Filed 9/27/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MUSKAN FOOD & FUEL, INC.,

Plaintiff and Appellant,

v.

CITY OF FRESNO,

Defendant and Respondent;

KULVIR SEKHON et al.,

Real Parties in Interest and Appellants.

F079342

(Super. Ct. No. 18CECG00634)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. 

McGuire, Judge.

Quall Cardot, John M. Cardot and Mary E. Krugh for Plaintiff and Appellant.

Aleshire & Wynder, Anthony R. Taylor and Michael C. Huston; Douglas T. 

Sloan, City Attorney, for Defendant and Respondent.

McCormick, Barstow, Sheppard, Wayte & Carruth, Jeffrey M. Reid and 

Christopher S. Hall for Real Parties in Interest and Appellants.

-ooOoo-
2.

-ooOooAppellant Muskan Food & Fuel, Inc. (Muskan Food) filed a petition for writ of 

mandate to challenge the City of Fresno’s (City) approval of a conditional use permit for 

the development of a neighborhood shopping center across the street from Muskan 

Food’s gas station and convenience store. The proposed development includes a 

specialty grocery store with a license to sell beer, wine and distilled spirits for 

consumption off the premises. The area has a high concentration of businesses selling 

alcohol and Muskan Food contends City misapplied the municipal ordinance restricting 

permits for new establishments selling alcohol in such areas. The superior court denied 

the petition, concluding City did not misinterpret the ordinance and substantial evidence 

supported City’s decision to approve the conditional use permit. 

On appeal, Muskan Food challenged both of these determinations. Real parties in 

interest filed a cautionary cross-appeal to assure they could challenge the superior court’s 

conclusion that Muskan Food properly exhausted its administrative remedies. Real 

parties in interest and City contend the superior court properly decided the case on its 

merits and, alternatively, the denial of the writ petition should be upheld because Muskan 

Food did not exhaust its administrative remedies. We conclude Muskan Food did not 

exhaust the administrative appeal process set forth in City’s municipal code and this 

failure bars its lawsuit. We therefore affirm the judgment.

FACTS

Parties

Muskan Food is a California corporation that owns real property located at the 

southeast corner of West Clinton Avenue and North Blythe Avenue in Fresno where it 

operates a convenience store and gas station as a Johnny Quik franchisee. Rajdeep Singh 

is the president and part owner of Muskan Food. 

Analyst Properties, LLC, a California limited liability company, owns a 1.69 acre 

lot at the southwest corner of West Clinton Avenue and North Blythe Avenue (Subject 
3.

Property), just across the street from Muskan Food’s location. Kulvir Sekhon and Diwan 

Sekhon each own a 50 percent membership interest in Analyst Properties, LLC. Kulvir 

Sekhon and Analyst Properties, LLC, are the real parties in interest (collectively, Real 

Parties).

The Subject Property lies within the boundaries of respondent City. It is covered 

by the City’s General Plan, City’s West Area Community Plan, and the zoning ordinance 

contained in the Fresno Municipal Code (Municipal Code or FMC). 

The Proposed Development

In 2015, Real Parties purchased the Subject Property based on advice from City 

staff that existing zoning and land use regulations would allow a gas station and 

convenience store to be built there. Also in 2015, Real Parties obtained rights to a license 

from the Department of Alcoholic Beverage Control (ABC) following a lottery 

conducted for such licenses. The ABC license is a “Type 21,” which authorizes the sale 

of beer, wine, and distilled spirits for consumption off the premises where it was sold.1 

On November 9, 2016, City received an application from Real Parties for a 

conditional use permit to construct an eight-vehicle gas station with canopy and 

commercial/retail buildings including a market selling alcohol. In February 2017, City’s 

Development and Resource Management Department (DARM) distributed a request for 

comments, conditions, environmental assessment, and entitlement application review for 

Real Parties’ proposed development. The project description in that request stated “[t]he 

owner proposes to construct two single story structures totaling 14,556 square feet, an 

8 vehicle fuel dispensing component, 3 trash enclosures, and 61 parking stalls. Phase II 

of development will include the commercial retail with market selling alcohol with State 

1 Business and Professions Code section 23958.4, subdivision (c)(5)(A) categorizes 

“Type 20 (off-sale beer and wine) and Type 21 (off-sale general)” as off-sale retail 

licenses. Muskan Food has a Type 20 license. 
4.

of California Alcoholic Beverage Type 21 alcohol license. The property is zoned 

CC/UGM (Commercial – Community/Urban Growth Management).” 

The request for comments generated a range of responses from various districts, 

departments, and divisions. For example, City’s police department requested conditions 

be included in the approval of the conditional use permit application. The requested 

conditions included the installation of a fully functional color digital video camera 

system, education of employees about the sale of alcoholic beverages, a prohibition of the 

sale of single containers of malt liquor, wine coolers and beer, and the posting of signs 

advising that consumption of alcohol, gambling and loitering were violations of 

municipal ordinances. 

In September 2017, the director of DARM issued a notice of intent to grant the 

conditional use permit application, stating that written appeals protesting the possible 

approval should be submitted prior to 5:00 p.m. on October 2, 2017. The president of 

Muskan Food sent an e-mail to Phillip Siegrist, Planner II, of DARM, asserting that the 

area had a high concentration of off-sale alcohol licenses and that adding another licensed 

business went against efforts to resolve the over-saturation issue. The e-mail listed eight 

Type 21 licensed businesses and two Type 20 licensed businesses within a one-mile 

radius of the Subject Property. 

