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People v. Venice Suites, LLC, 71 Cal.App.Sth 715 (2021) 286 Cal.Rptr.3d 598, 21 Cal. Daily Op. Serv. 11,565, 2021 Daily Journal D.A.R. 11,835 prohibited under permissive zoning scheme, in action brought by State of California against house owner and operator alleging violation of municipal code and public nuisance; although discovery on municipality's interpretation of code under permissive zoning theory may have been conducted, that did not convert question from legal one to factual one. 1 Case that cites this headnote [5] Appeal and Error W-- Summary Judgment Generally, the rules relating to the scope of appellate review apply to appellate review of summary judgments. [6] Appeal and Error W-- Necessity of presentation in general Appeal and Error 0- In general; adhering to theory pursued below An argument or theory will not be considered if it is raised for the first time on appeal. 1 Case that cites this headnote [7] Appeal and Error Q--- In general; adhering to theory pursued below Appeal and Error W-- Evidence or Other Material Not Considered Below Appeal and Error 4- Summary judgment When reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal; thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal. FaCal. Civ. Proc. Code § 437c(c) 1 Case that cites this headnote [8] Appeal and Error @- In general; adhering to theory pursued below A party is not permitted to change his position and adopt a new and different theory on appeal; to permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [9] Appeal and Error 4-- Necessity of presentation in general Reviewing court may exercise its discretion to reach merits of newly raised issue in certain circumstances. 1 Case that cites this headnote [10] Appeal and Error #- In general; adhering to theory pursued below An appellant may be permitted to change his or her theory when a question of law alone is presented on the facts appearing in the record; in that case, the opposing party is not required to defend for the first time on appeal against a new theory that contemplates a controverted factual situation. 1 Case that cites this headnote [11] Appeal and Error ti Local law; ordinances The interpretation of municipal code is question of law that is decided de novo on appeal. [12] Statutes 4- Questions of law or fact Ascertainment of legislative intent is legal question, not factual one. [13] Zoning and Planning W-- Apartment house districts Zoning and Planning Q--- Hotels, lodging, and short-term rentals Residential zone not specifying length of occupancy did not implicitly prevent apartment house from being used for short-term occupancies of 30 days or less, since term apartment house in common usage did not indicate only long-term occupancy. Cal. Civ. Code §§ 13, 1645. 2 Cases that cite this headnote WESTLAW © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2