gno.law

Adler v. City of National City CA4/1

California Court of Appeal · D067885 · 2016-04-21 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. 37-2013-00077889-CU-WM-CTL
Trial judge
Richard E. L. Strauss
Outcome
affirmed — Affirmed.
Area
civil
Panel
Richard D. Huffman, Sr. (author), Alex C. McDonald, Judith D. McConnell

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T05:52Z · confidence high

The trial court granted the City's motion for judgment on the pleadings, dismissing Adler's petition for writ of administrative mandamus on the grounds that he lacked standing and the claims were barred by res judicata. The Court of Appeal affirmed the judgment, finding that Adler failed to meet his appellate burden of proof and that the trial court's rulings were correct on the merits.

Ruling reviewedStandardThe courtThe model
Granting of motion for judgment on the pleadings based on lack of standing
“Accordingly, we agree with the superior court that Adler lacks standing to bring the petition to reinstate CUP 2010-33.”
de novocorrectagree with court
agree with court
Granting of motion for judgment on the pleadings based on res judicata
“Thus, res judicata precludes Adler from relitigating the same issues in his writ proceeding.”
de novocorrectagree with court
agree with court

Authorities

  • relied: Anza Parking Corp. v. City of Burlingame (1987) 195 Cal.App.3d 855 — A conditional use permit (CUP) is not a personal interest but runs with the land, meaning the property owner has standing to challenge its revocation.
  • relied: Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 — Defines the elements of res judicata, including claim and issue preclusion, requiring a final judgment on the merits involving the same parties or privies.
  • relied: California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658 — A stipulated judgment has the same effect as a judgment on the merits and is res judicata as to the issues it embraces.
  • relied: O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151 — A judgment in a nuisance abatement action precludes a permitee from relitigating the same issues in a subsequent writ proceeding challenging the revocation of a use permit.
  • relied: Avery v. Avery (1970) 10 Cal.App.3d 525 — A stipulated judgment has the same effect as if the action were tried on the merits.
  • relied: Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562 — A stipulated judgment is res judicata as to those issues it embraces.
  • relied: Gates v. Superior Court (1986) 178 Cal.App.3d 301 — Res judicata applies to issues that were raised or could have been raised in a prior proceeding.
  • relied: Hernandez v. City of Pomona (2009) 46 Cal.4th 501 — For collateral estoppel, an issue is actually litigated if it was properly raised, submitted for determination, and determined in the prior proceeding.
  • relied: Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888 — Issue preclusion (collateral estoppel) precludes relitigation of issues argued and decided in prior proceedings.
  • relied: Le Parc Community Assn. v. Workers' Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161 — Claim preclusion prevents parties or their privies from relitigating the same cause of action in a subsequent suit.
  • relied: Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374 — Outlines the prerequisite elements for applying res judicata, including identity of claims/issues, final judgment on the merits, and party/privity status.
  • relied: Bernardi v. City Council (1997) 54 Cal.App.4th 426 — A party who agrees to an expedited procedure cannot later modify that procedure through a petition.
  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — The judgment of the trial court is presumed to be correct, and all inferences and presumptions are made to support the judgment on matters where the record is silent.
  • relied: Ballard v. Uribe (1986) 41 Cal.3d 564 — An appellant has the burden to provide an adequate record and affirmatively show reversible error.
  • relied: Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849 — It is the appellant's duty to support arguments in briefs by references to the record on appeal, including citations to specific pages.
  • relied: Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857 — When an appellant fails to raise a point or fails to support it with reasoned argument and citations to authority, the court treats the point as waived.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — The absence of cogent legal argument or citation to authority allows the court to treat the contention as waived.
  • relied: Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498 — An appellant fails to meet the burden to establish error if they omit necessary documents, such as the motion, opposition, and court's order, from the appendix.
  • relied: Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246 — Judgment on the pleadings is properly granted when the complaint does not state facts sufficient to constitute a cause of action.
  • relied: Rolfe v. California Transportation Com. (2002) 104 Cal.App.4th 239 — In reviewing a motion for judgment on the pleadings, the court accepts as true the plaintiff's factual allegations and construes them liberally.
  • relied: Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205 — If a judgment on the pleadings is correct upon any theory of law applicable to the case, the appellate court will affirm it regardless of the considerations used by the superior court.

