E. Foothill Blvd. v. City of Pasadena

Filed 10/25/06 3570 E. Foothill Blvd. v. City of Pasadena CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed.

Murray & Sabban, Paul S. Murray and Ariel J. Sabban for Plaintiffs and Appellants.

Michele Beal Bagneris, City Attorney and Frank L. Rhemrev, Assistant City Attorney, for Defendants and Respondents.

BACKGROUND

Appellants Michael W. Kaltenthaler and 3570 East Foothill Blvd., Inc., appeal from the judgment denying their petition for writ of administrative mandamus, by which they sought to compel the City of Pasadena (City) to vacate the revocation of a conditional use permit. In addition to the petition, appellants’ pleading included a complaint for damages and declaratory relief, naming the individual members of the Pasadena Board of Zoning Appeals (Board), and alleging that the revocation of the conditional use permit amounted to a violation of civil rights pursuant to Title 42 United States Code section 1983.[1]

The City issued the conditional use permit in 1994 to permit the use of the premises located at 3570 East Foothill Boulevard as a restaurant serving alcohol, with recreation and live entertainment as permitted under certain sections of the Pasadena Municipal Code then in effect.[2] The petition alleges that appellants have been operating a business under the conditional use permit since 1994, and that since then, they have expended more than $900,000 for improvements and a liquor license. In 1995, appellants sought a modification of the conditional use permit’s limit on live entertainment, so that they might present erotic dancing, and after the City refused, they obtained a federal court order allowing them to do so.[3] Appellants allege that in or about April 2003, they entered into a contract with “Lust Party’s, Inc.,” under which they agreed to sublet the property for private parties, two of which were held on April 26, 2003, and May 17, 2003. Undercover officers of the Pasadena Police Department attended the parties, known as “lust parties,” and in June 2003, the City filed a complaint in Los Angeles Superior Court, case No. GC032068, to have the parties declared a nuisance and to permanently enjoin them (the abatement action). A copy of the complaint and related papers were submitted to the trial court with a request for judicial notice. The complaint alleged that the undercover officers obtained admission to the parties by paying a cover charge and stating a name they had been given. Inside, they observed numerous patrons engaged in sexual activity, including sexual intercourse, oral copulation, and group sex. The bar was operational, selling alcohol at the first party until 1:00 a.m., when both officers left. The complaint alleged that during the second party, the officers heard a final call for alcohol at 1:15 a.m., and observed Kaltenthaler serving drinks after 1:00 a.m., less than one hour before the closing time of 2:00 a.m.

On July, 15, 2003, appellants and the City filed an executed stipulation pursuant to which the parties agreed to the following: that the land use designation of the location of the property operated by appellants did not allow adult businesses; that the City had determined that the lust parties constituted an adult business under the Pasadena Municipal Code; that the activities carried on at such parties violated state and local law; that on at least two occasions, lust parties took place on the premises; and that while denying knowledge of the conduct or activities alleged to have taken place at the parties, Kaltenthaler, upon notification by the City, immediately terminated all contracts and agreements to allow any such use in the future.[4] Appellants stipulated to the issuance of a permanent injunction, enjoining them from allowing the use of the premises for lust parties or in any manner that would violate the Pasadena Municipal Code or state, local, or federal law. On the same day, a permanent injunction issued pursuant to the stipulation.

On July 2, 2003, following the filing of the City’s complaint but before issuance of the permanent injunction, the Board served a notice of public hearing to determine whether reasonable grounds existed for the revocation of appellants’ conditional use permit. The administrative record was before the trial court and shows that a hearing took place as scheduled on July 16, 2003. The City’s planning division staff recommended revocation of the conditional use permit on the grounds that the property had been operating as an adult business and that appellants had violated the terms of the permit. The incidents cited by the staff were the same two lust parties observed by undercover officers on April 26, 2003, and May 17, 2003, and which were the subject of the abatement action. Accompanying the staff report and considered by the Board were the declarations of the undercover officers, Detectives Richard Padilla and William Grisafe, describing the lewd conduct they had observed at the two parties and the sale of alcohol after 1:00 a.m.

Appellants’ attorney, Paul Murray, addressed the Board, informing it about the abatement action, among other things. Mr. Murray informed the Board that the stipulation had been filed the day before, and that all activity that might constitute a nuisance had been permanently terminated. Assistant City Attorney Frank L. Rhemrev acknowledged to the Board that the City had filed the abatement action and that appellants had stipulated to a permanent injunction prohibiting them from allowing future lust parties or violating any valid law. Rhemrev nevertheless recommended revoking the conditional use permit based upon the same conduct. Appellants’ counsel again argued that revocation was not warranted, because any nuisance had been abated. He also asserted that due process required a review of the facts in greater depth in another forum.

