Judge: Andrew E. Cooper, Case: 23STCP00854, Date: 2024-08-01 Tentative Ruling

Case Number: 23STCP00854    Hearing Date: August 1, 2024    Dept: F51

Dept. F-51¿ 

Date: 8/1/24 

Case #23STCP00854

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

DEMURRER WITH MOTION TO STRIKE

Demurrer with Motion to Strike Filed: 4/29/24 

MOVING PARTY: Respondent County of Los Angeles Department of Regional Planning, Amy Bodek, Director (“Respondent”)

RESPONDING PARTY: Petitioner James Christopher Ball, in pro per (“Petitioner”)

NOTICE: OK 

RELIEF REQUESTED: Respondent demurs to Petitioner’s entire first amended petition (“FAP”).

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend. The motion to strike is moot.

REQUEST FOR JUDICIAL NOTICE: Respondent’s request for judicial notice is denied as to Exhibits A–M, and granted as to Exhibit N.

Petitioner is reminded that “except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. … The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” (Cal. Rules of Ct., rule 3.1113(d).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

BACKGROUND 

Petitioner brings this action against Respondent in relation to the Los Angeles County Department of Regional Planning’s (“DRP”) evaluation and recommendation of conditions of approval in Petitioner’s Conditional Use Permit (“CUP”) Application No. RPPL2019002661, through which Petitioner sought to construct six single-family residences on six existing legal parcels in the Santa Clarita Valley Planning Area. (Ex. 1 to FAP.)

The DRP prepared conditions to Petitioner’s CUP application, and on 7/27/22, the County Regional Planning Commission heard and approved the application. (Ibid.) On 8/8/22, Petitioner timely appealed the decision to the County Board of Supervisors (“BOS”), challenging a condition involving the requirement of a tribal monitor to oversee grading in the event tribal cultural resources are discovered. (Ex. 3 to FAP.)

On 12/20/22, the BOS held a hearing on Petitioner’s appeal, accepting testimony from both Petitioner and Respondent. Thereafter, the Board “instructed the Interim County Counsel to prepare the necessary findings to affirm the Regional Planning Commission’s approval of” Petitioner’s CUP application “and denied the appeal” thereof. (Ex. 1 to FAP.) On 9/26/23, the BOS considered and unanimously voted to adopt the findings and conditions. (10/25/23 Suppl. Status Report.)

On 3/17/23, Petitioner filed his original petition against Respondent, alleging the following causes of action: (1) CEQA Exemptions; (2) Tribal Jurisdiction; (3) Biological Monitor; (4) Unannounced Drone Spying; (5) Unnecessary Costs and Fees for Delayed Permits; and (6) Regional Planning Should Clean Up Their Act. The petition sought writ of mandamus and declaratory relief pursuant to Code of Civil Procedure sections 1060, 1085, and 1086.

On 11/29/23, the Court sustained Respondent’s demurrer against Petitioner’s fourth, fifth, and sixth causes of action without leave to amend, and against Petitioner’s first, second, and third causes of action with leave to amend. On 1/2/24, Petitioner filed his FAP, alleging the following causes of action: (1) Pretendian Woke Shakedown; (2) Biological Monitor for One Parcel; and (3) Conditional Use Permit Conditions Require Clarification. The parties settled Petitioner’s third cause of action.

On 4/29/24, Respondent filed the instant demurrer and motion to strike. On 7/15/24, Petitioner filed his oppositions thereto. On 7/25/24, Respondent filed its replies. 

DEMURRER 

Respondent demurs to Petitioner’s entire FAP on the basis that¿each cause of action fails to state facts sufficient to state a cause of action.

A.    Meet-and-Confer 

Respondent’s counsel declares that she engaged in settlement discussions with Petitioner, including the settlement of his third cause of action, but the parties were unable to come to an informal resolution with regard to the remaining causes of action. (Decl. of Kathy Park, ¶¶ 4–10.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Pretendian Woke Shakedown

Petitioner’s first cause of action alleges Pretendian Woke Shakedown against Respondent, specifically that “my appeal was decided by politicians who are biased in favor of the local tribe and without concern for the costs imposed on me.” (FAP 8:22–24.) “AB52 is an attempt by the State to make societal reparations to the surviving descendants of the red man tribes for the slaughter and displacement of their ancestors by the white man tribes, my ancestors.” (Id. at 13:6–8.) “This Petition asserts that Regional Planning did not proceed in the manner required by law. There is no substantial evidence that significant tribal resources might exist on my property. In addition, Regional Planning did not follow the law because they failed to consider feasible mitigation alternatives as required.” (Id. at 11:20–23.)

Respondent argues that “the first cause of action stems from Petitioner’s policy and political view that AB 52 is a ‘Pretendian Woke Shakedown,’ upon which the Petition alleges wrongdoing by the County. This is not a legally cognizable theory that gives rise to a legal right, legal remedy, and legal cause of action in a court of law.” (Dem. 1:11–14.) “Petitioner’s challenge of a legislative policy or political opinion is not a legally cognizable cause of action and is subject to demurrer for failing to state facts sufficient to constitute a cause of action.” (Id. at 6:15–17.)

