CV Amalgamated LLC v. City of Chula Vista ( 2022 )

Filed 8/12/22; Certified for Publication 8/15/22 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CV AMALGAMATED LLC, D078720 & D079322
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00033446-CU-MC-CTL)
CITY OF CHULA VISTA,
ORDER MODIFYING
Defendant and Respondent. OPINION AND DENYING
REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on July 19, 2022, be modified
as follows:
1. On page 11, delete the first two sentences of the first paragraph
(starting with “Counsel for the City” and ending with “or were disqualified”),
replace with the following two sentences, and add new footnote 11 as
indicated, which will require the renumbering of all subsequent footnotes:
The appellate record does not contain evidence about the current
status of the City’s licensing of storefront cannabis businesses.11
However, documents in the appellate record show that subsequent to
the City’s denial of CVA’s applications, all of the applicants for
storefront retail licenses in Council District One that had been selected
to participate in Phase Two either dropped out or were disqualified.
11 After we originally issued our opinion in this matter, in a belated
attempt to present evidence showing the current status of its licensing
efforts for storefront cannabis businesses, the City filed a request for
judicial notice and a motion to take new evidence on appeal, along with
a petition for rehearing. Although it made no attempt to present new
evidence during the course of this appeal, the City now asks that we
grant rehearing to consider evidence showing that the City has already
issued storefront licenses to several cannabis retailers in several
Council Districts. The City contends that the new evidence would
support its argument that indispensable parties have not been joined in
this action and would show that some of the relief sought by CVA will
be ineffectual. The City cites Code of Civil Procedure section 909 and
California Rule of Court, rule 8.252(b) and (c), which permit a litigant
to bring a motion requesting that a reviewing court take new evidence
in a non-jury case. As the City acknowledges, such a request will be
granted, in the discretion of the reviewing court, only in exceptional
circumstances. (Diaz v. Prof. Community Management, Inc. (2017) 16
Cal.App.5th 1190, 1213.)
Whether or not the City’s request that we consider such evidence
might have been meritorious if it was made during the briefing and
argument of this appeal (an issue we do not reach), the request is
inappropriate at this stage of the proceedings after we already issued
our opinion. (Gentis v. Safeguard Business Systems, Inc. (1998) 60
Cal.App.4th 1294, 1308 [“It is well settled that arguments . . . cannot be
raised for the first time in a petition for rehearing”]; Smith v. Crocker
First Nat. Bank of San Francisco (1957) 152 Cal.App.2d 832, 837
[“Counsel are not permitted to argue their cases in a piecemeal fashion
and points not previously argued will not be considered where raised
for the first time on petition for rehearing.”].) Based on the City’s
description of the relevant timeline, during the briefing and argument
of this appeal there was ample time for the City to attempt to submit
new evidence, for CVA to present any countervailing evidence, and for
the parties to discuss the legal significance of that evidence. According
to the City, the first license was issued more than a month before
2
CVA’s November 1, 2021 opening appellate brief was filed; another
license was issued before the City filed its respondent’s brief; and the
remaining licenses were issued before oral argument. The City’s
failure to identify the new evidence during the briefing and argument
of this appeal is unexplained and inexcusable. It is also an abuse of the
resources of this court for the City to ask us to reexamine this appeal
and to consider additional legal issues based on newly submitted
evidence that the City could have identified at an earlier stage. We
accordingly deny the petition for rehearing, along with the City’s
motion to take new evidence and the request for judicial notice.
In light of the City’s representation that other storefront
cannabis licenses have issued, we emphasize that the scope of relief
sought by CVA in this appeal does not include a request for an order
invalidating any storefront cannabis licenses that the City may have
already issued to other parties. Our decision in favor of CVA in this
appeal, accordingly, should not be construed as directing that the trial
court must issue a writ invalidating any licenses issued to other
parties.
2. On page 28, delete the last two sentences of the second paragraph
(starting with “Those actions” and ending with “relief it seeks”) including
deleting former footnote 15, and replace with the following language and
newly numbered footnote 16:
As the relief that CVA seeks in this appeal does not include an
order invalidating any licenses that the City may have issued to other
parties, other parties will not be prejudiced by any writ that we direct
the trial court to issue.16 We therefore conclude that no parties need
be joined in this action prior to granting CVA the relief it seeks on
appeal.
16 Because CVA does not seek an order invalidating any license
issued to another party, this case is not like the opinion cited by the
City to support its argument, in which a party who was already issued
valid permits was determined to be an indispensable party in an action
seeking to cancel those permits. (Greif v. Dullea (1944) 66 Cal.App.2d
986, 993-994 [taxi operator was an indispensable party because the
relief sought would result in cancelling permits to operate its taxis].)
3
3. On page 29, before the last sentence of the “Disposition” section
(beginning with “CVA shall recover”), insert the following sentence:
The scope of relief sought by CVA in this appeal did not include an
order invalidating any storefront cannabis licenses that may have
already been issued by the City to other parties, and this opinion
should not be construed as directing that the trial court must issue a
writ affording any such relief.
There is no change in the judgment.
Respondent’s petition for rehearing is denied.
O’ROURKE, Acting P. J.
Copies to: All parties
4
Filed 7/19/22 (unmodified opinion)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CV AMALGAMATED LLC, D078720 & D079322
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00033446-CU-MC-CTL)
CITY OF CHULA VISTA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E. L. Strauss, Judge. Reversed.
Finch, Thornton & Baird, David S. Demian and Mariah K. Emmons, for
Plaintiff and Appellant.
Musick, Peeler & Garrett, Cheryl A. Orr, William A. Bossen and Daniel
J. Taylor, for Defendant and Respondent.
This litigation arises from a decision by the City of Chula Vista (the
City) to reject applications by CV Amalgamated LLC, dba Caligrown (CVA)
for licenses to operate retail cannabis stores in the City. Specifically, CVA
challenges the trial court’s denial of its petition for a writ of mandate (Code
Civ. Proc., § 1085) in which it sought an order requiring the City to:
(1) rescind its rejection of CVA’s applications; (2) fully rescore CVA’s
applications as directed by the City Manager; and (3) follow the requirements
set forth in the City’s laws and regulations for awarding licenses to operate
storefront retail cannabis businesses.
