California Court of Appeals, First District, Second Division
CERTIFIED
FOR PARTIAL PUBLICATION [*]
San
Francisco County Superior Court No. CGC-15-547922, Hon.
Richard B. Ulmer, Jr. Trial Judge
Attorneys for Plaintiffs and Appellants: Wood Robbins, B.
Douglas Robbins, Leyla M. Pasic, Kelley A. Harvilla
Attorneys for Defendants and Appellants, Kerr &
Wagstaffe, Wagstaffe, Von Loewenfeldt, Busch & Radwick
James M. Wagstaffe Michael Von Loewenfeldt, Draper Law Firm
Ann McFarland Draper
KLINE,
P.J.
After
leasing premises owned by 524 Union Street for purposes of
opening a restaurant, respondent ENA North Beach was unable
to open because the San Francisco Planning Department
determined that an existing conditional use authorization for
the property was no longer effective and a new one could not
be granted. ENA North Beach filed suit against the lessors,
claiming false representations and failure to disclose
material facts regarding the problems with the conditional
use authorization. A jury found in favor of ENA North Beach
and awarded compensatory and punitive damages. This appeal
challenges the sufficiency of the evidence to support the
jury's verdict. ENA North Beach's cross-appeal
challenges the trial court's decision to reduce the
amount of the punitive damages award against 524 Union
Street. We conclude that the jury's verdict on liability,
including liability for punitive damages, is supported by
substantial evidence. Although we conclude the trial court
employed an improper procedural mechanism in reducing the
amount of the punitive damages award, we affirm the judgment
for the reasons explained herein.
BACKGROUND
Natasha
Hong, the president of ENA North Beach, sought to open a
restaurant with a license to serve beer and wine in a
building owned by 524 Union Street (524 Union), a space which
had housed restaurants for many years. 524 Union is a general
partnership, of which Beverly Smucha is the managing partner
and her son, Barak Smucha, a partner.[1] Beverly estimated
she had owned the property for 35 or 40 years. Prior tenants
had operated under a conditional use
authorization[2] for a “full-service restaurant
and bar” obtained in 1998. Under the San Francisco
Planning Code (Planning Code), a new full-service restaurant
could be operated in this space only if there had not been a
gap in operations of such a restaurant for more than three
years, as the conditional use authorization would lapse if
the approved use was discontinued for more than three years.
(S.F. Planning Code, § 178, subd. (d).)[3] The continued
validity of the existing conditional use authorization was
critical to Hong's ability to open her restaurant because
an ordinance adopted in 2012 prohibited approval of a new
conditional use authorization for a full-service restaurant
in this location. (S.F. Planning Code, § 780.3, subd.
(c)(1) [North Beach Special Use District].)
The
meaning of the term “full-service restaurant” was
a matter of some dispute at trial. According to the San
Francisco Planning Department (Department) planner who
testified at trial, under the applicable definitions in the
Planning Code, a “restaurant” or
“full-service restaurant” had to have “a
majority of food service” but could also serve alcohol,
while a “limited restaurant” would have no
alcohol service.[4] She testified, however, that the San
Francisco Zoning Administrator interpreted the definitions as
requiring that a full-service restaurant have a liquor
license, so that a restaurant that did not serve alcohol
would be a “limited restaurant.” Beverly
maintained that a full-service restaurant was allowed to
serve alcohol but not required to do so, and differed from a
limited restaurant in that full service meant a sit-down
restaurant while a limited restaurant was “more like a
takeout place.”
Prior
to ENA North Beach, a restaurant called Le Bordeaux had
operated at 524 Union for part of 2011. Although Le Bordeaux
had closed less than three years before ENA North Beach's
tenancy, the Department concluded the conditional use
authorization had lapsed for two reasons. One was that there
had been a long gap between Le Bordeaux and the previous
restaurant, The Field, which had a lease running through
August 2008, but in fact left the premises in 2004. The
second was that although Le Bordeaux had been approved as a
full-service restaurant, the Department took the view that it
did not operate as such because, while it had applied for a
liquor permit from the state Department of Alcohol and
Beverage Control (DABC), it had not actually received the
permit before it ceased operating. As explained by the
attorney Hong later hired to help her negotiate the permit
issues, because the Department considered running a bar part
of the approved use under the 1998 conditional use
authorization, that authorization would lapse if there was a
three-year period in which a bar was not run.
