAPD] hasn‟t done enough when they‟ve been out there nearly 60 times just at that local
location is beyond reasonable, and so those would be my suggestions.”
The PLUM Committee voted to recommend that the Los Angeles City Council
deny plaintiffs‟ appeal and uphold the Zoning Administrator‟s findings with
Councilmember Englander‟s suggested operating hours and security guard modifications
to the Zoning Administrator‟s operating conditions. On December 5, 2012, the Los
Angeles City Council denied plaintiffs‟ appeal and adopted the Zoning Administrator‟s
findings as amended.
III. Plaintiffs’ Petition for Writ of Mandate
On January 11, 2013, plaintiffs filed a verified petition for writ of mandate seeking
a writ that, as relevant here, commanded the City to set aside its nuisance determination
concerning the operation of Tam‟s and the operating conditions based on that
determination. In their petition, plaintiffs alleged that Tam‟s was in a high crime area in
which homicides, drug crimes, and prostitution were common. They alleged that despite
the “challenging nature of the surrounding community,” they had operated Tam‟s
successfully for many years.
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Plaintiffs further alleged that in 2010, they acceded to the LAPD demanded
changes to Tam‟s—the removal of two pay telephones and outdoor seating—out of an
apparent “desire to show the community it was attempting to address the area‟s crime”
even though there had been no allegation that plaintiffs had engaged in, aided, abetted, or
otherwise encouraged criminal activity on or around Tam‟s. Plaintiffs compliance with
the demands caused them to suffer a 15 percent drop in revenue, but crime in the area did
not drop. According to plaintiffs, “rather than accept that the area‟s crime problem was
caused by a host of factors beyond the control or responsibility of a restaurant that sold
hamburgers and French fries, the LAPD and the City Planning Department embarked on
an administrative process to tar and feather the Restaurant, eventually resulting in the
declaration that the Restaurant was a public nuisance and the imposition of 22 conditions
of operation that, if implemented, would force Plaintiffs out of business.” Plaintiffs
alleged the City thus improperly had imposed on them a general responsibility for public
safety and abdicated its responsibility to police the community effectively.
Plaintiffs alleged that they were being blamed improperly for criminal activities in
the area that were not in any way related to the purchase or consumption of food. They
contended that the City failed to show how the lawful operation of a restaurant could
cause nuisance activities. Plaintiffs argued that “[a] public nuisance cannot exist where
there is no causal nexus or connection between an individual or entity‟s actions or
inaction and an alleged nuisance. . . . The City has offered no evidence connecting the
selling of food at a fast food restaurant with criminal activity in the surrounding
community.” Plaintiffs contended that they could not properly be held responsible for the
criminal activity of third parties. The operating conditions imposed were so onerous and
expensive, plaintiffs claimed, that they would force plaintiffs out of business.
On October 4, 2013, the trial court denied the writ petition, applying a substantial
evidence standard of review and concluding there was substantial evidence supporting
the City‟s determination that plaintiffs‟ operation of Tam‟s constituted a public nuisance.
It found that “the [Plaintiffs‟] operation of their Tam‟s franchise and the real property
upon which it is located has resulted in the establishment of a gathering place at all hours
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of the night which is obviously not maintained by its owner and where the owner
apparently does not discourage loitering. . . . Indeed, [Plaintiff] Jack Benetatos‟
statements to Detective Dickes establish that this is precisely the business model the
[Plaintiffs] apparently pursued. . . . There is also substantial evidence that the
[Plaintiffs‟] ill-maintained location is a hub of criminal activities and disturbances out of
proportion with similar businesses which are located nearby but are maintained in a more
appropriate manner . . . . Taken together, this is substantial evidence from which one
may reasonably infer that Detective Moore‟s characterization of the [Plaintiffs‟] business
operations as an „anchor‟ for criminal activity is accurate—in other words, that the
poorly- and neglectfully-maintained restaurant premises cause the disproportionate level
of criminal activity and disturbances, supporting the [Defendant‟s] determination that the
operation of the business constitutes a public nuisance which is appropriately mitigated
by mandatory conditions.”