We conclude that CVA’s appeal has merit, and we therefore reverse the
judgment and order the trial court to issue a writ of mandate requiring the
City to take the actions prayed for by CVA.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The City’s Cannabis Ordinance and Cannabis Regulations Governing
the Issuance of Licenses to Operate a Retail Cannabis Business in the
City
In 2018, the City enacted an ordinance regulating commercial cannabis
businesses (the Cannabis Ordinance). (Mun. Code, §§ 5.19.010-5.19.290.) 1
Among other things, the Cannabis Ordinance allows for a maximum of eight
storefront retail cannabis business licenses, with up to two licenses in each of
the City’s four council districts (the Council Districts). (Id., § 5.19.040, subd.
(A).) 2 The procedure to apply for a license is set forth in the Cannabis
Ordinance (id., § 5.19.050), as supplemented by the regulations that the City
issued to clarify and facilitate the implementation of the Cannabis Ordinance
(the Cannabis Regulations) 3 (Regs., §§ 0501, 0502).
1 All references to “Mun. Code” are to the Chula Vista Municipal Code.
2 Specifically, the Cannabis Ordinance provides for both “Storefront”
retail licenses and “Non-Storefront” (i.e., delivery) retail licenses. No more
than three retail licenses are available in each council district, but no more
than two in each district may be Storefront licenses. (Mun. Code, § 5.19.040,
subd. (A).)
3 All further references to “Regs.” are to the Cannabis Regulations.
2
The application procedure is broken into two phases. In Phase One, an
applicant submits an application with required information. (Mun. Code,
§ 5.19.050, subd. (A).) The required information includes: (1) a description of
the applicant’s experience; (2) documentation demonstrating a minimum of
$250,000 in liquid assets; (3) a business plan; and (4) an operating plan. (Id.,
§ 5.19.050, subd. (A)(1).) The Phase One application is reviewed by the City’s
Finance Director and Police Chief to determine whether it meets the
minimum qualifications set forth in the Cannabis Ordinance and whether the
applicant has passed the required background checks. (Id., § 5.19.050, subds.
(A)(4), (A)(5).) The Finance Director and Police Chief have discretion to reject
an application only for the specific reasons set forth in the Cannabis
Ordinance. 4 After the Phase One review is complete, the applicant receives
written notice of approval or rejection. (Id., § 5.19.050, subd. (A)(6).) 5 An
4 The grounds upon which the Finance Director may reject an
application focus on the timeliness and completeness of the application and
whether the applicant meets the minimum specified requirements. (Mun.
Code, § 5.19.050, subd. (A)(4).) The grounds upon which the Police Chief may
reject an application center on criminal activity or misconduct in the
operation of a cannabis, alcohol or pharmaceutical business by the applicant
or any of its owners, officers, or managers, or the failure of any of those
individuals to submit to a background check, including fingerprinting. (Id.,
§ 5.19.050, subd. (A)(5).) The Cannabis Ordinance does not provide the
Finance Director or the Police Chief with the discretion to reject the
application for any reason beyond those listed. (Id., § 5.19.050, subds. (A)(4),
(A)(5).)
5 The Cannabis Ordinance states, “The Finance Director or Police Chief
shall serve the Applicant, either [p]ersonally or by first class mail addressed
to the address listed on the application, with dated written notice of the
decision to approve or reject the Phase One Application.” (Mun. Code,
§ 5.19.050, subd. (A)(6).) The Cannabis Regulations state, “If an applicant’s
Phase One application has been approved by the Finance Director and Police
3
applicant may appeal a rejection to the City Manager. (Id., § 5.19.050, subd.
(A)(6).)
An applicant who is approved in Phase One is qualified to participate
in Phase Two, but depending on the number of qualified candidates, that
applicant may not end up being offered a Phase Two application slot. The
Cannabis Ordinance provides, “Applicants who are approved by the Finance
Director and Police Chief under the Phase One Application process, or by the
City Manager upon appeal, shall be deemed qualified to submit a Phase Two
Application. If the number of deemed ‘qualified’ Phase One Applicants . . .
exceeds the number of available City Licenses . . . , a merit-based system
established by the City shall be used to determine which of the qualified
Applicants is invited to submit a Phase Two Application.” (Mun. Code,
§ 5.19.050, subd. (A)(7).)
The merit-based system for determining which applicants are given an
application slot in Phase Two is described in the Cannabis Regulations.
(Regs., § 0501, subd. (N).) “All qualified retailer applications will be scored in
the following four categories with the maximum points possible in each
category as follows: [¶] a. Experience/Qualifications of the business
owner/team (150 points) [¶] b. Liquid Assets (50 points) [¶] c. Business Plan
(150 points) [¶] d. Operating Plan (150 points) [¶] The highest initially
scored applications will undergo an additional interview process to further
assess each scored category. The maximum aggregate score shall be 500
points.” (Id., § 0501, subd. (N)(1).) The Cannabis Regulations set forth a
detailed description of how the merit-based scoring system will be used to
Chief, the Finance Director will provide the applicant with dated, written
notice that the Phase One Application has been deemed qualified.” (Regs.,
§ 0501, subd. (L).)
4
decide which applicants obtain the available licenses. Because the detail of
that process is important to this appeal, we set forth the relevant provisions
at length:
“2. Selection Process. All qualified applications will be ranked
from highest to lowest in aggregate score and placed on a list in
that order. Selection of applications to proceed to the Phase Two
Application Process will be made from this list according to the
following process:
“a. The highest aggregate scored application will be
given a Phase Two application slot for the Council District
and retailer category identified in their application.
Applications that have received a tie aggregate score will be
placed in rank order using a random selection process (pick
numbers out of a hat, etc.) Subsequent applications will
then be selected in the rank order of their aggregate score
and placed into their selected Council District and retailer
category. [¶] . . . [¶]
“b. The above process will continue until an application
results in a Council District reaching the maximum
number of licenses allowed by [Chula Vista Municipal
Code] 5.19. This could be 2 storefront retailers and 1 non-
storefront retailer; 1 storefront retailer and 2 non-
storefront retailers; or 3 non-storefront retailers.
“c. Once a Council District has reached the maximum
number of retailer license applications allowed, only the
remaining qualified applications for the unfilled Council
Districts will be used to select for the remaining licenses in
those unfilled Council District[s].
“d. This selection process will continue for the remaining
unfilled Council Districts following steps a. through c.
above until the maximum number of licenses for each
Council District have be[en] reached, or until qualified
applications for unfilled Council Districts are exhausted.
