Aziz v. City of Maywood CA2/8

Filed 10/14/22 Aziz v. City of Maywood CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
NADIYA AZIZ, B314247
Petitioner and Appellant, (Los Angeles County
Super. Ct. No.19STCP04963)
v.
CITY OF MAYWOOD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mitchell L. Beckloff, Judge. Affirmed.
Roger J. Diamond for Petitioner and Appellant.
Richards, Watson & Gershon, T. Peter Pierce, Ginetta L.
Giovinco and Sarah E. Gerst for Defendant and Respondent.
_________________________________
Nadiya Aziz appeals from the trial court’s judgment
denying her petition for writ of administrative mandamus.
She argues that the City of Maywood’s denial of her application
for a commercial cannabis license and a conditional use permit
(CUP) was not supported by the evidence. She asks us to reverse
the trial court’s judgment and to order the City to issue her a
commercial cannabis license and a CUP.
We conclude that Aziz waived her arguments on appeal by
failing to support her claims with any applicable legal authority
and by omitting material evidence from her brief. Accordingly,
we affirm the judgment on grounds of waiver and mootness, and
do not determine whether substantial evidence supports the trial
court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The City’s Cannabis Business Regulations
In December 2016, the City adopted Ordinance No. 16-03,
titled “Code Amendment Permitting Marijuana Businesses in
Certain Zones of the City.” The ordinance set forth the procedure
and requirements for obtaining a cannabis business license.
The City reserved the right to deny a license under certain
conditions.
In August 2018, the City adopted Ordinance No. 18-12,
which amended its existing cannabis business regulations.
Ordinance No. 18-12 set forth specific categories of businesses
that could be permitted and detailed operational requirements
for those businesses. It also listed grounds for denial of an
application. To obtain a license, it provided that an applicant
would also need to secure a CUP.
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On August 28, 2019, the City enacted Ordinance 19-03.
This ordinance prohibited all new cannabis business licenses and
CUPs in the City. It allowed cannabis businesses with a valid
license and CUP issued prior to the ordinance’s effective date to
operate. The effective date of the ordinance was September 28,
2019, 30 days after its final passage.
II. Aziz’s Applications and the City’s Denials
In March 2019, Aziz applied to the City for a commercial
cannabis license for a “non[-]store[]front delivery/retailer”
business called Kiki Greens. That same month, the City sent her
a letter with the subject “Zoning Verification (Commercial
Cannabis Licensing),” confirming that her application was for an
area of the City zoned for cannabis businesses.
In July 2019, Aziz submitted her application for a CUP for
Kiki Greens, stating it was for a “Vehicle Dispensary (Non-
Storefront).”
On September 3, 2019, the City’s Planning Commission
held a duly noticed public hearing on Aziz’s CUP application.
After hearing testimony from Aziz and others, the Planning
Commission voted unanimously to deny the application.
Aziz appealed that decision to the City Council.
On September 25, 2019, the City Council held a duly
noticed public hearing on Aziz’s appeal. After reviewing the
evidence and taking new testimony, the City Council denied
Aziz’s appeal of her CUP application. This denial meant that her
license application could not be granted.
The City Council detailed four reasons for its denial of the
CUP: (1) the impacts on nearby properties, including a speech
language therapy center for children, and that the rear of the site
where the delivery vehicles would load and unload was adjacent
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to residences, which raised a concern about security and parking;
(2) that Aziz failed to show that reasonable restrictions or
conditions would prevent these aforementioned impacts; (3) that
a non-storefront, delivery-only cannabis business was
inconsistent with the City’s General Plan because it was not a
retail, residential, office, or dining establishment, and it would
adversely impact public foot traffic in the area; and (4) that the
shape and size of the location was inadequate for parking and the
unloading and loading of delivery vehicles.
III. Aziz’s Writs and Trial Court’s Ruling
Aziz subsequently filed a petition for a writ of
administrative mandamus in superior court, seeking review of
the City’s decision. She then filed a motion for an order granting
a writ of administrative mandamus. Following briefing and a
hearing, the trial court denied Aziz’s Petition for Writ of
Administrative Mandamus in April 2021. The trial court found
that Aziz had waived her arguments due to insufficient briefing.
The trial court also found that the City’s decision was supported
by substantial evidence. The court acknowledged the City’s
argument that Aziz’s application was now moot due to the change
in the City’s law prohibiting new cannabis businesses. It also
recognized Aziz’s failure to address the City’s mootness argument
in her reply brief. But the court declined to rule on this
argument, noting only that it “appears well taken.”