Siegrist prepared a 13-page staff memorandum reviewing various aspects of the 

proposal and recommending an approval of the application, subject to specified 

conditions. The memorandum described the project as “the phased development of a 

neighborhood shopping center consisting of two 7,278 square-foot single story shell 

buildings (Building ‘A’ and Building ‘B’) totaling approximately 14,556 square feet” 

with eight fuel pumps and canopy. The project also included a proposal to use 2,836 

square feet of one building “as a specialty grocery store/automobile service station” with 

a Type 21 license to sell alcohol. The memorandum addressed zoning by stating “the 

proposed neighborhood shopping center consisting of a combination specialty grocery 
5.

store/automobile service station and general retail/office space is consistent with the 

Community Commercial planned land use designation.” The memorandum stated 

specialty grocery stores are permitted in the Community Commercial zone district “ ‘byright,’ ” but a request by such a store to sell alcoholic beverages requires “an approved 

conditional use permit in accordance with and subject to additional regulations for special 

uses in FMC [s]ection 15-2706. Furthermore, specialty grocery stores following 

prescribed design guidelines outlined in Policy and Procedure No. C-005 may qualify for 

an exception from the location restrictions for new establishments selling alcoholic 

beverages, and therefore are allowed to sell alcoholic beverages with an approved 

conditional use permit.”2 The memorandum recommended the approval of the 

application for a conditional use permit and specified the conditions of approval. 

2 FMC section 15-2706 addresses alcohol sales. The location restrictions for new 

establishments that are applicable in this case were contained in subsection E of FMC 

former section 15-2706. It provided that a new establishment shall not be located in a 

high crime area or within 500 feet of sensitive uses, such as public parks, playgrounds, 

schools or alcohol or drug treatment facilities. (FMC former § 15-2706-E(1), (3).) It also 

provided that a new establishment “shall not be located within 500 feet of an existing 

establishment” and “shall not be located in an area of high concentration . . . as 

determined by the [ABC].” (FMC former § 15-2706-E(2), (4).) In this appeal, it is 

undisputed that the latter two restrictions applied to Real Parties’ proposal and, therefore, 

it was required to qualify for an exception. 

FMC former section 15-2706-E(5) stated “[a] new establishment may be excepted 

from location restrictions if the Review Authority determines any of the following: 

[¶] . . . [¶] b. The proposed off-premises sale of alcoholic beverages is incidental and 

appurtenant to a larger retail use and provides for a more complete and convenient 

shopping experience.” 

This exception’s implementation was guided by City’s Policy and Procedure 

No. C-005, which stated (1) specialty grocery stores enhance neighborhoods and provide 

specialty products not often found in general markets and (2) specialty grocery stores 

following the prescribed design guidelines “may qualify for Exception B of Fresno 

Municipal Code [former] §15-2706.E.5 and be allowed to sell alcohol with a conditional 

use permit as incidental and appurtenant to a larger retail use.” The policy set forth eight 

design elements and defined “Specialty Food Grocer” by referring to the percentage of 

floor space dedicated to specialty foods (at least 70 percent), fresh food (at least 10 
6.

DARM’s planning manager recommended approval. On October 19, 2017, the 

director of DARM signed the memorandum, approving the conditional use permit. As a 

result, City now characterizes certain contents of the memorandum as the director’s 

findings, including the memorandum’s discussion of location restrictions, which states in 

full:

“According to FMC [former] [s]ection 15-2706-E (Location Restrictions 

for New Establishments), new off-sale alcohol establishments that are 

under 10,000 square feet are prohibited if they are located near sensitive 

uses, other establishments, within high crime areas, or within high 

concentration areas. [¶] The subject site is located in Census Tract 38.08. 

According to ABC, Census Tract 38.08 currently has four active off-sale 

alcohol licenses. ABC authorizes one off-sale alcohol license per 1,075 

people per census tract. Census Tract 38.08 has a population of 5,082. Per 

ABC, four off-sale alcohol licenses are allowed in Census Tract 38.08. 

Therefore, the addition of a new off-sale alcohol license would create an 

over-concentration of off-sale alcohol licenses within Census Tract 38.08 

than authorized for that census tract. However, as previously mentioned in 

the Background section above, Policy and Procedure No. C-005 allows for 

an exception from the location restrictions to be made to allow alcohol sales 

as specialty grocery stores if the store includes eight key elements.” 

On the same day as the director’s approval, DARM notified Real Parties’ architect 

of the application’s approval, the conditions to be complied with before the building 

permits would be issued, and the other conditions imposed. One of the conditions stated 

“[d]evelopment and operations shall occur in accordance with the following required 

elements pursuant to the City of Fresno Policy and Procedure No. C-005 for Specialty 

Grocery Stores.” One element required (1) at least 70 percent of retail space to be 

dedicated to specialized food products, such as foods from a specific country, ethnicity, 

or locality; (2) at least 10 percent of the retail space to be dedicated to fresh foods, such 

as dairy, produce, meat, poultry, and fish; and (3) no more than 5 percent of retail floor 

percent), and alcohol (not more than 5 percent). It also stated “Planning Staff will 

determine compliance with design guidelines. DARM Director will determine whether 

Exception B can be applied on a case by case basis.” 
7.

area to be dedicated to alcohol. Another condition stated that “[o]perations and 

development . . . shall occur in accordance with all requirements included within Section 

15-2706 of the FMC pertaining to uses with Alcohol Sales.” 

On October 19, 2017, notice of the director’s action in granting the conditional use 

permit application was mailed to persons who had submitted objections. The notice 

stated that, “pursuant to City of Fresno Policy and Procedure No. C-005, specialty 

grocery stores following a strict definition and prescribed design guidelines qualify for an 

exception to the location restrictions, and therefore are allowed to sell alcoholic 

beverages with an approved Conditional Use Permit.” 