As will
be explained, Hong initially obtained approval for her
restaurant from the Department but that approval was
subsequently rescinded after the gap in operations between
The Field and Le Bordeaux was brought to the attention of the
Department and the Department learned that Le Bordeaux had
been operating without a liquor license. Unable to obtain
approval to open the restaurant, ENA North Beach sued 524
Union and Beverly, alleging that Beverly falsely told Hong
there had been full-service restaurants in the space
“continuously, ” failed to disclose the more than
three-year gap, and falsely represented that Le Bordeaux had
an alcohol license.[5] Beverly maintained that she made all
necessary disclosures regarding the history of the leased
premises and that the Department interpreted the Planning
Code incorrectly, an error Beverly could not have
anticipated.
Hong
testified that when she first visited the property in June
2014, Barak told her Le Bordeaux had a beer and wine license.
She testified that Beverly told her there had always been a
liquor license at the property, which had always been used as
a full-service restaurant; never said Le Bordeaux did not
receive a license to serve alcohol but rather said it
obtained the license; never said the space had been abandoned
or “discontinued” for three years, and never
discussed the need for a conditional use permit. Before
signing the lease, Hong went to the Department, asked the
clerk whether there would be any problem opening a
full-service restaurant at 524 Union and was told
“no” and “everything is fine.”
In
mid-July 2014, Hong asked Beverly to delay the lease start
date from August 1 until September 1, as she was looking for
a wine and beer license broker to help her obtain a type 41
alcohol license and was not sure how long processing would
take. Beverly agreed to the change in start date but said she
could not delay signing the lease. Her email to Hong stated,
“You should be able to get a type 41 liq. license (beer
and wine) without a broker for a full-service restaurant. You
will not be able to move forward with licensing without a
fully executed lease.” Because she was very busy, Hong
hired the broker who had helped her when she opened her
existing restaurant.
Hong
signed the lease sometime on August 14, 2014. That afternoon,
the broker emailed her, “[u]nfortunately, you are not
allowed to obtain Liquor license, at all, ” attaching
an email from the Department stating that, according to the
zoning administrator, “the site will not be able to
accommodate a new liquor license.” Hong testified that
this was a big deal because a restaurant cannot make a profit
without selling alcohol. She contacted Beverly, who replied
that evening, saying all of the prior tenants had had type 47
(hard liquor) licenses and the French restaurant was
“approved for beer & wine.” Beverly sent Hong
a list of prior tenants from June 22, 1934, to October 7,
1999, describing all but one (in 1936) as “Bar &
Restaurant, ” as well as some documents related to
permits obtained by the tenants. Beverly told Hong she had
delayed executing the lease and depositing Hong's check
“because of your phone call, ” and suggested Hong
take a few days to decide whether the space was right for
her. Beverly subsequently signed the lease on August 17,
2014.
The
lease states that “[t]he premises are to be used for
the operation of a Restaurant, to serve food to the public as
a Full Service Restaurant and alcoholic beverages of beer and
wine. Lessee covenants and agrees with Lessor, as a condition
of this lease, that the purpose of or use of the premises
will not be changed or altered by Lessee without the prior
written consent of Lessor. Lessee shall use said premises
continuously and constantly during the term hereof for the
purpose of conducting the above mentioned business.”
On
September 2, Department planner Marcelle Boudreaux signed a
“Zoning Affidavit” to be submitted to the DABC
for ENA North Beach, indicating the existing conditional use
permit could be used and attaching the 1998 conditional use
authorization.[6] Hong understood this form to be saying
the previous tenant's conditional use permit remained
valid, which was consistent with her understanding from her
visit to the Department.
Around
December 2014, Hong obtained the DABC beer and wine license.
Renovations of the premises continued, with the aim of
opening the restaurant around March 2015.