5
“e. Should qualified applications for unfilled Council
Districts be exhausted, any remaining unselected, qualified
applications for filled Council Districts will be placed in
rank order based on their aggregate score. The highest
ranked remaining qualified application for a filled Council
District that matches the retailer category in an unfilled
Council District and that does not have another retailer
license application that was selected in that unfilled
Council District will be offered the opportunity to select a
site within the unfilled Council District and obtain a
signed, notarized statement from the owner(s) of a site
located within that Council District per the requirements of
the Phase One application process. . . . Should the
applicant decline the opportunity or fail to complete site
selection and submit the owner notification statement
within 30 days, the next ranked remaining qualified
application for a filled Council District will be selected and
offered the same opportunity. The selection process
contained in this subsection will continue for the remaining
unfilled Council Districts.
“f. If a selected qualified retailer applicant withdraws
their application or is unable to complete the Phase Two
process, the next ranked remaining unselected qualified
application will be offered the same process as step e. This
will continue until all Council Districts have reached the
maximum number of licenses or until qualified applications
are exhausted.” (Regs., § 0501, subd. (N)(2).)
Under this selection process, an applicant for a storefront license that
is deemed qualified in Phase One remains eligible to possibly obtain an
application slot in Phase Two until all of the storefront licenses are issued in
each Council District. Whether or not an applicant receives a Phase Two
application slot will depend on the applicant’s ranking during the merit-
based scoring process. Only when all of the applicants for storefront licenses
in one Council District are depleted will the City offer a Phase Two
application slot to an applicant who applied in a different Council District.
6
An applicant deemed qualified in Phase One is to receive a notice of rejection
only after the Phase Two process is completed and all of the licenses are
issued. Specifically, the Cannabis Regulations provide that “[o]nce the Phase
One selection process for all Council Districts is complete, any remaining
unselected qualified applicants will be sent a Notice of Decision.” (Regs.,
§ 0501, subd. (N)(3).)
B. CVA’s Applications for a Storefront Retail License
CVA submitted applications for storefront retail cannabis business
licenses in each of the City’s four Council Districts. 6 On January 31, 2020,
the Chief of Police sent CVA four identical notices rejecting CVA’s Phase One
applications in each of the four Council Districts. The Chief of Police
identified three grounds for the rejections: (1) failure to submit required
fingerprints; (2) a conviction of moral turpitude of one of CVA’s principals;
and (3) the failure of CVA to score high enough in a merit-based evaluation
conducted by the City. With respect to the third reason for the rejections, the
Chief of Police stated that the “provisional application score of 339 has failed
to rank high enough to be given a Phase Two application slot for [the relevant
Council District].” 7
6 CVA’s four applications were among the 136 applications for retail
cannabis business licenses received by the City, 84 of which were for
storefront licenses.
7 Although the Cannabis Ordinance and Cannabis Regulations state that
merit-based scoring is to be conducted only after an applicant is deemed
qualified in Phase One for the purpose of determining whether to give the
applicant an application slot in Phase Two, the Chief of Police cited CVA’s
merit-based score as one of the bases for rejecting CVA’s applications in
Phase One.
7
CVA filed an appeal with the City Manager, in which it challenged the
City’s rejections of its applications for licenses in Council Districts One, Three
and Four. With respect to the score it received in the merit-based evaluation,
CVA argued, among other things, that the scoring was unfair because it was
based on criteria that CVA did not know would be evaluated during Phase
One. The City Manager held an administrative hearing on April 30, 2020,
during which witness testimony was presented. Among the witnesses was
Matthew Eaton, director of operations from the outside firm HdL Companies,
which the City retained to evaluate the license applications. Although Eaton
did not perform the initial review and scoring of CVA’s applications, he
testified, based on having “re-reviewed” the applications, about the reasons
that CVA received a score of 339. Eaton testified at length that CVA’s score
was lower than it could have been because CVA did not format its
applications in a manner that grouped together in the same section all of the
information relevant to each of the four categories on which an applicant was
to be scored. 8
8 As we have noted, the Cannabis Regulations state that applicants will
be scored based on “a. Experience/Qualifications of the business owner/team
(150 points) [¶] b. Liquid Assets (50 points) [¶] c. Business Plan (150 points)
[¶] d. Operating Plan (150 points).” (Regs., § 0501, subd. (N)(1).) Eaton
testified that “applicants who scored outstanding generally . . . presented
their application very similar to how the requirements were outlined in
[Chula Vista Municipal Code section] 5.19.050 in that it was broken down
into the four different sections. And then those four different sections, if the
information was all found within that section and we didn’t have to go
through multiple sections to find the information, generally scored higher
scores.” As we will explain later in our discussion, Eaton also detailed how,
for each of the four scoring categories, CVA received a lowered score because
of how it formatted its applications.
8
In a written decision dated July 7, 2020, the City Manager granted the
appeal. The City Manager explained that the parties agreed the fingerprint
issue had been resolved, 9 and that he was overturning the Chief of Police’s
reliance on a crime of moral turpitude by one of CVA’s principals as a basis
for rejection because of the nature and temporal remoteness of the crime. 10
As to the rejection of CVA’s applications due to the merit-based score of 339,
the City Manager ruled as follows:
“[CVA] received a total score of 339 out of 500 points on its
application, which was not sufficient to move into a Phase 2
application slot for any of its three storefront applications. . . .
The scores in each of the four categories were identical for each
application: 84 points (out of 150) for Experience/Qualifications;
40 points (out of 50) for Liquid Assets; 95 points (out of 150) for
Business Plan; and 120 points (out of 150) for Operating Plan. . . .
Witness Matthew Eaton, of HdL, the City consultant firm that
scored the applications, repeatedly testified that the basis for the
scores was poor formatting and disorganization of the
application, rather than the substance of the information
submitted for each category. The Hearing Officer finds the
scoring should be based solely on the City-established criteria
around the applicant’s qualifications and ability to operate a top-
quality retail cannabis establishment, rather than application
form. The Hearing Officer overturns this basis for the City’s
rejection and find[s] that [CVA] has met its burden by a
preponderance of the evidence that this basis for rejection is
erroneous. Accordingly, the Hearing Officer directs the City to
reassess [CVA’s] score without regard to the formatting or
organization of the application, in conformance with this
Statement of Decision, and to issue a new Notice of Decision,
9 A clerical error caused the City to believe, erroneously, that CVA had
not submitted all of the required fingerprints.
10 The conviction at issue, which was incurred by a contingent two-
percent owner of CVA, was a petty theft conviction from 1964 that had been
expunged.
9
which shall be final and contain no right to appeal to the City
Manager. ([Regs., §] 0501[, subd. ](P)(4)(a)).”
On August 21, 2020, the Deputy City Manager sent a letter to CVA,
which enclosed (1) a letter from Eaton describing his rescoring of CVA’s
applications; and (2) revised notices of decision from the Finance Director,
rejecting CVA’s applications in Council Districts One, Three and Four.