Aziz timely appealed.
DISCUSSION
I. Standard of Review
Aziz sought a writ of administrative mandamus under
section 1094.5, which sets forth the “procedure for judicial review
of adjudicatory decisions rendered by administrative agencies.”
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(Topanga Assn. for a Scenic Community v. County of Los Angeles
(1974) 11 Cal.3d 506, 514.) Under section 1094.5(c), there are
two standards of judicial review of administrative decisions:
substantial evidence or independent judgment. (Malibu
Mountains Recreation, Inc. v. County of Los Angeles (1998) 67
Cal.App.4th 359, 366 (Malibu Mountains); accord Clary v. City of
Crescent City (2017) 11 Cal.App.5th 274, 284.) “The initial denial
of a CUP or other license is reviewed by the substantial evidence
standard, since until a permit or license is received, no right has
vested.” (Malibu Mountains, supra, 67 Cal.App.4th at p. 367.)
An “appellant challenging [an agency’s findings] has the
burden to show that they are not” supported by substantial
evidence. (JKH Enterprises, Inc. v. Department of Industrial
Relations (2006) 142 Cal.App.4th 1046, 1062.)
II. Aziz Waived Her Substantial Evidence Claim
Aziz’s brief does not conform to the rules of court in two
significant ways.
The trial court held that Aziz “waived her substantial
evidence claim” because she failed to present a “fair description of
the underlying evidence,” citing Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881 (Foreman & Clark Corp.).) This is also
true on appeal. An appellant arguing a decision is not supported
by substantial evidence must set forth in their brief all of the
material evidence and not merely their own evidence. (Ibid.)
Aziz did not include all “significant facts” in her brief, as
required. (Cal. Rules of Court, rule 8.204(a)(2)(C).) She failed to
cite evidence that the City and the trial court relied upon in
making their determinations. For example, she fails to cite the
evidence of the impacts on nearby residences that were adjacent
to the proposed dispensary’s driveway. She also argues that the
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City found “that the storefront vehicle dispensary use would not
be consistent with the Maywood General Plan but that is not
true. This is simply a made up hypothetical fact.” But she fails
to cite the evidence that supported this finding. The evidence
shows that the Maywood General Plan sets the area aside for
retail, residential, office, and dining establishments (not a
delivery-only dispensary). The City was also concerned that the
dispensary’s vehicles would “adversely affect[] the foot traffic to
adjacent businesses and does not enhance the quality of the
businesses” in the area. Instead, in discussing the pages of the
record where these omitted facts are found, Aziz alleges that
these pages reflect that the council members “are controlled by
bribes.” These material omissions forfeit her alleged error that
the trial court’s decision is not supported by the evidence.
(Foreman & Clark Corp., supra, 3 Cal.3d at p. 881.)
Aziz further fails to cite any legal authority to support her
argument that the trial court’s decision was not supported by the
evidence. Her brief contains a single string of citations to case
law for the general proposition that “[a]rbitrary action by an
Administrative Agency is disapproved by the Courts.” The cases
she cites do not concern writs of administrative mandamus, nor
any remotely relevant factual circumstances. They are all
employment discrimination cases. (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52; Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028; Loggins v. Kaiser
Permanente Internat. (2007) 151 Cal.App.4th 1102; Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243; Lui v. City and
County of San Francisco (2012) 211 Cal.App.4th 962; Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997.) A brief
must contain legal authority to support its contentions, or the
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court may treat the claims as forfeited. (Cal. Rules of Court,
rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793;
United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 146, 153.)
In sum, Aziz’s failure to comply with the rules of court
waives her claim of error on appeal.
III. It Is Unnecessary to Address City’s Mootness
Argument
Aziz asks us to reverse the trial court and “direct the City
to issue the required conditional use permit and regulatory
permit.” The City argues that the relief sought by Aziz’s writ of
mandamus is no longer available due to Ordinance No. 19-03,
effective September 28, 2019, prohibiting any new cannabis
businesses.1
In light of our holding that Aziz has waived her claim of
error on appeal, it is unnecessary for us to address whether her
claim would be viable if it had not been waived. Since the trial
court explicitly declined to rely on mootness as a basis for its
decision, we refrain from addressing the issue for the first time
on appeal, particularly where we dispose of the appeal on other
grounds.
1 Both before the trial court and now on appeal, Aziz had the
opportunity to brief the question of mootness in response to the
City’s argument, but she did not do so in her reply brief below,
and she did not file a reply brief in this court.
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DISPOSITION
We affirm and award costs to respondent City of Maywood.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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