Opinion

People v. Freetown Holdings Co.

Court
California Court of Appeal
Filed
Mar 28, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 15.7%

The opinion

Filed 3/28/2024

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B309295

Plaintiff and Respondent, Los Angeles County

Super. Ct. No. BC718027

v.

FREETOWN HOLDINGS

COMPANY et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Robert Broadbelt, Judge. Affirmed.

Emmanuel Nwabuzor and Travis M. Poteat for Defendants

and Appellants.

Hydee Feldstein Soto, City Attorney, Kent J. Bullard,

Assistant City Attorney, and Zachary T. Fanselow, Deputy City

Attorney, for Plaintiff and Respondent.

____________________

The People of the State of California sued Holiday Liquor

for enabling a public nuisance. They claimed the store amounted

to a snack bar where illegal drug buyers and sellers congregated

and waited to connect: Holiday tolerated loitering and drug

dealing, had no guards, stayed open until 2 a.m., and sold alcohol

in cheap single-serving containers. The trial court granted

summary judgment for the People and ordered Holiday to hire

guards, to stop selling single-serving containers of alcohol, and to

take other actions. We affirm.

I

Abdul Jamal Sheriff owns Holiday Liquor. Sheriff bought

the store in 2005 or 2006 and later deeded it to Freetown

Holdings Company, of which Sheriff is the sole officer and

director. We refer to the appellants as Sheriff, Holiday, or

Holiday Liquor.

A

Holiday is in the West Adams area of Los Angeles.

The People filed a complaint against the store in August

2018 and an amended complaint in February 2019. The amended

complaint described ongoing drug dealing and gang-related

violence within and in front of Holiday.

The operative complaint had three counts. It asserted

violations of (1) sections 11570 et seq. of the Health and Safety

Code (the drug house law), (2) sections 3479 et seq. of the Civil

Code (the public nuisance law), and (3) sections 17200 et seq. of

the Business and Professions Code (the unfair competition law).

The People moved for summary judgment and summary

adjudication on these three counts and included hundreds of

pages of supporting documents detailing crime at and around the

store.

B

The People’s evidence was extensive.

2

Detective Jedd Levin testified he is an experienced

narcotics investigator who had observed dozens of drug deals at

Holiday, both inside and outside the store. They followed a

standard pattern.

Levin “frequently observe[d] people drive up to the curb in

front of Holiday Liquor to engage in narcotics transactions with

people who loiter outside of the store looking for drugs.”

What Levin observed was “consistent with illegal narcotics

sales occurring in and around Holiday Liquor on a regular basis.”

He “regularly observed drug dealers, hooks, drug users, and

transients loitering inside and around Holiday Liquor for the

purpose of using, purchasing, and/or selling illegal narcotics.”

“Hooks” are “facilitators who connect people seeking to buy drugs

with dealers, and who typically receive a small amount of cash or

drugs for their services.”

According to Levin, Holiday ran the store in a way that

enabled this situation. The store’s practices made the store

“hospitable for drug dealers.” Levin had “never once seen anyone

loitering in or around the store be asked to leave. Drug dealers,

drug users, and hooks are permitted to loiter and engage in

illegal narcotics transactions without any interference from the

ownership, management, or employees of Holiday Liquor.”

The store had “developed a reputation in the community and

amongst law enforcement as a location where illegal drugs are

bought and sold” and “is essentially a place to wait for drugs that

also has a snack bar where drug users and drug dealers can and

do buy snacks, drinks, cigarettes, and alcohol.”

According to Levin, drug dealers knew they could buy cheap

alcoholic drinks and wait at the store for customers. Customers

knew they could score there. The store had allowed itself to

3

become the neighborhood focal point for the drug trade, and those

in the drug trade knew it. Based on his observations, Levin

opined “Holiday Liquor is the primary cause of the illegal

narcotics activity” in the area.

Others bolstered Levin’s testimony.

Officer Filiberto Garcia is an experienced police officer

assigned as a gang officer in Holiday’s neighborhood. Garcia

received frequent community complaints about nuisance

activities at Holiday, and he often saw them himself. These

activities included gang members and transients drinking in

public. “Their drinks of choice are the inexpensive, single-serving

containers of alcohol that Holiday Liquor offers for sale at all

hours. There is near-constant loitering in the area of Holiday

Liquor.”

“I frequently observe pedestrian traffic and hand-to-hand

transactions that are consistent with the illegal sales of narcotics

in the area of Holiday Liquor.”

Garcia also recounted the presence at Holiday of West

Boulevard Crips. He said Holiday was the “most active and

dangerous” West Boulevard stronghold in the territory. Members

of this gang felt “comfortable at Holiday” to the extent that gang

members filmed music videos there. Gang members staged

videos featuring the Holiday store sign. Their videos show the

interior and front of the store.

According to Garcia, permitting gang members to congregate

regularly at a notorious spot invites trouble: they attracted the

attention of rival gang members seeking to settle a score or to do

work for rival gangs. The situation was a recipe for “murders or

drive-by shootings.”

4

Officer Brent Williams testified Holiday has a reputation

among community members and law enforcement as a place

where gang members sell drugs. Many times, Williams has seen

gang members and transients loitering inside Holiday and near

the store’s front entrance.

Williams confirmed members of the West Boulevard Crips

use Holiday as their home base. They “hang out in the area of

the store all day long” drinking alcohol or smoking cigarettes

from the store. They “congregate at Holiday Liquor because it is

convenient for them: they live in the area, and the store attracts

an endless supply of transients to whom they can sell illegal

narcotics. Holiday Liquor sells inexpensive, single-serving

containers of alcohol that are popular with West [Boulevard]

gang members and transients alike. In my experience, Holiday

Liquor’s management and employees have permitted the near-

constant loitering to occur without resistance.”