On
January 20, 2015, planner Carly Grob emailed Hong that the
Department “cannot approve the Dept. of Public Health
or [DABC] referral for [ENA North Beach]. Planning Code
section 780.3 states that a restaurant may be permitted as a
conditional use if it does not occupy a vacant space last
occupied by a permitted conditional use that has been
abandoned or discontinued for 3 years. Because the former
tenant, Le Bordeaux, never received a DABC license to serve
alcohol, they were operating as a limited restaurant instead
of a restaurant. Therefore, the restaurant use was abandoned
more than 3 years ago, and cannot be reinstated at this
location.”[7]
Hong
emailed Beverly about the specified ordinance. Beverly
responded, “[t]his came into effect because there were
restaurants going into spaces that were previously other
uses. [¶] [524 Union] has always been a restaurant bar;
it's a 100 yr old space. This is not a new use but the
same use for decades, and one of the oldest if not the oldest
restaurant spaces in North Beach. [¶] Also they know Le
Bordeaux has not been out of there for 3 years. They are just
trying to come up with something else. Makes no sense. It
will work out, just need to get to the right person. These
planners need to be fired.” A few days later Beverly
told Hong, “The planner's opinion that Le Bordeaux
became a limited restaurant because of the processing of his
beer and wine license was delayed is
incorrect.”[8]
Hong
hired attorney David Silverman to help her with the
conditional use permit issues. On February 8, 2015, when Hong
forwarded to Beverly an email from her attorney's office
indicating that in order to fight the abandonment issue they
would need “the use/lease/occupancy history of the
building laid out, and all the efforts to try to find a
tenant over the last several years that hopefully would toll
the ticking of the abandonment clock, ” Beverly
replied, “Doesn't sound like this attorney is up to
speed with the laws. We will try to come up with some
names.”
In a
March 12, 2015 email, Beverly told Hong that the premises had
never been used as a limited restaurant but “always and
only” full service, the insurance on the premises was
for a full-service restaurant, “which is more expensive
and difficult to get, ” and the previous tenant's
insurance was for a full-service restaurant with a beer and
wine license.
Silverman
testified that Beverly told him The Field left in 2008 and
gave him a copy of its lease, which stated a termination date
of August 31, 2008. On this basis, Silverman argued to the
zoning administrator that the gap between The Field and Le
Bordeaux was less than three years. The zoning administrator
found The Field's lease insufficient to demonstrate that
it remained in operation until its termination date because
the DABC website indicated The Field's licenses were
cancelled in August 2004. Beverly told Silverman she thought
the administrator was mistaken.[9] Based on Beverly's
representations, Silverman prepared a declaration that she
executed on March 16, 2015, stating that “the space has
been used as a full-service restaurant and bar continuously
after we obtained the conditional use authorization in 1998
except for periods of turnover between tenants, when we
advertised for full-service restaurant tenants, ” and
that “The Field Restaurant and bar was the Lessee under
a Lease Agreement that was in effect from August 26, 1998
until August 31, 2008.” The zoning administrator again
found this was “not enough to substantiate that the
conditional use was not abandoned.”
Silverman
testified that when he tried to get documentation from
Beverly to refute the gap in operations between The Field and
Le Bordeaux, she responded with statements about Le
Bordeaux's liquor license application and arguments that
the Department's determination was wrong.[10] At this
point, Silverman was “starting to think that [the
zoning administrator] might have a point because I'm not
getting any evidence to the contrary.”
In an
April 2015 email correspondence, the zoning administrator
informed Silverman that “any approval of Le Bordeaux in
2011 was in error” because the previous restaurant use
had been abandoned after The Field discontinued operation in
2004. Silverman's requests for additional documentation
from Beverly met with arguments that the department was
acting improperly. The zoning administrator denied Hong's
request for a hearing, and Silverman told Beverly they had
reached a dead end.
Hong
testified that she had believed everything Beverly told her
about the use of the premises and realized Beverly “was
lying to me from the beginning” only after her
attorneys told her there was nothing more to be done and she
would not be able to open the restaurant. She gave notice of
termination of the lease on April 24, 2015. Asked why he
believed, as stated in the termination letter, that Beverly
“failed to disclose to [Hong] the existence of the
abandonment of the conditional use for the premises, ”
Silverman testified, “[b]ecause she had been telling me
the opposite... [t]hat the restaurant had operated
continuously... [a]s a full-service restaurant and
bar.” He testified, “the situation was actually
worse than I wrote in this letter. I wrote that, ‘You
failed to disclose to our client existence of the
abandonment.' [¶] Actually, she lied to our client
about it because she told her over and over again that there
had been continuous operation. And she told me that, and she
told the zoning administrator that.”
