Case Number: BC536761 Hearing Date: February 09, 2015 Dept: 50

7-ELEVEN INC. v. CITY OF LA CANADA FLINTRIDGE
CASE NO. BC536761

MOTIONS BY DEFENDANTS CITY OF LA CANADA FLINTRIDGE AND CITY COUNCIL OF LA CANADA FLINTRIDGE FOR SUMMARY ADJUDICATION AND FOR SUMMARY JUDGMENT

MOTION BY PLAINTIFF 7-ELEVEN INC. FOR SUMMARY ADJUDICATION AND FOR SUMMARY JUDGMENT

Background

A. The Appeals of the Citations in Related Case Nos. BS140570 and BS140571

Case No. BS140570 is the appeal by Catalina Partners LLC under Government Code section 53069.4 of an administrative decision by a hearing officer for the City of La Canada Flintridge to uphold two administrative citations issued for violating provisions of the La Canada Flintridge Municipal Code. The citations were for violation of section 11.14.020, which prohibits use of 1535 Foothill Boulevard as a convenience store, and section 11.51.020, which allows non-conforming uses that are “continuously maintained, provided there is no alteration or addition to any structure nor any enlargement of area.” (Original Petition in BS140570, ¶¶ 1-7; Exh. B.) The hearing officer’s decision affirmed the citations because the “original store chart dated 10-14-2011 clearly states, lists, represents and notes that there must be 60% floor area for alcohol sales and 40% for food sales,” and at the time of the citations “[t]here was a greater volume of food items than liquor items.” (Id., Exh. B.) Case No. BS140571 is the appeal by George Sumral, the operator of the 7-Eleven store that is a tenant of Catalina Partners from a separate citation issued to his store. (First Amended Complaint, BS140571, ¶ 4.)

The parties stipulated that petitioners in the related cases would file a first amended complaint, which petitioners (now plaintiffs) filed on October 25, 2013. Plaintiffs alleged causes of action in its first amended complaint for (1) declaratory relief that the La Canada Municipal Code did not require that the store dedicate a minimum percentage of floor space to selling alcohol, and (2) an appeal pursuant to Government Code section 53069.4.

The court, Hon. Joseph Kalin, conducted a two-day trial in May 2014. He ruled in favor of Catalina Partners and Sumral, ordered the City of La Canada Flintridge to refund the $400 they had both paid for the citations, and entered judgment in their favor on the appeals from both municipal citations under Government Code section 53069.4. (Minute Order, 07/31/14; Judgment, 10/15/14.)

B. This Case

7-Eleven Inc. filed this action against the City and City Council of La Canada Flintridge. 7-Eleven alleges that the City’s Ordinance No. 418, which restricts the sale of alcoholic beverages to between 6:00 a.m. and 12:00 a.m. in the “CPD Zone,” which includes the 7-Eleven store, is unlawful because it violates Business & Professions Code section 23790. (Complaint, ¶¶ 5-6.) 7-Eleven also alleges that Ordinance No. 418 is preempted by state law, which fully occupies the area of setting permissible hours for the sale of alcoholic beverages. (Id., ¶ 7.) Finally, 7-Eleven alleges that the City’s enactment of Ordinance No. 418 violated 7-Elevent’s due process rights because the City did not give proper notice of the public hearings the City held in connection with the adoption of ordinance. (Id., ¶ 8, 12-14.) 7-Eleven alleges causes of action for declaratory relief and injunctive relief.

The City and City Council of La Canada Flintridge move for summary judgment. 7-Eleven also moves for summary judgment. Essentially, both sides argue they are entitled to judgment in their favor as a matter of law. Neither is.

Discussion

A. Motion by the City and City Council of La Canada Flintridge

The motions for summary judgment filed by the City of La Canada Flintridge and the City Council of La Canada Flintridge (collectively the City) are identical. 7-Eleven filed a single opposition in response to both motions. The separate statements are identical.

1. Preemption

The City argues that Ordinance 418 is not preempted. Pursuant to the California Constitution, article XI, section 7, a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws,” but “[l]ocal legislation in conflict with general law is void.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1150.) “Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations].” (Ibid.; see Los Angeles Police Protective League v. City of Los Angeles (2014) 232 Cal.App.4th 907, 915-916.) “Local legislation is ‘duplicative’ of general law when it is coextensive therewith and ‘contradictory’ to general law when it is inimical thereto.” (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1150.) “Local legislation enters an area ‘fully occupied’ by general law when the Legislature has expressly manifested its intent to fully occupy the area or when it has impliedly done so in light of recognized indicia of intent. . . . When such conflict is present local law is ‘preempted.’” (Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376, 384.) “Express field preemption turns on a comparative statutory analysis: What field of exclusivity does the state preemption clause define, what subject matter does the local ordinance regulate, and do the two overlap?” (California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 188.)