The trial court rejected plaintiffs‟ argument that the City was making them
responsible for the criminal activities of third parties. Such an argument, the trial court
found, was a mischaracterization of the City‟s effort to abate the nuisance by imposing
operating conditions that would make criminal activity less attractive. It ruled that
administrative abatement of a public nuisance was a separate and complementary
exercise of the City‟s police powers when criminal prosecution of the offenders was
insufficient by itself to secure the public peace. Thus, according to the trial court, it
properly could determine that plaintiffs‟ failure reasonably to maintain their property in a
manner that promoted public safety and passively discouraged criminal activity
constituted a public nuisance that was subject to abatement. On October 22, 2013, the
trial court entered judgment in the City‟s favor.
DISCUSSION
Plaintiffs contend that the trial court erred in denying their petition for writ of
mandate. They contend that the trial court should have reviewed the matter de novo,
using its independent judgment. They also argue that the City did not demonstrate that
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they operated Tam‟s in a manner that constituted a nuisance because the City failed to
establish a causal connection between their operation of Tam‟s and the nuisance activities
of third parties, nuisance liability does not extend to consequences that are the proximate
result of the intervening acts of third parties, and they owed no duty to the general public
to prevent the criminal activity of third parties.
I. Standard of Review
Under Code of Civil Procedure section 1094.5, there are two alternative standards
of review that a trial court uses to review a petition for writ of administrative mandamus.
(JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th
1046, 1056-1057 (JKH Enterprises, Inc.).) “If the administrative decision involved or
substantially affected a „fundamental vested right,‟ the superior court exercises its
independent judgment upon the evidence disclosed in a limited trial de novo in which the
court must examine the administrative record for errors of law and exercise its
independent judgment upon the evidence. [Citations.]” (Id. at p. 1057; see Fukuda v.
City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) “Where no fundamental vested right is
involved, the superior court‟s review is limited to examining the administrative record to
determine whether the adjudicatory decision and its findings are supported by substantial
evidence in light of the whole record. [Citation.]” (JKH Enterprises, Inc., supra, 142
Cal.App.4th at p. 1057.)
A right is fundamental “on either or both of two bases: (1) the character and
quality of its economic aspect; (2) the character and quality of its human aspect.”
(Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 780; see
Bixby v. Pierno (1971) 4 Cal.3d 130, 144.) The analysis is done on a case-by-case basis.
(Bixby v. Pierno, supra, 4 Cal.3d at p. 144.) As stated in JKH Enterprises, Inc., supra,
142 Cal.App.4th at p. 1059, “„In determining whether the right is fundamental the courts
do not alone weigh the economic aspect of it, but the effect of it in human terms and the
importance of it to the individual in the life situation.‟ (Bixby, supra, 4 Cal.3d at p. 144
[93 Cal.Rptr. 234, 481 P.2d 242].” (See The Termo Co. v. Luther (2008) 169
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Cal.App.4th 394, 407 [“Given the facts before us [in Goat Hill Tavern v. City of Costa
Mesa (1992) 6 Cal.App.4th 1519, 1562], we concluded that the tavern owner had a
fundamental vested right to continue the operation of the business”].) “The ultimate
question in each case is whether the affected right is deemed to be of sufficient
significance to preclude its extinction or abridgement by a body lacking judicial power.”
(Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d at p. 779, fn. 5.)
“The substantial evidence test has been applied to review administrative decisions
that restrict a property owner‟s return on his property, or which increase the cost of doing
business, or reduce profits, because such decisions impact mere economic interests rather
than fundamental vested rights. [Citation.] [¶] In contrast, the independent judgment
test is applied to review administrative decisions that will drive an owner out of business
or significantly injure the business‟s ability to function. [Citation.]” (Amerco Real
Estate Co. v. City of West Sacramento (2014) 224 Cal.App.4th 778, 784 (Amerco); see
also E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325.) As one
authority has said, “When a case involves purely economic interests (e.g., administrative
decisions that result in restrictions on a property owner‟s return on property, increases in
the cost of doing business, or reductions in profits), courts are far less likely to find a
fundamental vested right.” (California Administrative Mandamus (Cont.Ed.Bar 2014)
Court‟s Scope of Review Under CCP § 1094.5, § 6.133, p. 6-99; see also JKH
Enterprises, Inc., supra, 142 Cal.App.4th at p. 1060.)
Regardless of the standard of review that applied in the trial court, appellate courts
apply a substantial evidence standard. (JKH Enterprises, supra, 142 Cal.App.4th at p.
