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The People v. Gladys Martin Schlimbach et al

March 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GLADYS MARTIN SCHLIMBACH ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey and Richard E. Rico, Judges. (Los Angeles County Super. Ct. No. BC397754)

The opinion of the court was delivered by: Croskey, J.

CERTIFIED FOR PUBLICATION

Affirmed.

Defendant and appellant Gladys Schlimbach operates Le Blanc Cafe, a restaurant and bar. Between August 2007 and July 2008, Schlimbach's employees were arrested seven times for selling alcohol to obviously intoxicated patrons, a misdemeanor. As a result of these arrests, on September 10, 2008, the Los Angeles City Attorney, acting on behalf of the People of the State of California, brought this action against Schlimbach*fn1 to declare her premises a public nuisance under the Unlawful Liquor Sale Abatement Law (Pen. Code, §§ 11200-11207) and for unlawful business practices (Bus. & Prof. Code, § 17200). On cross-motions for summary judgment, the trial court concluded that no triable issues of fact existed and that: (1) the bar constituted a nuisance; and (2) unlawful business practices were permitted at the bar. A permanent injunction followed, imposing limits on Schlimbach's conduct of her business in order to avoid future sales of alcohol to obviously intoxicated persons. Schlimbach was also ordered to pay civil penalties, attorney fees, investigative fees, and court costs. Schlimbach appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The complaint in this action was filed on September 10, 2008. It alleged two causes of action against Schlimbach: (1) violation of the Unlawful Liquor Sale Abatement Law; and (2) unlawful business practices. The latter cause of action purported to "borrow" the violation of the Unlawful Liquor Sale Abatement Law itself.*fn2 A preliminary injunction was entered, and ultimately amended to terms less restrictive to Schlimbach.

The People moved for summary judgment or summary adjudication of the issues. The People's evidence*fn3 included a declaration from Los Angeles Police Department Sergeant Raymond Marquez to the effect that: (1) he had received numerous complaints from residents and businesses in the area of Le Blanc Cafe; (2) there had been several arrests of individuals for driving under the influence, in which the individuals stated that they had been drinking at Le Blanc Cafe; (3) LAPD officers provided Standardized Training for Alcohol Retailers (STAR) at Le Blanc Cafe for 12 Le Blanc Cafe employees on July 31, 2007; (4) STAR training includes a discussion of the law regarding serving alcohol to intoxicated persons and how to recognize the symptoms of an intoxicated person; and (5) after the STAR training, Sergeant Marquez directed officers to conduct undercover investigations at Le Blanc Cafe.

The People also presented evidence of the results of those undercover investigations, which demonstrated seven incidents (on five different days)*fn4 of the sale of alcohol to obviously intoxicated persons, which we now discuss. First, an August 2, 2007 police report indicates that waitress Avra Tanahubia served a beer to a patron who had slurred, unintelligible speech and needed to put his hand on another person's shoulder for balance when he stood. Thereafter, he asked for yet another beer; Tanahubia ignored him, but bartender Garduno Ramos sold the patron a second beer, despite the facts that the patron's speech was still slurred and unintelligible, and his face appeared reddish and droopy. Tanahubia and Ramos were both arrested for selling alcohol to an obviously intoxicated person. The patron's blood alcohol level was tested to be .14%.

Second, a January 26, 2008 arrest report indicates that waitress Elvia Chacon sold a pair of beers to a patron whose speech was loud, slurred and unintelligible, eyes were glossy and bloodshot, and body was swaying on a barstool. The patron fumbled with his money to pay; Chacon reached over and helped the patron select the right amount of money. Chacon was arrested for selling alcohol to an obviously intoxicated person. The patron's blood alcohol level was tested to be .24%.

Third, a February 14, 2008 arrest report indicates that waitress Tanahubia sold two beers to the companion of a man whose face was flushed and who spoke with slurred and unintelligible speech. The man then knocked his beer over, causing it to spill. The man walked out of the bar briefly, and returned 15 minutes later. He tried to get Tanahubia's attention. She initially ignored him, but when he, with slurred speech, asked her for a beer, she sold him one. Tanahubia was arrested for selling alcohol to an obviously intoxicated person. The patron's blood alcohol level was tested to be .068%. At the same time, waitress Johanna Junay brought a pitcher of beer to a group of six men, one of whom swayed from side to side when he walked to the bathroom, had a flushed face, and displayed glossy and bloodshot eyes. After Junay brought the group the pitcher, the man made an unintelligible comment that they were drunk and were being served beer in front of the LAPD. Junay walked away and returned with a second pitcher of beer for the group. The man served himself a glass of beer, from the pitcher, in Junay's presence. Junay was arrested for selling alcohol to an obviously intoxicated person. The patron's blood alcohol level was tested to be .127%.

