Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

Plaintiff Los Trancos Management, LLC owns the residential real property located at 31444 Broad Beach Road, Malibu, California 90265 (the “31444 Parcel'”).  (Compl. ¶2.)  Defendant 2XMD Partners LLC (“2XMD”) owns the residential real property located at 31430 Broad Beach Road, Malibu, California 90265 (the “31430 Parcel”).  (Id. ¶13.)  Defendant Jilk Construction, Inc. (“Jilk”) is a general contractor. (Id. ¶ 4.) 

Plaintiff alleges that 2XMD applied for and obtained various permits in connection with the repair and reinforcement of the seawall at the 31430 Parcel.  (Id. ¶ 28.)  Plaintiff alleges that Defendants violated the Coastal Act by “operating excavators in tidal zones in the ocean” and scooping “significant amounts of sand from Broad Beach, a beach with historic concerns of sand depletion”.  (Id. ¶ 1.)  Plaintiff states that it is bringing this action “to seek immediate relief from recurring depletion, exposure, and potential destruction of natural resources through a civil lawsuit under the Coastal Act.”  (Id.)   

Plaintiff contacted the Coastal Commission beginning on July 2, 2024 through July 12, 2024 regarding the acts it claims violate the Coastal Act.  (Id. ¶¶ 44-51.)  Plaintiff’s complaint also alleges that it had been advised that the Coastal Commission was investigating the matter.  (Id. ¶¶ 54.)   

In fact, on September 5, 2024, the Coastal Commission issued a Notice of Violation, Violation File Number V-4-24-0099 to 2XMD.  (Ex. A to Request for Judicial Notice ) 
RJN”). The Notice of Violation requests that 2XMD, as owner of the parcel, respond to the California Coastal Commission by October 7, 2024 in order to “coordinate appropriate resolution of these violations, including restoration of state tidelands and mineral resources and settlement of the Commission’s claims for monetary penalties”.  (Id.)  

On the same date, the State Lands Commission issued a letter with the subject line “Unauthorized Work on State-Owned Tidelands adjacent to 31430 and 31438 Broad Beach 27 Road”.  (Ex. C to RJN.)  The letter provides that the States Land Commission owns the property waterward of the Mean High Tide Line and holds a lateral public access easement “25 feet inland from the ‘daily high waterline’” and that the work done on the 31430 Parcel as well as the acts at issue here were brought to the States Lands Commission’s attention.  (Id.)  

The States Lands Commission requested that 2XMD respond and contact its staff counsel by October 4, 2024, to confirm the halting of work and to address any issues related to the State’s tidelands.  (Id.)  It further stated that “Before undertaking any additional work at this location, the property owners must consult with the State Lands Commission staff to determine whether the State's property is impacted, and, if necessary, apply for State Lands Commission approval.”  (Id.) 

The operative complaint alleges three claims for (1) violation of the California Coastal Act, (2) public nuisance, and (3) private nuisance.  Plaintiff's first cause of action alleges that defendants violated Coastal Act section 30106 by “dredging and removing sand, and the use of heavy machinery in tidal and intertidal zones.” (Id. ¶ 56.)  Plaintiff seeks declaratory relief as to the parties’ rights and responsibilities under the Coastal Act including the parties’ responsibilities as to the replenishment and restoration of the sand in the work area (id. ¶ 61); injunctive relief preventing any further development by Defendants in the area and the return of any sand removed from Broad Beach (id. ¶ 67); civil fines pursuant to Public Resources Code section 30820(a) payable to the State; and daily fines pursuant to Public Resources Code section 30820(b) payable to the State.  

Plaintiff's second cause of action for public nuisance alleges that defendants “engaged in unauthorized construction and development on Broad Beach in connection with its construction efforts related to the Parcels”.  (Id. ¶ 74.)  Plaintiff claims that Defendants operated heavy machinery in the tidal and intertidal zones, dredged and removed sand, failed to replenish and restore sand, and restricted public access to Broad Beach.  (Id.)  Plaintiff seeks a preliminary and permanent injunction enjoining Defendants from further construction work in the area and an injunction requiring defendants to “return all sand previously removed from Broad Beach as well as the immediate return of all materials, including boulders, displaced on Broad Beach." (Compl., Prayer for Relief ¶¶ 5-6.)  