1058.) If the trial court exercised independent judgment because a fundamental vested
right was involved, we review whether substantial evidence supports the trial court‟s
judgment. (Ibid.) If the superior court reviewed the administrative decision for
substantial evidence because no fundamental vested right was involved, then our review
is the same as the trial court‟s—we review the administrative record to determine
whether substantial evidence supports the agency‟s findings. (Ibid.) In that review, we
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resolve all conflicts in the evidence and draw all inferences in support of the agency‟s
findings. (Ibid.)
Plaintiffs contend that the operating conditions that the City imposed were so
costly that they would be forced to close Tam‟s. Thus, they argue, their fundamental
vested property rights were implicated, and the trial court should have employed its, and
we should employ our independent judgment in reviewing the City‟s nuisance finding.
The trial court rejected plaintiffs‟ argument that it should review the City‟s nuisance
finding under the independent judgment standard. It found that plaintiffs‟ claim that the
operating conditions the City imposed were too costly and would force Tam‟s out of
business was based solely on their own unsupported conclusions. It found that while the
required expenditures would impact Tam‟s profitability, a restriction on plaintiffs‟ return
on their use of their property impacted economic interests and not fundamental vested
rights.
The trial court properly found that plaintiffs failed to demonstrate that the cost of
the operating conditions that the City imposed would force Tam‟s out of business.
Although there was some discussion in the record about the cost of the security guard,
plaintiffs presented no evidence concerning Tam‟s profitability and projected losses in
the event it had to take the steps required by the City. Because plaintiffs suggested only
an economic effect from the required operating conditions, rather than showing that the
operating conditions would severely impair their ability to function or would drive them
out of business, the trial court properly used the substantial evidence standard of review.
(Amerco, supra, 224 Cal.App.4th at p. 784; JKH Enterprises, supra, 142 Cal.App.4th at
p. 1057.) Accordingly, we review the administrative record to determine whether
substantial evidence supports the City‟s findings. (JKH Enterprises, supra, 142
Cal.App.4th at p. 1058.)
Plaintiffs also claim that the independent judgment test is appropriate because
even if the economics of the operating conditions that the City imposed would not force
plaintiffs to close Tam‟s, the Los Angeles Municipal Code empowers the City to order a
business closed for failing to comply with operating conditions. Because this case does
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not concern an order by the City to close Tam‟s based on plaintiffs‟ refusal to comply
with the operating conditions the City imposed, we will not use a standard based on such
a circumstance.
II. Application of Relevant Principles
Civil Code section 3479 defines a “nuisance,” in part, as “[a]nything which is
injurious to health, including, but not limited to, the illegal sale of controlled substances,
or is indecent or offensive to the senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or property . . . .” “A public
nuisance is one which affects at the same time an entire community or neighborhood, or
any considerable number of persons, although the extent of the annoyance or damage
inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) A property owner who
fails to take reasonable actions to prevent criminal activity on the owner‟s property may
be subject to nuisance liability if that criminal activity harms the surrounding community.
(Lew v. Superior Court (1993) 20 Cal.App.4th 866, 870-875 [plaintiffs were liable for
nuisance under Health and Safety Code section 11580 because their apartment building
was operated as a center for the sale and distribution of drugs and plaintiffs “did not take
all reasonable measures available to them to control their property”]; see Rest.2d Torts §
838 [“A possessor of land upon which a third person carries on an activity that causes a
nuisance is subject to liability for the nuisance if it is otherwise actionable, and (a) the
possessor knows or has reason to know that the activity is being carried on and that it is
causing or will involve an unreasonable risk of causing the nuisance, and (b) he consents
to the activity or fails to exercise reasonable care to prevent the nuisance”].)
Section 12.27.1 governs administrative nuisance abatement proceedings in the
City. Subdivision (b) of that section states, in relevant part:
“Notwithstanding any other provision of this Code to the contrary, the Director
may require the modification, discontinuance or revocation of any land use or
discretionary zoning approval if it is found that the land use or discretionary zoning
approval as operated or maintained:
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“1. Jeopardizes or adversely affects the public health, peace, or safety of
persons residing or working on the premises or in the surrounding area; or
“2. Constitutes a public nuisance; or
“3. Has resulted in repeated nuisance activities, including, but not
limited to disturbances of the peace, illegal drug activity, public drunkenness, drinking in
public, harassment of passersby, gambling, prostitution, sale of stolen goods, public
urination, theft, assaults, batteries, acts of vandalism, loitering, excessive littering, illegal
parking, excessive loud noises (especially in the late night or early morning hours), traffic
violations, curfew violations, lewd conduct, or police detentions and arrests; or
“4. Adversely impacts nearby uses; or
“5. Violates any provision of this chapter; or any other city, state, or
federal regulation, ordinance, or statute . . . .”