In Korean American Legal Advocacy Foundation, supra, which both sides cite, the City of Los Angeles passed “Municipal Ordinance No. 162,128, known as the South Central Alcohol Sales Specific Plan, [which] specially added off-site retail alcohol sales to the zoning codes as a use requiring a conditional use permit.” (Id. at pp. 385-86.) As a conditional use, retail establishments selling alcohol for off-site consumption wishing to rebuild after the civil disturbance in the spring of 1992 had to submit plans for approval by the City Planning Commission or a Zoning Administrator. (Id. at p. 387.) In order to obtain approval, business owners had to agree to multiple conditions, including “graffiti removal, trash removal, adequate lighting, security guards, protective fences and modified hours of operation.” Owners also had to agree that the City Planning Commission could “require the modification, discontinuance, or revocation of any such conditional use or existing use” if the Commission found the use (a) adversely affected the health, peace, or safety of persons residing or working in the surrounding area, (b) jeopardized or endangered the public health or safety of persons residing or working in the surrounding area, (c) constituted a public nuisance, or (d) 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 detention and arrests.” (Id. at pp. 387-88.)

The court acknowledged that the “State of California, subject to the internal revenue laws of the United States, shall have the exclusive right and power to license and regulate the manufacture, sale, purchase, possession and transportation of alcoholic beverages within the state” under article XX, section 22, of the California Constitution, and that the State of California exercises this exclusive jurisdiction through the Alcoholic Beverage Control Act pursuant to Business & Professions Code sections 23000 et seq., which the California Department of Alcohol Beverage Control (ABC) enforces and administers. (Id. at p. 385.) The court, however, rejected the plaintiffs’ preemption argument premised on article XX, section 22 of the California Constitution because the purpose and effect of the City’s ordinance was “not to dictate, restrict or regulate the actual sale of alcoholic beverages,” but rather, to “abate or eradicate nuisance activities in a particular geographic area by imposing conditions aimed at mitigating those effects,” which are “typical and natural goals of zoning and land-use regulations.” (Id. at p. 388.) The fact that the nuisance ordinance imposing conditions on businesses in a particular geographic area might also “have some indirect impact on the sale of alcoholic beverages” did not transform the proper exercise of the city’s police power to control nuisances into an invasion of the exclusive of the state under article XX, section 22 of the California Constitution to regulate alcohol sales. Therefore, the nuisance ordinance in Korean American Legal Advocacy Foundation was not expressly preempted. (Id. at pp. 389-90.)

Ordinance 418 states that the “sales of alcoholic beverages by all facilities with ‘off-sale’ licenses issued by the Department of Alcoholic Beverage Control shall be limited to the hours between six a.m. and twelve a.m. of each day . . . .” (Fact 24.) 7-Eleven argues that this ordinance is preempted because it is more restrictive than Business and Professions Code section 25631, which makes it a misdemeanor to sell an alcoholic beverage between the hours of 2:00 a.m. and 6:00 a.m. The only case 7-Eleven cites that specifically addresses a regulation governing the hours a vendor may sell alcohol is People v. Schlimbach (2011) 193 Cal.App.4th 1132, 1146. The court in that case stated, “While the ABC’s exclusive right to regulate the sale and purchase of alcohol may prevent a city from enacting ‘“such regulatory measures as “restrictions as to the class of persons to whom liquors may be sold, and as to the hours of the day and the days of the week during which places of sale may be open,”’” it does not preempt an ordinance that ‘does not directly affect the licensee’s ability to sell alcoholic beverages to a willing purchaser.’” The government action in Schlimbach was a nuisance abatement injunction that limited a restaurant from employing individuals convicted of alcohol-related violations, required employees to attend STAR training, prohibited sales of alcohol to obviously intoxicated persons, required a security guard during the presentation of live entertainment, and required the restaurant to serve food when it was open, all of which were designed to abate a nuisance caused by sales of alcohol to obviously intoxicated persons. (Id. at p. 1147.) The ordinance in Schlimbach did not regulate the hours during which the business could sell alcohol, and the court in Schlimbach did not discuss the issue. And, unlike the general nuisance ordinance in Korean American Legal Advocacy Foundation, supra, 23 Cal.App.4th at p. 388, Ordinance 418 appears to directly regulate the hours during 7-Eleven can sell alcohol.

