City of Oakland v. Superior Court

• Decision Date: 20 May 1996
• Docket Number: No. A068638,A068638
• Citation: 45 Cal.App.4th 740,53 Cal.Rptr.2d 120
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3559, 96 Daily Journal D.A.R. 5773 CITY OF OAKLAND et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent; California Beverage Retailer Coalition et al., Real Parties in Interest.

Page 120

53 Cal.Rptr.2d 120

45 Cal.App.4th 740, 96 Cal. Daily Op. Serv. 3559,

96 Daily Journal D.A.R. 5773

CITY OF OAKLAND et al., Petitioners, v. The SUPERIOR COURT of Alameda County, Respondent California Beverage Retailer Coalition et al., Real Parties in Interest.

No. A068638.

Court of Appeal, First District, Division 4, California.

May 20, 1996.

Rehearing Denied June 17, 1996.

Review Denied Aug. 14, 1996.

Jayne W. Williams, City Attorney, Joyce M. Hicks, Assistant City Attorney, Randolph W. Hall, Assistant City Attorney, Robert J. Graham, Supervising Trial Attorney, Mark P. Wald, Deputy City Attorney, Oakland, Dan Siegel, Siegel, Yee & Jonas, Oakland, for petitioners.

John L. Fellows, III, City Attorney, Torrance, for amici curiae on behalf of petitioners.

No appearance by respondent.

Renee D. Wasserman, Rogers, Joseph, O'Donnell & Quinn, San Francisco, A. Clifford Allen, Donahue, Gallagher, Woods & Woods, Oakland, for real parties in interest.

Pillsbury Madison & Sutro, James M. Seff, Kevin M. Fong, J. Daniel Davis, San Francisco, for amici curiae on behalf of real parties in interest.

REARDON, Associate Justice.

Many California cities must grapple with nuisances associated with alcoholic beverage sale establishments. Some local entities have adopted ordinances to identify those activities associated with alcoholic beverage sales that constitute nuisances and to eliminate their attendant threat to the public health and welfare by means of an administrative process. The proprietors of alcoholic beverage sale establishments challenge these ordinances, arguing that they trod on the state's exclusive right to regulate and tax alcoholic beverage sales. We hold that a city ordinance addressing nuisance problems associated with alcoholic beverage sale establishments does not improperly regulate preexisting grandfathered ¹ licensees or tax licensees for regulatory purposes.

In this case, petitioner City of Oakland (city) enacted an ordinance regulating nuisances associated with alcoholic beverage establishments. Real parties in interest California Beverage Retailer Coalition and Village Market filed an action against the city, seeking a declaratory judgment that the ordinance was invalid, an injunction precluding its enforcement, and monetary damages. The trial court granted summary adjudication on two of six causes of action, concluding that the city ordinance illegally regulated holders of earlier-granted alcoholic beverages licenses and taxed these licensees in violation of state law. (See Cal. Const., art. XX, § 22; Bus. & Prof.Code, § 23790.) ² The city and others petitioned for a writ of mandate and prohibition, seeking to compel the trial court to vacate its summary adjudication order and enter an order denying the motion for summary adjudication. We issued an alternative writ and now grant the city's petition.

I. FACTS

In July 1993, petitioner City of Oakland enacted an ordinance as a one-year pilot program to address public nuisance problems associated with certain alcoholic beverage sale establishments in specified areas of the city. (See Oakland Planning Code, §§ 15000-15530 [Ord. No. 11624].) Under the ordinance, the sale of alcoholic beverages in the city is deemed to be an approved commercial activity as long as the merchant complies with the city's "Deemed Approved Performance Standards." ³ Each merchant must post a notice of these standards. (Id. § 15320.) If the city receives a complaint that these standards have been violated, an administrative hearing must be conducted to review the complaint. (Id. § 15340.) The hearing officer must determine if the merchant has conformed to the performance standards and, if the merchant has not, may impose conditions on the use of the property to ensure compliance. (Id. § 15340.) If the merchant fails to comply with these conditions, the deemed approved status may be revoked. (Id. § 15350.) Once administrative appeals to the planning commission and city council are exhausted, the city may seek to have the activity abated as a nuisance. (Id. §§ 15360-15370, 15510(c).) The city may also refer the matter to the Department of Alcoholic Beverage Control for revocation of the merchant's liquor license. (See Bus. & Prof. Code, §§ 24200-24211.) To support the pilot project, most alcoholic beverage sale licensees within the city will be assessed a $600 fee. An additional $200 reinspection fee may be imposed on an estimated 10 percent of the alcoholic beverage establishments covered by the ordinance. ⁴ (Oakland Planning Code, §§ 15400, 15510(f).)