Appeal of Director’s Approval

On November 3, 2017, a law firm representing Muskan Food submitted a letter to 

the director of DARM stating its “client protests and appeals the Director’s decision to 

approve Conditional Use Permit Application No. C-16-097” and listing eight reasons for 

the appeal. Those reasons included many cites to the location restrictions and related 

exceptions in Municipal Code former section 15-2706-E. 

On December 6, 2017, the City’s planning commission held a public hearing on 

the appeal. The planning commission received a staff report that was 10 pages long 

without its 13 exhibits. The report recommended denying the appeal and upholding the 

director’s approval of the conditional use permit. In response to Muskan Food’s assertion 

that the applicant submitted insufficient information to establish that any exception found 

in Municipal Code former section 15-2706-E-5 applied, the report stated:

“The applicant submitted enough information for staff to determine the 

project’s compliance with the Specialty Food Grocer definition and meet all 

eight of the key design elements pursuant to Policy and Procedure No. 

C-005. As such, there is sufficient information for the Review Authority to 

determine the proposed off-premises sale of alcoholic beverages is 

incidental and appurtenant to a larger retail use and provides for a more 

complete and convenient shopping experience pursuant to FMC [former]

[s]ection 15-2706-E-5-b.” 
8.

At the public hearing, several members of the public presented their views, some 

supporting the project and some opposing it. The planning commission, by a vote of four

to three, approved the conditional use permit, subject to the conditions of approval 

specified by DARM. The planning commission’s subsequently prepared resolution

stated “that, after receiving the staff report and testimony, the Fresno City Planning 

Commission has determined that there is sufficient evidence in the record that 

Conditional Use Permit Application No. C-16-097 complies with City of Fresno Policy 

and Procedure No. C-005 and therefore qualifies for Exception B of Section 15-2706-E-5 

of the Fresno Municipal Code.” 

Post-Decision Action by Muskan Food

Muskan Food contends that after the planning commission’s decision its president 

(1) visited City’s website on December 7, 2017, to obtain contact information for the 

mayor; (2) was unable to locate direct contact information for the mayor; and 

(3) completed an online contact form that included a petition asking the mayor to appeal 

the planning commission’s decision of the prior day.3 

On December 8, 2017, Muskan Food’s president sent an e-mail to Andy Chhikara, 

president of the Fresno chapter of the American Petroleum and Convenience Store 

Association (APCA). The e-mail began by stating: “I want[] to update you regarding 

issuance of a new type 21 off sale License” at the Subject Property. It also stated the 

3 A footnote in Muskan Food’s reply brief states: “This document was never 

produced by the City.” However, footnote 6 in Muskan Food’s opening brief filed in the 

superior court on September 25, 2018, referred to the document and stated: “The 

information contained in this appeal is the identical information found in Ex. C, pg. 3.” 

Presumably, Muskan Food meant “petition” when it used the word “appeal” in this 

footnote. Page 3 of Exhibit C to Muskan Food’s opening brief in the superior court is a 

December 8, 2017 e-mail from Muskan Food’s president to a convenience store 

association. For purposes of this appeal, we accept Muskan Food’s representation of fact 

to the superior court that the information contained in the December 7, 2017 document 

was identical to the subsequent e-mail. (See generally Bus. & Prof. Code, § 6068, 

subd. (d); Rules Prof. Conduct, rule 3.3 [duty of candor toward the tribunal].) 
9.

“Planning Commission approved the off sale liquor license, denied our appeal, and 

ignored views of other concerned citizens who were present in the meeting.” The e-mail 

described provisions in the Municipal Code governing businesses with off-sale licenses 

and recent attempts to amend those provisions. It also disagreed with calling the 

proposed store a specialty grocery store and closed by stating:

“I have a hard time understanding the City’s approach towards off sale 

licenses, the City is contradicting itself and is showing to have double 

standards. [¶] Please help me raise my concern with the City officials so 

we can stop this. I really appreciate your help. [¶] Thank you.” 

Later that day, Chhikara sent an e-mail to the mayor. Chhikara’s e-mail included 

the e-mail he received from Muskan Food’s president and stated that e-mail “shows the 

same concern where Planning department and city is issuing multiple ABC licenses in 

street corner or in already saturated area.” Chhikara’s e-mail also stated:

“We as association and Fresno business are pro business but having 

business and we have been discussing with city hall over 10 year[s] and 

asking city to control or Stop giving these ABC licenses. Later on these

licenses become issue for every one and small business like ours get bad 

names in city and in some areas. [¶] I would appreciate your time to look 

in this concern. [¶] Thanks!!” 

On Saturday, December 9, 2017, the mayor sent a reply e-mail to Chhikara that 

stated: “Thanks for the e[-]mail Andy. I’m not sure why the Planning Commission is 

approving ABC licenses. We need to have a meeting to discuss this. I will invite Serop 

Torossian the chair of the Planning Commission to be at the meeting.” 

On December 20, 2017, the law firm representing Muskan Food sent a letter to the 

director of DARM with a subject line referring to an appeal of the planning commission’s 

decision to deny Muskan Food’s appeal and uphold the director’s approval of the 

conditional use permit. The letter stated Muskan Food “disagrees with the Planning 

Commission findings and decision and, therefore, hereby appeals such decision to the 

Fresno City Council pursuant to FMC Section 15-5017 based upon” five grounds. 
10.