Plaintiff's third cause of action for private nuisance alleges that Defendants’ actions  “obstruct the free use of public property and interfere with the comfortable enjoyment of Broad  Beach and the surrounding properties.”  (Id. ¶84.)  Plaintiff alleges that as a result of being the owner of the parcel next door to 2XMD' s parcel, it has suffered personal harm by having the sand in front of and next to its property depleted.  (Id. ¶85.)  Plaintiff seeks a preliminary and permanent injunction enjoining Defendants from further construction work in the area and an injunction requiring defendants to “return all sand previously removed from Broad Beach as well as the immediate return of all materials, including boulders, displaced on Broad Beach.”  (Compl., Prayer for Relief, ¶¶ 5-6.)   

This hearing is on Jilk’s demurrer and motion to stay.  Jilk argues that the California Coastal Commission, the state agency charged with administering the California Coastal Act, has commenced an administrative proceeding regarding the exact acts that form the basis of Plaintiffs Complaint.  Because there is a state agency proceeding addressing the acts alleged in the Complaint and the relief sought, Jilk argues that the primary jurisdiction doctrine applies, and the Court should either sustain its demurrer or stay Plaintiff’s entire Complaint.  2XMD filed a joinder to the demurrer and motion to stay.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc., § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)  Jilk submits the Declaration of Litsa Georgantopoulos which shows the parties met and conferred by zoom on September 24, 2024, more than five days before Jilk filed its demurrer (on October 1, 2024).  This satisfies the meet and confer requirements of § 430.41.  2XMD filed a joinder to the demurrer and was required to have met and conferred with Plaintiff pursuant to § 430.41.  Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer, and accordingly, the Court will also consider 2XMD’s demurrer.     

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

 

REQUEST FOR JUDICIAL NOTICE 

Jilk requests judicial notice of (1) the California Coastal Commission website; (2) the California State Lands Commission website; (3) California Coastal Commission’s Notice of Violation to 2XMD dated September 5, 2024; (4) California Coastal Commission’s Revised Notice of Violation to 2XMD dated September 9, 2024, and (5) California State Lands Commission Letter to 2XMD dated September 5, 2024.  The Court grants the request as to (3)-(5) pursuant to Cal. Evid. Code §§ 452(c) and 453.  The Court declines the request as to (1) and (2).  The Court does not take¿judicial notice¿of any internet¿websites¿or search results, as these are not a proper basis for¿judicial notice.  Even if the Court did take¿judicial notice¿of the¿websites¿or search results,¿judicial notice¿does not extend to the truth of the facts asserted on the websites; there must be a separate request made for the actual facts.  At most, the Court would judicially notice the existence of these websites, not the facts provided.  But the mere existence of these websites is irrelevant to this litigation. 

 

DISCUSSION 

Defendants demur on the ground that the Complaint is barred by the primary jurisdiction doctrine.  While the Court agrees that the primary jurisdiction doctrine applies here, it does not mandate dismissal, but rather a stay of proceedings pending completion of the administrative proceedings. 

Primary jurisdiction applies where a claim is originally cognizable in the courts and is implicated when enforcement of the claim¿requires resolution of issues which under a regulatory scheme have been placed within the special competence of an administrative body.  (Farmers Ins. Exchange v. Superior Court (1992)¿2¿Cal. 4th 377, 390.)  This doctrine advances two related policies: it enhances court efficiency by allowing courts to take advantage of administrative expertise, and it helps assure uniform application of regulatory laws.¿ (Id.¿at 391.)  Courts exercise their discretion to determine the extent to which these policies are implicated in a given case.¿ (Id.) 

The¿primary jurisdiction doctrine¿does not permanently foreclose judicial action, but rather stays the action and gives the appropriate administrative agency an opportunity to act if it chooses to do so.¿ (City and County of San Francisco v. Uber Technologies, Inc. (2019) 36 Cal.App.5th 66, 82; see also Jonathan Neil & Assoc., Inc. (2004) 33 Cal.4th 917, 936¿(invoking primary jurisdiction doctrine and staying case);¿City of Industry v. City of Fillmore (2011) 198 CaI.App.4th 191, 210 (citing¿Jonathan Neil¿for the proposition that application of the primary jurisdiction doctrine results in a stay rather than a dismissal);¿Wise v. Pacific Gas & Elec. Co. (1999) 77¿Cal.App.4th 287, 296¿(in applying doctrine, proper procedure is to stay the action pending¿resolution of the issues within the administrative body’s expertise).) 

