City of Benicia v. Diavitas CA1/5

Filed 11/9/23 City of Benicia v. Diavitas CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for pur- poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

CITY OF BENICIA, Plaintiff and Respondent, A165678 v. JASON DIAVITAS, (Solano County Super. Ct. No. Defendant and Appellant. FCS056113)

MEMORANDUM OPINION1

In this action to abate a public nuisance, Jason Diavitas appeals from a judgment enjoining his restaurant’s unpermitted encroachment on a public sidewalk and assessing related fines, penalties, and interest. Diavitas has failed to demonstrate any error in the court’s grant of summary judgment for plaintiffs, so we affirm.

BACKGROUND

The City of Benicia, joined by the State of California, filed this action against Diavitas to prohibit him from maintaining an unpermitted barrier enclosing a stretch of public sidewalk he

1 We resolve this appeal by a memorandum opinion

pursuant to Standard 8.1 of the California Standards of Judicial Administration, and the First Appellate District Local Rules, rule 19. 1

used as an outside dining area for his restaurant. The city alleged that, although Diavitas had a permit to place tables and chairs on the sidewalk during business hours, he erected a permanent perimeter barrier, trellis, and lighting structure around the area without obtaining the encroachment permit and agreement required by the Benicia Municipal Code and a city council resolution. The city’s legal action followed extensive unsuccessful efforts to bring Diavitas into code compliance and culminated with its successful summary judgment motion.