On December 28, 2017, the director of DARM responded in a letter stating in part: 

“Pursuant to Fresno Municipal Code (FMC) Section 15-5017, Planning 

Commission decisions may be appealed to the City Council by the 

Councilmember of the district in which the project is located or by the 

Mayor, either on their own initiative or upon receiving a petition from any 

person. Failure by any interested person to petition a Councilmember or 

the Mayor for an appeal shall constitute a failure to exhaust administrative 

remedies. 

“Neither the Councilmember for the District nor the Mayor have submitted 

an appeal for the subject application to be considered by [the] Council. 

Therefore, in accordance with FMC Section 15-5012 and 15-5017, the 15-

day appeal period has since expired and the Planning Commission’s 

decision is final. Staff is returning the . . . check [for the appeal fee], 

enclosed, in the amount of $30.00.” 

PROCEEDINGS

On February 20, 2018, Muskan Food filed a petition for writ of mandate with the 

Superior Court of Fresno County. The petition requested a writ ordering City to set aside 

the DARM director’s approval of the conditional use permit and the planning 

commission’s decision to uphold that approval. On December 7, 2018, after the 

administrative record was lodged with the superior court and the parties filed their briefs, 

the matter was argued and taken under submission by the court. 

On March 4, 2019, the superior court signed and filed a 19-page statement of 

decision and order denying Muskan Food’s petition for writ of mandate. The statement 

of decision rejected the argument of City and Real Parties that Muskan Food had failed to 

exhaust its administrative remedies. On the merits, the superior court determined that 

(1) the planning commission identified the exception to the location restrictions being 

applied to the proposed project and (2) substantial evidence supported the planning 

commission’s findings that the project met the requirements of the exception for specialty 

grocery stores. 
11.

Later in March 2019, the superior court filed a judgment denying Muskan Food’s 

petition for writ of mandate in its entirety and identifying City and Real Parties as the 

prevailing parties entitled to recover their costs. Muskan Food filed a timely appeal. 

Real Parties filed their cross-appeal.

DISCUSSION

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

The threshold procedural issue in this appeal, and the issue we ultimately find to 

control, is whether Muskan Food exhausted the available administrative remedies. We 

begin with an overview of the exhaustion doctrine. 

A. Overview of Doctrine

The doctrine of exhaustion of administrative remedies requires a party to exhaust 

all available administrative remedies and obtain a final administrative decision as a 

condition precedent for judicial review. (1 Cal. Administrative Mandamus (Cont.Ed.Bar 

3d ed. 2020) § 3.9, pp. 3-8 to 3-9.) Thus, when an applicable ordinance, regulation or 

statute provides an adequate administrative remedy, a party must exhaust that remedy 

before seeking judicial relief. (Plantier v. Ramona Municipal Water Dist. (2017) 12 

Cal.App.5th 856, 865.) California courts usually will not have subject matter jurisdiction 

over a dispute until the administrative tribunal has made a final determination. (Foster v. 

Sexton (2021) 61 Cal.App.5th 998, 1023 (Foster); see Campbell v. Regents of University 

of California (2005) 35 Cal.4th 311, 321 [exhaustion is a “ ‘ “jurisdictional prerequisite 

to resort to the courts” ’ ”].)

The petitioner has the burden of proving timely exhaustion of administrative 

remedies. (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.) 

“Whether the doctrine of exhaustion of administrative remedies applies in a given case is 

a legal question that we review de novo.” (Coastside Fishing Club v. California Fish & 

Game Com. (2013) 215 Cal.App.4th 397, 414.)
12.

In Rojo v. Kliger (1990) 52 Cal.3d 65, the Supreme Court stated that “exhaustion 

of administrative remedies furthers a number of important societal and governmental 

interests, including: (1) bolstering administrative autonomy; (2) permitting the agency to 

resolve factual issues, apply its expertise and exercise statutorily delegated remedies; 

(3) mitigating damages; and (4) promoting judicial economy.” (Id. at p. 86; see Asimow 

et al., California Practice Guide: Administrative Law (The Rutter Group 2020) ¶¶ 15:12 

to 15:15, pp. 15-2 to 15-3 [rationales for exhaustion doctrine are promoting efficiency, 

respecting the autonomy of the administrative agency, and avoiding end-runs].) The 

policy favoring administrative autonomy reflects the assessment that “courts should not 

interfere with an agency determination until the agency has reached a final decision” 

(Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391) and avoids running 

afoul of the separation of powers doctrine (Department of Personnel Administration v. 

Superior Court (1992) 5 Cal.App.4th 155, 168, superseded by statute as stated in Stoetzl 

v. Department of Human Resources (2019) 7 Cal.5th 718, 742). The policy of judicial 

efficiency is promoted by the exhaustion doctrine because it (1) lightens the burden on 

courts in cases where an administrative remedy is available; (2) facilitates the 

development of a complete record that draws on administrative expertise; and (3) serves 

as a preliminary sifting process that will unearth and analyze the relevant evidence. 

(Yamaha Motor Corp. v. Superior Court (1986) 185 Cal.App.3d 1232, 1240.) 

B. City’s Appeal Procedures

Chapter 15 of the Municipal Code contains the Citywide Development Code, 

which also is referred to as the “Development Code” or “Zoning Ordinance” and consists 

of six parts. (FMC §§ 15-101, 15-103-A.) Part I of chapter 15 contains general 

provisions and part V addresses administration and permits. (FMC § 15-103-A.) 
13.