In his letter, Eaton stated, “As I testified in the hearing, the only
evaluation criteria that received a deduction of points due to the way it was
formatted and/or organized was Relevant Experience/Qualifications of
Cannabis Team.” Eaton then explained that he had reevaluated that
category, with the result that “[CVA’s] score for Relevant
Experience/Qualifications of Cannabis Team raised from 84 points to 130
points. [CVA’s] Phase II application review overall score was changed from
339 points to 385 points.” Eaton did not describe any effort to rescore the
other three categories.
The revised notices of decision (for Council Districts One, Three and
Four) stated, “This notice is issued pursuant to [Chula Vista Municipal Code]
sections 5.19.050[, subd. ](A)(4) and 5.19.050[, subd. ](A)(6), and advises you
that your application has been rejected. The application has been rejected for
the following reasons, any one of which is a lawful basis for rejection under
City’s laws and regulations: [¶] ● [t]he provisional application score of 385
has failed to rank high enough to be given a Phase Two application slot for
[the relevant] Council District. ([Mun. Code, §] 5.19.050[, subd. ](A)(7) and
[Regs.,] §0501[, subd. ](N)).” The notices advised CVA that the rejection was
final and could not be appealed to the City Manager.
Counsel for the City represented at oral argument that, to the best of
his knowledge, the City has not yet issued any storefront retail cannabis
10
licenses in Council Districts One, Three and Four. Documents submitted by
CVA show that subsequent to the City’s denial of CVA’s applications, all of
the applicants for storefront retail licenses in Council District One that had
been selected to participate in Phase Two either dropped out or were
disqualified. The City then gave applicants from Council District Two the
opportunity to fill Phase Two application slots in Council District One. As
the City has confirmed, this was done pursuant to the Cannabis Regulations
(Regs., § 0501, subd. (N)(2)(e)) because the City determined that all of the
qualified applicants for Council District One had been eliminated, and
therefore it looked to the highest scoring applicants from other Council
Districts to fill open application slots in Council District One. Because the
City rejected CVA’s applications in Phase One, CVA was not in the running
for any possible Phase Two application slots in any of the Council Districts.
C. CVA’s Petition and Complaint
CVA initiated this litigation on September 22, 2020, by filing a petition
and complaint against the City, in which it challenged the City’s denial of its
applications in Council Districts One, Three and Four (the Petition). The
Petition pled four theories of relief against the City: (1) traditional
mandamus (Code Civ. Proc., § 1085); (2) administrative mandamus (id.,
§ 1094.5); (3) declaratory relief; and (4) promissory estoppel. In the course of
the litigation, however, CVA elected to proceed only on its claim for
traditional mandamus, and it voluntarily dismissed the other three causes of
action without prejudice.
With respect to the prayer for relief in traditional mandamus, the
Petition sought an order that would, among other things, require the City to
“reinstate CVA’s Commercial Cannabis Business Applications [for Council
11
Districts One, Three and Four],” and to “comply with the City’s ministerial
duty to correctly rescore CVA’s Commercial Cannabis Business Applications.”
On January 11, 2021, CVA filed a motion for a peremptory writ of
mandate. As relevant here, two of the grounds for relief set forth by CVA
were that (1) the City failed to follow the Cannabis Ordinance and Cannabis
Regulations when it rejected CVA’s applications in Phase One solely on the
ground that CVA had not scored high enough in the merit-based scoring
process; and (2) the City had failed to follow the City Manager’s directive to
rescore CVA’s applications to arrive at a score that was not lowered due to
the formatting and organization of the applications.
On January 29, 2021, the trial court issued an order denying CVA’s
motion for a writ of mandate. The trial court made no factual findings and
failed to explain why it concluded that CVA had failed to meet its burden. 11
CVA filed a timely notice of appeal. 12
11 The trial court ruled, without further elaboration: “Petitioner [CVA’s]
Motion for Peremptory Writ is denied. Petitioner has not met its burden that
writ relied if [sic] appropriate” The trial court also provided no explanation
for its ruling during the hearing on CVA’s motion.
12 CVA filed two notices of appeal. The first was filed on March 1, 2021,
after the trial court denied CVA’s motion for a peremptory writ of mandate.
That appeal was assigned Case No. D078720. The second was filed on June
30, 2021, after the trial court granted CVA’s request to dismiss the remaining
causes of action without prejudice. That appeal was assigned Case No.
D079322. On September 9, 2021, we granted the parties’ stipulation to
consolidate the appeals.
12
II.
DISCUSSION
On appeal, CVA seeks an order requiring the trial court to issue a writ
of mandate, pursuant to Code of Civil Procedure section 1085, directing the
City to take the following actions: (1) to rescind its rejection of CVA’s
applications for storefront retail cannabis business licenses in Council
Districts One, Three and Four; (2) to process those applications in accordance
with the City’s Cannabis Ordinance and Cannabis Regulations; and (3) to
rescore those applications in their entirety (not just with respect to the
Experience/Qualifications category) in compliance with the directive of the
City Manager.
A. Applicable Legal Standards
We begin our discussion by reviewing the legal standards applicable to
the issuance of a writ of mandate pursuant to Code of Civil Procedure section
1085.
A traditional writ of mandate will issue to “compel the performance of
an act which the law specially enjoins, as a duty resulting from an office,
trust, or station” (Code Civ. Proc., § 1085), “where there is not a plain,
speedy, and adequate remedy, in the ordinary course of law” (id., § 1086). As
relevant here, “[t]he writ will issue against a county, city or other public body
or against a public officer.” (County of Los Angeles v. City of Los Angeles
(2013) 214 Cal.App.4th 643, 653 (County of Los Angeles).) “What is required
to obtain writ relief is a showing by a petitioner of ‘(1) A clear, present and
usually ministerial duty on the part of the respondent . . . ; and (2) a clear,
present and beneficial right in the petitioner to the performance of that
13
duty.’ ” (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7
Cal.4th 525, 539-540.)
Two different circumstances in which writ relief may be issued are
potentially relevant here. (Glendale City Employees’ Assn., Inc. v. City of
Glendale (1975) 15 Cal.3d 328, 344 [“mandamus may issue to compel the
performance of a ministerial duty or to correct an abuse of discretion”
(fn. omitted)]; County of Los Angeles, supra, 214 Cal.App.4th at p. 653 [“Code
of Civil Procedure section 1085 permits judicial review of ministerial duties
as well as quasi-legislative and legislative acts.”].) We discuss each in turn.