There is substantial evidence in the record to support the City‟s determination that
plaintiffs operated Tam‟s in a manner that constituted a nuisance in violation of section
12.27.1. The evidence shows that plaintiffs failed to maintain the restaurant or the
property the restaurant occupied. There was trash and debris throughout the property and
graffiti covered the building, walls, and menu signs—the graffiti on the menus signs was
so extensive that the signs were illegible. The manager permitted the graffiti to remain
on the property, believing it was futile to attempt to remove it. There also was loitering
and gang activity, and persons were drinking alcohol at the restaurant. From May 1,
2009, to February 13, 2012, the LAPD received 58 calls for service at Tam‟s. The crimes
committed at Tam‟s included misdemeanor battery, public drinking, drug offenses,
prostitution, pimping, two homicides, and two assaults with deadly weapons. Plaintiffs
kept the restaurant open 24 hours a day, and over half of the LAPD‟s service calls to
Tam‟s took place between 8:00 p.m. and 5:00 a.m. Residents and business owners from
the surrounding community were exposed to and complained about the criminal activity
that took place at Tam‟s.
That plaintiffs‟ operation of Tam‟s caused the nuisance activities is demonstrated
by a comparison of their restaurant to the Manchester and Figueroa Tam‟s. Plaintiffs‟
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Tam‟s and the Tam‟s at Manchester and Figueroa were separated by no more than 20
blocks and were located in areas with similar crime statistics. Plaintiffs failed to maintain
their restaurant and the property on which it was located, kept their restaurant open 24
hours a day, and their restaurant and the property on which it was located were a hub of
criminal activity. The operators of the Manchester and Figueroa Tam‟s kept their
restaurant “sparkling clean,” closed their restaurant at 10:00 p.m., and there were no
“problems” associated with their restaurant. Detective Moore also testified that there
were a number of restaurants “up and down the Figueroa corridor” that were not the
subject of nuisance investigations. These comparisons justify the conclusion that Tam‟s
was operated in a way that caused a nuisance. Accordingly, there is substantial evidence
in the record to support the City‟s determination that plaintiffs‟ operation of Tam‟s
resulted in a nuisance in violation of section 12.27.1.
Relying on Martinez v. Pacific Bell (1990) 225 Cal.App.3d 1557, plaintiffs argue
that the City‟s nuisance finding improperly held them responsible for the intervening
criminal acts of third parties. The trial court properly rejected this argument, concluding
that the City brought its nuisance abatement proceeding not to hold plaintiffs responsible
for the criminal acts of third parties, but to make criminal activity at Tam‟s less likely
through the imposition of operating conditions.
Plaintiffs assert that they should not be responsible legally for the problems that
occur in a high crime area. But there was substantial evidence that plaintiffs failed to
take steps to ameliorate the situation. As stated in O’Hagen v. Board of Zoning
Adjustment (1971) 19 Cal.App.3d 151, 163 footnote 7, “It is recognized that a business
which, when established was entirely unobjectionable, may, under changed
circumstances, become a nuisance. [Citations.] Accordingly, a business which is not per
se a nuisance may become one by the manner in which it is conducted. [Citations.]
Thus, it has been held that a drive-in restaurant, although not a nuisance per se because it
is a lawful business, may become a nuisance because of the manner of its operation.
[Citations.]” (See Willson v. Edwards (1927) 82 Cal.App. 564, [drive-in food stand was
nuisance because of patron noise and food odor during late night and early morning
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hours]; Wade v. Fuller (Utah 1961) 365 P.2d 802 [drive-in restaurant a nuisance because
of activities of patrons]; State v. Rapuano (Fla.App. 1963) 153 So.2d 353 [drive-in
restaurant, motel, and beer parlor a nuisance because of noise, fights, and immoral acts on
premises].) There is sufficient evidence in the administrative record that plaintiffs‟
operation of Tam‟s violated section 12.27.1, and the abatement proceeding and nuisance
finding properly addressed the nuisance activities that plaintiffs‟ operation of Tam‟s
caused.
DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
GOODMAN, J.
 Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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