Williams testified Holiday has been the subject of countless

citizen complaints and calls to the police. He said that, “[o]n

more than one occasion, community members have told me

something along the lines of, ‘You have to do something about

that store!’ (referring to Holiday Liquor).”

Williams noted that violent crime at Holiday “tends to

occur later at night.”

Williams also testified that officers throughout the

Southwest Division know of Holiday as a gang and narcotics

nuisance location. Police in this division have come to expect

reports of violent gang crimes at Holiday. This reputation for

criminal activity is attributable specifically to Holiday, and not to

the neighborhood in general.

5

Senior Lead Officer Ana Maria Mejia was assigned to this

neighborhood in 2014. She was to help unite the police with

community members by monitoring crime trends and by

understanding the community’s desire for police service. Mejia

did “a lot of proactive work with community members on chronic

or quality-of-life crimes.”

Mejia thought, as a gang expert with experience in Holiday’s

area, it was virtually impossible for police to arrest their way out

of a serious gang problem unless local owners made

improvements to their properties to help police.

Mejia had become familiar with Holiday in her years in the

neighborhood. She knew the area around Holiday “very well.”

She saw gang activity and drinking in public at Holiday. The

store was a constant problem.

Mejia testified police resources are limited and the

disproportionate number of calls about Holiday diverted efforts

needed in other areas. She explained police deterrence also is

inevitably temporary: it falls off rapidly once police depart.

Brazen criminals simply outwait the cops. “More effective and

permanent deterrence of crime cannot be achieved without the

more serious and committed involvement of the Holiday Liquor’s

ownership and management.”

Mejia was in frequent contact with Sheriff about the drug

dealing at Holiday. “Mr. Sheriff knows there is violent crime,

gang activity, and narcotics activity associated with Holiday

Liquor because I have told him as much in my multiple

encounters with him.”

Between 2015 and the filing of this suit in August 2018,

Mejia repeatedly asked Sheriff to take three measures: (1) hire

armed and licensed guards to deter loitering and to prevent

6

violence; (2) close at midnight or cease alcohol sales then; and (3)

stop selling single-serving containers of alcohol.

Sheriff occasionally seemed receptive, “but there is rarely,

if ever, any follow through on his part. The only action I am

aware of that Mr. Sheriff has undertaken to prevent or deter

crime is the installation of security cameras.”

“Despite my repeated requests, prior to the filing of this

nuisance abatement, Mr. Sheriff did not implement multiple

requested remedial measures. In fact, it was like pulling teeth to

simply get Mr. Sheriff to comply with an [Alcoholic Beverage

Control] regulation by removing signage that was blocking the

windows of his store. Further, although Mr. Sheriff has told me

that he is making an effort to deter loitering, I continue to see

West [Boulevard] gang members loitering outside the store when

I drive past. Whatever effort he made, if any, is not apparent or

visible and is clearly ineffective.”

C

The People documented specific crimes at Holiday.

The narcotics sales included the following.

In August 2018, Levin and his team observed a man

loitering in front of Holiday for about 30 minutes. The man

moved back and forth between the entryway and the side of the

store until he approached a Ford Explorer and spoke to the

driver. After the Explorer drove away, the man on foot

approached a woman and engaged in a furtive hand-to-hand

narcotics transaction with her. Police observed the woman flag

the Explorer, hand the driver something through the open

window, leave with cash in her hand, and then give the cash to

the man on foot. This man went back to loitering directly in front

of the store. He was sweeping the store’s entryway and had $20

7

cash in his front pocket when police arrested him. When police

arrested the driver, they found rock cocaine inside the Explorer’s

center console.

In September 2018, officers observed a West Boulevard

Crips member park his car in front of Holiday and wait. Another

West Boulevard Crips member walked to the passenger side of

the car. He made hand contact with the driver and then loitered

in the store’s entryway. The driver got out of the car and

engaged in a hand-to-hand transaction with his fellow gang

member in the entryway. Officers stopped the car and found

dozens of baggies of what appeared to be rock cocaine and debris

of ecstasy. They also found pills, bundles of money, and a loaded

gun.

In a November 2018 undercover operation, Levin and his

team used an informant to make a controlled buy of narcotics at

Holiday. The informant approached a hook in front of the store,

who went inside, contacted a woman loitering inside, returned,

and gave the informant rock cocaine for $60.

The People also had proof of violent crimes in and around

Holiday. This proof, including the police evidence just recounted,

suggested this violent crime was closely linked to the drug trade.

Commerce in illegal drugs is a cash business, which creates

attractive targets for robberies and violence. Crime victims in

this environment may be reluctant to complain to police. Guns

and other means of violent self-help can abound.

There was evidence of 10 violent crimes at Holiday:

1. In February 2011, a victim was shot many times as

he was about to enter Holiday.

8

2. In October 2014, two people were shot standing in

Holiday’s doorway.

3. In April 2015, a homicide in front of the church next

to Holiday was connected to Holiday because the

victims “had no other reason to be in the area except

to hang out” at the liquor store. A second victim was

shot but refused to cooperate with police, as did the

other witnesses.

4. In May 2016, one group shot at another when they

encountered each other inside Holiday.

5. In July 2017, a person walking into Holiday was shot.

6. In September 2017, an assailant punched and

attempted to rob a victim outside of Holiday.

7. In March 2018, a robber hit a man leaving Holiday,

knocked him unconscious, and took his cash, watch,

and phone. The victim required hospitalization.

8. In April 2018, two gang members attacked two others

inside Holiday.

9. In May 2018, a two-shooter gun battle erupted as

people left Holiday. Four people suffered bullet

wounds. One was a West Boulevard gang member

named Henry Hall. This was the second time in less

than a year Hall had been shot at Holiday. An officer

watching a video of this shooting found it

“particularly shocking. It looks like a movie scene.”