Here, the California Coastal Commission is actively investigating the acts raised in Plaintiff’s Complaint.  It has the authority to enjoin Defendants’ conduct and impose monetary penalties, the very relief Plaintiff seeks here.  The Commission has special expertise in determining whether there has been a violation of the California Coastal Act.  And a resolution by this Court on whether there has been a violation may conflict with the Commission’s determination.  Accordingly, the policy reasons for applying the primary right jurisdiction are implicated here – namely, the Court would benefit from the administrative agency’s expertise, and there is a desire for uniform application of regulatory laws.   

It is true that the Coastal Act provides that any person can maintain an action to restrain an alleged violation of the Act.  (PRC, § 30803.)  However, the purpose of “private attorney general” suits is to allow private citizens to sue on behalf of the public interest to enforce laws when government agencies are not actively doing so.  Simply because the Coastal Act provides for a private citizen to bring an action to enforce an act does not preclude this court from exercising its discretion under the primary jurisdiction doctrine.  (Farmers, 2 Cal.4th at 394.) To allow both proceedings to continue at the same time would run counter to the policies underlying the doctrine.   

California Public Resources Code (“PRC”) Sections 30821(d) and 30821.3(d) both provide that “[a] person shall not be subject to both monetary civil liability imposed under this section and monetary civil liability imposed by the superior court for the same act or failure to act.”  (PRC §§ 30821(d) and 30821.3(d).)  In other words, a party cannot be subject to penalties by the Commission and the superior court for the same liabilities, and therefore, the Coastal Act does not authorize or support dual enforcement proceedings.  These two provisions were expressly included within the Coastal Act to provide an avenue for the Commission to assess penalties against responsible parties, while making sure duplicative liability did not occur.  PRC Sections 30821(d) and 30821.3(d), coupled with the intent and purpose of the primary jurisdiction doctrine, supports this Court exercising its discretion under the primary jurisdiction doctrine and staying this action.  (See Farmers, 2 Cal. 4th at 390.) 

Further, the primary jurisdiction doctrine applies not only to Plaintiff’s claim for violation of the California Coastal Act, but also its claims for public and private nuisance.  Plaintiff’s nuisance claims refer to the Coastal Act and rise and fall with the Coastal Commission’s determination as they not only track the language of Plaintiffs claim under the Coastal Act, but they also necessitate the evaluation and determination by the Commission of ( 1) whether unauthorized work in violation of the Coastal Act occurred and (2) if, so, what penalties or injunctive relief should issue.  In other words, a determination and evaluation of Plaintiff’s claims under the Coastal Act is required to assess Plaintiff’s nuisance claims. In addition, the damages sought by Plaintiff for all its causes of action are all within the remedies available to the Coastal Commission and identified as specific remedies the Coastal Commission is already considering in its administrative proceedings.  Additionally, the State Lands Commission is also addressing the issues of public access cited in Plaintiff’s Complaint. 

Notably, Plaintiff says nothing in its Opposition that shows the relief it is seeking cannot be issued by the Coastal Commission and State Lands Commission or that it needs to participate in those proceedings to obtain that relief.  Plaintiff is asking that Defendants be ordered to pay penalties to the State as provided for under the Coastal Act, and that injunctions be issued.  The Coastal Commission is tasked by the State to issue penalties for violations of the Coastal Act and can pursue injunctive relief if necessary.  In addition, any penalties or fines issued through the enforcement of the Coastal Act go directly to the Violation Remediation Account of the Coastal Conservancy Fund and not to any individual party, including Plaintiff.  (See PRC § 30823; see also Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661.)  And Plaintiff’s Complaint acknowledges this as it specifically requests that any penalties be paid to the State.  Plaintiff is not seeking any monetary damages to itself from the alleged violations of the Coastal Act, nor in connection with its nuisance claims.  Plaintiff only seeks equitable relief in the form of penalties and injunctive relief. 