On the other hand, the court in Korean American Legal Advocacy Foundation concluded that the nuisance regulation in that case was “not a total prohibition on alcohol sales” but was merely a rule that regulated land use and zoning, and that therefore it was not preempted. (Korean American Legal Advocacy Foundation, supra, 23 Cal.App.4th at p. 389-90; cf. Mussalli v. City of Glendale (1988) 205 Cal.App.3d 524, 527 [municipal ordinance invalid because it attempted to impose additional requirements in a field that is preempted by general law by prohibiting altogether the sale of alcoholic beverages at automobile service stations within the City].) Such land use regulations must only be not “arbitrary or unreasonable.” (Korean American Legal Advocacy Foundation, supra, 23 Cal.App.4th at p. 390; see also id., at pp. 391-92, fn. 5 [in order to justify the interference with the constitutional right to carry on a lawful business, it must be clear the public interests require such interference and that the means employed are reasonably necessary to accomplish the purpose and not unduly oppressive on individuals].) And there is no question that a city, in the exercise of its police power to abate a nuisance, may regulate businesses by limiting the hours of operation of a liquor store to less than those permitted by Business and Professions Code section 25631, which only prohibits the sale of any alcoholic beverage between the hours of 2:00 a.m. and 6:00 a.m. of the same day. (See Suzuki v. City of Los Angeles (1996) 44 Cal.App.4th 263, 268 [restricting hours of operation of liquor store to 6:30 a.m. to 10:00 p.m.].) Ordinance 418 is not a total prohibition on alcohol sales. The City, however, has not presented any evidence, as the City of Los Angeles presented in Suzuki, that the City was seeking to abate a nuisance when it enacted Ordinance No. 418, nor that the means the City employed were reasonably necessary and not unduly oppressive.

Thus, in order for the City to show as a matter of law that the ordinance is not preempted, the City must show that it adopted the ordinance to abate a nuisance. The City has not done so. There is no discussion of abating a nuisance in the City’s motion or separate statement. There is some evidence in the record suggesting that the City may have enacted Ordinance 418 because of a nuisance, but that evidence is both uncited by the City and equivocal. For example, the Planning Commission’s Resolution No. 13-34 states that the “City Council has expressed a desire to preserve public, health, safety, welfare, peace, and morals as they relate to the regulation of ‘off-sale’ licensed alcoholic beverage outlets,” and that the ordinance’s restrictions “are deemed reasonably necessary to protect the public health, safety, welfare, peace, and morals of the citizens of the city by reducing potential nuisance and criminal activities adjacent to residential areas.” (Defendants’ Request for Judicial Notice, Exh.3, p. 1.) The City does not say what these health, safety, welfare, peace, and morals issues are, or how they are related to the sale of alcohol between 12:00 a.m. and 2:00 a.m. To the contrary, the language of the resolution suggests that there are no such nuisance issues yet, only a “potential” nuisance. There apparently is also a staff report by the Planning Commission (Defendants’ Request for Judicial Notice, Exh. 2, p. 3), but the City has not submitted it (nor is it clear the court could take judicial notice of the truth of its contents). Similarly, the minutes of the City Council meeting on November 18, 2013 include a statement by the mayor pro tem that he “felt it was prudent to take some steps toward curing some occurrences at very late hours that could be problematic,” but this is hardly a finding of the existence of a nuisance or a statement that the purpose of the ordinance was to abate or curb “some occurrences” that might amount to a public nuisance. In any event, the City does not in its moving papers make this argument.

Nor has the City established that Ordinance 418 is duplicative of section 25631, because it differs from and is not therefore coextensive with section 25631. (See Big Creek Lumber, supra, 38 Cal.4th at p. 1150 [“[l]ocal legislation is ‘duplicative’ of general law when it is coextensive therewith”].) Nor is Ordinance 418 contradictory, or inimical to section 25631, because the ordinance is arguably to abate nuisance not having to do with licensure or criminal charges, while section 25631 is a criminal statute making it a misdemeanor to sell alcohol. (See ibid.; Korean American Legal Advocacy Foundation, supra, 23 Cal.App.4th at pp. 391-92 [drawing the same distinction].)

