Judge Curtis A. Kin, Case Number: 21STCP03476, Date: 2023-08-29 Tentative Ruling

21STCP03476

Petitioners Peter R. Katz and Teresa M. Katz, trustees of the Peter R. Katz and Teresa M. Katz 1998 Family Trust dated June 9, 1998, and Zoe Lynn Katz seek a writ of mandate enjoining respondents City of Los Angeles (“City”) and Department of Building and Safety of the City of Los Angeles (“LADBS”) from enforcing the DBS Order to Comply (“OTC”) dated September 8, 2016 and the OTC-Supplemental dated January 22, 2019.

This proceeding concerns real property located at 2650 North Laurel Canyon Boulevard and 2652 North Laurel Canyon Boulevard in Los Angeles. The property is comprised of three lots – Lots 295, 296, and 297 – and certain unnumbered lots designated herein with the last two digits of the assessor’s parcel numbers (“APN”) – 32, 33, and 37. (Pet. ¶ 15.) Two single-family residences are located on the lots. Lots 295 and 296 contain the larger main dwelling unit (“Main Dwelling Unit”). Lot 297, behind Lots 295 and 296, contains a smaller dwelling unit (“Small Dwelling Unit”). (Pet. ¶ 18.)

Petitioners Peter R. Katz and Teresa M. Katz, trustees of the Peter R. Katz and Teresa M. Katz 1998 Family Trust dated June 9, 1998 hold an undivided 50% interest in the subject property. (Pet. ¶ 2.) Petitioner Zoe Lynn Katz holds the remaining 50% interest in the subject property. (Pet. ¶ 3.) Petitioners took title to the property in June 2015. (Pet. ¶ 16.)

On September 30, 2016, petitioners applied for building permits. (Pet. ¶ 21.) While waiting for the permits, petitioners began removing silt and debris that had accumulated behind the dwelling units and on the driveway. (Pet. ¶ 21.) Petitioners used a 10-inch pipe as a chute to slide the silt to the bottom of the hill. (Pet. ¶ 21.)

On October 6, 2016, petitioners received a Notice of Violation from LADBS for grading without a permit. (Pet. ¶ 22.) Based on discussions with other employees of LADBS, petitioners maintain that removal of accumulated silt and debris was required maintenance and no permit was required. (Pet. ¶¶ 23, 24.) Petitioners were nevertheless issued an Order to Comply. (Pet. ¶ 25.)

Petitioners also repaired the existing rock walls. (Pet. ¶ 27.) Prior to the repair, a DBS inspector told petitioners that no permits were required because the walls were decorative and no new walls were being added. (Pet. ¶ 27.)

Petitioners sought to add a kitchen to and modify the bathroom of the Small Dwelling Unit without the addition of square footage. (Pet. ¶ 29.) The City told petitioners that they could not obtain a building permit until the lots were tied together as one parcel. (Pet. ¶ 30.) On October 12, 2016, petitioners applied to have Lots 295, 296, and 297 and APN 37 tied together as one parcel. (Pet. ¶ 30.) According to Section 12.03 of the Los Angeles Code Manual and Commentary, a lot tie is only required if there is a major change of use or occupancy. (Pet. ¶¶ 30, 31.) Petitioners assert that they should be able to untie the lots. (Pet. ¶ 32.)

In September 2019, an OTC-Supplemental was issued for the grading and the retaining walls. (Pet. ¶ 25.) Specifically, petitioner was cited for the following violations: 1) “Grading was performed without first obtaining a permit & approvals from the Mulholland Scenic Parkway Specific Plan board” and 2) “A permit & inspection are required for the retaining walls & free-standing built through out the property.” (Pet. Ex. 1.)

On December 20, 2019, petitioners sued the City. (Pet. ¶ 1.) In August 2020, the litigation settled. (Pet. ¶ 1.) Petitioners were allowed to construct an Accessory Dwelling Unit (“ADU”) and garage in the front portion of the property. (Pet. ¶ 1.) Petitioners were also allowed to form a Junior Accessory Dwelling Unit (“JADU”) toward the rear of the property by connecting the Main Dwelling Unit to the Small Dwelling Unit. (Pet. ¶ 1.)

In December 2020, petitioners submitted plans for the ADU and JADU. (Pet. ¶ 40.) The City approved the plans and issued permits on February 19, 2021. (Pet. ¶ 40.) In reliance on the permits, petitioners started construction. (Pet. ¶ 40.)