The Board voted to revoke the conditional use permit, essentially on the same facts underlying the abatement action, and issued express findings. The Board found that the Pleasures Gentlemen’s Club had not only been violating the City’s zoning ordinance, which does not permit adult businesses, it had been operating in violation of the conditional use permit, under which the only permissible recreation consisted solely of billiard, ping pong, arcade games, shuffleboard, or darts. The findings cited the two lust parties and declared them a public nuisance, as they involved conduct which violated Penal Code sections 314 and 647 and the Pasadena Municipal Code.[5] The service of alcohol later than one hour before closing was cited as an additional violation of the conditional use permit.

On October 10, 2003, appellants filed their verified petition pursuant to Code of Civil Procedure section 1094.5. On October 5, 2004, after hearing the argument of the parties, the trial court issued a tentative decision and ordered the City to prepare a statement of decision. The trial court found that the two lust parties justified the revocation of the conditional use permit, because they were violations of the terms of the permit and criminal statutes, and they constituted a nuisance.

Appellants submitted objections to the statement of decision, and after affording the parties a hearing, the trial court ordered the City to submit a new statement of decision, omitting a paragraph on page two. The City submitted a new proposed statement of decision, which included findings, an order denying the petition for writ of mandate, and a judgment, all in the same document. The trial judge signed the document December 20, 2004, and it was filed the same day.

On January 5, 2005, the City served upon appellants a notice of entry of judgment and a file-stamped copy of the combination statement of decision, order denying petition, and judgment. Appellant objected to the entry of judgment, claiming that the complaint for damages and declaratory relief had not yet been adjudicated. The trial court ordered further briefing, and on March 2, 2005, a new judgment was entered, denying the petition, deeming all three causes of action of the complaint moot, and awarding judgment to respondents. Appellant filed a timely notice of appeal the same day.

DISCUSSION

1. Standard of Review

The trial court’s inquiry in an administrative mandamus proceeding under Code of Civil Procedure section 1094.5, “shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

Once a conditional use permit has been acquired, a municipality’s power to revoke it is limited. (Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376, 391-392, fn. 5.) When a property owner incurs material expense in operating or preparing to operate a business as permitted under a conditional use permit, he or she is vested with a constitutionally protected property right. (O’Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151, 164-165 (O’Hagen).)

Because the trial court found that appellants’ rights under the conditional use permit were fundamental and vested, it properly conducted an independent review of the administrative record. (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1531.) Our review of the evidence is limited to determining whether the Board’s factual findings are supported by substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) Issues of law are reviewed de novo, including “‘”the ultimate questions, whether the agency’s decision was . . . unlawful or procedurally unfair . . . .”’” (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169.)

2. Scope of Review

Appellants contend the trial court erred in denying their petition and make several assignments of error. Appellants assert the trial court erred in dismissing the complaint portion of their pleading, because there was no motion for summary judgment or noticed motion to dismiss. As to the denial of their petition, appellants contend that in 1996, the federal district court invalidated their conditional use permit, which resulted in a right to use their property without conditions. (See, e.g., 3570 East Foothill Blvd., Inc. v. City of Pasadena, supra, 912 F.Supp. 1268.) Appellants also contend that when they stipulated to a permanent injunction barring them from allowing lust parties on the premises, the City was thereafter barred from revoking their conditional use permit due to the same nuisance. In addition, appellants contend that the City’s permit-revocation procedure resulted in a denial of due process, and that sections 17.16.050 and 17.12.020 of the Pasadena Municipal Code (PMC), regulating adult businesses, are unconstitutionally vague and overbroad, and were applied to them in a manner violating their rights under the First Amendment to the United States Constitution.[6] Appellants also challenge the procedure relating to the adjudication of their complaint.

We summarily reject appellants’ contention that their conditional use permit was dissolved, allowing them to use their property without any conditions. The federal court’s order was not so expansive. The court permanently enjoined the City from enforcing the conditional use permit only “as against expressive activities protected by the First Amendment,” and the only such activity at issue in that case was erotic dancing. (3570 East Foothill Blvd., Inc. v. City of Pasadena, supra, 912 F.Supp. at p. 1282.)[7]

Further, appellants did not urge this contention before the Board, foreclosing any inquiry into the parties’ conduct since the order. The municipal code provides for notice of public hearings as set forth in Government Code section 65009, subdivision (b)(2). (PMC, § 17.108.100(C)(2).) Using substantially the same words used in that section, the Board’s notice of hearing stated: “If you challenge the matter in court, you may be limited to raising those issues you or someone else raised at this public hearing, or in written correspondence delivered to the Board . . . at, or prior to, the public hearing.” As appellants have asserted no exception to the limitation imposed by Government Code section 65009, subdivision (b), the trial court’s review was limited to those matters properly raised at the public hearing. (See Gov. Code, § 65009, subd. (b)(1).)[8]