Therefore, the City has not carried its moving burden of showing that Ordinance No. 418 is not preempted.

2. Due Process

The City also argues that 7-Eleven was not entitled to notice and an opportunity to be heard prior to the enactment of Ordinance 418 because, under the “legislative act” doctrine, it did not have to give 7-Eleven any notice that it was considering changing the hours 7-Eleven, apparently the only alcohol-selling business in the “CPD Zone,” could sell alcohol. Under the “legislative act” doctrine, “the enactment of a general zoning ordinance by a city’s voters under the initiative process, being ‘legislative’ in character, require[s] no prior notice and hearing, even though it might well be anticipated that the ordinance would deprive persons of significant property interests.” (San Diego Bldg. Contractors Assn. v. City Council (1974) 13 Cal.3d 205, 211.) Such “legislative” acts are different from “adjudicatory” matters in which “the government’s action affecting an individual [is] determined by facts peculiar to the individual case” because “legislative” decisions involve the adoption of a “broad, generally applicable rule of conduct on the basis of general public policy.” (Id. at pp. 212-13.) For example, the Supreme Court in San Diego Bldg. Contractors held that an ordinance establishing a 30-foot height limitation for buildings constructed within a prescribed coastal zone in the city was “unquestionably a general legislative act,” and contrasted the ordinance to “any of the great number of more limited ‘administrative’ zoning decisions, such as the grant of a variance or the award of a conditional use permit, which are adjudicatory in nature and which thus involve entirely different constitutional considerations.” (Id. at p. 212.) On the other hand, “[s]ubdivision approvals, like variances and conditional use permits, involve the application of general standards to specific parcels of real property,” and “[s]uch governmental conduct, affecting the relatively few, is ‘determined by facts peculiar to the individual case’ and is ‘adjudicatory’ in nature.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 614.)

The City argues that Ordinance 418 is legislative because it is a broad and generally applicable rule that restricts the times during which alcohol may be sold in a specific area, and therefore is not adjudicatory. (Fact 24; Motion, 15:9-16:12.) As 7-Eleven argues that this seemingly broad rule of general application actually only affects a single business: 7-Eleven. (Fact 86.) Ordinance 418 affects less than the “relatively few”; it affects only one. (See Horn v. County of Ventura, supra, 24 Cal.3d at p. 614.)1 Adjudicative government decisions are subject to procedural due process principles. (Id. at p. 612.)

In addition, Business and Professions Code section 23790 provides: “No retail license shall be issued for any premises which are located in any territory where the exercise of the rights and privileges conferred by the license is contrary to a valid zoning ordinance of any county or city.” Section 23790 further provides: “Premises which had been used in the exercise of those rights and privileges at a time prior to the effective date of the zoning ordinance may continue operation under the following conditions: [¶] (a) The premises retain the same type of retail liquor license within a license classification[; and ¶] (b) The licensed premises are operated continuously without substantial change in mode or character of operation.” (Bus. & Prof. Code, § 23790.) “The ‘plain language’ of section 23790 ‘exempts existing nonconforming uses from compliance with later enacted zoning ordinances . . . when the business has continuously operated without substantial change in either mode or character of operation.” (Bauer v. City of San Diego (1999) 75 Cal.App.4th 1281, 1293; see id. [city may not revoke liquor store operator’s vested unconditional right to operate her business as a legal nonconforming use without a hearing on the “mixed questions of law and fact” of whether an existing legal nonconforming use should continue under grandfathered provisions].) 7-Eleven submits evidence that it has been operating continuously without substantial change in character since December 2, 2013. (Fact 81.) 7-Eleven also submits evidence that it relied on its ability to sell liquor during the hours permitted by Business and Professions Code section 25631 by entering into a 10-year lease for the premises in December 2010 and by spending $925,768.09 to “build-out” the location. (Facts 82-85.) Ordinance No. 418 became effective 30 days after it was passed on December 2, 2013, and allowed grandfathered sale of alcohol for approximately one year, which right it purports to terminate, at least between the hours of midnight and 2 a.m., as of December 31, 2014. (See RJN, Exh. 5.) This change requires a hearing. (See Bauer, supra, 75 Cal.App.4th at p. 1295-96 [“the City could not properly deem [the plaintiff’s] grandfathered rights automatically terminated without providing Bauer with an opportunity to be heard,” particularly where the plaintiff had relied on its right to do business unencumbered by the new restriction and the restriction thus interfered with the plaintiff’s “right to continue its established business”].)