Plaintiff argues in its Opposition that the primary jurisdiction doctrine does not apply in this matter because Jilk is not a party to the Coastal Commission and State Lands Commission’s administrative proceedings.  But Jilk is the contractor that performed the work, and Jilk concedes it could be subject to civil penalties or an injunction by the Coastal Commission and State Lands Commission.  In any event, the argument ultimately fails because 2XMD (which is an undisputed party to the administrative proceedings) has filed a joinder.  It makes no sense to stay the action as to 2XMD while allowing the claims against Jilk to proceed. 

Plaintiff argues that the matter at issue here does not involve the level of complexity present in cases where courts have stayed actions pending the completing of administrative proceedings.  The Court disagrees.  The following are just some of the issues that are being addressed by the Coastal Commission and State Lands Commission: (1) whether or not Jilk failed to comply with the permits issued for the work being performed, and in what manner, (2) what are the tidal and intertidal zones, and where exactly are they located on the beach adjacent to the Property, (3) how does low tide/high tide affect the tidal zone parameters and how, in turn, does that affect the work that can be done and where it can be done by the contractor, (4) can water be touching the mechanized equipment at any time during the performance of the work, (5) how does a high tide affect that the area that the contractor can work within, (6) how does an unexpected larger rogue wave affect this, (7) what additional permits (if any) are required to complete the work, (8) what can the contractor do in the event that material leaves the owner’s property and needs to be retrieved from the beach (as happened in this case), and (9) how can contractor perform work without blocking or impinging on the existing public access easement in the area of the project.  Finally, there is the necessary direction from both Commissions as to how Defendants can best complete the necessary restoration work to the timber seawall so as to ensure that no damage or harm comes to the beach or the beach patrons because of not having a proper and safe timber seawall.   

All these issues are intricate and involve a detailed analysis of the Coastal Act and its application to Broad Beach and the work Defendants are continuing to perform.  These are exactly the type of complex issues that the court in Farmers deemed appropriate for application of the primary jurisdiction doctrine.  (See Farmers, 2 Cal. 4th 377; see also Great Northern RY Co. v. Merchant Elevator Co. (1922) 259 U.S. 285, 291 (“Preliminary resort to the Commission [is necessary when] …the enquiry is essentially one of fact and of discretion in technical matters; and uniformity can be secured only if its determination is left to the Commission”). 

Plaintiff’s reliance on Nader v. Allegheny Airlines, Inc. (1975) 426 U.S. 290 and Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609 is misplaced.  In Nader, a passenger brought a fraud claim against an air carrier for its alleged failure to inform him of its deliberate overbooking practices.  The trial court stayed the case pending referral to the Civil Aeronautics Board (Board) for a determination of whether the practice was “deceptive” under the Federal Aviation Act, 49 U.S.C.S. § 1381. The Supreme Court reversed the order of stay, holding the doctrine of primary jurisdiction did not apply to require the referral of the misrepresentation issue to the Board to secure “uniformity and consistency in the regulation of business” entrusted to it because the standards to be applied in a fraudulent misrepresentation action were within the conventional competence of the courts, and the judgment of a technically expert body was not likely to be helpful in applying the standards to the facts of the case.   

In Shutts, a putative class of former and current residents of skilled nursing facilities alleged that the facilities’ noncompliance with the staffing requirement in¿Health & Saf. Code, § 1276.5, subd. (a), demonstrated the inadequacy of the staffing levels. The demurrer asserted, and the trial court ruled, that dismissal based on the abstention doctrine was appropriate. The Court of Appeals reversed the order sustaining the demurrer concluding that abstention was inappropriate because the claims did not implicate technical or policy determinations or otherwise require the expertise of an administrative agency.   

Unlike in Nader and Shutts, as noted above, the issues here are complex and require the administrative agency’s expertise to resolve.  In addition, unlike in Nader and Shutts, the claims here do not involve relief that could not otherwise be imposed by the California Coastal Commission.     

CONCLUSION 

Based on the foregoing, the Court OVERRULES Defendants’ demurrer and GRANTS their motion to stay the action pending the conclusion of the California Coastal Commission’s administrative proceedings.   

IT IS SO ORDERED. 

 

DATED:   November 1, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court