The administrative record contains no written correspondence from appellants to the Board, and the only issues raised at the hearing were those raised in the arguments addressed to the Board by appellants’ attorney. First, counsel informed the Board that the permanent injunction had issued, and argued that because the nuisance was abated and the lust parties would not recur, there was no nuisance for the Board to abate, and the property was not otherwise being operated as an adult business, as defined by Pasadena Municipal Code section 17.16.050. Counsel also objected on hearsay grounds to the declarations of the two officers who attended the lust parties, and stated that he believed that paragraph No. 5 of the conditional use permit required alcohol sales to terminate at 1:30 a.m.[9] Finally, with regard to due process, counsel stated: “In conclusion, I would ask that the appeals board take this under submission and consider what would be the proper forum to ferret out all the facts and all the allegations because there is simply a real due process problem here with regard to allegations being presented in a rather lengthy report with no opportunity of [appellants] to meet these allegations and to bring forward the facts.”[10]

Thus, the scope of review of the administrative proceedings is limited to the following contentions: that the trial court erred in dismissing the complaint portion of their pleading; that the City was barred from revoking their conditional use permit due to the same nuisance abated by the permanent injunction; that the City’s permit-revocation procedure resulted in a denial of due process; and that the Board’s decision was not supported by substantial evidence. We begin with the denial of appellants’ petition, and discuss last appellants’ procedural challenge to the adjudication of their complaint.

3. Res Judicata Effect of Abatement Action

Appellants contend that once the City successfully abated the nuisance by obtaining a permanent injunction, it could not revoke appellants’ conditional use permit in order to abate the same nuisance. The Board did not revoke the conditional use permit solely to abate a nuisance, as appellants’ argument suggests. In addition to abating the nuisance caused by the lust parties, the Board revoked the permit on the ground that the terms and conditions of its issuance had been violated. Although the conditional use permit of an otherwise law-abiding business may not be revoked in order to abate a nuisance that no longer exists, revocation may be justified where the permittee fails to comply with its reasonable terms or conditions. (See O’Hagen, supra, 19 Cal.App.3d at pp. 159-160, citing Jones v. City of Los Angeles (1931) 211 Cal. 304, 315-317.)

Relying upon O’Hagen, appellants contend that the judgment in the abatement action barred the administrative proceeding to revoke their conditional use permit under the doctrine of res judicata. In O’Hagen, a nuisance abatement action and an administrative proceeding to revoke the business owner’s use permit proceeded simultaneously. As here, the appellate court observed that each was “predicated upon the claim that the manner in which plaintiff conducts his . . . business constitutes a public nuisance. The allegations made in each are essentially the same, and each seeks to abate the alleged nuisance.” (Id. at p. 163, fn. omitted.) Thus, the court found, the two proceedings were grounded upon the same cause of action, and the prior judgment in the nuisance abatement action operated as a bar to the administrative proceeding under the doctrine of res judicata. (Id. at pp. 161-162.) In O’Hagen, however, there was no contention that the permittee violated any of the conditions of the use permit or the zoning law, or that the administrative decision was based upon a breach of any of the conditions of the permit. (See id. at p. 160.) Here, in contrast, the Board expressly found that in addition to creating a nuisance, appellants had violated the conditions of their use permit by failing to discontinue alcohol sales one hour before closing, and by violating provisions of the California Penal Code and Pasadena Municipal Code, which prohibit indecent exposure and public sexual activity.[11]

A valid final judgment upon the same cause of action, whether on the merits or stipulated by the parties, will bar another action or proceeding. (Avery v. Avery (1970) 10 Cal.App.3d 525, 529.) “California’s res judicata doctrine is based upon the primary right theory. . . . . . . ‘It provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty.’ [Citation.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) An action or proceeding is not necessarily a different cause of action, merely because it seeks a different remedy. (Gates v. Superior Court (1986) 178 Cal.App.3d 301, 308-309; O’Hagen, supra, 19 Cal.App.3d at p. 163.) “But the significant factor is the harm suffered; that the same facts are involved in both suits is not conclusive. [Citation.]” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955, disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.)

Here, the facts constituting the nuisance may be identical to the facts giving rise to a violation of the terms and conditions of appellants’ use permit, but they involve different primary rights and duties, not simply different theories of recovery. Appellants owed a duty not to use property in such a way that is so indecent or offensive to the senses as to interfere with others’ comfortable enjoyment of life or property. (See Civ. Code, § 3479.) The use of a building for “lewdness, assignation, or prostitution” is a nuisance per se. (Pen. Code, § 11225; People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 409.)

In addition to revoking the permit to abate a nuisance, the Board found that the activity observed at the lust parties came within the definition of an adult business, and it revoked the permit to enforce the zoning law and the terms and conditions of the permit. Conditional use permits become part of the zoning law by creating a mechanism of enforcement of zoning ordinances. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 532; see IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 93.) Appellants were under a duty to abide by the zoning law, including the following conditions of their use permit:

“5. The sales of alcoholic beverages shall be discontinued one hour prior to the restaurant’s closing time.

“ . . .