The general provisions include rules for construing the language of the Citywide 

Development Code. (FMC §§ 15-201 to 15-203.) Municipal Code section 15-203 

provides: 

“In the absence of an ordinance or resolution approved by the City 

Council, the Director, upon consultation with the City Attorney’s Office, 

shall make the interpretation for any definition not expressly identified in, 

or provide clarification and interpretation of, this Development Code.” 

Part V of the Citywide Development Code consists of articles 49 through 63. 

Article 50 “establishes procedures that are common to the application and processing of 

all permits and approvals provided for in this Code.” (FMC § 15-5001.) The two 

procedural provisions of interest in this appeal are Municipal Code sections 15-5012, 

Effective Dates, and 15-5017, Appeals, the text of which is set forth below. 

Article 53 governs conditional use permits and grants the DARM director the 

authority to “approve, conditionally approve, or deny applications for Conditional Use 

Permits based on consideration of the requirements of this article.” (FMC § 15-5303.) 

Pursuant to Municipal Code section 15-5309, “Conditional Use Permit decisions are 

subject to the appeal provisions of Section 15-5017.” 

The time to appeal a decision on a permit application is addressed in Municipal 

Code section 15-5012, which provides in part: 

“A final decision on an application for any approval subject to 

appeal shall become effective after the expiration of the 15-day appeal 

period following the date of action on an application, unless an appeal is 

filed. Appeals shall be filed with the Director before the close of business 

on the 15th day. No building permit or permits shall be . . . issued until the 

16th day following the date of the action. Should the permit not include a 

building permit, activities of said permit shall not commence until the 16th 

day.

“A. Planning Commission Decision. Unless the Planning 

Commission decision is appealed for hearing to the Council in 

accordance with Section 15-5017, Appeals, the decision of the 
14.

Commission shall be final, subject to writ of administrative 

mandamus under 1094.6 of the Code of Civil Procedure[].

“B. Failure to Appeal Commission Decision. Failure by any 

interested person to petition a Councilmember or the Mayor for 

an appeal shall constitute a failure to exhaust administrative 

remedies.” (Italics added.) 

The two levels of appeal are addressed in Municipal Code section 15-5017, which 

provides in part: 

“A. Applicability. Any action by the Director or Planning Commission in 

the administration or enforcement of the provisions of this Code may 

be appealed in accordance with this section.

“1. Appeals of Director Decisions. Decisions of the Director made 

pursuant to this Code may be appealed to the Planning 

Commission by filing a written appeal with the Director. 

Appeals may be filed by any person aggrieved by the decision. 

The appeal shall identify the decision being appealed and shall 

clearly and concisely state the reasons for the appeal. The 

appeal shall be signed by the person making the appeal and 

accompanied by the required fee.

“2. Appeals of Planning Commission Decisions. Decisions of the 

Planning Commission may be appealed to the City Council by 

the Councilmember of the district in which the project is located

or by the Mayor, either on their own initiative or upon receiving 

a petition from any person. Appeals must be initiated by filing a 

letter with the Director. Such action shall require a statement of 

reasons for the appeal.

“3. CEQA Appeals. . . .

“B. Time Limits. Unless otherwise specified in governing State or federal 

law, all appeals shall be filed with the Director in writing within 15 

days of the date of the action, decision, CEQA determination, motion, 

or resolution from which the action is taken. [¶] . . . [¶]

“F. Effect of Council Decision. Unless otherwise provided in the City 

Charter or Fresno Municipal Code, the Council decision shall be final 

and effective and subject to a writ under Code of Civil Procedure 

Section 1094.5 or . . . Section 1085 immediately upon Council action.” 

(Italics added.)
15.

C. Contentions of the Parties

Muskan Food contends the foregoing Municipal Code provisions describing the 

procedures for appealing the approval of a conditional use permit are vague, the 

procedures required are minimal, and it met those procedural requirements and thereby 

exhausted its administrative remedies. Muskan Food interprets the provisions to mean 

that a “petition” must be submitted by “ ‘any interested person’ ” to the relevant 

councilmember or the mayor. Muskan Food asserts it “took many reasonable steps to 

attempt to convince the Mayor or the District Councilmember to appeal the decision of 

the Planning Commission.” 

In contrast, City contends no petition for an appeal of the planning commission’s 

decision was submitted to the mayor or councilmember for the district where the Subject 

Property is located and, as a result, Muskan Food failed to exhaust the administrative 

remedies. City asserts the different communications Muskan Food allegedly had with the 

mayor and councilmember prior to the expiration of the 15-day petition period that were 

admitted by the superior court never indicated a desire by Muskan Food to actually 

appeal the planning commission’s decision. In City’s view, voicing displeasure with a 

decision is not tantamount to petitioning for appeal of that decision within the 

requirements of the Municipal Code. 

Real Parties point out that Muskan Food has the burden of pleading and proving 

that it satisfied the exhaustion requirements. Real Parties contend that Muskan Food 

offered no evidence showing it satisfied the unambiguous request requirement of 

Municipal Code section 15-5012-B, whether orally, in writing, or by electronic 

submission. In Real Parties’ view, any request or petition must ask the recipient—either 

the mayor or councilmember—to seek a city council hearing to evaluate the planning 

commission’s decision in question. 
16.

D. Vagueness

We first consider Muskan Food’s contention that the procedures for appealing a 

planning commission’s decision are vague. This contention is the equivalent of asserting 

the procedures in the Municipal Code are ambiguous—that is, susceptible to more than 

one reasonable meaning. (See Superior Court v. Public Employment Relations Bd.