10. In 2018, a black Charger pulled up in front of

Holiday and shot at a group loitering outside the

store. The members of the group dived to the ground

or started running. No one reported the event to

police, who learned about it from video footage.

9

Ten violent crimes in eight years at a specific locale is

unusual. According to gang officer Garcia, “this is a remarkably

high level of gun violence occurring at a single location.”

D

Holiday opposed the People’s summary judgment and

summary adjudication motion. It argued many issues of material

fact defeated the People’s effort. Below, we zero in on Holiday’s

specific arguments in our legal analysis. For now, we merely

sketch Holiday’s position.

Sheriff argued he was a good community member and a

leader who enjoyed local support and who was trying his best to

combat community problems. “I have done a lot more than any

other business establishment in the area to prevent any form of

criminal conduct within and around the premises of the store.”

Sheriff maintained a high incidence of crime historically has

plagued the West Adams neighborhood.

Sheriff did not cause problems like gang crime, drug

dealing, and homelessness, he said; in fact, he sought help from

the City Council to cope with “the inflow of homeless people,

transients, and prostitutes on the West Adams corridor[.]” The

City Council did nothing. Sheriff blamed the City for doing too

little to fight the social vices in his area.

E

The court granted the People’s motion on each of the three

causes of action in August 2019. Citing the public nuisance and

the drug house laws, the court reviewed the evidence of drug

sales in and around Holiday. The court rejected Holiday’s

arguments that nothing showed drug dealing was inside the

liquor store or that Holiday employees did not know about the

transactions. It concluded Holiday had no defense to these first

10

two counts and no material facts were in dispute. The court also

ruled the evidence established a violation of the unfair

competition law. The court would consider injunctive relief later.

Having established Holiday’s liability for every count of the

People’s complaint, the trial court embarked on an additional and

alternative analysis of nuisance based on gang-related activity at

Holiday. As we affirm the judgment on the trial court’s first

analysis of drug activity, we need not and do not devote further

attention to this alternative theory.

The following year, in September 2020, the court entered

final judgment and a permanent injunction requiring Holiday to

take remedial measures, including the hiring of guards, a

restriction of operating hours, and an end to single-serving sales

of alcohol.

The injunction required Holiday to station at least two

armed guards between 2 p.m. and Holiday’s closing time. The

court commanded Holiday to be closed between midnight and 6

a.m. “Do not offer for sale any single serve alcoholic beverages

. . . including containers of wine or liquor with less than 25

ounces, and containers of beer with less than 41 ounces. This

prohibition does not apply to alcoholic drinks packaged together

(such as six-packs of beer).”

The injunction included other provisions. As Holiday

concedes in reply, its opening brief did not challenge the

injunction’s parameters. We return to this point below and

conclude Holiday forfeited these attacks.

II

We summarize our analysis. The People established the

three elements of a drug house claim premised on the combined

11

fault of third parties and the property owner: they proved third

parties used Holiday for sales of illegal drugs, that Sheriff should

have known it, and that he failed to do what a reasonable person

would have done, which was to adopt reasonable measures

recommended by police to combat this illegal activity. We affirm

because Sheriff failed to raise a material issue of fact on these

elements. We do not reach the alternative ground about a gang-

related nuisance. Sheriff appeals evidentiary rulings that do not

affect this analysis. Because these rulings are legally

inconsequential, we do not pursue them.

We independently review the summary judgment ruling.

(See People ex rel. Trutanich v. Joseph (2012) 204 Cal.App.4th

1512, 1520 (Joseph) [standard of review]; see also City of

Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1081

[summary judgment can resolve nuisance claims].)

A

The doctrine of public nuisance is ancient, wide-ranging,

active, and vague.

This doctrine is ancient. It is rooted in the time of Edward

III, who reigned from 1327 to 1377. (Rest.2d Torts, § 821B,

com. a.)

The doctrine is wide-ranging.

A scholar asked, “Why is making obscene telephone calls

like laying manure in the street? Answer: in the same way as

importing Irish cattle is like building a thatched house in the

borough of Blandford Forum; and as digging up the wall of a

church is like helping a homicidal maniac to escape from

Broadmoor . . . . All are, or at some time have been said to be, a

common (alias public) nuisance.” (Kendrick, The Perils and

Promise of Public Nuisance (2023) 132 Yale L.J. 702, 705

12

(Kendrick), quoting Spencer, Public Nuisance—A Critical

Examination (1989) 48 Cambridge L.J. 55, 55.)

California courts acknowledge the doctrine is wide-ranging.

“The common law recognized various types of wrongful activity as

indictable public nuisances, including such miscellaneous acts as

eavesdropping, being a common scold and maintaining for hire a

place of amusement which served no useful purpose.” (People v.

Lim (1941) 18 Cal.2d 872, 877 (Lim).)

This ancient and wide-ranging doctrine remains active—

and controversial—in our era. In the 1990s, for instance, 50

states used the doctrine to attack the tobacco industry,

culminating in settlements of over $200 billion. (Kendrick, supra,

at p. 724.) In 2017, 10 California counties used the doctrine to

prevail against lead paint manufacturers. (Id. at p. 725; see

People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51,

79–168.) To varying effect, a raft of litigants has used the

doctrine against the opioid industry. Some suits resulted in

massive settlements. (Kendrick, supra, at pp. 733–734.) Other

suits encountered adverse court rulings. (Ibid.; see, e.g., People v.

Purdue Pharma L.P. (Super. Ct. Orange County, 2021, No. 30-

2014-00725287-CU-BT-CXC) 2021 WL 7186146.) The Supreme

Court of Oklahoma, for instance, refused to extend Oklahoma

public nuisance law to the opioid context. (State ex rel. Hunter v.