“14. The commercial recreation permitted . . . shall be limited to 10 billiard tables, three ping pong tables, seven video/amusement arcade games, shuffle board and darts . . . .”[12]

Thus, there were two duties owed by appellants: the duty not to carry on a public nuisance; and the duty to obey the zoning laws, including the terms and conditions of the conditional use permit. Conversely, the City and the public enjoyed two separate primary rights: the right of the public to be free from interference with its comfortable enjoyment of life or property; and the City’s right to expect observance of zoning regulations, including compliance with the terms and conditions of the permit. The administrative proceedings therefore involved two causes of action. (See Agarwal v. Johnson, supra, 25 Cal.3d at pp. 954-955.) Accordingly, the final judgment in the abatement action may have barred the revocation of the permit in order to abate the same nuisance, but it did not bar the City from enforcing its zoning laws.

4. Procedural Due Process and Hearsay

Appellant contends that the City’s permit-revocation procedure and the reliance upon hearsay resulted in a denial of due process. It is an appropriate exercise of the City’s police power to revoke permits upon the permittee’s failure to comply with conditions of use and existing zoning regulations. (Trans-Oceanic Oil Corp. v. Santa Barbara (1948) 85 Cal.App.2d 776, 783; see Jones v. City of Los Angeles, supra, 211 Cal. at pp. 315-317; O’Hagen, supra, 19 Cal.App.3d at pp. 159-160.) However, because a conditional use permit creates a property right, it may not be revoked without due process. (Malibu Mountains Recreation, Inc. v. County of Los Angeles, supra, 67 Cal.App.4th at p. 367.)

Although a permittee must be given reasonable notice and opportunity to be heard before the City may revoke a permit, there is no precise manner of hearing which must be afforded; a formal evidentiary hearing, with sworn testimony, full rights of confrontation, and cross-examination, is not required. (See Mohilef v. Janovici (1996) 51 Cal.App.4th 267, 286, 293-298 [revocation of previously permitted use under a vested permit].) Nor does due process require the adoption of other formal rules of evidence, such as the hearsay rule, which might place an undue burden on the City. (Id. at pp. 293, 295.)

Our review of the administrative record shows that appellants were afforded notice and an opportunity to be heard. They were given two weeks’ notice of the hearing before the Board. In addition, almost six weeks prior to the hearing, the Planning and Development Department notified appellants by letter of the scheduling of the hearing and the grounds for considering the revocation of the conditional use permit. The letter was signed by planner Jason Kruckeberg, who included his telephone number and invited appellants to call with questions about the process.

Attached to Kruckeberg’s letter was a copy of PMC chapter 17.108, governing the procedure for revocation of discretionary permits. Chapter 17.108 provides that upon determining that there are grounds for revocation, the zoning administrator shall set a public hearing before the “final decision-maker,” upon at least 14 days notice, and the “person or body conducting the revocation hearing shall hear testimony of . . . the owner [and] . . . any other interested person . . . .” (PMC, § 17.108.060.) A summary of the Board’s procedures was posted, along with the Board’s agenda, prior to the hearing. The summary stated that testimony must be requested prior to decision, that written materials would be considered if submitted at least one week prior to the hearing, and that if no written materials were submitted by the deadline, the proponent of any such materials would be required to orally summarize them at the hearing. The appellant or applicant would be allowed 15 minutes to present his case, and five minutes for rebuttal.[13]

It is not clear from the record when or how appellant acquired a copy of the staff report, which included the detectives’ declarations, but appellants’ attorney discussed it in his arguments to the Board, indicating that he had reviewed it prior to the hearing. Further, Kruckeberg, who prepared the staff report and presented the case before the Board, stated, “We . . . haven’t received any information in writing in response to our staff reports. . . .” Appellant’s counsel did not request leave to present testimony, and did not submit or summarize written evidence.

Appellants were not prevented from presenting evidence. Kaltenthaler was present at the hearing and admitted to having attended the April and May lust parties. He did not ask to give testimony or make any additional statement. In fact, his attorney admitted to the Board that the two lust parties had occurred on the premises (while denying that they had been put on or promoted by the owner); he repeated this admission before the trial court. Counsel also represented that the restaurant remained open until 2:30 a.m., and suggested that alcohol sales continued until 1:30 a.m.

Appellants’ assertion that the Board made its determination upon unsigned declarations is not borne out by the record. The declarations had not been signed at the time the staff report was submitted to the Board, but the assistant city attorney was in possession of signed copies, the originals having been filed in the abatement action, and he represented that they would be submitted to the Board. Signed copies appear in the administrative record. Appellants’ attorney clarified his hearsay objection as one to the contents of the declarations, rather than their form. He said, “The declarations may have been signed, but [the] problem is the declarations are hearsay for most of the items that are set forth, if you read it carefully it says based on conversations I had with other police officers or based on things that I have heard this is what occurred.”

