1 Nathan A.

Shaman (SBN 272928)

THE LAW OFFICES OF NATHAN SHAMAN
2 444 W. C Street, Suite 400
San Diego, CA 92101
3 Telephone: (619) 564-8796
Facsimile: (858) 737-5123
4 Email: nathan@shamanlegal.com

6 Attorney for Petitioner New Origins Management, Inc.

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SAN DIEGO, CENTRAL DIVISION

10 NEW ORIGINS MANAGEMENT, INC., a ) Case No.:

California corporation, )
11 ) VERIFIED PETITION FOR WRIT OF
Plaintiff, ) ADMINISTRATIVE MANDAMUS
12 )
vs. )
13 )
CITY OF LA MESA, )
14 )
Defendant. )
15 )
)
16 )

17 I.

18 INTRODUCTION

19 Petitioner NEW ORIGINS MANAGEMENT, INC. (NOM) brings this action against

20 Respondent CITY OF LA MESA (the City) to request a writ of administrative mandamus compelling

21 the City of La Mesa City Council (the City Council) to set aside its decision to grant an appeal and

22 overturn the decision of the City of La Mesa Planning Commission (the Planning Commission) to grant

23 a conditional use permit to NOM to operate a medical marijuana dispensary, and to enter a new

24 decision to deny that appeal.

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Verified Petition for Writ of Administrative Mandamus
1 NOM hereby alleges as follows:

2 1. At all times relevant to this Petition, Petitioner NEW ORIGINS MANAGEMENT, INC.

3 is and has been a California corporation with its principal place of business in San Diego County.

4 2. At all times relevant to this Petition, Respondent CITY OF LA MESA is and has been a

5 municipal corporation located in San Diego County and has been the public agency responsible for

6 final decisions on applications for medical marijuana dispensary conditional use permits within the

7 jurisdictional boundaries of the City of La Mesa.

8 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

9 3. On November 8, 2016, the people of the City of La Mesa passed Measure U to regulate

10 medical marijuana dispensaries in the City.

11 4. On February 6, 2017, NOM submitted an application for a conditional use permit to

12 operate a medical marijuana dispensary at 7339 El Cajon Boulevard, Suite C in the City of La Mesa,

13 California (the Proposed Premises).

14 5. On March 21, 2018, the Planning Commission unanimously approved issuance of

15 conditional use permit 17-31 to NOM.

16 6. On April 4, 2018, the San Diego Center Children (the Center) filed an appeal of the

17 Planning Commission’s decision. 1

18 7. Despite receiving notice from the City of the Planning Commission’s upcoming hearing,

19 which notice was mailed by the City two weeks before that hearing, the Center did not object to the

20 issuance of the CUP at that Planning Commission’s hearing.

21 8. In its appeal, the Center argued for the first time that the Planning Commission’s

22 approval was erroneous because the Center was a minor-oriented facility and was located within 1,000

23 feet of the Proposed Premises.

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On April 2, 2018, South Bay Dreams Cooperative, Inc. also appealed the Planning Commission’s decision. That appeal
was denied by the City Council and is not at issue in this Petition.
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Verified Petition for Writ of Administrative Mandamus
1 9. In a subsequent submission on April 16, 2018, the Center argued for the first time that it

2 was an “after school program.” This submission was made after the City’s April 4, 2018 deadline for

3 the filing of appeals. 2

4 10. In a report to the Mayor and the City Council dated April 24, 2018, the City’s

5 Community Development Department recommended upholding the Planning Commission’s decision as

6 the Center did not fit the definition of a minor-oriented facility.

7 11. On April 24, 2018, the City Council heard the Center’s appeal.

8 12. The City Council voted unanimously to uphold the Center’s appeal on the sole ground

9 that the Center constituted an “after school program where the primary use is devoted to people under

10 the age of eighteen.”

11 FIRST CAUSE OF ACTION

WRIT OF ADMINISTRATIVE MANDAMUS
12 (PETITIONER against RESPONDENT)

13 13. NOM re-alleges and incorporates by reference paragraphs 1-12 as if they were set forth

14 here in full.

15 14. NOM was aggrieved by the decision of the City Council to uphold the Center’s appeal at

16 a hearing that was required by the La Mesa Municipal Code and at which evidence was required to be

17 taken.

18 15. The only written account of the City Council’s finding is found in the minutes of the

19 April 24 hearing, which merely memorializes that the City Council voted to uphold the Center’s appeal

20 because it found that the Center constituted a minor-oriented facility and, more specifically, an after

21 school program where the primary use is devoted to people under the age of eighteen.