Planner
Carly Grob testified that it initially appeared Hong's
restaurant could be approved with the existing approval for
restaurant use, but it was later discovered that Le Bordeaux
had been operating as a limited restaurant, without liquor
service, and the zoning administrator interpreted the
Planning Code as requiring a restaurant to have an alcohol
license. When Grob asked Beverly for documentation relating
to use of the property, Beverly responded with complaints
about the permit expediter who had complained about the
conditional use issue (see fn. 7, ante, at p
6.) and assertions that Le Bordeaux had gone through
a “very thorough” planning and zoning process to
receive approval. Beverly never said there was a vacancy at
the property. Grob testified that the Department had not
revoked the September 2, 2014 zoning affidavit indicating
Hong did not need a new conditional use permit, but had
“acknowledged” that position was incorrect and so
advised the DABC.
Sylvain
Castet, the owner of Le Bordeaux, testified that when he
rented the premises intending to open a French restaurant
serving beer and wine, Beverly did not tell him about a prior
vacancy of more than three years or possible need for a new
conditional use approval. After he signed the lease,
neighbors told him the property had been vacant for 10 years.
When he asked Beverly about this, she responded, “[n]o,
it hasn't been vacant for 10 years” and advised him
not to listen to the neighbors; she never told him there was
had been a vacancy of more than three years.[11]
Optimist
Prime, a company owned by James Bryant Bourque, his mother
and his stepfather, signed a lease for the 524 Union premises
on October 8, 2015, with the intention of opening a
restaurant. For tax reasons, a contingency was being able to
open by the end of 2015, and Beverly assured them she would
make sure they got timely approvals to be able to meet the
deadline. From his conversations with Beverly, Bourque
understood they would need to go through the conditional use
process but this would not stop them from opening the
restaurant; Beverly did not disclose that zoning for this
purpose had been lost entirely, did not mention a problem
with a prior tenant or with ENA North Beach, and told him the
owner of Le Bordeaux had received a liquor license but had to
leave the country due to a visa issue before he was able to
start using it. Beverly said the space had always been used
as a restaurant and both she and the lease itself said it
could only be used as a full-service restaurant. His
understanding from Beverly was that the premises had been
vacant because they were being selective about who to lease
to, not because they were having trouble getting tenants.
Beverly
provided Bourque with a written disclosure statement that
stated the premises had “always” been used as a
restaurant and had last been leased by ENA North Beach, which
“did not get open”; that Beverly had been told it
was “scheduled to open, with all approvals including
the issuance of their beer & wine license, ” until
expediter Marsha Garland, who represented competing
interests, complained to the Department; and that ENA North
Beach, “already in violation of her lease was unable to
navigate the permitting process with their attorney and was
adverse to the potential of a Conditional Use process, opting
instead not to pursue the issue formally.” The
disclosure described Le Bordeaux as a full-service restaurant
“specializing in Bordeaux regional wines, ” and
stated that it “received the required approvals and
permits from the city prior to opening” but processing
of its beer and wine license was “delayed because of
corporate issues” and “they got approved for
issuance, however just prior, they had to close due to
immigration visa issues.” According to the disclosure,
Garland and the Department had an issue with Le Bordeaux
having been approved to open without going through the
conditional use process, and the Department changed its
interpretation of the definitions of types of restaurants and
acted “as if Le Bordeaux had never opened and withdraw
[sic] ENA's approval.” The disclosure
referred to the “discrepancy with the last
tenant” and stated that the premises had “never
been a dormant space.”[12]
Bourque
first learned there might be a problem from the owner of the
restaurant next door. Although the Department initially said
it looked like there should not be a problem opening
“some kind of food service, ” an attorney alerted
Bourque to the zoning issues, further inquiries at the
Department revealed that The Field sold its liquor license to
another enterprise in 2004, and Bourque learned they would be
able to open only with a special exemption from the
supervisor of the district, who was a proponent of the
special use district trying to limit restaurants in North
Beach.
Bourque
testified that Beverly told his mother about the present
lawsuit about four days after the lease was signed but said
it would not impact Optimist Prime; they came to realize the
suit was linked with the zoning issues and gave notice of
termination of the lease on October 31, 2015. Bourque denied
Beverly's claims that they terminated the lease because
she would not approve unpermitted work they wanted to do on
the premises and that they damaged the premises.