Counsel largely misrepresented the contents of the declarations, both of which were made from personal observations. Detective Padilla stated that he was admitted to an April 26, 2003 lust party upon paying a fee.[14] At that party, he purchased alcoholic beverages from a cocktail waitress, and observed the activities described in the declaration. He saw two women dancing onstage; one of them pulled down the other’s top, exposing her breasts, and the first woman fondled the exposed breasts. He saw another woman on the same stage simulating intercourse with a seated man, and a woman on another stage dancing topless. Later in the evening, he entered the “VIP room” where he saw a naked woman and a man with his pants at his ankles having sexual intercourse, and several nude women giving “lap dances” to men. He observed three couples engaged in oral copulation. After leaving the VIP room, he entered a patio area designated for smoking, and smelled a strong odor of marijuana. Later, back in the VIP room, he saw a woman and a man engaging in sexual intercourse, and another woman and man engaging in either sexual intercourse or sodomy. When he left the VIP room, he observed more couples engaging in sexual intercourse.

Although he did not go into as many details as Padilla, Detective Grisafe stated in his declaration that he and his partner were admitted to the May 17, 2003 lust party upon payment of a $60 cover charge. He observed three women dancing onstage while exposed from the waist up. In the VIP room, he observed people disrobing and having oral sex, and as the evening progressed, he observed more patrons engaging in sexual intercourse in a variety of positions, as couples or in groups. Later, at 1:10 a.m., he and his partner went to the bar to purchase alcoholic beverages, and Kaltenthaler served them two mixed drinks and two beers. At 1:15 a.m., as he was ordering the drinks, someone announced over the public address system, “[L]ast call for alcohol.” They returned to the VIP room, where Grisafe observed continuing sexual activity by 25 to 30 people until 2:30 a.m., when he went to the men’s restroom prior to leaving the club. In the restroom, he saw the legs of two males and two females in one of the stalls, and heard “snorting” sounds consistent with the nasal ingestion of narcotics. When one of the men left the stall wiping his nose, Grisafe asked “whether he had any more of that ‘shit’ to which he replied no.” Grisafe then asked where he “could find some ‘tweak’ (street name for methamphetamine),” and the man told him to seek out an Asian man inside the club.

Appellants next contend that the declarations were not admissible at all, and that an administrative decision based solely upon declarations would not, therefore, be supported by substantial evidence.[15] Appellants’ reliance on cases establishing that “[m]ere uncorroborated hearsay or rumor does not constitute substantial evidence” is misplaced. (See, e.g., Walker v. City of San Gabriel (1942) 20 Cal.2d 879, 881, overruled on other grounds in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 37.) First, the declarations were neither uncorroborated hearsay nor rumor. They were sworn declarations by police officers, recounting their own observations of similar activities taking place at appellants’ place of business on two separate occasions. They were corroborative of each other. At least one of the officers -- Detective Padilla -- was present at the hearing. Counsel sought neither to examine him nor to present evidence contradicting his sworn declaration. A party may not complain on appeal that he was denied the right to present evidence or to confront witnesses when he made no attempt to do so. (See Shakin v. Board of Medical Examiners (1967) 254 Cal.App.2d 102, 109.)

Moreover, appellants may not complain that the evidence was inadmissible or insufficient to support the trial court’s conclusion that the weight of the evidence supported a finding that the lust parties took place on the occasions alleged, because counsel admitted they took place, and that alcohol sales continued until 1:30 a.m. Factual concessions made by counsel in oral argument constitute judicial admissions (see Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269), and effect a waiver of the asserted error. (See Horn v. Atchison T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 605-606.)

5. Jurisdiction

Appellants contend that the Board’s jurisdiction was limited to reviewing a decision of the zoning administrator, made after the zoning administrator provided an evidentiary hearing. Referring to PMC section 17.104.030, they quote the following portion of the provision: “The board of zoning appeals shall serve as the review body for the decisions of the zoning administrator . . . .” Section 17.104.030, which appears under the heading, “Review bodies,” does not indicate whether it is a jurisdictional provision. We are unable to construe an isolated section of a municipal code, but must harmonize it with the entire regulatory scheme in which it is found. (See People v. Pieters (1991) 52 Cal.3d 894, 899.) Appellants have failed to meet their burden to provide sufficient material to enable us to do so. (See Higbee v. La Salle, supra, 145 Cal.App.2d at p. 739.)

Similarly, appellants contend that certain sections of the Government Code required the zoning administrator to hold an evidentiary hearing and issue a decision, which would then have been reviewed by the Board. By submitting for review only isolated sections of the municipal code, appellants have failed to show that the City has adopted or is otherwise subject to these provisions. (See generally Gov. Code, § 65803.)[16] It is always the burden of the party challenging a judgment to provide an adequate record for review. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; see Higbee v. La Salle, supra, 145 Cal.App.2d at p. 739.) Appellants have failed to meet that burden.[17]

Appellants contend that the City was required to follow the procedures set forth in PMC chapters 1.25 and 1.26, which provide for the imposition of administrative penalties. Appellant relies upon PMC section 17.108.090, which declares all violations of any condition attached to a permit to be a nuisance. Appellants emphasize the last sentence of that provision: “In addition to or in lieu of prosecuting a criminal action or abatement action hereunder, violation of this section may be subject to the administrative proceedings set forth in Chapters 1.25 and 1.26 of this code.”

