Judge: Holly J. Fujie, Case: 19STCP00482, Date: 2023-01-18 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 19STCP00482    Hearing Date: January 18, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTIONS

            MOVING PARTY: Defendant/Cross-Complainant/Cross-Defendant City of Pomona (the “City” or “Pomona”)

RESPONDING PARTY: Defendant/Cross-Complainant/Cross-Defendant Real Party in Interest, Regency Outdoor Advertising, Inc. (“Regency”)

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action concerns billboard structures (the “Billboards”) located in Pomona that are operated by Regency.  On November 17, 2022, Regency filed a cross-complaint (the “XC”) alleging two causes of action for declaratory relief.^[1]

In relevant part, the XC alleges: On or about June 24, 1993, Pomona and Regency entered into a developing agreement (the “Development Agreement”) under which Regency was permitted to erect the Billboards along freeways in Pomona.  (See XC ¶ 9, Exhibit A.)  The Development Agreement provided for a ten-year term which would automatically extend into a second ten-year term.  (XC ¶ 13.)  Section IV.K of the Development Agreement, labeled “Supersedure by Subsequent Laws,” provided that if a federal or state law enacted after the Development Agreement’s execution precluded compliance with its terms, the provisions of the Development Agreement would be modified to the extent feasible to comply with such law.  (XC ¶ 14.)  On November 1, 1993, the City adopted Proposition L, which added a provision to the Pomona Zoning Code (the “Zoning Code”) prohibiting new or structurally altered offsite billboards within the City.  (XC ¶ 22.) 

Before the expiration of its second ten-year term, Regency and the City (the “Parties”)_ negotiated a proposed third extension of the Development Agreement, and on July 7, 2014, the City adopted Ordinance No. 4190 approving a third ten-year extension for Regency to continue operating the Billboards.  (XC ¶ 17.) 

Plaintiffs, who are competing billboard operators, filed a petition for writ of mandate (the “First Writ”) on August 13, 2014 to set aside Ordinance No. 4190 on the grounds that it violated Proposition L.  (XC ¶ 18.)  The City opposed the First Writ.  (Id.)  The Superior Court granted the First Writ in April 2017.  (XC ¶ 19.)  Pomona filed an appeal and on November 7, 2018, the appellate court affirmed the trial court’s decision.  (XC ¶ 19.)  Regency alleges that the City intentionally or negligently failed to timely adopt the ordinance that approved the third extension of the Development Agreement, which resulted in its invalidation during the First Writ proceeding.  (See XC ¶ 20.)

Regency seeks a declaration that: (1) the Billboards were legally installed under the laws that were in effect at the time of their installation; (2) the Billboards are “Legal Nonconforming Signs” as defined by section .503 of the Zoning Code; (3) since they are Legal Nonconforming Signs, the Billboards do not constitute “Illegal Signs” that require abatement under section .503-K-H of the Zoning Code; (4) the City agreed and promised that it would not seek to remove the Billboards for ten years after the adoption of Ordinance No. 4190, thereby promising Regency that it could continue operating the Billboards through the ten-year term in the third extension; and (5) the City is precluded from removing the Billboards until at least July 7, 2024 under the doctrines of estoppel and promissory estoppel.  (XC ¶ 34.)

The City filed a motion to strike (the “Motion”) portions of the XC related to the first cause of action for declaratory relief.

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

Under California Code of Civil Procedure (“CCP”) section 435, subdivision (b), any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading.  (CCP § 435, subd. (b).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike: (1) any irrelevant, false, or improper matter inserted in any pleading; and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (CCP § 437.)  In ruling on a motion to strike, courts do not read allegations in isolation.  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  Courts read the allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.  (Id.)  When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.  (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

The City seeks to strike:

1.      The portion of Paragraph 32 that states: “Regency further contends that the City agreed and promised that it would not seek to remove the Billboards any sooner than ten years after the City’s July 7, 2014 adoption of Ordinance No. 4190, assuring to Regency an additional ten years of operating and maintaining the signs.  Regency further contends that, pursuant to the equitable doctrines of estoppel and promissory estoppel, the City is precluded from removing the signs, at least through July 7, 2024.”  (See XC ¶ 32);

2.     The portion of Paragraph 34 alleging: “…the City agreed and promised that it would not seek to remove the Billboards any sooner than ten years after the City’s July 7, 2014 adoption of Ordinance No. 4190, assuring to Regency an additional ten years of operating and maintaining the Billboards; and (e) pursuant to the equitable doctrines of estoppel and promissory estoppel, the City is precluded from removing the Billboards, at least through July 7, 2024.” (See XC ¶ 34); and

3.     The corresponding allegations in the Prayer for Relief.  (See XC 10:26-11:3.)

First Cause of Action: Declaratory Relief

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations.  (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)  The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.  (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545.)  The court may sustain a demurrer on the ground that the complaint fails to allege an actual or present controversy, or that it is not justiciable.  (Id.) 

Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed.  (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.)  Thus, the remedy is to be used to advance preventive justice, to declare rather than execute rights.  (Id.)  In order to state a proper claim for declaratory relief, the plaintiff must assert “some recognized or cognizable legal theories” that are “related to subjects and requests for relief that are properly before the court.”  (See Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 563.)

The City argues that the Court should strike the allegations identified in the Motion because the XC does not allege facts that make a declaration of the Parties’ future conduct necessary or proper.  Specifically, the City argues that there is no present controversy over a proper subject for declaratory relief because the XC admits that Ordinance No. 4190 adopting the third extension to the Development Agreement was invalidated, and that the XC does not allege an alternative basis for the existence of an agreement regarding the Billboards between the Parties. 

The Court finds the City’s arguments persuasive.  A development agreement is a legislative act that shall be approved by ordinance and is subject to referendum.  (Gov. Code § 65867.5, subd. (a).)  Here, the legislative act approving the Development Agreement’s extension was invalidated.  The XC alleges that the City promised that the Billboards would not be removed before 2024 but does not allege if this promise was intrinsic to the Development Agreement itself or made separately.  Furthermore, the XC does not state sufficient facts to allege promissory estoppel as a basis for relief because it does not allege the requisite elements to support recovery under the legal theory.  (See Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1007.)[2]

The Court therefore SUSTAINS the Motion in its entirety with 20 days leave to amend.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 18th day of January 2023