First, “[a] court may issue a writ of mandate to compel a public agency
or officer to perform a mandatory duty. [Citation.] ‘This type of writ petition
“seeks to enforce a mandatory and ministerial duty to act on the part of an
administrative agency or its officers.” ’ [Citation.] ‘ “[T]he writ will not lie to
control discretion conferred upon a public officer or agency.” ’ ” (Collins v.
Thurmond (2019) 41 Cal.App.5th 879, 914 (Collins), italics added.) Under
this theory of relief, “[m]andamus may issue . . . to compel an official both to
exercise his discretion (if he is required by law to do so) and to exercise it
under a proper interpretation of the applicable law.” (Common Cause v.
Board of Supervisors (1989) 49 Cal.3d 432, 442 (Common Cause).)
Often, the crucial issue when the petitioner seeks such relief is whether
the act that the petitioner seeks to compel is a mandatory and ministerial
duty, or, on the contrary, is a quasi-legislative and discretionary act. “ ‘ “[I]n
most cases, the appellate court must determine whether the agency had a
ministerial duty capable of direct enforcement or a quasi-legislative duty
entitled to a considerable degree of deference. This question is generally
subject to de novo review on appeal because it is one of statutory
interpretation, a question of law for the court.” ’ ” (Collins, supra, 41
14
Cal.App.5th at pp. 914-915.) “ ‘A ministerial act is an act that a public officer
is required to perform in a prescribed manner in obedience to the mandate of
legal authority and without regard to his own judgment or opinion concerning
such act’s propriety or impropriety, when a given state of facts exists.’ ”
(Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29
Cal.4th 911, 916.) “A public entity has a ministerial duty to comply with its
own rules and regulations where they are valid and unambiguous.” (Gregory
v. State Bd. of Control (1999) 73 Cal.App.4th 584, 595 (Gregory).)
Second, a court may issue a writ when a public agency has abused its
discretion in carrying out a discretionary function. “Although traditional
mandamus will not lie to compel the exercise of discretion in a particular
manner, it is a proper remedy to challenge agency discretionary action as an
abuse of discretion.” (Asimow et al., Cal. Practice Guide: Administrative
Law (The Rutter Group 2022) ¶ 13.90.) “That mandate will lie whenever an
administrative board has abused its discretion is a rule so well established as
to be beyond question.” (Manjares v. Newton (1966) 64 Cal.2d 365, 370; see
also Common Cause, supra, 49 Cal.3d at p. 442 [“mandamus will lie to correct
an abuse of discretion by an official acting in an administrative capacity”].)
“Mandamus may . . . issue to correct the exercise of discretionary legislative
power, but only where the action amounts to an abuse of discretion as a
matter of law because it is so palpably unreasonable and arbitrary.” (Ellena
v. Dept. of Ins. (2014) 230 Cal.App.4th 198, 206 (Ellena).)
“When a court reviews a public entit[y’s] decision for an abuse of
discretion, the court may not substitute its judgment for that of the public
entity, and if reasonable minds may disagree as to the wisdom of the public
entity’s discretionary determination, that decision must be upheld.
[Citation.] Thus, the judicial inquiry . . . addresses whether the public
15
entity’s action was arbitrary, capricious or entirely without evidentiary
support, and whether it failed to conform to procedures required by law.”
(California Public Records Research, Inc. v. County of Stanislaus (2016) 246
Cal.App.4th 1432, 1443 (California Public Records Research).) “Where only
one choice can be a reasonable exercise of discretion, a court may compel an
official to make that choice.” (California Correctional Supervisors
Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824,
827 (California Correctional Supervisors).) “Deferential review of quasi-
legislative activity minimizes judicial interference in the interests of the
separation of powers doctrine.” (County of Los Angeles, supra, 214
Cal.App.4th at p. 654.)
With respect to both theories of writ relief, “[w]hen an appellate court
reviews a trial court’s judgment on a petition for a traditional writ of
mandate, it applies the substantial evidence test to the trial court’s findings
of fact and independently reviews the trial court’s conclusions on questions of
law, which include the interpretation of a statute and its application to
undisputed facts.” (California Public Records Research, supra, 246
Cal.App.4th at p. 1443.) Here, the trial court made no factual findings, and
the relevant facts are undisputed. We accordingly apply a de novo standard
of review. (California Correctional Supervisors, supra, 96 Cal.App.4th at
p. 827 [in reviewing a petition for traditional mandamus, “ ‘the appellate
court may make its own determination when the case involves resolution of
questions of law where the facts are undisputed’ ”].)
B. The City Failed to Follow Its Ministerial and Mandatory Duty to
Follow Its Own Procedures When It Rejected CVA’s Applications in
Phase One for Failure to Score High Enough
CVA’s first contention is that the City failed to follow a mandatory and
ministerial duty when it rejected CVA’s applications in Phase One on the
16
ground that CVA did not score high enough in the merit-based scoring
process. 13 According to CVA, neither the Cannabis Ordinance nor the
Cannabis Regulations permit the City to disqualify an applicant during
Phase One for not scoring high enough. On the contrary, the Cannabis
Ordinance and the Cannabis Regulations require that the City deem an
applicant to be qualified if it meets the stated minimum requirements, which
do not include any merit-based scoring requirement. CVA’s argument has
merit.
As we have explained, the Cannabis Ordinance clearly sets out a two-
phase application process. In Phase One, an applicant must submit an
application establishing certain minimum qualifications. (Mun. Code,
§ 5.19.050, subd. (A).) The Finance Director and the Police Chief review the
application to ensure it meets the minimum qualifications and that the
applicant has passed the required background checks, but they have no
discretion to reject an application during Phase One if it meets the minimum
requirements. (Id., § 5.19.050, subds. (A)(4) [“The Phase One Application
shall be reviewed by the Finance Director for completeness and to determine
if City’s minimum City License qualifications have been satisfied” (italics
added)], (A)(5) [“applications accepted by the Finance Director as minimally
qualified shall be forwarded to the Police Chief for review and completion of
13 CVA deduces from the list of applicants who were rejected during
Phase One that the City set a 400-point threshold for applicants to survive
the Phase One review process. The City claims that it did not employ a 400-
point threshold, and that “[t]he highest scoring applications just happened to
exceed 400 and received an interview for Phase Two.” We need not resolve
that factual issue to decide this appeal, as it is undisputed that the City
rejected CVA’s applications during Phase One based on its determination
that CVA did not rank “high enough,” regardless of whether it chose 400
points as a qualifying threshold score.