Johnson & Johnson (Okla. 2021) 499 P.3d 719, 730.)

The controversy continues, as public nuisance cases

progress and debate on the merits continues. (E.g., Kendrick,

supra, at pp. 725–727, 736–791 [identifying cases and defending

utility and legitimacy of public nuisance doctrine]; Sharkey,

Public Nuisance As Modern Business Tort: A New Unified

Framework For Liability For Economic Harms (2021) 70 DePaul

13

L.Rev. 431, 432 [public nuisance cause of action now is “front and

center in the most vexing legal controversies of our time: ” global

climate change, e-cigarettes, COVID-19 harms, and opioid

crisis].)

The doctrine is vague. California law reflects this

turbulence and uncertainty over the boundaries of public

nuisance law.

“ ‘Nuisance’ is a term which does not have a fixed content

either at common law or at the present time.” (Lim, supra, 18

Cal.2d at p. 880.)

The Lim court ruled a district attorney stated a proper

cause of action for public nuisance, but that holding hardly

defined the elements with precision: “The complaint alleges that

the gambling house operated by defendants ‘draws together great

numbers of disorderly persons, disturbs the public peace, brings

together idle persons and cultivates dissolute habits among them,

creates traffic and fire hazards, and is thereby injurious to

health, indecent and offensive to the senses and impairs the free

enjoyment of life and property.’ ” (Lim, supra, 18 Cal.2d at p.

882.)

This pleading, which the Lim opinion approved, seems

more from Dickens than Witkin.

In some respects, however, legislatures have made common

law nuisance more concrete.

“Although public nuisance was a common-law claim, by the

middle of the twentieth century, most, if not all, state legislatures

had passed general public-nuisance statutes, which essentially

provided a statutory basis for actions that had always proceeded

at common law. States also enacted statutes designating

14

particular things or activities as public nuisances.” (Kendrick,

supra, at p. 721, fns. omitted.)

Meshing with this pattern, California long ago enacted a

general public nuisance statute. This statute is the basis for one

cause of action in this case. We quote this general nuisance

statute, as amended:

“Anything which is injurious to health, including, but not

limited to, the illegal sale of controlled substances, or is indecent

or offensive to the senses, or an obstruction to the free use of

property, so as to interfere with the comfortable enjoyment of life

or property, or unlawfully obstructs the free passage or use, in

the customary manner, of any navigable lake, or river, bay,

stream, canal, or basin, or any public park, square, street, or

highway, is a nuisance.” (Civ. Code, § 3479, italics added (Section

3479 or the general nuisance statute).)

In 1972, the Legislature supplemented this general

nuisance statute with a special provision exclusively focused on

drugs: the drug house law. “Every building or place used for the

purpose of unlawfully selling, serving, storing, keeping,

manufacturing, or giving away any controlled substance,

precursor, or analog specified in this division, and every building

or place wherein or upon which those acts take place, is a

nuisance which shall be enjoined, abated, and prevented, and for

which damages may be recovered, whether it is a public or

private nuisance.” (Health & Saf. Code, § 11570, italics added

(Section 11570, or the drug house law, or the more specific

nuisance statute).)

This more specific nuisance statute is the basis for another

cause of action in this case. For our purposes, the more specific

statute dominates the general nuisance statute, for a violation of

15

the former is a violation of the latter. (Joseph, supra, 204

Cal.App.4th at p. 1524.)

This factor thus boils these two claims to one.

This is not the end of the boiling, in fact, for all three claims

in this case boil down to one. The People based their third cause

of action on the unfair competition law. (See Bus. & Prof. Code, §

17200.) The People assert a nuisance showing automatically

triggers liability under this law. Holiday apparently agrees; it

declines to give independent treatment to the unfair competition

law. Following the parties, we tarry no further on the unfair

competition law.

Given this result—that this case turns only on California’s

drug house statute—we focus on that statute.

This drug house statute is scarcely unusual. A drug house

is a problem property. Problem properties are a “classic” target

of public nuisance law. (Kendrick, supra, at p. 723.) Unlike some

modern applications of the public nuisance doctrine, the core

effort here thus is traditional rather than adventuresome.

For current purposes, a vital aspect of public nuisance law

is that, under certain conditions, it can make a possessor of

property liable for failing to act to reduce the risk of harm that

third parties pose to the community.

The American Law Institute spelled out the conditions for

liability:

“A possessor of land upon which a third person carries on

an activity that causes a nuisance is subject to liability for the

nuisance if it is otherwise actionable, and [¶] (a) the possessor

knows or has reason to know that the activity is being carried on

and that it is causing or will involve an unreasonable risk of

causing the nuisance, and [¶] (b) he consents to the activity or

16

fails to exercise reasonable care to prevent the nuisance.”

(Rest.2d Torts § 838, italics added, quoted in Benetatos v. City of

Los Angeles (2015) 235 Cal.App.4th 1270, 1283 (Benetatos).)

The just-cited Benetatos decision was a public nuisance

case illustrating this third-party point. That prosecution

targeted a fast-food restaurant that had been the subject of

dozens of police calls for assault, battery, public drinking, drug

offenses, prostitution, pimping, and homicides. (Benetatos, supra,

235 Cal.App.4th at p. 1284.) The people committing these

offenses were not owners or employees of the restaurant, but

rather the third parties at or around it.

The source of the restaurant’s liability was the way it

conducted its business. It was open 24 hours a day. The

restaurant allowed trash and debris to collect throughout the

property, which was dilapidated and covered in graffiti.

(Benetatos, supra, 235 Cal.App.4th at pp. 1273 & 1283–1284.)

