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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

JASON DIAVITAS,

Defendant and Appellant.

 

 A165678

(Solano County Super. Ct. No. 

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.
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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. 

DISCUSSION

Diavitas contends the court erred in granting summary 

judgment for the following reasons: (1) he had a motion to compel 

discovery outstanding when the court ruled; (2) the city’s notices 

of violation, administrative citations, and associated fines were 

invalid; (3) it had tacitly approved his project; (4) it gave him 

inadequate time to abate the encroachment; (5) his project 

encroached only two inches into the public right of way, which he 

had resolved by cutting into a planter box forming part of the 

enclosure; (6) his use of a private building’s common area for 

additional restaurant seating did not involve city property; and 

(7) the city’s permit process was confusing and arbitrary. 

Diavitas asserts the citations and fines assessed against 

him for violating Benicia’s municipal code are invalid because 

they were issued before a December 2020 deadline for obtaining 

an encroachment permit without paying an associated fee. His 

failure to follow the city’s process for appealing administrative 

citations bars him from raising this claim here. (See Campbell v. 

Regents of University of California (2005) 35 Cal.4th 311, 327.) 

Otherwise absent from Diavitas’s briefs is any pertinent 

legal argument supporting his contentions. A judgment or order 

is presumed correct, and it is the appellant’s burden to present 

reasoned legal argument supporting reversal. (Okorie v. Los 

Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 599 
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(Okorie), disapproved on another point in Bonni v. St. Joseph 

Health System (2021) 11 Cal.5th 995, 1012, fn. 2; Boyle v. 

CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.) 

Accordingly, the court of appeal will not consider bare allegations 

of error unaccompanied by cogent argument supported by 

appropriate citations to pertinent authority and the record. (Cal. 

Rules of Court, rules 8.204(a)(1)(B), (C); Young v. Fish & Game 

Com. (2018) 24 Cal.App.5th 1178, 1190-1191; Elsheref v. Applied 

Materials, Inc. (2014) 223 Cal.App.4th 451, 461; Berger v. Godden 

(1985) 163 Cal.App.3d 1113, 1119-1120.) “ ‘Issues do not have a 

life of their own: if they are not raised or supported by argument 

or citation to authority, [they are] waived.’ ” (Okorie, supra, at p. 

600.)

That is the case here. Diavitas’s briefs lack even minimally 

adequate legal argument. He has therefore forfeited his 

appellate contentions and failed to meet his burden of 

establishing error.

DISPOSITION

The judgment is affirmed. Respondent is entitled to their 

costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

BURNS, J. 

WE CONCUR:

SIMONS, ACTING P.J.

CHOU, J.

City of Benicia v. Diavitas (A165678)