The appellate opinion: sound — The opinion is sound because it correctly applies the standard of review for judgment on the pleadings and accurately cites binding authority regarding the standing requirements for challenging a CUP revocation and the preclusive effect of stipulated judgments. It also properly identifies the appellant's failure to meet the burden of proof on appeal due to inadequate briefing and record citation.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The San Diego Superior Court granted National City's motion for judgment on the pleadings without leave to amend on Benjamin Adler's Code of Civil Procedure section 1094.5 petition challenging the City's revocation of McDini's conditional use permit, finding Adler lacked standing and that the petition was barred by res judicata because of the stipulated judgment and ex parte reinstatement order in the earlier nuisance abatement action. The Court of Appeal affirmed, holding Adler forfeited his contentions through inadequate briefing and an incomplete appendix, and alternatively that he lacked standing because a CUP runs with the land he does not own and that the unappealed order in the abatement action precluded relitigation of the same issue.

Ruling reviewedStandardThe courtThe model
Grant of judgment on the pleadings for lack of standing to seek administrative mandamus reinstating CUP 2010-33
“we agree with the superior court that Adler lacks standing to bring the petition to reinstate CUP 2010-33”
de novocorrectagree with court
The court reasoned from Anza Parking that a CUP runs with the land, so the owner (the Howard Adler Trust) is the party with standing, and Adler neither alleged ownership nor any other beneficial interest; his proposal to substitute McDini's as real party effectively conceded the point. The result is defensible on this record, though the court framed standing through the 'runs with the land' rule rather than the governing 'beneficially interested' test, which could extend to a permittee-operator; that does not help Adler, who alleged no such interest.
Grant of judgment on the pleadings on res judicata/collateral estoppel grounds based on the stipulated judgment and unappealed ex parte reinstatement order in the abatement action
“Thus, res judicata precludes Adler from relitigating the same issues in his writ proceeding.”
de novocorrectagree with court
Adler was a party to the stipulated judgment that authorized an ex parte application to reinstate the live-entertainment ban upon noncompliance; the court in the abatement action granted that application over his opposition, he did not appeal, and the order was final by the time of the trial court's ruling. The issue of compliance with resolution 2012-49's conditions is the same issue his petition seeks to relitigate, and O'Hagen is directly on point for preclusion of a writ challenge after a nuisance abatement judgment on the same CUP violations. The elements under Boeken are satisfied on the judicially noticed record.
Forfeiture of appellate contentions for failure to cite the record, failure to address the trial court's grounds, and failure to include the motion papers in the appellant's appendix
“However, Adler did not include any of the briefing on the motion he now claims was improperly granted. He thus cannot establish error.”
unclearcorrectagree with court
Under Denham, Ballard, Duarte, Nelson and Hernandez v. California Hospital, an appellant must affirmatively show error with record citations and an adequate record; Adler misdescribed the ruling as summary judgment, cited no record for his facts, ignored res judicata, and omitted the motion and opposition. The court's application of settled forfeiture principles is correct and independently sufficient to affirm.
Rejection of Adler's due process claim that he was denied a full hearing before live entertainment was prohibited
“He needed to do so in that action by writ or appeal.”
de novocorrectagree with court
The complaint is really an attack on the ex parte procedure Adler himself stipulated to in the amended judgment; any challenge had to be made by appeal or writ from the order in the abatement action, and a party who agreed to an expedited enforcement mechanism cannot collaterally undo it through a separate mandamus petition. The court's reliance on Bernardi by analogy is reasonable.

Authorities

  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment is presumed correct and all intendments and presumptions are indulged to support it on matters as to which the record is silent.
  • relied: Ballard v. Uribe (1986) 41 Cal.3d 564 — Appellant bears the burden to provide an adequate record and affirmatively show reversible error.
  • relied: Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857 — A point not supported by reasoned argument and citation to authority is treated as waived.
  • relied: Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498 — An appellant who omits the challenged motion, opposition and order from the record cannot establish error.
  • relied: Anza Parking Corp. v. City of Burlingame (1987) 195 Cal.App.3d 855 — A conditional use permit is not a personal right but runs with the land on which the use is permitted.
  • relied: Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 — Res judicata requires an identical claim or issue, a final judgment on the merits, and identity or privity of parties.
  • relied: Hernandez v. City of Pomona (2009) 46 Cal.4th 501 — An issue is actually litigated for collateral estoppel if it was properly raised, submitted for determination, and determined in the prior proceeding.
  • relied: California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658 — A stipulated judgment is a judgment the court enforces and is res judicata as to the issues it embraces.
  • relied: Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562 — A stipulated judgment has the same preclusive effect as a judgment after trial on the merits.
  • relied: O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151 — A judgment in a city's nuisance abatement action for CUP violations precludes the permittee from relitigating the same issues in a writ proceeding challenging revocation of the permit.
  • relied: Rolfe v. California Transportation Com. (2002) 104 Cal.App.4th 239 — A ruling on a motion for judgment on the pleadings is reviewed independently, accepting the pleaded facts as true.
  • relied: Bernardi v. City Council (1997) 54 Cal.App.4th 426 — Cited by analogy for the point that a party who agreed to a procedure cannot later modify it through a separate proceeding.
  • missed: Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793 — A mandamus petitioner must be 'beneficially interested,' having a special interest over and above the public's; this is the governing standing test that the court did not articulate, though its omission does not change the outcome because Adler alleged no beneficial interest.