People were drinking alcohol and loitering on the property, and

there was gang activity as well. (Id. at p. 1284.) Police told the

owners about the problems and suggested voluntary mitigation

measures, but the owners were uncooperative, “stating that all

criminal issues associated with the property are a police matter.”

(Id. at p. 1273.)

The Benetatos opinion validated a public nuisance

injunction against the restaurant. Benetatos applied the Los

Angeles Municipal Code, but the decision also invoked the same

general nuisance statute, section 3479, that is involved in this

case. (See Benetatos, supra, 235 Cal.App.4th at p. 1282; see also

id. at pp. 1284–1285 [citing and applying general nuisance law,

including out-of-state cases].)

17

As noted, and of crucial import, the Benetatos court quoted

section 838 of the Restatement Second of Torts. This vital

quotation bears repeating: “ ‘A possessor of land upon which a

third person carries on an activity that causes a nuisance is

subject to liability for the nuisance if it is otherwise actionable,

and [¶] (a) the possessor knows or has reason to know that the

activity is being carried on and that it is causing or will involve

an unreasonable risk of causing the nuisance, and [¶] (b) he

consents to the activity or fails to exercise reasonable care to

prevent the nuisance.’ ” (Benetatos, supra, 235 Cal.App.4th at p.

1283.)

The Benetatos decision stated that “the City brought its

nuisance abatement proceeding not to hold plaintiffs responsible

for the criminal acts of third parties, but to make criminal

activity at [the restaurant] less likely through the imposition of

operating conditions. [The restaurant owners] assert that they

should not be responsible legally for the problems that occur in a

high crime area. But there was substantial evidence that [these

owners] failed to take steps to ameliorate the situation.”

(Benetatos, supra, 235 Cal.App.4th at p. 1284, quotation marks

and citation omitted.)

Additionally, the Benetatos opinion held the trial court

properly rejected the restaurant owners’ unsupported claim the

cost of the imposed operating conditions would force the

restaurant out of business. (Benetatos, supra, 235 Cal.App.4th at

p. 1282.)

Benetatos relied on Lew v. Superior Court (1993) 20

Cal.App.4th 866, 870–875 (Lew) for the rule that a “property

owner who fails to take reasonable actions to prevent criminal

activity on the owner’s property may be subject to nuisance

18

liability if that criminal activity harms the surrounding

community.” (Benetatos, supra, 235 Cal.App.4th at pp. 1282–

1283.)

Lew deserves special attention because its facts, in some

respects, resemble this case and because our Supreme Court cited

Lew with favor. The high court described Lew like this: “Lew v.

Superior Court [1993] 20 Cal.App.4th 866, 870–874 [owner’s

management of rental property, allowing it to become a haven for

drug dealing, subjected the owner to nuisance liability to

property’s neighbors].)” (Castaneda v. Olsher (2007) 41 Cal.4th

1205, 1220, fn. 5.)

In the Lew case, the Lews owned an apartment complex

that became a public nuisance as a center for urban drug dealing.

(Lew, supra, 20 Cal.App.4th at p. 871.) The drug dealers were

not tenants. They operated around as well as on the Lews’

property. Drug dealers confronted neighbors and made them

afraid to walk near the property. Weekly, the neighbors heard

gunshots, fighting, and yelling. The neighbors would not allow

their children to play outside. (Id. at pp. 869–870.) Many

neighbors stated, “ ‘I often fear for my life day and night. This

fear has permeated my home, my life, and my soul.’ ” (Id. at p.

869.)

The Court of Appeal affirmed the Lews’ liability to their

neighbors. The Lews’ inaction had allowed their complex to

become like a “drug house.” (Lew, supra, 20 Cal.App.4th at p.

871.) Specifically, the owners failed to hire a live-in manager and

to install more secure fencing and a key card gate. (Id. at p. 875.)

The basis for the liability was the drug house statute.

(Lew, supra, 20 Cal.App.4th at p. 872.) Lew established three

19

elements for a drug house case involving third parties. The

plaintiff must prove:

1. Third parties used the defendant’s property for sales

of illegal drugs;

2. The defendant knew or should have known it; and

3. The defendant failed to do what a reasonable person

under similar circumstances would have done. (Lew,

supra, 20 Cal.App.4th at pp. 874–875.)

We stress the correspondence with the twice-quoted

Restatement provision. Like Lew, we need not take up the

question of strict liability or liability without fault due to the

nature of the allegations against Holiday. (See Lew, supra, 20

Cal.App.4th at p. 873.)

B

Applying this law to this case dictates affirmance. The

three causes of action are nominally separate but, as explained,

boil down to one: the drug house nuisance statute. On that

claim, Lew is our lamp.

Under Lew, the People met their initial burden.

Lew’s first element required the People to show third

parties used Holiday’s property for the purpose of selling illegal

drugs. The People offered a surfeit of proof on that score. The

evidence amply showed drug sellers and buyers used Holiday to

buy and sell drugs. Their purpose was plain.

Element two required evidence Sheriff knew or should have

known of this drug dealing. Mejia declared she repeatedly

informed Sheriff of the problem and recommended three

mitigation measures Sheriff did not take: hire guards, restrict

hours of operation or alcohol sales, and eliminate single-serving

sales. This proof satisfied element two.

20

Element three was whether Holiday failed to do what a

reasonable person under the similar circumstances would have

done. The trial court impliedly found a reasonable person in

Sheriff’s position would have hired guards, would have closed at

midnight, and would have stopped selling single-serving alcohol

containers.

As to the first two measures—guards and the midnight

closing—the Benetatos decision is precedent for requiring these

actions at a crime hub. (Benetatos, supra, 235 Cal.App.4th at p.

1278.) This suggests a reasonable business owner would take

these steps in response to a rampant crime problem like

Holiday’s.