17
any and all required background checks”].) According to the Cannabis
Ordinance, “Applicants who are approved by the Finance Director and Police
Chief under the Phase One Application process, or by the City Manager upon
appeal, shall be deemed qualified to submit a Phase Two Application.” (Id.,
§ 5.19.050, subd. (A)(7), italics added.) The parties do not dispute that CVA
met all the minimum requirements and passed its background checks.
Therefore, CVA should have been deemed qualified to proceed to Phase Two
of the application process.
Under the Cannabis Ordinance, only after the Phase One application
process is completed and applicants have either been deemed qualified or
unqualified to submit a Phase Two application, does the City’s merit-based
scoring process become relevant. “If the number of deemed ‘qualified’ Phase
One Applicants . . . exceeds the number of available City Licenses . . . , a
merit-based system established by the City shall be used to determine which
of the qualified Applicants is invited to submit a Phase Two Application.”
(Mun. Code, § 5.19.050, subd. (A)(7).)
The Cannabis Regulations provide detailed guidelines governing how
qualified applicants are to be selected to fill open Phase Two application slots,
including the use of a merit-based scoring process. (Regs., § 0501, subd.
(N)(2).) Under the Cannabis Regulations, regardless of a qualified applicant’s
merit-based score, a qualified applicant for a storefront retail license will
remain eligible for a Phase Two application slot until all of the storefront
retail licenses have been issued in each of the four Council Districts. Only at
the end of this process, when all of the storefront retail licenses are issued, is
a qualified applicant to be informed that its application has been rejected
because it did not score high enough to receive a Phase Two application slot.
(Id., § 0501, subd. (N)(3) [“[o]nce the Phase One selection process for all
18
Council Districts is complete, any remaining unselected qualified applicants
will be sent a Notice of Decision.”].)
Further, under the Cannabis Regulations, the City is required to
exhaust all of the qualified applicants in a particular Council District before
taking qualified applicants from a different Council District to fill a Phase
Two application slot. (Regs., § 0501, subds. (N)(2)(c) [“Once a Council District
has reached the maximum number of retailer license applications allowed,
only the remaining qualified applications for the unfilled Council Districts
will be used to select for the remaining licenses in those unfilled Council
District[s]” (italics added)], (N)(2)(e) [“Should qualified applications for
unfilled Council Districts be exhausted, any remaining unselected, qualified
applications for filled Council Districts will be placed in rank order based on
their aggregate score. The highest ranked remaining qualified application
. . . will be offered the opportunity to select a site within the unfilled Council
District” (italics added)].)
Neither the Cannabis Regulations nor the Cannabis Ordinance provide
the City with any discretion in deciding whether to follow the procedures for
(1) deeming applicants to be qualified in Phase One; and (2) filling open
application slots in Phase Two. Therefore, the City has a mandatory and
ministerial duty to follow those procedures. (Ellena, supra, 230 Cal.App.4th
at p. 205 [“ ‘ “[W]here a statute or ordinance clearly defines the specific duties
or course of conduct that a governing body must take, that course of conduct
becomes mandatory and eliminates any element of discretion.” ’ ”].)
The City argues that CVA challenges only discretionary decisions by
the City rather than the City’s failure to perform a mandatory and
ministerial duty. We reject the City’s argument because it confuses the
procedures required by the Cannabis Ordinance and Cannabis Regulations
19
with the discretionary merit-based scoring the City undertakes as part of its
decision process. The City’s merit-based scoring of an application is clearly a
discretionary function, as we will explain at more length in Section II.C, post.
However, the City’s consideration of an application also contains many
mandatory procedures that the City is required to follow. It is those
procedures that are at issue here and that give rise to the mandatory and
ministerial duty of the City.
The City plainly did not follow its own mandatory procedures.
Although it is undisputed that CVA met the minimum requirements in its
Phase One applications and passed its background checks, the City did not
classify CVA as being deemed qualified to participate in Phase Two. Instead,
the City rejected CVA’s applications in Phase One. The reason that the City
gave for the rejection was that CVA failed to rank high enough on the merit-
based scoring. However, that is not a permissible basis on which the City
may reject an applicant in Phase One. As a result, CVA was wrongly
precluded from staying in the running to obtain a Phase Two application slot
under the procedures set forth in the Cannabis Regulations. (Regs., § 0501,
subd. (N)(2).)
In Council District One in particular, the City’s failure to follow its own
procedures negatively impacted CVA’s chances of obtaining a Phase Two
application slot. As we have explained, the City took applicants from other
Council Districts to fill the application slots in Council District One because
there were no other qualified storefront applicants left in Council District
One. Under the City’s own procedures, CVA should have been deemed
qualified in Phase One and should have remained in the running for any
open application slots in Council District One before those application slots
were offered to applicants from other Council Districts.
20
The City’s failure to follow its own procedures provides the basis for the
issuance of a traditional writ of mandate. (Gregory, supra, 73 Cal.App.4th at
p. 595; see also Drummey v. State Bd. of Funeral Directors and Embalmers
(1939) 13 Cal.2d 75, 83 [“where a statute requires an officer to do a
prescribed act upon a prescribed contingency, his functions are ministerial,
and upon the happening of the contingency the writ may be issued to control
his action”].) “We can . . . direct an agency to follow its own rules when it has
a ministerial duty to do so.” (Pozar v. Dept. of Transportation (1983) 145
Cal.App.3d 269, 271.) We will therefore direct the trial court to issue a writ
of mandate requiring the City to (1) to rescind its rejection of CVA’s
applications for storefront retail cannabis business licenses in Council
Districts One, Three and Four; and (2) to process those applications in
accordance with the City’s Cannabis Ordinance and Cannabis Regulations.
In processing CVA’s applications in accordance with the applicable
procedures in the Cannabis Ordinance and Cannabis Regulations (1) the City
shall not rely on CVA’s merit-based score in determining whether CVA is
deemed qualified to submit a Phase Two Application; and (2) in each
particular Council District, the City shall exhaust all of the qualified
applicants from that particular Council District before issuing a license for a
particular Council District to applicants from other Council Districts.
C. The City Acted in an Arbitrary and Capricious Manner in Failing to
Rescore All Four Categories in Its Merit-Based Scoring of CVA’s
Applications
CVA next seeks an order requiring the City to rescore the entirety of its
applications in response to the City Manager’s decision granting CVA’s
administrative appeal. Specifically, CVA contends that the City should not
have limited its rescoring effort to the Experience/Qualifications category but
rather should have reexamined the score for all four of the categories.