Petitioner argues in opposition that the “First cause of action actually stems from the abuse of discretionary authority that resulted in stupid and expensive conditions that require me to pay unlimited costs for a professional archaeologist to watch me run my bulldozer to look for stuff that ain’t there.” (Opp. 3:10–12.) “In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” (Pub. Resources Code § 21168.5.)

Petitioner also argues that the BOS was prejudiced against him at the 12/20/22 hearing on his appeal, and that “this Court should recognize and understand the political bias of politicians who judged my case.” (Id. at 3:6.) Specifically, Petitioner argues that a land acknowledgment reading made at the start of the 12/20/22 BOS meeting “is a declaration of bias and prejudice by those who soon after heard my complaint against Regional Planning. It establishes that the BOS was predisposed to find in favor of the tribe, despite the fact that there was no evidence showing any likelihood of artifacts on my property.” (Id. at 4:7–11.)

Respondent argues in reply that “Petitioner’s first cause of action is built upon a misunderstanding of the scope and standard of judicial review permitted, inadequate factual allegations, and consequently fails to establish facts sufficient to support the cause of action.” (Reply 3:1–3.) “Petitioner may not agree with latitude given to local agencies when implementing AB 52, or the deference afforded to consulting tribes under AB 52, however that dissatisfaction is misdirected at the County, for they are contests with the State legislature.” (Id. at 1:19–21.)

The Court agrees with Respondent that to the extent that Petitioner wishes to challenge AB 52, “the Petitioner’s issue is with the State law as written. Petitioner cannot ask this court to do what must be asked of the State legislature.” (Id. at 4:18–20, citing Pub. Resources Code §§§ 21080.3.1, 21080.3.1, 21082.3; Government Code § 65352.4.) To the extent that Petitioner bases this cause of action on the BOS’ abuse of discretion in denying his appeal, the Court finds that Petitioner has sufficiently alleged the elements of this cause of action. However, the demurrer is nevertheless sustained against Petitioner’s first cause of action on the ground that it is uncertain.

C.    Biological Monitor for One Parcel

Petitioner’s second cause of action alleges Biological Monitor for One Parcel. Respondent again argues that “the second cause of action is defective because Petitioner failed to exhaust administrative remedies to challenge Respondent’s condition regarding biological monitors.” (Dem. 1:14–16.)

“A party seeking relief for an injury for which an administrative remedy is available ordinarily must pursue relief from the administrative agency before seeking relief in court.” (City of Fillmore v. Board of Equalization (2011) 194 Cal.App.4th 716, 725.) To withstand a demurrer for failure to allege exhaustion of available administrative remedies, a plaintiff must allege facts showing that he exhausted these remedies or facts showing that he was not required to do so. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.) A plaintiff may not ordinarily advance a new theory in the court that was not presented to the administrative agency. (Hoag Mem. Hosp. Presbyterian v. Kent (2019) 36 Cal.App.5th 413, 425–426.) To satisfy the exhaustion of administrative remedies requirement, “the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary.” (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 441.)

Here, the Court previously found that “nowhere in the appeal document does Petitioner directly reference … Biological Monitor. Notwithstanding the foregoing, upon further review of Petitioner’s appeal, the Court finds that Petitioner’s third cause of action is linked to his first cause of action for CEQA Exemptions.” (11/29/23 Min. Order, p. 6.)

Petitioner appears to concede that “County says I haven’t exhausted my administrative remedies with respect to the Biological Monitor conditions. That statement has some merit. I have stated in my opposition that I was prevented by County from doing so, because it was concealed from me until the Interlocutory period that the findings that resulted in those conditions were not supported by any evidence.” (Opp. 15:24–16:1.)

Respondent argues in reply that “Petitioner abandoned his claim on the CEQA exemption on the record. Therefore, Petitioner failed to pursue the inventive nexus that allowed leave to amend a challenge that was never appealed through the administrative process.” (Reply 7:5–7.) The Court agrees with Respondent that the Court’s previous ruling allowed for Petitioner’s Biological Monitor cause of action to withstand demurrer because it was related to his now-withdrawn cause of action for CEQA Exemptions. As amended, and as Petitioner concedes, Petitioner’s Biological Monitor cause of action no longer satisfies the exhaustion requirement.

The Court notes that Biological Monitor is not a legally cognizable cause of action. To the extent that Petitioner alleges that his failure to appeal the biological monitor condition was based on false or concealed information, the Court finds that Petitioner has failed to allege facts sufficient to constitute those related causes of action. Accordingly, the Court sustains the demurrer against Petitioner’s second cause of action.

D.    Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿  

Here, Petitioner seeks leave to file a second amended petition. Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Petitioner 30 days leave to amend his petition to cure the defects set forth above.

MOTION TO STRIKE

As the Court sustains the demurrer with 30 days leave to amend, the motion to strike is moot. (B. F. G. Builders v. Weisner & Coover Co. (1962) 206 Cal.App.2d 752, 758–759.)

CONCLUSION¿ 

The demurrer is sustained with 30 days leave to amend. The motion to strike is moot. The Court wants to get this case set for a hearing on the merits.