Both steps, moreover, are logically related to combatting

the type of drug dealing that hovered around Holiday. Guards

can discourage the “near-constant” loitering and the use of hooks

police observed. And limiting store operation to avoid the wee

hours makes sense, as it is conventional to believe crime

flourishes under the cover of darkness. Officers testified violent

crime at Holiday “tends to occur later at night” and noted no

other liquor stores within five miles were open to 2 a.m.

As for the single-serving rule, Levin explained Holiday’s

sales of cheap containers of alcohol appealed to those loitering

near Holiday for the purpose of buying or selling drugs. The

People argued that easy access to low-priced alcohol was a

magnet for participants in the drug trade.

This argument makes common sense in the context of this

case. The trial court was right to find impliedly that, as a prima

facie matter, a reasonable liquor store owner in this situation

would avoid selling cheap single-serving alcohol containers.

21

We acknowledge the unprecedented character of this

ruling: the parties do not identify a case imposing such a

restriction. And we recognize that selling anything at a low price

is typically a benefit for consumers, who always like a bargain.

We thus confine our ruling to the circumstances of this case,

where the low price of the single alcohol servings was part of a

constellation of facts creating the public nuisance.

We turn to Holiday’s 11 appellate attacks on the trial

court’s entry of summary judgment. We treat these 11 attacks

one by one.

1

Sheriff claims there is a factual dispute about whether he

knew drugs were being sold at the store. To summarize our

response, the required state of mind is recklessness, not

knowledge, and the proof was uncontradicted on this score:

police repeatedly told Sheriff there was a drug dealing problem at

Holiday. If Sheriff subjectively did not believe them, he at least

was on notice of a serious risk, and the fault is his if he decided

not to investigate. The undisputed evidence thus showed Sheriff

was at least reckless as to whether drug dealers frequently were

operating in and around Holiday.

We present our analysis of this vital point in detail.

As noted, Benetatos favorably quoted the Restatement

Second of Torts, which requires, at minimum, proof of

recklessness: if other elements are met, liability attaches to a

possessor of land who “knows or has reason to know” that the

activity that causes a nuisance is being carried on. (Benetatos,

supra, 235 Cal.App.4th at p. 1282, italics added [quoting Rest.2d

Torts § 838].)

22

This “reason to know” standard is recklessness, not

knowledge.

According to the esteemed authority of the American Law

Institute, the four culpable mental states are purpose,

knowledge, recklessness, and negligence. (Model Pen. Code,

§ 2.02, subd.(2).)

Courts consult these definitions because they offer clarity

in a field long plagued by imprecision. A distinguished scholar

observed these state-of-mind definitions “dissipated these clouds

of confusion with an astute and perspicuous analysis that has

been adopted in many states and has infused thinking about

mens rea everywhere.” (Kadish, Fifty Years of Criminal Law: An

Opinionated Review (1999) 87 Cal. L.Rev. 943, 952.) “[A]s a

result of the [Model Penal] Code, . . . [t]he fog that surrounded

centuries of controversy over the requirement of mens rea has

been lifted, one hopes, permanently.” (Id. at p. 981.) The

respected Judge Gerard E. Lynch of the Second Circuit Court of

Appeals, who is also the Paul J. Kellner Professor of Law at

Columbia Law School, wrote that “all criminal law scholars

understand [that] the Model Penal Code is one of the great

intellectual accomplishments of American legal scholarship of the

mid-twentieth century.” (Lynch, Revising the Model Penal Code:

Keeping It Real (2003) 1 Ohio St. J. Crim. L. 219, 219.)

This pathbreaking precision of mental state definitions

originated in the criminal context, but the advance was of general

utility because many areas of law turn on an actor’s state of

mind. Previous confusion on this score had not been confined to

criminal law. Courts thus employ this guidance in the civil

context as well. (E.g., Bullock v. BankChampaign, N.A. (2013)

569 U.S. 267, 273–274 [bankruptcy case].)

23

First introduced in 1962, these definitions have stood the

test of time. They have achieved high regard from experts in the

field, from every perspective. We seize the advantage of this

precise definition of recklessness.

“A person acts recklessly with respect to a material element

of an offense when he consciously disregards a substantial and

unjustifiable risk that the material element exists or will result

from his conduct. The risk must be of such a nature and degree

that, considering the nature and purpose of the actor’s conduct

and the circumstances known to him, its disregard involves a

gross deviation from the standard of conduct that a law-abiding

person would observe in the actor’s situation.” (Model Pen. Code,

§ 2.02, subd. (2)(c).)

Sheriff acted recklessly with respect to whether third

parties were selling drugs at Holiday. When police repeatedly

tell you this is happening and you ignore them, you are

consciously disregarding a substantial and unjustifiable risk that

what they are saying is true. That risk involves a gross deviation

from the standard of conduct a law-abiding person would have

observed in Sheriff’s situation.

Holiday points to no evidence creating a factual dispute on

this score.

2

Holiday argues it created a material fact issue when Sheriff

declared he has taken many measures to combat “social vices,”

including shifting his closing time from 2 a.m. to midnight, hiring

guards for duty from 6 p.m. until midnight, and discontinuing

sales of “inexpensive single serve liquors.” Sheriff’s declaration

did not define what he meant by “inexpensive single serve

liquors.”

24

Sheriff made this declaration in June 2019, but did not

specify when he took these actions. The People asserted Sheriff

largely did not act until after they sued him; Sheriff nowhere

attempts to rebut this claim. Nor does he respond to the People’s

citation of Aguilar v. Avis Rent A Car System, Inc. (1999) 21

Cal.4th 121, 133 for the proposition that “courts have rejected

arguments against injunctive relief where defendants changed

their practices only in response to being sued.” Sheriff’s tardy

and partial compliance did not create a material issue of fact.