The appellate opinion: sound with gaps — The opinion correctly applies settled forfeiture rules and reaches a defensible merits result on standing and res judicata, with O'Hagen squarely supporting preclusion after an abatement judgment on the same CUP violations. It skips the governing 'beneficially interested' standing test and does not separately address whether leave to amend or substitution of McDini's should have been considered, though Adler's failure to make those arguments properly limits the significance of the gaps.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 4/21/16 Adler v. City of National City CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BENJAMIN ADLER, D067885

Plaintiff and Appellant, v. (Super. Ct. No. 37-2013-00077889- CU-WM-CTL ) CITY OF NATIONAL CITY, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Affirmed.

Law Offices of Donald D. Beury and Donald D. Beury for Plaintiff and Appellant.

Daley & Heft, Lee H. Roistacher, Mitchell D. Dean and Heather E. Paradis for Defendant and Respondent.

Benjamin Adler appeals a judgment of dismissal following National City's (City)

successful motion for judgment on the pleadings. We affirm. FACTUAL AND PROCEDURAL BACKGROUND McDini's Restaurant Corporation does business as McDini's Irish Cantina (McDini's) and is located at 105 E. 8th Street in National City (Property). Charlton Adler is the president, secretary and stockholder of McDini's. The Howard Adler Trust owns the Property.

Prior to 2010, McDini's was operating under conditional use permit (CUP)

2009-09, which allowed McDini's to operate as a restaurant and bar under certain conditions, including limiting live entertainment to Thursday through Saturday before midnight with professional security provided.

In 2010, the City brought a nuisance abatement action in San Diego County Superior Court against Adler, Charlton Adler, McDini's, and the Adler Howard Trust, entitled People v. Adler, San Diego Superior Court Case No. 37-2010-00092488-CU- MC-CTL (Abatement Action). The Abatement Action was based, in part, on the defendants' failure to comply with CUP 2009-09's live entertainment conditions.

On December 17, 2010, the court in the Abatement Action entered a stipulated judgment requiring McDini's to immediately cease all operations. The judgment was conditionally stayed provided, among other things, that McDini's applied for a new CUP within 60 days and in the interim ceased all live entertainment. The stipulated judgment provided that the City could seek enforcement of it by ex parte application for failure to comply with its terms.

McDini's applied for and was granted CUP 2010-33 by National City's planning commission, which the City Council approved in February 2012 through City council 2 resolution 2012-49, and live entertainment was again allowed at McDini's subject to a number of specific conditions. McDini's permission to have live entertainment was subject to revocation by the City, if, among other things, the chief of police determined that the reinstatement of live entertainment resulted in or significantly contributed to a 10 percent increase in the demand for police services at McDini's between the hours of 5:00 p.m. and 3:00 a.m.

On March 27, 2012, the December 17, 2010 stipulated judgment in the Abatement Action was amended to allow for live entertainment at McDini's provided McDini's operated in compliance with resolution 2012-49's conditions. The March 27, 2012 amended stipulated judgment further allowed the City to proceed by ex parte application to reinstitute the December 17, 2010 stipulated judgment's prohibition of live entertainment for McDini's failure to comply with resolution 2012-49's conditions.

In March 2013, the planning commission undertook an annual review of CUP 2010-33. After concluding that McDini's failed to comply with resolution 2012-49's conditions, and finding there was more than a 10 percent increase in the demand for police services, the planning commission set a revocation hearing. A public revocation hearing was held on June 17, 2013, after which the planning commission revoked CUP 2010-33, which had the effect of barring live entertainment at McDini's. The planning commission's decision was appealed and upheld by the City council pursuant to resolution 2013-132.

3 Based on McDini's failure to comply with resolution 2012-49's conditions and the resulting revocation of CUP 2010-33, the City applied ex parte on September 12, 2013 to reinstate the prohibition of live entertainment at McDini's.