The City alternatively argues that it provided notice to “the public,” including 7-Eleven, by posting City Council agendas at City Hall for review. (Facts 8-9, 12-13, 17-18.) The City, however, cites no authority for the proposition that such public notice is adequate. Indeed, “[a]lthough actual notice is not required, ‘“[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”’” (Bank of America v. Giant Inland Empire R.V. Center, Inc. (2000) 78 Cal.App.4th 1267, 1273; see Pillsbury v. South Coast Regional Com. (1977) 71 Cal.App.3d 740, 753 [“when notice is a person’s due, process which is a mere gesture is not due process,” and the “means employed must be such as one desirous of actually informing (that person) might reasonably adopt to accomplish it”].) Here, if in fact 7-Eleven is the only store affected by Ordinance No. 418, a municipality desiring to give reasonable notice would have done more than simply posting Council agendas at City Hall, requiring an employee of 7-Eleven to stop by City Hall each day to see if the City was contemplating changing a zoning law that would affect only or primarily 7-Eleven. (Facts 8-9, 12-13, 17-18.) A municipality wishing to give reasonable notice would have provided notice to the one interested party (or few interested parties) to be affected by the ordinance. There is no dispute that the City did not provide such notice. (Facts 9, 14, 19.) The City has not carried its burden on summary judgment of showing that it gave 7-Eleven adequate notice and an opportunity to be heard before enacting Ordinance 418.

B. 7-Eleven’s Motion

1. Preemption

7-Eleven’s arguments in support of its motion on the issue of preemption are the same as its arguments in opposition to the City’s motion. 7-Eleven argues that Ordinance 418 is preempted because it regulates the sale of alcoholic beverages. The law is not that simple.

As noted, and as the City comes close to arguing in its opposition to 7-Eleven’s motion, the City may regulate nuisances that affect alcohol sales, including by restricting the hours of sale to less than the hours permitted under Business and Professions Code section 25631, so long as it does so in a way that is not “arbitrary or unreasonable.” (Korean American Legal Advocacy Foundation, supra, 23 Cal.App.4th at pp. 390-392 & fn. 5; see Suzuki, supra, 44 Cal.App.4th at p. 268.) Just as the City has not submitted evidence showing that its Ordinance 418 was based on a reasonable and non-arbitrary exercise of its police power to abate a nuisance, 7-Eleven has not submitted evidence, necessary to carry its moving burden on summary judgment, to establish that the City’s passage of Ordinance 418 was “arbitrary or unreasonable.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [“‘plaintiff . . . has met’ his ‘burden of showing that there is no defense to a cause of action if’ he ‘has proved each element of the cause of action entitling’ him ‘to judgment on that cause of action’”].)

2. Business and Professions Code section 23790

7-Eleven also argues that it is entitled to summary judgment under Business and Professions Code section 23790. As noted, Section 23790 provides, among other things, that “[p]remises which had been used in the exercise of those rights and privileges at a time prior to the effective date of the zoning ordinance may continue operation under the following conditions: [¶] (a) The premises retain the same type of retail liquor license within a license classification[; and ¶] (b) The licensed premises are operated continuously without substantial change in mode or character of operation.” (Bus. & Prof. Code § 23790.)

7-Eleven cites Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1801, superseded by statute on other grounds as stated in Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 173, and Mussalli v. City of Glendale, supra, 205 Cal.App.3d 524. Both are distinguishable.

In Boccato the city passed an ordinance requiring businesses selling alcoholic beverages to obtain a conditional use permit and imposed several operating conditions on all businesses licensed in the city of Hermosa Beach to sell alcohol. The court held that section 23790 preempted local zoning ordinances to the extent the ordinance purported to regulate previously existing businesses licensed to sell alcoholic beverages. (Boccato v. City of Hermosa Beach, supra, 29 Cal.App.4th at p. 1807.) In Mussalli, the court similarly held that a city ordinance prohibiting all sales of alcoholic beverages at automobile service stations conflicted with section 23790 as applied to businesses predating the ordinance. (Mussalli, supra, 205 Cal.App.3d at p. 528.) The court in Suzuki, however, distinguished both of these cases because the ordinance in Suzuki applied “to any business, whether or not it sells alcoholic beverages, as long as the business as operated or maintained constitutes a nuisance,” not just businesses selling alcoholic beverages, and held that section 23970 does not apply to city ordinances to abate nuisances. (Suzuki, supra, 44 Cal.App.4th at pp. 272, 277.)