(2018) 30 Cal.App.5th 158, 187.) Muskan Food refers to the use of “to petition” in 

Municipal Code section 15-5012-B and the phrase “a petition from any person” in 

Municipal Code section 15-5017-A(2) and notes the word “petition” is not defined by the 

Municipal Code. Muskan Food contends that it is unclear whether oral petitions are 

allowed, whether the petition must be delivered by a particular method (such as mail or 

hand delivery), or whether the plaintiff must be the one to petition. 

The parties have not addressed whether the alleged vagueness in the Municipal 

Code appeal and exhaustion provisions rendered an appeal unavailable and, thus, 

excused Muskan Food from completing the appeal procedure. As the foundation for our 

analysis of vagueness, we briefly discuss this type of unavailability. Ordinarily, an 

administrative remedy must be capable of being used to accomplish a purpose—here, 

obtain city council review of a planning commission decision—and accessible to be 

“available.” (See Foster, supra, 61 Cal.App.5th at p. 1026.) Thus, one type of 

unavailability occurs when the administrative scheme is so difficult to understand that an 

ordinary person cannot discern and navigate it. (Ibid.) From a practical perspective, such 

an administrative scheme is incapable of use and exhaustion is excused. (Ibid.) 

Muskan Food’s vagueness argument focuses on the use of the word “petition” and 

the absence of an explanation of how one petitions or what a petition is. We conclude the 

word “petition” is ambiguous as to the level of formality required. The verb “petition” is 

defined as “to make a request to : ENTREAT; esp : to make a formal written request to.” 

(Webster’s 3d New Internat. Dict. (1993) p. 1690.) Thus, the verb “petition” could be 

interpreted to mean making (1) a simple oral request, (2) a formal written request, or 
17.

(3) something in between. The noun “petition” has a similar range of meanings. It can 

mean “an earnest request” or “a formal written request addressed to an official person or 

organized body.” (Ibid.) Black’s Law Dictionary (8th ed. 2004) defines the noun 

“petition” as “[a] formal written request presented to a court or other official body.” (Id. 

at p. 1182.) Based on these definitions, we conclude the use of the word “petition” in 

Municipal Code sections 15-5012-B and 15-5017-A(2) rendered those provisions 

ambiguous. 

One way to resolve an ambiguity in Citywide Development Code is for “the 

Director, upon consultation with the City Attorney’s Office, . . . [to] provide clarification 

and interpretation of” the ambiguous term or provision. (FMC § 15-203.) Nothing in the 

record before this court shows the director consulted with the City Attorney’s Office and 

then clarified how to properly petition for an appeal. Consequently, we will resolve the 

meaning of the word “petition” used in Municipal Code sections 15-5012 and 15-5017. 

(Bruni v. The Edward Thomas Hospitality Corp. (2021) 64 Cal.App.5th 247, 254 

[interpretation of an ordinance presents a question of law subject to de novo review]; see 

As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 447 [“interpretation of 

an administrative regulation is a legal determination and is reviewed de novo”].)

When interpreting an ambiguous statute, regulation or ordinance, courts do not 

examine the words in isolation, but consider the provision in the context of the entire 

scheme of which it is a part. (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190.) The 

required petition is part of the appeal process and the provisions governing that process 

explicitly require certain acts be done in writing. For example, a person appeals a 

decision of the Director to the Planning Commission, “by filing a written appeal with the 

Director.” (FMC § 15-5017-A(1).) Also, that written appeal “shall be signed by the 

person making the appeal.” (Ibid.) In comparison, an appeal of a decision by the 

Planning Commission “must be initiated by filing a letter with the Director.” (FMC 

§ 15-5017-A(2).) This reference to a letter eliminates the possibility of the mayor or 
18.

councilmember making an oral appeal. Based on the requirements for writings in the 

closely related provision and the absence of any language requiring a petition to be in 

writing or, more specifically, a letter, we interpret the word “petition” broadly and 

conclude it encompasses oral requests made to the mayor or councilmember. This 

interpretation avoids the possibility of an implicit writing requirement functioning as a 

trap for the unwary and, thus, assures an ordinary person can discern and navigate the 

appeal procedures. (See generally Foster, supra, 61 Cal.App.5th at p. 1026.)

E. Standard for Interpreting Petitions

Before addressing whether the communications by or on behalf of Muskan Food 

constitute a petition for purposes of the Municipal Code, we consider what legal standard 

should apply when interpreting those communications. We conclude the subjective intent 

of the person seeking to exhaust the administrative procedures is not the appropriate test. 

Instead, we conclude the communication should be given an objectively reasonable 

interpretation. The objectively reasonable standard is used by courts in many contexts, 

including when interpreting the coverage provided by an insurance policy (E.M.M.I. Inc. 

v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470) or the allegations in a pleading 

(Davis v. Fresno Unified School Dist. (2020) 57 Cal.App.5th 911, 926). Similarly, 

whether a particular statement is considered a “threat” for purposes of title 18 United 

States Code section 248, “is governed by an objective standard—whether a reasonable 

person would foresee that the statement would be interpreted by those to whom the maker 

communicates the statement as a serious expression of intent to harm or assault” 

(Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life 

Activists (9th Cir. 2002) 290 F.3d 1058, 1074). To determine the objectively reasonable 

meaning of a communication, the language must be considered in context. (See Deere & 

Co. v. Allstate Ins. Co. (2019) 32 Cal.App.5th 499, 514 [meaning of insurance policy]; 
19.

City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, 541-542 [context is important in 

determining whether a statement is a threat].)