Sheriff’s declaration identifies two police recommendations

he frankly refused to implement: “the number of hours to engage

private security guards, and the size (contents) of liquor and

beers sold to patrons at certain hours.”

These disagreements between Sheriff and the People raise

a key legal question: what actions would a reasonable person in

Sheriff’s shoes take? Sheriff repeats variants of this same issue

in later portions of his opening brief concerning “reasonable

actions,” the “balancing of the inconveniences,” and whether

interests of third parties and the general public support the

injunction.

As detailed above, the People enjoyed prima facie support

for the type of public safety measures they demanded: that

Holiday close at midnight or stop selling alcohol at this point,

hire licensed security guards, and stop selling single-serving

alcohol containers.

Once the People established this prima facie support for

their safety proposals, it was Sheriff’s burden to respond that the

cost of full compliance would be socially irrational: that the social

burden of the People’s prima facie reasonable proposals would

outweigh their social benefit.

25

This balancing of social benefits and burdens is familiar in

the law. (E.g., Kuciemba v. Victory Woodworks, Inc. (2023) 14

Cal.5th 993, 1025, [no duty of reasonable care when the

avoidance of social harm is burdensome and the social utility of

the activity is great]; Kesner v. Superior Court (2016) 1 Cal.5th

1132, 1150, 1153, [no duty of reasonable care where the social

benefit of the activity concerned is so great, and avoidance of

danger so burdensome to society, as to outweigh the value of

negligence liability]; Parsons v. Crown Disposal Co. (1997) 15

Cal.4th 456, 473–475, [determine duty of reasonable care by

conducting a “social utility analysis” that weighs the benefits of

proposed safety measures against their burdens]; Taylor v.

Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 123–124 [duty of

reasonable care arose because defendant “easily” could have

undertaken the proposed safety measure].)

These venerable tort principles are relevant to the law of

public nuisance. (See Rest.2d Torts, § 821B, com. b,[nuisance is a

tort].)

Sheriff offered neither argument nor evidence to suggest

the extent of the measures the trial court ordered are unduly

burdensome from a social perspective. Courts recognize there

may be circumstances where the hiring of security guards will be

required to satisfy a duty of care, but this action will rarely, if

ever, be found to be a minimal burden, for the monetary cost of

security guards is not insignificant. (Delgado v. Trax Bar & Grill

(2005) 36 Cal.4th 224, 238.) We agree with the trial court that,

on this record, the guard order was proper.

Sheriff agreed to some guards, to some limitations on single

servings of alcohol, and to an earlier closing time. He balked,

however, on two specific points. The injunction required two

26

armed guards between 2 p.m. and closing time, and it forbade

sales of single serve “containers of wine or liquor with less than

25 ounces, and containers of beer with less than 41 ounces.”

Sheriff disagreed with “the number of hours to engage the private

security guards, and the size (contents) of liquor and beers sold to

patrons at certain hours.”

Holiday faces a fatal problem at this point. It attempted to

draw two specific lines, but it did not defend these lines with

specificity.

What are the guard hours Holiday believes are proper? We

infer Sheriff must believe guards were unnecessary from 2 p.m.

to 6 p.m., or that their benefit during that interval would not

outweigh their cost. But why?

And what is the proper minimum container size Holiday

advocates? What is the concrete significance of these details?

Holiday’s opening appellate brief elides these points, which

is a fatal omission.

Rather, Holiday argues abstractly that Holiday benefits the

community by providing goods for sale and by supporting

community wellbeing. These points do not meet the merits of the

argument.

In sum, the People presented evidence of frequent drug

dealing and of an attendant and serious history of violent crime.

This evidence shifted the burden to Holiday to illustrate how the

measures it refused to take would be more burdensome than

beneficial from a social standpoint. Holiday has not attempted

this showing. As a matter of law, then, Sheriff’s arguments on

this score fail to unhorse the judgment.

3

27

Sheriff argues, incorrectly, that five witnesses created

disputed fact issues by testifying to what they did and did not

see. A logical flaw destroys these arguments. Two people can

look at the same thing, but what they see may differ if they look

at different times. The observations are different but not in

conflict.

Hypotheticals illustrate this basic point. Suppose Maria

sees a game at the stadium on Monday, but Chris goes there

Tuesday and sees no game. The two observations do not conflict.

Unless a place is as static as a fly in amber, people visiting at

different times can see different events. And, if they are looking

in different directions, people even in the same place at the same

time see different things. Two may be outside at night; one may

see the shooting star the other misses entirely. Unless people are

looking at exactly the same thing at the same time, differences in

what they notice do not create a conflict about what happened.

Sheriff makes five mistaken arguments of this kind.

First, Sheriff cites Garcia’s testimony that Garcia did not

personally see drug dealing inside Holiday. Levin, however, did.

Garcia’s testimony is consistent with Levin’s because Holiday has

not established the two watched at the same time. There is no

factual conflict.

Second, one Vanessa Mackenzie stated she has not “in

recent times” had problems with Holiday. She believes Sheriff

“has been doing his best to reduce the vices in the community.”

Mackenzie does not explain whether, how often, or when she

visited Holiday. This lack of foundation means her declaration

cannot create a disputed issue. A limited picture of Holiday does

not impeach or contradict the observations of others at different

times.

28

Third, Steven Meeks, a longtime resident of the

neighborhood who has known Sheriff for eight years, testified

Sheriff is a “responsible businessman and I have not had any

issues the few times I patronized Holiday Liquor store.” Meeks

did not mention whether he saw drug dealing at Holiday. Nor

did Meeks address loitering and violent crime that did not

involve him. More generally, someone who has patronized

Holiday only a few times in eight years cannot create a disputed

issue of material fact about the typical situation at Holiday or

about events there at other times.