The court in City of Oakland v. Superior Court (1996) 45 Cal.App.4th 740, cited by the City, agreed with Suzuki, holding that a “city ordinance addressing nuisance problems associated with alcoholic beverage sale establishments does not improperly regulate preexisting grandfathered licensees or tax licensees for regulatory purposes.” (Id. at p. 747.) In City of Oakland, the city enacted rules requiring alcohol-selling merchants to post performance standards, and provided that upon receipt of a complaint the City would conduct an administrative hearing to determine if the vendor had conformed to the performance standards and, if not, the City could impose conditions on the use of the property to ensure compliance, or revoke the merchant’s “deemed approved status,” seek to have the activity abated as a nuisance, or refer the matter to the ABC for revocation of the merchant’s liquor license. (Id., at pp. 747-48.) The court held that section 23790 did not preempt this ordinance because the ordinance’s purpose was “to control and abate nuisances and criminal activities occurring near alcoholic beverage sales establishments” and not to regulate alcohol sales. (Id., at pp. 752, 755; see id. at p. 758, fn. 13 [“the city’s authority to control and abate nuisances and criminal activities exists despite any grandfather[ed] rights makes it unnecessary for us to also consider whether the ordinance is preempted by section 23790”].) Notably, the ordinance in City of Oakland dealt only with alcoholic beverage sale establishments, which suggests that local governments can regulate nuisances whether or not the ordinance expressly regulates businesses selling alcoholic beverages. (See ibid.; cf. Suzuki, supra, 44 Cal.App.4th at pp. 272, 277.)

7-Eleven submits evidence that the City enacted Ordinance 418 on December 2, 2013, that 7-Eleven had the same Type 21 ABC License before December 2, 2013 that it has today, and that it has operated the same business continuously without substantial change since December 2, 2013. (Facts 3, 5-7.) These facts, which are actually legal conclusions, are supported only by the declaration of Monica Krueger, 7-Eleven’s Senior Real Estate Representative for the region that includes La Canada. (Kreuger Decl., ¶ 3.) Kreuger states the conclusion, without foundation, that 7-Eleven’s Type 21 ABC license has always granted it the right to sell alcoholic beverages for off-site consumption from 6:00 a.m. to 2:00 a.m. (Id., ¶ 6.) Krueger, the Real Estate Representative for the region, has also failed to lay a proper foundation to support her statements about what kind of license this 7-Eleven store had or has, or the manner in which the store has operated over time. The court sustains the City’s objections to paragraphs 5-7 of Krueger’s declaration.2 As result, there is no admissible evidence to support the facts in 7-Eleven’s separate statement regarding type of license it has, when that license permits it to sell alcohol, and whether it has been operated without change since December 2, 2013. (See 7-Eleven’s Sep. Stmt., Issue 1, Fact 2; Issue 2, Fact 2, Issue 3, Facts 5-7, and Issue 4, Facts 5-7.) Therefore, 7-Eleven has failed to carry its moving burden of establishing that it has complied with the requirements of Business and Professions Code section 23790 that the premises retain the same type of retail liquor license and are operated continuously without substantial change in mode or character of operation.

More important, 7-Eleven is silent on whether Ordinance 418 is an effort by the city to control and abate nuisances, which under City of Oakland the City is entitled to do despite any grandfathered rights under section 23790. (See City of Oakland, supra, 45 Cal.App.4th at p. 758, fn. 13.) Therefore, 7-Eleven has not carried its moving burden on summary judgment.

Disposition

The motions for summary adjudication and for summary judgment are denied. Moving parties, respectively, are to give notice.

1.Robert Stanley, La Canada’s Director of Community Development, states in a reply declaration “Ordinance No. 418 applies to a number of businesses, which also sell alcoholic beverages for off-site consumption . . . .” (Stanley Decl., ¶ 3.) Stanley, however, does not name a single such business, nor suggest that the ordinance in fact affects more than a “relatively few,” as discussed in Horn.

2. The City’s objections to the two Krueger Declarations are sustained on objections 1-3 and overruled on objection 4.