F. No Record of an Oral Petition

Muskan Food asserts it “requested to meet with the District City Council Person 

on December 7, 2017 (3 CT 583; 5 CT 1137-1138) [and] met with the District City 

Council Person thereafter to request an appeal (3 CT 583; 5 CT 1138).” The assertion 

about the request for a meeting is supported by a cite to a copy of a December 7, 2017 

e-mail from Muskan Food’s president to “District3@fresno.gov” stating: “I would like to 

set up a meeting with Councilmember to raise citizens concerns over new Liquor store 

establishment (Robs Liquor) in already over concentrated off sale liquor area. Our 

district have second highest off sale Lic after under District 7. Please allow us time to 

meet.” In addition, Muskan Food’s assertion that its principals met with the 

councilmember “to request an appeal” is supported by cites to a brief it filed in the 

superior court and the court’s written decision. 

Statements by an attorney, whether made in court or in a brief, are not evidence. 

(See Evid. Code, § 140 [definition of evidence]; Van de Kamp v. Bank of America (1988) 

204 Cal.App.3d 819, 843.) Thus, Muskan Food’s cite to its own brief does not identify 

evidence sufficient to support a finding that an oral petition for an appeal was made at the 

meeting with the councilmember. 

The superior court’s written decision addressed the meeting with the 

councilmember by stating that “on December 19, 2017, an informal dinner meeting 

between Navdeep Singh, Bill Nijjar, Hatjeet Tiwana, and Coun[ci]lmember Oliver 

Baines where the topic and issues surrounding the Planning Commission’s December 6, 

2017, decision were discussed.” This statement is not an explicit finding that a request 

for an appeal was made at the meeting. Furthermore, we cannot conclude the superior 

court impliedly found a request for an appeal was made because implied findings must be 
20.

supported by substantial evidence. (See People ex rel. Dept. of Corporations v. SpeeDee 

Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [appellate courts accept trial 

court’s implied finding only if supported by substantial evidence].) Here, Muskan Food 

has cited no evidence in the record that supports a finding that the councilmember was 

requested to appeal the planning commission’s decision. Consequently, Muskan Food, 

which has the burden of proving it exhausted the administrative remedies, has not 

established that it fulfilled the Municipal Code’s petition requirement by orally 

requesting the councilmember appeal the planning commission’s decision approving the 

conditional use permit. 

G. E-mail Petition

Muskan Food also refers to the December 8, 2017 e-mail its president sent to 

Chhikara, president of the Fresno chapter of the APCA. Chhikara, in turn, sent an e-mail 

to the mayor that attached Muskan Food’s e-mail. Muskan Food’s brief describes 

Chhikara’s e-mail as requesting “the Mayor appeal the Planning Commission’s decision.” 

To provide context for our evaluation of Chhikara’s December 8, 2017 e-mail, we first 

consider the contents of Chhikara’s earlier e-mail to the mayor regarding the proposed 

development.

1. September 2017 E-mail to Mayor

On September 29, 2017, Chhikara sent an e-mail to the mayor addressing Real 

Parties’ application for a conditional use permit and the saturation of establishments 

licensed to sell alcohol in the area: 

“Dear Mayor . . . Brand, 

“I got several calls on some ABC licenses through out city. Below e[-]mail 

is another example and serious concerns of ABC license saturation in 

Fresno. Earlier I had spoke with Tim [Orman] and shared this on going 

concern in which, over last 10 yrs we have been asking city to control and 

stop giving ABC licenses on all corners or with in so many sq miles which 

is causing over saturation.
21.

“I know you and your team is working on this problems and in our last 

meeting at your office we had gave some suggestions & inputs to help your 

team to resolve our city and community problem. Please look at this below 

detailed e[-]mails on how many ABC licenses are in the area. Having a 

additional business is revenue to city and area but adding ABC license in 

that business becomes an issues.

“There were few more abc license coming up. [¶] Also a 24 hrs ARCO 

gas station in fig garden in which several ABC licenses around there. [¶] 

Shaw and Hayes have several licenses close by. [¶] On Cherry and Jenson.

“Please do needful to see this ongoing issues. We do know you have a lot 

of things going on in city and will find a way to fix this issue.” 

Chhikara’s e-mail attached an e-mail from Muskan Food’s president, which listed 

the businesses with licenses near the Subject Property and closed by stating:

“I will be sharing this information with my local [councilmember] and with 

Tim Sheehan from Fresno Bee who had written the ‘Booze Flows Freely in 

Fresno’ article. Andy, I would like you to add your thoughts to this and 

please forward my e[-]mail to the Mayor Office and planning commission. 

The city cannot come back and place blame on the store owners for running 

these types of businesses especially when the City of Fresno can control 

issuance of licenses and continue to try doing a better job at planning.” 

The mayor’s reply e-mail to Chhikara stated: “We are working on a solution that 

will not punish the good owners. If you would like to meet please let me know.”

2. December 2017 E-mail to Mayor

Chhikara’s December 8, 2017 e-mail to the mayor and a member of his staff 

contained the following message:

“Dear Mr. Lee and Tim.

“Please see below e[-]mail from one of our member e[-]mail reg[ar]ding a 

planning commission hearing this week. [I]t shows the same concern 

where Planning department and city is issuing multiple ABC licenses in 

street corner or in already saturated area. I have not reviewed this area but 

according to this e[-]mail, seems like there are 6 ABC licenses in half mile 

radius and 10 off sale liquor license in 1 mile radius. This site is also 

happen to be in Mr. Bain[e]s area.
22.

“We as association and Fresno business are pro business but have business 

and we have been discussing with city hall over 10 year and asking city to 

control or Stop giving these ABC licenses. Later on these licenses become 

issue for every one and small business like ours get bad names in city and 

in some areas. [¶] I would appreciate your time to look in this concern. 