Fourth, an April 10, 2008 arrest report indicates that Tanahubia served a beer to a man who had been served three beers in rapid succession. The man had an unsteady gait, and overtly slouched on a barstool. His face was flushed and he turned his head with involuntary movements. He had difficulty obtaining the money from his wallet to pay for the beer. Tanahubia was arrested (for the third time) for selling alcohol to an obviously intoxicated person. At this point, Tanahubia spontaneously told the officers that the patron had already entered the bar drunk and had not been served a beer. The man was arrested for public drunkenness. His blood alcohol level was tested to be .208%.

Fifth and finally, a July 3, 2008 arrest report indicates that waitress Aleyda Salazar-Siqueros brought a pitcher of beer to a booth where a particular patron was sitting with other people. The patron was slouching and his head moved slowly up and down as he spoke. He talked with Salazar-Siqueros as he swayed and laughed. He drank some beer and Salazar-Siqueros left the table. He continued drinking in her view. Later, Salazar-Siqueros returned to the booth with another pitcher of beer and refilled the patron's glass, among others. Salazar-Siqueros was arrested for selling alcohol to an obviously intoxicated person. The patron's blood alcohol level was tested to be .18%.

Schlimbach filed her own motion for summary judgment or summary adjudication, as well as an opposition to the People's motion. Schlimbach relied on her own declaration, as well as the declarations of her employees Tanahubia and Junay. The intended overall effect of this evidence was to establish that the patrons in question were not intoxicated when sold alcohol and, if they were, they were not obviously intoxicated. Schlimbach noted that charges against her employees were not pursued by the authorities, except in one instance in which the charges were successfully defeated.*fn5 In short, Schlimbach sought to establish that her employees were properly trained, and did not serve alcohol to obviously intoxicated persons. Instead, she argued that she was simply being harassed by the police.

However, the People interposed substantial objections to Schlimbach's evidence, many of which were sustained. Schlimbach's declaration testimony regarding police harassment was excluded. More importantly, with one exception, objections were sustained to the testimony of Schlimbach and her employees to the effect that the patrons served were not obviously intoxicated. Schlimbach does not contest any of these rulings on appeal; therefore, her attempts to rely on this evidence on appeal are improper.*fn6 The trial court overruled the objection, however, with respect to Tanahubia's declaration that the patron she served on April 10, 2008 was not obviously intoxicated when she served him. This testimony, and the fact that Tanahubia was exonerated of one of the charges (which may be the charge arising from the same incident) appears to be the only evidence which directly contradicts the People's evidence regarding seven incidents of selling alcohol to obviously intoxicated persons.*fn7

The case proceeded to a hearing. The statute at issue, the Unlawful Liquor Sale Abatement Law, provides as follows: "Every building or place used for the purpose of unlawfully selling, serving or giving away any spirituous, vinous, malt or other alcoholic liquor, and every building or place in or upon which such liquors are unlawfully sold, served or given away, is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance." (Pen. Code, § 11200.) The trial court concluded that no triable issue of fact existed as to violation of this statute, because the property has been used for the purpose of the unlawful selling of alcoholic beverages, in the sense that sales to obviously intoxicated persons are unlawful sales. Relying on this conclusion, the trial court also found no triable issue of fact as to whether Schlimbach engaged in unlawful business practices, as her business practices violated the Unlawful Liquor Sale Abatement Law. Thus, the People's motion for summary adjudication of these issues was granted, and Schlimbach's cross-motion was denied. The court set the matter for additional briefing and a hearing on the issue of the terms of any permanent injunction, as well as costs, civil penalties, and attorney fees.

After the hearing, the court entered judgment in favor of the People and against Schlimbach. Schlimbach was permanently enjoined, in general terms, from occupying the property for the purposes of the unlawful sale of alcoholic beverages. In more specific terms, she was directed to implement the following six provisions: (1) not employ individuals who have been convicted of alcohol-related violations; (2) require all employees to attend STAR training within six months of employment; (3) do not allow employees to unlawfully sell, serve or give away any alcoholic beverage to an obviously intoxicated person; (4) employ one uniformed security guard to work at Le Blanc Cafe when there is live entertainment; (5) keep the kitchen operational and food service available at ...


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