On August 3, 2021, LADBS issued a Correction Notice on the ground that a property may only have a single accessory dwelling unit. (Pet. Ex. 3.) On the same date, LADBS issued a separate Correction Notice stating that the Junior Accessory Dwelling Unit needs to be attached to the main building. (Pet. Ex. 4.) Both Correction Notices stated that the issuance of a permit is not an approval of work but only an application of inspection of work. (Pet. Exs. 3, 4.) Petitioners contend that the issuance of the Correction Notices was arbitrary and capricious. (Pet. ¶ 40.) Petitioners were forced to stop construction. (Pet. ¶¶ 40, 41.)

Petitioners appealed the OTC. (Pet. ¶ 26.) On September 14, 2021, the Board of Building and Safety Commissioners orally ruled against petitioners. (Pet. ¶ 26.)

On October 18, 2021, petitioner filed a Verified Petition for Writ of Administrative Mandamus and Injunctive Relief. On November 4, 2022, respondents City of Los Angeles and Department of Building and Safety of the City of Los Angeles filed an Answer.

On May 8, 2023, petitioner filed an opening brief. On June 2, 2023, respondents filed an opposition. No reply has been filed. Neither an administrative record nor a joint appendix has been lodged.

As a preliminary matter, with respect to the second cause of action, a declaratory relief claim is not assigned to the writs and receivers departments under Local Rules 2.8(d) and 2.9. Accordingly, the Court only rules on the petition with respect to the first cause of action for writ of mandamus.

The petition is brought under CCP § 1094.5. (Pet. at 1:23.) Under CCP § 1094.5, “the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817; see also Bixby v. Pierno (1971) 4 Cal.3d 130, 139.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “ ‘prejudicial abuse of discretion.’ ” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.)

A memorandum of points and authorities is required for a noticed motion, including for mandamus. (See CCP § 1094; Cal. Rule of Court 3.1113(a), (b).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rule of Court 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

On May 19, 2022, the Court (Hon. Mary H. Strobel) set the petition for hearing on March 21, 2023, and set a briefing schedule. (5/19/22 Minute Order.) Pursuant to the parties’ stipulation, the hearing date on the instant petition was continued to July 6, 2023.[1] (2/21/23 Stipulation and Order at 3.) Petitioner was ordered to file and serve the opening brief 60 days prior to the hearing date. Petitioner filed an opening brief. However, the opening brief does not cite to the administrative record. (See Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

The Court ordered the administrative record and the joint appendix to be lodged 15 days prior to the hearing. (2/21/23 Stipulation and Order at 3.) No administrative record or joint appendix have been lodged. While the petition contains exhibits which could be deemed part of the administrative record, petitioners do not provide documentation supporting their assertion that the matters cited in the Order to Comply – Supplemental – the grading and the retaining walls – were in error. (See OB at 3:17-18.) Petitioners do not provide any documentation demonstrating that they made a request to respondents that their lots be untied, that respondents denied the requests, and the reasons for the denial. (See OB at 6:18-27.) Petitioners provide no documentation demonstrating that denial of a permit was improper despite the approval of a grading plan. (See OB at 7:1-15.) Petitioners do not provide documentation demonstrating that the issuance of Correction Notices was in error. (See OB at 9:12-22.) Petitioners do not provide a copy of the Los Angeles Zoning Manual referred in their opening brief, which purportedly supports their assertion that their walls were not retaining walls that required permits (OB 10:3-15; Pet. Ex. 1.) Petitioners do not provide any documentation from which the Court can determine that respondents “refused to acknowledge Petitioners’ contentions in the appeal hearing, and never specified which walls were allegedly retaining walls versus decorative walls.” (See OB at 7:16-18.)

CCP § 1094.5 states: “Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.”

In administrative mandate proceedings, the trial court reviews land use decisions for substantial evidence. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

Based on petitioners’ failure to provide an administrative record or any citation to any such record in support of their arguments in their opening brief, the Court is unable to conduct a substantial evidence review of the denial of the appeal of the OTC and OTC-Supplemental or any other administrative order purportedly stopping construction on petitioners’ property. Petitioners thus fail to satisfy their the burden of proof under CCP § 1094.5.

Based on petitioners’ failure to meet their burden on a petition for writ of mandate under CCP § 1094.5, respondents’ requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

[1] The hearing was later continued on the Court’s own motion to August 1, 2023 and then to August 22, 2023 with briefing based on the original hearing date. (5/9/23 Notice re: Continuance of Hearing and Order; 7/18/23 Minute Order.)