Appellants apparently construe the quoted sentence to mean that the city attorney could file a court action, seek penalties, or pursue both remedies, but could take no other action; therefore, appellants assert, the city attorney was not entitled to seek revocation of their conditional use permit. We interpret local ordinances under the same rules that apply to statutes. (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290.) “We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.]” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) We construe an ordinance “as a whole, and in context, giving effect wherever possible to the usual and ordinary import of the language used, and avoiding interpretations which render a measure unreasonable, disharmonious, or superfluous in whole or in part.” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24.) And the particular section must be construed in context, keeping in mind the statutory purpose, and harmonizing related sections to the extent possible. (People v. Simon (1995) 9 Cal.4th 493, 514.)

The penalties which may be imposed under chapter 17.108 are monetary fines and jail time up to six months. (PMC, § 17.108.080.) Section 1.25.040 provides that a compliance order issued under that chapter shall state the amount of the penalty that will be imposed absent compliance, as well as the date after which the penalties will begin to accrue. Thus, although appellants have not included all the sections of chapter 1.25, it appears that the administrative penalties that may be imposed are limited to monetary fines.

By supplying so little of the municipal code, appellants have made it impossible to construe the ordinance as a whole, but it is nevertheless clear that their interpretation is a fanciful one which we reject. There are simply no words in any of the sections provided which require the City to seek monetary penalties in lieu of the revocation of a permit due to the violation of its terms and conditions, regardless of whether the city attorney has brought an abatement action. Moreover, appellants’ interpretation would render the revocation procedures set forth in PMC section 17.108.060 surplusage, which we may not do. (See Longshore v. County of Ventura, supra, 25 Cal.3d at p. 24.)

6. Impartial Decision-Maker

Appellants claim that they were denied due process because the investigative, prosecutorial, and adjudicative functions were combined within the City’s planning department. The combination of investigative and adjudicative functions in the same agency does not, without more, constitute a due process violation. (Withrow v. Larkin (1975) 421 U.S. 35, 52; Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1581-1582.) The combination of prosecutorial and adjudicative functions presents a more troublesome situation when the two functions are too closely combined, such as when the same attorney prosecutes the proceeding and advises the decision-maker during deliberations. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90-92.)

Appellants failed to raise the issue before the trial court or at the administrative hearing. The Board’s deliberations were open to public hearing, and appellants’ attorney was present. When the Board asked questions of planner Kruckeberg and the assistant city attorney during deliberations, counsel did not object. Nor did appellants move to disqualify the city attorney’s office prior to the hearing. (See, e.g., Howitt v. Superior Court, supra, 3 Cal.App.4th at p. 1578.) The determination whether the administrative proceedings were rendered unfair is a mixed question of law and fact for the trial court, which may take additional evidence on the issue. (Nightlife Partners, Ltd. v. City of Beverly Hills, supra, 108 Cal.App.4th at pp. 87-89.) By failing to present this issue to the trial court, appellants have failed to preserve it for appeal. (See Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 372.)

7. Judgment on the Complaint

The factual issues in the mandamus proceeding and the complaint were the same.[18] Each count of appellants’ complaint incorporated by reference all the factual allegations of their petition. The first and second counts sought damages caused by the revocation of appellants’ conditional use permit. The first count alleged the conclusion, in essence, that through the actions alleged in the petition, the City and the individual Board members deprived appellants of a vested property right without affording them a meaningful opportunity to be heard, in violation of their right to due process under the United States Constitution. The second count alleged that PMC section 17.16.050(A), which defines “adult business” for purposes of the zoning ordinance, is unconstitutionally vague and overbroad on its face and as applied to appellants’ business in the revocation proceeding, because it prohibits activities protected by the First, Fifth, and Fourteenth Amendments to the United States Constitution.

The third count for declaratory relief alleged that a “controversy now exists between [appellants and respondents] as to [the] manner in which [the conditional use permit] was revoked and whether the existence, interpretation and application of [the] ‘Adult Business’ ordinance infringes upon [appellants’] and the public’[s] constitutionally protected civil rights under the United States Constitution and [Title] 42 [United States Code section] 1983.”

The trial court found the causes of action to be moot in light of its findings denying the petition. Appellants contend that the only issue before the trial court was the petition for writ of mandate, and that therefore the trial court erred in entering judgment on their complaint for damages and declaratory relief under Title 42 United States Code section 1983. They claim that their complaint was dismissed, which was the equivalent of granting a summary judgment without motion or notice. Appellants contend that the court should have set a separate trial or waited until the appropriate motion to consider their claims pursuant to Title 42 United States Code section 1983, based upon their facial and as-applied challenges to PMC sections 17.12.020 and 17.16.050.