[¶] Thanks!!” 

On Saturday, December 9, 2017, the mayor sent a reply e-mail to Chhikara that 

stated: “Thanks for the e[-]mail Andy. I’m not sure why the Planning Commission is 

approving ABC licenses. We need to have a meeting to discuss this. I will invite Serop 

Torossian the chair of the Planning Commission to be at the meeting.” Whether the 

suggested meeting was held is not addressed in the parties’ briefing and we have located 

nothing in the record indicating such a meeting occurred. 

Here we consider what the mayor’s response did not include. It did not describe 

Chhikara’s e-mail as a petition and made no mention of an appeal to the city council. If 

Muskan Food regarded the mayor’s response as inadequate or missing the point, it could 

have clarified its intent by submitting a more specific request to the mayor. We have 

located nothing in the record showing Chhikara or Muskan Food attempted to inform the 

mayor that their combined e-mails were intended to be a petition for an appeal or 

otherwise communicated with him about an appeal of the planning commission’s 

decision.

Additional context for Chhikara’s December 8, 2017 e-mail to the mayor is 

provided by the December 20, 2017 letter of Muskan Food’s attorney to the director of 

DARM. The letter’s subject line referred to an appeal of the planning commission’s 

decision upholding the director’s approval of the conditional use permit. The letter stated 

Muskan Food “disagrees with the Planning Commission findings and decision and, 

therefore, hereby appeals such decision to the Fresno City Council pursuant to FMC 

Section 15-5017 based upon the following [grounds].” The letter does not mention 

Muskan Food previously submitting a petition to the mayor or councilmember or the fact 

that the Municipal Code authorizes only the mayor or councilmember from the affected 
23.

district to appeal a planning commission decision to the city council. Instead, the letter’s 

use of the words “hereby appeals” suggests Muskan Food’s attorney thought a direct 

appeal was possible. 

In applying the objectively reasonable standard to Chhikara’s December 8, 2017 

e-mail to the mayor and its attachment, we conclude it does not constitute a “petition” for 

purposes of Municipal Code section 15-5017-A(2). 

Chhikara’s e-mail begins by referring to Muskan Food’s attached e-mail, stating it 

raises the issue of over-saturation of establishments licensed to sell alcohol, and 

summarizes Muskan Food’s assertions about existing licenses near Real Parties’ 

proposed development. That attached e-mail uses the word “appeal” once, referring to 

the planning commission’s denial of its appeal. 

The second paragraph of Chhikara’s e-mail states the APCA has been discussing 

the saturation issue with city hall for over 10 years and asking City “to control or [s]top 

giving these ABC licenses” that cause over-saturation. The e-mail concludes: “I would 

appreciate your time to look in[to] this concern. [¶] Thanks!!” 

Because the e-mail refers to the general problem of over-saturation of 

establishments licensed to sell alcohol and the fact the APCA has been involved with the 

issue for over 10 years, it is not reasonable to interpret Chhikara’s general request for the 

mayor “to look in[to] this concern” as a specific request that the mayor submit an appeal 

of the planning commission’s approval of Real Parties’ proposed development. A

reasonable person acting as mayor and receiving the e-mail would not think he or she is 

being requested to comply with the Municipal Code’s letter and timing requirements for 

appealing a planning commission decision to the city council. (See FMC §§ 15-5012-B, 

15-5017-A(2).) Furthermore, when the mayor responded and described his proposed 

next step—that is, “have a meeting to discuss this”—Chhikara did not clarify that he 

wanted the mayor to submit an appeal. 
24.

The request at the end of the Muskan Food e-mail attached to Chhikara’s e-mail 

states: “Please help me raise my concern with the City officials so we can stop this. I 

really appreciate your help.” Chhikara’s e-mail did raise Muskan Food’s concern with 

the mayor and, as a result, the mayor proposed a meeting, which meeting was to include 

the chairperson of the planning commission. 

Our interpretation of the general statements in the e-mails submitted to the mayor 

as not constituting a petition is consistent with the policies underlying the exhaustion 

doctrine. It is not difficult to comply with the requirements of Municipal Code section 

15-5017-A(2) and make a request to the mayor or councilmember to appeal a planning

commission decision. Allowing generalized statements of concern to impliedly fulfill the 

Municipal Code’s requirement would encourage end-runs, undermine judicial efficiency, 

and undermine the city council’s autonomy as the elected body with the ultimate 

authority over land use decisions. (See Yamaha Motor Corp. v. Superior Court, supra, 

185 Cal.App.3d at p. 1240; Asimow et al., California Practice Guide: Administrative 

Law, supra, ¶¶ 15:12 to 15:15, pp. 15-2 to 15-3.) Muskan Food’s failure to exhaust 

administrative remedies here frustrated the policy of promoting administrative autonomy

as it applies to the interpretation and application of the Municipal Code provisions 

governing location restrictions on establishments licensed to sell alcohol. The city 

council is especially well suited, as the entity that enacted the Municipal Code, to 

determine its meaning and render a final decision on its application to a specific project

and was entitled to the opportunity to do so.

A judgment may be affirmed on a legal theory other than the one relied on by the 

superior court. (Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1483-1484, fn. 6.) Based 

on the failure to exhaust administrative remedies, we conclude the superior court 

correctly denied Muskan Food’s petition for writ of mandate. Accordingly, we do not 

reach the issues raised in Muskan Food’s appeal. 
25.

DISPOSITION

The judgment is affirmed. City and Real Parties shall recover their costs on 

appeal.

DETJEN, J.

WE CONCUR:

HILL, P. J.

PEÑA, J.