Grob
testified that it seemed the landlord was continuing to
market the space as a restaurant because she continued to get
calls from prospective tenants seeking to open a restaurant
there; she would tell them that they could not do so, in
accordance with the Department's “practice and
opinion” that the space cannot be used as a
full-service restaurant and bar.
Beverly
testified that when Hong first contacted her about the
premises, she did not believe a conditional use permit would
be needed because the previous tenant had been approved
without a new one, there was still a conditional use permit
recorded against the property, and her understanding was that
the permit would have to go before the San Francisco Planning
Commission to be revoked. The 1998 conditional use
authorization included the statement that a
“full-service restaurant and bar previously existed at
the Project Site, but has been closed for over three years.
Per Planning Code Section 178(d), conditional use
authorization would not be required had the business been
closed for less than three years.” Asked about her
awareness of this point in 1998, Beverly testified that she
did not know whether the new authorization was required
because of “the three years or it was a different kind
of business or a different kind of liquor license.”
Beverly
acknowledged there was “at least” a three-year
gap between The Field and Le Bordeaux, as The Field vacated
before the end of its lease. She testified that
“[p]robably all of North Beach” knew about The
Field vacancy. Asked why she did not disclose it, Beverly
said, “[t]here was nothing to disclose” and
“we disclosed everything.” She denied having
suggested to Grob that the vacancy period was less than three
years and testified that she did not correct the
misunderstanding reflected in an email suggesting she had
done so[13] because she was “trying to
figure out what was going on because they had approved Le
Bordeaux and they approved Hong, ” and she was shocked
that the city was “going back to a previous
tenant” after having approved Le Bordeaux. She denied
knowing that a three-year gap in use would jeopardize the
conditional use permit or representing to other people that
the property did not have a vacancy of at least three
years.[14]
Asked
about the statement in her declaration that the space had
been used “continuously” as a full-service
restaurant and bar since the conditional use authorization in
1998, she testified that her understanding of
“continuously” was “repeatedly, ” the
statement was true “except for the time when it was
vacant, ” and the use of the space was never changed.
Beverly believed a conditional use authorization would not
lapse if the owner did not intend to abandon the use, a view
she believed to be supported by a 2004 letter of
determination by a previous zoning administrator which she
described as concluding there was no abandonment of a
conditional use permit where “the owner's intention
is to find a replacement tenant for the same
use.”[15] She testified that her declaration
was meant to prove there was no three-year abandonment, and
denied that it was misleading to say The Field was the lessee
under an agreement that was “in effect” until
August 31, 2008, when The Field had left before the end of
the lease term.
Asked
about the email in which she told Hong that Le Bordeaux had
been “approved for a type 41 liquor license, ”
Beverly testified that she meant the owner was
“approved with the city as a full-service restaurant to
operate with a Type 41 liquor license, ” but
acknowledged that the city does not issue liquor licenses and
that the owner closed the restaurant “prior to the
final issuance and approval” of a liquor license.
Beverly
denied having a disclosure problem with Optimist Prime;
denied that the written disclosure statement failed to
disclose that ENA was not able to use the 1998 conditional
use authorization or get a new one; denied that saying the
premises had “never been a dormant space” was
intended to communicate that there were no vacancy issues;
and claimed to have discussed the issues about The Field with
the lessees when they first looked at the space. Beverly
testified that Optimist Prime left because she would not
approve plans for unpermitted alterations of the space; asked
whether the real reason was that the lessees discovered they
would not be able to open a full-service restaurant and bar
because of the issues Hong had, Beverly responded,
“that's what they said. However, we were very
suspicious that maybe we were set up in them coming in at
some point.”
Barak
testified that when he first showed Hong the space, she knew
about Le Bordeaux and asked “how he survived being a
French restaurant without the liquor license, ” and
that he discussed with Hong the problem of The Field having
left before the end of its lease and told her, as he tells
everyone, there had been a three- or four-year vacancy before
Le Bordeaux. He testified that Castet knew about the
“three- to four-year” vacancy prior to Le
Bordeaux and denied that the contrary was indicated by an
email in which Castet said he needed to know the departure
date of the last tenant because the Department needed to know
if it was less than three years so he could be allowed
“a ‘continuation of existing use.' ”
Barak
testified that when he first showed the space to Bourque, he
gave his “usual” disclosure speech, so
“they knew going in that there were unresolved zoning
issues, ” but they “weren't really that
interested” and said they had a contact at a lobbyist
firm. He told Bourque that the Department was misreading a
law and there was more to be done to deal with the issue. He
denied having been told Bourque had a definite timeline for
opening his restaurant and claimed they would not have leased
to him if he had, denied that Bourque was told a beer and
wine license had been issued to Le Bordeaux, and stated that
Bourque wanted to do extensive unpermitted work on the space.