21
We must first determine the scope of our review. The City’s act of
assigning a score to an applicant for a cannabis business license is a quasi-
legislative discretionary function, not a ministerial act. “ ‘A ministerial act is
an act that a public officer is required to perform in a prescribed manner in
obedience to the mandate of legal authority and without regard to his own
judgment or opinion concerning such act’s propriety or impropriety, when a
given state of facts exists. Discretion, on the other hand, is the power
conferred on public functionaries to act officially according to the dictates of
their own judgment.’ ” (County of Los Angeles, supra, 214 Cal.App.4th at pp.
653-654.) In deciding what merit-based score to assign to an applicant, the
City indisputably exercises discretion and judgment, and there are no
binding rules requiring that any particular score be given in any particular
circumstance. As the City was engaged in a discretionary act when it
undertook to rescore CVA’s applications pursuant to the City Manager’s
decision granting CVA’s appeal, we are limited to reviewing that act to
determine whether it was “arbitrary, capricious or entirely without
evidentiary support, and whether it failed to conform to procedures required
by law.” (California Public Records Research, supra, 246 Cal.App.4th at
p. 1443.)
Here, as we will explain, the City acted in an arbitrary and capricious
manner in rescoring CVA’s applications because it limited its efforts to only
one of the four relevant categories. The Cannabis Regulations state that
applicants will be scored based on “a. Experience/Qualifications of the
business owner/team (150 points) [¶] b. Liquid Assets (50 points) [¶] c.
Business Plan (150 points) [¶] d. Operating Plan (150 points).” (Regs.,
§ 0501, subd. (N)(1).) At the administrative hearing Eaton testified that for
each of these four categories, CVA’s score was lowered because of how it
22
formatted and organized its applications, as shown by the following portions
of Eaton’s testimony.
First, with respect to the Experience/Qualifications score, Eaton
explained that CVA “did not receive a score of outstanding as a result of the
manner and location in which we had to search to find all of the required
details.”
Second, with respect to the Liquid Assets score, Eaton stated, “There’s
no doubt that the applicant has funds. . . . But in order to receive an
outstanding, a score representing outstanding, we would have expected that
this information be all found in one location, and that they would have at
least the amount of start-up funds to match the self-reported start-up
expenses that they reported in their income statement sheet.” (Italics added.)
Third, with respect to the Business Plan score, Eaton was asked the
following question by CVA’s representative at the hearing: “My question is
too, some of the marketing plans were included in the actual operations plan.
Is it because they were—was putting it in the operations plan detrimental to
us in the business plan scoring?” Eaton replied, “It is the reason why you
scored slightly lower, yes.” In this regard, Eaton also stated that he “would
have expected [a] more clear and concise outline of the abilities and
considerations of the market.”
Finally, with respect to the Operating Plan score, Eaton stated, “[Y]ou
were one point off, it appears, on each of the criteria. And applicants that
scored higher tended to present the information all in one location, and it
would be as—the same reason for all the other reasons. A lot of the detail
had to be collected throughout the entire application instead of solely in that
business plan that was being scored and evaluated.”
23
Based on this testimony, as well as Eaton’s repeated general
statements that applicants were scored based on formatting and
organization, the City Manager directed that CVA’s applications be rescored
“without regard to the formatting or organization of the application.” The
City Manager did not limit this directive to any one of the four categories.
Indeed, the City Manager observed that Eaton “repeatedly testified that the
basis for the scores was poor formatting and disorganization of the
application, rather than the substance of the information submitted for each
category.” (Italics added.)
Nevertheless, in his letter explaining the rescoring process, Eaton
stated that he had rescored only the Experience/Qualifications category,
resulting in an overall score increase from 339 to 385. His stated reason for
limiting the rescoring to only one category was the following: “As I testified
in the hearing, the only evaluation criteria that received a deduction of points
due to the way it was formatted and/or organized, was Relevant
Experience/Qualifications of Cannabis Team.” 14
Eaton’s express reason for limiting the rescoring to only one category is
contradicted by his own clear testimony at the administrative hearing that
all four categories were impacted by the formatting and organization of
CVA’s applications. Eaton’s testimony compels the conclusion that rescoring
each of the four categories was warranted. We therefore conclude that the
City’s decision to limit its rescoring of CVA’s applications to only one of the
four categories was “arbitrary, capricious,” and was also “entirely without
14 The City contends that the record shows that Eaton did rescore all of
the categories, but that the results were simply the same as the original score
in three of the categories. We reject the City’s characterization of the
evidence because it directly conflicts with the content of Eaton’s letter.
24
evidentiary support.” (California Public Records Research, supra, 246
Cal.App.4th at p. 1443.) Moreover, to the extent the City’s actions
contravened the City Manager’s directive “to reassess [CVA’s] score without
regard to the formatting or organization of the application,” the City also
“failed to conform to procedures required by law.” (Ibid.) CVA has
accordingly met its burden to establish that the City abused its discretion in
conducting the merit-based scoring of CVA’s applications.
Based on our authority to order relief in traditional mandamus when a
public agency has abused its discretion in carrying out a discretionary duty
(Common Cause, supra, 49 Cal.3d at p. 442), we will direct the trial court to
issue a writ of mandate requiring the City to exercise its discretion to rescore
all four categories of CVA’s applications in Council Districts One, Three and
Four without regard to the formatting or organization of the applications in
compliance with the directive of the City Manager.
D. CVA Does Not Have an Adequate Legal Remedy
The City contends that writ relief is not available to CVA because it has
an adequate remedy in law.
“Section 1086 of the Code of Civil Procedure provides that the writ of
mandate ‘must be issued in all cases where there is not a plain, speedy, and
adequate remedy, in the ordinary course of law.’ Although the statute does
not expressly forbid the issuance of the writ if another adequate remedy
exists, it has long been established as a general rule that the writ will not be
issued if another such remedy was available to the petitioner. [Citations.]
The burden, of course, is on the petitioner to show that he did not have such a
remedy.” (Phelan v. Superior Court of San Francisco (1950) 35 Cal.2d 363,
366, fn. omitted.) “ ‘ “ ‘The question whether there is a “plain, speedy and
adequate remedy in the ordinary course of law,” within the meaning of the
statute, is one of fact, depending upon the circumstances of each particular
25
case, and the determination of it is a matter largely within the sound
discretion of the court . . . [.]’ ” [Citation.]’ . . . If it is clear, however, that
mandate is the only remedy that can furnish the relief to which the petitioner
is entitled, the discretion disappears and the petitioner is entitled to the
writ.” (Flores v. Department of Corrections & Rehabilitation (2014) 224
Cal.App.4th 199, 206, citation omitted.)
