Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS117453. David P. Yaffe, Judge.
Law Offices of Tabone and Derek L. Tabone for Plaintiffs and Appellants.
Scott H. Howard, City Attorney, Ann M. Maurer, Senior Assistant City Attorney, and Albert Aldesco, Assistant City Attorney, for Defendant and Respondent.
ASHMANN-GERST, J.
Appellants Levik Beginyan, Vahe Yapundjian, and Azatui Yapundjian challenge a trial court order denying their petition for writ of mandate. The thrust of appellants’ claim on appeal is that that they had a vested right to continue operating their business as a banquet hall and that conditions imposed by respondent City of Glendale (the City) to renew their conditional use permit (CUP) for alcohol sales impacted that right.
The problem for appellants is that they only sought a CUP for alcohol sales, which was granted, with conditions. They never sought a CUP to operate a banquet hall. Thus, the relief they sought in their petition for writ of mandate (and the relief they seek on appeal) does not correspond to what they request from the City.
Accordingly, we affirm the trial court’s order denying appellants’ petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
This matter concerns the use of certain property located in Glendale (the property). After the property was converted to a restaurant, in 1995, the owners applied many times for a CUP to serve liquor on the premises. Their requests for a CUP were granted in March 1996, July 1998, August 2001, and August 2004, each time with certain conditions.
In November 2007, appellants applied for a CUP to renew the existing alcoholic beverages license. On February 28, 2008, appellants were notified that their request for a renewal CUP was granted with certain conditions. James Starbird, a city official, filed a notice of appeal of the renewal of the CUP. After a hearing, the City planning commission approved the CUP with 30 conditions. The City planning commission’s decision was formally adopted on June 4, 2008.
Appellants appealed the decision of the planning commission to the City Council. In September 2008, the City Council granted the CUP with modified conditions.
Appellants’ Petition for Writ of Mandate; The City’s Answer
In October 2008, appellants filed their verified petition for writ of mandate and complaint for declaratory and injunctive relief, estoppel and damages. According to the petition, appellants “received all necessary permits from the City... to operate a full-service restaurant with banquet hall use or banquet facility use with attendant alcohol sales and entertainment. The use is vested; in other words, the property and its current owners and operators have a vested right by law to continue the restaurant, banquet and bar uses historically allowed by the City.” After summarizing the history of the CUPs granted, appellants set forth the conditions imposed in the approval of their most recent CUP. Of those conditions, appellants claim, six of them “appear to impose significant restrictions upon [their] business which are either (a) not warranted by any evidence received by the City Council, and/or (b) an invasion of [appellants’] vested right to operate a restaurant, including providing banquet services and entertainment.”
Appellants sought a writ of mandate, alleging, inter alia, that the City did not make adequate findings to justify the imposition of conditions on the CUP and “[a] lack of evidentiary support for findings is, in and of itself, an appropriate basis to invalidate the City’s conditions limiting banquet hall use, hours of operation, entertainment and other restrictions.... Where, as here, local and State laws expressly prescribe the relevant evidence and the making and substantiation of specific types of findings, the City’s failure to make and substantiate such findings is especially fatal to the City’s decision to condition the renewal of the conditional permit use upon loss of the vested right to offer banquet hall services.”
In their request for declaratory and injunctive relief, appellants averred: “A judicial declaration concerning the parties’ rights and duties with respect to the operation of the business and right to offer banquet services... is necessary and appropriate at this time.”
The City answered.
Trial Court Order and Appeal
Following briefing by the parties, the petition was set for hearing.
The case was called for trial, and appellants failed to appear. The trial court then denied appellants’ petition, reasoning: “[Appellants] argue[] that [they have] a vested right to conduct banquets or private events at [their] place of business... despite a provision in the Glendale Municipal Code added in 2002, that requires a conditional use permit for the conduct of a banquet hall business in a C3 zone. [The City] argues that, in the alternative, [appellants] failed to prove that [they were] operating a banquet hall in the zone prior to 2002, or, even if [they were], [they] lost that right by failing to challenge a condition that was imposed upon [them] in a conditional use permit granted in 2004. The trouble with both contentions is that the [City] has taken no action administratively to prohibit [appellants] from operating a banquet hall at the present location of [their] business.
“What the City has done administratively is to refuse to renew a conditional use permit allowing [appellants] to sell alcohol on the business premises except under certain conditions. [Appellants] offer[] no evidence, and do[] not even contend, that [they have] a vested right to serve alcohol on said premises. The evidence before the court is to the effect that [appellants have] sought and obtained a conditional use permit to sell alcohol on the premises ever since the premises was converted from a hardware store to an eating establishment in 1997.... No authority cited by [appellants] gives a person a vested right to sell alcohol from premises which have always been used to sell alcohol under a conditional use permit.”