Barak testified he still believed there will be a restaurant
with a liquor license in the space, as neighboring properties
with long vacancies had gotten licenses in same time
period.[16]
The
jury returned verdicts in favor of ENA North Beach on the
claims for intentional misrepresentation, concealment, and
breach of the implied covenant of good faith and fair
dealing, and found damages of $91, 692.50, and clear and
convincing evidence that Beverly acted with malice,
oppression or fraud. The jury found in favor of Beverly on
Ena North Beach's claim for breach of contract. The jury
subsequently awarded punitive damages against 524 Union in
the amount of $916, 925 and against Beverly personally in the
amount of $91, 692.50. After the court entered judgment on
the jury's verdict, Beverly filed motions for judgment
notwithstanding the verdict (JNOV) and for a new trial. The
trial court denied the new trial motion, granted the motion
for JNOV in order to reduce the award of punitive damages
against 524 Union to $131, 500, and denied the motion in all
other respects. The court granted ENA North Beach's
motion for attorney fees in the amount of $401, 584 ($385,
874 for fees accrued up to entry of judgment and $15, 710 for
fees accrued after entry of judgment), and subsequently
granted a supplemental motion for attorney fees in the amount
of $75, 537. The final judgment was filed on August 28, 2017.
This appeal and cross-appeal followed.
DISCUSSION
I.
Beverly
challenges the sufficiency of the evidence to support the
jury's verdict. In resolving this issue, “[a]ll
conflicts in the evidence are resolved in favor of the
prevailing party, and all reasonable inferences are drawn in
a manner that upholds the verdict. (Greathouse v. Amcord,
Inc. (1995) 35 Cal.App.4th 831, 836-837, citing
Crawford v. Southern Pacific Co. (1935) 3 Cal.2d
427, 429.)” (Holmes v. Lerner (1999) 74
Cal.App.4th 442, 445.) “All issues of credibility are
likewise within the province of the trier of fact.”
(Nestle v. City of Santa Monica (1972) 6 Cal.3d 920,
925.)
A.
The
theory of Hong's case was that she was fraudulently
induced to enter the lease agreement. “ ‘The
necessary elements of fraud are: (1) misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge
of falsity (scienter); (3) intent to defraud (i.e., to induce
reliance); (4) justifiable reliance; and (5) resulting
damage.' ” (Molko v. Holy Spirit Assn.
(1988) 46 Cal.3d 1092, 1108; see Seeger v. Odell
(1941) 18 Cal.2d 409, 414; § 1709.)” (Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239
(Alliance Mortgage).)
Beverly
contends there was no substantial evidence to support the
jury's verdict for intentional misrepresentation in that
there was no evidence of any misrepresentation made
before the lease was signed. According to Beverly,
Hong's attorney argued in closing that evidence of
statements made after the lease was signed allowed
an inference that similar statements were made and relied
upon prior to signing, an argument Beverly maintains
improperly called for speculation absent evidence of any such
statements having been made. (California Shopper, Inc. v.
Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 45
[finding of fact must be based on evidence, not
speculation].)
Beverly's
characterization of this portion of the argument is not
accurate. Counsel argued that Hong testified to statements
she relied upon in signing the lease, and that evidence of
statements made after the lease was signed was relevant
in addition to Hong's testimony because it
showed “how [Beverly] is talking. It's consistent
that, if you make misrepresentations before the lease is
signed, you continue to make those same misrepresentations
after the lease is signed.”[17] Counsel did not argue
that because there was evidence of false statements made
after the lease was signed the jury could conclude such
statements were also made before the signing.
Hong
testified that when she first visited the property, Barak
told her that Le Bordeaux was a “bar, ”
“they must have had a lot of beer piping going
upstairs” and “they had a beer and wine
license.”[18] She testified that Beverly told her
the property had always been a full-service restaurant and
there had always been a liquor license at the property; never
said Le Bordeaux did not receive a license to serve alcohol
but ...