22 16. The City Council’s findings were insufficient to support its decision because:

23 ///

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Measure U defines a minor-oriented facility as “any after school program, teen center, club for boys and/or girls, children’s
theater, or children’s museum, where the primary use is devoted to people under the age of 18.”
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Verified Petition for Writ of Administrative Mandamus
1 a. The findings did not specify why the Center’s existence as a minor-oriented facility

2 required that the Center’s appeal be upheld; and

3 b. They failed to adequately explain the analytical process by which the City Council

4 determined the Center constituted a minor-oriented facility and, more specifically, an

5 after-school program.

6 17. The City Council’s findings that the Center constituted a minor-oriented facility and,

7 more specifically, an after school program, were not supported because:

8 a. There was not substantial admissible evidence properly before the City Council at the

9 hearing to support those findings; and

10 b. Those are not supported by substantial admissible evidence when considered in light of

11 additional admissible evidence that should augment the administrative record.

12 18. The City Council’s decision was a prejudicial abuse of discretion because the City

13 Council properly should have decided to deny the appeal.

14 19. NOM does not have a plain, speedy, and adequate remedy in the ordinary course of law.

15 20. NOM has relevant evidence to offer that could not have been produced at the

16 administrative hearing in the exercise of reasonable diligence due to the short time between the appeal

17 filed by the Center—especially in light of the more detailed follow-up submission the Center made on

18 April 16, 2018—and the holding of the hearing on April 24, 2018. This evidence includes a contract

19 between the Center and the County of San Diego, a contract between the Center and the La Mesa

20 Spring Valley School District, and other relevant evidence that demonstrates that the Center’s services

21 do not fit the definition of an after school program primarily devoted to people under the age of 18.

22 21. On May 8, 2018, NOM requested that the City Clerk of the City of La Mesa prepare a

23 true and correct copy of the administrative record, which will be lodged with the Court before the

24 hearing on this Petition.

4
Verified Petition for Writ of Administrative Mandamus
1 PRAYER FOR RELIEF

2 WHEREFORE, Petitioner New Origins Management, Inc. requests that the Court grant the

3 following relief:

4 22. A peremptory writ of mandate directing the City to vacate and set aside the its decision

5 on April 24, 2018 to uphold the appeal filed by the Center; (2) directing the City to issue a new

6 decision denying the appeal; and (3) directing the City to take all other measures necessary and

7 appropriate to comply with the Court’s orders.

8 23. Reasonable attorneys’ fees pursuant to Code of Civil Procedure section 1021.5 and

9 Government Code section 800;

10 24. Costs of suit incurred herein; and

11 25. Such other and further relief as the Court may deem just and proper.

12

13 Dated: July 23, 2018 THE LAW OFFICES OF NATHAN SHAMAN

14

15 By: __________________________
Nathan A. Shaman
16 Attorney for Petitioner NEW ORIGINS
MANAGEMENT, INC.
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Verified Petition for Writ of Administrative Mandamus
1 VERIFICATION

2 STATE OF CALIFORNIA, COUNTY OF SAN DIEGO

3 I, Rezwan H. Khan, am the Chief Operating Officer of Petitioner New Origins Management,

4 Inc. I have read the foregoing Verified Petition for Writ of Administrative Mandamus and know its

5 contents. The same are true of my own knowledge except as to those matters stated upon information

6 and belief and as to those matters, I believe them to be true.

7 I declare under the penalty of perjury under the laws of the State of California that the foregoing

8 is true and correct.

10 Executed on this _____ day of July 2018 at San Diego, California.

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12 By: ___________________________
Rezwan H. Khan
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Verification
1 NAME OF ACTION: New Origins Management, Inc. v. City of La Mesa
CASE NUMBER:
2
PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
4 I am employed in the County of San Diego, CA. I am over the age of 18 years and not a party
to this action; my business address is 444 West C Street, Suite 400, San Diego, CA 92101
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On July 23, 2018 I served the foregoing document(s) described as: VERIFIED PETITION
6 FOR WRIT OF ADMINISTRATIVE MANDAMUS on the interested parties as follows:

7 City Clerk
City of La Mesa
8 8130 Allison Avenue
La Mesa, CA 91942
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I served the foregoing document(s) by personal service on a clerk at the City Clerk’s office.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is
11 true and correct.
12 Executed on July 23, 2018 at San Diego, California.

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YENY HERRERA
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Proof of Service