The trial court’s order continues: “The administrative decision that is challenged in this petition for administrative mandate... states only that the matter before it is a request by [appellants] ‘for the renewal of a conditional use permit to allow the sale, service and consumption of alcohol at a full service restaurant....’ There is nothing in the administrative decision that prohibits [appellants] from using the premises as a banquet hall. [Appellants] admit[]... that what [they] really want[] is for the court to command the [C]ity to renew the conditional use permit for alcohol sales without the conditions that the City has imposed.... Such relief is not prayed for in the petition, and [appellants are] not entitled to such relief. [Appellants have] always sold alcohol at the premises under a conditional use permit that has been issued only for a limited time. [Appellants cite] no facts or law that prevent the [City] from reconsidering the conditions under which the permit is granted each time that [appellants apply] for a renewal of the permit.
“[Appellants do] NOT contend that the decision not to renew [their] conditional use permit to sell alcohol at the premises is not supported by substantial evidence. In fact, [appellants contend] that such standard of review is not applicable in this case.... The court therefore makes no finding with respect to such issue.
“The court also does not decide whether [appellants have] a vested right to continue conducting a banquet hall business on the premises if [they do] not sell alcohol. What the court does decide here is that [appellants do] not have a vested right to sell alcohol from the premises on the basis that it is necessary for [them] to sell alcohol in order to attract enough banquet business to make a profit.”
Judgment denying appellants’ petition for writ of mandate was entered, and appellants’ timely appeal ensued.
DISCUSSION
I. Standard of review
We review the trial court’s order for substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) To the extent the facts are undisputed and the issues presented are pure questions of law, we exercise our independent judgment. (Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1005.)
II. The trial court did not err in denying appellants’ request for a writ of mandate
According to appellants, they had a vested right to continue the nonconforming banquet use of the property. (See, e.g., Stokes v. Board of Permit Appeals (1997) 52 Cal.App.4th 1348, 1353 [“The law recognizes a vested right to continue a use which existed at the time zoning regulations changed and the use thereafter became a nonconforming use”].) Because the conditions imposed upon their CUP for alcoholic beverage sales infringe upon their right to use the property as a banquet hall, they argue that the trial court should have issued a writ of mandate directing the City to allow them to operate their restaurant as a banquet hall.
Assuming without deciding that appellants had a nonconforming right to operate their business as a banquet hall, we still affirm the trial court’s order. As aptly noted by the trial court, appellants mistakenly conflate two discrete issues. Appellants applied for a renewal of their license to sell alcohol; they did not apply for a CUP to operate a banquet hall. “[T]here is no inherent right to sell intoxicating liquors.” (Yu v. Alcoholic Bev. Etc. Appeals Bd. (1992) 3 Cal.App.4th 286, 296.) Moreover, we presume that the City Council “regularly performed its duty” when it granted appellants’ CUP to sell alcohol subject to reasonable conditions. (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) Because appellants offered no evidence or argument that they had a vested right to serve alcohol on the premises, their argument on appeal fails. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
During oral argument, appellants’ counsel represented that appellants applied for a CUP to operate a banquet hall and that that application is going through the process. Nothing in this opinion should be construed as binding upon that process.
As the trial court found, appellants also failed to argue that the conditions upon the CUP to serve alcohol were unreasonable or unsupported by the evidence. “Appellants do not contend that the findings are not supported by the evidence”.
It follows that we reject appellants’ assertion that the restrictions amount to an uncompensated taking in violation of the Fifth Amendment to the Constitution. Appellants’ alleged right to offer banquet services is not at issue; what is at issue is a CUP to sell alcoholic beverages. (SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 470 [“the matter in issue in this case is not the right to engage in protected activity, but the right to sell alcohol for onsite consumption”].)
Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, upon which appellants heavily rely, is distinguishable. In that case, “[t]he threshold issue on appeal [was] whether [the property owner] had any vested fundamental right to continue operation of the tavern.” (Id. at p. 1526.) Agreeing with the trial court, the Court of Appeal concluded that he did; after all, the tavern had “been in operation for over 35 years as a legal nonconforming use, ... [the property owner had] invested over $1.75 million in its refurbishment, including substantial exterior façade improvements undertaken at the city’s behest[, and the property owner had been granted] a [temporary] conditional use permit.” (Id. at p. 1529.) Under those “unique” circumstances, the Court of Appeal determined that the property owner had not “lost all right to continue in business.” (Ibid.)
That is not the situation here. Appellants’ right to operate their business is not at stake. (SP Star Enterprises, Inc. v. City of Los Angeles, supra, 173 Cal.App.4th at p. 472 [“The denial of a conditional use permit for the onsite sale and consumption of alcohol might render [appellants’] activity less profitable, ” but that does not amount to an infringement of any assumed right].)
Finally, appellants argue that the trial court erred in granting judgment on the remaining causes of action, namely those claims other than the request for a writ of mandate. Appellants failed to raise this argument below, thereby forfeiting it on appeal. (Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 505; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 1:44, p. 1-10.1 (rev. #1, 2007); 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458-459.)
DISPOSITION
The order of the trial court is affirmed. The City is entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.