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