We disagree. The ruling was in the nature of a motion for judgment on the pleadings, which may be made on the court’s own motion. (See Code Civ. Proc., § 438, subd. (b)(2).) “A court’s inherent powers to control litigation and conserve judicial resources authorize it to conduct hearings and formulate rules of procedure as justice may require. [Citations.]” (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 701.) Exercising these powers, the court may enter an in limine judgment on the pleadings in appropriate cases, where it appears on the face of the complaint or from matters that may be judicially noticed that the complaint does not state facts sufficient to constitute a cause of action. (Id. at pp. 702-703; see Code Civ. Proc., § 438, subd. (d).) Judgment on the pleadings is similar to a demurrer, which presents an issue of law that we review de novo. (Coshow v. City of Escondido, supra, at p. 702.) We are not limited to determining whether the constitutional claims were moot, as we must uphold the trial court’s decision even where judgment on the pleadings may have been granted for the wrong reason. (Id. at p. 703.)

Further, we reject appellants’ suggestion that the trial court failed to consider their facial challenge to the constitutionality of PMC sections 17.12.020 and 17.16.050. Appellants briefed the issue in support of their motion for peremptory writ. It was therefore at issue in the mandamus part of the proceeding, and a finding in favor of respondents is implied in the judgment. (See Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1734.)

The trial court did not err in rejecting appellants’ facial challenge to PMC sections 17.12.020 and 17.16.050. The City’s zoning ordinance as it relates to adult business appears to have been patterned after the ordinance approved by the United States Supreme Court in Young v. American Mini Theatres (1976) 427 U.S. 50 (Young). Such zoning ordinances may not be challenged as vague or overbroad, unless they prohibit the defined activity in all locations. (Walnut Properties, Inc. v. City Council (1980) 100 Cal.App.3d 1018, 1021 (Walnut Properties).)[19] As Pasadena’s ordinance is zone specific, appellants are limited to an as-applied challenge, which presents a factual issue. (Young, at pp. 71-72 & fn. 35; Walnut Properties, at p. 1021.)

In an “as applied” challenge, it is the appellant’s burden to present a factual analysis. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 454.) Appellants’ as-applied challenge relies upon an analogy to People v. Superior Court (Lucero) (1989) 49 Cal.3d 14, where a movie theater’s single showing of an obscene film did not make it an adult business. Appellants contend that like the theater owner who exhibited a single obscene film, they could not be found to be operating an adult business in an area not zoned for adult businesses on the basis of only two lust parties that would never recur. Appellants’ comparison with Lucero would require characterizing the lust parties as a simple case of having leased the club for a single private party which got out of control. Here, detectives investigated publicly aired accounts of lust parties occurring on appellants’ premises and personally attended two such parties in April and May. Kaltenthaler admitted that he attended both parties, and the detectives’ declarations make clear that anyone present must have known the extent of the sexual activity and lewd behavior carried on throughout the club for hours. Kaltenthaler did not stop the April party, and less than three weeks later, he permitted the May party to go forward. In sum, these were not isolated incidents.

Moreover, appellants were required to present the facts and the issue first in the administrative hearing. (Savoy Club v. Board of Supervisors (1970) 12 Cal.App.3d 1034, 1042.) Challenging the application of the zoning ordinance would have allowed the trial court to review appellants’ as-applied challenge and the facts upon which it was based; they failed to do so. (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 646-647.) We conclude that the trial court did not err in entering judgment on the complaint.

DISPOSITION

The judgment is affirmed. Respondents shall have their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

[1] Under section 1983, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . . .” (42 U.S.C. § 1983.)

[2] The business was originally operated as “Classie’s Sports Grill,” but was operating most recently as “Pleasures Gentlemen’s Club.” The property right created by a conditional use permit is not exclusive to the individual permittee, but runs with the land. (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367.)

[3] In 3570 East Foothill Blvd., Inc. v. City of Pasadena (C.D.Cal. 1996) 912 F.Supp. 1268, the federal court permanently enjoined the City from enforcing the conditional use permit and its live entertainment ordinances insofar as they prohibited expressive activities protected by the First Amendment -- in that case, bikini dancing. (Id. at pp. 1270, 1272, 1282.)

[4] At the hearing before the Board, Kaltenthaler admitted that he had been present at the lust parties.

[5] It is a misdemeanor to solicit anyone to engage in or to engage in “lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” (Pen. Code, § 647, subd. (a).) It is also a misdemeanor to engage in lewd or obscene conduct and indecent exposure. (Pen. Code, § 314.) Under the Pasadena Municipal Code, the exposure or permitting the exposure of specified anatomical parts is also a misdemeanor.

[6] Chapter 17.108, portions of chapter 17.16, and part of section 17.12.020 of the PMC are included in the administrative record. In addition, we granted appellants’ request that we take judicial notice of some of the sections already in the record and 10 sections of chapters 1.25 and 1.26, subject to any objection by respondent. Respondent has not objected, and cites to some of the judicially noticed sections in its brief, as well as section 2.105.120, which we do not find in the record. (See generally Higbee v. La Salle (1956) 145 Cal.App.2d 737, 739; Evid. Code, §§ 452, subd. (b), 459.)