On September 12, 2013, over Adler's opposition, the court in the Abatement Action ordered the immediate reinstitution of the stipulated judgment's prohibition of live entertainment at McDini's. Adler did not appeal this order.

On December 2, 2013, Adler filed a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5. Alleging McDini's compliance with resolution 2012-49's live entertainment conditions, Adler sought a court order overturning resolution 2013-132, which affirmed the planning commission's preclusion of live entertainment at McDini's through revocation of CUP 2010-33. In essence, Adler sought a court order allowing live entertainment at McDini's.

The City moved for judgment on the pleadings, which included a request for judicial notice. The City argued Adler lacked standing because the Howard Adler Trust, as the owner of the Property, was the proper party to challenge the City council's affirmation of the planning commission's revocation of CUP 2010-33. The City additionally argued that the stipulated judgment and order in the Abatement Action precluding live entertainment at McDini's was res judicata to the issues Adler raised in his writ petition.

On February 6, 2015, the trial court granted the City's request for judicial notice as well as the City's motion for judgment on the pleadings without leave to amend. Adler timely appealed the ensuing judgment.

4 DISCUSSION

On appeal, the judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) All intendments and presumptions are made to support the judgment on matters as to which the record is silent. (Ibid.)

An appellant has the burden to provide an adequate record and affirmatively show reversible error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Further, it is the appellant's duty to support arguments in his or her briefs by references to the record on appeal, including citations to specific pages in the record. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).) "Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale Homeowners Assn. (2009)

172 Cal.App.4th 857, 862 (Nelson).) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

As a threshold matter, we observe that Adler's opening brief is not a model of clarity. He begins by telling us he is appealing "the granting of a Motion for Summary Judgment holding that an Ex-Parte Motion being granted in a companion case barred a subsequent evidentiary hearing." However, the instant appeal actually concerns a judgment of dismissal following a successful motion for judgment on the pleadings.

Thus, from the outset, Adler does not even properly frame the issues before us.

5 An appellant's opening brief must provide "a summary of significant facts limited to matters in the record." (Cal. Rules of Court, rule 8.204(a)(2)(C).1) Here, Adler has included a section entitled "Statement of the Facts" in his opening brief, but he fails to cite to the record to support any of the facts. This is improper. (Duarte, supra, 72 Cal.App.4th at p. 856.)

Also, the superior court granted the City's motion for judgment on the pleadings on the grounds that Adler lacked standing and the petition was barred by res judicata.

Adler does not address these issues adequately. He ignores the res judicata issue, and argues that he is the appropriate person to appear on behalf of McDini's. Unfortunately, this argument is not supported by citations to the record or any legal authority. Adler therefore has waived this argument. (Nelson, supra, 172 Cal.App.4th at p. 862.)

Moreover, Adler's contention misses the mark. The court found that Adler lacked standing because he is not the owner of the Property. Here, Adler does not dispute this fact, but instead, insists that he "will move this court to designate McDini's Restaurant Corp. as the real party in interest." Again, Adler fails to address the reasoning of the court's order and does not explain why the court's finding that he lacked standing was in error. These shortcomings also are fatal to Adler's appeal. (See In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

Further, Adler did not file a proper appellant's appendix in the instant matter. Rule 8.124(b)(1)(B) requires an appellant to include in the appendix any document filed in the 1 Further citation to the rules or rule are to the California Rules of Court. 6 trial court necessary for this court to resolve the issues raised on appeal. Because Adler's argument is that the superior court erred in granting the City's motion for judgment on the pleadings, it logically follows that Adler would include the City's motion, Adler's opposition to the motion, and any other pleadings the court considered in ruling on the motion. However, Adler did not include any of the briefing on the motion he now claims was improperly granted. He thus cannot establish error. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [appellant failed to meet burden to establish error in granting respondent's motion to strike by omitting the motion to strike, opposition, and the court's order].)

Although all the above deficiencies are sufficient grounds on which to affirm the judgment, even if we were to reach the merits of this appeal, we would affirm the judgment in any event.

Judgment on the pleadings is similar to a demurrer and is properly granted when the "complaint does not state facts sufficient to constitute a cause of action against [the]

defendant." (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) We independently review the superior court's ruling on a motion for judgment on the pleadings to determine whether the complaint states a cause of action. In so doing, we accept as true the plaintiff's factual allegations and construe them liberally. (Rolfe v. California Transportation Com. (2002) 104 Cal.App.4th 239, 242-243.) If a judgment on the pleadings is correct upon any theory of law applicable to the case, we will affirm it 7 regardless of the considerations used by the superior court to reach its conclusion.

(Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)

In his petition for writ of administrative mandamus, Adler asks the court to order the City to set aside resolution 2013-132, which affirmed the planning commission's revocation of CUP 2010-33. In other words, Adler wants the court to reinstate CUP 2010-33 that would allow live entertainment at McDini's. However, he lacks standing to request such relief.

A CUP is not a personal interest. Instead, it runs with the land upon which the use is allowed. (Anza Parking Corp. v. City of Burlingame (1987) 195 Cal.App.3d 855, 858.)

Logically, the owner of the subject property would be the party with standing to challenge the revocation of the CUP. It is not disputed that Adler does not own the Property. He makes no such allegation in his petition. Accordingly, we agree with the superior court that Adler lacks standing to bring the petition to reinstate CUP 2010-33.2 In addition, we conclude that Adler's petition was barred by res judicata. The doctrine of res judicata gives preclusive effect to a prior, final judgment involving the same controversy between the same parties or those in privity. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken).) It consists of two related aspects: claim preclusion and issue preclusion. Claim preclusion provides that "a valid, final judgment on the merits precludes parties or their privies from relitigating the same 'cause of action' in a subsequent suit." (Le Parc Community Assn. v. Workers' Comp. Appeals Bd. (2003)

2 We note Adler offered no argument in his opening brief addressing the standing issue. 8 110 Cal.App.4th 1161, 1169.) Issue preclusion, or collateral estoppel, " 'precludes relitigation of issues argued and decided in prior proceedings.' " (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)

"For purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding." (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.) Thus, " ' "the prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding." ' " (Boeken, supra, 48 Cal.4th at p. 797; Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381.)

In the Abatement Action, the parties (which included Adler) entered into a stipulated judgment on December 17, 2010 requiring McDini's to cease all operations, including live entertainment. The stipulated judgment was amended on March 27, 2012 to allow live entertainment provided McDini's complied with certain conditions. In addition, the amended stipulated judgment provided: "In the events Defendants do not comply with any terms of this Amendment to the Stipulated Judgment, the City can proceed by Ex Parte Application to reinstitute the prohibition of live entertainment at McDini's . . . ." By way of the amendment to the stipulated judgment, the parties (including Adler) agreed to a quick, efficient mechanism to revoke the allowance of live 9 entertainment if the defendants did not comply with certain terms. That mechanism was an ex parte application. Adler does not dispute that the amended stipulation provided that expedited process.

"In a stipulated judgment . . . litigants voluntarily terminate a lawsuit by assenting to specified terms, which the court agrees to enforce as a judgment." (California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 663.) A stipulated judgment has the same effect as if the action were tried on the merits. (Avery v. Avery (1970) 10 Cal.App.3d 525, 529; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 596.) A stipulated judgment is res judicata as to those issues it embraces, (California State Auto., supra, at p. 664; Villacres, supra, at p. 596), including those that were raised or could have been raised (Gates v. Superior Court (1986) 178 Cal.App.3d 301, 309; Avery, supra, at p. 529).

Here, it is undisputed that the City applied ex parte, under the amended stipulation, to reinstitute the prohibition of live entertainment at McDini's. Over Adler's opposition, the court entered the City's requested order. Adler did not appeal that order.

Instead, over two months later, Adler brought the instant petition, contending that live entertainment must be permitted at McDini's. Moreover, he argues that the reasons supporting the City's decision to reinstate the prohibition of live entertainment are false.

In doing so, however, Adler is seeking to relitigate the exact same issue that was resolved in the Abatement Action, in which he was a party. Thus, res judicata precludes Adler from relitigating the same issues in his writ proceeding. (See O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151, 155-157 [judgment in nuisance abatement 10 action brought by City against permitee for violations of a CUP precludes relitigating same issues in writ proceeding by permitee challenging revocation of use permit].)3

DISPOSITION

The judgment is affirmed. The City is awarded its costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

3 In his opening brief, Adler maintains his due process rights were violated because he was not permitted to have a full hearing on the issues. However, his argument is aimed at the amended stipulation allowing the City to seek an ex parte order to reinstate the prohibition of live entertainment. Put differently, Adler is attempting to challenge the ex parte order in the Abatement Action. He needed to do so in that action by writ or appeal. In addition, Adler specifically agreed to the expedited procedure and now cannot modify that procedure through his petition. (Cf. Bernardi v. City Council (1997) 54 Cal.App.4th 426, 440.) 11

Cites, in this corpus