In November 1993, real parties in interest California Beverage Retailer Coalition and Village Market and others ⁵ filed a complaint against the city, seeking declaratory and injunctive relief and damages. The complaint alleged that the ordinance was preempted by state law, violated due process and equal protection, and infringed civil rights. It also sought a preliminary injunction to preclude enforcement of the ordinance pending trial on the merits of the complaint. In December 1993, petitioner Coalition on Alcohol Outlet Issues ⁶ was granted leave to intervene and filed a complaint in intervention in this matter. At the hearing on the motion for preliminary injunction, the trial court found that the ordinance was preempted by state law and that the restrictions and conditions imposed by the ordinance were impermissibly retroactive. The trial court granted the preliminary injunction later that month, barring enforcement of the ordinance. The city and CAOI appealed. In September 1994, we reversed the order granting the preliminary injunction, finding that there was no clear and imminent danger of irreparable harm. (See case No. A064898.) ⁷

In November 1994, CBRC filed its second amended complaint. It alleged six causes of action--preemption by article XX of the California Constitution, violation of section 23790, unlawful taxation in violation of article XX of the California Constitution, and violations of due process, equal protection and civil rights. CBRC also moved for summary adjudication on the second and third causes of action alleging improper regulation in violation of section 23790 and unlawful taxation in violation of the state Constitution. The city and CAOI opposed the motion, but it was granted by the trial court.

In January 1995, the trial court filed its order granting summary adjudication on these two causes of action. It found no triable issue of fact existed on these causes of action and ruled in CBRC's favor on the law. It concluded that the ordinance was preempted by section 23790 because it regulates previously existing licensees. It also found that the fees required by the ordinance were illegal because the power to regulate and tax alcoholic beverages belongs exclusively to the state. Its order anticipated trial on the unresolved matters in this case.

The city petitioned this court for a writ of mandate or prohibition. The city argues that the trial court erred as a matter of law in concluding that the ordinance was preempted by state law. It seeks either a peremptory writ of mandate directing the trial court to vacate and set aside its order granting summary adjudication and entering a denial order instead, or an alternative writ directing the trial court to show cause why it should not be so directed. In January 1996, we issued an alternative writ.

II. MANDATE ⁸

First, we must determine whether we may review the order granting summary adjudication on a petition for writ of mandate. A writ of mandate may be issued by any court to an inferior tribunal to compel the admission of a party to the use or enjoyment of a right to which it is entitled and from which it is unlawfully precluded by the inferior tribunal. (Code Civ. Proc., § 1085.) Typically, the writ will not issue if there is a plain, speedy and adequate remedy in the ordinary course of law. (Id. § 1086.)

An order granting partial summary judgment--or summary adjudication--is not an appealable order. Mandate may be granted to review an order granting summary adjudication. (See Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 111, 77 Cal.Rptr. 243, 453 P.2d 747; Mason v. Superior Court (1985) 163 Cal.App.3d 989, 994, 210 Cal.Rptr. 63; see 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 98, pp. 737-738.)

There is not yet a final judgment in this case, as the trial court has ruled on only two of six causes of action. In most cases, an interim order must await review on appeal from the final judgment. However, in cases of significant legal impact, appellate courts may consider a petition for an extraordinary writ. The adequacy of an appellate remedy depends on the circumstances of the case, vesting a large measure of discretion in the appellate court to grant or deny a writ. (San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 770, 192 Cal.Rptr. 415.)

Several factors cause us to exercise our discretion and consider the merits of the petition at this time. First, the issues in this case present significant legal questions of constitutional and statutory interpretation. If the court permits CBRC to go to trial based on erroneous rulings of law, substantial trial expenses will be needlessly imposed on the city and the public. (See, e.g., San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361, 364-365, 136 Cal.Rptr. 557.) This factor tends to make later review on appeal an inadequate remedy. (City of Glendale v. Superior Court (1993) 18 Cal.App.4th 1768, 1776-1777, 23 Cal.Rptr.2d 305; see Hampton v. Superior Court (1952) 38 Cal.2d 652, 657, 242 P.2d 1 [prohibition]; Bricklayers & Masons Union No. 1 v. Superior Court (1963) 216 Cal.App.2d 578, 582, 31 Cal.Rptr. 115 [prohibition]; see also 8 Witkin, Cal. Procedure, supra, §§ 101, 116, pp. 739-740, 751-753.)

Second, the public interest supports an immediate review of the trial court's ruling. When the validity of a...