The City contends that CVA has an adequate remedy at law because it
pled a cause of action for promissory estoppel in the Petition. According to
the City, “By seeking monetary damages through a legal claim for promissory
estoppel, CVA admitted that it has an adequate legal remedy and would not
be entitled to mandamus relief.” The City’s argument lacks merit.
CVA’s promissory estoppel cause of action sought recovery of the
application expenses that CVA lost when the City rejected its applications.
The Petition stated, “CVA expended time, money and resources in preparing
and submitting its applications for the City Licenses. CVA’s application
preparation costs are currently unknown and are according to proof at trial,
but are in an amount that exceeds the jurisdictional limit of this Court. CVA
suffered damages by virtue of its reliance on the City’s promise and the City’s
breach of that promise, and CVA is entitled to reliance damages together
with interest at the maximum legal rates allowed by law. Notably, this is an
inadequate legal remedy for CVA as it has no ability to recover its
expectation damages created by the City’s unlawful conduct.” Recovery of
CVA’s application costs is not an adequate remedy for the City’s failure to
follow its procedures for the issuance of licenses for cannabis retail
businesses, as that remedy would not give CVA the relief it seeks through
traditional mandamus: a chance to compete for and be awarded a license.
26
We therefore conclude that CVA has met its burden to establish that it
does not have an adequate legal remedy and that writ relief is appropriate.
E. The City Has Not Established That Any Indispensable Parties Are
Absent from This Action
The City contends that relief in traditional mandamus is not available
to CVA in this litigation because CVA has failed to join indispensable parties.
The City raised this issue as one of the grounds for opposing writ relief in the
trial court, but the trial court did not specifically rule on the issue.
“Code of Civil Procedure section 389 governs joinder of parties in a civil
action. . . . A person subject to service of process whose joinder will not
deprive the court of subject matter jurisdiction ‘shall be joined as a party in
the action if (1) in his absence complete relief cannot be accorded among
those already parties or (2) he claims an interest relating to the subject of the
action and is so situated that the disposition of the action in his absence may
(i) as a practical matter impair or impede his ability to protect that interest
or (ii) leave any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by reason of
his claimed interest.’ ([Code Civ. Proc.,] § 389, subd. (a).) The inquiry under
clause (a)(2), applicable here, is ‘whether the person is one whose rights must
necessarily be affected by the judgment in the proceeding.’ ” (Pinto Lake
MHP LLC v. County of Santa Cruz (2020) 56 Cal.App.5th 1006, 1013 (Pinto
Lake).)
“If a necessary person cannot be joined as a party, the trial court
considers specific factors to ‘determine whether in equity and good conscience
the action should proceed among the parties before it, or should be dismissed
without prejudice, the absent person being thus regarded as indispensable.’
([Code Civ. Proc.,] § 389, subd. (b).) Those factors are: ‘(1) to what extent a
judgment rendered in the person’s absence might be prejudicial to him or
27
those already parties; (2) the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the prejudice can be
lessened or avoided; (3) whether a judgment rendered in the person’s absence
will be adequate; (4) whether the plaintiff or cross-complainant will have an
adequate remedy if the action is dismissed for nonjoinder.’ (Ibid.)” (Pinto
Lake, supra, 56 Cal.App.5th at pp. 1013-1014.) A court must “weigh practical
realities and other considerations in determining whether a person is
necessary or indispensable.” (Id. at p. 1014.)
The City contends that all of the other applicants who “scored higher
than CVA and advanced to Phase Two” are indispensable parties because the
relief sought by CVA would “prejudice[ ]” them. We reject the City’s
argument. As CVA points out, the relief it seeks in this appeal is limited to
an order directing the City to (1) rescind its rejection of CVA’s applications
and thereafter process them in accordance with the Cannabis Ordinance and
Cannabis Regulations, and (2) rescore the entirety of CVA’s applications in
compliance with the directive of the City Manager. Those actions will not
prejudice the rights of any other applicants, who, like CVA will simply be
judged under the same standards that the City will be ordered to apply to
CVA. 15 We therefore conclude that no parties need be joined in this action
prior to granting CVA the relief it seeks.
15 In the trial court, the relief sought by CVA included an order requiring
the City, to the extent it has already issued any storefront retail cannabis
business licenses in Council Districts One, Three and Four, “to declare that
such licenses are null and void.” However, the scope of the order that CVA
seeks on appeal does not encompass that relief. Moreover, the City has not
yet issued any storefront retail cannabis business licenses in Council
Districts One, Three and Four. Therefore, this case is not like the opinion
cited by the City to support its argument, in which a party who was already
issued valid permits was determined to be an indispensable party in an
28
DISPOSITION
The judgment is reversed. This matter is remanded to the trial court
with instructions to issue a writ of mandate directing the City to (1) rescind
its rejection of CVA’s applications for storefront retail cannabis business
licenses in Council Districts One, Three and Four; (2) process CVA’s
applications in accordance with the City’s Cannabis Ordinance and Cannabis
Regulations, which shall include (a) not relying on CVA’s merit-based score in
determining whether CVA is deemed qualified to submit a Phase Two
Application, and (b) exhausting all of the qualified applicants from each
particular Council District before issuing a license in that particular Council
District to an applicant from another Council District; and (3) rescore CVA’s
applications for storefront retail cannabis business licenses in Council
Districts One, Three and Four in their entirety (not just with respect to the
Experience/Qualifications category) without regard to the formatting or
organization of the applications in compliance with the directive of the City
Manager. CVA shall recover its costs on appeal.
action seeking to cancel those permits. (Greif v. Dullea (1944) 66 Cal.App.2d
986, 993-994 [taxi operator was an indispensable party because the relief
sought would result in cancelling permits to operate its taxis].)
29
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
AARON, J.
30
Filed 8/15/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CV AMALGAMATED LLC, D078720 & D079322
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00033446-CU-MC-CTL)
CITY OF CHULA VISTA,
ORDER CERTIFYING
Defendant and Respondent. OPINION FOR PUBLICATION
THE COURT:
The opinion in this case filed July 19, 2022, and as modified August 12,
2022, was not certified for publication. The court has received a request to
publish the opinion. (Cal. Rules of Court, rule 8.1120(a).)
It appearing the opinion, as modified, meets the standards for
publication specified in California Rules of Court, rule 8.1105(c), the request
pursuant to rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion, as modified, meets the
standards for publication specified in California Rules of Court, rule
8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports"
appearing on page 1 of said opinion be deleted and the opinion, as modified,
herein be published in the Official Reports.
O’ROURKE, Acting P. J.
Copies to: All parties
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