Fourth, Eva Aubry, another longtime neighborhood

resident and customer of Holiday who visits it once a week,

testified “I have not had any problems when I patronize the store.

Mr. Sheriff and Holiday Liquor are not the sources of the current

problem.” Like Meeks, Aubry refrained from commenting on

drug dealing or loitering. She likewise did not mention, one way

or another, crime that victimized others but not her.

Fifth, Marcia Lewis declared she lives about three blocks

from Holiday and she and her family have for more than 25 years

been patronizing Holiday, which is the closest convenience store

to her home. Lewis has known Sheriff for four years. “Mr.

Sheriff has treated me and my mother very respectfully when we

patronize the store.”

Lewis testified a nearby homelessness encampment is a

neighborhood problem, and that there were a few occasions when

homeless people were rude to her when she was buying gas a

block away from Holiday. “I have not had any such experience at

or around Holiday Liquor.”

“I have other family members, friends and neighbors that I

know who go to Holiday Liquor on a regular basis. I have never

29

been told by any of these people that they felt harassed,

intimidated, or unsafe while at or near Holiday Liquor. I can

attest that if I was aware that Holiday Liquor was a gang

infested business, a hangout place for gang members, or a place

accommodating of gang activities, I would not patronize the store,

and I would not allow my aged mother to patronize the store.”

The People correctly respond that this statement, like the

others from neighbors and patrons, is not “relevant to whether

the drug transactions identified by the LAPD occurred.”

4

Holiday maintains the evidence showed drug dealing only

outside the store, with no evidence of drugs within the store

itself. This argument falters, however, because a property owner

can be liable for creating a public nuisance near but not on the

owner’s property. (See Lew, supra, 20 Cal.App.4th at pp. 872–

873 [acts injurious to the plaintiffs “were committed off

petitioners’ property”].) And Levin testified illegal drugs were

sold both inside and outside the store.

5

Holiday maintains a fact issue arose because Levin never

saw Sheriff himself “actively involved in the sales of narcotics.”

This argument is incorrect because the drug house statute does

not make liability hinge on whether the owner personally dealt

drugs. (Lew, supra, 20 Cal.App.4th at p. 871.) The trial court

ruled Holiday’s business practices fostered drug dealing by third

parties, not that Sheriff sold drugs.

6

Holiday cites a passage in the People’s summary judgment

reply brief in the trial court. This passage asserted the criminal

activity causing this nuisance is not committed by the homeless

30

but rather by gang members. Holiday insists there is a conflict,

because elsewhere police admitted there is a “nexus between

homeless[ness] in [Holiday’s] neighborhood and narcotic

transactions.” This “nexus” does not present a material issue, for

a Lew claim does not turn on whether the drug dealing involves

the homeless. The relevant fact is drug dealing. Whether drug

buyers have homes is immaterial. (See Lew, supra, 20

Cal.App.4th at pp. 870–875 [no mention of status of drug

customers].)

7

Holiday argues its corrective action and changed

circumstances merit dissolving the injunction. There is no

indication Holiday moved for this relief or sought to modify the

injunction at the trial court. (See Code Civ. Proc., § 533.)

8

Holiday contends a statute immunizes it against public

nuisance charges because Holiday passed undercover police tests

proving it did not sell alcohol to an intoxicated person or minors.

(See Civ. Code, § 3482 [“Nothing which is done or maintained

under the express authority of a statute can be deemed a

nuisance.”].) For section 3482 immunity to apply, however, “the

specific action causing the nuisance must be unequivocally

authorized by statute.” (Citizens for Odor Nuisance Abatement v.

City of San Diego (2017) 8 Cal.App.5th 350, 359, fn. 8.) Here, a

statute deems the narcotics activity a nuisance. The store’s

alcohol license is not relevant.

9

Holiday maintains it was a miscarriage of justice for the

trial court to have granted the People’s summary judgment

motion, but its three-sentence presentation of this point is so

31

scanty as to forfeit the argument. (See Fernandes v. Singh (2017)

16 Cal.App.5th 932, 942–943.)

10

Holiday devotes many pages of its reply brief to the

injunction’s scope but concedes it did not raise these issues in its

opening brief. Holiday forfeited these attacks. (See Dieckmeyer

v. Redevelopment Agency of Huntington Beach (2005) 127

Cal.App.4th 248, 260.)

11

Holiday argues the trial court erred by excluding certain

evidence. The excluded evidence consists of three police

department letters explaining Holiday did not sell alcohol to

underage or intoxicated decoys; statements by store witnesses

that Holiday passed those tests; a statement by Sheriff that there

have been no shootings inside the store; and another statement

by Sheriff that unnamed police officers at some point

“commended [his] cooperation in their investigative and

enforcement actions in the area.” Holiday’s opening brief did not

explain how admitting this evidence would have made any

difference regarding the drug house claim. We need not and do

not resolve whether the trial court erred in excluding this

evidence. (See Hooked Media Group, Inc. v. Apple Inc. (2020) 55

Cal.App.5th 323, 337 [party challenging exclusion of evidence at

summary judgment must establish prejudice].)

C

We deny Holiday’s request for judicial notice. Holiday

moved for judicial notice of Los Angeles crime data and of

deposition transcript excerpts. Its motion did not explain why

32

Holiday neglected to provide this evidence to the trial court or

why it waited until its appellate reply brief was due to seek

judicial notice. The reply brief and the motion fail to say how the

belated evidence merits reversing the trial court’s drug house

ruling.

DISPOSITION

We affirm and order appellants to pay costs.

WILEY, J.

We concur:

STRATTON, P. J.

VIRAMONTES, J.

33

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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