[7] The federal court found the City’s live entertainment ordinance was unconstitutional insofar as it imposed a prior restraint upon expression protected by the First Amendment. The court enjoined its enforcement as against protected expressive activities, but did not enjoin enforcement of the remainder of the zoning code. (3570 East Foothill Blvd., Inc. v. City of Pasadena, supra, 912 F.Supp. at p. 1282.) “Simply put, expressive uses will no longer be ‘conditioned’ on the invalid permitting ordinances,” but the ability to offer adult entertainment was still limited to the zone in which “adult entertainment” was permitted by the zoning code, viz., the CG zone. (Id. at p. 1282.) Appellants’ business is located in the IG zone.

[8] Government Code section 65009, subdivision (b)(1) provides: “In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or in written correspondence delivered to the public agency prior to, or at, the public hearing, except where the court finds either of the following: (A) The issue could not have been raised at the public hearing by persons exercising reasonable diligence. (B) The body conducting the public hearing prevented the issue from being raised at the public hearing.”

[9] Counsel was incorrect both as to the closing time and the time that alcohol sales were required to cease. Paragraph No. 5 of the conditions of the permit stated that closing time would be 2:00 a.m. and the business would stop serving alcohol one hour prior to closing.

[10] The staff report was not lengthy. It was five pages, exclusive of its seven attachments. The seven attachments totaled 31 pages, but half of those pages were copies of the original decision letter and staff report sent to Kaltenthaler in 1994, and excerpts from the municipal code. The declarations of Detectives Padilla and Grisafe consisted of eight pages altogether.

[11] See footnote 5, ante. One of the conditions of appellants’ use permit was to meet all applicable code requirements of all City departments.

[12] The condition that “live entertainment . . . shall be limited to live performances by comedians, magicians and musical acts and dancing by patrons,” was the subject of the injunction issued by the federal court in 3570 East Foothill Blvd., Inc. v. City of Pasadena, supra, 912 F.Supp. 1268.

[13] Appellants complain that their attorney was given just three minutes to present appellants’ case, but counsel did not present a case, as he merely argued and submitted no evidence.

[14] Detective Padilla had learned of a prior lust party at appellants’ premises from a talk radio program. According to the Web site, “lustparty.com,” a “Lust Reunion Party” was to be held at appellants’ premises on April 26, 2003.

[15] Appellants rely by analogy on cases applying Government Code section 11513, subdivision (c). (See, e.g., Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573; Carl S. v. Commission for Teacher Preparation & Licensing (1981) 126 Cal.App.3d 365.) However, they ignore Government Code section 65010, subdivision (a), applicable to zoning proceedings, which provides: “Formal rules of evidence or procedure applicable in judicial actions and proceedings shall not apply in any proceeding subject to this title except to the extent that a public agency otherwise provides by charter, ordinance, resolution, or rule of procedure.” Appellants do not suggest the City has adopted any such charter, ordinance, resolution, or rule of procedure. Moreover, courts have cautioned against imposing procedural and evidentiary requirements of judicial tribunals on administrative agencies. (See Mohilef v. Janovici, supra, 51 Cal.App.4th at pp. 285-289 [finding due process did not require nuisance abatement proceedings to include (a) sworn testimony, (b) cross-examination, (c) pre-proceeding discovery, or (d) the right to subpoena witnesses].)

[16] For example, Government Code section 65009, subdivision (b)(2), regarding the wording of the notice of hearing, was expressly adopted by PMC section 17.108.100(B)(2).

[17] Appellants also rely upon City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, in which the appellate court found that the jurisdiction of the San Francisco Board of Zoning Appeals is governed by section 117.3 of the San Francisco Charter and sections 302 and 303 of the San Francisco Planning Code. (See City and County of San Francisco, supra, at p. 396.) Appellants fail to explain its application to the City of Pasadena.

[18] Appellants were entitled to combine their petition for administrative mandamus with their action for damages. (See Hensler v. City of Glendale (1994) 8 Cal.4th 1, 14.) As appellants’ action for damages was based upon the revocation of their conditional use permit, the trial court was necessarily required to determine the issues presented by the writ petition before determining the issues raised by the complaint. (See Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 649-650.)

[19] Appellants suggest that PMC section 17.12.020’s description of adult businesses is “nondescript,” in that it refers only to “materials or performances that depict, describe, or relate to ‘specified sexual activities’ or ‘specified anatomical areas’”; but appellants fail to mention that those terms are defined in detail later in the section, in a manner similar to the ordinances held valid in Young and Walnut Properties. (See Young, supra, 427 U.S. at p. 53, fn. 4; Walnut Properties, supra, 100 Cal.App.3d at p. 1026.) “Specified sexual activities” include sexual intercourse and oral copulation, whether actual or simulated, and “[s]pecified anatomical areas” include less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below the top of the areolas.